Terms of Use

June 1, 2017

 

IMPORTANT NOTICE: THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN SECTION 4
PRODUCT LICENSE AND SERVICE AGREEMENT (the “Agreement”)
By accessing this site, you are entering into a contract with Ultimate Source Limited. Hijinx and Hijinx Alive are registered trademarks of Ultimate Source Limited hereinafter referred to as “Hijinx”.  You agree that your use of this Hijinx website, application (“App”), account, product, service or other property (including Service and/or Service Provided Content as defined below), including any downloadable content associated with any App or other software (collectively “Product” or “Products”), shall be subject to the terms of this Agreement.

All rights not expressly granted to you are reserved by Hijinx and its licensors. Use of the Product is also subject to acceptance of Hijinx’s Privacy Policy available at https://www.hijinx.com/privacy-policy/.

 

Please read and review both this Agreement and the Privacy Policy before using this Product. If you do not agree with or wish to accept the terms of either this Agreement or the Privacy Policy then please do not use the Product. By using this Product or otherwise accepting this Agreement and the Privacy Policy, you agree to be bound by this Agreement and the Privacy Policy and represent you satisfy all of the eligibility requirements below.

 

 

1. ELIGIBILITY

 

1. In order to use certain Products you may be required to:

 

meet minimum age requirements – see Sections 1 and 9

 

agree to Third Party Terms – see Section 13

 

1. Subject to any applicable Product age ratings, restrictions and Account requirements, Products are made available to individuals aged 13 or older. If you are aged 13 but under 18 years of age, you and your parent or guardian must review this Agreement and the Privacy Policy together. Parents/ guardians are jointly and severally liable for all acts and omissions of their children aged under 18 years when using a Product. Hijinx recommends that parents and guardians familiarize themselves with parental controls available on Devices they provide to their child and accompany their child if aged under 13 years of age, or the applicable age in your jurisdiction, when online.

 

2. ACCESS AND COSTS

 

You acknowledge and agree that you will provide at your own cost and expense the equipment, Internet or other connection charges, required to access and use the Product. Hijinx makes no warranty that the Product can be accessed on all personal computers, smartphones, tablets or other devices (each, a “Device”, or in the plural, “Devices”), by means of any specific Internet or other connection provider, or in all countries.

 

YOU ARE SOLELY RESPONSIBLE FOR ANY THIRD PARTY COSTS YOU INCUR TO USE THE PRODUCT.

 

3. LICENSE

 

1. Hijinx grants you a personal, limited, non-exclusive license to use the Product for your non-commercial use. To the fullest extent permitted by applicable law, this license granted to use the Product is non-transferable. You may not rent, lease, lend, sell, redistribute or sublicense the Product. You may not copy (except as expressly permitted by this license and any other applicable terms, conditions, or usage rules), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Product, any updates, or any part thereof (except as and only to the extent allowed by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the licensed application). You may not remove or alter Hijinx’s or its licensors trademarks or logos, or legal notices included in the Product or related assets. Any attempt to use the Product in breach of the terms of this Agreement is a violation of the rights of Hijinx and its licensors. The terms of this Agreement will govern any upgrades provided by Hijinx that replace and/or supplement the Product, unless such upgrade is accompanied by a separate (and/or updated) agreement in which case the terms of that agreement will govern.

 

1. If the Product is an App then unless expressly authorized by Hijinx in writing installation and use is restricted to an authorized Device; and you are prohibited from making a copy of the App available on a network where it could be used or downloaded by multiple users.

 

1. The license rights granted to you herein are also subject to the limitations set forth below. Any use of the Product in violation of these limitations is a material breach of the Agreement, subjects you to immediate revocation of your license, and will be regarded as an infringement of Hijinx’s copyrights and other rights in and to the Product. You agree that you will not, under any circumstances:

 

1. use, develop, host automation software (bots), or any other unauthorized third-party software in connection with the Product;
2. exploit or reverse engineer the Product (or any of its parts), for any commercial purpose;

iii.    use any unauthorized third-party software that intercepts, “mines”, or otherwise collects information from or through the Product;

1. except as authorized by Hijinx in writing, host, provide or develop matchmaking services for the Product, or intercept, emulate or redirect the communication protocols used by Hijinx in any way, for any purpose, including without limitation unauthorized play over the internet, network play, or as part of content aggregation networks;
2. facilitate, create or maintain any unauthorized connection to the Product, including without limitation (a) any connection to any unauthorized server that emulates, or attempts to emulate, the Product; and (b) any connection using programs or tools not expressly approved by Hijinx in writing;
3. violate any applicable law or regulation in connection with your use of Product;

vii.    disrupt or assist in the disruption of any computer, device or server used to support the Product;

viii.    interfere or attempt to interfere with the operation of the Product in any way through any means or device including, but not limited to, launching a denial of service attack, spamming, hacking, or uploading computer viruses or time bombs; or

1. reproduce, distribute, display, transfer or use any part of the Product except as expressly authorized by Hijinx; or
2. scrape, copy, aggregate, redistribute, alter, reproduce or re-use any user’s (whether specific to any particular user or as an aggregation) information accessible through the Product. You understand that access to the Product may result in access to other user’s names, screen names, email addresses and other information as set out in the Privacy Policy available at https://www.hijinx.com/privacy-policy/ (“Personal Information”) which is protected by applicable data protection and privacy laws and regulations. You understand, acknowledge and agree that any Personal Information from other users constitute the confidential information of Hijinx.

 

4. BINDING ARBITRATION AND CLASS ACTION WAIVER

 

READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

 

These BINDING ARBITRATION AND CLASS ACTION WAIVER provisions apply to you if you are domiciled in and/or acquired and use the Product in the United States. These provisions may also apply to you if you are domiciled in and/or acquired and use the Product from outside the United States. See JURISDICTION AND APPLICABLE LAW below for details.

 

Initial Dispute Resolution: Hijinx’s Customer Support department is available by email at [email protected] “ATTN: Support” to address any concerns you may have regarding the Product. Most concerns are quickly resolved in this manner to our customers’ satisfaction. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.

 

Binding Arbitration: If the parties do not reach an agreed upon solution within a period of 30 days from the time informal dispute resolution is pursued pursuant to the paragraph above, then either party may initiate binding arbitration as the sole means to formally resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to this Agreement (including its interpretation, formation, performance and breach), the parties’ relationship with each other and/or your use of the Product shall be finally settled by binding arbitration administered by an arbitrator selected by mutual agreement of the parties. This arbitration provision is made pursuant to a transaction involving interstate commerce, and the Federal Arbitration Act (the “FAA”) shall apply to the interpretation, applicability, enforceability and formation of this Agreement notwithstanding any other choice of law provision contained in this Agreement. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of this Agreement, including without limitation any claim that all or any part of this Agreement is void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.

 

Location: If you are a resident of the United States, arbitration will take place at any reasonable location within the United States convenient for you. For residents outside the United States, arbitration shall be initiated in Chicago, IL, and you and Hijinx agree to submit to the personal jurisdiction of any federal or state court in Chicago, Illinois, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.

 

Class Action Waiver: The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND HIJINX AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.

 

Exception – Litigation of Intellectual Property and Small Claims Court Claims: Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring an action in state or federal court that only asserts claims for patent infringement or invalidity, copyright infringement, moral rights violations, trademark infringement, and/or trade secret misappropriation, but not, for clarity, claims related to the license granted to you for the Product under this Agreement. Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.

 

30 Day Right to Opt Out: You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in the “Binding Arbitration”, “Location”, and “Class Action Waiver” paragraphs above by sending written notice of your decision to opt-out to the following address: Ultimate Source Limited/Hijinx, 1801 S Meyers Road, Suite 400, OakBrook Terrace, IL 60181, USA, Attn: Legal. The notice must be sent within 30 days of purchasing the Product (or if no purchase was made, then within 30 days of the date on which you first access or use the Product and agree to these terms); otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt-out of these arbitration provisions, Hijinx also will not be bound by them.

 

Changes to this Section: Hijinx will provide 60-days’ notice of any changes to this Section. Changes will become effective on the 60th day and will apply prospectively only to any claims arising after the 60th day.

 

5. JURISDICTION AND APPLICABLE LAW

 

The Product is made available subject to the terms of this Agreement.

 

You are contracting with Ultimate Source Limited, 1801 S Meyers Road, Suite 400, OakBrook Terrace, IL 60181, USA and any claims arising out of this Agreement (including interpretation, claims for breach, and all other claims (including consumer protection, unfair competition, and tort claims)) will be subject to the laws of the State of Illinois, without reference to conflict of laws principles. If any court or arbitrator determines that the “Class Action Waiver” paragraph set forth above is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then any and all claims arising out of this Agreement (including interpretation, claims for breach, and all other claims (including consumer protection, unfair competition, and tort claims)) shall be decided under the laws of the state where you were a citizen at the time you obtained or bought the Product that was subject to this Agreement. In addition, you and we irrevocably consent to the exclusive jurisdiction and venue of state or federal courts in Chicago, IL to resolve any claims that are subject to exceptions to the arbitration agreement described in BINDING ARBITRATION AND CLASS ACTION WAIVER above, or otherwise determined not to be arbitrable.

To the fullest extent permitted by applicable law, if any user outside of the United States is entitled to commence and/or participate in legal proceedings within the United States, then that user agrees to be bound by the BINDING ARBITRATION AND CLASS ACTION WAIVER provisions above.

 

6. SERVICES

 

Separate from any license to use the intellectual property of Hijinx or its licensors set out in Section 3 above, some Products also contain features or content that are only accessible through online hosting and/or other online services and functionality provided by Hijinx (“Services”). As detailed in Section 2, you will provide Internet access necessary to use these services at your own cost and expenses. All such Services are provided to you by Hijinx on a personal, non-commercial and non-transferable basis. All such Services are provided subject to the terms of this Agreement and Hijinx’s Privacy Policy, and such additional terms, if any, as may be applicable to such Services.

 

7. USE OF DATA

 

FOR FULL DETAILS ABOUT HOW HIJINX COLLECTS, STORES AND USES PERSONAL AND OTHER INFORMATION, PLEASE SEE THE PRIVACY POLICY AVAILABLE AT https://www.hijinxtoys.com/privacy-policy/.

 

YOU ARE RESPONSIBLE FOR REVIEWING, AND AGREE TO REVIEW, HIJINX’S PRIVACY POLICY AND THE PRIVACY POLICIES LISTED IN THE HIJINX PRIVACY POLICY, INCLUDING THOSE OF APPLICABLE THIRD PARTIES THAT MAY COLLECT INFORMATION VIA THIS PRODUCT. IF YOU DO NOT WISH TO REVIEW THOSE PRIVACY POLICIES OR IF YOU ARE CONCERNED ABOUT THE INFORMATION THEY MAY COLLECT, PLEASE DO NOT USE THE PRODUCT.

 

8. COPYRIGHT NOTICE

 

1. Hijinx respects the intellectual property rights of others and expects its players and the users of its services to do the same. If you believe that any content appearing in the Product and/or UGC has been copied in a way that constitutes copyright infringement, please forward the following information to the Copyright Agent named below.

 

1. Please be aware that to be effective, your copyright infringement notification must comply with the Digital Millennium Copyright Act (“DMCA”). You are encouraged to review 17 U.S.C. § 512(c)(3) of the DMCA or consult with an attorney prior to sending a notice hereunder.

 

1. To file a copyright infringement notice, you will need to send a written communication that includes the following to the address listed below:

 

1. Your name, address, telephone number, and email address;

 

1. A description of the copyrighted work that you claim has been infringed;

 

1. The exact URL or a description of where the alleged infringing material is located;

 

1. 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;

 

1. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and

 

1. A statement by you, 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.

 

Ultimate Source Limited/Hijinx,
Attn: LEGAL
1801 S Meyers Road, Suite 400,
OakBrook Terrace, IL 60181, USA
E-Mail: [email protected]

“Attn: Legal” in subject of email

 

1. Please note that the DMCA provides that you may be liable for damages (including costs and attorney fees) if you knowingly misrepresent that material or activity is infringing. Please also note that the information provided in your copyright infringement notice may be provided to the person responsible for the allegedly infringing material.

 

9. HIJINX ACCOUNTS

 

1. REGISTRATION

If the Product requires you to provide registration information either to access or to receive more information, all such requirements to provide information are subject to both this Agreement and the Hijinx Privacy Policy which are incorporated by reference herein, together with any other Third Party Terms. You have the option of providing such information or not. However, should you choose not provide the information, your access to the Product may be limited or non-available. If you do decide to provide us with the requested information, you represent and warrant that you will provide only true, current and accurate information. You agree not to impersonate any person or entity or misrepresent your identity or affiliation with any person or entity. From time to time, you may be asked to confirm your registration information (such as your email address) to continue using the Product; if you choose not to do so, your access to the Product may be restricted or terminated. You agree to update your registration data to keep it current and accurate within a reasonable time after any change to that data.

 

1. ELIGIBILITY

You affirm that you are at least the age specified in any applicable age rating or restriction specified for the Product, and are fully able and competent to enter into the terms, conditions, obligations, representations and responsibilities set forth in this Agreement, and to abide and comply with this Agreement.

 

Subject to any applicable age ratings or other restrictions, you may establish an Hijinx account only if (i) you are 18 years of age and a “natural person” in your country of residence, or (ii) if your parent or guardian reads and accepts the terms of this Agreement and the Hijinx Privacy Policy on their and your behalf if you are aged 13 or over but under 18 years of age. Corporations, limited liability companies, partnerships and other legal or business entities may not establish an account. Individuals prohibited by Hijinx from using the Product may not create or use an account. By accepting this Agreement, you hereby represent and warrant that you meet these eligibility requirements.

 

1. PARENTS AND GUARDIANS

 

You agree that you will be responsible for all uses of the account by your child whether or not such uses were authorized by you. Nothing herein limits Hijinx’s rights to suspend, terminate or delete any account.

 

1. ACCOUNT SUSPENSION/TERMINATION

 

HIJINX MAY SUSPEND, TERMINATE, MODIFY, OR DELETE ANY ACCOUNT AT ANY TIME FOR ANY REASON OR FOR NO REASON, WITH OR WITHOUT NOTICE TO YOU, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. For purposes of explanation and not limitation, many account suspensions, terminations and/or deletions may be the result of violations of this Agreement.

 

10. CONSENT TO MONITOR

 

Hijinx may, with or without notice to you, disclose your Internet Protocol (IP) address(es), personal information, and other information about you and your activities consistent with the Hijinx Privacy Policy available at https://www.Hijinxtoys.com/legal/privacy-policy.

 

11. SUPPORT

 

If you have a complaint regarding the Product or desire further information on use of a Product, email Hijinx’s Customer Support at [email protected] and include ATTN: PRODUCT SUPPORT in the email subject.

 

 

12. TERMINATION.

 

The license granted under this Agreement is effective until terminated by you or Hijinx. Your rights under this Agreement will terminate automatically without notice from Hijinx if you fail to comply with any term(s) of this Agreement or applicable Third Party Terms. Upon termination of the license, you shall cease all use of the Product, and destroy all copies, full or partial, of the Product.

Hijinx reserves the right to terminate this Agreement without cause on immediate written notice.

 

 

13. THIRD PARTIES

 

The Product may enable, or require, access to other third party materials, services or web sites (“Third Party Materials”). Use of Third Party Materials may require additional terms of service.

 

You understand that by using any Third Party Materials you may encounter content that may be deemed offensive, indecent, or objectionable. You agree (i) to use Third Party Materials at your sole risk; (ii) that Hijinx shall not have any liability to you for Third Party Materials; (iii) Hijinx is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials. Third Party Materials are provided solely as a convenience to you.

 

Your right to use the Product is also predicated on your compliance with any applicable terms of service, terms of use, and privacy policies you have agreed and accepted with Third Parties (“Third Party Terms”).

 

Applicable third parties (such as your console account, mobile phone, or internet access account provider) may also impose limits on the use of or access to certain Products, in any case and without notice or liability. You agree that Hijinx shall not be liable for any acts or omissions of such third parties.

 

14. WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY

 

1. WARRANTY DISCLAIMER.

 

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCT IS PROVIDED “AS IS” AND HIJINX DOES NOT WARRANT THAT THE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, THAT THE PRODUCT IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ALL OF THE PRODUCT CONTENT WILL BE ACCURATE. TO THE EXTENT PERMITTED BY APPLICABLE LAW, HIJINX EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE, AND NON-INFRINGEMENT.

 

AUSTRALIA: YOU HAVE CERTAIN STATUTORY GUARANTEES UNDER AUSTRALIAN CONSUMER LAW AND NOTHING IN THE AGREEMENT IS INTENDED TO AFFECT THOSE RIGHTS. PRODUCTS THAT YOU HAVE PURCHASED COME WITH GUARANTEES THAT CANNOT BE EXCLUDED UNDER AUSTRALIAN CONSUMER LAW: YOU ARE ENTITLED TO A REFUND FOR A MAJOR FAILURE AND COMPENSATION FOR ANY OTHER REASONABLY FORESEEABLE LOSS OR DAMAGE: YOU ARE ALSO ENTITLED TO HAVE GOODS REPAIRED OR REPLACED IF GOODS FAIL TO BE OF ACCEPTABLE QUALITY AND THE FAILURE DOES NOT AMOUNT TO A MAJOR FAILURE.

 

 

1. LIMITATION OF LIABILITY.

 

1. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER HIJINX NOR ITS PARENT, SUBSIDIARIES, LICENSORS OR AFFILIATES SHALL BE LIABLE IN ANY WAY FOR DAMAGE OR LOSS OF ANY KIND RESULTING FROM (A) THE USE OF OR INABILITY TO USE THE PRODUCT INCLUDING WITHOUT LIMITATION LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION; (B) THE LOSS OR DAMAGE TO USER PROFILE INFORMATION; OR (C) INTERRUPTIONS OF SERVICE INCLUDING WITHOUT LIMITATION ISP DISRUPTIONS, SOFTWARE OR HARDWARE FAILURES, FAILURES OF ANY THIRD PARTY BILLING SOLUTIONS OR OTHER SERVICES, OR ANY OTHER EVENT WHICH MAY RESULT IN A LOSS OF DATA OR DISRUPTION OF SERVICE. IN NO EVENT WILL HIJINX BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, REMOTE, SPECULATIVE, PUNITIVE OR CONSEQUENTIAL DAMAGES.

 

1. IN NO CASE SHALL HIJINX’S LIABILITY EXCEED THE AMOUNT THAT YOU PAID TO US DURING THE TWELVE (12) MONTHS PRIOR TO THE TIME YOUR CAUSE OF ACTION AROSE.

 

iii.    IMPORTANT INFORMATION RELATING TO WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY: BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES OR THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL, INCIDENTAL, OR OTHER TYPES OF DAMAGES, IN SUCH STATES OR JURISDICTIONS, YOU MAY HAVE DIFFERENT OR ADDITIONAL RIGHTS ACCORDING TO THE APPLICABLE LAWS OF COUNTRY FROM WHICH YOU VALIDLY ACQUIRED AND USE THE PRODUCT AND IN WHICH CASE THE LIABILITY OF HIJINX AND ITS AFFILIATES SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

 

15. INDEMNIFICATION

 

You agree to indemnify, defend and hold harmless Hijinx and its affiliates, and their respective officers, directors, owners, agents, employees, contractors, information providers and licensors (“Indemnified Party”, and collectively the “Indemnified Parties”) from and against any claims, liability, losses, costs and expenses (including attorneys’ fees) incurred by an Indemnified Party in connection with (i) any breach by you of the Agreement, and/or (ii) your posting or uploading any UGC.

 

Hijinx reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with Hijinx’s defense of such claim.

 

16. AVAILABILITY

 

Except as otherwise set forth herein, Hijinx does not guarantee that any particular Product or Service Provided Content will be available at all times or at any given time or that Hijinx will continue to offer the Product or Service Provided Content for any particular length of time. Hijinx may change and update the Product or Service Provided Content without notice to you. Hijinx makes no warranty or representation regarding the availability of online Product features and reserves the right to modify or discontinue online Product features in its discretion without notice, including for example, ceasing an online service for economic reasons due to a limited number of users continuing to make use of the online service over time.

 

In addition, Products that may be accessed from, displayed on or linked to from a Device are not available in all languages or in all countries. To the fullest extent permitted by applicable law (i) Hijinx, and its licensors, reserve the right to change, suspend, remove, or disable access to any Product at any time without notice, and (ii) Hijinx will not be liable for the removal of or disabling of access to any Product.

 

17. OWNERSHIP

 

All title, ownership, and intellectual property rights in and to the Product (including, but not limited to, any titles, trademarks, service marks, and trade names, computer code, themes, objects, characters, character names, stories, dialog, catch phrases, locations, concepts, artwork, animations, sounds, musical compositions, audio-visual effects, methods of operation, moral rights, and any related documentation) are owned by Hijinx and/or Hijinx’s licensor(s). The Product is licensed, not sold, for your use. Your license confers no title or ownership in this Product and should not be construed as a sale of any rights in the Product.

 

YOU ACKNOWLEDGE AND AGREE THAT, OTHER THAN LICENSE GRANTED TO YOU BY THIS AGREEMENT, YOU SHALL HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN ANY PRODUCT OR SERVICE PROVIDED CONTENT, AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ALL RIGHTS IN AND TO SUCH PRODUCTS AND SERVICE PROVIDED CONTENT ARE AND SHALL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF HIJINX AND ITS LICENSORS.

 

You agree that all Products and Third Party Materials contain proprietary content, information and material that are protected by applicable intellectual property and other laws, including but not limited to copyright, and that you will not use such proprietary content, information or materials in any way whatsoever except for permitted use. No portion of the Products or Third Party Materials may be reproduced in any form or by any means other than as permitted under applicable license.

 

 

18. PAYMENT

 

YOU AGREE TO PAY ALL FEES AND APPLICABLE TAXES INCURRED BY YOU OR ANYONE USING A PRODUCT FROM YOUR DEVICE.

 

1. Payment Options / Third Party Billing Partners. You may pay for certain Products and Service Provided Content using the methods made available to you, and you agree to the terms and conditions applicable to each payment method you choose. Payment methods may vary by console, platform, system or Device that you use to access the Product or Service Provided Content.

 

1. By paying for a Product or Service Provided Content you (i) represent that you are authorized to use the payment method you have selected and that any payment information you provide is true and accurate; (ii) authorize the party charging you for the Product or Service Provided Content to take payment from you for the Product or Service Provided Content, using the payment method you have selected.

 

 

19. CHANGES TO THE AGREEMENT

 

Except for Section 4 (Binding Arbitration and Class Action Waiver), Hijinx reserves the right, at its sole and absolute discretion, to change, modify, add to, supplement or delete any of the terms and conditions of this Agreement at any time, effective with or without prior notice, and by any means, including without limitation by posting notification on any Product website, by email, through a patch process, pop-up screen or in-Product notice. Your continued use of the Product following any revision to this Agreement constitutes your acceptance of any such changes. Additionally, you may be asked to affirmatively accept updates to this Agreement from time to time. Note that if you do not accept affirmatively indicate your acceptance when requested, you may not be able to continue to use the Product or Service Provided Content. In relation to Products and Service Provided Content you have paid for, if you do not wish to accept a change to the Agreement, please stop using the Product or Service Provided Content and contact Hijinx for refund options.

 

 

20. DRM

 

If you access content protected with Digital Rights Management (DRM), the software may automatically request media usage rights from a rights server online and download and install DRM updates so that you can play the content.

 

 

21. GENERAL

 

1. Severability

 

If any provision of this Agreement shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.

 

1. Survival

 

SECTIONS 4, 5, 8, 10, 12 to 21 inclusive, and, those other sections that by their terms apply after this Agreement ends, and the Privacy Policy, will survive any termination or cancellation of this Agreement.

 

1. Assignment and Transfer

 

We may assign this Agreement, in whole or in part, at any time without notice to you. You may not assign this agreement or transfer any rights to use the services.

 

1. Notices

 

You consent to Hijinx providing you notifications about the Product or information the law requires us to provide via email to any address that you specified if you were required to register for the Product. Notices emailed to you will be deemed given and received when the email is sent. If you don’t consent to receive notices electronically, you must stop using the Product. For Products that do not require you to register or provide an email address, notices and other information may be made available in updates to this Agreement.

 

1. Force Majeure

 

Hijinx shall not be liable for any delay or failure to perform resulting from causes outside Hijinx’s reasonable control, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond Hijinx’s control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.

 

1. Equitable Remedies

 

In the event that you breach this Agreement, you hereby agree that Hijinx would be irreparably damaged if this Agreement were not specifically enforced, and therefore you agree that Hijinx shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as Hijinx may otherwise have available to it under applicable laws.

 

1. Export and Commercial Items

 

You may not use or otherwise export or re-export the Product except as authorized by United States law and, if applicable, the laws of the jurisdiction in which the Product was obtained. In particular, but without limitation, the Product may not be exported, re-exported, or downloaded into (or transferred to a resident of) (a) North Korea, Iran, Syria, Sudan, any U.S. embargoed countries or any country against which the U.S. Government maintains comprehensive economic sanctions, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals and Blocked Persons or the U.S.

 

Department of Commerce Denied Person’s List or Entity List. By using the Product, you represent and warrant that you are not located in, under the control of, or a resident of any such country, or on any such list. You also agree that you will not use these Products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.

 

The Product and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. 12.212 or 48 C.F.R. 227.7202, as applicable. Consistent with 48 C.F.R. 12.212 or 48 C.F.R. 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.

 

1. Entire Agreement

 

This Agreement constitutes the entire agreement and understanding between you and Hijinx, and supersedes any prior or contemporaneous agreements or understandings, whether written or oral, relating to the matters contained herein.