Terms of Use Agreement
These terms of use, as amended from time to time, are a legal agreement between Mothership Interactive, Inc. (“Mothership”) and you regarding your use of Mothership’s social games and related services (including, without limitation, the social networking application Treasure Park (the “Game”)), which includes Mothership’s websites or applications created by Mothership available through social networking sites (collectively, the “Services”). The Services are offered to you by Mothership 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, 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 general privacy policy (as of the most recent effective date) (“Privacy Policy”) accompanying or included with the Services. In addition, we require your express acceptance to this Agreement and the Privacy Policy when you register to access and use the Game, along with related content and Services. If you do not agree to be bound by this Agreement or the Privacy Policy, then you are not permitted to access or use the Game or 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 MOTHERSHIP.
You represent that you are at least the age of majority in your jurisdiction or country of residence. The Services are intended solely for users who are eighteen (18) years or older and any registration or access to the Services by anyone under the age of 18, or the age of majority in your jurisdiction or country of residence, is strictly prohibited.
Certain content, games or services provided by Mothership may be accessed by you without requiring registration or login, while other content, games (including, without limitation, the Game) or services provided by Mothership will require that you register and open an account (“User Account”). This Agreement applies equally to your access to and use of both aspects of the Services.
To establish a User Account, you may be required to provide Mothership with certain personal and financial information. You agree that you will supply accurate information to Mothership when requested, and that you will update that information promptly after it changes. Mothership reserves all rights to pursue legal action against all persons who misrepresent personal and financial information or who are otherwise untruthful about their identity, and to suspend or cancel User Accounts registered with inaccurate or incomplete 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 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.
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 immediately notify Mothership of such use pursuant to Section 11, 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. Where the Services utilize the account management of a third party (such as a social networking website, among possibly others), you are responsible for maintaining the confidentiality of your applicable password and account, and are fully responsible for all activities that occur under your account.
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, submissions made via email are not protected by encryption and are vulnerable to interception during transmission.
You acknowledge and agree that you shall have no ownership or other property interest in the User Account, and you further acknowledge and agree that all rights in and to the User Account are and shall forever be owned by and inure to the benefit of Mothership.
Fees and Payment
The Services may include games and/or applications where you will have the opportunity to use ‘coins’ or other online currency (“Virtual Currency”) to license a variety of virtual in-game items (“Virtual Goods”) that can be used while playing such games and/or applications. A valid credit card or other form of payment will be required to access and/or use certain Virtual Currency and/or Virtual Goods, such other forms of payment to include, among possibly others, Facebook Credits. All items of Virtual Currency and Virtual Goods are made available to you under license pursuant to this Agreement. Use of Facebook Credits, credit cards or other forms of payment that we may chose to make available is also subject to any terms or licenses required by such third parties. Such Virtual Goods may have different functions in different games and/or applications.
Mothership may change the functions or generality of Virtual Goods, or discontinue Virtual Goods, at its sole discretion. If any such change is not acceptable to you, you may stop using the game and/or application. Your continued use of the game and/or application will indicate acceptance of such changes.
You may be required to pay a fee in order to obtain Virtual Currency. Mothership reserves the right in its sole discretion to change the number of Virtual Currency you will be entitled to purchase for a given fee. If you purchase Facebook Credits from Facebook, you are agreeing to Facebook’s Payment Terms and Mothership is not a party to the transaction.
Mothership shall have no liability for hacking or loss of Virtual Goods from your User Account, provided Mothership will use reasonable efforts to replace such items under certain circumstances in our reasonable discretion. Mothership has no obligation or responsibility to and will not reimburse you for any Virtual Goods lost due to your violations of this Agreement. Mothership reserves the right, without prior notification, to limit the order quantity on any Virtual Goods and/or to refuse to provide you with any Virtual Good. Verification of certain information applicable to a transaction involving a Virtual Good may be required prior to our acceptance thereof. Price and availability of Virtual Goods and forms of acceptable payment are subject to change without notice.
YOUR PURCHASE OF VIRTUAL CURRENCY IS FINAL AND SHALL UNDER NO CIRCUMSTANCES BE REFUNDABLE, TRANSFERABLE OR EXCHANGEABLE (EXCEPT WHERE EXPLICITLY AUTHORIZED WITHIN THE SERVICE) INCLUDING, WITHOUT LIMITATION, UPON TERMINATION OF YOUR USER ACCOUNT FOR ANY REASON, TERMINATION OF THIS AGREEMENT, AND/OR THE DISCONTINUATION OF THE SERVICES. REGARDLESS OF THE CONSIDERATION OFFERED OR PAID IN EXCHANGE FOR VIRTUAL CURRENCY OR VIRTUAL GOODS, YOU DO NOT HAVE ANY OWNERSHIP RIGHTS IN THE VIRTUAL CURRENCY OR VIRTUAL GOODS. YOU RECEIVE A LIMITED RIGHT TO USE THE VIRTUAL CURRENCY AND VIRTUAL GOODS. ALL VIRTUAL GOODS AND CURRENCIES ARE FORFEITED IF YOUR USER ACCOUNT IS TERMINATED OR SUSPENDED FOR ANY REASON, IN MOTHERSHIP’S SOLE AND ABSOLUTE DISCRETION, OR IF MOTHERSHIP DISCONTINUES PROVIDING THE SERVICES.
Your use of the Services is governed by certain rules (the "Code of Conduct") maintained and enforced exclusively by Mothership 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, and Mothership reserves the right to determine, in addition to the conduct specified below, which conduct it considers to be outside the spirit or essence of the Game and to take such disciplinary measures as it sees fit for violation of such conduct and the conduct specified below, including suspension, termination, or cancellation of your User Account and your access to and use of the Services. Mothership reserves the right to modify the Code of Conduct at any time.
You agree that you will not interrupt or attempt to interrupt the operation of the Services in anyway, including without limitation, the following:
Any attempt by you to disrupt, or encourage or promote the disruption of, the Services may be a violation of criminal and civil laws. You agree that you will not violate any applicable law, rule or regulation in connection with your use of the Services.
You may not use any name:
When engaging in any Communication Feature (as defined below), you may not:
While Mothership considers most conduct and gameplay to be part of the Game, certain acts go beyond what Mothership considers fair and shall constitute serious violations of the Code of Conduct. These acts include, but are not limited to, the following:
The Services’ communication features (such as in-game chat (public and private), e-mail, bulletin boards or forums, collectively “Communication Features”) may be provided to some or all users of the Services. You understand that by using the Communication Features, you may be exposed to messages, information, data, text, software, graphic files, 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 ("User Content") that you might find objectionable. Mothership and its Third Party Providers do not control the content of any User Content and do not guarantee their accuracy, integrity or quality. You understand that any User Content sent through or appearing on the Communication Features is the sole responsibility of those users or persons transmitting such User Content. This means that you, and not Mothership, are entirely responsible for all User Content that you transmit. Under no circumstances will Mothership or its Third Party Providers be liable for any errors or omissions in any User Content 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 User Content sent through or appearing on any Communication Features.
Mothership and Mothership’s Third Party Providers have no obligation to monitor or supervise the Communication Features or User Content, and expressly disclaim any representation that we or our Third Party Providers will monitor or supervise such Communication Features or User Content. However, we expressly reserve the right, but not the obligation, in our sole discretion to monitor, screen, edit, refuse to post, block or remove, in each case, in accordance with applicable law, any User Content, in whole or in part, sent through or appearing on any Communication Feature and you have no expectation of privacy in any content in any of the Communication Features. Without limiting the foregoing, Mothership or its Third Party Providers and designees shall have the right to block or remove, in whole or in part, any User Content that is in violation of this Agreement, is illegal, infringing or otherwise offensive or objectionable. Accordingly, you acknowledge that the Communication Features are forums for public, and not private, communications. You also agree to indemnify and hold Mothership and its Third Party Providers and designees 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.
Nothing contained in this Agreement shall be construed as conferring any license or right, by implication, estoppel or otherwise without the written permission of Mothership. You acknowledge that all rights, ownership, intellectual property and title in and to the Services, including without limitation (a) any user accounts, titles, trademarks, trade names, service marks, moral rights, computer code, themes, objects, characters, character names, stories, dialogue, catch phrases, locations, concepts, artwork, animations, sounds, music, video, photographs, opinions, images, text, audio-visual effects, or methods of operation, (b) any documentation related to any of the aforementioned, (c) any "applets" incorporated into the Game, (d) transcripts of the chat rooms or (e) any Virtual Goods (collectively, “Materials”) are owned and controlled by Mothership 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 Mothership 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 Mothership’s, or its Third Party Providers’, copyrights and other proprietary rights and, for clarity, nevertheless are created for Mothership or its Third Party Providers’ sole and exclusive benefit, and are owned and controlled by Mothership or its Third Party Providers.
Any and all User Content submitted (e.g., by uploading or transmitting) via the Services shall be deemed, and shall remain, the property of Mothership or its Third Party Providers from the moment of creation. Accordingly, Mothership 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 Mothership 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 using any Communication Feature, you expressly grant Mothership 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, 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 Mothership 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.
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:
Interim Designation of Agent to Receive Notifications of Claimed Infringement, pursuant to 17 U.S.C. 512(c) of the United States Copyright Act:
Kurtis Buckmaster
100 West Broadway, Suite 100
Glendale, CA 91210
USA
Email: copyright@mothershipinteractive.com
Telephone: +1 (415) 738-0776
Facsimile: +1 (415) 738-0776
When accessing and using the Services, you may be directed to other third party or external websites that are not affiliated with Mothership (“Third Party Websites”). Mothership 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. Mothership has no control over Third Party Websites and therefore your access to any Third Party Websites is at your own risk. Mothership 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.
Mothership reserves the right, at its sole and absolute 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. Mothership will post a notice of such changes on it’s website pursuant to Section 11. 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.
In accordance with provisions in this Agreement requiring Mothership give notice to you, Mothership will do so by means of a general notice on it’s website, electronic mail to your email address on record in your User Account (if you have in fact 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 in fact created a User Account). With the exception of Section 8, any provisions in this Agreement requiring you give notice to Mothership can be done so by means of email to word2the@Mothershipinteractive.com or by first class mail, postage prepaid, or overnight courier to Mothership Interactive, Inc., PO Box 210607, San Francisco, CA 94121
Either Mothership or you may terminate this Agreement and your User Account at anytime. Fees paid for any unused access time under a subscription term are paid in advance and are not refundable in whole or in part. You may terminate this Agreement and your User Account by no longer accessing or using the Services. However, you will be responsible for recurring payment of subscription fees until you affirmatively terminate your User Account in accordance with all applicable terms of this Agreement. Mothership 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. Mothership 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, MOTHERSHIP RESERVES THE RIGHT TO IMMEDIATELY SUSPEND, TERMINATE, OR CANCEL, IN ITS SOLE 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 AND SHALL NOT BE ENTITLED TO ANY REFUND OF ANY AMOUNT PAID BY YOU FOR ANY UNUSED ACCESS TIME UNDER A SUBSCRIPTION TERM AND YOU WILL FOREFEIT ANY AND ALL OF YOUR UNUSED ACCESS TIME.
THE SERVICES ARE PROVIDED "AS IS" AND NEITHER MOTHERSHIP, ITS THIRD PARTY PROVIDERS, NOR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING ANY MATERIALS IN THE SERVICES, NOR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, INVESTORS, PROFESSIONAL REPRESENTATIVES OR AGENTS, MAKE ANY WARRANTY WHATSOEVER, INCLUDING WITHOUT LIMITATION, THAT THE SERVICES OR THEIR COMMUNICATION FEATURES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. MOTHERSHIP EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE, AND NON-INFRINGEMENT. MOTHERSHIP DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE, VALIDITY, ACCURACY 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.
NEITHER MOTHERSHIP, ITS THIRD PARTY PROVIDERS, NOR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING ANY MATERIALS IN THE SERVICES, NOR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, INVESTORS, PROFESSIONAL REPRESENTATIVES 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 MOTHERSHIP 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; (C) THE DOWNLOADING OF ANY SOFTWARE OWNED OR OPERATED BY MOTHERSHIP 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 (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 MOTHERSHIP, 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 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. MOTHERSHIP 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 MOTHERSHIP 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 MOTHERSHIP 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 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, MOTHERSHIP’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).
Mothership shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of Mothership, 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, or shortages of transportation facilities, fuel, energy, labor or materials.
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:
The Services are controlled and operated by Mothership from its offices within the State of California, United States of America. Mothership makes no representation that materials in the 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 (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 downloading or 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.
You agree to indemnify, defend and hold Mothership, 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 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.
To expedite resolution and control the cost of any dispute, controversy or claim related to this Agreement ("Dispute"), you and Mothership 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 to the other in accordance with Section 11.
If you and Mothership are unable to resolve a Dispute through informal negotiations, either you or Mothership 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. If such costs are determined by the arbitrator to be excessive, Mothership will pay all arbitration fees and expenses. 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 Mothership 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 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 19, 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.
You and Mothership agree that any arbitration shall be limited to the Dispute between Mothership 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.
You and Mothership agree that the following Disputes are not subject to the above provisions concerning informal resolutions and binding arbitration: (i) any Disputes seeking to enforce or protect, or concerning the validity of, any of your or Mothership’s intellectual property rights; and (ii) any claim for injunctive or other equitable relief.
If you are a resident of the United States, any arbitration will take place at any reasonable location within the United States convenient for you. For residents outside the United States, any arbitration shall be initiated in the County of San Francisco, 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 19(d), 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 Mothership agree to submit to the personal jurisdiction of that court.
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.
You and Mothership agree that if any portion of this Section 19 is found illegal or unenforceable (except any portion of 19(d)), that portion shall be severed and the remainder of this Section 19 shall be given full force and effect. If Section 19(d) is found to be illegal or unenforceable then neither you nor Mothership will elect to arbitrate any Dispute falling within that portion of Section 19(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 Mothership agree to submit to the personal jurisdiction of that court.
Notwithstanding Section 19(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. 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.
Last updated: December 14, 2010