Big Fish Terms of Use
Last Modified: 4/21/22
These Big Fish Terms of Use, as amended from time to time (“Terms of Use”), are a legal agreement between you and Big Fish Games, Inc. and any of its respective successors or assigns (“Big Fish”, “we” or “us”). These Terms of Use apply to your access to and use of the websites, games, software and other products and services (collectively, the “Big Fish Offerings”) provided by Big Fish. The Big Fish Offerings include, without limitation, bigfishgames.com, any other sites on which these Terms of Use are posted, and the Big Fish Software (as defined herein).
By clicking a button or tab that signals your acceptance of these Terms of Use or otherwise accessing or using the Big Fish Offerings, you agree to be bound by these Terms of Use and all terms incorporated herein by reference. If you do not agree to be bound by these Terms of Use, then you may not use or access the Big Fish Offerings.
Please read these Terms of Use carefully, including the mandatory arbitration provision and class action waiver in Section 26. If you do not wish to be subject to arbitration, you may opt out of the arbitration provision by following the instructions provided in Section 26.
If you have any questions about these Terms of Use or our Big Fish Offerings, please contact us at
Big Fish Games, Inc.
Attn: Legal Department
906 Alaskan Way, Suite 700
Seattle, Washington 98104
USA
For information about how we collect, use, share and otherwise process information about you, please see ourPrivacy Policy.
- ELIGIBILITY
You must be at least thirteen (13) years of age, or sixteen (16) years of age if you are located in the European Union, to create a Big Fish Account (as defined below) or to access or use most Big Fish Offerings. You must be at least eighteen (18) years of age to access or use Big Fish Offerings involving social casino-style game play (“Restricted Offerings,” which include but are not limited to the video games Big Fish Casino and Jackpot Magic Slots). If you are younger than eighteen (18) (or the age of legal majority where you live): (1) you may not access or use Restricted Offerings, and (2) you may use the Big Fish Offerings (other than Restricted Offerings) only under the supervision of a parent or legal guardian who agrees to be bound by these Terms of Use. If you are a parent or legal guardian of a user under the age of eighteen (18), you agree to be fully responsible for the acts or omissions of such user in relation to any Big Fish Offering.
- ADDITIONAL TERMS AND AMENDMENTS
Each of your Big Fish Offering account(s) (each, a “Big Fish Account“) and participation in any Big Fish Offerings are governed by these Terms of Use and any applicable additional guidelines, terms or rules that Big Fish makes available to you or otherwise gives you notice of (the “Supplemental Terms”). The Supplemental Terms are incorporated into these Terms of Use by reference. If there is a conflict between these Terms of Use and any Supplemental Terms, the Supplemental Terms will control for that specific instance of conflict. Supplemental Terms that apply to your use of the Big Fish Offering include:
- Big Fish Points Program Terms of Use
- Big Fish Game Club Terms of Use
The Big Fish Offerings are always evolving, so it is important that you periodically check these Terms of Use as well as the Supplemental Terms for updates. Big Fish reserves the right to change or modify the Terms of Use and the Supplemental Terms at any time and in our sole discretion. If Big Fish makes changes to these Terms of Use or the Supplemental Terms, we will use commercially reasonable efforts to notify you of such changes, such as (by way of example only) by providing notice through the Big Fish Offerings or updating the “Last Modified” date at the top of these Terms of Use. If we revise these Terms of Use or the Supplemental Terms, such revision(s) will take effect immediately upon posting of such notice. Your continued access or use of any Big Fish Offering after such posting constitutes your acceptance of the revised Terms of Use or Supplemental Terms. If you do not agree to any revision we make to these Terms of Use or the Supplemental Terms, you must immediately discontinue using and participating in all Big Fish Offerings.
- ACCOUNT REGISTRATION
You may need to create a Big Fish Account in order to access some Big Fish Offerings. If you create a Big Fish Account, you must provide truthful and accurate information to us in creating such account and promptly update this information if it changes. Big Fish reserves the right to limit the number of accounts a user can establish. This limit may change over time in our sole discretion.
You are solely responsible for all activity on your Big Fish Accounts and for the security of your Big Fish Accounts and computer system. You must not reveal your username or password to any other person and must promptly notify us if you discover or suspect that someone else has accessed your Big Fish Accounts. If you forget your password, you can request to have a new password sent to your registered e-mail address.
- ELECTRONIC COMMUNICATIONS
When you access a Big Fish Offering, send e-mails or electronically chat with Big Fish, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices in the Big Fish Offerings. You agree that all agreements, notices, disclosures and other communications that Big Fish provides to you electronically satisfy any legal requirement that such communications be in writing.
- OWNERSHIP; LIMITED LICENSE
The Big Fish Offerings, including the text, graphics, images, photographs, videos, illustrations and other content contained therein, are owned by Big Fish or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms of Use, all rights in and to the Big Fish Offerings are reserved by us or our licensors. Subject to your compliance with these Terms of Use, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use the Big Fish Offerings for your own personal, noncommercial use. Any use of the Big Fish Offerings other than as specifically authorized herein, without our prior written permission, is strictly prohibited, will terminate the license granted herein and violate our intellectual property rights.
- VIRTUAL ITEMS
Certain Big Fish Offerings may provide you with the opportunity to license a variety of virtual items such as virtual currency, virtual goods and content packs (“Virtual Items”) that can be used while playing the Big Fish Offering. You may be required to pay a fee to obtain Virtual Items. When you use Virtual Items within a Big Fish Offering, any Virtual Items that you have purchased will be deemed used before any Virtual Items that you have earned.
VIRTUAL ITEMS, LICENSED TO YOU IN ACCORDANCE WITH THESE TERMS OF USE, AND ARE NOT PREPAID PAYMENT INSTRUMENTS OR OTHERWISE ITEMS OF MONETARY VALUE.
You have no property interest in any Virtual Items. Virtual Items obtained through a Big Fish Offerings is provided to you under a limited, non-transferable, revocable, non-sublicensable license to use those Virtual Items within the applicable Big Fish Offering. Virtual Items may not be transferred or resold for commercial gain or in any manner, including, without limitation, by means of any direct sale or auction service. Virtual Items may not be purchased or sold from any individual or entity via cash, barter or any other transaction. Virtual Items have no monetary value and cannot be used to purchase or use products or services other than within the applicable Big Fish Offering and then only to the extent offered within such applicable Big Fish Offering. Virtual Items cannot be refunded or exchanged for cash or any other tangible value.
Big Fish may manage, regulate, control, modify or eliminate your Virtual Items in our sole discretion and without limitation or restriction, and Big Fish will have no liability to you or anyone or any entity for exercising those rights. In addition, all Virtual Items are unconditionally forfeited if your Big Fish Offering account is terminated or suspended for any reason, including terminations or suspensions in Big Fish's sole discretion. If Big Fish discontinues any Big Fish Offering or any portion or feature of any Big Fish Offering, you also unconditionally forfeited any Virtual Items connected to the discontinued Big Fish Offering.
Big Fish has no liability for hacking or loss of your Virtual Items. Big Fish has no obligation to, and will not, reimburse you for any Virtual Items lost due to your violation of these Terms of Use, disruption, interruption or discontinuance of the Big Fish Offering or service downtimes related to the same. Big Fish reserves the right, without prior notification, to limit the order quantity on any Virtual Items and/or to refuse to provide you with any Virtual Items. Price and availability of Virtual Items are subject to change without notice.
- REVIEWS, COMMUNICATIONS AND SUBMISSIONS
Our Big Fish Offerings may allow you and other users to create, post, store and share content, including usernames, messages, text, photos, videos, software and other materials (collectively, “User Content”). Except for the license you grant below, as between you and Big Fish, you retain all rights in and to your User Content, excluding any portion of the Big Fish Offerings included in your User Content.
You grant Big Fish and its subsidiaries and affiliates a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully paid, and sublicensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform, and display your User Content and any name, likeness, voice, biography, or signature provided in connection with your User Content in all media formats and channels now known or later developed without compensation to you. Depending on your account settings and which Big Fish Offering you are interacting with, when you post or otherwise share User Content on or through a Big Fish Offering, your User Content and any associated information (such as your city and state location, skill level, favorite game and favorite genres) may be visible to others.
You may not create, post, store or share any User Content that violates these Terms of Use, that does not comply with ourForum FAQandReview Guidelines, or for which you do not have all the rights necessary to grant us the license described above. You represent and warrant that your User Content, and our use of your User Content as permitted by these Terms of Use, will not violate any rights of or cause injury to any person or entity. Although we have no obligation to screen, edit or monitor User Content, we may (a) monitor any communications within the Big Fish Offerings, including, without limitation, to ensure that appropriate standards of online conduct are being observed and (b) block, edit, delete or remove any User Content at any time and for any reason with or without notice.
Big Fish does not endorse or approve any User Content that you or other users post or communicate on or through any Big Fish Offerings. Big Fish does not assume any responsibility or liability for any content that is generated, posted or communicated by any user on or through the Big Fish Offerings.
- PROHIBITED CONTENT AND CONDUCT
You’re solely responsible for your conduct while using the Big Fish Offerings. You may not use the Big Fish Offerings if you engage in, encourage, or promote any prohibited conduct. On a high level, that means you must not violate any applicable laws, contracts, intellectual property rights, or other third-party rights or commit a tort. Without limiting the generality of the policies and standards in these Terms of Use (including, without limitation, our Forum FAQand Review Guidelines) this means you may not post, transmit, promote, or distribute any User Content that:
- Is inappropriate, obscene, defamatory, offensive, crude, illegal, immoral or possibly offensive;
- Contain a virus, corrupted data, malware, spyware, adware, or any other malicious, invasive harmful, disruptive, or destructive code or program;
- Is for a purpose other than personal communication, including without limitation advertising, promotional materials, chain letters, pyramid schemes, political campaigning, soliciting funds, mass mailings and sending “spam”
- Contains any private or personal information of a third party without that third party’s consent; or
- Acts as a passive or active information collection or transmission mechanism, including, without limitation, gifs, 1x1 pixels, web bugs, and other similar devices.
Additionally, you may not:
- Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
- Impersonate another person, including by indicating that you are a Big Fish employee or a representative of Big Fish (if you are not);
- Attempt to obtain a password, other account information, or other private information from any other user of a Big Fish Offering;
- Disrupt the normal flow of dialogue, or otherwise act in a manner that negatively affects or disrupts other users;
- Improperly using any game support functions or complaint buttons, such as by making false complaints or other reports to Big Fish representatives;
- Use or launch any automated system, including, without limitation, any spider, bot, cheat utility, scraper or offline reader that accesses a Big Fish Offering, or any other unauthorized script or software that interacts with a Big Fish Offering;
- Modify, translate, reverse-engineer, reverse-compile or decompile, disassemble or create derivative works from any part of the Big Fish Offerings, except to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
- Use a false e-mail address or otherwise disguise the source of any content that you submit within a Big Fish Offering, such as by anonymizing your internet protocol address;
- Interfere with or circumvent any Big Fish Offering security feature or any other feature that is intended to restrict or enforce limitations on use of or access to a Big Fish Offering;
- Sell, lease, loan, or rent any part of a Big Fish Offering, including, without limitation, any Virtual Items, Big Fish Accounts and access to them; or
- Engage in cheating or any other activity that Big Fish deems to be in conflict with the spirit of a Big Fish Offering.
Content standards may vary depending on where you are within a Big Fish Offering and the expectations of the relevant game community. Some game play may involve use of stronger language than others, including mild expletives. You must always use good, respectful, and conservative judgment in interacting as part of any game play, and submitting any User Content, such as a review or post to any forums or message boards, within a Big Fish Offering.
Enforcement of this Section 8 is solely at Big Fish’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances. In addition, this Section 8 does not create any private right of action on the part of any third party or any reasonable expectation that the Big Fish Offerings will not contain any content that is prohibited by such rules.
- COMMERCIAL ACTIVITY AND UNSOLICITED E-MAIL
As stated in Section 5, you may only use the Big Fish Offerings for your own personal, noncommercial use. This means you may not use any portion of the Big Fish Offerings to collect information, including login names, about other users, and use of such information to send unsolicited e-mail or for any other purpose is strictly prohibited. You may not advertise any goods or services on any Big Fish Offerings, or otherwise exploit your participation on or through any Big Fish Offerings for any commercial purpose.
- BIG FISH SOFTWARE
To access some Big Fish Offerings, you may need to download certain software from Big Fish, its principals or its licensors onto your computer or mobile device (such software and any associated media or documentation,“Big Fish Software”). The Big Fish Software is part of the Big Fish Offerings. Accordingly, your access to and use of Big Fish Software is subject to these Terms of Use.
The license granted to you to use Big Fish Software is limited to only permitting you to install and use the Big Fish Software on computers or mobile devices owned or controlled by you and solely to allow you to participate in the Big Fish Offerings.
You may also be required to agree to a separate end-user license agreement with Big Fish or its affiliates when you download or install Big Fish Software. In the event of a conflict between an end user license agreement you agreed to in connection with Big Fish Software and the terms of this Terms of Use, the terms of the end user license agreement control with regard to the Big Fish Software.
- DIGITAL MILLENNIUM COPYRIGHT ACT
In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable laws, we have adopted a policy of terminating, in appropriate circumstances, the accounts of users who repeatedly infringe the intellectual property rights of others. If you believe that anything on Big Fish Offerings infringes any copyright that you own or control, you may notify Big Fish's designated agent:
Designated Agent Legal Department
Address: 906 Alaskan Way, Suite 700
Seattle, Washington 98104
USA
Telephone Number: 206-213-5753
Email Address [email protected]
Please see17 U.S.C. § 512(c)(3) for the requirements of a proper notification. Also, please note that if you knowingly misrepresent that any activity or material on Big Fish Offerings is infringing, you may be liable to Big Fish for certain costs and damages.
- SOCIAL NETWORK SITES
If you access a Big Fish Offering via a third party social networking site (a “Social Game”), you acknowledge that you are aware that Social Games are only available to individuals who have registered with the social networking site through which s/he accesses Social Games. If you use Social Games, you must keep your social networking site account information accurate, current and complete. Social networking sites are “third party content and services” as described in the following Section.
- THIRD PARTY LINKS AND THIRD PARTY CONTENT AND SERVICES
Any and all software, content and services (including advertising) within a Big Fish Offering that are not owned by Big Fish are “third party content and services.” Big Fish acts merely as an intermediary service provider of, and accepts no responsibility or liability for, third party content and services.
In addition, and without limiting the generality of the foregoing, certain Big Fish Offerings may include links to sites, such as social networking sites or payment sites, operated by third parties, including, without limitation, advertisers, payment providers and other content providers (“Other Sites”). Those Other Sites may collect data or solicit personal information from you. Big Fish does not control such Other Sites, and you agree that Big Fish is not responsible for the content or policies of Other Sites or third-party content and services, or for the collection, use or disclosure of any information those Other Sites may collect. Any and all use of any Other Sites is at your sole risk, cost and responsibility.
- TERMINATION OF ANY BIG FISH ACCOUNT
Big Fish and you each have the right to terminate or cancel any of your Big Fish Account(s), if applicable, at any time for any reason or no reason. Big Fish reserves the right to collect fees, surcharges or costs incurred before you cancel your Big Fish Account(s) or a particular subscription. In the event that your Big Fish Account or a particular subscription is terminated or cancelled unless otherwise agreed by Big Fish in writing, no refund will be granted, no online time or other credits (e.g., points in an online game) will be credited to you or converted to cash or other form of reimbursement, and you will have no further access to your account or anything associated with it (such as points, tokens or Virtual Items). Any delinquent or unpaid accounts must be settled before Big Fish may allow you to create any new or additional accounts. All Virtual Items are unconditionally forfeited if your Big Fish Account is terminated or suspended for any reason, including terminations or suspensions in Big Fish's sole discretion.
- TRADEMARKS
Big Fish Games, Inc. and the names and logos, product or service names, slogans and the look and feel of the Big Fish Offerings constitute trademarks or trade dress of Big Fish and may not be copied, imitated, reverse engineered, or used, in whole or in part, without the prior written permission of Big Fish. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Big Fish Offerings are the property of their respective owners, who may or may not be affiliated with or connected to Big Fish. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier or otherwise, does not constitute or imply endorsement, sponsorship or recommendation by us.
- FEEDBACK
If you choose to provide to Big Fish any ideas, suggestions, or other feedback regarding any Big Fish Offerings, or any proposed software or offerings (collectively “Feedback”), you hereby grant Big Fish a perpetual, irrevocable, non-exclusive, worldwide, fully sublicensable, royalty-free, fully paid, right and license to use and exploit (including, without limitation, commercially exploit) in any manner, means, language and/or media, whether now known or hereafter devised such Feedback without restriction, including in connection with any Big Fish Offerings, or other products or services of Big Fish. You understand that Big Fish may treat Feedback as nonconfidential.
- DISCLAIMERS
YOU EXPRESSLY AGREE THAT THE USE OF ANY BIG FISH OFFERING, BIG FISH SOFTWARE AND THE INTERNET IS AT YOUR SOLE RISK. ALL BIG FISH OFFERINGS AND BIG FISH SOFTWARE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BIG FISH DOES NOT GUARANTEE THAT YOU WILL BE ABLE TO ACCESS OR USE THE BIG FISH OFFERINGS OR BIG FISH SOFTWARE AT ANY PARTICULAR TIMES OR LOCATIONS, OR THAT THE BIG FISH OFFERINGS, BIG FISH SOFTWARE, NEWSLETTERS, E-MAILS OR OTHER COMMUNICATIONS SENT FROM BIG FISH ARE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS.
- LIMITATIONS OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, BIG FISH AND OUR SUBSIDIARIES AND AFFILIATES AND EACH OF OUR RESPECTIVE EMPLOYEES, AGENTS, LICENSORS, LICENSEES, OFFICERS, DIRECTORS AND SHAREHOLDERS (INDIVIDUALLY AND COLLECTIVELY, THE “BIG FISH PARTIES”) WILL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY—WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, WARRANTY, OR OTHERWISE—FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES OR LOST PROFITS, EVEN IF BIG FISH OR THE OTHER BIG FISH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE TOTAL LIABILITY OF BIG FISH AND THE BIG FISH PARTIES FOR ANY CLAIM ARISING OUT OF OR RELATING TO THESE TERMS OF USE OR THE BIG FISH OFFERINGS, REGARDLESS OF THE FORM OF THE ACTION, IS LIMITED TO THE GREATER OF $500 OR THE AMOUNT THAT YOU PAID TO BIG FISH FOR YOUR PARTICIPATION IN ANY BIG FISH OFFERING DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY.
THE LIMITATIONS SET FORTH IN THIS SECTION 18 WILL NOT LIMIT OR EXCLUDE LIABILITY FOR THE GROSS NEGLIGENCE, FRAUD OR INTENTIONAL MISCONDUCT OF BIG FISH OR THE OTHER BIG FISH PARTIES OR FOR ANY OTHER MATTERS IN WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. ADDITIONALLY, BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH JURISDICTIONS, SUCH LIABILITY SHALL INSTEAD BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW.
- INDEMNIFICATION
To the fullest extent permitted by applicable law, you will indemnify and hold harmless, and at Big Fish’s request defend, Big Fish and the Big Fish Parties from and against any and all losses, liabilities, claims demands, costs and expenses (“Claims”) arising out of or related to (a) your access to or use of the Big Fish Offerings; (b) your User Content or Feedback; (c) your violation of these Terms of Use; (d) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with the Big Fish Offerings. You agree to promptly notify Big Fish Parties of any third-party Claims, cooperate with Big Fish Parties in defending such Claims, if requested by Big Fish, and pay all fees, costs and expenses associated with defending such Claims (including attorneys' fees). Without limiting your indemnification obligations described herein, Big Fish reserves the right to assume the exclusive control of the defense or settlement of Claims otherwise subject to indemnification by you. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Big Fish or the other Big Fish Parties.
- IMPORT TAXES AND FEES
When you buy physical goods (e.g. disc) through any Big Fish Offering for delivery outside the United States, you are considered an importer and, as between you and Big Fish, you will be responsible for payment of all taxes, duties, fees or other charges that may be applicable to such importation, including VAT, and you must comply with all laws and regulations of the country in which you are receiving the goods. Note that cross-border deliveries are subject to opening and inspection by customs authorities.
- CORRECTIONS
Big Fish reserves the right to revoke any stated offer and to correct any errors, inaccuracies or omissions (including after an order was submitted and accepted) in any order, price, advertisement, promotion or giveaway.
- NON-WAIVER
The failure of Big Fish to exercise or enforce our rights under these Terms of Use does not operate as a waiver of such right or provision. Any waiver of our rights, including any waiver of any breach or default, must be in a writing signed by Big Fish.
- PROCESSING CREDIT AND DEBIT CARD PAYMENTS
Access to the Big Fish Offerings, or to certain features of the Big Fish Offerings, may require you to pay fees. Big Fish may give you different payment options. We reserve the right to change our payment options at any time and for any reason.
Before you become obligated to pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are non-refundable, to the fullest extent permitted under applicable law. Big Fish may change any or all of its fees (or impose new fees) upon notification to you of such changed or new fees. Big Fish or its payment processor will charge the payment method you specify at the time of purchase. When you provide credit card information or other information necessary to facilitate payment to us or our vendors, you represent to us that (a) the payment information you supply to us is accurate and complete, (b) you are an authorized user of the payment method, (c) charges incurred by you will be honored by your financial institution, and (d) you will pay charges incurred by you at the posted prices, including all applicable taxes, if any. You authorize Big Fish or its payment processor to charge all sums as described in these Terms of Use, for the Big Fish Offerings you select, to that payment method. If you pay any fees with a credit card, Big Fish or its payment processor may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. Fees for the Big Fish Offerings are processed in the United States, and foreign transaction fees may apply if you are located outside the United States.
In the event it becomes necessary to collect on balances due, you will reimburse us and our vendors or agents for all expenses incurred to recover sums due, including attorneys’ fees and other legal expenses. Credits or refunds, when offered, will be made to the same method of payment and account used to place the order. Depending on where you reside and when your purchase was made, any taxes you paid on an order may not be included in a credit or refund you receive for the order.
The Big Fish Offerings may include functionality for activating, updating or canceling recurring payments for periodic charges. If you activate or update recurring payments through the Big Fish Offerings, you authorize Big Fish to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, all accrued sums on or before the payment due date for the accrued sums. If you use the Big Fish Offerings to update or cancel any existing authorized one-time or recurring payment, it may take several business days for the update or cancellation to take effect.
- EXPORT CONTROL LAWS
Certain Big Fish Offerings may be subject to United States and international export controls. By accessing Big Fish Offerings, you warrant that you are not located in any country, or exporting any Big Fish Offerings, to any person or place to which the United States, European Union or any other jurisdiction has embargoed goods. You agree to abide by all applicable export control laws and further agree not to transfer or upload, by any means electronic or otherwise, any Big Fish Offerings that may be subject to restrictions under such laws to a national destination prohibited by such laws without obtaining and complying with any required governmental authorizations.
- OTHER LEGAL TERMS
You agree that these Terms of Use are not intended to confer and do not confer any rights or remedies upon any third party. If any part of these Terms of Use are held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. If any provision of these Terms of Use is found to be illegal or unenforceable, these Terms of Use will be deemed modified to the extent necessary to make them legal and enforceable, and will remain, as modified, in full force and effect. These Terms of Use, including all terms and policies referenced herein, contain the entire understanding, and supersede all prior agreements, between you and Big Fish relating to this subject matter, and cannot be changed or terminated orally.
- DISPUTE RESOLUTION; BINDING ARBITRATION
PLEASE READ THIS SECTION 26 CAREFULLY, BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES WITH BIG FISH AND IT LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US, UNLESS YOU OPT OUT OF ARBITRATION BY FOLLOWING THE INSTRUCTIONS SET FORTH BELOW. NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS ARE ALLOWED UNDER THIS ARBITRATION PROVISION. IN ADDITION, ARBITRATION PRECLUDES YOU FROM SUING IN COURT OR HAVING A JURY TRIAL.
WHETHER TO AGREE TO ARBITRATION IS AN IMPORTANT DECISION. IT IS YOUR DECISION TO MAKE AND YOU SHOULD NOT RELY SOLELY ON THE INFORMATION PROVIDED IN THIS AGREEMENT, AS IT IS NOT INTENDED TO CONTAIN A COMPLETE EXPLANATION OF THE CONSEQUENCES OF ARBITRATION. YOU SHOULD TAKE REASONABLE STEPS TO CONDUCT FURTHER RESEARCH AND TO CONSULT WITH OTHERS REGARDING THE CONSEQUENCES OF YOUR DECISION.
- Scope of Arbitration Provision.Except for small claims disputes in which you or Big Fish seeks to bring an individual action in small claims court located in the county of your billing address or disputes in which you or Big Fish seek injunction or other equitable relief for the alleged infringement or misappropriation of intellectual property, you and Big Fish waive your rights to a jury trial and to have any other dispute arising out of or relating to these Terms of Use or your access to or use of any Big Fish Offering (including without limitation any dispute concerning the breach, enforcement, construction, validity, interpretation, enforceability, or arbitrability of these Terms of Use) (collectively, “Disputes”) resolved in court.
- Location of Arbitration and Applicable Rules. You and Big Fish agree that such arbitration shall occur in King County, Washington unless you are a consumer, in which case you may elect to hold the arbitration in your county of residence. For purposes of this Section 26, a “consumer” means a person using the Big Fish Offerings for personal, family or household purposes. You and Big Fish agree that Disputes will be held in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”). Alternatively, you may request to appear in such proceedings telephonically. You and Big Fish agree that such arbitration shall be conducted by a single arbitrator in accordance with the rules of the JAMS Rules, as modified by these Terms of Use.
- Authority of Arbitrator. You and Big Fish agree that these Terms of Use affect interstate commerce and that the enforceability of this Section 26 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms of Use and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
- Confidentiality. You, Big Fish and the arbitrator shall maintain the confidential nature of the arbitration proceedings and the arbitration award, including the arbitration hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality unless the law provides to the contrary.
- Allocation of Arbitration Fees. If you assert a Dispute as a consumer, you will only be required to pay arbitration fees of $250 of the fees charged by JAMS in connection with any arbitration under this section, and Big Fish will bear all other costs charged by JAMS or the arbitrator, including any remaining JAMS Case Management Fee and all professional fees for the arbitrator's services. You will still be responsible for paying your own attorneys’ fees.
- STATUTE OF LIMITATIONS. ANY DISPUTE MUST BE FILED WITHIN ONE YEAR AFTER THE RELEVANT CLAIM AROSE; OTHERWISE, THE DISPUTE IS PERMANENTLY BARRED, WHICH MEANS THAT YOU AND BIG FISH WILL NOT HAVE THE RIGHT TO ASSERT THE CLAIM.
- WAIVER OF CLASS RELIEF. WHETHER THE DISPUTE IS HEARD IN ARBITRATION OR IN COURT, YOU AGREE THAT YOU AND BIG FISH WILL NOT COMMENCE AGAINST THE OTHER A CLASS ACTION, CLASS ARBITRATION OR OTHER REPRESENTATIVE ACTION OR PROCEEDING. YOU AND BIG FISH ARE EACH WAIVING RESPECTIVE RIGHTS TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY PAST, PENDING, OR FUTURE CLASS ACTION OR ANY OTHER CONSOLIDATED OR REPRESENTATIVE PROCEEDING.
- Procedure to Opt Out of Arbitration Provision. You may opt out of the binding arbitration provision by sending written notice via U.S.Mail, or by any nationally recognized delivery service (e.g., UPS, Federal Express, etc.) to Big Fish, Attn: Legal Department, at 906 Alaskan Way, Suite 700, Seattle, WA, 98104. For your opt out to be effective, you must send such notice within thirty (30) days of your acceptance of these Terms of Use.You must sign and date the notice, and include in it your name, address, and a clear statement that you do not wish to resolve disputes with Big Fish through arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 27.
- If any portion of this Section 26 is determined by a court to be unenforceable or invalid for any reason, (a) the unenforceable or invalid provision shall be severed from these Terms of Use; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 26 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 26; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 26 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 26 will be enforceable.
- APPLICABLE LAW, JURISDICTION, AND VENUE
These Terms of Use and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of Washington except to the extent preempted by U.S. federal law, without regard to conflict or choice of law rules or principles (whether of Washington or any other jurisdiction) that would cause the application of the laws of any other jurisdiction.
Any dispute between you and Big Fish arising from these Terms of Use or your use of Big Fish Offerings that is not subject to arbitration and cannot be heard in small claims court will be resolved in the state or federal courts of Washington and the United States, respectively, sitting in King County, Washington. You and Big Fish irrevocably consent to the jurisdiction of such venues.
- CALIFORNIA NOTICE
Under California Civil Code Section 1789.3, California consumers are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N-112, Sacramento, California 95834, or by telephone at 1 (800) 952-5210.
CONTACT US
Big Fish Games, Inc.
Attn: Legal Department
906 Alaskan Way, Suite 700
Seattle, Washington 98104
USA
