SQUARE ENIX, INC.
MOBILE AND ONLINE TERMS OF SERVICE
PLEASE READ THE TERMS OF THIS AGREEMENT CAREFULLY. THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE SERVICES.
THESE TERMS OF SERVICE MAY BE FOUND AT: https://square-enix-games.com/en_US/documents/tnc
The Square Enix, Inc. Mobile and Online Terms of Service (“SEA Terms of Service”) explain the conditions under which you agree to use our applications or services. Here are some key points covered:
These Terms of Service and any Additional Terms apply when you use an application or online service (each a “Service”) published by Square Enix, Inc. or its affiliates (collectively “Square Enix” or “SEA”). Any updates to these terms will also apply to you. If you do not agree, or want to end your agreement, you must uninstall the application or discontinue use of the other Services.
You may only use the Content contained in the Services in connection with your permitted activities on the Services and not in an offline environment or in connection with another application or web site unless we explicitly permit it. (Section 1, Section 2, and Section 5)
You have no ownership in the Services or any virtual characters, items or credits used in the Services. You have only a limited license to use them pursuant to these SEA Terms of Service. All or some aspects may be deleted or the operation of any or all Services terminated in our sole discretion, with or without notice to you. (Section 1, Section 4 and Section 5).
Many types of disputes that may arise in connection with your access to and use of the Services are subject to mandatory arbitration – which includes your waiver of a right to a jury trial. (Section 12)
By registering for a Service, either a new Square Enix Members Account will be created or your information will be linked to your existing Square Enix Members Account. (Section 3)
SEA is providing the Services to you on an “as-is” basis, without any warranty of any kind, and SEA’s liability to you in connection with your use of the Services is very limited. Many other limitations and disclaimers relate to your use of the Services. (Section 13 and Section 14)
Carefully read the terms under these SEA Terms of Service, as they constitute a written agreement between you and Square Enix which affects your legal rights and obligations. If you are a minor, you may only use the Services upon your parent or guardian’s consent to this agreement. Each time you access and/or use the Services (other than to simply read these SEA Terms of Service), you agree to be bound by and comply with all of the terms of the SEA Terms of Service and any Additional Terms (defined below) that are posted on the Services, or linked to from the Services, at that time. Therefore, if you do not agree to all of the terms under these SEA Terms of Service or any Additional Terms, then you may not use the Services. You must uninstall our apps and discontinue use of the Services in order to end your agreement to these terms.
It is important that you read and understand these complete SEA Terms of Service before using the Services. This Table of Contents summarizes the SEA Terms of Service and you can access the corresponding details by clicking on the headings.
In order to access or use some (or potentially all) of the features on the Services, you must first register through the Services or sign in via the Square Enix Members Website or a third-party tool (such as Facebook).
If you register for any feature that requires a password and/or username, then you will select your own password at the time of registration (or we may send you an e-mail notification with a randomly generated initial password) and you agree that: (i) You will not use a username (or e-mail address) that is already being used by someone else, may impersonate another person, belongs to another person, violates the intellectual property or other right of any person or entity, or is offensive. We may reject the use of any password, username, or e-mail address for any other reason in our sole discretion; (ii) You will provide accurate, current, and complete registration information about yourself in connection with the registration process and, as permitted, to maintain and update it continuously and promptly to keep it accurate, current, and complete; (iii) You are solely responsible for all activities that occur under your account, password, and username – whether or not you authorized the activity; (iv) You are solely responsible for maintaining the confidentiality of your password and for restricting access to your Device so that others may not access any password-protected portion of the Services using your name, username, or password; (v) You will immediately notify us of any unauthorized use of your account, password, or username, or any other breach of security; and (vi) You will not sell, transfer, or assign your account or any account rights.
We will not be liable for any loss or damage (of any kind and under any legal theory) to you or any third party arising from your inability or failure for any reason to comply with any of the foregoing obligations.
If any information that you provide, or if we have reasonable grounds to suspect that any information that you provide, is false, inaccurate, outdated, incomplete, or violates these SEA Terms of Service, any Additional Terms, or any applicable law, then we may suspend or terminate your account. We also reserve the more general and broad right to terminate your account or suspend or otherwise deny you access to it or its benefits in our sole discretion, for any reason or no reason, and without advance notice or liability.
The following policies govern each virtual credit system (“Virtual Credit System”) offered by SEA to its customers using its Services, which may have different names depending on the Services involved (such as, Crysta®,“coins,” “points,” or “bucks”).
(i) General. SEA may now or in the future offer users of the Services the opportunity to create, build, post, upload, display, publish, distribute, transmit, broadcast, or otherwise make available on or submit through the Services (collectively, “submit”) messages, avatars, text, illustrations, files, images, graphics, photos, comments, sounds, music, videos, information, content, ratings, reviews, data, questions, suggestions, personally identifiable information, or other information or materials and the ideas contained therein (collectively, but excluding Square Enix Licensed Elements included therein, “User-Generated Content”). SEA may do this through forums, blogs, message boards, social networking environments, content creation tools, gameplay, social communities, e-mail, messaging and other communications functionality. Subject to the rights and license you grant in these SEA Terms of Service, you retain whatever legally cognizable right, title, and interest that you have in your User-Generated Content, except to the extent it incorporates copyrighted materials of SEA (for example, you incorporated one of our characters or logos).
In your communications with SEA, please keep in mind that SEA does not seek any unsolicited ideas or materials for products or services, or even improvements to products or services, such as ideas, concepts, inventions, or designs for game productions or equipment, books, scripts, screenplays, motion pictures, television shows, theatrical productions, or otherwise (collectively, “Unsolicited Ideas and Materials”). Any Unsolicited Ideas and Materials you post on or send to us via the Services are deemed User-Generated Content and licensed to us as set forth below and pursuant to our Unsolicited Materials Policy set forth on our website here. In addition, SEA retains all of the rights held by members of the general public with regard to your Unsolicited Ideas and Materials. SEA’s receipt of your Unsolicited Ideas and Materials is not an admission by SEA of their novelty, priority, or originality, and it does not impair SEA’s right to contest existing or future intellectual property rights relating to your Unsolicited Ideas and Materials.
(iii) License to Square Enix of Your User-Generated Content. Except as otherwise described in any Additional Terms (such as official contest rules), which govern the submission of your User-Generated Content, you hereby grant to SEA and its affiliates, and you agree to grant to SEA and its affiliates on a prospective basis, the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of your User-Generated Content (and derivative works thereof), for any purpose whatsoever in all formats, on or through any media, software, formula, or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. Without limitation, the granted rights include the right to: (a) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format, and remove such User-Generated Content and combine same with other materials, and (b) use any ideas, concepts, know-how, or techniques contained in any User-Generated Content for any purposes whatsoever, including developing, producing, and marketing products and/or services. In order to further effect the rights and license that you grant to Square Enix to your User-Generated Content, you also hereby grant to SEA and its affiliates, and agree to grant to Square Enix and its affiliates on a prospective basis, the unconditional, perpetual, irrevocable right to use and exploit your name, persona, and likeness in connection with any User-Generated Content, without any obligation or remuneration to you. Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any User-Generated Content, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights. You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section. Upon SEA’s request, you will furnish us with any documentation necessary to substantiate the rights to such content and to verify your compliance with these SEA Terms of Service or any Additional Terms.
(iv) Square Enix’s Exclusive Right to Manage our Services. SEA may, but will not have any obligation to, review, monitor, display, post, store, maintain, accept, or otherwise make use of any of your User-Generated Content to ensure appropriate use of our Services, and SEA may in the course of managing our Services as we deem appropriate, delete, move, re-format, remove or refuse to post or otherwise make use of User-Generated Content without notice, or restore any credits or virtual items used in the creation of such deleted User Generated Content to you, or have any liability to you or any third party in connection with our operation of User-Generated Content venues in an appropriate manner. Without limitation, we may do so to address content that comes to our attention that we believe is offensive, obscene, lewd, lascivious, filthy, violent, harassing, threatening, abusive, illegal or otherwise objectionable or inappropriate, or to enforce the rights of third parties or the SEA Terms of Service or any applicable Additional Terms, including without limitation, the content restrictions set forth below in the Community Guidelines (defined in Section 5(B). Such User-Generated Content submitted by you or others need not be maintained on the Services by us for any period of time and you will not have the right, once submitted, to access, archive, maintain, or otherwise use such User-Generated Content on the Services or elsewhere.
(v) Representations and Warranties Related to Your User-Generated Content. Each time you submit any User-Generated Content, you represent and warrant that you are either at least the age of majority in the jurisdiction in which you reside (or have all proper consents from your parent or legal guardian), and are the parent or legal guardian, or have all proper consents from the parent or legal guardian, of any minor who is depicted in or contributed to any User-Generated Content you submit, and that, as to that User-Generated Content, (a) you are the sole author and owner of the intellectual property and other rights to the User-Generated Content, or you have a lawful right to submit the User-Generated Content and grant SEA the rights to it that you are granting by these SEA Terms of Service and any Additional Terms, all without any SEA obligation to obtain consent of any third party and without creating any obligation or liability of SEA; (b) the User-Generated Content is accurate; (c) the User-Generated Content does not and, as to SEA’s permitted uses and exploitation set forth in these SEA Terms of Service, will not infringe any intellectual property or other right of any third party; and (d) the User-Generated Content will not violate these SEA Terms of Service (including the Community Guidelines) or any Additional Terms, or cause injury or harm to any person.
(vi) Enforcement. SEA has no obligation to monitor or enforce your intellectual property rights to your User-Generated Content, but you grant us the right to protect and enforce our rights to your User-Generated Content, including by bringing and controlling actions in your name and on your behalf (at SEA’s cost and expense, to which you hereby consent and irrevocably appoint SEA as your attorney-in-fact, with the power of substitution and delegation, which appointment is coupled with an interest).
As a user of the Services, these Community Guidelines (“Community Guidelines”), as supplemented by any community guidelines specific to any Service, are here to help you understand the conduct that is expected of members of the Services’ communities (“Communities”).
(i) Nature of Rules.
Your participation in the Communities is subject to all the terms in these SEA Terms of Service, including these Community Guidelines:
If you submit User-Generated Content that SEA reasonably believes violates these Community Guidelines, or engage in any other conduct that SEA reasonably believes violates these rules, then we may limit, suspend or terminate your licensed use of the Services or take any legal action that we deem appropriate, in our sole discretion. However, we are not obligated to take any action not required by law. We reserve the right to request at any time proof of the permissions referred to above in a form acceptable to us. Failure to provide such proof may lead to, among other things, the User-Generated Content in question being removed from the Services.
(ii) Your Interactions with Other Users; Disputes. You are solely responsible for your interaction with other users of the Services, whether online or offline. We are not responsible or liable for the conduct or content of any user. We reserve the right, but have no obligation, to monitor or become involved in disputes between you and other users. Exercise common sense and your best judgment in your interactions with others (e.g., when you submit any personal or other information) and in all of your other online activities.
If you discover any content that violates these SEA Terms of Service, then you may report it to us at firstname.lastname@example.org. For alleged infringements of intellectual property rights, see Sections 6 and Section 7, below.
SEA will respond appropriately to notices of alleged copyright infringement that comply with the U.S. Digital Millennium Copyright Act (“DMCA”), as set forth below. If you own a copyright in a work (or represent such a copyright owner) and believe that your (or such owner’s) copyright in that work has been infringed by an improper posting or distribution of it via the Services, then you may send us a written notice that includes all of the following:
(i) a legend or subject line that says: “DMCA Copyright Infringement Notice”;
(ii) a description of the copyrighted work that you claim has been infringed or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
(iii) a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material;
(iv) your full name, address, telephone number, and e-mail address;
(v) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
(vi) a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the copyright owner (or, if you are not the copyright owner, then your statement must indicate that you are authorized to act on the behalf of the owner of an exclusive right that is allegedly infringed); and
(vii) your electronic or physical signature.
Square Enix will only respond to DMCA Notices that it receives by mail or e-mail at the addresses below:
By Mail: 999 N. Sepulveda Blvd., 3rd Floor, El Segundo, California 90245
By E-Mail: na.DMCA@square-enix.com
It is often difficult to determine if your copyright has been infringed. By posting User-Generated Content, you understand that SEA may remove it in response to an inaccurate DMCA Notice without any liability.
Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
We may send the information that you provide in your notice to the person who provided the allegedly infringing work. That person may elect to send us a DMCA Counter-Notification.
Without limiting SEA’s other rights, SEA may, in appropriate circumstances, terminate a repeat infringer’s access to the Services and any other applications or site owned or operated by SEA. See Section 3, above.
If access to a work that you submitted to SEA is removed as a result of a DMCA Notice, and if you believe that the disabled access or removal is the result of mistake or misidentification, then you may send us a DMCA Counter-Notification to the addresses above. Your DMCA Counter-Notification should contain the following information:
(i) a legend or subject line that says: “DMCA Counter-Notification”;
(ii) a description of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
(iii) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
(iv) your full name, address, telephone number, e-mail address, and the username of your account;
(v) a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or, if the address is located outside the U.S.A., to the jurisdiction of the United States District Court for the Central District of California), and that you will accept service of process from the person who provided DMCA notification to us or an agent of such person; and
(vi) your electronic or physical signature.
Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity was removed of disabled by mistake or misidentification may be subject to liability.
If we receive a DMCA Counter-Notification, then we may replace the material that we removed (or stop disabling access to it) in not less than ten (10) and not more than fourteen (14) business days following receipt of the DMCA Counter-Notification. However, we will not do this if we first receive notice at the addresses above that the party who sent us the DMCA Copyright Infringement Notice has filed a lawsuit asking a court for an order restraining the person who provided the material from engaging in infringing activity relating to the material on the Services. You should also be aware that we may forward the Counter-Notification to the party who sent us the DMCA Copyright Infringement Notice.
If you own intellectual property other than copyrights and believe that your intellectual property has been infringed by an improper posting or distribution of it via the Services, then you may send us a written notice to the addresses set forth above that includes all of the following:
(a) a legend or subject line that says: "Intellectual Property Infringement Notice";
(b) a description of the intellectual property that you claim has been infringed;
(c) a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material;
(d) your full name, address, telephone number, and e-mail address;
(e) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the owner of the intellectual property, its agent, or the law;
(f) a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the owner of the intellectual property at issue (or, if you are not the owner, then your statement must indicate that you are authorized to act on the behalf of the owner of the intellectual property that is allegedly infringed); and,
(g) your electronic or physical signature.
We will act on such notices in our sole discretion. Any user of the Services who fails to respond satisfactorily to SEA with regard to any such notice is subject to suspension or termination. We may send the information that you provide in your notice to the person who provided the allegedly infringing material.
If you have any question regarding the use of the Services, please e-mail us at email@example.com, or contact us at Square Enix, Inc., 999 N. Sepulveda Boulevard, Third Floor, Los Angeles, California 90245 (Attn: Legal). You may contact Square Enix Customer Support by opening a ticket at http://support.na.square-enix.com. You acknowledge that the provision of customer support is at SEA’s sole discretion and that we have no obligation to provide you with customer support of any kind. We may provide you with customer support from time to time, at our sole discretion, provided that you have created an account and that you submit your customer support inquiries using such account.
We do our best to describe every service offered on the Services as accurately as possible. However, we are human, and therefore we do not warrant that specifications, pricing, or other content on the Services are complete, accurate, reliable, current, or error-free. In the event of any errors relating to pricing or specifications, SEA shall have the right to refuse or cancel any orders in its sole discretion. If we charged your credit card or other account prior to cancellation, we will issue a credit to your account in the amount of the charge.
The Services may contain links, as part of third-party ads on the Services or otherwise, to or from third-party web sites, applications or other locations (“Linked Sites”), including those operated by advertisers, licensors, licensees, and certain other third parties who may have business relationships with SEA. SEA may have no control over the content, operations, policies, terms, or other elements of Linked Sites, and SEA does not assume any obligation to review any Linked Sites. SEA does not endorse, approve, or sponsor any Linked Sites, or any third-party content, advertising, information, materials, products, services, or other items. Furthermore, SEA is not responsible for the quality or delivery of the products or services offered, accessed, obtained by or advertised at such Linked Sites. Finally, SEA will under no circumstances be liable for any direct, indirect, incidental or special loss or other damage, whether arising from negligence, breach of contract, defamation, infringement of copyright or other intellectual property rights, caused by the exhibition, distribution or exploitation of any information or content contained within these third-party Linked Sites. Any activities you engage in connection with any of the same are subject to the privacy and other policies, terms and conditions of use, and rules issued by the operator of the Linked Sites. SEA disclaims all liability in connection therewith.
Any interactions, correspondence, transactions, and other dealings that you have with any third parties found on or through the Services (including on or via Linked Sites or advertisements) are solely between you and the third party (including issues related to the content of third-party advertisements, payments, delivery of goods, warranties (including product warranties), privacy and data security, and the like). SEA disclaims all liability in connection with therewith.
If you are accessing or using the Services through an Apple device running iOS, the following additional terms and conditions (“Apple Terms”) are applicable to you and are incorporated into the SEA Terms of Service by this reference:
(i) To the extent that you are accessing the Services through an Apple device, you acknowledge that these Apple Terms are entered into between you and Square Enix and, that Apple, Inc. (“Apple”) is not a party to these Apple Terms other than as third-party beneficiary as contemplated below.
(ii) The license granted to you in Section 1 of these SEA Terms of Service is subject to the permitted Usage Rules set forth in the App Store Terms of Service (see: http://www.apple.com/legal/itunes/us/terms.html) and any third-party terms of agreement applicable to the Services.
(iii) You acknowledge that SEA, and not Apple, is responsible for providing the Services and Content thereof.
(iv) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or any support services to you with respect to the Services.
(v) To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Services.
(vi) Notwithstanding anything to the contrary herein, and subject to the terms in these SEA Terms of Service, you acknowledge that, solely as between Apple and SEA, SEA and not Apple is responsible for addressing any claims you may have relating to the Services, or your possession and/or use thereof, including, but not limited, to: (1) product liability claims, (2) any claim that the Services fails to confirm to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation.
(vii) Further, you agree that if the Services, or your possession and use of the Services, infringes on a third-party's intellectual property rights, you will not hold Apple responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims.
(viii) You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these SEA Terms of Service, and that, upon your acceptance of the terms and conditions of these SEA Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these SEA Terms of Service against you as a third-party beneficiary thereof.
(ix) When using the Services, you agree to comply with any and all third-party terms that are applicable to any platform, website, technology or service that interacts with the Services.
The Services may offer features and services that are available to you via your wireless Device. These features and services may include the ability to access the Services’ features and upload content to the Services, receive messages from the Services, and download applications to your wireless Device (collectively, “Wireless Features”). Standard messaging, data, and other fees may be charged by your carrier to participate in Wireless Features. Fees and charges may appear on your wireless bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless Device. You should check with your carrier to find out what plans are available and how much they cost. Contact your carrier with questions regarding these issues.
You agree that, as to the Wireless Features for which you are registered, we may send communications to your wireless Device regarding us or other parties. Further, we may collect information related to your use of the Wireless Features. If you have registered via the Services for Wireless Features, then you agree to notify SEA of any changes to your wireless contact information (including phone number) and update your accounts on the Services to reflect the changes.
Certain portions of this Section 12 are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and SEA agree that we both intend this Section 12 to satisfy the “writing” requirement of the Federal Arbitration Act.
Except for Excluded Disputes (as defined below in Section 12(D)), if any controversy, allegation, or claim arises out of or relates to the Services, the Content, your User-Generated Content, these SEA Terms of Service, or any Additional Terms, whether heretofore or hereafter arising (collectively, “Dispute”), or to any of SEA’s actual or alleged intellectual property rights, then you and we agree to send a written notice to the other providing a reasonable description of the Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. If no such information exists or if such information is not current, or if for any reason you do not respond to us within four (4) weeks of the date we sent the notice, then we have no further obligation under this Section 12(A). Your notice to us must be sent to: Square Enix, Inc., Attn: Legal Dept. 999 N. Sepulveda Blvd 3rd Floor, El Segundo, California 90245. For a period of sixty (60) days from the date of receipt of notice from the other party, SEA and you will engage in a dialogue in order to attempt to resolve the Dispute, though nothing will require either you or SEA to resolve the Dispute on terms with respect to which you and SEA, in each of our sole discretion, are not comfortable.
(i) Arbitration. If we cannot resolve a Dispute as set forth in Section 12(A) within sixty (60) days of receipt of the notice, then either you or we may submit the Dispute to formal arbitration on an individual basis in accordance with this Section 12(B).
Upon expiration of the applicable sixty-day period and to the fullest extent permitted by applicable law, a Dispute will be resolved solely by binding arbitration on an individual basis in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association (“AAA”). If you prevail in your claim against SEA, then SEA shall pay all arbitration fees. SEA agrees that you may appear at any arbitration proceeding by telephone, unless the amount in controversy is $10,000 or more. If the Dispute has a claimed value of not more than $250,000, then the arbitration will be heard and determined by a single neutral arbitrator who is a retired judge or a lawyer with not less than fifteen (15) years experience as a practicing member of the bar in the substantive practice area related to the Dispute, who will administer the proceedings in accordance with the AAA's Supplementary Procedures for Consumer Related Disputes. If the Dispute has a claimed value of more than $250,000, or if Square Enix elects in its sole discretion to bear the costs of arbitration in excess of those that would occur for a proceeding before a single neutral arbitrator, then the arbitration will be heard and determined by a three-member panel, with one member to be selected by each party and the third (who will be chair of the panel) selected by the two party-appointed members or by the AAA in accordance with the Commercial Arbitration Rules. The arbitrator or arbitration panel, as the case may be, will apply applicable law and the provisions of these SEA Terms of Service and any Additional Terms, will determine any Dispute according to the applicable law and facts based upon the record and no other basis, and will issue a reasoned award.
You can obtain AAA procedures, rules, and fee information as follows:
AAA: 800.778.7879 http://www.adr.org/
(ii) Nature, Limitations, and Location of Alternative Dispute Resolution. In arbitration, as with a court, the arbitrator must honor the terms of these SEA Terms of Service (and any Additional Terms) and can award the prevailing party damages and other relief (including attorneys’ fees). However, WITH ARBITRATION (A) THERE IS NO JUDGE OR JURY, (B) THE ARBITRATION PROCEEDINGS AND ARBITRATION OUTCOME ARE SUBJECT TO CERTAIN CONFIDENTIALITY RULES, AND (C) JUDICIAL REVIEW OF THE ARBITRATION OUTCOME IS LIMITED. All parties to the arbitration will have the right, at their own expense, to be represented by an attorney or other advocate of their choosing. Any arbitration proceeding shall be held at a venue in Los Angeles, CA. SEA agrees that you may appear at any arbitration proceeding by telephone, unless the amount in controversy is $10,000 or more, in which case the arbitrator may require to travel to Los Angeles at your own expense. You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require Square Enix to pay a greater portion or all of such fees and costs in order for this Section 12 to be enforceable, then Square Enix will have the right to elect to pay the fees and costs and proceed to arbitration. If you prevail in your claim against SEA, then SEA agrees to reimburse you for all arbitration fees and your reasonable, documented travel expenses (if any) incurred to attend arbitration hearings where your physical presence is required by the arbitrator. Discovery will be permitted pursuant to the applicable arbitration rules. The arbitrator’s decision must consist of a written statement stating the disposition of each claim of the Dispute, and must provide a statement of the essential findings and conclusions on which the decision and any award (if any) is based. Judgment on the arbitration decision and award (if any) may be entered in or by any court that has jurisdiction over the parties pursuant to Section 9 of the Federal Arbitration Act.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU WANT TO ASSERT A DISPUTE AGAINST SEA, THEN YOU MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 13(A)) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES, OR ELSE IT SHALL BE FOREVER BARRED.
The foregoing provisions of this Section 13 will not apply to any legal action taken by SEA to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Services, any Content, your User-Generated Content and/or SEA’s intellectual property rights (including such SEA may claim that may be in dispute), SEA’s operations, and/or SEA’s products or services (collectively, “Excluded Dispute).”
Notwithstanding the foregoing, either of us may bring qualifying claim of Disputes (but not Excluded Disputes) in small claims court, subject to Section 12(G).
Disputes will be arbitrated only on an individual basis and will not be consolidated with any other arbitration or other proceeding that involves any claim or controversy of any other party. But if, for any reason, any court with competent jurisdiction or any arbitrator selected pursuant to Section 12(B)(i) holds that this restriction is unconscionable or unenforceable, then our agreement in Section 12(B) to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section 12(G).
Except to the extent that arbitration is required in Section 12(B), and except as to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute may only be instituted in state or federal court in Los Angeles County, California. Accordingly, you and SEA consent to the exclusive personal jurisdiction and venue of such courts for such matters.
YOUR ACCESS TO AND USE OF THE SERVICES IS AT YOUR SOLE RISK.
THE SERVICES ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS. Therefore, to the fullest extent permissible by law, Square Enix, Inc., and its parents, affiliates, subsidiaries and each of their respective employees, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, customers, successors, and assigns (collectively, “Square Enix Parties”) hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, as to:
(a) the Services(including the Content and the User-Generated Content);
(b) the functions, features, or any other elements on, or made accessible through, the Services;
(c) any products, services, or instructions offered or referenced at or linked through the Services;
(d) security associated with the transmission of your User-Generated Content transmitted to Square Enix or via the Services;
(e) whether the Services or the servers that make the Services available are free from any harmful components (including viruses, Trojan horses, and other technologies that could adversely impact your Device);
(f) whether the information (including any instructions) on the Services is accurate, complete, correct, adequate, useful, timely, or reliable;
(g) whether any defects to the Services will be repaired; and
(h) whether your use of the Services is lawful in any particular jurisdiction.
EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED HEREIN OR IN ADDITIONAL TERMS PROVIDED BY A SQUARE ENIX PARTY, SQUARE ENIX PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS.
Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimers may not apply to the extent such jurisdictions’ laws are applicable.
UNDER NO CIRCUMSTANCES WILL ANY SQUARE ENIX PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental, or consequential losses or damages that are directly or indirectly related to:
(a) the Services (including the Content and the User-Generated Content);
(b) your use of or inability to use the Services, or the performance of the Services;
(c) any action taken in connection with an investigation by Square Enix Parties or law enforcement authorities regarding your access to or use of the Services;
(d) any action taken in connection with copyright or other intellectual property owners or other rights owners;
(e) any errors or omissions in the Services’ technical operation; or
(f) any damage to any user’s computer, hardware, software, modem, or other equipment or technology, including damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line, or network failure or any other technical or other malfunction, including losses or damages in the form of lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or equipment failure or malfunction.
The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if Square Enix Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of god, telecommunications failure, or destruction of the Services).
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to you.
EXCEPT AS MAY BE PROVIDED IN ANY ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SQUARE ENIX PARTIES' TOTAL LIABILITY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SERVICES AND YOUR RIGHTS UNDER THESE SEA TERMS OF SERVICE, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID SQUARE ENIX IN CONNECTION WITH THE TRANSACTION(S) THAT UNDERLIE THE CLAIM(S); PROVIDED, HOWEVER, THIS PROVISION WILL NOT APPLY IF A TRIBUNAL WITH APPLICABLE JURISDICTION FINDS SUCH TO BE UNCONSCIONABLE. FOR PURPOSES OF CLARITY, THE PRIOR SENTENCE DOES NOT EXPAND OR LIMIT ANY EXPRESS, WRITTEN PRODUCT WARRANTY THAT IS PROVIDED BY SQUARE ENIX OR A MANUFACTURER OF A PHYSICAL PRODUCT.
IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE SERVICES, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEB SERVICES, CONTENT, USER-GENERATED CONTENT, PRODUCT, SERVICE, OR OTHER INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY SQUARE ENIX (INCLUDING YOUR LICENSED USER-GENERATED CONTENT) OR A LICENSOR OF SQUARE ENIX. UNDER NO CIRCUMSTANCES WILL YOU BE ENTITLED TO OBTAIN ANY INJUNCTIVE RELIEF OR OTHERWISE ENJOIN, RESTRAIN, OR OTHERWISE INTERFERE WITH THE DISTRIBUTION, OPERATION, DEVELOPMENT, OR PERFORMANCE OF THE SERVICES.
SEA reserves the right to modify these SEA Terms of Service and any Additional Terms, at any time without prior notice (“Updated Terms”). You agree that we may notify you of the Updated Terms by posting them on the Services so that they are accessible via a link on the Services, and that your use of the Services after we post the Updated Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms. Therefore, you should review these SEA Terms of Service and any Additional Terms each time you use the Services. The Updated Terms will be effective as of the time that SEA posts them on the Services, or such later date as may be specified in them.
As to any provision in these SEA Terms of Service or any Additional Terms that grants SEA a right of consent or approval, or permits SEA to exercise a right in its “sole discretion,” SEA may exercise that right in its sole and absolute discretion. No SEA consent or approval may be deemed to have been granted by SEA without being in writing and signed by an authorized employee of Square Enix, Inc.
These SEA Terms of Service and any Additional Terms will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with, the laws of the State of California, without regard to its conflicts of law provisions.
You agree to, and you hereby, defend, indemnify, and hold Square Enix Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any Square Enix Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter: (i) your User-Generated Content; (ii) your use of the Services and your activities in connection with the Services; (iii) your breach or anticipatory breach of these SEA Terms of Service or any Additional Terms; (iv) your violation or anticipatory violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Services or your activities in connection with the Services; (v) information or material transmitted through your Device, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vi) any misrepresentation made by you; and (vii) Square Enix Parties’ use of the information that you submit to us (including your User-Generated Content) (all of the foregoing, “Claims and Losses”). You will cooperate as fully required by Square Enix Parties in the defense of any Claim and Losses. Notwithstanding the foregoing, Square Enix Parties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses. Square Enix Parties reserve the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a Square Enix Party.
Square Enix, Inc., controls and operates the Services from its offices in the United States and makes no representation that the Services are appropriate or available for use beyond United States. If you use the Services from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply. The Services may describe products and services that are available only in the United States (or other specific countries) and are not available worldwide. We reserve the right to limit the availability of the Services and/or the provision of any content, program, product, service, or other feature described or available on the Services to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service, or other feature that we provide. You and we disclaim any application to these SEA Terms of Service of the Convention on Contracts for the International Sale of Goods.
Software related to or made available by the Services may be subject to export controls of the United States. No software from the Services may be downloaded, exported, or re-exported (i) into (or to a national or resident of) any country or other jurisdiction to which the United States has embargoed goods, software, technology or services (which, as of the effective date of these SEA Terms of Service, includes Cuba, North Korea, Iran, Sudan, and Syria), 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, or (iii) to anyone on the U.S. Department of Commerce’s Bureau of Industry and Security Entities List as published in the Export Administration Regulations (including entities engaged in weapons of mass destruction proliferation in various countries and persons and entities that are suspected of diverting U.S. origin items to embargoed countries or terrorist end-uses). You are responsible for complying with all trade regulations and laws both foreign and domestic. Except as authorized by law, you agree and warrant not to export or re-export the Services and any software provided under the Services to any county, or to any person, entity, or end-user subject to U.S. export controls, including as set forth in subsections (F)(i) – (iii) above.
If any provision of these SEA Terms of Service, or any Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these SEA Terms of Service or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these SEA Terms of Service or the Additional Terms (which will remain in full force and effect). To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter. Wherever the word “including” is used in these SEA Terms of Service or any Additional Terms, the word will be deemed to mean “including, without limitation.”
When you communicate with us electronically, such as via e-mail or text message, you consent to receive communications from us electronically. Please note that we are not obligated to respond to inquiries that we receive. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
SEA may assign its rights and obligations under these SEA Terms of Service and any Additional Terms, in whole or in part, to any party at any time without any notice. These SEA Terms of Service and any Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Square Enix, Inc.
Except as expressly set forth in these SEA Terms of Service or any Additional Terms, (i) no failure or delay by you or SEA in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these SEA Terms of Service or any Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.
Last updated: February , 2014
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