Last Revised: August 26 2015
- ACCEPTANCE OF TERMS
PLEASE REVIEW THE TOU CAREFULLY. BY REGISTERING FOR AN ACCOUNT OR ACCESSING OR OTHERWISE USING THE SERVICE OR ANY OF ITS COMPONENTS, YOU AGREE TO BE BOUND BY THE TOU, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO YOU. IF YOU DO NOT AGREE TO BE BOUND BY THE TOU, DO NOT ACCESS OR USE THE SERVICE.
If you are under 13 years of age, you may not use the Service. If you are at least 13 years of age but under 18 years of age or the age of majority in your jurisdiction, whichever is greater, you represent and warrant that you have obtained the consent of a parent or guardian before accessing or using the Service. Otherwise, you represent and warrant that you are: (i) at least 18 years of age or the age of majority in your jurisdiction, whichever is greater; and (ii) of legal age to form a binding contract. In all cases, you represent and warrant that you are not a person barred from accessing or using the Service under the laws of your country of residence or any other applicable jurisdiction. Some parts of the Service may have different age requirements, which will be noted in those parts of the Service.
- GRANT OF RIGHTS
(a) Subject to your compliance with the TOU in all material respects, TimePlay grants you a limited, non- exclusive, non-transferable, non-sublicensable, revocable license to: (i) access, view and participate in the content including the interactive content from the Service for your personal, non-commercial use only.
(b) To the extent that a Site provides online access to any software, application or other similar online components, then, subject to your compliance with the TOU in all material respects, TimePlay grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use such components only in executable, machine-readable, object code form within the online platform provided by TimePlay for accessing such components and only for your personal, non-commercial purposes.
(c) Your access to and use of the Service must further comply in all material respects with any usage guidelines posted by TimePlay.
(d) TimePlay further makes available mobile applications for access to certain content from TimePlay (“Apps”). Your access to and use of Apps is subject to the applicable end user license agreement for each App.
(a) In registering for the Service, you agree to: (i) provide true, accurate, current and complete information about yourself as prompted by the Service’s registration form (the “Registration Data”); and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or TimePlay reasonably suspects that you have done so, TimePlay may suspend or terminate your account.
(b) You are fully responsible for all activities that occur under your account. You may not share your account or password with anyone. You agree to notify TimePlay immediately of any unauthorized use of your account or password or any other similar breach of security.
- RIGHTS TO CONTENT
All information, data, text, software, music, sounds, photographs, graphics, videos, messages, scripts, tags and/or other materials accessible through the Service, whether publicly posted or privately transmitted (“Content”) is owned or licensed by TimePlay. You agree that TimePlay and its licensors own all rights, title and interest in the Service and all materials within the Service. Except as expressly permitted by the TOU, you may not: (i) use, distribute, transmit, reproduce, modify, adapt, create derivative works from, publicly perform or publicly display any Content; (ii) frame or utilize any framing technique to enclose any Content; (iii) decompile, decode, disassemble, reverse engineer, reverse assemble or otherwise attempt to discover any source code or the architectural framework for any software within or associated with the Service; or (iv) access the Service for purposes of developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the Service or any products or services offered by TimePlay. TimePlay reserves all rights not expressly granted to you.
- USER CONDUCT
In connection with your access to or use of the Service, you shall not:
(a) impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with any person or entity;
(b) act in a manner that negatively affects the ability of other users to access or use the Service;
(c) take any action that imposes an unreasonable or disproportionately heavy load on the Service or its infrastructure;
(d) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
(e) use spiders, crawlers, robots or any other similar means to access the Service or substantially download, reproduce or archive any portion of the Service;
(f) sell, share, transfer, trade, loan or exploit for any commercial purpose any portion of the Service, including, but not limited to, your user account and password; or
(g) violate any applicable local, state, provincial, federal, national or international law or regulation.
If you elect to provide or make available to TimePlay any suggestions, comments, ideas, improvements or other feedback relating to the Service (“Suggestions”), TimePlay shall be free to use, disclose, reproduce, have made, modify, license, transfer and otherwise utilize and distribute your Suggestion in any manner, without credit or compensation to you.
- DEALINGS WITH ADVERTISERS AND OTHER THIRD PARTIES
Your dealings with advertisers and other third parties who market, sell, buy or offer to sell or buy any goods or services on the Service, including payment for or delivery of such goods or services and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the advertiser or other third party. You agree that TimePlay shall not be liable for any loss or damage of any kind incurred as a result of any such dealings.
- LINKS AND EXTERNAL MATERIALS
- MODIFICATIONS TO THE SERVICE
TimePlay reserves the right at any time to modify or discontinue, temporarily or permanently, the Service (or any portion thereof) with or without notice. You agree that TimePlay shall not be liable to you or any third party for any modification, suspension or discontinuation of the Service (or any portion thereof).
- TERMINATION AND SURVIVAL
In the event that you violate the TOU, all rights granted to you under the TOU shall be terminated immediately, with or without notice. The provisions of the TOU that should by their nature survive termination of the TOU shall survive such termination.
You agree to indemnify and hold TimePlay and its parents, subsidiaries, affiliates, officer, directors, employees, agents, partners and licensors (collectively, “TimePlay Parties”) harmless from and against any claim, demand, loss, damage, cost, liability and expense, including reasonable attorneys’ fees, resulting from or arising out of your: (a) access to or use of the Service; (b) violation of the TOU or any law or regulation; or (c) violation of any rights of another party.
- DISCLAIMER OF WARRANTIES
(a) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TIMEPLAY PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING, BUT, NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(b) TIMEPLAY PARTIES MAKE NO WARRANTY AND PROVIDE NO CONDITIONS THAT: (i) THE SERVICE WILL MEET YOUR REQUIREMENTS; (ii) ACCESS TO THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE.
- LIMITATION OF LIABILITY
(a) YOU ACKNOWLEDGE AND AGREE THAT TIMEPLAY PARTIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS, EVEN IF TIMEPLAY PARTIES HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT SHALL TIMEPLAY’S TOTAL LIABILITY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATING TO THE TOU OR YOUR ACCESS TO OR USE OF THE SERVICE EXCEED THE GREATER OF US$50 OR THE AMOUNT (IF ANY) PAID BY YOU TO TIMEPLAY FOR ACCESS TO OR USE OF THE SERVICE IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH ANY SUCH CLAIM AROSE.
(b) CERTAIN STATE AND PROVINCIAL LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
- GOVERNING LAW
For Canadian Residents: The TOU shall be governed by and construed and enforced in accordance with the laws of Ontario and the laws of Canada applicable therein, without regard to conflict of laws principles. Applicable laws may require that the laws of the Canadian jurisdiction in which you reside apply, in which case the laws of such jurisdiction will apply.
For All Others: The TOU shall be governed by and construed and enforced in accordance with the United States Federal Arbitration Act, other applicable federal laws and the laws of the State of New York, without regard to conflict of laws principles.
For All Users: The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to the TOU.
- BINDING ARBITRATION AND CLASS ACTION WAIVER
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO THE TOU OR YOUR ACCESS TO OR USE OF THE SERVICE, INCLUDING, BUT NOT LIMITED TO, THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THE TOU, SHALL BE RESOLVED BY BINDING ARBITRATION RATHER THAN IN COURT, EXCEPT THAT YOU MAY ASSERT CLAIMS IN SMALL CLAIMS COURT IF YOUR CLAIMS QUALIFY. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.
The arbitration will be conducted by the American Arbitration Association (AAA) under its then-applicable rules including (as appropriate) its Supplementary Procedures for Consumer-Related Disputes. The AAA’s rules are available at http://www.adr.org. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules.
The arbitration shall be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, you agree that:
For Canadian Residents: The hearing will be conducted in Toronto, Ontario, Canada or the city within Canada in which you reside; and
For All Others. The hearing will be conducted City of New York, New York or the city within the United States in which you reside.
The decision of the arbitrator shall be final and binding. Judgment on the arbitration award may be entered in any court of competent jurisdiction.
WE EACH AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS RELATING IN ANY WAY TO THE TOU OR YOUR ACCESS TO OR USE OF THE SERVICE WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL AND AGREE THAT SUCH CLAIM SHALL BE BROUGHT ONLY IN:
FOR CANADIAN RESIDENTS: A COURT OF COMPETENT JURISDICTION IN TORONTO, ONTARIO, CANADA; OR
FOR ALL OTHERS. THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK OR, IF FEDERAL JURISDICTION IS NOT AVAILABLE, IN THE SUPREME COURT OF NEW YORK COUNTY.
YOU HEREBY SUBMIT TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH PROCEEDING.
Notwithstanding anything to the contrary, you and TimePlay may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect our intellectual property rights, whether in aid of, pending or independently of the resolution of any dispute pursuant to the arbitration procedures set forth above.
- NO THIRD-PARTY BENEFICIARIES
You agree that, except as otherwise expressly provided in the TOU or any end user license agreement for an App, there shall be no third party beneficiaries to the TOU.
- GENERAL PROVISIONS
The TOU constitutes the entire agreement between you and TimePlay concerning your access to and use of the Service. It supersedes all prior or contemporaneous oral or written negotiations and agreements between you and TimePlay with respect to such subject matter. The failure of TimePlay to exercise or enforce any right or provision of the TOU shall not constitute a waiver of such right or provision. If any provision of the TOU is held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of the TOU. It is the express wish of the parties that the TOU and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que tous les documents y afférents soient rédigés en anglais.