Bandai NAMCO ENTERTAINMENT EUROPE
TERMS OF SERVICE
Last updated: March 15, 2018
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY ACCESSING OR USING OUR WEBSITES, MOBILE APPLICATIONS OR OTHER ONLINE PRODUCTS OR SERVICES, YOU AGREE TO BE BOUND BY ALL TERMS DESCRIBED HEREIN AND ALL TERMS INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT ACCESS OR USE OUR WEBSITES, MOBILE APPLICATIONS, OR OTHER ONLINE PRODUCTS OR SERVICES.
THESE TERMS OF SERVICE CONTAIN, AMONG OTHER THINGS, AN ARBITRATION PROVISION CONTAINING A CLASS ACTION WAIVER. IF YOU LIVE OUTSIDE THE UNITED STATES, SOME OR ALL OF THE ARBITRATION PROVISION MAY NOT APPLY TO YOU.
If you are resident of Germany, some specific clauses apply to you. See Sections 5 and 22 for details.
These Terms of Service (this "Agreement") are a contract between you and BANDAI NAMCO Entertainment Europe ("BNEE", "us", "we" or "our") and apply solely to your access to, and use of, any website, mobile applications, Software (as defined in Section 6 below) and other products and services (collectively, the "Services") of BNEE. This Agreement does not alter in any way the terms or conditions of any other agreement you may have with BNEE for products, services, or otherwise.
Where you download any application from a third party digital distribution platform such as Apple iTunes or Google Play, the terms of such platform regarding the checkout process apply in addition to these Terms and, to the extent they govern the technical process of completing purchases and downloads, prevail in the event of any conflict.
Additional terms (including, but not limited to, posted fees, billing procedures, and promotion rules) may apply to particular functionalities and features that are part of the Services. Unless otherwise indicated, any additional applicable terms are incorporated by reference into this Agreement. In the event of a conflict between this Agreement and any additional terms, the additional terms shall govern.
1. ELIGIBILITY. ONLY USERS WHO HAVE REACHED THE AGE OF MAJORITY IN THEIR JURISDICTION MAY USE OR REGISTER FOR THE SERVICES.. The Services are for personal use only. Organizations, companies, or businesses may not use the Services for any purpose. You may not use the Services if you have previously been suspended or removed from the Services. Certain Services may not be available in all jurisdictions, and we reserve the right to impose additional eligibility requirements. When you access the Services, you do so at your own risk and are responsible for compliance with all local laws, rules, and regulations that may apply.
3. USER ACCOUNT. Before using the Services, you may be required to create an account ("User Account"). You may not have more than one User Account at any given time. You may be asked to choose a username (which will be displayed within the Service) and a password for your User Account. BNEE reserves the right to remove or reclaim a username if we believe appropriate (such as when a trademark owner lodges an appropriate complaint or if the username breaches any applicable law or regulation). You are entirely responsible for maintaining the confidentiality of your password and agree that you will: (a) not register for a User Account on behalf of an individual or impersonate another individual; (b) not use the User Account, username, or password of another user at any time; (c) not disclose your password to any third party or permit any third party to access your account; (d) notify us immediately if you suspect any unauthorized use of your User Account or unauthorized access to your password; and (e) not enter your personal information (such as your name and email address) in the fields of username and password. You are solely responsible for any and all use of your User Account. BNEE reserves the right to cancel any User Account, refuse registration, refuse service, or cancel orders for any reason allowed by law.
4. TERM. This Agreement will remain in full force and effect while you use the Services. Either party may terminate use of the Services with or without cause at any time with reasonable prior notice. You may terminate this Agreement by deleting all Software from your device.. BNEE shall not be liable to user or any third party for termination of your use of the Services. Upon termination of this Agreement (a) your right to use the Services shall cease immediately; and (b) you will not be entitled to a refund of any unused fees, if any, except for Purchased Game Currency refunded as required by applicable law. Sections 12, 13, 14, 15, 16, 18, 19, 21-31, and any other term that, by its nature should survive, shall survive termination of this Agreement.
5. AMENDMENTS. BNEE reserves the right to change or modify this Agreement at any time and for any reason at BNEE’s sole discretion. If BNEE makes changes to this Agreement, we will provide notice of such changes, such as by providing notice through the Services, or by updating the "Last Updated" date at the top of this Agreement. Your continued use of the Services will confirm your acceptance of the revised Agreement. We encourage you to review the Agreement whenever you access the Services to ensure that you understand the terms and conditions that apply to your use of the Services. If you do not agree to any amended Agreement, you must stop using the Services.
If you are a resident of Germany, the above paragraph does not apply to you and is replaced with this one:
BANDAI NAMCO reserves the right to change or modify this Agreement at any time, with the exception of the provisions determining the parties' primary contractual obligations hereunder. The parties' primary contractual obligations will not be changed in the manner described in this section. BANDAI NAMCO will inform you of any proposed modification of this Agreement, provide you with the proposed new version of this Agreement and notify you of the date when the new Agreement will be implemented. Any change is subject to a prior written (e-mail sufficient) notice of six weeks. If you do not expressly refuse the respective modification within six weeks from the date on which the new Agreement is implemented, you are deemed to have approved the modification of the Agreement. In the aforementioned notice of the proposed modification, BANDAI NAMCO will inform you expressly and specifically about the right to object within the six week period and the consequences of not expressly refusing the proposed modification.
6. SOFTWARE LICENSE AND LIMITATIONS.
b) The preceding states the entirety of your rights with respect to the Software, and we reserve all rights in and to the Software not expressly granted to you in this Agreement. Without limiting the foregoing, you will not do, or authorize or permit any third party to do, any of the following: (i) distribute, copy, license, rent, or sell the Software (except as expressly permitted by this license or the Usage Rules); (ii) use the Software for any purpose other than your own personal, noncommercial use; (iii) reverse engineer, decompile, disassemble, or attempt to discover the source code for the Software; (iv) modify, alter, or create any derivative works of the Software; (v) remove, alter, or obscure any copyright, trademark, or other proprietary rights notice on or in the Software; (vi) use the Software for purposes for which it is not designed; or (vii) use the Software on any Device that you do not own or control.
c) The Software is the valuable property of BNEE and its licensors, and is protected by copyright and other intellectual property laws and treaties. We and our licensors own all right, title, and interest in and to the Software, including all copyright and other intellectual property rights in the Software.
7. LIMITED LICENSE. You are granted a limited, nonsublicensable, nontransferrable, nonexclusive license to access and use the non-Software Services (“Non-Software Services”) and Services Materials (as defined below) for the term of the Agreement in your country of residence; however, such license is subject to this Agreement and does not include: (a) any resale or commercial use of the Non-Software Services or Services Materials, including providing links to other websites for commercial purposes, whether such websites may or may not be competitive to BNEE; (b) the distribution, public performance, or public display of any Services Materials; (c) modifying or otherwise making any derivative uses of the Non-Software Services and the Services Materials, or any portion thereof; (d) use of any data mining, robots, or similar data gathering or extraction methods; (e) downloading (other than the page caching) of any portion of the Non-Software Services or Services Materials, except as expressly permitted on the Non-Software Services; or (f) any use of the Non-Software Services or the Services Materials other than for their intended purposes. Any use of the Non-Software Services or the Services Materials other than as specifically authorized herein is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including without limitation copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in this Agreement will be construed as conferring any license to intellectual property rights, whether by estoppel, implication, or otherwise. This license does not transfer to you or any third party any rights, title, or interest in or to the Non-Software Services or Services Materials and is revocable at any time.
8. USE OF THE SERVICES. Without limiting Section 6, you agree that you will access and use the Services only as permitted by this Agreement and allowed by applicable local, state, national, and foreign laws and regulations. Specifically, you agree not to do, attempt to do, or cause another to do any of the following in connection with the Services:
a) transmit or otherwise make available any software or other materials that is harmful, disruptive, or invasive, including any viruses, malware, time bombs, adware, worms, or any other unauthorized programming;
b) flood or otherwise interfere with the proper functioning of the Services;
c) scan, test, circumvent, or otherwise interfere with any security or authentication features of the Services;
d) access portions of the Services that you are not authorized to access;
e) access or collect information from the Services through any automated means, whether through robots, spiders, web crawlers, scripts, or otherwise;
f) misrepresent or disguise your age, identity, origin, or connection to any person or entity;
g) collect, store, trace, or otherwise seek information about other users, including their names, email addresses, and URLs;
h) transmit unsolicited or unauthorized advertising, promotions, political campaigning, or other unsolicited or unauthorized communications;
i) enter, disclose or disseminate any personal information about anyone (including you) unless the Services (e.g., those connected to social networking service) require you to enter such personal information;
j) use or exploit any bugs, errors, or design flaws to obtain unauthorized access to the Services, to gain an unfair advantage over other players, or to otherwise cheat or utilize unauthorized exploits in connection with the Services; or
k) do anything that interferes with the ability of other users to enjoy the Services in accordance with its rules, or otherwise engage in any other activity that may expose BNEE or any third parties to harm or liability of any type.
Unless through the intentional fault or gross negligence of BNEE, BNEE is not responsible or liable for the conduct of any users, whether or not such conduct relates to the access or use of the Services. BNEE may suspend or terminate your access to the Services at any time if you violate the terms of this Section 8 or any other terms and conditions of this Agreement.
9. MOBILE SERVICES. By accessing and using the Services using a Device, or by using certain mobile features of Services, such as playing games, or otherwise engaging with the Services, you may incur fees from the your mobile carrier. You are solely responsible for the payment of such fees.
10. IN-GAME CURRENCY AND VIRTUAL ITEMS.
a) BNEE may offer you the ability to: (a) purchase a limited license to use in-game currency (“Purchased Game Currency”); (b) earn a limited license to use in-game currency by performing specified tasks in the Game (“Earned Currency” together with the Purchased Game Currency, “Game Currency”); and/or (c) earn a limited license, and/or purchase a limited license with Game Currency, to virtual goods and services made available by BNEE in the Game (collectively, “Virtual Items”). If BNEE offers the ability to purchase or earn such licenses, BNEE hereby grants you a non-exclusive, non-transferable, revocable, limited right and license to use Game Currency and Virtual Items, as applicable, for your personal, non-commercial use exclusively in the Game, subject to the terms of this Agreement and your compliance therewith.
b) Game Currency may only be redeemed for Virtual Items for use in the Game and neither Game Currency and Virtual Items are redeemable for money or monetary value from BNEE or any other person or entity, except as otherwise required by applicable law. Game Currency and Virtual Items do not have an equivalent value in real currency and do not act as a substitute for real currency. Neither BNEE nor any other person or entity has any obligation to exchange Game Currency or Virtual Items for anything of value, including, but not limited to, real currency. You acknowledge and agree that BNEE may engage in actions that may impact the in-game attributes or perceived value of Game Currency and/or Virtual Items at any time, except as prohibited by applicable law. BNEE, in its sole discretion, may impose limits on the amount of Game Currency that may be purchased, earned, or redeemed.
c) All purchases of Purchased Game Currency are final and are not refundable, transferable, or exchangeable under any circumstances, except as otherwise agreed herein. Except for the purchase price of Purchased Game Currency and certain Virtual Items, BNEE does not charge any fees for the access, use, or non-use of Game Currency or Virtual Items.
d) You may not transfer, sell, gift, exchange, trade, lease, sublicense, or rent Game Currency or Virtual Items except in the Game and as expressly permitted by BNEE. Except as otherwise agreed herein, BNEE reserves and retains all rights, title, and interest in and to the Game Currency and Virtual Items.
e) The licenses granted hereunder to Game Currency and Virtual Items will terminate upon termination of this Agreement in accordance with Section 4 and as otherwise provided herein.
11. RIGHT OF WITHDRAWAL. If you are a resident of a member state of the European Union, you have a withdrawal right for every purchase of Game Currency or Virtual Items made with real money detailed below. However, you expressly waive your withdrawal right once the performance of the service begins and your account is provided access to the Game Currency or Virtual Items. You hereby expressly acknowledge that performance begins immediately after you complete your purchase, and once we make your purchase available to you, the contract has been fully performed by us.
a) Right of Withdrawal
You have the right to withdraw from this contract within 14 days without giving any reason. The withdrawal period will expire after 14 days from the day of the conclusion of the contract. To exercise the right of withdrawal, you must inform us of your decision to withdraw from this contract by an unequivocal statement (e.g. a letter sent by post, fax or e-mail). You may use the below model withdrawal form, but it is not obligatory. To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.
b) Effects of Withdrawal
If you withdraw from this contract, we shall reimburse to you all payments received from you, including the costs of delivery (with the exception of the supplementary costs resulting from your choice of a type of delivery other than the least expensive type of standard delivery offered by us), without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw from this contract. We will carry out such reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement.
If you requested to begin the performance of services during the withdrawal period, you shall pay us an amount which is in proportion to what has been provided until you have communicated us your withdrawal from this contract, in comparison with the full coverage of the contract.
c) Waiver of Withdrawal Right for Digital Content
The right of withdrawal regarding digital content which is not supplied on a tangible medium lapses if the performance has begun with your prior express consent and your acknowledgment that you thereby lose your right of withdrawal.
d) Model Form for the Withdrawal
To withdraw from the contract customers that have a right to withdraw according to the above clause may use the following form which is not required.
–To BANDAI NAMCO Entertainment Europe, 49-51 rue des Docks, CS 90618, 69258 Lyon Cedex 09, France
– I hereby give notice that I withdraw from my contract of sale of the following goods
– Ordered on [INSERT DATE] / received on [INSERT DATE],
– Name of consumer
– Address of consumer,
12. COPYRIGHT. Unless otherwise indicated, all content (other than User Content, as defined below) and other materials on the Services or available through the Services, including, without limitation, the BNEE logo, and all designs, text, graphics, pictures, information, data, Software, sound files, Game Currency, Virtual Items, other files and the selection and arrangement thereof (collectively, the "Services Materials") are the proprietary property of BNEE, its sponsors or licensors and are protected by U.S. and foreign copyright or other intellectual property laws and treaties. Notwithstanding any provision to the contrary herein, you agree that you have no right or title in or to any content that appears in the Services, including without limitation any Game Currency and Virtual Items.
13. TRADEMARKS. BNEE logos and any other product or service name or slogan from the Services are trademarks of BNEE and its suppliers or licensors, and may not be copied, imitated, or used, in whole or in part. You may not use any metatags or any other "hidden text" utilizing "BNEE" or any other name, trademark, or product or service name of BNEE. In addition, the look and feel of the Services (including all page headers, custom graphics, button icons, and scripts) is the service mark, trademark, or trade dress of BNEE and may not be copied, imitated, or used, in whole or in part. All other trademarks, registered trademarks, product names, and logos mentioned in the Services are the property of their respective owners. Our reference to any products, services, processes, or other information, by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by us.
14. USER CONTENT. BNEE may (for example in response to a claim from a copyright owner) review any content, communication, information, intellectual property, material, messages, photos, graphics, videos, URLs, and other items or content (collectively, "User Content") that is uploaded, published, stored, or displayed on the Services (hereinafter, "posted") provided that in the case of User Content shared as a part of any private message within the Service, BNEE will not screen or review such content unless at least one party to the communication grants its consent, e.g. by reporting the message to BNEE as objectionable. BNEE reserves the right to delete or refuse to take online any User Content. Although BNEE does not regularly screen, edit, or monitor any of the User Content posted on the Services, BNEE reserves the right, and has absolute discretion, to remove, screen, or edit any User Content posted on the Services if BNEE determines in its reasonable discretion that such User Content violates this Agreement and/or any third party right, applicable law, rule, or regulation. You are solely responsible for any User Content that you post or transmit to any users or third parties and for creating backup copies and replacing any User Content you post on the Services at your sole cost and expense. You will not post or transmit any User Content that is prohibited on the Services, i.e. that, as determined by BNEE at our discretion:
a) is unlawful, libelous, defamatory, offensive, obscene, pornographic, indecent, vulgar, lewd, sexually explicit, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, or fraudulent; promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual; or is otherwise objectionable;
b) would constitute, encourage, or provide instruction for a criminal offense (including making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses); violate the rights of any party; or otherwise create liability under or violate any local, state, national, or international law;
c) involves the transmission of "junk mail," "chain letters," commercial advertisements, any type of commercial solicitation, unsolicited promotions, political campaigning, or unsolicited mass mailing or "spamming";
d) promotes information that you know is false, misleading, or that impersonates any person or entity or otherwise misrepresents your affiliation with any person or entity;
e) describes, references, or otherwise communicates violent, dangerous, illegal, or criminal acts;
f) promotes an illegal and/or unauthorized ("pirated") copy of another person’s copyrighted work (whether marked as such, or not), such as, but not limited to, providing pirated computer programs or links to them, providing information to circumvent copy-protection mechanisms, or providing pirated music, video or other pirated content, or links to such pirated music, video files, or files that contain such other pirated content;
g) contains restricted or password-only access pages, or hidden pages or images (those not linked to or from another accessible page);
h) displays pornographic or sexually explicit material of any kind and in any form;
i) provides material that exploits anyone in a sexual or violent manner, solicits personal information from anyone, or is harmful to anyone in any way;
j) solicits passwords or personal information of any kind for commercial or unlawful purposes from other users;
k) contains personal information relating to you or another individual or any other information that poses or creates a privacy risk for you or another individual;
l) engages in commercial activities or commercial sales, including, without limitation, contests, sweepstakes, barter, advertising, and pyramid schemes;
m) constitutes, promotes, or is used primarily for the purpose of dealing in: counterfeit goods, items subject to US embargo, illegal drugs and paraphernalia, stolen products and items used for theft, unlicensed trade or dealing in stocks or securities, gambling items, professional services regulated by state licensing regimes or non-transferable items;
n) may infringe any patent, trademark, trade secret, copyright, or other intellectual or proprietary right of any party; or
o) otherwise violates the terms of this Agreement or creates liability for BNEE.
Unless through the intentional fault or gross negligence of BNEE, BNEE does not take responsibility for or assume liability for any User Content posted by you or any third party, or for any loss or damage, nor is BNEE liable for any user conduct or any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter. If you become aware of User Content that violates this Agreement (with the exception of copyright infringement, which is addressed below), you may report it by contacting BNEE. However, the absence of enforcement of this Agreement in some instances does not constitute a waiver of our right to enforce this Agreement in other instances. In addition, this Agreement does not create any private right of action on the part of any third party or any reasonable expectation or promise that the Services will not contain any content that is prohibited by this Agreement. BNEE reserves the right (but is not obligated) to investigate and to take appropriate legal action in its sole discretion against anyone who violates this provision, including without limitation, removing the offending User Content from the Service and terminating the membership of such violators.
15. License to User Content. By posting any User Content, you automatically grant, and you represent and warrant that you have the right to grant, to the extent permitted by applicable local law, to BNEE a sublicensable, transferable, nonexclusive, royalty-free and fully paid, worldwide license for the whole duration of the applicable legal protection of intellectual rights to represent, reproduce and adapt on all digital formats, distribute, publicly display and perform (including by means of a digital audio transmission), and otherwise use User Content and to prepare derivative works of, or incorporate into other works, such User Content, and to grant and authorize sublicenses of the foregoing.
16. Feedback. We do not accept proposals for product ideas, other ideas, plans, notes, drawings, or original or creative materials from customers or users. Please understand that even in the event that we receive such proposals, we will not bear any obligation or responsibility for said proposals. However, in the event you submit questions, comments, suggestions, proposals for product ideas, other ideas, plans, notes, drawings, original or creative materials, or other information about BNEE or our Services ("Submissions"), whether submitted through the Services or otherwise, such Submissions are non-confidential as between you and BNEE and shall become the sole property of BNEE. BNEE shall own, and you hereby assign to BNEE, all right title and interest, including all intellectual property rights (except for those rights which assignment is forbidden by applicable law), in and to such Submissions, and BNEE shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
17. REPEAT INFRINGER POLICY. BNEE has adopted a policy of terminating, in appropriate circumstances and at BNEE’s sole discretion, Users who are deemed repeat infringers. At its sole discretion, BNEE also may limit access to the Services or terminate the User Accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
18. Copyright policy. If you are a copyright owner or an agent of a copyright owner and believe that anything on the Service infringes upon any copyright that you own or control, you may submit a notification of such infringement with our designated Copyright Agent as set forth below:
BANDAI NAMCO Entertainment Europe
Attn: Copyright Agent
49-51 rue des Docks
69258 Lyon Cedex 09
You can help expedite the processing of your notification by providing the information and declarations set out in 17 U.S.C. §512(c)(3). Compliance with this statute is not a prerequisite for infringement notification unless you are located in the United States. You should note that if you knowingly misrepresent in your notification that the material or activity is infringing, you may be liable for any damages, including costs and attorneys’ fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
19. THIRD PARTY CONTENT. Content from any Users, advertisers, and other third parties may be made available to you through the Services. Because we do not control third party content, you agree that unless due to intentional fault or gross negligence of BNEE, we are not responsible for any third party content, make no guarantees about the accuracy, currency, suitability, or quality of the information in third party content; and assume no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful third party content. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by BNEE.
20. ADVERTISEMENTS AND PROMOTIONS; THIRD PARTY PRODUCTS, SERVICES AND PROMOTIONS. BNEE may display advertisements and promotions from third parties on the Services or may otherwise provide information about or links to third-party products or services on the Services. Your business dealings or correspondence with, or participation in promotions of, such third parties, and any terms, conditions, warranties, or representations associated with such dealings or promotions, are solely between you and such third party. BNEE is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or promotions or as the result of the presence of third-party information on the Services.
21. MODIFICATION OF THE SERVICES. BNEE reserves the right to modify or discontinue, temporarily or permanently, the Services or any features or portions thereof with prior reasonable notice and, in case of emergency or if absolutely necessary, without prior notice. You agree that BNEE will not be liable for any modification, suspension, or discontinuance of the Services or any part thereof.
22. DISCLAIMER. YOU ACKNOWLEDGE THAT THE USE OF INTERNET IS NOT RISK-FREE. WHILE BNEE ATTEMPTS TO MAKE YOUR ACCESS TO AND USE OF THE SERVICES SAFE, BNEE CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR ITS SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE THE SERVICES MAY CONTAIN BUGS, ERRORS, AND DEFECTS. ACCORDINGLY, THE SERVICES ARE PROVIDED "AS IS," WITH ALL FAULTS, DEFECTS AND ERRORS, AND WITHOUT WARRANTY OF ANY KIND. BNEE DISCLAIMS ALL WARRANTIES (EXPRESS OR IMPLIED AND ARISING BY LAW OR OTHERWISE) REGARDING THE SERVICES AND THE PERFORMANCE OR SUITABILITY FOR YOUR INTENDED USE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.
Some jurisdictions do not allow the disclaimer of implied terms nor the exclusion or limitation of warranties in contracts with consumers, so some or all of the disclaimers in this section may not apply to you.
If you are a resident of Australia, in addition to the above terms in this section, the following additional wording will apply to you:
This Section 14 does not intend to limit or reduce any mandatory or statutory consumers’ rights or remedies that apply under the laws of your local jurisdiction. To the extent permitted by law, the conditions and warranties implied by the Schedule 2 of the Competition and Consumer Act 2010 (Cth) (the Australian Consumer Law) are entirely excluded from this Agreement, and to the extent that they may not be excluded, you acknowledge that the liability of BANDAI NAMCO is limited to, and acknowledge that, it is fair and reasonable so to limit BANDAI NAMCO’s liability to:
(i) the supplying of the Game again; or
(ii) the payment of the cost of having the Game supplied again.
If you are a resident of Germany, in addition to the above terms in this section, the following additional wording will apply to you:
To the extent any services are provided against a fee, the following applies: BANDAI NAMCO warrants that the Game will operate materially as specified in the applicable documentation or product description. In the event of any defect, BANDAI NAMCO will provide subsequent performance by either removing the defect (e.g. by providing a patch) or providing a new version of the service that does not have the defect, within a reasonable time period allowing for at least three attempts at subsequent performance. If subsequent performance definitely fails, you may exercise your other statutory rights, provided however that BANDAI NAMCO’s no-fault liability for initial defects under sec. 536a para 1. of the German Civil Code is excluded in any event.
23. LIMITATION ON LIABILITY. EXCEPT FOR (1) DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE, (2) FRAUD OR FRAUDULENT MISREPRESENTATION, (3) INTENT OR GROSS NEGLIGENCE, (3) LOSS OR DESTRUCTION OF TANGIBLE PERSONAL PROPERTY CAUSED BY THE USE OF THE SERVICES, AND (5) ANY OTHER LIABILITY WHICH CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW, IN NO EVENT SHALL BNEE OR THE BNEE PARTIES (as defined below) BE LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE SERVICES OR THE CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICES. IN THE EVENT OF SLIGHT NEGLIGENCE, OR BREACH OF BNEE’S ESSENTIAL OBLIGATIONS UNDER THIS AGREEMENT, BNEE’S LIABILITY SHALL BE LIMITED TO DIRECT AND FORESEEABLE DAMAGES SUFFERED BY YOU. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF BNEE, WHETHER IN CONTRACT, WARRANTY, TORT, PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SERVICES OR TO THESE TERMS EXCEED ONE HUNDRED EUROS (100€) OR, IF HIGHER, THE AMOUNT PAID BY YOU TO BNEE FOR YOUR USE OF THE SERVICE.
24. INDEMNIFICATION. You will indemnify and hold harmless BNEE, its subsidiaries, affiliates, officers, employees, agents, and other partners and suppliers (collectively, “BNEE Parties”) from any loss, liability, claim, or demand, including reasonable attorney’s fees, made by any third party due to or arising out of your use of the Services in violation of this Agreement, arising from a breach of this Agreement, or arising from any breach of your representations and warranties set forth above, except to the extent that you are not responsible for such breach, i.e. your acts or omission were not intentional or negligent.
25. BINDING ARBITRATION.
THIS SECTION 25 APPLIES TO YOU ONLY IF YOU RESIDE IN THE UNITED STATES OR CANADA, EXCLUDING THE PROVINCES OF QUEBEC AND ONTARIO.
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO SUBMIT TO BINDING ARBITRATION (JURY TRIAL WAIVER) OF ANY AND ALL DISPUTES (OTHER THAN SPECIFIED INTELLECTUAL PROPERTY CLAIMS) WITH BNEE AND IT LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM BNEE (NO CLASS ARBITRATIONS, CLASS ACTIONS OR REPRESENTATIVE ACTIONS).
a) You and BNEE agree to arbitrate any cause of action, claim, or controversy (“Dispute”) arising from or relating to this Agreement or your use of the Services, except that you and BNEE are NOT required to arbitrate any Dispute in which either party seeks equitable and other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. ARBITRATION PREVENTS YOU FROM SUING IN COURT OR FROM HAVING A JURY TRIAL.
b) In the event of a Dispute, you or BNEE must send to the other party a notice of Dispute, which is a written statement that sets forth the name, address and contact information of the party giving the notice, the facts giving rise to the Dispute, and the relief requested. You must send any notice of Dispute to BANDAI NAMCO Entertainment Europe, by mail at 49-51 rue des Docks, CS 90618, 69258 Lyon Cedex 09, France, Attention: Legal Department/Arbitration Notice. We will send any notice of Dispute to you at the contact information we have for you. You and BNEE will attempt to resolve a Dispute through informal negotiation within sixty (60) days from the date the notice of Dispute is sent. After sixty (60) days, you or we may commence arbitration. You and BNEE agree that any Dispute must be commenced or filed within one year of a Dispute arising; otherwise, the Dispute is permanently barred.
c) You and BNEE agree that any arbitration will occur in San Francisco County, California, and that arbitration will be conducted confidentially by a single arbitrator of the American Arbitration Association (“AAA”). The arbitrator shall have working level competency in written and spoken French. You and BNEE agree that the arbitrator does not have the power to conduct a class arbitration or a representative action. The arbitration will be conducted pursuant to the AAA Consumer Arbitration Rules, which are incorporated into this Agreement. The AAA Consumer Arbitration Rules and other information about AAA are readily available at http://www.adr.org, by calling 1-800-778-7879, or by mail at 120 Broadway, Floor 21, New York, NY 10271. By entering into this Agreement, you either (1) acknowledge that you have read and understand the AAA Consumer Arbitration Rules or (2) waive reading the AAA Consumer Arbitration Rules and waive any claim that the AAA Consumer Arbitration Rules are unfair in any way.
d) You and BNEE agree that this Agreement evidences a transaction in interstate commerce, and, thus, the Federal Arbitration Act governs the interpretation and enforcement of this section.
26. CLASS ACTION WAIVER.
THIS SECTION 26 APPLIES TO YOU ONLY IF YOU RESIDE IN THE UNITED STATES OR CANADA, EXCLUDING THE PROVINCES OF QUEBEC AND ONTARIO.
WHETHER THE DISPUTE IS HEARD IN ARBITRATION OR IN COURT, YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND BNEE ARE EACH WAIVING THE RIGHT TO PARTICIPATE IN A CLASS ACTION, CLASS ACTION ARBITRATION OR OTHER REPRESENTATIVE ACTION OR PROCEEDING.
27. GOVERNING LAW.
If you reside in the United States or Canada:
Any dispute between the parties arising from or relating to this Agreement, whether or not subject to arbitration, will be governed by this Agreement and the laws of the State of California and applicable United States law, without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction.
If you reside in Japan:
Any dispute between the parties arising from or relating to this Agreement will be governed by this Agreement and the laws of Japan, without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction.
If you reside in any other location::
Any dispute between the parties arising from or relating to this Agreement will be governed by this Agreement and the laws of France, without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction.
If you reside in the United States or Canada:
Any dispute between the parties arising from or relating to this Agreement not subject to arbitration, or where no election to arbitrate has been made, shall be decided by the state and federal courts in San Francisco County, California, and you and BNEE agree to submit to the personal jurisdiction of that court.
If you reside in Japan:
Any dispute between the parties arising from or relating to this Agreement shall be decided by the Tokyo District Court, and you and BNEE agree to submit to the personal jurisdiction of that court.
If you reside in any other location:
Any dispute between the parties arising from or relating to this Agreement shall be decided by the Commercial Court of Lyon, and you and BNEE agree to submit to the personal jurisdiction of that court.
29. U.S. EXPORT CONTROLS; LEGAL COMPLIANCE. The Software is further subject to United States export controls. No Software may be exported or re-exported (a) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria, Sudan or any other country to which the U.S. has embargoed goods; or (b) 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 using the Software, 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. You agree to comply with all applicable laws and regulations, including U.S. export control laws, in the use of the Software. If you are a resident of a country other than the U.S., you agree to comply with all applicable laws and regulations, including applicable U.S. and applicable local export control laws, in the use of the Software.
30. THIRD-PARTY BENEFICIARIES. Except as set forth in this section below, a person or entity who is not a party to this Agreement shall have no rights under any law to enforce any terms of this Agreement, regardless of whether such person or entity has been identified by name. Nothing in this section shall affect the rights of any permitted assignee or transferee of this Agreement.
31. MISCELLANEOUS. This Agreement contains the entire agreement between you and BNEE regarding the use of the Services. If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall continue in full force and effect, except if such provision deprives the Agreement from its essential obligations. Except as set forth in Section 30, no party will be deemed as a third-party beneficiary to this Agreement and a third party (including Users other than you) who is not a party to this Agreement has no right to enforce any term of this Agreement. You may not assign this Agreement or any of its rights under this Agreement without the prior written consent of BNEE, and any attempted assignment without such consent shall be void. Subject to the foregoing restriction, this Agreement will be fully binding upon, inure to the benefit of, and be enforceable by us and our respective successors and assigns. The failure of BNEE to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. To contact BNEE, please contact BNEE through BNEE customer service at http://bandainamcoent.eu/support or BANDAI NAMCO ENTERTAINMENT EUROPE, 49/51 rue des Docks, CS 90618 – 69258 LYON CEDEX 09 – France.