Terms of Service ("TOS")

Applicable from: 19 May, 2018

Welcome

These terms of service (“TOS”) apply between you and Dark Matter Ltd. ("DM”) regarding your use of DM´s games, websites, discussion forums and related services ("Services"). Use of the Service is also governed by DM´s Privacy Notice located at www.darkmatterplay.com/privacy/english and which is incorporated by reference.

For United States residents, these TOS contains a binding arbitration clause in Section 8 and class action waiver that impact your rights about how to resolve disputes. If you live in the United States, please read it carefully. Except if you opt-out and except for certain types of disputes described in Section 8, you agree that disputes between you and DM will be resolved by binding, individual arbitration and you waive your right to participate in a class action lawsuit or class-wide arbitration.

As a precondition for you using the Services, you must agree to these TOS. If you accept these TOS, you represent that you are age 13 or older. If you are between the ages of 13 and 17 or you otherwise do not have the authority to enter into agreements such as these TOS, you represent that your legal guardian or a holder of parental responsibility has reviewed and agreed to these TOS.

By using or otherwise accessing the Services, you agree to these TOS. If you do not agree to these TOS, you may not use or otherwise access the Services.

Unless otherwise specified by a component of the applicable Service, the Services are free to use or download but may contain features which may allow you to make purchases within the Services.

If you access the Service from a social networking site ("SNS"), such as Facebook, you agree to comply with its terms of service as well as these TOS.

DM may issue additional policies related to specific components of the Services (including without limitation to forums, contests, sweepstakes or loyalty programs). Your right to use the Services is subject to such relevant policies and these TOS.

1. Right to use the Services

Subject to these TOS, DM hereby grants you a non-exclusive, non-transferable, non-sublicensable, limited right and license to use the Services for your personal and non-commercial use. The rights granted to you are subject to your compliance with these TOS.

Except for above, you do not receive any other license. DM retains all right, title and interest in and to the Services, including, but not limited to, all copyrights, trademarks, trade secrets, trade names, proprietary rights, patents, titles, computer codes, audiovisual effects, themes, characters, character names, stories, dialog, settings, artwork, sound effects, musical works, recording of gameplay made using the Services and moral rights whether registered or not and all applications thereof. Unless expressly authorized by mandatory legislation, the Services may not be copied, reproduced or distributed in any manner or medium, in whole or in part, without prior written consent from DM. All rights not expressly granted to you herein are reserved by DM.

The Services and its contents are licensed, not sold. You agree that you have no right or title in or to any content that appears in the Service, including without limitation the Virtual Items or currency appearing or originating in the Services, whether earned in the Services or purchased from DM or third parties.

2. Purchases within the Service

DM may license to you certain virtual goods to be used within the Service and which you may purchase with "real world" money or which you may earn or redeem via gameplay ("Virtual Items"). Virtual Items are licensed to you on limited, personal, non-transferable, non-sublicensable and revocable basis and limited only for non-commercial use.

DM may manage, control, modify or eliminate Virtual Items at any time, with or without notice.

The transfer of Virtual Items is prohibited except where expressly authorized in the Services, if any.

Virtual Items do not have an equivalent value in real world money and do not act as a substitute for real world money. Neither DM nor any other person or entity has any obligation to exchange Virtual Items for anything of value. DM has no liability for hacking or loss of your Virtual Items.

Price and availability of Virtual Items are subject to change without notice.

Subject to mandatory legislation, all purchases and redemptions of Virtual Items made through the Services are final and non-refundable. You acknowledge and consent that the provision of Virtual Items for use in Services is a process that commences immediately upon purchase and you forfeit your right of withdrawal once the performance has started.

Subject to mandatory legislation, you agree that DM is not required to provide a refund for Virtual Items for any reason, and that you will not receive money or other compensation for unused Virtual Items, whether your loss of license under these TOS was voluntary or involuntary.

If you request that your personal data to be erased as specified in DM´s Privacy Notice, you will permanently and without a right to a refund lose all your Virtual Items as DM can no longer associate such Virtual Items with you.

3. Code of conduct

You agree that you will not, under any circumstances:

• Use, either directly or indirectly, any cheats, exploits, automation software, bots, hacks, mods or any unauthorized third-party software designed to modify or interfere with the Services.
• Use the Services in violation of any applicable law or regulation.
• Use the Services for commercial purposes, including without limitation to advertising, or solicitation, or transmission of any commercial advertisements such as spam emails, chain letters, pyramid or other get rich quick -schemes.
• Use the Services for fraudulent or abusive purposes including, without limitation using the Services to impersonate any person or entity, or otherwise misrepresent your affiliation with a person, entity or the Services;
• Disrupt, interfere with or otherwise adversely affect the normal flow of the Services or otherwise act in a manner that may negatively affect other users' experience when using the Services.
• Disrupt, overburden, or aid or assist in the disruption or overburdening of any computer or servers used to offer or support the Services.
• Attempt to gain unauthorized access to the Services, accounts registered to others or to the computers, servers, or networks connected to the Services by any means other than the user interface provided by DM, including but not limited to, by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device, encryption, or software that is part of the Services.
• Post any information, content or other material (or post links to any information or content) that contains nudity, excessive violence or is abusive, threatening, obscene, defamatory, libelous, or racially, sexually, religiously, or otherwise objectionable or offensive.
• Engage in ongoing toxic behavior, such as by repeatedly posting information on an unsolicited basis.
• Attempt to, or harass, abuse, or harm, or advocate or incite harassment, abuse, or harm of another person, group, including DM employees, directors or officers, including DM´s customer service representatives.
• Make available through the Services any material or information that infringes any copyright, trademark, patent, trade secret, right of privacy, right of publicity, or other right of any person or entity or impersonates any other person, including without limitation a DM employee, director or officer.
• Unless specifically authorized by applicable law, attempt to decompile, reverse engineer, disassemble or hack any of the Services, or to defeat or overcome any of the encryption technologies or security measures or data transmitted, processed or stored by DM, or to obtain any information from the Services using any method not expressly permitted by DM.
• Solicit or attempt to solicit login information or any other login credentials or personal information from other users of the Services.
• Harvest, scrape or collect any information about or regarding other people that use the Services, including without limitation through use of pixel tags, cookies, GIFs or similar items that are sometimes also referred to as spyware.
• Post anyone's private information, including personally identifiable information/personal data (whether in text, image or video form), identification documents, or financial information through the Services.
• Engage in any act that DM deems to conflict with the spirit or intent of the Services or make improper use of DM´s support services.

4. Third Party Services

Services may include links to third party services (including without limitation advertisements served by third parties) and/or the third party services may be made available to you via Services. These services may include, but are not limited to gameplay recording and sharing, social media connectivity and advertisements. These services are subject to respective third party terms and conditions. Please study these third party terms and conditions carefully as they constitute an agreement between you and the applicable third party service provider and to which DM is not a party to.

5. Accounts and Login Information

Certain elements of the Services may enable you to create an account or otherwise register with the Services (“Account”). You may be required to select a password for your Account or you may also use other credentials to access the Account ("Login Information"). You agree that you will not give your Login Information details to anyone else or allow anyone else to use your Login Information or Account. You are solely responsible for maintaining the confidentiality of the Login Information, and you will be responsible for all uses of the Login Information, including purchases. DM is entitled to assume that anyone logging into your Account using your Login Information is either you or someone logging in with your permission.

DM reserves the right to delete your Account if DM observes no activity by you in relation to the Account for 180 or more days. In such event, you may no longer be able to access and/or use any Virtual Items associated with that Account and no refund will be offered to you.

6. User Contributions

The Services may allow you to create content, including but not limited to gameplay maps, characters, screenshots or a video of your gameplay (together “User Contributions”).

In exchange for use of the Services, you hereby grant DM a non-exclusive, royalty-free, perpetual, irrevocable, fully transferable and sub-licensable worldwide right and license to use your User Contributions in any way and for any purpose including, but not limited to the rights to reproduce, copy, adapt, modify, perform, display, publish, broadcast, transmit, or otherwise communicate to the public by any means whether now known or unknown and distribute your User Contributions without any further notice or compensation to you of any kind.

If not expressly prohibited by mandatory legislation, you hereby waive any moral rights of paternity, publication, reputation, or attribution with respect to DM's and other players' use and enjoyment of your User Contributions in connection with the Services and related goods and services under applicable law. This license grant to DM, and the above waiver of any applicable moral rights, survives any termination of these TOS.

DM or its directors, officers and employees do not accept or consider unsolicited idea or product submissions of any kind (e.g. game or other product ideas, stories, screenplays, artwork, musical or audiovisual works, concepts or any other creative materials) in any format, by means of any transmission (“Unsolicited Content”). Please do not submit any Unsolicited Content to DM or its directors, officers or employees. If you, however, submit us with Unsolicited Content, you agree that such Unsolicited Content will not be treated as confidential, regardless of what you state in your accompanying message or otherwise. You further agree that such Unsolicited Content may be used and exploited by DM without compensation to you or any third party and you grant DM a perpetual, non-exclusive, irrevocable, fully paid, royalty free, sub-licensable and transferable (in whole or in part) worldwide license to use, exploit, reproduce, transmit, amend, display and exhibit Unsolicited Content in all media now known or hereinafter invented for any purpose and create derivative works based upon the Unsolicited Content.

7. Communications between users of the Services

DM assumes no responsibility for the conduct of any other users of the Services and assumes no responsibility for monitoring the Services for inappropriate content or conduct. DM does not, and cannot, pre-screen or monitor all content or conduct of other users. Your use of the Services is at your own risk.

By using the Services, you may be exposed to content or conduct that is offensive, indecent or otherwise not in line with your expectations. DM may utilize technology may monitor and/or record your interaction with the Services or communications (including without limitation chat text) when you are using the Services. You irrevocable consent to such monitoring and recording. Subject to mandatory legislation, you agree that you have no expectation of privacy concerning the transmission of any content within the Services, including without limitation chat text or voice communications.

DM reserves the right in its sole discretion to review, monitor, prohibit, edit, delete, disable access to or otherwise make unavailable any content made available by users of the Service without notice for any reason or for no reason at any time. If at any time DM chooses, in its sole discretion, to monitor the Services, DM nonetheless assumes no responsibility for content made available by users of the Services and DM assumes no obligation to modify or remove any inappropriate content.

8. Binding arbitration / Class waiver

If you are a United States resident or otherwise make any claim against DM in the United States, you expressly agree that any legal claim, dispute or other controversy between you and DM arising out of or otherwise relating in any way to Services, including controversies relating to the applicability, enforceability or validity of any provision of these TOS or DM´s Privacy Policy (collectively "Disputes"), shall be resolved in confidential binding arbitration conducted before one commercial arbitrator from the American Arbitration Association ("AAA"), rather than in a court, as described herein. The arbitration will be governed by the AAA's commercial arbitration rules and, if the arbitrator deems them applicable, the supplementary procedures for consumer related disputes (collectively "Rules and Procedures"). You acknowledge that you are voluntarily and knowingly forfeiting your right to a trial by jury and to otherwise proceed in a lawsuit in state or federal court.

Payment of arbitration costs will be governed by the AAA's fee schedule, unless you are able to show that your portion will be prohibitive as compared to litigation costs, in which case DM will pay as much of your arbitration costs as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to litigation costs. DM also reserves the right in its sole and exclusive discretion to assume responsibility for all arbitration costs imposed by the AAA. Each party agrees to pay its own attorneys' fees and expenses unless there is a governing statutory provision that requires the prevailing party to be paid attorneys' fees and expenses.

The arbitration may be conducted in Los Angeles, California or, upon your request, in the city closest to you location where AAA maintains an office. The arbitrator's award shall be final and binding on you and DM and may be entered as a judgment in any court of competent jurisdiction.

For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at www.adr.org.

As an exception to the binding arbitration rule, to the extent the Dispute arises from:

1. A violation of DM´s intellectual property rights in any manner;
2. Any claim related to, or arising from, allegations of theft, piracy, unauthorized use or a violation of the United States Computer Fraud and Abuse Act or Section “Code of conduct” of these TOS; and
3. Any claim for equitable relief;

then both parties agree that a party may seek injunctive remedies (or an equivalent type of urgent legal relief) in any court with jurisdiction over the other party. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court's jurisdiction in lieu of arbitration.

To the extent permissible under applicable law, all Disputes shall be resolved by binding confidential arbitration on an individual basis. You expressly agree that no other Disputes shall be consolidated or joined with your Dispute, whether through class arbitration proceedings or otherwise. You and DM agree that there is no right or authority for any dispute to be arbitrated on a class-action basis or to utilize class action procedures, there is no right or authority for any dispute to be brought in a purported representative capacity or as a private attorney general, and no arbitration shall be joined with any other arbitration.

You may opt out of this obligation to arbitrate. If you do so, neither you nor DM can require the other to participate in an arbitration proceeding. To opt out, you must notify DM in writing within 30 days of the date that you first became subject to this arbitration provision. You must use this address to opt out: DM Entertainment Corporation, ATTN: Legal Department, Keilaranta 17, 02150 Espoo, Finland. You must include your name and residence address and a clear statement that you want to opt out of this arbitration clause.

To begin an arbitration proceeding, you must send a letter to: DM Entertainment Corporation, ATTN: Legal Department, Keilaranta 17, 02150 Espoo, Finland requesting arbitration and describing your claim.

DM will provide 30-days’ notice of any changes to this Section “Binding arbitration/ Class waiver” through the Services or via other similar means. Changes will become effective on the 30th day and will apply prospectively only to any claims arising after the 30th day.

9. Suspension and Termination for your breach

Without limiting any other remedies available to DM, if DM believes that you are in breach of these TOS, DM reserves the right to take any of the following actions, whether individually or in combination, and either with or without notice to you: (i) delete, suspend and/or modify your Account or parts of your Account; (ii) limit, suspend and/or terminate your access to the Services; (iii) modify and/or remove any of your Virtual Items; (iv) reset and/or modify any game progression or benefits and privileges associated with you, such as any level or score you have reached in the Services.

10. Availability of the Services

DM may limit, suspend or terminate the Services or portions thereof, and take technical and legal steps to prevent users from accessing the Services if DM believes that they are creating risk or possible legal liabilities, infringing intellectual property rights of third parties, or acting inconsistently with the letter or spirit of these TOS.

DM reserves the right to stop offering and/or supporting the Services or a part thereof (e.g. a game or a feature of a game) at any time, at which point your license to use the Services or a part thereof will be automatically terminated. In such event and unless mandated by applicable law, DM is not required to provide refunds for Virtual Items other items in connection with such discontinued Services.

11. Disclaimer of Warranties

To the fullest extent permissible under applicable law, the Services are provided to you “AS IS,” with all faults, without warranty of any kind, without performance assurances or guarantees of any kind, and your use is at your sole risk. DM does not make, and hereby disclaim, any and all express, implied or statutory warranties, including implied warranties of condition, uninterrupted use, accuracy of data (including but not limited to location data), merchantability, satisfactory quality, fitness for a particular purpose, non-infringement of third party rights, and warranties (if any) arising from a course of dealing, usage, or trade practice. DM does not warrant against interference with your enjoyment of the Services; that the Services will meet your requirements; that operation of the Services will be uninterrupted or error-free, or that the Services will interoperate or be compatible with any other services or that any errors in the Services will be corrected. No oral or written advice provided by DM or its employees or other representatives create a warranty.

Some jurisdictions do not allow the exclusion of certain warranties as stated above, so the above terms may not apply to you. Instead, in such jurisdictions, the foregoing exclusions of warranty shall apply only to the extent permitted by the laws of such jurisdictions. Also, you may have additional legal rights in your jurisdiction, and nothing in these TOS will prejudice the statutory rights that you may have as a consumer of the Services.

12. Limitations of liability

In no event will DM liable for special, incidental or consequential damages resulting from access, use or malfunction of the Services, including but not limited to, damages to property, loss of goodwill, device failure or malfunction and, to the extent permitted by law, damages for personal injuries, property damage, lost profits or punitive damages from any causes of action arising out of or related to these TOS or the Services, whether arising in tort (including negligence), contract, strict liability or otherwise and whether or not DM has been advised of the possibility of such damages. For purposes of this Section “Limitations of liability”, DM’s licensors and other partners are third party beneficiaries to the limitations of liability specified herein and they may enforce these TOS against you.

In no event will DM´s total aggregate liability arising out of or in connection with these TOS, the Privacy Notice or the Services exceed the higher of: (i) the actual price (if any) you paid for the license use Virtual Items; or (ii) one hundred euros (EUR 100). The exclusions and limitations of damages are fundamental elements of the basis of the bargain between DM and you.

Some jurisdictions do not allow the certain limitations of liability as stated above, so the above terms may not apply to you. Instead, in such jurisdictions, the foregoing limitations of liability shall apply only to the extent permitted by the laws of such jurisdictions. Also, you may have additional legal rights in your jurisdiction, and nothing in these TOS will prejudice the statutory rights that you may have as a consumer of the Services.

You agree to indemnify, defend and hold DM (and DM´s officers, directors, agents, subsidiaries, joint ventures and employees) harmless from any claim, demand, damages or other losses, including reasonable attorneys' fees, asserted by any third-party resulting from or arising out of your use of the Services, or any breach by you of these TOS, however the foregoing does not apply if the third party claim is not attributable to your intentional or negligent behavior.

13. Copyrights and DMCA

If you believe the Services or any of its content infringes your copyrights, please send a notice to: Dark Matter Ltd. via email to: privacy@darkmatterplay.com. Notices sent to the specified address will reach DM´s registered DMCA agent.

Please include all of the following in your DMCA Notice:

• Identify the copyrighted work that you claim has been infringed. If your DMCA notice covers multiple works, you may provide a representative list of such works.
• Identify the material that you claim is infringing, including a description of where the material is located. Your description must be reasonably sufficient to enable DM to locate the material.
• Provide your full legal name, mailing address, telephone number, and (if available) email address.

Include the following statement in the body of the DMCA Notice:

“I have a good-faith belief that the use of the material is not authorized by the copyright owner, its agent, or the law. I represent that the information in this DMCA Notice is accurate and, under penalty of perjury, that I am the owner of the copyright or authorized to act on the copyright owner’s behalf.”

Please note that under 17 U.S.C. 512(f), if you knowingly misrepresent that material or activity is infringing, you may be liable for damages, including costs and attorneys’ fees, incurred by us or our users. If you are unsure whether the material or activity you are reporting is infringing, you may wish to contact an attorney before filing a notification with DM.

14. Links to third party products and service

DM may link to third party websites or services from the Services. You understand that DM makes no promises regarding any content, goods or services provided by such third parties and DM does not endorse the same. DM is also not responsible to you in relation to any losses or harm caused by such third parties. Any charges you incur in relation to those third parties are your responsibility. You understand that when you provide data to such third parties you are providing it in accordance with their privacy policy (if any) and DM´s Privacy Notice does not apply in relation to that data.

15. Changes to these TOS

Without affecting Section “Binding arbitration/ Class waiver”, DM may update these TOS from time to time in response to changing legal, technical or business developments. When DM updates these TOS, DM will take appropriate measures to inform you via the Services or otherwise, consistent with the significance of the changes DM makes.

By continuing to access or use the Services after updates become effective, you agree to be bound by the updated TOS.

16. Governing law

If you are a United States resident, in addition to Section “Binding arbitration/ Class waiver” above these TOS is governed by laws of the State of California and applicable Federal laws without regard to conflict of law provisions. If you are a resident outside of the United States, you agree that all disputes between you and DM shall be governed by the laws of Finland, without regard to conflict of law provisions. You agree that any claim or dispute you may have against DM must be resolved exclusively by a court located in Espoo, Finland.

If the jurisdiction of your domicile prohibits DM from enforcing the choice of law provision, nothing in these TOS limits your rights based on the laws of your domicile.

17. Assignment; severability and entire agreement

DM may assign these TOS, in whole or in part, to any person or entity at any time with or without your consent. You may not assign or delegate any rights or obligations under these TOS or the Privacy Notice without DM´s prior written consent, and any unauthorized assignment and delegation by you is void.

If any provision of these TOS is held to be invalid or unenforceable, then that provision will be limited or eliminated to the minimum extent necessary, and the remaining provisions of these TOS will remain in full force and effect. DM´s failure to enforce any right or provision of these TOS will not be deemed a waiver of such right or provision.

This TOS and the Privacy Notice set out the entire agreement between you and DM regarding the Services and replace all earlier agreements and understandings between you and DM.

Any failure by DM to exercise or enforce any of its rights under these TOS does not waive its right to enforce such right. Any waiver of such rights shall only be effective if it is in writing and signed by an authorized representative of DM.

If you have any questions about these TOS, please contact privacy@darkmatterplay.com