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PlayFirst,
Inc.
Terms
of Service and Use
PlayFirst,
Inc. ("PlayFirst," "we," or "us") respects the privacy of the visitors to our websites such as PlayFirst.com and DinerDash.com (individually and collectively, the "Site").
We grant you the right to use the Site subject to the terms and conditions of service and use ("Terms of Service") set forth below. PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY ACCESSING THIS SITE, YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS OF SERVICE, YOU MAY NOT ACCESS OR USE THIS SITE. YOU REPRESENT THAT YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT (YOU MUST CONSULT YOUR PARENT OR LEGAL GUARDIAN IF YOU ARE UNDER THE AGE OF MAJORITY).
Limited License and Right to Use Site Content.
The information, pictures, graphics, games, upgrades for use in games (e.g., new levels, characters, and in-game items) (“Game Items”), and other content, features and services available on the Site (collectively, the "Site Content") are owned by PlayFirst or its suppliers and are protected by copyright and other laws throughout the world. We grant you a non-exclusive license to reproduce portions of the Site Content for the sole purpose of reviewing and using the Site Content as permitted in these Terms of Service. PlayFirst may require you to pay a fee for a non-exclusive license to use certain Site Content. You acknowledge and agree that Game Items have no real world value, are licensed as part of the game software they are designed to work with, and are owned by PlayFirst or its licensors. Accordingly, you may not sell or transfer the Game Items and all such transfer or sale is null and void. All copyright and other proprietary notices on any Site Content must be retained on any copies. Any unauthorized reproduction or modification, distribution, or performance of any Site Content is strictly prohibited. PlayFirst reserves all rights not granted in these Terms of Service.
We reserve the right, at any time, to modify the Site Content or to modify, suspend, or discontinue the Site or any part thereof with or without notice. You agree that we will not be liable to you or to any third party for any modification of the Site Content or modification, suspension, or discontinuance of the Site.
Online Services.
The Site includes a range of online features such as chat, user profiles, high scores, forums, online store, multiplayer gameplay, medals and badges and other user generated content, as PlayFirst determines in its sole discretion ("Online Services"). Certain PlayFirst games allow users to access these Online Services from within a downloaded game. Online Services are provided as an additional and optional feature for some PlayFirst games, and you acknowledge that PlayFirst may modify or cease supporting Online Services at any time with no liability to you, in which event the PlayFirst game will continue to function without the Online Services capability.
You must either have a PlayFirst Account or, with respect to some Online Services, you may log in without creating a PlayFirst Account by providing a username. Note that your username and other User Content (defined below) will be viewable by anyone in Online Services at the same time as you, so you should not use personally identifiable information.
PlayFirst reserves the right to edit or delete any information you optionally put into a publicly available profile about yourself ("PlayFirst Public Profile") or User Content that you post or submit at any time. PlayFirst shall be under no obligation to: (1) maintain any information in your PlayFirst Public Profile or User Content in confidence; (2) to pay to you any compensation for any User Content; or (3) to respond to any of your User Content
Please be aware that the information in a PlayFirst Public Profile and User Content is publicly available to anybody who visits the PlayFirst Site or participates with you in Online Services. PlayFirst will not be liable for any consequences that may result from the public display of the information you choose to enter into your PlayFirst Public Profile.
You may report violations of these Terms of Service or other abuse by clicking on the "Report Abuse" link within the Online Service or the Site, or you can click on a specific users name in the room list window and a second window will pop up above it with the ability to whisper, view profile, ignore and or report abuse. You can also send an email to to report abuse.
Right to Terminate Accounts and Access. PlayFirst and its affiliates reserve the right to refuse service, terminate accounts, remove or edit content including games, or cancel orders in their sole discretion.
Your Responsibilities.
You must provide and are responsible for all equipment, including the PlayFirst game, necessary to access the Site.
You agree to update information provided in connection with registration or the ordering process in order to maintain its truth, accuracy, and completeness. You are responsible for maintaining the confidentiality of your password if you log in with a PlayFirst Account, and you are also responsible for all activities that occur with your username. You agree to immediately notify PlayFirst of any unauthorized use of your account or any other breach of security.
You agree not to:
interfere with or disrupt the Site or servers or networks connected to the Site, or disobey any requirements, procedures, policies, or regulations of networks connected to Site; or
reproduce, duplicate, copy, sell, resell, or exploit for any commercial purposes, any portion of Site (including Site Content), PlayFirst game, or PlayFirst game unlock key; or
disclose to any third party any game unlock key assigned to you; or
"hack, "crack," or otherwise attempt to circumvent any copyright protection, access control, or license-enforcement mechanisms associated with or related to the Site or any PlayFirst game; or
post or submit comments or other materials containing harassing, offensive, indecent, unlawful, threatening, vulgar, profane or otherwise objectionable language or images, including sexual references, sexual nicknames, racial slurs, hate propaganda, hate mongering, swearing, or rude or deliberately offensive comments; or
associate Site Content with obscene, disparaging, or otherwise objectionable material, including on your own website where PlayFirst allows You to frame Site Content on Your personal and noncommercial website; or
disrupt the normal flow of dialogue, cause a screen to "scroll" faster than other users of the Site are able to type, or otherwise act in a manner that negatively affects other people's ability to use the Site; or
violate any applicable law, including by posting or submitting any information, software or other material that is fraudulent or violates or infringes the rights of others, including material that violates privacy or publicity rights, or infringes copyright, trademark or other proprietary rights, without first obtaining permission from the owner or right holder, including links to or information about WAREZ sites; or
post or submit any incorrect information in connection with setting up a PlayFirst Account or PlayFirst Public Profile
impersonate any person, including a PlayFirst employee or agent; or
collect or store personal data about other people; or
use any address (including, but not limited to e-mail addresses and instant messenger addresses) displayed on the Site to send unsolicited e-mail (spam) or for any other unauthorized contact.
You may not: (1) allow, enable, or otherwise support the transmission of unsolicited commercial advertising or solicitations via e-mail (spam); (2) use any high volume, automated, or electronic means (including without limitation robots, spiders, scripts, or other automatic device) to access the Site or monitor or copy our web pages or the Site Content; (3) deep-link to the Site for any purpose other than as expressly permitted by PlayFirst; or (4) frame the Site, place pop-up windows over its pages, or otherwise affect the display of its pages other than as expressly permitted by PlayFirst.
Submissions Policy. You may submit to us on a non-confidential basis any games or game proposals that are owned and created by you for evaluation by PlayFirst. You acknowledge that we also receive games submitted by other third parties and that we develop games internally. Any game that you submit to us may be similar to other games that we currently have in our possession or that we may develop or receive at a later date, and you agree that you will not assert any claim against PlayFirst or our customers in connection with any such similarities. You shall retain all rights in your games. PlayFirst is under no obligation to evaluate or use any game you submit to us.
Framing Site Content. PlayFirst may allow You to frame online versions of specified Site Content on Your own personal and non-commercial web site, in PlayFirst’s sole discretion. Any such use is subject to a limited license to link or frame certain Site Content on your own personal and noncommercial website. If you elect to link or frame the Site Content on your website, you must not modify, reverse engineer, or disable any of the components embodied in such Site Content (e.g., You may not modify, alter, obscure, or delete the links back to the Site as provided by PlayFirst and applicable legal notices for the Site Content). PlayFirst reserves the right to revoke Your license and to make unavailable the Site Content that was previously offered to you without notice. You assume all risks associated with the use of any Site Content. In this regard, you acknowledge that you may not rely on any Site Content made available to you.
User Content and Feedback.
You may submit reviews or other feedback using forms on the Site and participants in Online Services may create, share, obtain, and transmit content such as text, graphics including virtual personas (or avatars), virtual skills, powers, or objects, ("User Content").
During your use of the Site, including if you participate in Online Services, you may be exposed to User Content that you deem offensive, inaccurate, indecent, or otherwise objectionable. You agree that PlayFirst is not liable for any User Content, including, but not limited to, any loss, damage, or harm of any kind incurred by you as a result of any User Content. PlayFirst does not pre-screen User Content, but has the right to remove any User Content that violates these Terms of Service, as it may determine in its sole discretion.
By submitting User Content to PlayFirst, you grant PlayFirst a royalty-free, irrevocable, perpetual, non-exclusive, unrestricted, worldwide license to (i) use, copy, sublicense, adapt, transmit, publicly perform, display, or create derivative works from any User Content, and (ii) sublicense to third parties the unrestricted right to exercise any of the foregoing rights granted with respect to such User Content.
PlayFirst may store User Content indefinitely. However, PlayFirst has no obligation to store User Content or make it available to you in the future.
Stored Value. PlayFirst allows you to store value in your PlayFirst account via an approved purchase method ("PlayGold") which you may redeem for designated eligible Site Content. You may purchase PlayGold and use PlayGold in accordance with the guidelines available at http://www.playfirst.com/help/index.html. To the fullest extent allowed by law, PlayFirst, Inc. retains full ownership rights in PlayGold and grants you a limited, non-exclusive, non-transferable license to use PlayGold only as expressly indicated in the PlayGold guidelines. Your purchase of PlayGold is final and non-refundable. If we terminate your PlayFirst account because you have violated our Terms of Service, then all PlayGold in your PlayFirst account will be forfeited without further notice to you and without compensation to you or liability to PlayFirst, Inc. PlayFirst may terminate the use of PlayGold at any time for any reason by providing notice on the Site or directly to you via email. In such event, PlayFirst will allow you at least ten days to redeem your PlayGold for designated eligible Site Content. PlayGold is non-transferable and non-exchangeable. Any transfer or exchange of PlayGold shall be null and void.
Privacy. Your privacy is important to us. For more information, please see our Privacy Policy (located at http://www.playfirst.com/privacypolicy.html), which is incorporated into these Terms of Service.
Mailings. By indicating you want to receive email updates from PlayFirst (such as during your PlayFirst account creation or by otherwise submitting your email address to PlayFirst and requesting such email), you are consenting to receive e-mails from us about our products, services, and other news. These Terms of Service will apply to all such e-mails (and such e-mails will be considered part of the Site Content). If you indicate during your PlayFirst account creation that you would like to be contacted by third parties, you agree that PlayFirst may share your information, including email address, with such third parties.
Beta Test Program (the PlayFirst "FirstPeek" Program). You may be given the opportunity to beta test new games and site features. If you are invited to apply to the FirstPeek Program, you will be asked to complete an on-line form. If you become part of the FirstPeek Program, we may invite you to play pre-release, or beta, versions of games for the sole purpose of evaluating the games and identifying errors. You specifically acknowledge that the games you test may contain material errors.
PlayFirst may terminate the FirstPeek Program generally, the beta test of a particular game, or your participation at any time, with or without notice, and with or without reason.
Beta tests are confidential. The beta games are confidential PlayFirst information. If you participate in a beta test, you will use your best efforts to safeguard and to prevent unauthorized access, copy, disclosure or use of the beta games. You will carry out the testing personally and not provide access to beta games to any other person. You agree that breach of the above confidentiality obligations will cause irreparable harm to PlayFirst, and PlayFirst is entitled to injunctive relief and other remedies to prevent the breach or threatened breach of your obligations. Your obligation to keep the beta games confidential will continue until PlayFirst publicly distributes, or has otherwise disclosed to the public through no fault of yours, each of the games and the content and technology that you are provided access to.
By playing a beta game, you agree that: (i) you play the beta game at your own risk and that you know that the game is likely to include known or unknown bugs and errors; (ii) any value or status indicators that you achieve through game play may be erased or disabled at any time; (iii) PlayFirst has no obligation to make these games available to you for a specific period of time or at all; and (iv) PlayFirst's Terms of Service apply to your use of the games during your participation in the beta program.
If you work in the video game industry in any capacity, you must disclose this material fact during the application process. You may be excluded in PlayFirst's sole discretion. By participating in the FirstPeek Program or any individual beta test, you represent and warrant that all information you have provided and will provide to PlayFirst is truthful and accurate.
Nothing herein shall be construed as granting you any rights or privileges of any kind with respect to the beta games other than to provide Feedback to PlayFirst. Obligations herein are in addition to those that may be contained in any End User License Agreement associated with any game.
Intellectual Property.
Trademarks. PlayFirst and other related trade names, graphics, logos, and service marks used on the Site are the trademarks of PlayFirst and may not be used by you without our prior written permission.
Copyright Infringement. If you believe that your copyright-protected work has been copied and posted on the Site in a way that constitutes copyright infringement, then please contact our DMCA Agent with the following information (please consult your attorney to better understand your rights and obligations under Section 512(c) of the Copyright Act and other laws):
Reasonably sufficient details to enable us to identify the work claimed to be infringed or, if multiple works are claimed to be infringed, a representative list of such works (for example: title, author, any registration or tracking number, URL);
Reasonably sufficient detail to enable us to identify and locate the material that is claimed to be infringing (for example a link to the page that contains the material);
Your contact information so that we can contact you (for example, your address, telephone number, email address);
A statement that you have a good faith belief that the use of the material identified in sub-section ii above is not authorized by the copyright owner, its agent, or the law;
A statement, under penalty of perjury, that the information in the notification is accurate and that you are authorized to act on behalf of the owner of the exclusive right that is alleged to be infringed.
Your physical or electronic signature.
Please send this written notice to our designated agent as follow:
DMCA Agent: Hung Chang
PlayFirst, Inc.
120 Montgomery St., Ste. 1370
San Francisco, CA 94104
Fax: (415) 738-4619
Email:
Counter-Notification. If material that you have posted to the Site has been taken down, you may file a counter-notification that contains the following details:
Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or disabled;
A statement, under penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material in question;
Your name, address and telephone number;
A statement that you consent to the jurisdiction of the Federal District Court for judicial district in which your address is located or, if your address is outside of the USA, for any judicial district in which PlayFirst, Inc. may be found and that you will accept service of process from the person who submitted a notice in compliance with the section (c)(1)(C) of the DMCA, as generally described above;
Your physical or electronic signature.
Please send this written notice to our designated agent as follow:
DMCA Agent: Hung Chang
PlayFirst, Inc.
120 Montgomery St., Ste. 1370
San Francisco, CA 94104
Fax: (415) 738-4619
Email:
Please note that under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing, or that the material or activity was removed or disabled by mistake may be subject to liability. Please also be advised that we enforce a policy of terminating the accounts of repeat infringers. A repeat infringer includes any user who has made two or more postings for which we receive a notice of infringement under this DMCA Notice and Takedown Procedure.
Third Party Links. Our provision of a link to any other website or location is for your convenience only and does not signify our endorsement of such other website or location or its contents. We have no control over, do not review, and cannot be responsible for, these outside websites or their content.
Disclaimer of Warranties. THE SITE (INCLUDING SITE CONTENT) IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. PLAYFIRST EXPRESSLY DISCLAIMS ALL CONDITIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE CONDITIONS OR WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, NON-INFRINGEMENT, ACCURACY, QUIET ENJOYMENT, AND SYSTEM INTEGRATION WITH RESPECT TO THE SITE OR THE SITE CONTENT. PLAYFIRST DOES NOT WARRANT THAT THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE.
Limitation of Liability. (A) TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL PLAYFIRST BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SITE (INCLUDING THE SITE CONTENT) OR THESE TERMS OF SERVICE, INCLUDING WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT PLAYFIRST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ON ANY THEORY OF LIABILITY. (B) IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SITE. (C) PLAYFIRST'S AGGREGATE MAXIMUM POTENTIAL LIABILITY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATED TO THE SITE (INCLUDING PRODUCTS AND SERVICES SOLD THEREIN) SHALL BE THE GREATER OF (I) THE TOTAL AMOUNT PAID BY YOU TO PLAYFIRST IN THE TWELVE (12) MONTHS PRIOR TO THE CLAIM LESS THE PRO-RATA VALUE OF ANY SERVICE YOU RECEIVED DURING THAT PERIOD; OR (II) ONE U.S. DOLLAR ($1). MULTIPLE CLAIMS WILL NOT INCREASE THIS LIMIT. (D) YOU AGREE THAT THE DAMAGE EXCLUSIONS IN THESE TERMS OF SERVICE SHALL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Exclusions and Limitations. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent that we may not, as a matter of applicable law, disclaim any implied warranty or limit our liabilities, the scope and duration of such warranty and the extent of our liability shall be the minimum permitted under such applicable law.
Indemnification. You agree to indemnify, defend, and hold harmless PlayFirst, its officers, directors, partners, employees, consultants, and agents, from and against any third party claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys' fees and court costs) that such parties may incur as a result of or arising from (a) any claim of intellectual property infringement relating to any game or game proposal you submit to us; (b) your violation of these Terms of Service; or (c) any viruses, trojan horses, worms, time bombs, cancelbots, spyware, or other similar harmful programming routines input by you into the Site.
Modifications to these Terms of Service. We may change these Terms of Service from time to time. We will notify you of any such material changes by posting the amended Terms of Service on this Site. Your continued use of this Site following any such changes shall indicate your acknowledgement of such changes and agreement to be bound by the updated Terms of Service.
General Provisions. The Terms of Service constitute the entire and exclusive and final statement of the agreement between you and PlayFirst with respect to the subject matter hereof, and govern your use of the Site, superseding any prior agreements or negotiations between you and PlayFirst with respect to the subject matter hereof. The Terms of Service and the relationship between you and PlayFirst shall be governed by the laws of the State of California, without giving effect to any choice of laws principles that would require the application of the laws of a different country or state. Any claim relating to the Terms of Service, or your use of, the Site must be brought exclusively in a court of competent jurisdiction, federal or state, located within the State of California, and in no other jurisdiction. You further consent to personal jurisdiction and venue in, and agree to service of process issued or authorized by, any such court. Our failure to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. If any provision of the Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and that the other provisions of the Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Site, Submissions of any games or game proposals by You, or the Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in the Terms of Service are for convenience only and have no legal or contractual effect. Sections and provisions which by their nature survive expiration or termination of the Terms of Service, including without limitation liability and warranty disclaimers and limitations, shall survive expiration or termination.
Should you have any questions or concerns regarding these Terms of Service, please contact us through our support form (located at http://www.playfirst.com/help/support.html) or at:
PlayFirst,
Inc.
120 Montgomery Street, Suite 1370
San Francisco, CA 94104
