Big Fish Games Terms of Use

Last modified: December 1, 2023

These Big Fish Games Terms of Use, as amended from time to time (“Terms of Use”), are a legal agreement between you and Big Fish Games, Inc. and any of its respective successors or assigns (“Big Fish”, “we” or “us”). These Terms of Use apply to access to and use of the websites, games, software and other products and services (collectively, the “Big Fish Offerings”) provided by Big Fish. The Big Fish Offerings include, without limitation, bigfishgames.com, any other sites on which these Terms of Use are posted or linked, and the Restricted Offerings and Big Fish Software (as defined below).

By agreeing to these Terms of Use, you are agreeing to be bound by these Terms of Use and the Supplemental Terms. If you do not agree to be bound by these Terms of Use, then you may not use or access the Big Fish Offerings.

A few other important notes before diving into the rest of the Terms of Use:

·       These Terms of Use include a mandatory arbitration provision and waiver of class relief in Section 26. If you do not wish to be subject to arbitration, you must opt out of the arbitration provision by following the instructions provided in Section 26.

·       For individuals living within the European Economic Area, Switzerland, or United Kingdom, please see the Global Addendum. It includes additional and alternative terms that may be applicable depending on where you live. The Global Addendum is part of the Terms of Use. In the event of a conflict between any term in the Global Addendum and the main body of the Terms of Use, the Global Addendum will control to the extent of the conflict.

·       In addition to the Terms of Use, we also publish a Privacy Policy. Although the Privacy Policy is not a part of the Terms of Use, we encourage you to read it to better understand how we collect, use, share and otherwise process information about you.

 

1.   ELIGIBILITY

You must be at least thirteen (13) years of age, or sixteen (16) years of age if you are located in the European Economic Area, Switzerland, or United Kingdom, to create a Big Fish Account (as defined below) or to access or use most Big Fish Offerings. If you are under the age of 18 (or the age of majority where you live), you may only create a Big Fish Account, or access or use Big Fish Offerings under the supervision of a parent, guardian, or carer who has also agreed to these Terms of Use. Parents, guardians, and carers are responsible for their minor’s access and use of the Big Fish Account (if one is created) and Big Fish Offerings. Big Fish recommends that parents, guardians, and carers familiarize themselves with parental controls on devices used by minors.

You must be at least eighteen (18) years of age (or the age of majority where you live) to access or use Big Fish Offerings involving social casino-style game play (“Restricted Offerings”), including creating a Big Fish Account for one or more Restricted Offerings. Restricted Offerings are intended for amusement purposes only.

You may not create a Big Fish Account or use any other Big Fish Offerings if: (a) you cannot enter into a binding contract with Big Fish, (b) you do not meet the age requirements set forth above, (c) you are located in, or a resident of, a country that is subject to a United States government embargo, or that has been designated by the United States government as a "terrorist supporting" country (“Embargoed Jurisdiction”), (d) you are subject to any sanctions administered by an agency of the U.S. government or the United Nations, (e) you are listed on any United States government list of prohibited or restricted parties, or (f) you have previously been banned from playing any Big Fish game or using any Big Fish Offering, unless Big Fish has reversed that ban, in its sole discretion.

2.   ADDITIONAL TERMS AND AMENDMENTS

Each of your Big Fish Offering account(s) (each, a "Big Fish Account") and access to and use of any other Big Fish Offerings are governed by these Terms of Use and any applicable additional guidelines, terms, or rules that Big Fish makes available to you or otherwise gives you notice of (the “Supplemental Terms”). The Supplemental Terms are incorporated into these Terms of Use by reference. If there is a conflict between these Terms of Use and any Supplemental Terms, the Supplemental Terms will control for that specific instance of conflict. You agree that the following are included as Supplemental Terms and may apply to your use of certain Big Fish Offerings:

a.      Big Fish Points Program Terms of Use

b.      Big Fish Game Club Terms of Use

The Big Fish Offerings are always evolving, so it is important that you periodically check these Terms of Use as well as the Supplemental Terms for updates. Big Fish reserves the right to change or modify the Terms of Use and the Supplemental Terms at any time and in our sole discretion. We may need to make such changes, to account for changes to the Big Fish Offerings (such as when new features are added or when older features are retired); for business, legal, regulatory, or security reasons; or to prevent abuse or harm. If Big Fish makes material changes to these Terms of Use or the Supplemental Terms, we will use commercially reasonable efforts to notify you of such changes, such as (by way of example only) by providing notice through the Big Fish Offerings or by email using the information provided in your Big Fish Account registration. The "Last Modified" date at the top of these Terms of Use will indicate the latest update. If we revise these Terms of Use or the Supplemental Terms, such revision(s) will take effect on the date we indicate. Your continued access or use of any Big Fish Offering after such posting constitutes your acceptance of the revised Terms of Use or Supplemental Terms. If you do not agree to any revision we make to these Terms of Use or the Supplemental Terms, you must immediately discontinue using and participating in all Big Fish Offerings.

If you live within the European Economic Area, Switzerland, or United Kingdom, please see the Global Addendum for information on how this Section applies to you.

3.   USE OF BIG FISH OFFERINGS; ACCOUNT REGISTRATION

a.      Technical requirements. Big Fish Offerings may require you to have certain minimum technical requirement/s, as provided and detailed for the respective Big Fish Offering. While using and accessing the Big Fish Offering, you acknowledge that you read and understand the minimum technical requirements applicable to receive the Big Fish Offering.

b.      Account Registration. You may need to become a Registered User and create a Big Fish Account to access some Big Fish Offerings. If you create a Big Fish Account, you must provide truthful and accurate information when creating a Big Fish Account and promptly update this information if it changes. You may have no more than one Big Fish Account for any Big Fish Offering, and Big Fish reserves the right to limit the number of Big Fish Accounts a user can establish. This limit may change over time in our sole discretion. If you forget your password, you can request a password reset link be sent to your registered e-mail address. For purposes of these Terms of Use, "User," or "user" is one who has registered a Big Fish Account directly with Big Fish or has a valid account on a social networking service or other third-party service or platform through which the User has connected to the Big Fish Offering (each such account, a "Third-Party Account"). When registering a Big Fish Account, you may be required to provide certain information so that we can provide you with a Big Fish Account identification number. Keep your Big Fish Account details and passwords secured as further described in sub-section (e) “Registration Data” below. To protect our Big Fish Offerings, Users and Big Fish itself, we reserve the right, if necessary, to refuse to register any Big Fish Account or to terminate it in accordance with these Terms of Use.

c.      Visitors and Guests. If you are a visitor, you may be able to view and use certain features of the Big Fish Offerings that are available without registration. You do not need to register with Big Fish to simply visit and view websites, the public information on the Big Fish Offerings, or to download certain applications. You may also have the option to play certain Big Fish Offerings as a guest, if available.

d.      Access through Third-Party Platforms. If you access the Big Fish Offering(s) through a social networking service or other third-party service (each a "Third-Party Platform") as part of the functionality of the Big Fish Offering, you may link your Big Fish Account with Third-Party Accounts by allowing Big Fish to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Big Fish and/or grant Big Fish access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Big Fish to pay any fees or making Big Fish subject to any usage limitations imposed by such third-party service providers. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Big Fish Account on the Big Fish Offering. You have the ability to disable the connection between your Big Fish Account and your Third-Party Accounts at any time by accessing the "Settings" section of the applicable Big Fish Offering. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND BIG FISH DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. Additionally, you agree and understand that Big Fish does not control those Third-Party Platforms and their content. You are subject to and should read the terms of use/service agreements and privacy policies that apply to such Third-Party Platforms.

e.      Registration Data. In registering for the Big Fish Offering(s), you agree to (i) provide true, accurate, current, and complete information about yourself as prompted by the Big Fish Offering's registration form (the "Registration Data"); and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current, and complete. To the fullest extent permitted by law, you are responsible for all activities that occur under your Big Fish Account. You may not share your Big Fish Account or password with anyone, and you agree to (a) notify Big Fish immediately of any unauthorized use of your password or any other breach of security; and (b) exit from your Big Fish Account at the end of each session. If you provide any information that is untrue, inaccurate, not current, or incomplete, or Big Fish has reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, Big Fish has the right to suspend or terminate your Big Fish Account and refuse any and all current or future use of the Big Fish Offering(s) (or any portion thereof). To the fullest extent permitted by law, Big Fish reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party's rights.

f.       Network Access. When you access the Big Fish Offering(s) through a mobile network, your network or roaming provider's messaging, data, and other rates and fees will apply. You are required to pay any fees to connect to a mobile network, the Internet, and for data or cellular usage to download and use the Big Fish Offerings. Downloading, installing, or using certain services may be prohibited or restricted by your network provider and not all features of the Big Fish Offering(s) may work with your network provider or device.

g.      Mobile Device Usage. You may choose to use the Big Fish Offerings on a mobile device. If you do, you may need an account with Big Fish that provides your mobile application marketplace provider identifier, like an Apple ID. You may need to update mobile device software from time to time to receive the Big Fish Offerings. We provide Big Fish Offerings, and you are required to provide the equipment (computer, phone, tablet, etc.) and pay any fees related to your use of the Big Fish Offerings on a mobile device, which may include app stores.

4.   ELECTRONIC COMMUNICATIONS

When you access a Big Fish Offering, send e-mails to, or electronically chat with Big Fish, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices in the Big Fish Offerings. You agree that all agreements, notices, disclosures, and other communications that Big Fish provides to you electronically satisfy any legal requirement that such communications be in writing.

5.   OWNERSHIP; LIMITED LICENSE

The Big Fish Offerings, including the text, graphics, images, photographs, videos, illustrations, and other content contained therein, are owned by Big Fish or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms of Use, all rights in and to the Big Fish Offerings are reserved by us or our licensors. Subject to your compliance with these Terms of Use, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use the Big Fish Offerings for your own personal, noncommercial use. Any use of the Big Fish Offerings other than as specifically authorized by these Terms of Use, without our prior written permission, is strictly prohibited, and violates our intellectual property rights.

6.   VIRTUAL ITEMS

Certain Big Fish Offerings may provide you with the opportunity for us to license to you a variety of virtual items such as virtual currency, virtual goods, and content packs ("Virtual Items") that can be used while using the Big Fish Offering. You may be required to pay a fee to obtain Virtual Items (“Paid Virtual Items”). When you use Virtual Items within a Big Fish Offering, any Paid Virtual Items that you have purchased will be deemed used before any Virtual Items that you have earned.

VIRTUAL ITEMS, LICENSED TO YOU IN ACCORDANCE WITH THESE TERMS OF USE, ARE NOT PREPAID PAYMENT INSTRUMENTS OR OTHERWISE ITEMS OF MONETARY VALUE.

You have no property interest in any Virtual Items. Virtual Items obtained through Big Fish Offerings are provided to you under a limited, nontransferable, revocable, non-sublicensable license to use those Virtual Items within the applicable Big Fish Offering. Virtual Items may not be transferred or resold, including, without limitation, by means of any direct sale or auction service. You may not, and may not attempt to, purchase, sell, trade, or sublicense Virtual Items from any individual or entity via cash, barter, or any other transaction. Virtual Items have no monetary value and cannot be used to purchase or use products or services other than within the applicable Big Fish Offering and then only to the extent offered within such applicable Big Fish Offering. Virtual Items cannot, except as stated in the Global Addendum if appliable to you, be refunded or exchanged for cash or any other tangible value.

Big Fish may manage, regulate, control, modify or eliminate your Virtual Items in our sole discretion and without limitation or restriction, and Big Fish will have no liability to you or anyone or any entity for exercising those rights. In addition, all Virtual Items are unconditionally forfeited if your Big Fish Account is deleted, terminated, cancelled, or suspended for any reason, whether by you or Big Fish. If Big Fish discontinues any Big Fish Offering or any portion or feature of any Big Fish Offering, you also unconditionally forfeit any Virtual Items connected to the discontinued Big Fish Offering.

Big Fish has no liability for a third-party hacking or loss of your Virtual Items. Big Fish has no obligation to, and will not, reimburse you for any Virtual Items lost due to your violation of these Terms of Use, disruption, interruption, or discontinuance of the Big Fish Offering or service downtimes related to the same. Big Fish reserves the right, without prior notification, to limit the order quantity on any Virtual Items and/or to refuse to provide you with any Virtual Items. Price and availability of Virtual Items are subject to change without notice.

If you live within the European Economic Area, Switzerland, or United Kingdom, please see the Global Addendum for legal guarantees and refund rights applicable to your Virtual Items.

7.   REVIEWS, COMMUNICATIONS AND SUBMISSIONS

Our Big Fish Offerings may allow you and other users to create, post, store, and/or share content, including usernames, messages, text, photos, videos, software, and other materials (collectively, “User Content”). Except for the license you grant below, as between you and Big Fish, you retain all rights in and to your User Content, except for any text, graphics, images, photographs, videos, illustrations, or other content contain in or derived from the Big Fish Offerings included in your User Content.

You grant Big Fish and its subsidiaries and affiliates a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully paid, and sublicensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform, and display your User Content, including any name, likeness, voice, biography, or signature provided by you in connection with your User Content, in all media formats and channels now known or later developed without compensation to you. Depending on your account settings and which Big Fish Offering you are interacting with, when you post or otherwise share User Content on or through a Big Fish Offering, your User Content and any associated information (such as your username, city and state location, skill level, favorite game and favorite genres) may be visible to others. If you live within the European Economic Area, Switzerland, or United Kingdom, please see the Global Addendum for information on the license you grant Big Fish to your User Content.

You may not create, post, store or share any User Content that violates these Terms of Use, that does not comply with our Review Guidelines, or for which you do not have all the rights necessary to grant us the license described above. You represent and warrant that your User Content, and our use of your User Content as permitted by these Terms of Use, will not violate any rights of or cause injury to any person or entity. Although we have no obligation to screen, edit, or monitor User Content, we may (a) monitor any communications within the Big Fish Offerings, including, without limitation, to ensure that appropriate standards of online conduct are being observed and (b) block, edit, delete, or remove any User Content at any time and for any reason with or without notice.

Big Fish does not endorse or approve any User Content that you or other users post or communicate on or through any Big Fish Offerings. Big Fish does not assume any responsibility or liability for any content that is generated, posted, or communicated by any user on or through the Big Fish Offerings.

8.   PROHIBITED CONTENT AND CONDUCT

You are solely responsible for your conduct while using the Big Fish Offerings. You may not use the Big Fish Offerings if you engage in, encourage, or promote any prohibited conduct or content. On a high level, that means you must not violate any applicable laws, contracts, intellectual property rights, or other third-party rights or cause, or threaten to cause, anyone else harm. Without limiting the generality of the policies and standards in these Terms of Use (including, without limitation, our Review Guidelines) this means you may not post, transmit, promote, or distribute any User Content that:

●       Is threatening, inciteful, deceptive, inappropriate, obscene, defamatory, crude, illegal, immoral or offensive;

●       Contains a virus, corrupted data, malware, spyware, adware, or any other malicious, invasive harmful, disruptive, or destructive code or program;

●       Is for a purpose other than personal communication, including without limitation advertising, promotional materials, chain letters, pyramid schemes, political campaigning, soliciting funds, mass mailings and sending "spam";

●       Contains any private or personal information of a third party without that third party’s consent; or

●       Acts as a passive or active information collection or transmission mechanism, including, without limitation, gifs, 1x1 pixels, web bugs, and other similar devices.

Additionally, you may not:

●       Engage in any harassing, threatening, intimidating, predatory or stalking conduct;

●       Discuss, promote, or depict any form of child sexuality, abuse, exploitation, or related topics that may be harmful to or threaten the security of a child or minor;

●       Impersonate another person, including by indicating that you are a Big Fish employee or a representative of Big Fish (if you are not);

●       Attempt to obtain a password, other account information, or other private information from any other user of a Big Fish Offering, or a User on a Third-Party Platform;

●       Disrupt the normal flow of dialogue, or otherwise act in a manner that negatively affects or disrupts other users;

●       Use features of the Big Fish Offerings or Third-Party Platforms to access a Big Fish Offering for anything other than their intended purpose;

●       Make use of any payment methods or refund systems to access, purchase or refund Big Fish Offerings for fraudulent purposes, or without permission of the authorized owner, or otherwise concerning a criminal offense or other unlawful activity;

●       Improperly use any Big Fish Offering game support functions or complaint buttons, such as by making false complaints or other reports to Big Fish representatives;

●       Use or launch any automated system, including, without limitation, any spider, bot, cheat utility, scraper or offline reader that accesses a Big Fish Offering, or any other unauthorized script or software that interacts with a Big Fish Offering;

●       Modify, translate, reverse-engineer, reverse-compile or decompile, disassemble, or create derivative works from any part of the Big Fish Offerings, including any Big Fish Offering(s) available on or through Third-Party Platforms, except to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;

●       Use a false e-mail address or otherwise disguise the source of any content that you submit within a Big Fish Offering or Third-Party Platform, such as by anonymizing your internet protocol address;

●       Create a "username" or a "persona" in a Big Fish Offering or Third-Party Platform that uses your real name, that uses a username or persona that is already used by someone else or that includes materials Big Fish determines are vulgar or offensive or violates someone else's rights;

●       Interfere with or circumvent any Big Fish Offering security feature or any other feature that is intended to restrict or enforce limitations on use of or access to a Big Fish Offering, or any part thereof, including any Big Fish Offering available on or through any Third-Party Platforms;

●       Sell, lease, loan, or rent any part of a Big Fish Offering, including, without limitation, any Virtual Items, Big Fish Accounts and access to them, including any Big Fish Offering available on or through any Third-Party Platforms; or

●       Engage in cheating, including, but not limited to, by using bots, hacks, add-ons, malware, scripts, or mods not expressly authorized by Big Fish.

Content standards may vary depending on where you are within a Big Fish Offering and the expectations of the relevant game community. You must always use good, respectful, and conservative judgment in interacting as part of any game play, and submitting any User Content, such as a review or post to any forums or message boards, within a Big Fish Offering.

If you violate this Section 8, Big Fish may take enforcement actions, including, without limitation, terminating, or suspending your Big Fish Account in accordance with Section 14. Enforcement of this Section 8 is solely at Big Fish’s discretion, and failure to enforce this Section 8 in some instances does not constitute a waiver of our right to enforce it in other instances. In addition, this Section 8 does not create any private right of action on the part of any third party or any reasonable expectation that the Big Fish Offerings will not contain any content that is prohibited by such rules.

9.   COMMERCIAL ACTIVITY AND UNSOLICITED E-MAIL

You may use the Big Fish Offerings for your own individual, personal, noncommercial use only. This means you may not use any portion of the Big Fish Offerings to collect information, including login names, about other users, and use of such information to send unsolicited communications, or for any other purpose, is strictly prohibited. You may not advertise any goods or services on any Big Fish Offerings, or otherwise exploit your participation on or through any Big Fish Offerings for any commercial purpose.

10.        UNSOLICITED SUBMISSIONS

Please be aware that Big Fish does not accept unsolicited submissions of concepts, creative ideas, suggestions, stories, scripts, games, game ideas, game names, or other potential creative content. This is to avoid the possibility of future misunderstanding when projects developed by Big Fish staff, studios, or representatives might seem to others to be similar to their submitted concepts, creative ideas, suggestions, stories, scripts, or other potential creative content. So please do not send Big Fish any unsolicited submissions. If you do send Big Fish, our staff, studio(s), or representative(s) an unsolicited submission, you understand and agree that your unsolicited submission does not create any fiduciary relationship between you and Big Fish, and that Big Fish is under no obligation to refrain from using the unsolicited submission (in whole or in part), to keep it confidential, or to compensate you if Big Fish or any of its affiliates make any use of it.

11.        BIG FISH SOFTWARE LICENSE

To access some Big Fish Offerings, you may need to install certain software provided by Big Fish or its affiliated or related entities onto your computer or mobile device (such software and any associated media or documentation, "Big Fish Software"). The Big Fish Software is part of the Big Fish Offerings. Accordingly, your access to and use of Big Fish Software is subject to these Terms of Use.

The license granted to you to use Big Fish Software is limited to only permitting you to install and use the Big Fish Software on computers, tablets and mobile devices owned or controlled by you and solely to allow you to participate in the Big Fish Offerings.

You may also be required to agree to a separate end-user license agreement (“EULA”) with Big Fish or its affiliates when you download or install Big Fish Software. In the event of a conflict between a EULA you agreed to in connection with Big Fish Software and the terms of these Terms of Use, the terms of the EULA control with regard to the Big Fish Software.

12.        REPORTING CONTENT

If you believe that anything within a Big Fish Offering infringes any of your intellectual property rights, including copyright that you own or control, you may notify Big Fish at:

Designated Agent                             Legal Department

Address:                                           906 Alaskan Way, Suite 700

                                                         Seattle, Washington 98104

                                                         USA

Telephone Number:                         206-213-5753

Email Address:                                 ip@bigfishgames.com

To report other prohibited content or conduct within a Big Fish Offering, please contact Customer Support (https://bigfishgames.zendesk.com/hc/en-us/).

In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable laws, we have adopted a policy of terminating, in appropriate circumstances, the accounts of users who repeatedly infringe the intellectual property rights of others. If you are submitting a notice under the DMCA, please see 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. Also, please note that if you knowingly misrepresent that any activity or material on Big Fish Offerings is infringing, you may be liable to Big Fish for certain costs and damages.

13.        THIRD-PARTY LINKS, CONTENT, AND SERVICES

Any and all software, content, and services (including advertising) within a Big Fish Offering that are not owned by Big Fish are "third-party content and services." Big Fish acts merely as an intermediary service provider of, and accepts no responsibility or liability for, third-party content and services.

 

In addition, and without limiting the generality of the foregoing, certain Big Fish Offerings may include links to sites, such as social networking sites or payment sites, operated by third parties, including, without limitation, advertisers, payment providers and other content providers (“Other Sites”). We are not responsible for any Other Sites, and such a link does not mean we endorse or approve the Other Site or any information you obtain from it. To the extent permitted by law, we are not liable for any claim relating to any content, goods, and/or services offered by or obtained from any Other Sites.

 

Those Other Sites may collect data or solicit personal information from you. Big Fish does not control such Other Sites, and you agree that Big Fish is not responsible for the content, business practices or policies of Other Sites or third-party content and services, or for the collection, use, sharing, or disclosure of any information those Other Sites may collect. Any and all use of any Other Sites is at your sole risk, cost, and responsibility.

14.        TERMINATION OF ANY BIG FISH ACCOUNT

Big Fish and you each have the right to terminate any of your Big Fish Account(s), if applicable, at any time for any reason or no reason. Big Fish reserves the right to collect fees, surcharges or costs incurred before termination of your Big Fish Account(s) or a particular subscription. In the event that your Big Fish Account is terminated, unless otherwise agreed by Big Fish in writing, no refund will be granted, no online time or other credits (e.g., points in an online game) will be credited to you or converted to cash or other form of reimbursement, and you will have no further access to your Big Fish Account(s) or anything associated with it (such as points, tokens or Virtual Items). If your Big Fish Account is terminated, you will need to cancel any subscriptions you enrolled in with App Providers (as explained in Section 23). Big Fish cannot cancel such subscriptions on your behalf. Any delinquent or unpaid Big Fish Accounts must be settled before Big Fish may allow you to create any new or additional Big Fish Accounts. All Virtual Items are unconditionally forfeited if your Big Fish Account is terminated for any reason, including terminations in Big Fish's sole discretion.

Deleting your Account: You may stop using the Big Fish Offerings and voluntarily delete or request we delete your Big Fish Account at any time. You may delete your Big Fish Account using the settings within the Big Fish Offering or submit an online Customer Support (https://bigfishgames.zendesk.com/hc/en-us/) message to request deletion of your Account. Unless applicable law requires otherwise, Big Fish is not required to provide refunds, benefits, or other compensation if you request deletion of your Account.

If you live within the European Economic Area, Switzerland, or United Kingdom, please see the Global Addendum for information on how this Section applies to you.

15.        TRADEMARKS

Big Fish Games, Inc. and the names and logos, product or service names, slogans and the look and feel of the Big Fish Offerings are protected by copyright, trademark, trade dress and other intellectual property rights owned by Big Fish. These elements may not be copied, imitated, reverse engineered, or used, in whole or in part, without the prior written permission of Big Fish. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Big Fish Offerings are the property of their respective owners, who may or may not be affiliated with or connected to Big Fish. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier or otherwise, does not constitute or imply endorsement, sponsorship, or recommendation by us.

16.        FEEDBACK

If you choose to provide to Big Fish any ideas, suggestions, or other feedback regarding any Big Fish Offerings, or any proposed software or offerings (collectively “Feedback”), you hereby grant Big Fish a perpetual, irrevocable, non-exclusive, worldwide, fully sublicensable, royalty-free, fully paid, right and license to use and exploit (including, without limitation, commercially exploit) in any manner, means, language and/or media, whether now known or hereafter devised such Feedback without restriction, including in connection with any Big Fish Offerings, or other products or services of Big Fish. You understand that Big Fish may treat Feedback as nonconfidential.

17.        DISCLAIMERS

YOU AGREE THAT THE USE OF ANY BIG FISH OFFERING, BIG FISH SOFTWARE AND THE INTERNET IS AT YOUR SOLE RISK. ALL BIG FISH OFFERINGS AND BIG FISH SOFTWARE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BIG FISH DOES NOT GUARANTEE THAT YOU WILL BE ABLE TO ACCESS OR USE THE BIG FISH OFFERINGS OR BIG FISH SOFTWARE AT ANY PARTICULAR TIMES OR LOCATIONS, OR THAT THE BIG FISH OFFERINGS, BIG FISH SOFTWARE, NEWSLETTERS, E-MAILS, OR OTHER COMMUNICATIONS SENT FROM BIG FISH ARE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS.

If you are located in a country which provides consumer guarantees or imposes obligations on us which cannot be excluded, restricted, or modified, or only to a limited extent, then nothing in these Terms of Use is intended to exclude, restrict, or modify such mandatory guarantees or obligations. If you live within the European Economic Area, Switzerland, or United Kingdom, this Section does not apply to you. Please see the Global Addendum for the warranty terms that apply to you.

18.        LIMITATIONS OF LIABILITY

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, BIG FISH AND OUR SUBSIDIARIES AND AFFILIATES AND EACH OF OUR RESPECTIVE EMPLOYEES, AGENTS, LICENSORS, LICENSEES, OFFICERS, DIRECTORS AND SHAREHOLDERS (INDIVIDUALLY AND COLLECTIVELY, THE “BIG FISH PARTIES”) WILL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY—WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, WARRANTY, OR OTHERWISE—FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES OR LOST PROFITS, EVEN IF BIG FISH OR THE OTHER BIG FISH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

UNDER NO CIRCUMSTANCES WILL THE BIG FISH PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID BIG FISH IN THE NINETY (90) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM.

THE LIMITATIONS SET FORTH IN THIS SECTION 18 WILL NOT LIMIT OR EXCLUDE LIABILITY FOR THE GROSS NEGLIGENCE, FRAUD, OR INTENTIONAL MISCONDUCT OF BIG FISH OR THE OTHER BIG FISH PARTIES OR FOR ANY OTHER MATTERS IN WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. ADDITIONALLY, BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH JURISDICTIONS, SUCH LIABILITY SHALL INSTEAD BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW.

IF YOU ARE A RESIDENT OF NEW ZEALAND OR AUSTRALIA, THIS SECTION 18 DOES NOT EXCLUDE, RESTRICT, OR MODIFY THE APPLICATION OF ANY RIGHT OR REMEDY THAT CANNOT BE SO EXCLUDED, RESTRICTED, OR MODIFIED INCLUDING THOSE CONFERRED BY THE NEW ZEALAND CONSUMER GUARANTEES ACT 1993 AND THE AUSTRALIAN CONSUMER LAW (COMPETITION AND CONSUMER ACT 2010). UNDER THESE ACTS ARE GUARANTEES WHICH INCLUDE THAT GOODS AND SERVICES ARE OF ACCEPTABLE QUALITY. IF THESE GUARANTEES ARE NOT MET, THERE ARE ENTITLEMENTS TO HAVE THE SOFTWARE REMEDIED (WHICH MAY INCLUDE REPAIR, REPLACEMENT, OR REFUND). IF A REMEDY CANNOT BE PROVIDED OR THE FAILURE IS OF A SUBSTANTIAL CHARACTER, THE ACTS PROVIDE FOR A REFUND.

If you live within the European Economic Area, Switzerland, or United Kingdom, this Section does not apply to you. Please see the Global Addendum for the limitations of liability that apply to you.

19.        INDEMNIFICATION

To the fullest extent permitted by applicable law, you will indemnify and hold harmless, and at Big Fish’s request defend, Big Fish and the Big Fish Parties from and against any and all losses, liabilities, claims demands, costs and expenses (“Claims”) arising out of or related to (a) your access to or use of the Big Fish Offerings; (b) your User Content or Feedback; (c) your violation of these Terms of Use; (d) your violation, misappropriation, or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with the Big Fish Offerings. You agree to promptly notify Big Fish Parties of any third-party Claims, cooperate with Big Fish Parties in defending such Claims, if requested by Big Fish, and pay all fees, costs and expenses associated with defending such Claims (including attorneys' fees). Without limiting your indemnification obligations described herein, Big Fish reserves the right to assume the exclusive control of the defense or settlement of Claims otherwise subject to indemnification by you. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Big Fish or the other Big Fish Parties.

If you live within the European Economic Area, Switzerland, or United Kingdom, this Section does not apply to you.

20.        IMPORT TAXES AND FEES

When you buy physical goods (e.g. disc) through any Big Fish Offering for delivery outside the United States, you are considered an importer and, as between you and Big Fish, you will be responsible for payment of all taxes, duties, fees, or other charges that may be applicable to such importation, including VAT, and you must comply with all laws and regulations of the country in which you are receiving the goods. Note that cross-border deliveries are subject to opening and inspection by customs authorities.

21.        CORRECTIONS

Big Fish reserves the right to revoke any stated offer and to correct any errors, inaccuracies, or omissions (including after an order was submitted and accepted) in any order, price, advertisement, promotion, or giveaway.

If you live within the European Economic Area, Switzerland, or United Kingdom, this Section does not apply to you. Please see the Global Addendum for the correction terms that apply to you.

22.        NON-WAIVER

The failure of Big Fish to exercise or enforce our rights under these Terms of Use does not operate as a waiver of such right or provision. Any waiver of our rights, including any waiver of any breach or default, must be in a writing signed by Big Fish.

23.        PROCESSING CREDIT AND DEBIT CARD PAYMENTS

Access to the Big Fish Offerings, or to certain features of the Big Fish Offerings, may require you to pay fees. Big Fish may give you different payment options. We reserve the right to change our payment options at any time and for any reason.

Before you become obligated to pay any fees, you will have an opportunity to review and accept the fees that you will be charged. Except as stated in the Global Addendum, all fees are non-refundable, to the fullest extent permitted under applicable law. Big Fish may change any or all of its fees (or impose new fees) upon notification to you of such changed or new fees. Such notification will be made reasonably in advance, and you may terminate any subscriptions or other Big Fish Offerings subject to the price change if you do not agree with the change; however, and to the extent not prohibited under applicable law, you will be deemed to have accepted the changes and such changed or new fees will be applicable after the end of the notice period if you have not terminated the subscription or other Big Fish Offerings subject to the price change.

Big Fish or its payment processor will charge the payment method you specify at the time of purchase. When you provide credit card information or other information necessary to facilitate payment to us or our vendors, you represent to us that (a) the payment information you supply to us is accurate and complete, (b) you are an authorized user of the payment method, (c) charges incurred by you will be honored by your financial institution, and (d) you will pay charges incurred by you at the posted prices, including all applicable taxes, if any. You authorize Big Fish or its payment processor to charge all sums as described in these Terms of Use, for the Big Fish Offerings you select, to that payment method. If you pay any fees with a credit card, Big Fish or its payment processor may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. Fees for the Big Fish Offerings are processed in the United States, and foreign transaction fees may apply if you are located outside the United States.

In the event it becomes necessary to collect on balances due, you will reimburse us and our vendors or agents for all expenses incurred to recover sums due, including attorneys’ fees and other legal expenses. Credits or refunds, when issued directly by Big Fish, will typically be made to the same method of payment and account used to place the order. Depending on where you reside and when your purchase was made, any taxes you paid on an order may not be included in a credit or refund issued directly by Big Fish that you receive for the order. If you live within the European Economic Area, Switzerland, or United Kingdom, please see the Global Addendum for refund terms applicable to you.

For transactions made via a distribution platform like the Apple App Store or Google Play (each an “App Provider”), the App Provider’s refund policy will apply. Customers who completed a transaction through an App Provider will need to contact the App Provider directly with any refund requests. Please see the following support pages for more information:

·       How do I get a refund? (iOS)

·       How do I get a refund? (Android)

The Big Fish Offerings may include functionality for activating, updating, or canceling recurring payments for periodic charges. If you activate or update recurring payments through the Big Fish Offerings, you authorize Big Fish to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, all accrued sums on or before the payment due date for the accrued sums. If you use the Big Fish Offerings to update or cancel any existing authorized one-time or recurring payment, it may take several business days for the update or cancellation to take effect.

24.        EXPORT CONTROL LAWS

Certain Big Fish Offerings may be subject to United States and international export controls. You will not export any Big Fish Offerings to any person or place to which the United States, European Union, United Kingdom, Switzerland, Australia, or New Zealand has embargoed goods of the nature of Big Fish Offerings. You agree to abide by all applicable export control laws and further agree not to transfer or upload, by any means electronic or otherwise, any Big Fish Offerings that may be subject to restrictions under such laws to a national destination prohibited by such laws without obtaining and complying with any required governmental authorizations.

25.        OTHER LEGAL TERMS

You agree that these Terms of Use are not intended to confer and do not confer any rights or remedies upon any third party. If any part of these Terms of Use is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. If any provision of these Terms of Use is found to be illegal or unenforceable, these Terms of Use will be deemed modified to the extent necessary to make them legal and enforceable, and will remain, as modified, in full force and effect. These Terms of Use, including all terms and policies referenced herein, contain the entire understanding, and supersede all prior agreements, between you and Big Fish relating to this subject matter, and cannot be changed or terminated orally.

26.        DISPUTE RESOLUTION; BINDING ARBITRATION

PLEASE READ THIS SECTION 26 CAREFULLY, BECAUSE IT REQUIRES ARBITRATION OF CERTAIN DISPUTES WITH BIG FISH AND IT LIMITS THE MANNER IN WHICH RELIEF CAN BE SOUGHT FROM US, UNLESS YOU OPT OUT OF ARBITRATION BY FOLLOWING THE INSTRUCTIONS SET FORTH BELOW. THIS SECTION PRECLUDES YOU FROM BRINGING ANY CLASS, COLLECTIVE, CONSOLIDATED, OR REPRESENTATIVE ACTIONS AGAINST BIG FISH, INCLUDING ANY ACTION PURSUANT TO ANY STATUTE THAT ALLOWS RECOVERY ON BEHALF OF, FOR THE BENEFIT OF, OR OF AMOUNTS LOST OR SPENT BY OTHER INDIVIDUALS (INCLUDING IN A PRIVATE ATTORNEY GENERAL CAPACITY). ALL ARBITRATIONS (AND LITIGATION, WHERE ALLOWED) SHALL PROCEED SOLELY ON AN INDIVIDUAL BASIS. IN ADDITION, ARBITRATION PRECLUDES YOU FROM SUING IN COURT OR HAVING A JURY TRIAL.

WHETHER TO AGREE TO ARBITRATION IS AN IMPORTANT DECISION. IT IS YOUR DECISION TO MAKE AND YOU SHOULD NOT RELY SOLELY ON THE INFORMATION PROVIDED IN THIS AGREEMENT, AS IT IS NOT INTENDED TO CONTAIN A COMPLETE EXPLANATION OF THE CONSEQUENCES OF ARBITRATION. YOU SHOULD TAKE REASONABLE STEPS TO CONDUCT FURTHER RESEARCH AND TO CONSULT WITH OTHERS REGARDING THE CONSEQUENCES OF YOUR DECISION.

Most of your concerns can be resolved quickly and satisfactorily by contacting Big Fish customer support through links available in your Big Fish Account, within the app (where available), or at https://bigfishgames.zendesk.com/hc/en-us/p/help_center. We encourage you to try Big Fish customer support before beginning any formal dispute procedures, but you are not required to.

  1. Scope of Arbitration. All disputes, claims, or controversies (except those listed below) arising out of or relating to these Terms of Use, any Big Fish Offering, the use of any Big Fish Offering by You or any third party, any applicable Supplemental Terms, or the relationship between the parties, or breach thereof, including disputes with respect to whether the subject matter of any controversy or claim is within the scope of these Terms of Use, except for (i) claims regarding the infringement, protection or validity of either party or its licensors' trade secrets, copyright, trademark, or patent rights; (ii) claims by residents of Australia to enforce a statutory consumer right under Australian consumer law; and (iii) claims brought in small claims court in the county of your billing address (collectively, “Disputes”, and each a “Dispute”) shall be determined exclusively by binding individual arbitration.  Any question about the arbitrability of any Dispute shall be determined by the arbitrator. The parties waive their rights to a jury trial and to have any Disputes resolved in court.
  2. Informal Negotiations. The parties shall first attempt to resolve any Dispute informally for at least 30 days before initiating arbitration. The informal negotiations begin upon the sending of a properly addressed written notice from one party to the other ("Notice of Dispute"). The Notice of Dispute must: (i) include the full name and contact information of the complaining party; (ii) additional information to positively identify the complaining party, such as, but not limited to, email address used to establish the Big Fish Account, Friend Code(s), player identification, device ID; (iii) describe the nature and basis of the claim or Dispute; and (iii) set forth the specific relief sought. Big Fish will send its Notice of Dispute to the other party’s billing or email address. The Notice of Dispute to Big Fish shall be sent to: Big Fish Games, Inc. Attn: Legal Department, 906 Alaskan Way, Suite 700, Seattle, Washington 98104. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrators have determined the amount of the award, if any, to which either party is entitled.
  3. Location of Arbitration and Applicable Rules. The parties agree that any Disputes not resolved through informal negotiations will be finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. The parties agree that such arbitration shall occur in King County, Washington unless you are a consumer, in which case you may elect to hold the arbitration in your county of residence. For purposes of this Section 26, a “consumer” means a person using the Big Fish Offerings for personal, family, or household purposes. The parties agree that Disputes will be held in accordance with the JAMS Comprehensive Arbitration Rules and Procedures (“JAMS Rules”). For in-person arbitration proceedings, either party may request to appear in such proceedings telephonically. Unless the parties agree otherwise, such arbitration shall be conducted by a panel of three arbitrators in accordance with the JAMS Rules, as modified by these Terms of Use. Unless the parties agree otherwise, within 30 days after the commencement of arbitration, each party shall select one person, who must be a retired federal judge and a member of the JAMS panel of neutrals, to act as arbitrator, and the two so selected shall select a third arbitrator within 60 days of the commencement of the arbitration. The third arbitrator preferably will be, but is not required to be, a retired federal judge who is a member of the JAMS panel of neutrals. If the arbitrators selected by the parties are unable or fail to agree upon the third arbitrator within the allotted time, the third arbitrator shall be appointed by JAMS in accordance with its rules. All arbitrators shall serve as neutral, independent, and impartial arbitrators.
  4. Authority of Arbitrator. The parties agree that these Terms of Use affect interstate commerce and that the enforceability of this Section 26 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms of Use and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual, unless all involved parties consent to such consolidation.
  5. Confidentiality. You, Big Fish and the arbitrator shall maintain the confidential nature of the arbitration proceedings and the arbitration award, including the arbitration hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality unless the law provides to the contrary.
  6. Allocation of Arbitration Fees. If you assert a Dispute as a consumer, you will only be required to pay arbitration fees of $250 of the fees charged by JAMS in connection with any arbitration under this Section, and Big Fish will bear all other costs charged by JAMS or the arbitrator, including any remaining JAMS Case Management Fee and all professional fees for the arbitrator's services. You will still be responsible for paying your own attorneys’ fees.
  7. STATUTE OF LIMITATIONS. ANY DISPUTE MUST BE FILED WITHIN ONE (1) YEAR AFTER THE RELEVANT CLAIM AROSE; OTHERWISE, THE DISPUTE IS PERMANENTLY BARRED, WHICH MEANS THAT THE PARTIES WILL NOT HAVE THE RIGHT TO ASSERT THE CLAIM.
  8. WAIVER OF CLASS RELIEF. ALL ARBITRATIONS AND LITIGATION SHALL PROCEED SOLELY ON AN INDIVIDUAL BASIS. WHETHER THE DISPUTE IS HEARD IN ARBITRATION OR IN COURT, YOU AGREE THAT YOU AND BIG FISH WILL NOT COMMENCE AGAINST THE OTHER A CLASS ACTION, CLASS ARBITRATION, OTHER REPRESENTATIVE ACTION OR PROCEEDING, OR ANY ACTION PURSUANT TO ANY STATUTE THAT ALLOWS RECOVERY ON BEHALF OF, FOR THE BENEFIT OF, OR OF AMOUNTS LOST OR SPENT BY OTHER INDIVIDUALS (INCLUDING IN A PRIVATE ATTORNEY GENERAL CAPACITY). YOU AND BIG FISH ARE EACH WAIVING RESPECTIVE RIGHTS TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY PAST, PENDING, OR FUTURE CLASS ACTION OR ANY OTHER CONSOLIDATED OR REPRESENTATIVE PROCEEDING.
  9. Procedure to Opt Out of Arbitration. You may opt out of the binding arbitration requirement by sending written notice via U.S. Mail, or by any nationally recognized delivery service (e.g., UPS, Federal Express) to Big Fish, Attn: Legal Department, at 906 Alaskan Way, Suite 700, Seattle, WA, 98104. For your opt out to be effective, you must send such notice within thirty (30) days of your acceptance of these Terms of Use. You must sign and date the notice, and include in it your name, email address connected to your Big Fish Account (if you have a Big Fish Account), address, and any other information to positively identify you, such as, but not limited to, Friend Code(s), player identification, or device ID, and a clear statement that you do not wish to resolve disputes with Big Fish through arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 27.
  10. If any portion of this Section 26 is determined by a court to be unenforceable or invalid for any reason, (i) the unenforceable or invalid provision shall be severed from these Terms of Use; (ii) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 26 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 26; and (iii) to the extent that any claims must  proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 26 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 26 will be enforceable.

If you live within the European Economic Area, Switzerland, or United Kingdom, this Section does not apply to you. Please see the Global Addendum for the dispute resolution terms that apply to you.

27.        APPLICABLE LAW, JURISDICTION, AND VENUE

These Terms of Use and the rights of the parties hereunder, including with respect to the use by You or by any third party of the Big Fish Offerings and including all claims whether sounding in contract, tort, any statutory cause of action, or any other legal theory, shall be governed by and construed in accordance with the laws of the State of Washington except to the extent preempted by U.S. federal law, without regard to conflict or choice of law rules or principles (whether of Washington or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between you and Big Fish arising from these Terms of Use or your use of Big Fish Offerings that is not subject to arbitration and cannot be heard in small claims court will be resolved in the state or federal courts of Washington and the United States, respectively, sitting in King County, Washington. The parties irrevocably consent to the jurisdiction of such venues.

If you live within the European Economic Area, Switzerland, or United Kingdom, this Section does not apply to you. Please see the Global Addendum for the dispute resolution terms that apply to you.

28.        CALIFORNIA NOTICE

Under California Civil Code Section 1789.3, California consumers are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N-112, Sacramento, California 95834, or by telephone at 1 (800) 952-5210.

If you have any questions about these Terms of Use or our Big Fish Offerings, please contact Customer Support (https://bigfishgames.zendesk.com/hc/en-us/articles/230538107-Contact-Customer-Support). For information about how we collect, use, share and otherwise process information about you, please see our Privacy Policy.

 

GLOBAL ADDENDUM

The following special provisions apply if you live in a country located in the European Economic Area, Switzerland, or United Kingdom.

1. ADDITIONAL TERMS AND AMENDMENTS

Notwithstanding anything in the “Additional Terms and Amendments” section of the Terms of Use (Section 2 above), you are only subject to those Supplemental Terms that you have expressly agreed to. This includes the Supplemental Terms that are listed in the Terms of Use and any additional Supplemental Terms that you agree to through the Big Fish Offerings.

When we materially change or modify the Terms of Use and any Supplemental Terms, we will provide you with reasonable advance notice of the changes and the opportunity to review the changes, except (a) when the changes are beneficial to you; (b) when the changes only address a new service or feature being launched; or (c) when the changes are to address an urgent situation, such as preventing ongoing abuse or responding to legal requirements. If you do not agree to the new terms, you should stop using Big Fish Offerings and, if you have one, close your Big Fish Account.

2. USER CONTENT

Notwithstanding anything in the “Reviews, Communications and Submissions” section of the Terms of Use (Section 7 above), the license you grant Big Fish to your User Content only lasts for as long as your User Content is protected by intellectual property rights.

3. TERMINATION OF ANY BIG FISH ACCOUNT

Notwithstanding anything in the “Termination of Any Big Fish Account” section of the Terms of Use (Section 14 above), we will only terminate your Big Fish Account or your access to and use of other Big Fish Offerings for good cause. There is good cause if, taking into account all the circumstances of the specific case and weighing the interests of both parties, we cannot reasonably be expected to continue the contractual relationship, such as if you materially or repeatedly breach these Terms of Use. We may also suspend your Big Fish Account and access to our Big Fish Offerings for a period of up to ninety (90) days while we investigate suspected misconduct if the misconduct would qualify as good cause and we reasonably believe that misconduct may have occurred.

4. LEGAL GUARANTEES (SWITZERLAND AND UNITED KINGDOM ONLY)

If you live in Switzerland or the United Kingdom, this Section applies to you. The Big Fish Offerings will be provided using a commercially reasonable level of care and skill. Other than as expressly stated in these Terms of Use, Big Fish does not make any commitments about the reliability of the Big Fish Offerings or the ability of the Big Fish Offerings to meet your needs and disclaims all other warranties.

5. LEGAL GUARANTEES (EEA ONLY)

If you live in the European Economic Area, this Section applies to you. Consumer laws where you live provide that Big Fish is liable to you for supplying digital content and services that comply with any contract you have with Big Fish and with the objective and subjective criteria set out by the law. Under these consumer laws, Big Fish is liable for any lack of conformity that you discover:

·       Within two years for digital goods that Big Fish supplies to you on a one-off basis;

·       At any time for digital content or services that Big Fish supplies to you on a continuous basis; or

·       During any longer guarantee period provided by the laws of the country where you live.

Big Fish will not, however, be liable for the non-conformity if Big Fish can demonstrate that the lack of conformity is directly attributable to the incompatibility between the digital content or service and your digital environment and that you had been informed by Big Fish of the technical compatibility requirements of that content or service before the conclusion of the contract. You are required to cooperate with Big Fish, to the extent reasonably possible, necessary, and least intrusive for you, to determine whether the lack of conformity is caused by that incompatibility. If you want to make a guarantee claim, please contact us at the address provided in Section 12 of the Terms of Use.

6. MODIFICATIONS TO THE BIG FISH SERVICES (EEA ONLY)

If you live in the European Economic Area, this Section applies to you. Big Fish may modify and adapt Big Fish Offerings and functionality beyond what is necessary to maintain the contractual conformity of the Big Fish Offerings (a “Modification”), for reasons such as (a) to implement changed legal requirements or case law, (b) to implement changed technical requirements such as a new technical environment or for other operational reasons, in particular to make necessary enhancements for the safety of users or other third parties, (c) to adapt to changed market conditions such as increased user numbers or significant changes of specific and verifiable open market costs, (d) due to changes in licenses we hold from third parties or other third party compliance requirements, and (e) for your benefit or to your advantage.

If such a Modification negatively impacts your access to or use of a Big Fish Offering and such negative impact is more than minor, ("Negative Modification"), Big Fish will provide you with reasonable advance notice of the Negative Modification ("Modification Notice"), except in urgent situations such as a modification to prevent abuse, to respond to legal requirements, or to address security or operability issues. The Modification Notice will include information on what the modification is, when the modification will take place, and your right to end your contract with us.

In the event of a Negative Modification, you have the right to terminate the agreement related to the respective Big Fish Offering free of charge with a notice period of 30 days. The 30-day period begins with your receipt of the Modification Notice. If the Negative Modification is made after you receive the Modification Notice, the period shall begin to run only from the date of the Negative Modification. The termination of the agreement is excluded if Big Fish enables you to maintain access and use of the Big Fish Offerings without the Negative Modification and without additional costs. Even after termination, Sections 2, 3, 4, 6-9, 14-22 and 26-27 of the Terms of Use, each as may be modified by the Global Addendum, will stay in effect.

7. LIMITATIONS OF LIABILITY

Notwithstanding anything in the “Limitations of Liability” section of the Terms of Use (Section 18 above), nothing in the Terms of Use will limit Big Fish’s liability for damages resulting from injury to life, body, or health that are based on an intentional or negligent breach of duty by Big Fish or its vicarious agents or for damages based on an intentional breach of duty or grossly negligent breach of duty by Big Fish or its vicarious agents.

For all other damages, Big Fish is only liable for its simple negligent violation of essential contractual obligations and such liability shall be limited to the damage foreseeable and typical for the contract at the time of conclusion of these Terms of Use. To be clear, essential contractual obligations are those whose fulfillment characterizes the contract and on which the user may rely. Otherwise, liability is excluded.

Insofar as the liability of Big Fish is limited or excluded, the limitations or exclusions shall also apply to the personal liability of any and all Big Fish employees, legal representatives, and vicarious agents.

The limitations and exclusions of liability according to this Section do not affect the liability of Big Fish according to the mandatory legal provisions of product liability acts in the countries where users are located. For users located in Germany, this includes liability due to the fraudulent concealment of a defect as well as the assumption of a guarantee for the quality of an item under the Product Liability Act.

8. CORRECTIONS

Big Fish exercises reasonable care to ensure that the price it lists for Big Fish Offerings are correct. However, errors may occur. If we accept and process an order for a Big Fish Offering where a pricing error was obvious and unmistakable and could reasonably have been recognized by you as a mispricing, we may end the contract and refund you any sums you have paid.

9. DISPUTE RESOLUTION

These Terms of Use and your access to and use of the Big Fish Offerings will be governed by and construed and enforced in accordance with the laws of the country where you live, and the application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. In the event you bring legal proceedings in respect of these Terms of Use in the courts of the country where you live, you will benefit from any mandatory provisions of the law of the jurisdiction in which you are a resident. Nothing in these Terms of Use affects your rights as a consumer to rely on mandatory provisions of the jurisdiction in which you are a resident.

The European Commission provides for an online dispute resolution platform, which you can access at https://ec.europa.eu/consumers/odr/. We prefer to solve your requests directly with you and therefore, unless otherwise agreed to by Big Fish in writing, we do not participate in alternative consumer dispute resolution proceedings. If you would like to bring a matter to our attention, please contact us.

10.        RIGHT OF WITHDRAWAL

Statutory withdrawal right: Notwithstanding any references to limited refund policies in the Terms of Use, if you purchase a Big Fish Offering (such as a Paid Virtual Item) for your own personal (non-commercial) use directly from Big Fish, you have the right to withdraw from the transaction within fourteen (14) days from the date of the transaction as long as none of the exceptions explained below apply.

Withdrawal procedure: To exercise the right of withdrawal, you must inform Big Fish of the decision to withdraw by providing written notice to Customer Service (https://bigfishgames.zendesk.com/hc/en-us/requests/new) of your desire to withdrawal. The following sample withdrawal form can (but does not have to) be used:

Cancellation form

To [game name] Customer Service:

I/We [*] hereby give notice that I/We [*] cancel my/our [*] contract of sale of the following goods [*]/the supply of the following service [*],

Ordered on [*]/received on [*],

Name of customer(s),

Customer ID and/or email associated with account

Address of customer(s)

Signature of customer(s) (only if this form is notified on paper),

Date

[*] Delete as appropriate

Effects of withdrawal: If you withdraw from a transaction made directly with Big Fish, we will reimburse you for all payments we have received from you within fourteen (14) days after receiving your withdrawal notice. Reimbursements may be limited, however, if you have lost your right to complete withdrawal from a contract (as explained below). For this reimbursement, we will typically use the same means of payment that you used for the original transaction, unless we have expressly agreed otherwise with you.

Losing your withdrawal right: You will lose your withdrawal right under the following circumstances:

·       When the contract is for a Big Fish Offering that is digital content, such as a game or software, not supplied on a tangible medium and you expressly agree to have Big Fish supply the digital content to you before the end of the withdrawal period. In such cases you lose your right of withdrawal and will not be entitled to any reimbursements.

·       When the contract is for a Big Fish Offering that is a digital service and you expressly agree to have Big Fish supply the digital content to you before the end of the withdrawal period. In such cases you may only exercise your withdrawal right with regard to any part of the services not yet performed, meaning that the refund you receive after withdrawing will be prorated based on the proportion of the services already provided by the time you notify us of your decision to withdraw.

Transactions with third parties: Big Fish is unable to refund transactions made via a distribution platform like the Apple App Store or Google Play. The App Provider’s refund policy will apply to such transactions, and customers who completed a transaction through an App Provider will need to contact the App Provider directly with any refund requests. See Section 23 of the Terms of Use for more information about how you can request a refund from an App Provider.

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