©2018 BY PLAYDEK, INC.

1) INTRODUCTION. These terms of use, as amended from time to time, are a legal agreement between Playdek, Inc, its affiliates and any of their respective successors or assigns (collectively, “Playdek,” “we” or “us”) and you regarding your use of Playdek’s websites or applications created or controlled by Playdek (collectively, the “Services”). The Services are offered to you by Playdek and its development and technology partners, suppliers, service providers, licensors and licensees (collectively, “Third Party Providers”) who may assist in the development, hosting, operation, distribution, marketing, publication or exploitation of the Services. Your access to and the use of the Services is subject to your acceptance of the terms, conditions, policies and notices contained herein (the “Agreement”). Your access to and use of the Services constitutes your acceptance, without modification, of this Agreement and also our Privacy Policy. In addition, we require your express acceptance to this Agreement and the Privacy Policy, the terms of which are incorporated herein by reference, when you register to access and use the Services. If you do not agree to be bound by this Agreement or the Privacy Policy, then you are not permitted to register for access or use of the Services and are not to use or access the Services.

2) GRANT OF LIMITED LICENSE TO USE THE SERVICES. Subject to the terms and conditions of this Agreement, you are hereby granted a limited non-exclusive, non-transferable, revocable license during the term of this Agreement to access and use the Services. ALL RIGHTS NOT EXPRESSLY GRANTED IN THIS AGREEMENT ARE RESERVED BY PLAYDEK. Playdek reserves the right to interrupt all or any aspect of Services from time to time on a regularly scheduled basis or otherwise with or without prior notice, for any reason (or no reason), including, without limitation, in order to perform maintenance. You understand and agree that delays and disruptions of other network transmissions are completely beyond our control. You acknowledge that the Services may also be interrupted for reasons beyond the control of Playdek and Playdek cannot guarantee that you will be able to access the Services or your User Account (as defined below) whenever you may wish to do so. Playdek has the right at any time for any reason or no reason to change and/or eliminate any aspect of the Services as Playdek shall determine at its discretion. Solely for purposes of clarity and without limiting or waiving any term or condition set forth elsewhere in this Agreement, we are entitled, with immediate effect, to block your access to the Services where you use the Services in a manner that violates applicable law or in a manner that Playdek determines is a breach of this Agreement. Your right to access and use the Services is provided at our discretion, and your account may be suspended or terminated at any time and for any reason. Only individuals may apply for registration, and organizations or companies are not eligible to register for Services without the express written permission of Playdek, which it may withhold in its discretion.

3) ELIGIBILITY. You are only eligible to register for certain Services if you meet certain requirements as set forth at the time of registration. If you do not meet such requirements, then you may not register for Services.

4) USER ACCOUNT. Certain content and Services that Playdek may offer or that you may wish to access will require that you first register with Playdek and create an account (“User Account”) (although the website is accessible without the requirement of a User Account). You must be 13 years or older to create a User Account. This Agreement applies equally to your access to and use of the Services without

establishing a User Account as well as your access to and/or use of the Services for which a User Account is required.

a) Establishing a User Account. To establish a User Account, you may be required to provide Playdek with certain personal information, including without limitation, your first and last name, date of birth, e-mail address, account information for certain third party sites or networks (such as Facebook or Twitter, among possibly others), phone numbers (including cell phone numbers), mailing address and zip code that may be used to identify you as an authorized user of the Service. You agree that you will supply accurate information to Playdek when requested, and that you will update that information promptly if it changes. Playdek reserves all rights to pursue legal action against all persons who misrepresent personal information or who are otherwise untruthful about their identity, and to suspend or cancel User Accounts registered with inaccurate or incomplete information.

b) Login Information. During the registration process, you may be required to select a username and a password (collectively, “Login Information”). It is important that you remember your Login Information and that you keep your Login Information in a safe and secure offline location. You may not share or transfer your User Account or the Login Information with anyone other than as expressly set forth in this Agreement. You are responsible for protecting the confidentiality of the Login Information, and you will be responsible for all use of your User Account accessed with your Login Information, whether or not authorized by you. Any unauthorized access, use, distribution or transfer of your User Account or Login Information may result in suspension, termination, or cancellation of your User Account and your access to and use of the Services.

c) Security of Your User Account and Login Information. In the event that you become aware of or suspect unauthorized use of your User Account or Login Information or any other breach of security, you agree to and will immediately notify Playdek of such use pursuant to the Notice provision below, and ensure that you secure your User Account, Login Information and computer from unauthorized access and use. Once we are notified of any unauthorized use or breach of security, we will attempt to reset your Login Information, which may require you to provide us with a new username or password. In accordance with our Privacy Policy, we have implemented technical, administrative and physical security measures to help safeguard and prevent unauthorized access, use or disclosure of your personal information. Although we use reasonable efforts to safeguard the security of your personal information, transmissions made on or through the Internet and personal information stored on our servers or the servers of Third Party Providers that we may use are vulnerable to attack and cannot be guaranteed to be secure. In addition, communications made via email (which may include, without limitation, Submissions) are not protected by encryption and are vulnerable to interception during transmission. Playdek hereby disclaims any liability for security breaches, access to or disclosure of your personal information or the unavailability of the Service or any delay or failure to perform resulting from any causes whatsoever to the fullest extent allowed under applicable law.

d) No Ownership of Your User Account. YOU AGREE THAT YOU HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN YOUR USER ACCOUNT, AND THAT ALL RIGHTS IN AND TO THE USER ACCOUNTS ARE AND SHALL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF PLAYDEK.

5) CODE OF CONDUCT. Your use of the Services is governed by certain rules (the “Code of Conduct”) maintained and enforced by or on behalf of Playdek, and to which you (and all users) must adhere. It is your responsibility to know, understand and abide by the Code of Conduct. The following

rules are not meant to be exhaustive. In addition to the conduct specified below, Playdek reserves the right, in its discretion, to take disciplinary or other measures as it sees fit in response to conduct that it deems unacceptable, including, without limitation, to delete or alter any username or the suspension, termination, or cancellation of your User Account and your access to and use of the Services, or terminate any license granted in this Agreement, for any reason whatsoever. Playdek reserves the right to modify the Code of Conduct at any time.

a) Unacceptable Online Conduct. Any attempt by you to disrupt, or encourage, assist in or promote the disruption of, the Services is a violation of this Agreement and may be a violation of criminal and civil laws. You agree that you will not violate any applicable law, rule, statute, ordinance or regulation in connection with your use of the Services, nor will you interrupt or attempt to interrupt the operation of the Services in any way, including without limitation, the following:

i) use any unauthorized third-party that intercepts, or otherwise collects, information from or through the Services;

ii) modify or cause to be modified any files that are a part of the Services in any way;

iii) facilitate, create or maintain any unauthorized connection to the Services; or

iv) disrupt or assist in the disruption of any computer used to support the Services or another individual’s access to or use of the Services.

For purposes of clarity, your agreement not to disrupt or interrupt the Services extends to and prohibits any manner or instance of cheating, hacking, the use of bots or the use of any code or software not provided as part of or in connection with the Services, including, without limitation, code or software that may change, alter and/or facilitate game play or how elements of the Services otherwise perform.

b) Username Rules. Playdek may change your username, block your registration, remove your username from all aspects the Service, and/or suspend or terminate your access to the Service if Playdek determines, at its discretion, that your username is contrary to the terms of this Agreement, including, without limitation, the requirements set forth in this Section 5. You may not use any name:

i) that belongs to another person with the intent to impersonate that person or that may mislead others to believe you to be the other person an employee of Playdek;

ii) that uses vulgar or insulting language or which is otherwise offensive, defamatory, obscene, hateful, or racially, ethnically, or religiously charged, or other language Playdek considers objectionable;

iii) that belongs to a popular culture figure, character, celebrity, media personality or any other name protected by a third-party’s trademark(s), service mark, publicity rights or other proprietary rights;

iv) that is, contains, or is substantially similar to, a trademark or service mark, whether registered or not; or

v) that is related to drugs, sex, alcohol, or criminal activity.

 

c) Rules Related to Use of Games, Apps and Other Content available as part of the Services. If you download or otherwise access a game or application (commonly known as an “app”) or any other content (collectively, “Third Party Channels”) and breach the terms and conditions associated with the access and use of such Third Party Channels, or otherwise use or access such game app or content in a manner that Playdek deems inappropriate, then your User Account may be immediately terminated or suspended.

6) COMMUNICATION AND OTHER FEATURES AVAILABLE IN CONNECTION WITH GAMES, APPS AND OTHER CONTENT AVAILABLE AS PART OF THE SERVICES.

a) Communication Features. When using or accessing Third Party Channels, you understand that you may be exposed to messages, information, data, text, software, graphic files, advertising or other materials, whether in written, verbal, electronic, digital, machine-readable or other form (whether now known or hereafter to become known) from other users (“Third Party User Material”) and that you might find such Third Party User Material objectionable. Playdek and its Third Party Providers do not control the content of any Third Party User Material and do not guarantee its accuracy, integrity or quality. You understand that any Third Party User Material sent through or appearing on the Third Party Channels is the sole responsibility of those users or persons transmitting such Third Party User Material. This means that you, and not Playdek or its Third Party Providers, are entirely responsible for all Third Party User Material that you transmit or receive. Under no circumstances will Playdek or its Third Party Providers be liable for any errors or omissions in any Third Party User Material or for any loss or damages of any kind incurred as a result of the access to, downloading, viewing, listening, use of or inability to use any Third Party User Material. Playdek and its Third Party Providers have no obligation to monitor or supervise Third Party User Material, and expressly disclaim any representation that they will monitor or supervise such Third Party User Material. You agree that you have no expectation of privacy in connection with any Third Party User Material. You also agree to indemnify and defend and hold Playdek and its Third Party Providers harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to, or arising out of, your violation of these terms and conditions or your violation of any rights of another.

b) Purchase Features. Some applications offered by way of the Services or otherwise referenced on the Playdek website may include the ability to make purchases within the application itself (also referred to as “in-app purchases”). This can include the ability to purchase additional content or access additional features without having to leave the application. The device on which you are accessing such applications may include settings that prevent access to certain features or content, which may allow you to turn off the ability to make in-app purchases. For example, Apple, Inc. outlines the steps required to enable restrictions on certain of its devices at https://support.apple.com/en-us/HT201304. Please review your settings on your device or seek advice from your data carrier or the manufacturer of your device on how to change your settings or enable restrictions.

c) Social Network Access. When using some applications offered by way of the Services or otherwise referenced on the Playdek website, you may have the ability to access a social network. If you access a social network, you may need to share information (some of which could be personally identifiable information).

7) OWNERSHIP. Nothing contained in this Agreement shall be construed as conferring any license or right, by implication, estoppel or otherwise, without the written permission of Playdek. You acknowledge that all rights, ownership, intellectual property and title in and to the Services, including without limitation any User Accounts, Login Information, titles, trademarks, trade names, service marks, moral rights, computer code, themes, objects, catch phrases, locations, concepts, artwork, animations, sounds, music, video, photographs, opinions, images, text, audio-visual effects, or methods of operation and any documentation related to any of the aforementioned items (collectively, “Materials”) are owned and controlled by Playdek or its Third Party Providers. You may not use, copy, reproduce, create derivative works from, perform, publicly display, adapt, upload, modify, edit, publish, post, transmit, participate in the transfer or sale, license, distribute or exploit, in any way whatsoever, the Materials contained in the Services without the express written permission of Playdek or its Third Party Providers. Any modification of the Materials or any portion thereof, or unauthorized use of the Materials for any other purpose, constitutes an infringement of Playdek’s, or its Third Party Providers’, copyrights and other proprietary rights and, for clarity, nevertheless are created for Playdek or its Third Party Providers’ sole and exclusive benefit, and are owned and controlled by Playdek or its Third Party Providers.

Any and all material of any kind or nature that you may submit (e.g., by uploading or transmitting) via the Services (“User Content”) shall be deemed, and shall remain, the property of Playdek or its Third Party Providers from the moment of creation. Accordingly, Playdek shall exclusively own all now known or hereafter existing copyrights and all other intellectual property rights to all User Content of every kind and nature, in perpetuity, throughout the universe. To the extent that any of the above may be void or unenforceable, you agree that any and all User Content is hereby irrevocably assigned to Playdek or its Third Party Providers, together with all intellectual property rights therein. To the extent any of the User Content is not assignable, by submitting User Content in connection with your access or use of the Services (whether such submission is directly to Playdek or to a party associated or affiliated with Playdek), you expressly grant Playdek or its Third Party Providers an exclusive, irrevocable license to, throughout the universe and in perpetuity, use, copy, reproduce, create derivative works from, perform, publicly display, adapt, translate, upload, modify, edit, publish, post, transmit, participate in the transfer or sale, sublicense, distribute or exploit, in any way or purpose whatsoever, any User Content, commercial or otherwise, in any medium now known or hereafter devised, without compensation or credit to the provider of the User Content. You also give up and agree to never assert any claim that any use by Playdek or its Third Party Providers of any Materials or User Content violates any of your rights, including but not limited to moral rights, privacy rights, rights to publicity, proprietary or other rights, or rights to credit for the material or ideas set forth therein.

You are granted a limited, revocable, and nonexclusive right to create a hyperlink to any Playdek website so long as the link does not portray Playdek or its products or services or Third Party Providers in a false, misleading, derogatory, or otherwise offensive manner. You may not use any Playdek logo or other proprietary graphic or trademark as part of the link without the express written permission of Playdek or the applicable Third Party Provider or owner.

8) DIGITAL MILLENNIUM COPYRIGHT ACT.

a) We respect the intellectual property rights of others and request that users of the Services respect the intellectual property rights of others as well. Pursuant to 17 U.S.C. 512(i) of the United States Copyright Act, we will remove any content that allegedly infringes another party’s copyright and reserve the right to suspend, terminate, or cancel a User Account or a user’s access to and use of the Services if a user is found to be a repeat infringer. If you believe your work has been copied and is accessible through the Services in a way that constitutes copyright infringement, you may notify our designated copyright agent (specified below) in writing with the following and in the form required by 17 U.S.C. 512 of the United States Copyright Act:

i) provide your physical or electronic signature;

ii) identify the copyright work that you believe is being infringed;

iii) identify the item in the Services that you think is infringing your work and include sufficient information about where the material is located on the website;

iv) provide us a way to contact you, such as your address, phone number or email address;

v) provide a statement that you believe in good faith that the item you have identified as infringing is not authorized by the copyright owner, or its agent, or the law; and

vi) provide a statement by you, made under penalty of perjury, that the information you provide in your notice is accurate, and that you are authorized to act on behalf of the copyright owner whose work is being infringed.

b) Interim Designation of Agent to Receive Notifications of Claimed Infringement, pursuant to 17 U.S.C. 512(c) of the United States Copyright Act:

Playdek, Inc.

Attn: Copyright

440 South Melrose Drive, Suite 200

Vista, CA 92081

760-804-9466

support@playdekgames.com

9) THIRD PARTY WEBSITES. When accessing and using the Services, you may be directed to third party or external websites that are not affiliated with Playdek (“Third Party Websites”). Playdek and its Third Party Providers are not responsible for the availability of Third Party Websites, and do not endorse, and are not responsible or liable for any content, advertising, products, or other materials contained on Third Party Websites. Playdek has no control over Third Party Websites and therefore your access to any Third Party Websites is at your own risk. Playdek and its Third Party Providers shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of, inability to use, or reliance on any content, advertising, products, or other materials contained on Third Party Websites. We recommend that you carefully review any terms and conditions, privacy policies and any other legal documents that may be contained on any Third Party Websites.

10) SUBMISSIONS. If you send us creative suggestions, ideas, notes, drawings, concepts, or other information (collectively the “Submissions”) such Submissions shall be deemed and shall remain the property of Playdek in perpetuity. By making any Submission, the sender automatically grants, or warrants that the owner of such material expressly grants, Playdek the royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, and distribute such material (in whole or in part) throughout the universe and/or to incorporate it in other works in any form, media or technology now known or hereafter developed for any purpose that Playdek chooses, whether internal, public, commercial, or otherwise, without any compensation, credit or notice to the sender whatsoever. The sender waives all so-called “moral rights” in all Submissions. The sender further waives the right to make any claims against Playdek relating to unsolicited Submissions, including, but not limited to, unfair competition, breach of implied contract and/or breach of confidentiality.

11) CHANGES TO THE AGREEMENT. Playdek reserves the right, at its discretion, to change, modify, add to, supplement or delete any of the terms and conditions of this Agreement at anytime, for any reason, including but not limited to, the availability of any feature of the Services, hours of availability, content, data, software or equipment needed to access the Services. Playdek will post a notice of such changes on its website pursuant to the Notice provision below. If any changes to this Agreement are unacceptable to you or cause you to no longer be in compliance with this Agreement, you must immediately stop accessing or using the Services. Your continued use of the Services following any notice of revisions to this Agreement constitutes your complete and irrevocable acceptance of any and all such changes.

12) NOTICE. In accordance with provisions in this Agreement requiring Playdek to give notice to you, Playdek will do so by means of a general notice on its website, electronic mail to your email address on record in your User Account (if you have created a User Account), or by written communication sent by first class mail, postage prepaid, or overnight courier to your address on record (if you have created a User Account), the choice of which being at Playdek’s discretion. Any provisions in this Agreement requiring you to give notice to Playdek can be done so by means of email to: support@playdekgames.com or by first class mail, postage prepaid, or overnight courier to:

Playdek, Inc., 440 South Melrose Drive, Suite 200, Vista, CA 92081.

13) TERMINATION. Either Playdek or you may terminate this Agreement and your User Account at anytime. You may terminate this Agreement and your User Account by contacting Playdek and deleting your User Account as set forth in the Privacy Policy and then subsequently no longer accessing or using the Services. Playdek may terminate this Agreement by asking you to stop using the Services, and, if necessary by preventing your access to the Services and your User Account. Playdek shall have the right to suspend, terminate, cancel, modify, or delete this Agreement at any time for any reason or for no reason, with or without notice to you. IF YOU VIOLATE ANY OF THE TERMS OR CONDITIONS OF THIS AGREEMENT, PLAYDEK RESERVES THE RIGHT TO IMMEDIATELY SUSPEND, TERMINATE, OR CANCEL, IN ITS DISCRETION AND WITHOUT NOTICE TO YOU, YOUR USER ACCOUNT OR ACCESS TO THE SERVICES. UPON TERMINATION OF THIS AGREEMENT OR YOUR USER ACCOUNT, YOU WILL HAVE NO FURTHER RIGHTS TO ACCESS OR USE THE SERVICES.

14) WARRANTY DISCLAIMER. THE SERVICES ARE PROVIDED “AS IS”. NEITHER PLAYDEK, ITS THIRD PARTY PROVIDERS, NOR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING ANY MATERIALS IN THE SERVICES, THE SERVICES, OR ANY PLAYDEK PRODUCTS, NOR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, INVESTORS, PROFESSIONAL REPRESENTATIVES, LICENSORS, LICENSEES OR AGENTS, MAKE ANY WARRANTY WHATSOEVER, INCLUDING WITHOUT LIMITATION, THAT THE SERVICES OR THEIR COMMUNICATION FEATURES WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. PLAYDEK EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE, SECURITY AND NON-INFRINGEMENT. PLAYDEK DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE, VALIDITY, ACCURACY, SECURITY OR RELIABILITY OF, OR THE RESULTS OF THE USE OF, OR OTHERWISE RESPECTING, THE MATERIALS IN THE SERVICES OR ANY CONTENT, MATERIALS OR SERVICES ON ANY THIRD PARTY WEBSITES. THIS SECTION 14 SHALL SURVIVE ANY EXPIRATION, TERMINATION OR CANCELLATION OF THE SERVICES AND/OR THIS AGREEMENT OR ANY DETERMINATION THAT THIS AGREEMENT OR ANY PORTION OF THIS AGREEMENT IS VOID OR VOIDABLE.

15) LIMITATION OF LIABILITY. NEITHER PLAYDEK, ITS THIRD PARTY PROVIDERS, NOR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING THE MATERIALS OR THE SERVICES OR ANY PLAYDEK PRODUCTS, NOR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, INVESTORS, PROFESSIONAL REPRESENTATIVES, LICENSORS, LICENSEES OR AGENTS, SHALL BE LIABLE IN ANY WAY FOR DAMAGE OR LOSS OF ANY KIND, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE OR ANY OTHER CAUSE OF ACTION (EVEN IF PLAYDEK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE) RESULTING FROM (A) THE USE OF OR INABILITY TO USE THE SERVICES; (B) THE BREACH OF ANY REPRESENTATION OR WARRANTY (OTHER THAN THE LIMITED PRODUCT WARRANTY SET FORTH IN PARAGRAPH 8, ABOVE); (C) THE DOWNLOADING OF ANY SOFTWARE OWNED OR OPERATED BY PLAYDEK OR ANY THIRD PARTY PROVIDER; (D) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICES OR ANY PLAYDEK PRODUCT; OR (E) INTERRUPTIONS OF SERVICE INCLUDING WITHOUT LIMITATION INTERNET SERVICE DISRUPTIONS, SOFTWARE OR HARDWARE FAILURES OR ANY OTHER EVENT WHICH MAY RESULT IN A LOSS OF DATA OR DISRUPTION OF SERVICE.

IN NO EVENT SHALL PLAYDEK, ITS THIRD PARTY PROVIDERS, OR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING THE MATERIALS, THE SERVICES, OR ANY PLAYDEK PRODUCTS, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, INVESTORS, PROFESSIONAL REPRESENTATIVES, LICENSORS, LICENSEES OR AGENTS, BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR ANY OTHER DAMAGES RESULTING FROM THE USE OF OR INABILITY TO USE THE SERVICES. PLAYDEK DOES NOT WARRANT THAT YOU WILL BE FREE FROM THE BEHAVIOR OF OTHERS YOU MAY DEEM INSULTING, DEMEANING, OFFENSIVE, THREATENING, OBSCENE, LIBELOUS, DEROGATORY OR HARASSING WHILE ACCESSING OR USING THE SERVICES. IN THE EVENT PLAYDEK CHOOSES NOT TO TAKE ANY ACTION, TAKES AN ACTION WITH WHICH YOU DO NOT AGREE OR IS UNABLE TO TAKE ANY ACTION FOR ANY REASON WHATSOEVER, IN NO EVENT SHALL PLAYDEK ITS THIRD PARTY PROVIDERS, OR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING ANY MATERIALS IN THE SERVICES, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, INVESTORS, PROFESSIONAL REPRESENTATIVES, LICENSORS, LICENSEES OR AGENTS, BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR EMOTIONAL DISTRESS, OR OTHER DAMAGES, ARISING OUT OF OR IN CONNECTION WITH YOUR USER ACCOUNT OR YOUR ACCESS TO AND USE OF THE SERVICES.

SOME JURISDICTIONS MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN WARRANTIES OR DISCLAIMERS IN WHICH CASE SOME OF THE WARRANTIES OR DISCLAIMERS PROVIDED IN THIS AGREEMENT MAY NOT BE APPLICABLE. TO THE EXTENT THAT THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION IS PROHIBITED OR FAILS OF ITS ESSENTIAL PURPOSE, PLAYDEK’S TOTAL LIABILITY ARISING FROM THIS AGREEMENT AND SOLE OBLIGATION WITH RESPECT TO DAMAGES SHALL NOT EXCEED ONE HUNDRED UNITED STATES DOLLARS (US$100.00). THIS SECTION 15 SHALL SURVIVE ANY EXPIRATION, TERMINATION OR CANCELLATION OF THE SERVICES AND/OR THIS AGREEMENT OR ANY DETERMINATION THAT THIS AGREEMENT OR ANY PORTION OF THIS AGREEMENT IS VOID OR VOIDABLE.

16) FORCE MAJEURE. Playdek shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of Playdek, including without limitation, any failure to perform hereunder due to unforeseen circumstances, such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, earthquakes, tornados, hurricanes, pandemics, accidents, strikes, internet interruption, denial of service attack, hacking or shortages of transportation facilities, fuel, energy, labor or materials.

17) CONSENT TO MONITOR. In accordance with the terms and conditions of this Agreement and our Privacy Policy, and for purposes of monitoring and improving our quality of service, identifying Unauthorized Third Party Programs (as defined herein) and enforcing the terms and conditions of this Agreement, you hereby acknowledge and agree that:

a) When you access and use the Services, we may obtain certain information about your computer and its operating system, including but not limited to your IP address(es), browser and browser version, screen resolution, and operating system(s), for purposes of improving the Services, and to enforce the provisions of this Agreement.

b) We may, with or without additional notice to you, disclose your Internet Protocol (IP) address, personal information, and other information about you and your activities (i) in response to a request by law enforcement, a court order or other legal process or (ii) if we believe that doing so may protect your safety or the safety of others.

c) We do not presently use web analytics or like services in connection with the Services, including, without limitation, our websites, but may use web analytics or like services (including, for example and without limitation, analytics services provided by Google, Inc. (“Google”) in the future). Such analytics services use “cookies”, which are text files placed on your computer, to help us analyze how visitors use the Services. The information generated by the cookie about your use of our Services will be transmitted to and stored on our servers or the servers of any third party analytics provider (such as Google) and may be accessed by us and/or such third party. This information is used to help us evaluate how our websites are used. If a third party analytics provider is used, the information generated by the cookie or otherwise collected, such third party (whether Google or otherwise) may also transfer this information to third parties where required to do so by law, or where such third parties process the information on the analytics provider’s behalf. By using this website, you consent to the processing of data about you by us or any third party analytics provider, including, without limitation Google, in the manner and for the purposes set out above. Third party sites and services you access through our Services may also employ cookies.

Playdek™ Terms of Use

Last Updated: February 2, 2018

18) NON-U.S. RESIDENTS. The Services are controlled and operated by Playdek from its offices within the State of California, United States of America. Playdek makes no representation that the Materials or Services are appropriate or available for use in other locations. Those who choose to access the Services from other locations do so at their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable, and payment of any applicable internet fees or fees charged by an internet service provider. Software from the Services is further subject to United States export controls. No software from the Services may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, North Korea, Iran, Syria, Sudan, or any other country to which the U.S. has embargoed goods or that has been designated by the U.S. Government as a “terrorist supporting” country; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By using the Services, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.

19) INDEMNITY. You agree to indemnify, defend and hold Playdek, its Third Party Providers, or any person or entity involved in creating, producing, or distributing any Materials or the Services, or any of

their respective directors, officers, employees or agents, harmless from and against any and all damages, costs, losses and expenses, including reasonable attorney fees and court costs relating to or arising directly or indirectly from any suit, claim, demand or settlement based upon your posting or uploading any content using any Communication Feature or your failure to comply with this Agreement or your violation of any third party right or your violation of any law, rule or regulation of the United States or any other country.

20) INJUNCTIVE RELIEF. You agree that a breach of this Agreement will cause irreparable injury to Playdek and/or its Third Party Providers for which monetary damages would not be an adequate remedy. Accordingly, Playdek shall be entitled to seek and obtain equitable relief, including, without limitation, injunctive relief, in addition to any other remedy to which it may be entitled under this Agreement or applicable law, without the need to post bond or other form of security, or provide proof of damages.

21) DISPUTE RESOLUTION AND GOVERNING LAW

a) Informal Resolution. To expedite resolution and control the cost of any dispute, controversy or claim related to this Agreement or the Privacy Policy (“Dispute”), you and Playdek agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least thirty (30) days prior to initiating any arbitration or court proceeding. Such informal negotiations commence upon written notice from one person or entity to the other in accordance with the Notice section above.

b) Binding Arbitration. If you and Playdek are unable to resolve a Dispute through informal negotiations, either you or Playdek may elect to have the Dispute (except those Disputes expressly excluded below) 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 commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org. The determination of whether a Dispute is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Rules and, where appropriate, limited by the AAA Consumer Rules. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement, you and Playdek may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. The arbitration, or any action to enforce this Agreement or the Privacy Policy may not be combined or joined with any other action or be part of a class action.

 

THE PARTIES HEREBY WAIVE THEIR RIGHT TO JURY TRIAL WITH RESPECT TO ALL CLAIMS AND ISSUES ARISING UNDER, IN CONNECTION WITH, TOUCHING UPON OR RELATING TO THIS AGREEMENT, THE BREACH THEREOF AND/OR THE SCOPE OF THE PROVISIONS OF THIS SECTION, WHETHER SOUNDING IN CONTRACT OR TORT, AND INCLUDING ANY CLAIM FOR FRAUDULENT INDUCEMENT THEREOF. YOU UNDERSTAND THAT, ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.

 

c) Restrictions. You and Playdek agree that any arbitration shall be limited to the Dispute between Playdek and you individually. To the full extent permitted by law, (i) no arbitration shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.

d) Exceptions to Informal Resolution and Binding Arbitration. You agree that Playdek may choose, at its option and discretion, to exclude the following Disputes from (and, as such, the following Disputes will not be subject to) the above provisions concerning informal resolutions and binding arbitration: (i) any Dispute related to or arising from allegations of theft, piracy, invasion of privacy or the unauthorized use of Playdek’s or its Third Party Providers’ intellectual property and/or intellectual property rights; and/or (ii) any claim by Playdek for injunctive or other equitable relief.

e) Location and Jurisdiction. Any arbitration will be initiated in and take place in the County of San Diego, State of California, United States of America. Any Dispute not subject to arbitration (other than claims proceeding in any small claims court), or where no election to arbitrate has been made, including without limitation the Disputes contained in Section 21(d), shall be decided by a court of competent jurisdiction wherever located, including, without limitation, in the County of San Diego, State of California, United States of America, and you and Playdek agree to submit to the personal jurisdiction of such courts.

f) Governing Law. Except as expressly provided otherwise, this Agreement shall be governed by, and will be construed and enforced under, the laws, rules and regulations of the United States of America and the laws, rules and regulations of the State of California, excluding conflict of law rules and principles.

g) Severability. You and Playdek agree that if any portion of this Section 21 (Dispute Resolution and Governing Law) is found illegal or unenforceable (with the exception of 21(d)), that portion shall be severed and the remainder of this section shall be given full force and effect. If Section 21(d) is found to be illegal or unenforceable then neither you nor Playdek will elect to arbitrate any Dispute falling within that portion of Section 21(d) found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the County of San Francisco, State of California, United States of America, and you and Playdek agree to submit to the personal jurisdiction of that court.

22) MISCELLANEOUS. Notwithstanding Section 21(g), if any other provision of this Agreement shall be held invalid or unenforceable, in whole or in part, such provision shall be deemed severable from this Agreement, and the validity and enforceability of all other provisions of this Agreement shall not be affected thereby. This Agreement constitutes the entire agreement between the parties hereto relating to the subject matter hereof and supersedes all prior oral and written and all contemporaneous oral negotiations, commitments and understandings of the parties. Sections 6, 7, 9, 11, 12, 13, 14, 17, 18, 19, 20, 21 and 22 shall survive the expiration, termination or cancellation of the Services and/or this Agreement or any determination that this Agreement or any portion of this Agreement is void or voidable. You may not assign or transfer this Agreement or your rights hereunder, and any attempt to the contrary is void. This Agreement may only be modified as set forth herein. The section headings used herein are for reference only and shall not be read to have any legal effect.

Previous Terms of Use Last Updated: May 1, 2013