PLEASE READ THIS AGREEMENT CAREFULLY; THIS IS A BINDING CONTRACT.
SECTION 17 OF THIS TERMS OF USE CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER. IF YOU LIVE IN THE UNITED STATES, THIS SECTION AFFECTS YOUR RIGHTS ABOUT HOW TO RESOLVE DISPUTES THAT YOU MAY HAVE WITH US.
Welcome to the supergiantgames.com website (the “Site”). This Terms of Use (this “ToU”) describes the terms and conditions under which Supergiant Games, LLC (“Supergiant,” “we,” or “us”) provides you access to the Site and the online game services provided through the Site (collectively, with the Site, the “Services”).
If you wish to install and play the videogames made available through the Site (each, a “Game”) you must first read and agree to the end user license agreement provided with a Game (the “EULA”). The EULA governs the terms regarding your use of each Game and this ToU governs your use of the Services.
Supergiant may amend this ToU at any time by posting the amended ToU on the Site, and you agree that you will be bound by any changes to this ToU. For your convenience, the date of last revision is included at the top of this page. Supergiant may make changes to the Site at any time. You understand that Supergiant may discontinue or restrict your use of the Site for any reason or no reason with or without notice.
YOUR USE OF THE SITE SIGNIFIES THAT YOU AGREE TO THIS TOU AND CONSTITUTES YOUR BINDING ACCEPTANCE OF THIS TOU, INCLUDING ANY MODIFICATIONS THAT SUPERGIANT MAKES FROM TIME TO TIME.
1. Privacy Policy. By using the Site, you represent that you have read and are familiar with the Supergiant Privacy Policy found at www.supergiantgames.com in addition to this ToU. Supergiant may revise the Privacy Policy at any time, and the new versions will be available on the Site. If at any point you do not agree to any portion of the Privacy Policy, you must immediately stop using the Site.
2. ToU Updates. Supergiant will revise this ToU as the Site evolves. You must agree to all revisions if you choose to continue using the Site. By using the Site, you agree to the then-current version of this ToU as posted on the Site at www.supergiantgames.com. If at any point you do not agree to any portion of the then-current version of this ToU, you must immediately stop using the Site.
3. Fansites and Use of Supergiant Content. In this section, the term “Supergiant Content,” means Game-related images, graphics and artwork and the term “Supergiant Marks,” means the trademarks, logos, and service marks of Supergiant and/or our licensors. Unless otherwise specified on the Site, we grant you a personal, revocable, non-transferable, non-sublicensable, non-exclusive license to reproduce and display any Supergiant Content and Supergiant Marks solely on your fansite or fansite pages dedicated to a Game (“Fansite”) solely for noncommercial purposes, provided that you agree to the following:
3.1. Compliance with All Agreements and Policies. You must be in full compliance with the provisions of this ToU and any usage guidelines or policies that may be provided by Supergiant from time to time (all of which may be modified from time to time in our sole discretion).
3.2. Fansite Restrictions. As the operator of an independent, unaffiliated web site, you will have sole editorial control of the Fansite, except that you represent and warrant to Supergiant that the Fansite will not post or transmit: (a) any material that is unlawful, harmful, harassing, fraudulent, threatening, abusive, libelous, defamatory, vulgar, obscene, hateful, or racially, ethnically or otherwise objectionable, or infringes our or any third party’s intellectual property or other rights; or (b) any content or information that is derogatory or harmful to the reputation of a Game, Supergiant, our officers and employees and/or any of our licensors and/or suppliers, in any way.
3.3. Notice Requirements. You must retain all trademark, copyright and other proprietary notices contained in or on the Supergiant Content or Supergiant Marks. If you post Supergiant Content on your Fansite, you must also prominently post the following notices on your Fansite on the same web page(s) as any of the Supergiant Content: “Bastion, Transistor, and Pyre content and materials are trademarks and copyrights of Supergiant Games, LLC or its licensors and used with permission. All rights reserved.” You shall not remove or alter any identifying information or copyright or trademark information conveyed in connection with the Supergiant Content.
3.4. Reservation of Rights. Your ownership in the Fansite excludes (a) Supergiant Content, Supergiant Marks and all goodwill relating thereto, and (b) any derivative works based upon or including Supergiant Content and/or Supergiant Marks. The Fansite is not a “Joint Work” as that term is defined under United States copyright law (i.e., Title 17, United States Code). You shall not challenge Supergiant’s ownership of Supergiant Content or Supergiant Marks, nor use or adopt any trademarks that might be confusingly similar to Supergiant Marks.
3.5. Restrictions on Use. Except as expressly authorized by this ToU, you may not (a) download, copy or use any of the Supergiant Content or Supergiant Marks; (b) distribute, modify, transmit, publicly display and/or otherwise use Supergiant Content or Supergiant Marks; (c) rent, lease, reproduce, modify, translate or create derivative works of Supergiant Content; or (d) create any derivative works (including without limitation fiction or visual art) from, or in any way exploit, any of the characters or content contained in each Game or on the Site, in each case, without the written consent of Supergiant. Supergiant does not consent to the protection of any unauthorized derivative work under any copyright law. The creation and sale of merchandise that uses, references or is based upon a Game, Supergiant Content and/or Supergiant Marks is expressly prohibited.
3.6. Termination and Limitation of Liability. We may terminate the limited permission to use the Supergiant Content and Supergiant Marks pursuant to this Section 3 at any time for any reason. Under no circumstances will we be liable to you for any direct, indirect, incidental, consequential, special or exemplary damages of any kind in connection with this limited permission. We reserve the right in our sole discretion to expressly refuse this limited permission to any particular Fansite, or to revoke this limited permission at any time without any liability to you whatsoever.
4. User Content.
4.1. Content. “Content” means any communications, images, sounds, and all the material and information that you upload or transmit through the Site, or that other users upload or transmit, including without limitation any bulletin board postings. You understand all Content is the sole responsibility of the person from which such Content originated. This means that you, and not Supergiant, are entirely responsible for all Content that you upload, post, transmit or otherwise make available through the Site. Supergiant does not control the Content posted or transmitted through the Site bulletin boards and does not guarantee the accuracy, integrity or quality of such Content. You understand that by using the Site, you may be exposed to Content that is offensive, indecent or objectionable and you may be exposing others to Content that others find objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. You acknowledge that you may not rely on any Content submitted to Supergiant through the Site forums.
4.2. License Grant. You hereby grant to us and our licensors, including without limitation our respective successors and assigns, a non-exclusive, perpetual, irrevocable, sublicensable, transferable, worldwide, paid-up right to reproduce, fix, adapt, modify, translate, reformat, create derivative works from, manufacture, introduce into circulation, publish, distribute, sell, license, sublicense, transfer, rent, lease, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, communicate to the public by telecommunication, enter into computer memory, and use and practice such Content as well as all modified and derivative works thereof, without compensation to you. None of the Content will be subject to any obligation, whether of confidentiality, attribution or otherwise, on our part and we will not be liable for any use or disclosure of any Content.
4.3. Content Screening and Disclosure. We do not, and cannot, pre-screen or monitor all Content. You acknowledge and agree that you have no expectation of privacy concerning the submission of any Content. We do not assume any responsibility or liability for Content that is generated by users of the Site. We have the right, but not the obligation, in our sole discretion to edit, refuse to post, or remove any Content. We also reserve the right, at all times and in our sole discretion, to disclose any Content for any reason, including without limitation (a) to satisfy any applicable law, regulation, legal process or governmental request; (b) to enforce the terms of this ToU or any other agreement; (c) to protect our legal rights and remedies; (d) where we feel someone’s health or safety may be threatened; or (e) to report a crime or other offensive behavior.
5. Retail Store.
5.1. Purchases. You may purchase certain products through the Retail Store provided you have given us valid credit card or other payment information. You acknowledge and agree that all information you provide with regards to a purchase, including, without limitation, credit card or other payment information, is accurate, current and complete. You represent and warrant that you have the legal right to use the payment method you provide to us or our payment processor, including, without limitation, any credit card you provide when completing a transaction. We reserve the right, with or without prior notice, to (i) discontinue or limit the available quantity of any product, (ii) honor, or impose conditions on the honoring of, any coupon, coupon code, promotional code or other similar promotions; or (iii) refuse to allow any user to purchase a product or deliver any product to a user. When you purchase products through the Retail Store, you (a) agree to pay the price for such products set forth in the Retail Store, all shipping and handling charges and all applicable taxes in connection with your purchase (the “Full Purchase Amount”) and (b) authorize Supergiant or its nominee to charge your credit card or other payment method for the Full Purchase Amount. Unless otherwise noted, all currency references are in U.S. dollars.
5.2. Return Policy. You may obtain a full refund for, or exchange, any item that you purchase through the Site for a period of thirty (30) days from the date of your purchase, including, without limitation, for defective merchandise or failed delivery. To receive a refund for the Full Purchase Amount of the item or an exchange of the item for an item of equal value, please submit the digital copy of your proof of purchase (such as an email receipt) with an email regarding the reason for your return or exchange to info@supergiantgames.com. If you wish to return a physical item to us, please send the item to 521 Gough Street, San Francisco, CA 94102 Attention: Supergiant Games Returns with a printed copy of your proof of purchase or receipt and a written explanation for the reason for the return, including whether you would like a replacement item or a refund of the Full Purchase Amount. You will be responsible for paying any postage costs to return an item to us. We will not be able to issue refunds or provide exchanges without a copy of your receipt or proof of purchase. Any attempted exchanges, returns or refunds after the thirty (30) day period described in this Section will not be honored.
5.3. Changes to Products and Pricing. Supergiant may, at any time, revise or change the pricing, availability, specifications, content, descriptions or features of any products sold through the Retail Store. The inclusion of any products through the Retail Store at a particular time does not imply or warrant that these products will be available at any other time. Supergiant reserves the right to change prices for products displayed on the Retail Store at any time, and to correct pricing errors that may inadvertently occur. All such changes shall be effective immediately upon posting of such new product prices to the Retail Store.
5.4. Order Acceptance/Confirmation. Once we receive your order, we’ll provide you with an email order confirmation. Your receipt of an order confirmation, however, does not signify Supergiant’s acceptance of your order, nor does it constitute confirmation of our offer to sell; we are simply confirming that we received your order. Supergiant reserves the right at any time after receiving your order to accept or decline your order for any reason. If Supergiant cancels an order after you have already been billed, Supergiant will refund the billed amount.
5.5. Shipment of Products. Title and risk of loss for any purchases pass to you upon our delivery to our carrier. We reserve the right to ship partial orders (at no additional cost to you), and the portion of any order that is partially shipped may be charged at the time of shipment. Unless as a result of events outside of our direct control, orders of products purchased by you through the Retail Store will be delivered within the time period specified for the delivery method you have selected.
5.6. Consumers Only. Supergiant sells and ships products to end-user customers only. You may not purchase products on the Retail Store for resale, and we reserve the right to refuse or cancel your order if we suspect you are doing so.
6. Restrictions and Conditions of Use.
6.1. Use of Site. Supergiant permits you to view and use a single copy of the Site for your personal, non-commercial use. You agree not to license, create derivative works from, transfer, sell or re-sell any information, content, or services obtained from the Site.
6.2. No Violation of Laws. You agree that you will not violate any applicable law or regulation in connection with your use of the Site. Without limiting the foregoing, you agree that you will not make available through the Site any material or information (including, without limitation, Content) that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy or publicity).
6.3. Misuse of Site. You may not connect to or use the Site in any way not expressly permitted by this ToU. Without limiting the foregoing, you agree that you will not (a) institute, assist, or become involved in any type of attack, including without limitation denial of service attacks upon, or hacking of, the Site or otherwise attempt to disrupt the Site or any other person’s use of the Site; (b) attempt to gain unauthorized access to the Site, accounts registered to other users, or the computer systems or networks connected to the Site; (c) obtain or attempt to obtain any information from the Site using any method not expressly permitted by Supergiant; or (d) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan-horse routing, trap door, time bomb or any other codes, instructions or third-party software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, damage or disassemble the Site.
6.4. No Commercial Uses. You agree that you will not use the Site for any commercial purpose or the benefit of any third party or charge any person, or receive any compensation for, the use of the Site.
6.5. Restrictions on Content. You may not use the Site to develop, generate, transmit or store information (including, without limitation, Content) that: (a) in the sole and absolute discretion of Supergiant, is deemed to be offensive; (b) is deemed unlawful, harmful, harassing, fraudulent, threatening, abusive, libelous, defamatory, vulgar, obscene, hateful, sexually explicit, or racially, ethnically or otherwise objectionable, nor may you use a misspelling or an alternative spelling to circumvent these restrictions; (c) consists of advertisements, promotions, solicitations, chain letters, pyramid schemes, investment opportunities or other unsolicited commercial communication; (d) is derogatory or harmful to the reputation of the Site, Supergiant, or our directors, officers and employees in any way; (e) encourages the violation of any local, state, national, or international laws or regulations; (f) solicits other users’ credit card or other payment method information; (g) is anti-social, disruptive, or destructive, including, without limitation, “flaming,” “spamming” and “trolling”; (h) carries out any action with a disruptive effect; (i) contains any user’s personal information, including, but not limited to, such user’s real name, address, phone number or private e-mail address; (j) forges headers or otherwise manipulates identifiers in order to disguise the origin of any message (k) in any way obstructs or otherwise interferes with the normal performance of another person’s use of the Site; (l) constitutes harassment or a violation of privacy or threatens other people or groups of people; (m) is harmful to children in any manner; or (n) constitutes phishing, pharming or impersonates any other person, or steals or assumes any person’s identity (whether a real identity or online nickname or alias).
7. Ownership. As between you and Supergiant and/or its licensors, Supergiant and/or its licensors own the Site and the Games. Supergiant and its licensors reserve the exclusive right to create derivative works based on the Site. You agree that you will not create any work of authorship or create any derivative works based on the Site or the Games except as expressly permitted by Supergiant. Any reproduction or redistribution of the Site or the Games not in accordance with this ToU is expressly prohibited by law, and may result in severe civil and criminal penalties.
8. Links.
8.1. Links from the Site. The Site may contain links to websites operated by other parties. Supergiant provides these links to other websites as a convenience, and use of these sites is at your own risk. The linked sites are not under the control of Supergiant, and Supergiant is not responsible for the content available on the other sites. Such links do not imply Supergiant’s endorsement of information or material on any other site and Supergiant disclaims all liability with regard to your access to and use of such linked websites.
8.2. Links to the Site. Unless otherwise set forth in a written agreement between you and Supergiant, you must adhere to Supergiant’s linking policy as follows: (a) the appearance, position and other aspects of the link may not be such as to damage or dilute the goodwill associated with Supergiant’s and/or its licensors’ names and trademarks, (b) the appearance, position and other attributes of the link may not create the false appearance that your organization or entity is sponsored by, affiliated with, or associated with Supergiant, (c) when selected by a user, the link must display the Site on full-screen and not within a “frame” on the linking Site, and (d) Supergiant reserves the right to revoke its consent to the link at any time and in its sole discretion.
9. Notice for Claims of Copyright Infringement. If you are a copyright owner or agent thereof and believe that content posted on the Site by a Supergiant user infringes upon your copyright, please submit notice, pursuant to the Digital Millennium Copyright Act (17 U.S.C. § 512(c)) to our Copyright Agent with the following information:
(a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright;
(b) a description of the copyrighted work that you claim has been infringed;
(c) the URL of the location on our website containing the material that you claim is infringing;
(d) your address, telephone number, and email address;
(e) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
(f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Our Copyright Agent can be reached by mail at Supergiant Games, LLC, 521 Gough Street, San Francisco, CA 94102 ATTN: Supergiant Games, LLC Copyright Agent, by email at info@supergiantgames.com. Please note that attachments cannot be accepted at the email address for security reasons. Accordingly, any notification of infringement submitted electronically with an attachment will not be received or processed.
10. Intellectual Property.
10.1. Trademarks. Bastion, Transistor, Pyre, the Bastion logo, the Transistor logo, and the Pyre log are trademarks/service marks of Supergiant. Supergiant and the Supergiant logo are trademarks/service marks of Supergiant. Unauthorized use of any Supergiant trademark, service mark or logo may be a violation of federal and state trademark laws.
10.2. Copyright. The Site and Games are protected by U.S. and international copyright laws. Except for your use as authorized above, you may not modify, reproduce or distribute the content, design or layout of the Site or Games, or individual sections of the content, design or layout of the Site without Supergiant’s express prior written permission.
11. Unsolicited Idea Submissions. Neither Supergiant nor any of its employees and/or contractors accept or consider unsolicited ideas, original creative artwork or other works, including, without limitation, ideas or suggestions for new or improved games or technologies, game or product enhancements, marketing plans or names for new games (collectively “Unsolicited Ideas”). Please do not send your Unsolicited Ideas to Supergiant or its employees and/or contractors. Our policy is aimed at avoiding potential misunderstandings or disputes when Supergiant’s products or strategies might seem similar to Unsolicited Ideas that are submitted. If, despite our request that you not send us your Unsolicited Ideas, you still submit your Unsolicited Ideas to us or to any of our employees and/or contractors, then, you hereby grant us and our designees a worldwide, non-exclusive, sublicenseable, assignable, royalty-free, perpetual, irrevocable right to use, reproduce, distribute, create derivative works of, publicly perform, publicly display and license, digitally perform, make, have made, sell, offer for sale and import your Unsolicited Ideas, including, without limitation, all copyrights, trademarks, trade secrets, patents, industrial rights and all other intellectual and proprietary rights related thereto, in any media now known or hereafter developed, for any purpose whatsoever, commercial or otherwise, including, without limitation, giving the Unsolicited Ideas to others.
12. Location. The Site is operated by Supergiant in the United States. Those who choose to access the Site from locations outside the United States do so on their own initiative and are responsible for compliance with applicable local laws.
13. Children. The Site is not directed toward children under 13 years of age nor does Supergiant knowingly collect information from children under 13. If you are under 13, please do not submit any personally identifiable information to Supergiant.
14. DISCLAIMER OF WARRANTIES. THE SITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. SUPERGIANT MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY CONTENT AVAILABLE THROUGH THE SITE. YOU ARE RESPONSIBLE FOR VERIFYING ANY INFORMATION BEFORE RELYING ON IT. USE OF THE SITE AND/OR THE CONTENT AVAILABLE ON THE SITE IS AT YOUR SOLE RISK. SUPERGIANT DOES NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE SITE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SITE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimer may not apply to you.
15. LIMITATION OF LIABILITY; SOLE AND EXCLUSIVE REMEDY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SUPERGIANT, ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE “RELATED PARTIES”) DISCLAIM ALL LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND FURTHER DISCLAIMS ALL LOSSES, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SITE EVEN IF SUPERGIANT AND/OR RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE LIABILITY OF SUPERGIANT OR ANY OF THE RELATED PARTIES EXCEED THE AMOUNT THAT YOU PAID TO US OR OUR DESIGNEES DURING THE SIX (6) MONTHS PRIOR TO THE TIME YOUR CAUSE OF ACTION AROSE.
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of Supergiant and its affiliates shall be limited to the fullest extent permitted by law.
16. Indemnification. You agree to indemnify, defend and hold Supergiant and the Related Parties harmless from any claim, demand, damages or other losses, including reasonable attorneys’ fees, asserted by any third-party resulting from or arising out of any breach by you of this ToU or any other policies that Supergiant may issue for the Site from time to time.
17. Negotiations and Arbitration.
17.1. Negotiations. Disputes can be expensive and time consuming for both parties. In an effort to accelerate resolution and reduce the cost of any dispute or claim related to this Agreement (“Claim”), you and Supergiant agree to first attempt to informally negotiate any Claim for at least thirty (30) days (except those Claims expressly excluded in Section 17.6 below). Supergiant will send its notice to the address it has on file to the extent that you have provided additional contact information to Supergiant (e.g. by participating in a promotional or survey, or contacting a customer services representative). Otherwise, Supergiant will send its notice to the email address associated with your Account. You will send your notice to Supergiant Games, LLC, 521 Gough Street, San Francisco, CA 94102, Attn: Legal Department. Please note that this informal resolution procedure does not suspend any statutory limitation periods applicable to the bringing of a Claim.
17.2. Binding Arbitration. If the parties fail to resolve a Claim through negotiations, within such thirty (30)-day period, either you or Supergiant may elect to have the Claim (except as otherwise provided in Section 17.6) finally and exclusively resolved by binding arbitration by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in this Agreement. In the event of a conflict between the terms set forth in this Section 17.2 and the JAMS Rules, the terms set forth in the JAMS Rules will control and prevail.
Except as otherwise set forth in Section 17.6, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and we will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in this Agreement, (i) you and Supergiant may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (ii) the arbitrator’s decision is final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND SUPERGIANT ARE WAIVING THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
17.3. Arbitration Fees. If you initiate arbitration for a Claim, you will only need to pay an arbitration initiation fee of $250 and we will pay all other costs charged by JAMS for initiating the arbitration. If we are initiating arbitration for a Claim, we will pay all costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules. Notwithstanding Section 18.5 of this Agreement to the contrary, you will not be required to pay our attorneys’ fees or other costs if you do not prevail in the arbitration.
17.4. Location. The arbitration will take place in your hometown area if you so notify Supergiant in your notice of arbitration or within ten (10) days following receipt of Supergiant’s arbitration notice. In the absence of a notice to conduct the arbitration in your hometown area, the arbitration will be conducted in San Francisco, California, unless the parties agree to video, phone and/or internet connection appearances. Any Claim not subject to arbitration (other than claims proceeding in any small claims court), or where no election to arbitrate has been made, shall be decided exclusively by a court of competent jurisdiction in San Francisco, California, United States of America, and you and Supergiant agree to submit to the personal jurisdiction of that court.
17.5. Limitations. You and Supergiant agree that any arbitration shall be limited to the Claim between Supergiant and you individually. YOU AND SUPERGIANT AGREE THAT (A) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (B) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (C) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER.
17.6. Exceptions to Negotiations and Arbitration. You and Supergiant agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (i) any Claims seeking to enforce or protect, or concerning the validity of, any of your or Supergiant’ intellectual property rights; (ii) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (iii) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such courts’ jurisdiction in lieu of arbitration.
17.7. Governing Law. Except as otherwise provided in this Agreement, this Agreement shall be is governed by, and will be construed under, the laws of the United States of America and the law of the State of California, without regard to choice of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You are responsible for compliance with all local laws if and to the extent local laws are applicable.
17.8. Severability. You and Supergiant agree that if any portion this Section 17 is found illegal or unenforceable (except any portion of Section 17.6), that portion shall be severed and the remainder of the Section shall be given full force and effect. If Section 17.6 is found to be illegal or unenforceable then neither you nor Supergiant will elect to arbitrate any Claim falling within that portion of Section 17.6 found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within San Francisco, State of California, United States of America, and you and Supergiant agree to submit to the personal jurisdiction of that court.
18. General.
18.1. TOU Revisions. This ToU may only be revised in a writing signed by Supergiant, or published by Supergiant on the Site.
18.2. No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Supergiant as a result of this ToU or your use of the Site.
18.3. Assignment. Supergiant may assign this ToU, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the ToU without Supergiant’s prior written consent, and any unauthorized assignment by you shall be null and void.
18.4. Severability. If any part of this ToU is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of the ToU shall be given full force and effect.
18.5. Attorneys’ Fees. In the event any litigation is brought by either party in connection with this ToU, the prevailing party in such litigation shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation.
18.6. No Waiver. Our failure to enforce any provision of this ToU shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by us of any provision, condition or requirement of this ToU shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
18.7. Notices. All notices given by you or required under this ToU shall be in writing and addressed to: Supergiant Games, LLC, 521 Gough Street, San Francisco, CA 94102, ATTN: CEO.
18.8. Export Administration. You will comply fully with all relevant export laws and regulations of the United States, including, without limitation, the U.S. Export Administration Regulations (collectively “Export Controls”). Without limiting the generality of the foregoing, you will not, and you will require your representatives not to, export, direct or transfer any Game or any direct product thereof, to any destination, person or entity restricted or prohibited by the Export Controls.
18.9. Equitable Remedies. You hereby agree that Supergiant would be irreparably damaged if the terms of this ToU were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this ToU, in addition to such other remedies as we may otherwise have available to us under applicable laws.
18.10. Entire Agreement. This ToU, including the documents expressly incorporated by reference, constitutes the entire agreement between you and us with respect to the Site and supersedes all prior or contemporaneous communications, whether electronic, oral or written, between you and us with respect to the Site.
