Revised April 6, 2011.
IMPORTANT! PLEASE READ CAREFULLY.
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND ARTIX ENTERTAINMENT, LLC.
Welcome to Artix Entertainment LLC’s on-line role playing game, HeroSmash. HeroSmash is the copyrighted work of Artix Entertainment , LLC, a corporation organized under the laws of the State of Nevada, United States of America, or its suppliers or licensors, and all use of Artix Entertainment , LLC’s proprietary on-line service (“Service”) is governed by the terms and conditions contained in this Agreement, including any future revisions or changes (hereafter referred to as “Agreement”).
You should carefully read the following Terms of Service Agreement (“Agreement”) before using any website (“Site”) and services (“Services”) of Artix Entertainment , LLC (“Company” or “Artix”).
1. BINDING EFFECT.
2. USERS UNDER 13 YEARS OLD.
We do not offer support for non-upgraded accounts owned by players under 13 years of age. To purchase account upgrades or other products, you must be at least 18 years old. When you purchase account upgrades or other products on behalf of a child under the age of 18, you certify that you are at least 18 years old and that you are the legal Guardian of the child.
Please note, that by upgrading your under-13 child’s account, your child will be able to register with, and make posts on, the Artix Entertainment Message Board at http://forums2.battleon.com. While it is against our rules to post personally identifiable information on our forums and our Moderators enforce those rules, it is possible for your child to do so. Thus, if you would prefer that your child does not have access to the Message Board, please do not upgrade your child’s account.
3. DESCRIPTION OF SITES AND SERVICES.
The Company operates online gaming services and websites that accompany such gaming services.
4. YOUR OBLIGATIONS.
By registering or using the Sites and Services in any way, you agree to the following:
a. You agree not to harass or threaten other players;
b. You agree not to use any harmful, threatening, abusive, defamatory, obscene, hateful, racially or ethnically offensive language;
c. You agree not to impersonate any Staff Member, including any Forum Moderators and IRC Operators;
d. If asked by a member of Staff to stop or change a behavior or action, you will do so;
e. You agree not to run the same character in more than one browser window;
f. You agree not to use memory cheats to alter the running game code in your browser;
g. You agree not to cheat, hack or make any attack on the server in any way;
h. You agree not to access, or attempt to access, other player's accounts by means of phishing, brute-forcing, or other manners of password theft.
i. You agree not to play multiple accounts at the same time with the Service;
j. You agree not to transmit or make available in the Service or Site any advertising, promotional materials or any other forms of solicitation;
k. You agree not to transmit any material that contains viruses, worms, traps or malicious computer code;
l. You agree not to disrupt the normal flow of the games and dialogue, or otherwise act in a manner that negatively affects other people’s ability to use the Service;
m. You agree not to collect or store personal data about other people using the Service;
n. You agree only to use your own credit card with the Service.
o. You agree not to use any Artix trademark, service mark or tradename, or any variation or misspelling thereof, in Your domain name(s) or any other part of Your Universal Record Locator (URL).
p. You agree not to purchase, register, bid on or utilize any Artix trademark, service mark or trade name, or any variation or misspelling thereof, in connection with any pay-for-placement or pay-per-click search engine system, including without limitation, Google AdWords and Yahoo! Sponsored Search.
5. PAYMENT OBLIGATIONS.
It is free to register and play the HeroSmash game. However, you have the ability to purchase various account upgrades and digital items (like SmashCoins) within HeroSmash, as described at http://www.herosmash.com/hs-smashcoins.asp. To purchase, you may pay with a major credit card, PayPal, Pay-By-Cash, or by mailing a check to Company. However, the Company does not accept payments by check from users in Australia or New Zealand. You agree to pay all fees and charges that you incur through your account, including, but not limited to, applicable taxes. You will also be responsible for charges for any products or services that you purchase that are offered for sale through the Service. In addition, you are also responsible for paying any amounts billed to your credit card, even if your credit card company does not cover such costs. If we do not receive payment from your credit card issuer or its agent, you agree to pay all amounts due upon our demand. Your credit card issuer agreement governs your use of your designated credit card in connection with the Service, and you must refer to that agreement and not this Agreement to determine your rights and liabilities as a cardholder. If you are under 18 years old, you may make payments to Company only with the involvement of a parent or guardian.
The primary cardholder for any card used to pay for membership is fully responsible for all purchases made using his/her credit card or PayPal account. Any purchase made using your credit card or PayPal Account will be assumed to be approved and authorized by you. Please keep your credit card or PayPal account safe, and monitor the use of your credit card or PayPal Account carefully. You are responsible for all additional users of your credit card or PayPal Account including but not limited to your children. Continued use of our websites, including playing our games, constitutes your agreement to this condition.
a. Membership in Herosmash
There are three Membership options available: a three month, six month, or one year Membership, each at a different Membership price listed at http://herosmash.com/hs-smashcoins.asp . By entering your payment information and becoming a Member, you agree to the Company charging your credit card or other payment source for the initial quarterly payment for the Membership type you select. At the end of your Membership period you will automatically be downgraded to the status of a non-Member free user; if you would like to continue your Membership after your initial Membership period, you will need to pay for another Membership period, in order to keep your Membership benefits
a. SmashCoins in HeroSmash.
By entering your payment information and purchasing SmashCoins you agree to the Company charging your credit card or other payment source for the SmashCoins package you select. If you would like more SmashCoins after it has been spent, you will have to purchase more SmashCoins.
b. REFUND, CANCELLATION & EXPERIENCE REIMBURSEMENT POLICY.
All authorized purchases of SmashCoins or other access or services through the Site, may not be refunded or transferred regardless of cancellation or termination by any party. Duplicate SmashCoins orders made by mistake shall be refunded upon notification to Company under this Agreement.
Nothing in this Agreement places a duty on Company to ever reimburse any player by providing experience credit for any experience lost for any reason. Company will never reimburse or be obligated to reimburse players for any experience loss in a monetary manner, such as but not limited to monetary reimbursement or monetary credit.
6. PROHIBITED USES.
Company imposes certain restrictions on your permissible use of the Site and the Service. You are prohibited from violating or attempting to violate any security features of the Site or Service, including, without limitation, (a) accessing content or data not intended for you, or logging onto a server or account that you are not authorized to access; (b) attempting to probe, scan, or test the vulnerability of the Service, the Site, or any associated system or network, or to breach security or authentication measures without proper authorization; (c) interfering or attempting to interfere with service to any user, host, or network, including, without limitation, by means of submitting a virus to the Site or Service, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing;” (d) using the Site or Service to send unsolicited e-mail, including, without limitation, promotions, or advertisements for products or services; (e) forging any TCP/IP packet header or any part of the header information in any e-mail or in any posting using the Service; or (f) attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by Company in providing the Site or Service. Any violation of system or network security may subject you to civil and/or criminal liability.
Additionally, only Artix Entertainment , LLC or its licensees have the right to host Artix games. Accordingly, you may not host, provide matchmaking services for, or intercept, emulate, or redirect the communication protocols used by Artix as part of any Artix game, regardless of the method used to do so. Such prohibited methods may include, but are not limited to protocol emulation, reverse engineering, modifying Artix games, adding components to Artix games, or using a utility program to host Artix games. Also, the use of any "user interface" for Company games other than the user interface that is Company provides for any particular Company game ("Third Party User Interface") is prohibited by Company.
Furthermore, you agree that you will not (1) modify or cause to be modified any files that are a part of an Artix game; (2) create or use cheats, “mods”, and/or hacks, or any other third-party software designed to modify the experience of Artix games; (3) use any third-party software that intercepts, “mines”, or otherwise collects information from or through an Artix game.
Company has the right to terminate your account if you violate any of the terms of this Agreement.
7. USER INFORMATION.
You are required to register to use or access the Site or Service, during which you will be asked to complete the registration process by providing the complete and accurate information requested on the online registration form, which includes your email address, a user name and password. If you provide any information that is untrue, inaccurate, or incomplete, or if Company has reasonable grounds to suspect that the information is untrue, inaccurate or incomplete, Company may decide to suspend or terminate your membership and access to the Sites and Services.
7.1 PASSWORD SECURITY.
You are responsible for maintaining the confidentiality of your Password and you will be held responsible for all uses of your Password, whether or not authorized by you. Also, note that the security of your account is your responsibility. Company is not responsible in the event that your account is “hacked”, or if your account or your computer is damaged by a virus, or of any other issues with your computer or your account. You agree to notify Company immediately on any unauthorized use of your account, user name, or password. If you report your account stolen, hacked, or in any way compromised, Company will suspend the account while the matter is investigated. Following this investigation, Company will determine appropriate course of action in its sole and absolute discretion. Importantly, Company shall not be liable for any loss or changes in your account that you incur as a result of someone else using your password, either with or without your knowledge. You may be held liable for any losses incurred by Company, its affiliates, officers, directors, employees, consultants, agents, and representatives due to someone else’s use of your account or password.
8. CONSENT TO RECEIVE EMAIL.
If you register to use the Site and Services, you hereby consent to receive periodic newsletters and other types of email communications from Company, including customer service issues, new product offers and other matters. You may choose to opt out of certain newsletter and announcement email correspondence; however, Company reserves the right to email you at any time regarding issues related to your account and your use of the Site and Service.
9. USE OF SOFTWARE; PROHIBITED USES.
a. LIMITED LICENSE.
When you use Company’s Site and Services, the online game software, including all files and images contained in or generated by the software, and accompanying data, shockwave and other digital files (collectively, “Software”), is deemed to be licensed to you by Company, during the term of this Agreement and as long as the Agreement has not been terminated, for your personal, noncommercial, home use only. Company does not transfer either the title or the intellectual property rights to the Software, and Company retains full and complete title to the Software as well as all intellectual property rights therein. You may not sell, redistribute, or reproduce the Software, nor may you decompile, reverse-engineer, disassemble, or otherwise convert the Software to a human-perceivable form. All trademarks and logos are owned by Company or its licensors and you may not copy or use them in any manner.
b. PROHIBITED USES.
This limited license does not include any resale or commercial use of this Site or the Service; any collection and use of any descriptions or prices; any derivative use of the Site or its contents; or any use of data mining, robots, or similar data gathering and extraction tools. The Site or any portion of the Site may not be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without express written consent of Company. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Company, and our affiliates and marketing partners, without express written consent. You may not use any meta tags or any other "hidden text" utilizing names or trademarks of Company without the express written consent of Company. Any unauthorized use terminates the permission or license granted by Company. You are granted a limited, revocable, and nonexclusive right to create a hyperlink to the home page of Company’s Sites so long as the link does not portray Company, its affiliates, or their products or services in a false, misleading, derogatory, or otherwise offensive matter. You may not use any Company logos or other proprietary graphics or trademarks as part of the link without express written permission.
c. SALE OF DIGITAL ITEMS.
Company either owns or has an exclusive license to all of the content in Artix games. Therefore no one other than Company has any right whatsoever to sell any of Artix game content in any manner. In addition, you may not sell in-game items for real money or exchange items outside of any Artix game.
YOU ACKNOWLEDGE THAT YOU HAVE NO PROPERTY RIGHTS WHATSOEVER IN in-game currency. You further acknowledge that you may not use in-game currency for any purpose outside the HeroSmash game. The use of in-game currency outside the HeroSmash game, or the use of in-game currency for any non-approved reason, is strictly prohibited and will result in the termination of Your account and all of Your in-game currency. See Paragraph 18 for more details about Your lack of property rights in Artix game content and in-game currency.
d. NO PRIVACY RIGHT IN CHAT CONTENT; OTHER PRIVATE ACTIVITY
You hereby acknowledge that Company records and retains logs of all chat sessions (both private and public) between users (Chat Content), as well as private game play patterns and other activity of users within Company games. Additionally, you acknowledge and consent that Company may monitor, maintain, censor or otherwise remove your Chat Content and other private user activity within Company games for the purpose of preventing breaches of this Agreement and of other Company prohibitions on unlawful or abusive activity. Accordingly, you acknowledge that you have no privacy rights whatsoever in Chat Content or any other content that you create in Company games.
Furthermore, you acknowledge that Company is under no obligation to monitor Chat Content, and that you engage in chat on HeroSmash at your own risk.
10. SPECIAL ADMONITIONS FOR INTERNATIONAL USE.
Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable Content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside. Use of the Company’s Sites and Services is further subject to United States export controls. No software from this site and/or service may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By using any Company Site or Service, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
11. USER CONTENT.
You grant Company a license to use the materials you post to the Site or Service. By posting, chatting, downloading, displaying, performing, transmitting, or otherwise distributing information or other content (“User Content”) to the Site or Service, you are granting Company, its affiliates, officers, directors, employees, consultants, agents, and representatives a license to use User Content in connection with the operation of the Site and Service. Company, its affiliates, officers, directors, employees, consultants, agents, and representatives, including without limitation, a right to copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate, and reformat User Content. You will not be compensated for any User Content. You agree that Company may publish or otherwise disclose your name in connection with your User Content. By posting User Content on the Site or Service, you warrant and represent that you own the rights to the User Content or are otherwise authorized to post, distribute, display, perform, transmit, or otherwise distribute User Content.
12. COMPLIANCE WITH INTELLECTUAL PROPERTY LAWS.
When accessing the Site or using the Service, you agree to obey the law and to respect the intellectual property rights of others. Your use of the Service and the Site is at all times governed by and subject to laws regarding copyright ownership and use of intellectual property. You agree not to upload, download, display, perform, transmit, or otherwise distribute any information or content (collectively, “Content”) in violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights. You agree to abide by laws regarding copyright ownership and use of intellectual property, and you shall be solely responsible for any violations of any relevant laws and for any infringements of third party rights caused by any Content you provide or transmit, or that is provided or transmitted using your User ID. The burden of proving that any Content does not violate any laws or third party rights rests solely with you. Additionally, in the event that you become aware of or reasonably suspect any infringement of the copyrights or trademarks or Company or any third parties, occurring on any Company Site, you will immediately notify Company to report such infringement.
13. INAPPROPRIATE CONTENT.
14. COPYRIGHT INFRINGEMENT.
Company has in place certain legally mandated procedures regarding allegations of copyright infringement occurring on the Site or with the Service. Company has adopted a policy that provides for the immediate suspension and/or termination of any Site or Service user who is found to have infringed on the rights of Company or of a third party, or otherwise violated any intellectual property laws or regulations. Company’s policy is to investigate any allegations of copyright infringement brought to its attention. If you have evidence, know, or have a good faith belief that your rights or the rights of a third party have been violated and you want Company to delete, edit, or disable the material in question, you must provide Company with all of the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) identification of the material that is claimed to be infringed or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Company to locate the material; (d) information reasonably sufficient to permit Company to contact you, such as an address, telephone number, and if available, an electronic mail address at which you may be contacted; (e) a statement 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; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. For this notification to be effective, you must provide it to Company’s designated agent at:
Artix Entertainment , LLC
P.O. Box 2005
Land O' Lakes, Florida 34639
Fax: (866) 666-9581
15. ALLEGED VIOLATIONS.
16. NO WARRANTIES.
COMPANY HEREBY DISCLAIMS ALL WARRANTIES. THE SERVICE AND INFORMATION FROM OR THROUGH THE SITE ARE PROVIDED “AS IS” AND “AS AVAILABLE.” TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SITE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. COMPANY DOES NOT WARRANT THAT THE SITE OR THE SERVICE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SITE OR THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. THE INFORMATION AND SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. WE AND OUR AFFILIATED PARTIES HAVE NO LIABILITY WHATSOEVER FOR YOUR USE OF ANY INFORMATION OR SERVICE.
IMPORTANTLY, YOU HEREBY ACKNOWLEDGE THAT A CATASTROPHIC DISK FAILURE OR OTHER EVENT COULD RESULT IN THE LOSS OF ALL OF THE DATA RELATED TO YOUR ACCOUNT.
17. LIMITED LIABILITY.
COMPANY'S LIABILITY TO YOU IS LIMITED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL COMPANY BE LIABLE FOR DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR LOST DATA, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES) ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SITE OR ANY OTHER MATERIALS OR SERVICES PROVIDED TO YOU BY COMPANY. THIS LIMITATION SHALL APPLY REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION. ADDITIONALLY, OUR MAXIMUM LIABILITY TO YOU UNDER ALL CIRCUMSTANCES, WETHER IN CONTRACT, TORT OR OTHER OTHERWISE, WILL BE EQUAL TO THE AGGREGATE PRICE YOU PAY FOR OUR SERVICES OVER THE COURSE OF YOUR USE OF THE SITE. THE NEGATION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN US AND YOU. THIS SITE AND THE INFORMATION WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US THROUGH THE SITE SHALL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT. ANY PURCHASES THAT ARE MADE "ONE TIME" OR "FOR THE LIFE OF THE GAME" ARE SUBJECT TO THE FOLLOWING LIMITATIONS: SUCH PURCHASES DO NOT ENTITLE YOU TO CONTINUED SERVICE IN THE EVENT,
(A) THAT COMPANY CEASES TO OPERATE THE SITE,
(B) THAT COMPANY IS PURCHASED OR SELLS SUBSTANTIALLY ALL OF ITS ASSETS, OR (C) THAT THE COMPANY FILES A NOTICE OF BANKRUPTCY WITH ANY US COURT. UPON THE OCCURRENCE OF ANY OF SUCH EVENT, COMPANY RESERVES THE RIGHT TO CHARGE USERS FURTHER AMOUNTS FOR CONTINUED ACCESS TO COMPANY GAME CONTENT.
18. DISCLAIMER AND ACKNOWLEDGEMENT REGARDING GAME DATA.
You hereby acknowledge that by using the Site or the Services that you do not acquire any property rights whatsoever in the Site, Services, Game Data (as defined below), or any status within the Site and Services. To play Company games requires the creation and retention of electronic files, including without limitation player characters, accounts, in-game currency, statistics, user profiles, weapons, armor, quests, loot, etc. ("Game Data"), which are stored by Company. While keeping Game Data safe is a priority of Company, note that Company shall not have any liability for the loss of any Game Data for any reason whatsoever. Company reserves the right, in its sole and absolute discretion, to modify or delete any information, including without limitation Game Data and any other information accumulated, stored or uploaded on into any Company game.
Specifically regarding in-game currency and Memberships, YOU HEREBY ACKNOWLEDGE THAT BY PURCHASING OR OTHERWISE OBTAINING IN-GAME CURRENCY, OR BY BECOMING A MEMBER, YOU DO NOT ACQUIRE ANY PROPERTY RIGHTS WHATSOEVER IN THE IN-GAME CURRENCY OR YOUR STATUS IN THE GAME. IN-GAME CURRENCY IS GAME DATA THAT IS INTEGRAL TO ARTIX PROVIDING ENTERTAINMENT SERVICES TO ITS USERS, AND YOU ACKNOWLEDGE THAT IN-GAME CURRENCY IS NOT YOUR PROPERTY.
19. AFFILIATED SITES.
21. FORUMS & COMMUNICATIONS.
"Forum" means a chat area, message board, instant messaging, mobile messaging or e-mail function (including, but not limited to, electronic greeting cards) offered as part of any Company Site. If you participate in any Forum within a Company Site, you agree to follow our terms set forth below.
You acknowledge that anything you submit to a Company Site by way of any Forum is routed through Company’s servers and the Internet and that, therefore, you have no expectation of privacy with regard to any such submission. You acknowledge that the Forums and features on Company Sites are forums for public and not private communications. Please keep in mind that whenever you give out personal information online, for example, via message boards or chat, that information can be collected and used by people you don't know. We cannot guarantee the security of any information you disclose online; you make such disclosures at your own risk.
The Site or Service are copyrights or registered copyrights as follows: Copyright © 2011 Artix Entertainment , LLC, P.O. Box 2005, Land O' Lakes, Florida 34639. All rights are reserved. Such content shall include, but is not limited to: all games offered for use on the Site and Service, screenshots, screen captures, story text; tools, weapons, armor, and other gameplay items, wallpaper, IM graphics, character model sheets, trailers, T-shirt designs, banners, advanced and special class training materials, and any other media distributed pursuant to license.
23. WEBSITE CODE.
All website code and shockwave files associated with the Site or Service are: Copyright © 2011 Artix Entertainment , LLC, P.O. Box 2005, Land O' Lakes, Florida 34639. Such code shall include, but is not limited to: HTML, Flash, Shockwave and database content.
Unlawful use of Company trademarks is strictly prohibited. Such trademarks shall include, but are not limited to: ““HeroSmash,” and “BattleOn.”
25. DISPUTES; GOVERNING LAW.
a. REQUIREMENT OF ARBITRATION – BY USING THE SITE OR SERVICES, OR DOWNLOADING CONTENT FROM OR REGISTERING FOR THE SERVICES, YOU THEREBY AGREE WITH ARTIX THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AND ARTIX WILL RESOLVE ANY ARBITRAL CLAIM BY BINDING ARBITRATION BY THE NATIONAL ARBITRATION FORUM. AS USED IN THIS AGREEMENT, AN “ARBITRAL CLAIM” IS ANY CLAIM OR DISPUTE YOU HAVE AGAINST OR WITH ARTIX OR THE ARTIX INDEMNIFIED PARTIES, OR ANY CLAIM ARTIX HAS AGAINST OR WITH YOU, ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SITES, THE SERVICES OR ANY ADVERTISING RELATING TO THE SITES OR SERVICES, INCLUDING THE ENFORCEABILITY OF THIS AGREEMENT TO ARBITRATE BUT SPECIFICALLY EXCLUDING: (1) CLAIMS BY ARTIX TO COLLECT FROM YOU UNPAID FEES AND LATE FEES; AND (2) ACTIONS FOR REMEDIES IN AID OF ARBITRATION OR EQUITABLE RELIEF RELATING TO INTELLECTUAL PROPERTY RIGHTS, AS FURTHER DISCUSSED BELOW IN THE “REMEDIES IN AID OF ARBITRATION; EQUITABLE RELIEF” SUBSECTION. EXCEPT AS OTHERWISE EXPLICITLY NOTED HEREIN, SUCH ARBITRATION SHALL BE CONDUCTED UNDER THE NATINOAL ARBITRATION FORUM CODE OF PROCEDURE THEN IN EFFECT (“CODE OF PROCEDURE”).
b. WAIVER OF RIGHT TO A JURY TRIAL – BY USING OR DOWNLOADING CONTENT FROM OR REGISTERING FOR OR USING THE SITE OR SERVICES, YOU ALSO ARE AGREEING WITH ARTIX THAT YOU AND ARTIX HEREBY WAIVE THEIR RIGHT TO A JURY TRIAL FOR ANY ARBITRAL CLAIM. IF FOR ANY REASON THIS AGREEMENT TO ARBITRATE IS HELD NOT TO APPLY TO AN ARBITRAL CLAIM, WHETHER SUCH ARBITRAL CLAIM IS AGAINST YOU, ARTIX OR THE ARTIX INDEMNIFIED PARTIES, BOTH YOU AND ARTIX STILL AGREE TO WAIVE TRIAL BY JURY.
c. JOINDER OF CLAIMS – BY USING OR DOWNLOADING CONTENT FROM OR REGISTERING FOR OR USING THE SITE OR SERVICE, YOU ARE FURTHER AGREEING WITH ARTIX THAT NEITHER YOU NOR ARTIX WILL JOIN ANY ARBITRAL CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY IN A LAWSUIT, ARBITRATION OR OTHER PROCEEDING; THAT NO ARBITRAL CLAIM WILL BE RESOLVED ON A CLASS-WIDE BASIS; AND THAT NEITHER YOU NOR ARTIX WILL ASSERT AN ARBITRAL CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE.
d. NO EFFECT ON SUBSTANTIVE RIGHTS – THIS AGREEMENT TO ARBITRATE DOES NOT CHANGE YOUR OR ARTIX’S SUBSTANTIVE RIGHTS, JUST THE POTENTIAL FORUMS FOR RESOLVING DISPUTES. IN ADDITION, YOU CAN STILL BRING ANY ISSUES YOU MAY HAVE CONCERNING THIS AGREEMENT, THE SITES OR THE SERVICES TO THE ATTENTION OF FEDERAL, STATE, OR LOCAL GOVERNMENT AGENCIES, AND THEY CAN STILL, IF THE LAW ALLOWS, SEEK RELIEF AGAINST ARTIX AND THE ARTIX INDEMNIFIED PARTIES OR ON YOUR BEHALF.
e. FINALITY, APPLICATION OF ARBITRATION AWARD – ANY ARBITRATION AWARD MADE AFTER COMPLETION OF AN ARBITRATION IS FINAL. AN AWARD AND ANY JUDGMENT CONFIRMING IT ONLY APPLIES TO THE ARBITRATION IN WHICH IT WAS AWARDED AND CANNOT BE USED IN ANY OTHER CASE EXCEPT TO ENFORCE THE AWARD ITSELF.
f. Interpretation – This agreement to arbitrate will be governed by and interpreted under the Federal Arbitration Act, 9 U.S.C. Sections 1-16. In rendering an award, the arbitrator shall apply the substantive and procedural law of the state of Florida, without regard to its choice of laws principles. The arbitrator shall not have any power to alter, amend, modify or change any of the terms of this Agreement, nor to grant any remedy that is either prohibited by the terms of this Agreement or not available in a court of law.
g. Hearings; Fees and Costs – Either party may demand that any required arbitration hearing or hearings be conducted other than in person, even if the Code of Procedure would otherwise have provided for an in-person hearing. Any required hearing fees and costs shall be paid by the parties as required by the Code of Procedure, although the arbitrator may, in the award, allocate all or any part of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys’ fees of the prevailing party. If any party files a judicial or administrative action asserting a claim that is subject to arbitration and the other party successfully stays such action or compels arbitration, the party filing that action must pay the other party's costs and expenses incurred in seeking such stay or compelling arbitration, including attorney's fees.
h. Remedies in Aid of Arbitration; Equitable Relief – This agreement to arbitrate will not preclude either you or Artix from seeking provisional remedies in aid of arbitration, including without limitation orders to stay a court action, compel arbitration or confirm an arbitral award, from a court of competent jurisdiction. Furthermore, this agreement to arbitrate will not preclude either you or Artix from applying to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, to preserve the intellectual property rights of you, Artix or third parties. THE PROPER VENUE FOR ANY ACTION PERMITTED UNDER THIS SUBSECTION REGARDING “EQUITABLE RELIEF” WILL BE THE FEDERAL AND STATE COURTS LOCATED IN HILLSBOROUGH COUNTY, FLORIDA; THE PARTIES HEREBY WAIVE ANY OBJECTION TO THE VENUE AND PERSONAL JURISDICTION OF SUCH COURTS.
i. Information – Information on the National Arbitration Forum may be obtained and claims may be filed at any office of the National Arbitration Forum, online at www.arbitration-forum.com, or by mail at P.O. Box 50191, Minneapolis, MN 55405.
26. SEVERABILITY; WAIVER.
27. NO LICENSE.
Nothing contained on the Site should be understood as granting you a license to use any of the trademarks, service marks, or logos owned by Company or by any third party.
28. FLORIDA USE ONLY.
The Site is controlled and operated by Company from its offices in the State of Florida. Company makes no representation that any of the materials or the services to which you have been given access are available or appropriate for use in other locations. Your use of or access to the Site should not be construed as Company’s purposefully availing itself of the benefits or privilege of doing business in any state or jurisdiction other than Florida.