Loot Terms of Service
LAST UPDATED October 02, 2017
1) These Loot Terms of Service
We may change the Loot Terms from time to time. The most recent version of the Loot Terms will always be posted to the Loot Service with the “As of” date posted at the top of the Loot Terms. If we make any material changes to the Loot Terms or how we handle your information, you will know because the “As of” date of the Loot Terms will change. By accessing the Loot Service after the “As of” date, you are deemed to consent to our then-current Loot Terms. No amendment to these Loot Terms shall apply to a dispute of which Playphone had actual notice on the date of amendment.
2) Use of the Loot Service
Subject to your acceptance of these Loot Terms, Playphone grants to you a non-exclusive, non-transferable, revocable limited license to use and display the Loot Service for your personal (or household) non-commercial authorized use by any authorized “Device” (as defined below) of which you are the primary user. You agree not to use the Loot Service for any other purpose, or to copy or distribute the content of the Loot Service except as specifically allowed in these Loot Terms.
By completing the registration process for the Loot Service OR by accessing the Loot Service via your Device OR by downloading Loot mobile content to a Device (each a "Download"), you (1) represent that you have the consent of the subscriber of a participating mobile communications carrier to sign-up for and use the Loot Service on behalf of the subscriber; and (2) agree on behalf of the subscriber and yourself to be bound by these Loot Terms.
Playphone reserves the right to discontinue the Loot Service or to change the content of the Loot Service in any way and at any time, with or without notice to you, without liability.
Your use of the Loot Service is conditioned upon your compliance with these Loot Terms and any use of the Loot Service in violation of these Loot Terms will be regarded as an infringement of Playphone's copyrights in and to the Loot Service. Playphone reserves the right to terminate your account and/or your access to the Loot Service without notice if you violate these Loot Terms.
You represent that you are thirteen (13) years old or older. Additionally, if you are between the ages of thirteen (13) and eighteen (18), you represent that your parent/legal guardian has also reviewed and agrees to these Loot Terms and provides consent on your behalf to complete the registration process, download mobile content, purchase a membership and/or play games provided by the Loot Service.
For customer support please contact email@example.com or call 1-877-234-5321.
You may cancel the Loot Service by replying "STOP" to any text message you receive from Playphone or by texting "STOP" to the applicable short code from your mobile device, and you will not receive any additional messages.
Playphone, through the Loot Service, permits you to play eligible games as well as purchase a non-exclusive, revocable, non-transferable, non-assignable, personal, limited license to: display or play, as the case may be, free games, pay to play games and social applications; virtual goods and in-game currency (collectively, "Content") display or play, as the case may be, such Content on a single cellular phone (a "Device") owned by you in accordance with the terms and conditions as set forth in this Agreement.
Payments and Fees.
Electronic Signatures and Contracts. Your use of the Loot Service requires your ability to enter into agreements and/or to make payments electronically. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY AND, IF APPLICABLE, TO PAY FOR SUCH AGREEMENTS AND SUBSCRIPTIONS. YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO ON THE SITE OR IN CONNECTION WITH THE LOOT SERVICE, INCLUDING NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND APPLICATIONS.
If, at any time thereafter, you fail to pay any amount owed to Playphone when due or are otherwise in breach or default under these Loot Terms, Playphone may, in its sole discretion, and without prejudice to its other rights, immediately terminate your access and use of the Loot Service and your account and revoke your license to the Content. Late payments hereunder will accrue interest at the rate of one and one half percent per month or the highest rate allowed by applicable law, whichever is lower.
Use of the Loot Service requires a compatible Device, Internet access (fees may apply), and certain software (separate fees may apply), and may require obtaining updates or upgrades from time to time. Because use of the Loot Service and Content involves hardware, software, and Internet access, your ability to use the Loot Service and Content may be affected by the performance of these factors. High speed Internet access is strongly recommended. You acknowledge and agree that such system requirements, which may be changed from time to time, are your responsibility. In light of the foregoing, you acknowledge and agree that you will not be entitled to any refund for any fees you may pay for the Loot Service or any Content, regardless of whether any Content is incompatible with your Device.
Interruptions or Discontinuation of Loot Service. Playphone reserves the rights at any time and from time to time to modify, suspend, discontinue or permanently cancel the Loot Service, or portions thereof, with or without notice to you. If you have pre-paid for the Loot Service regarding any time periods that have not yet begun at the time your Loot Service subscription is permanently discontinued or canceled by Playphone and you have (in Playphone’s reasonable judgment) complied in all respects with these Loot Terms, we will refund such pre-paid fees to you.
3) Intellectual Property Rights
All materials that are part of the Loot Service, including, but not limited to text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software, are owned, controlled, or licensed by Playphone and are protected by law from unauthorized use. The entire contents of the Loot Service are copyrighted under the United States copyright laws and/or similar laws of other jurisdictions. The trade names Playphone, Loot, and Playphone Social and the logos associated therewith are trademarks of Playphone and may not be used without the express written permission of Playphone. All games ("Games") and social applications ("Applications") that are published by Playphone and licensed and/or developed for Playphone are the property of Playphone and may not be used without the express written permission of Playphone.
You do not acquire any ownership rights by using the Loot Service, downloading or otherwise accessing material from or uploading material to the Loot Service.
You agree not to copy, redistribute, publish or otherwise exploit material from the Loot Service, except as expressly permitted herein, without the express prior written permission of Playphone.
All comments, feedback, suggestions, ideas, and other submissions ("Ideas") disclosed, submitted, or offered to Playphone in connection with the use of the Loot Service shall be the exclusive property of Playphone. You agree that unless otherwise prohibited by law, Playphone may use, sell, exploit and disclose the Ideas in any manner, without restriction and without compensation to you.
4) Virtual Goods and Currencies
The Loot Service may include virtual, in-game or network wide currency ("Virtual Currency") including, but not limited to coins or cash, e.g. “Reward Points”. The Loot Service may also include virtual, in-game or network wide digital items ("Virtual Goods") that may be purchased from Playphone, including by use of Virtual Currency.
Other than a limited, personal, revocable, non-transferable, non-sublicenseable license to use the Virtual Goods or Virtual Currency in the Loot Service, you have no right or title in or to any such Virtual Goods or Virtual Currency appearing or originating in the Loot Service or any other attributes associated with use of the Loot Service or stored within the Loot Service.
Playphone has the absolute right to manage, regulate, control, modify and/or eliminate such Virtual Currency and/or Virtual Goods as it sees fit in its sole discretion, and Playphone shall have no liability to you or anyone for the exercise of such rights.
Transfers of Virtual Currencies and Virtual Goods are strictly prohibited except where explicitly authorized within the Loot Service. Use of Virtual Currency or Virtual Goods for any purpose other than the Loot Service is strictly prohibited and any attempt to do so is a violation of these Terms. Such transfers may result in a lifetime ban from the Loot Service and possible legal action.
You agree that all sales of Virtual Goods are final. No refunds will be given, except in our sole and absolute discretion. All Virtual Goods and Virtual Currencies are forfeited if your account is terminated or suspended for any reason, in Playphone's sole and absolute discretion, or if Playphone discontinues providing the Loot Service.
When completing your registration (as described below), please follow all subsequent prompts to complete the registration process. Failure to follow all such prompts may result in unused or expired Virtual Currency. Notwithstanding the foregoing, you will automatically be billed in accordance with the billing provisions below upon registering for a Membership, regardless of whether you properly follow all prompts to activate your Virtual Currency. If you have any questions with respect to the foregoing, please contact help@Playphone.com or call 1-877-365-4646.
Membership plans may be on a recurring or non-recurring membership basis ("Membership" or the "Membership Plan"). There are free and paid Membership Plans. Free Membership Plans offer limited access to Content through the Loot Service. Paid Membership Plans give you access to all available Content. Paid Membership plans may include a defined number of individual games or Downloads (or, in some circumstances, individual game or Download) on a recurring or non-recurring membership basis. We may offer Virtual Currency in combination with any Membership Plan. We reserve the absolute right to manage, regulate, control, modify and/or eliminate such Virtual Currency offers at any time.
The Membership Plan between you and Playphone shall begin when Playphone, after your affirmative request to initiate the Membership Plan, has provided you with access to the Loot Service (such access may be based on phone number, email address, identifier from a Device, a personal username and password generated for that purpose or on other data that Playphone deems sufficient for your identification). Access to the Loot Service can be provided by delivering to you games, social applications and/or downloadable mobile entertainment content that you sign up to (i.e., an individual game or group of games) or by enabling you to download the product (e.g., by delivering a SMS link or a PIN for download of the downloadable mobile entertainment content on Playphone website) or by providing access to the mobile entertainment content. The membership period for any paid Membership Plan may vary depending on your Membership Plan. The Membership Plan shall remain in effect until the expiration date or terminated and/or cancelled by you or Playphone.
Paid Membership Plan
After entering into your recurring paid Membership Plan, every month Playphone may charge your account all applicable fees. The monthly fee shall become due every month irrespective of whether or not you actually download or otherwise access any Content during any particular membership period. The consideration for the monthly fee shall solely be the monthly provision of the right to download, receive and/or access eligible Content. The amount of Virtual Currency for downloads shall be reduced by actual redemptions including gift cards as well as actual downloaded mobile entertainment Content, games, social applications and/or virtual goods and currency; in other words the download and/or access of Content and Downloads is evaluated as redemption of Virtual Currency and thereby reduces the total number of Content and Downloads you are entitled to receive and/or access during that particular membership period. Depending on your membership type, if you do not use/redeem all of your Virtual Currency within the membership period, the unused Virtual Currency will either be rolled over into the next membership period and remain in your account until used/redeemed or will expire within the membership period or after sixty (60) days of non use from purchase date or will expire at termination of your Membership Plan. Unused Virtual Currency is not refundable, returnable or exchangeable and have no cash value. To get help, reply "HELP" to any message you receive or text "HELP" to the short code 31824.
You may discontinue service, by replying "STOP" to any message you receive or by texting "STOP" to the short code 31824 from your mobile device. You will not receive any additional messages.
Account. Upon completion of your Membership registration, you become a "Member" and have a Loot "Account" with Playphone. You will be granted access to your Account by means of your phone number or user name and password. You are responsible for maintaining the confidentiality of your Account information and controlling access to your Account. You may not permit others to use your Account, whether or not authorized by you. You must immediately notify customer service of any unauthorized use of your mobile phone number, PIN, or Account by sending an email to firstname.lastname@example.org or by calling 1-877-234-5321. You cannot have more than one (1) Account. If you attempt to obtain more than one (1) Account, Playphone may terminate your membership and any Virtual Currency for use in connection with the Service in your account may be forfeited. Corporations, associations, or other groups may not participate in the Loot Service. It is fraudulent for any individual, company, club, association or group to use or to direct, encourage, or allow other persons to use a single Account for the purpose of combined use, unless such use is expressly permitted in writing by Playphone.
Fees; Billing. Any applicable fees will appear on your mobile phone bill or be deducted from your prepaid mobile phone account or your app store. All payment obligations and subscriptions must be authorized by the Account holder. We reserve the right to reject any mobile phone account in our sole discretion. The Loot Service and/or Membership may not be available on all carriers. As message and data rates may apply to your use of the Loot Service (including, without limitation, regular text messages which we may send you and error messages), we strongly recommend mobile phone plans, which provide unlimited data and/or unlimited text messaging for a fixed monthly fee. If you travel internationally, be aware that some wireless carriers impose extra charges for text messages received when you are outside of the country, even if you are on a text-messaging plan that provides unlimited text messaging domestically for a fixed monthly fee. We reserve the right to change the fees and/or billing practices at any time. Failure to use your Membership does not constitute a basis for refusing to pay any applicable fees associated with your Membership Plan. You are responsible for paying any applicable sales, use or other taxes related to Loot Service.
6) Rewards Wheel and Reward Points
Reward Points can be earned by spinning the “Rewards Wheel” within the Loot service. Members will have a chance to spin the Rewards Wheel when they sign-up to become a member, log-in to the Loot Service, participate in certain activities such as inviting friends, playing certain games and additional activities, as described below. Any additional earning activities may be subject to separate terms and conditions that will be communicated along with that earning activity.
Members also have the chance to advance to the next level of the Loot Service based on the number of Reward Points earned. Members advance to the next level once they have accumulated the minimum points required to go from their current level to the next level. If any Member is inactive and does not earn any Reward Points in a thirty (30) day period, such Member will drop down to Level 1 and have to start over.
Reward Points may be exchanged for in-app purchases or for gift cards to major retailers. Items offered may only be available for a limited period of time and may be subject to their own terms and conditions associated with a specific reward.
Reward Points generally have a value of 100 Points = US$1. Please allow 45 – 60 days for payout of any reward. Reward Points must be redeemed within sixty (60) days of receipt or they will be forfeited in their entirety with no further obligation to the Member. In the event the Reward Points program is cancelled for any reason or we opt to discontinue the Loot Service, notice will be made on the Loot Service and you will have sixty (60) days to redeem any Reward Points remaining in your Account.
When you redeem points, you may be asked to verify your account via SMS. Message and data rates may apply. The SMS account verification is currently designed to work with AT&T, Carolina West, Cellcom, C Spire, Cincinnati Bell, Interop, nTelos, Sprint/Nextel, ClearSky, Virgin Mobile, Boost Mobile, T-Mobile, U.S. Cellular and such other wireless carriers as we may support at any given time (collectively, the “Participating Carriers”). We make no guarantee that any particular wireless service provider will support SMS account verification and reserve the right to modify the list of Participating Carriers at any time. Participating Carriers are not liable for delayed or undelivered messages.
Items purchased using Reward Points may be subject to separate terms and conditions which will be provided at time of award. Any potential recipient of any single item valued at $600 or more or who cumulatively reaches $600 or more in redemptions from Playphone in a single calendar year must execute an Affidavit of Eligibility, a Liability Release, and (where imposing such condition is legal) a Publicity Release (collectively, “Prize Claim Documents”). If such Member fails or refuses to sign and return all Prize Claim Documents within seven (7) days of prize notification (or a shorter time if required by exigencies), any redemption shall be forfeited along with the corresponding Reward Points. In compliance with United States Internal Revenue Service regulations, Playphone will send an IRS Form 1099-MISC or other appropriate form to any person who receives in excess of $600 in redeemed items in any given calendar year. We may require you to complete a W-9 and/or additional tax forms. Playphone reserves the right to withhold from your existing unclaimed redemptions/Reward Points and/or future redemptions/Reward Points any amount required to be withheld by law. Acceptance of any item redeemed using Reward Points constitutes such Member’s permission for Playphone and its designees (including any third party sponsor) to use such Member’s name, photograph, likeness, voice, biographical information, statements and address (city and state) for advertising and/or publicity purposes worldwide and in all forms of media now known or hereafter developed, in perpetuity, without further compensation, unless prohibited by law.
Reward Points may not be sold, auctioned, bartered, brokered, transferred, assigned or used to engage in any gambling activity. Any Reward Points obtained in this manner by any person or entity will be considered to have been fraudulently obtained and deemed void, and such Reward Points may be confiscated or voided. Reward Points must be redeemed in accordance with these Loot Terms and any additional terms for redemption provided on the Loot Service. Reward Points will not be replaced, reissued or credited if lost, stolen or otherwise altered or destroyed. Reward Points cannot be used in combination with any other discount, coupon or offer unless specifically allowed by the terms of a specific offer or reward. Once you have redeemed your Reward Points, there are no refunds, returns or exchanges for additional Reward Points, cash, or other goods and services.
Rewards Wheel Spins
Playphone reserves the right to discontinue any of the available spins detailed below at any time.
You will receive one (1) spin of the Rewards Wheel when you install the Loot app for the first time. Limit one (1) Sign-Up Spin per Membership account.
You will receive one (1) spin of the Rewards Wheel each day that you log-in to your Member account. Limit one (1) Daily Spin per Membership account per day* and a maximum of thirty (30) Daily Spins per Membership account per calendar month.
You may receive one (1) spin of the Rewards Wheel when you complete certain activities (such as inviting friends to participate in the Loot Service) offered by Playphone from time-to-time. Limit one (1) Bonus Spin per Membership account per day*.
You may receive one (1) spin of the Rewards Wheel when you complete certain activities such as playing games or downloading games as offered by Playphone from time-to-time. Limit five (5) Game Spins per Membership account per day* and a maximum of thirty (30) Game Spins per Membership account per calendar month.
* For purposes of these Loot Terms, a day is defined as any twenty-four (24) hour period beginning at 12:00:01 a.m. Pacific Time (“PT”) and ending at 11:59:59 p.m. PT. There is a limit of sixty (60) Rewards Wheel spins per Membership account per calendar month regardless of how Rewards Wheel spins are earned, except where a promotion or other special offer allows for additional Rewards Wheel spins.
7) User-Generated Content
The Loot Service may invite you to chat or participate in blogs, message boards, online forums and other functionalities and may provide you with the opportunity to create, submit, post, display, transmit, perform, publish, distribute or broadcast content and materials to Playphone and/or to or via the Loot Service, including, without limitation, text, writings, photographs, graphics, comments, suggestions or personally identifiable information or other material (collectively "User Content"). Any material you transmit to Playphone will be treated as non-confidential and non-proprietary.
By submitting any User Content, you agree that: your User Content is wholly original to you and you exclusively own the rights to your User Content, including the right to grant all of the rights and licenses in these Loot Terms, Playphone is merely acting as a passive conduit for the distribution of your User Content and shall not incur any obligations or liability arising out of your User Content or licenses you grant thereto, you hereby waive any moral rights you may have to your User Content, and all of your User Content is true and accurate.
By submitting any User Content, you grant to Playphone the unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual fully-paid and royalty-free right and license to host, use, copy, distribute, reproduce, disclose, sell, resell, sublicense, display, perform, transmit, publish, broadcast, modify, make derivative works from, retitle, reformat, translate, archive, store, cache or otherwise exploit in any manner whatsoever, all or any portion of your User Content for any purpose whatsoever, in any and all formats, on or through any and all media, software, formula or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed and to advertise, market and promote same without compensation to you and without any obligation of confidentiality.
Playphone has no obligation to monitor or enforce any intellectual property rights that may be associated with your User Content, but Playphone does have the right to enforce such rights through any means it sees fit, including bringing and controlling actions on your behalf.
Playphone has no obligation to accept, display, review, monitor, or maintain any User Content. We have the right to delete User Content from the Loot Service without notice for any reason at any time.
Playphone may move, re-format, edit, alter, distort, remove or refuse to exploit User Content without notice to you and without liability.
Playphone reserves the right to treat User Content as content stored at the direction of users for which Playphone will not exercise editorial control; provided, however that Playphone shall have the right to exercise any control over User Content as may be necessary to enforce the rights of third parties and all of the restrictions set forth in these Loot Terms.
You acknowledge that you do not rely on Playphone to monitor or edit the Loot Service and that the Loot Service may contain content, which you find offensive, and you hereby waive any objections you might have with respect to viewing such content.
8) Posting on Other Web Sites
You are granted a limited revocable license to post an image of your personal avatar, a screen shot from your account with the Loot Service, and any other materials that Playphone specifically gives you notice may be posted on your own personal web site or a third party web site that permits posting of content at the direction of users, provided that such third party web site is not commercially competitive to Playphone, does not criticize or injure Playphone, does not obtain any rights to such content other than a non-exclusive license to post it at your direction, and does not charge for access to such content or associated products, services or advertising with such content. The web site where the link of such avatar or screen shot resides and all other locations to which such site links (each, an "Authorized Web Site") shall comply with all applicable laws and shall not in any way abuse, defame, stalk, threaten or violate the rights of privacy, publicity, intellectual property or other legal rights of others or, in any way, post, publish, distribute, disseminate or facilitate any inappropriate, infringing, defamatory, profane, indecent, obscene, illegal/unlawful or otherwise objectionable information, topic, name or other material. Notwithstanding the foregoing, all of Playphone's rights and remedies with respect to User Content, including, but not limited to all material posted on any Authorized Web Site, are expressly reserved and Playphone may revoke the limited license granted in this Section, in whole or in part, at any time without notice.
Conditions on Posting on Other Web Sites: Without limitation, the following terms and conditions apply to your posting of a copy of your avatar and/or screen shots on an Authorized Web Site:
You must display a prominent link to the Site in connection with any material you post on an Authorized Website, including, without limitation, in e-mails you are sending friends; and you agree to include, and not remove or alter any Playphone trademark, copyright or other proprietary rights notices, as provided by Playphone on the Loot Service and within e-mail page(s) when displaying an avatar or images from a Game and/or Application, and you agree to comply with all usage guidelines that may be provided by Playphone from time to time. You agree that all goodwill that arises in connection with your use of Playphone's trademarks inures exclusively to Playphone and you agree not to challenge Playphone's ownership or control of any Playphone trademarks or use or adopt any trademarks that might be confusingly similar to such Playphone trademarks.
Third Party Links. Playphone is not responsible in any way for, and does not guarantee the availability of any email from or links to third party Web sites and resources, which may be accessed through the Site or Loot Service. In addition, Playphone does not endorse and is not responsible or liable for any content, advertising, goods or services, or other materials on or available from such Web sites or resources.
Infringer Policy. If you believe that any material available through the Site or Loot Service infringes upon any copyright you own or control, or that any link on the Site or Loot Service directs users to another Web site that contains material that you own or control, you may file a notification of such infringement with Playphone's Designated Agent as outlined in these Loot Terms.
9) Rules of Conduct
As a condition of your use and access to the Loot Service, you agree that your use of and conduct on the Loot Service shall be lawful and your User Content will not: include any offensive comments that are connected to race, national origin, gender, sexual preference or physical handicap; include profanity or any obscene, indecent, pornographic, sexual or otherwise objectionable content or language; defame, libel, ridicule, mock, disparage, threaten, harass, intimidate or abuse anyone; promote violence or describe how to perform a violent act; violate the contractual, personal, intellectual property or other rights of any party, or promote or constitute illegal activity; or be in violation of these Loot Terms or the game rules of conduct (collectively, "Content Restrictions").
You acknowledge that some of the Content or communications on the Loot Service may be offensive to you or to others who you may expose, deliberately or inadvertently, to the Content or the Loot Service. You agree to be responsible for previewing any Content, when available, prior to requesting Content or Download. You also agree that you will be solely responsible for any aspect of the Loot Service that you or others might find objectionable.
Playphone does not control or endorse the content, messages, information, or any products or services found in User Content portions of the Loot Service or external sites that may be linked to or from the Games or Applications (and the forums thereto), the Site and the Loot Service. Playphone has no control over these linked sites, all of which have separate terms, privacy practices and data collection practices, independent of Playphone. These linked sites are only for your convenience and therefore you access them at your own risk. Without limiting the foregoing, Playphone specifically disclaims any responsibility with regard to linked sites if such linked sites: infringe any third party's intellectual property rights; are inaccurate, incomplete or misleading; are not merchantable or fit for a particular purpose; do not provide adequate security; contain viruses or other items of a destructive nature; or are libelous or defamatory.
The restrictions set forth in this Section are provided as an example rather than as a limitation and you hereby agree to comply with any additional rules specifically applicable to Games and Applications.
10) Privacy and Protection of Personal Information.
11) Account Responsibility
The Loot Service may be offered through external websites, including social network websites. In creating your account either directly with Playphone or via an external site, you agree to: provide true, accurate, current and complete information about yourself ("Registration Data"); and maintain and promptly update the Registration Data to keep it true, accurate, current and complete.
Playphone reserves the right to terminate your account and use of the Loot Service and refuse to provide you with any and all current or future use of the Loot Service if Playphone, in its sole discretion, determines that any of your Registration Data is untrue, inaccurate, not current or incomplete.
Users may not access the Loot Service from multiple accounts, and Playphone reserves the right to terminate accounts that have been inactive for 180 consecutive days.
You are responsible for maintaining the confidentiality of your user name, password and other account information and are fully responsible for all activities, charges and/or liabilities that occur under your user name and password or account number whether or not authorized by you. You will immediately notify Playphone of any unauthorized use of your user name and password or account or any other breach of security. Playphone cannot, and will not, be liable for any loss or damage arising from your failure to comply with this Section.
We reserve the right, but have no obligation, to monitor and/or manage disputes between you and other users of the Loot Service. If you have a dispute with other users, you forever release Playphone (and Playphone's officers, directors, agents, subsidiaries, joint ventures and employees) and hereby agree to indemnify Playphone from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such dispute.
13) Disclaimers; Limitations; Waivers of Liability
YOU EXPRESSLY AGREE THAT USE OF THE LOOT SERVICE IS AT YOUR SOLE RISK AND IS PROVIDED ON AN "AS IS" BASIS. TO THE EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, PLAYPHONE HEREBY DISCLAIMS WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, NEITHER PLAYPHONE NOR ITS AFFILIATES OR SUBSIDIARIES, OR ANY OF THEIR DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, THIRD-PARTY CONTENT PROVIDERS, DISTRIBUTORS, LICENSEES OR LICENSORS (COLLECTIVELY, "PLAYPHONE PARTIES") WARRANT THAT THE LOOT SERVICE WILL BE UNINTERRUPTED, THAT ANY DEFECTS WILL BE CORRECTED, OR THAT THE LOOT SERVICE WILL BE ERROR-FREE.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE DISCLAIMERS OF LIABILITY CONTAINED HEREIN APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OF, OR INABILITY TO USE, THE LOOT SERVICE UNDER ANY CAUSE OF ACTION WHATSOEVER IN ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION, ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT, TORT OR STRICT LIABILITY. THE PLAYPHONE PARTIES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE LOOT SERVICE. YOU FURTHER SPECIFICALLY ACKNOWLEDGE THAT THE PLAYPHONE PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE PLAYPHONE PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER USERS OF THE LOOT SERVICE AND OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF THE LOOT SERVICE AND EXTERNAL SITES AND OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
UNDER NO CIRCUMSTANCES WILL THE PLAYPHONE PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID PLAYPHONE IN THE NINETY (90) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM.
You agree that the provisions in this Section will survive any termination of your account or access or use of the Loot Service and will apply to any other person accessing the Loot Service using your account.
You agree to defend, indemnify and hold harmless the Playphone Parties from and against all losses, claims, damages and expenses, including attorneys' fees and costs, arising out of your use of the Loot Service and/or your breach or alleged breach of any term, condition, obligation, representation or warranty in these Loot Terms. You agree that the provisions in this paragraph will survive any termination of your account or access or use of the Loot Service and will apply to any other person accessing the Loot Service using your account.
15) Governing Law/Arbitration
IMPORTANT * PLEASE REVIEW * AFFECTS YOUR LEGAL RIGHTS
These Terms and all aspects of the Loot Service shall be governed by and construed in accordance with the laws of the state of California, notwithstanding the conflicts of laws rules of California or any other jurisdiction, and regardless of your location. With respect to any disputes or claims not subject to informal dispute resolution or arbitration (as set forth below), you agree not to commence or prosecute any action in connection therewith other than in the state and federal courts located in Santa Clara County, California, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the state and federal courts located in Santa Clara County, California.
You acknowledge that the rights granted and obligations made hereunder to Playphone are of a unique and irreplaceable nature, the loss of which shall irreparably harm Playphone and which cannot be replaced by monetary damages alone so that Playphone shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety) in the event of any breach or anticipatory breach by you.
Informal Negotiations. To expedite resolution and control the cost of any dispute, controversy or claim related to these Terms ("Dispute"), you agree to first attempt to negotiate any Dispute (except those Disputes expressly excluded in Section 14(f) below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. You will send your notice of any legal dispute to Playphone, Inc. 345 S B Street, 2nd Floor, San Mateo, CA 94401. Attn: Legal Dispute. Informal negotiations shall commence upon your receipt of written notice from Playphone of Playphone's intent to participate in such informal negotiations.
Binding Arbitration. If you and Playphone are unable to resolve a Dispute through informal negotiations, either you or Playphone may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by Playphone shall be final and binding on you. YOU UNDERSTAND THAT YOU HEREBY WAIVE YOUR RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association ("AAA") and, where appropriate, the AAA's Supplementary Procedures for Consumer Related Disputes ("AAA Consumer Rules"), both of which are available at the AAA website located at uniform resource locator www.adr.org.
For claims of $75,000 or less, Playphone will pay all filing, administration and arbitrator fees. If, however, the arbitrator finds that either the substance of your claim or the relief sought is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. In such case, you agree to reimburse Playphone for all monies previously disbursed by it that is otherwise your obligation to pay under the AAA Rules. If you initiate an arbitration in which you seek more than $75,000 in damages, the payment of these fees will be governed by the AAA rules.
At your election, the arbitration may be conducted in person, through the submission of documents, by phone or online. If the arbitration is conducted in person, it shall be conducted in the county (or parish) where you reside, unless you and Playphone agree otherwise.
The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party.
If the arbitrator finds in your favor, you may recover reasonable attorneys' fees and expenses to the extent that they are recoverable under applicable law. Although under some laws Playphone may have a right to an award of attorneys' fees and expenses if it prevails, Playphone agrees that it will not seek such an award if the claims are resolved in arbitration. The arbitrator may make rulings and resolve disputes as to the payment or reimbursement of fees and expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator's ruling on the merits.
Restrictions. You and Playphone agree that any arbitration shall be limited to the Dispute between Playphone and you individually. To the full extent permitted by law: No arbitration shall be joined with any other; there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
Exceptions to Informal Negotiations and Arbitration. You and Playphone agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: Any Disputes seeking to enforce or protect, or concerning the validity of, any of your or Playphone's intellectual property rights; Any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and Any claim for injunctive relief.
Notwithstanding any of the provisions herein, either party may bring an individual action in small claims court in lieu of arbitration.
The failure of Playphone to require or enforce strict performance by you of any provision of these Loot Terms or to exercise any right under them shall not be construed as a waiver or relinquishment of Playphone's right to assert or rely upon any such provision or right in that or any other instance.
You and Playphone agree that if any portion of these Loot Terms is found illegal or unenforceable, in whole or in part by any court of competent jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of these Loot Terms, which shall continue to be in full force and effect. If an incorporated dispute resolution provision is found to be illegal or unenforceable then neither you nor Playphone will elect to arbitrate any Dispute falling within that portion of such provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the County of Santa Clara, State of California, United States of America, and you and Playphone agree to submit to the personal jurisdiction of that court.
15) Export Control
Playphone operates and controls the Loot Service from its offices worldwide. Playphone makes no representation that the Loot Service is appropriate or available in locations not currently serviced by Playphone. The information provided on the Loot Service is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject Playphone to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Loot Service from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable. Software from the Loot Service may be subject to United States export controls. Thus, no software from the Loot Service may be downloaded, exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, North Korea, Iran, Syria, or any other country to which the United States has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading or otherwise accessing any software in connection with your use of the Loot Service, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list. The parties specifically disclaim application of the Convention on Contracts for the International Sale of Goods.
You agree that Playphone may, without cause or prior notice, and without liability to you or any third party, immediately terminate your account and/or access to the Loot Service.
Cause for termination shall include, but not be limited to, breaches or violations of these Loot Terms or other incorporated agreements or guidelines, requests by law enforcement or other government agencies, a request by you (self-initiated account deletions), discontinuance or material modification to the Loot Service (or any part thereof), technical or security issues or problems, inactivity, engagement by you in fraudulent or illegal activities, nonpayment of any fees owed by you in connection with the Loot Service, and/or no cause at all.
Termination of your account and access to the Loot Service includes removal of access to all offerings and features of the Loot Service, deletion of your password and all related information, files, and content associated with or inside your account (or any part thereof), and barring of further use of your account. Further, you agree that all terminations for cause shall be made in Playphone's sole discretion and that Playphone shall not be liable to you or any third party for any termination of your account, any associated email address, or access to your account.
To cancel your Membership Plan, You may cancel your Membership or subscription at any time by editing your account via the Loot Service, by contacting your carrier, or by contacting help@Playphone.com or calling 1-877-234-5321. Terminations shall become effective at the end of the billing period in which you gave your notice of termination. You agree that upon termination of your access to the Loot Service under any provision of these Loot Terms, Playphone may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Loot Service. Further, you agree that Playphone shall not be liable to you or any third party for any termination of your access to the Loot Service. If you cancel your account or Membership Plan for any reason, Playphone will not refund any of your fees paid to date, except as expressly provided in these Loot Terms.
19) Amendment; Modification
Neither the course of conduct between the parties nor trade practice will act to modify these Loot Terms to any party at any time without any notice to you. These Loot Terms contain the entire understanding of you and Playphone and supersede all prior understandings relating to the subject matter hereof, and cannot be changed or modified by you. These Loot Terms may be modified by Playphone as described above.
You may not assign your rights and duties under these Loot Terms without Playphone's prior written consent. Playphone may assign its rights and duties under these Loot Terms to any party at any time without notice to you.
The section headings used herein are for convenience only and shall not be given any legal import.
If you gave us your email address when you registered or if we collected your email address in accordance with the granted permissions on your Device, we may send you via such email address Playphone newsletters, product updates, service-related information and other offers and information from Playphone or its business partners, and you hereby consent to such emails. Playphone also may contact you by email to respond to any customer service inquiries you submit. We do not disclose your email address to business partners or to anyone other than employees and agents working for or on behalf of Playphone, except as required by subpoenas, court orders, or legal requirements. If you do not want to receive Playphone newsletters, offers, and product and service information, simply click the unsubscribe link at the bottom of the email newsletter.
Promotions. Playphone reserves the right to offer, from time to time and at its sole discretion, various sales and marketing promotions for limited periods of time including sweepstakes with prizes. Playphone reserves the right to withdraw a promotion at any time and without prior notice of any kind.
Upon Playphone's request, you will furnish Playphone any documentation, substantiation or releases necessary to verify your compliance with these Loot Terms. You agree that these Loot Terms will not be construed against Playphone by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of these Loot Terms and the lack of signing by the parties hereto to execute these Loot Terms.
Force Majeure. Except for any applicable payment obligations arising from your use of the Loot Service, neither party will be deemed in default hereunder, nor will it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to earthquake, flood, fire, storm, natural disaster, act of God, war, terrorism, armed conflict, labor strike, lockout, or boycott, provided that the party relying upon this Section will give the other party notice thereof promptly and, in any event, within 5 days of discovery thereof and will take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided further, that in the event a force majeure event described in the paragraph extends for a period in excess of thirty (30) days in the aggregate, Playphone may immediately terminate your account and/or your access to the Loot Service.
24) Statute of Limitations
25) Complaints or Notices
The Digital Millennium Copyright Act (DMCA) provides recourse to copyright owners who believe that their rights under the United States Copyright Act have been infringed by acts of third parties over the Internet. If you believe that your copyrighted work has been copied without your authorization and is available on the Loot Service in a way that may constitute copyright infringement, you may provide notice of your claim to Playphone's intellectual property agent listed below. For your notice to be effective, it must include the following information: a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; a description of the copyrighted work that you claim has been infringed upon; a description of where the material that you claim is infringing is located on the Loot Service; information reasonably sufficient to permit Playphone to contact the complaining party, such as address, telephone number, and, if available, an e-mail address at which the complaining party may be contacted; 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 a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Playphone's Designated Agent is:
Playphone Inc. Attn: Intellectual Property Agent, 100 Mathilda Place, Suite 160, Sunnyvale, California, 94086, USA