Yahaha End User License Agreement
Yahaha (“our”, “we” or “us”) provides you with a creative platform (the “Platform” or “Yahaha Platform”) that allows you to play games with other users, develop your own games and contents, and use contents created by you and other users. Except to the extent you and Yahaha have executed a separate agreement, these terms and conditions exclusively govern your participation in activities, access to and use of the Platform, applications, communities, contents, products and websites (collectively, the “Service”), and constitute a binding legal agreement between you and Yahaha (the “Terms”). These Terms, including all Additional Terms referenced in Section 1.c below, are, collectively, the “Agreement”. Unless otherwise indicated, “Yahaha” as used throughout the Agreement, means Yahaha Studios Oy Limited Company.
TO ENTER INTO THE AGREEMENT CREATED BY THESE TERMS, YOU MUST BE AN ADULT OF THE LEGAL AGE OF MAJORITY IN YOUR COUNTRY OF RESIDENCE. YOU ARE LEGALLY AND FINANCIALLY RESPONSIBLE FOR ALL ACTIONS USING OUR SERVICE. YOU AFFIRM THAT YOU HAVE REACHED THE LEGAL AGE OF MAJORITY, UNDERSTAND AND ACCEPT THESE TERMS. IF YOU ARE UNDER THE LEGAL AGE OF MAJORITY, YOU SHALL NOT USE ANY OF THE SERVICES UNLESS YOUR PARENT OR LEGAL GUARDIAN CONSENTS TO THESE TERMS AND YAHAHA APPROVES SO.
1. Acceptance of Terms
(a) By using any of our Services, you are agreeing to stick to the provisions of this Agreement, including the policies, rules, guidelines, the Terms, the Additional Terms, and any update and modification thereto. If you do not agree to the Agreement, you may not use the Service. In order to agree to these Terms, you need to (1) be 18 or older or have your parent or guardian’s consent to agree to the Terms with Yahaha’s approval, and (2) have the power to enter a binding contract with us and not be barred from doing so under any applicable laws.
(b) We reserve the right to update or modify the Terms at any time without prior notice. These changes will become effective immediately upon being posted through the Service. Your continued use of any of the Services following the posting of revised Terms means that you accept and agree to the changes. We suggest that you review these Terms frequently to stay informed of the latest modifications.
2. The Service
(a) Users are allowed to do following things through the Service on the Platform:
i. Develop, modify, contribute and upload content, which may be available to all of the users of the Service;
ii. Interact, play, and use the games and user-generated contents (“UGC”) on the Platform;
iii. Connect, chat, relate and socialize with other users; and
iv. Participate in activities or competitions organized on the Platform.
(b) We reserve the right, at its sole discretion, to modify, discontinue or terminate any and all of the Service(s) at any time without prior notice. We will have no liability whatsoever on account of any change to any of the Services.
(c) We may provide tools through the Services that enable you to share content(s) on third-party services, including through features that allow you to link your Account with an account on a third-party service, such as Facebook or Twitter, or through our implementation of third-party buttons (such as “like” or “share” buttons). Third-party services are not under our control, and we are not responsible for any third-party service’s use of your content. By using the Service, you expressly relieve us from any and all liability arising from your use of any third-party services.
3. Yahaha Accounts
(a) In order to use the Service on Yahaha Platform, you must register for an account (“Account”). When you register for an Account or update the information, you agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. We may require users to provide personal information, including but not limited to your name, ID number, age, or phone number, for the purpose of proving your identity.
(b) You may never allow anyone else to use your Account, or disclose your password to any third party. If you have reason to believe that your Account is no longer secure, then you must immediately notify us. You should change your password if you think someone whom you did not authorize knows what it is. You agree that we may take steps to verify the accuracy of information you provide, including contact information for a parent or guardian.
(c) Yahaha reserves the right to suspend or terminate your Account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. In addition, we may, in our sole discretion, (a) suspend or terminate your Account and/or your access to the Service, or (b) remove any of your content, at any time, without notice for any reason. We will have no liability whatsoever as a result of any suspension or termination of your access to or use of the Service.
(d) Yahaha is the owner of all right, title, and interest in and to all Accounts. All use of an Account shall inure to Yahaha’s benefit. You may not purchase, sell, gift, rent, trade or otherwise dispose of any Account, or offer to purchase, sell, gift, rent, trade or otherwise dispose of any Account, and any such attempt shall be null and void and may result in the forfeiture of the Account.
4. Yahaha Virtual Currency and Payments
(a) Yahaha Virtual Currency
i. We, in our sole discretion, may offer eligible users the Service to acquire a limited license to use our virtual currency (“Yahaha Virtual Currency”). If we offer you the ability to acquire a limited license to use Yahaha Virtual Currency, we hereby grant you a non-exclusive, revocable, personal, limited, non-transferable, non-sublicensable right and license to use Yahaha Virtual Currency only for your personal, entertainment use exclusively in connection with the Service as permitted by us, subject to these Terms.
ii. Users can acquire Yahaha Virtual Currency from Yahaha: (a) by purchasing Yahaha Virtual Currency from us using actual monetary instruments if you have reached the age of “majority” where you live; (b) by acquiring certain memberships from us that provide a specified amount of Yahaha Virtual Currency; (c) by creating certain UGC for the Service and receiving Yahaha Virtual Currency as reward; or (d) through such other methods as we may offer from time to time. We will credit your Account for any Yahaha Virtual Currency acquired by you. Your license to use Yahaha Virtual Currency will terminate upon termination of these Terms or your Account and as otherwise provided herein, except as otherwise required by applicable law.
iii. Users are allowed to transfer, assign, sell, gift, exchange, trade Yahaha Virtual Currency with other users only through the Service. We will implement tools to track the source of Yahaha Virtual Currency in your Account. The only scenario you can redeem your Yahaha Virtual Currency for cash is when you are paid by other users using Yahaha Virtual Currency as the reward for your creation to the Service. Neither we nor any third party has any obligation to exchange Yahaha Virtual Currency for anything of value, including, but not limited to, real currency, except as expressly provided in these Terms or otherwise required by applicable law. We, in our sole discretion, may impose limits on Yahaha Virtual Currency, including, but not limited to, the amount that may be acquired, earned, or redeemed.
iv. Yahaha Virtual Currency do not: (a) have an equivalent value in real currency; (b) act as a substitute for real currency; (c) act as consideration for any legally enforceable contract (except where we grant a license to use Yahaha Virtual Currency); or (d) earn interest. Yahaha Virtual Currency are not redeemable or exchangeable for real currency, monetary value, or convertible virtual currency from us or any other third party, except as expressly provided in these Terms or otherwise required by applicable law. Transactions involving the exchange of Yahaha Virtual Currency for virtual items or virtual services on the Platform are not legally enforceable, may not form the basis of any private right of action against us or any third party, and are governed solely by us in our sole discretion and application of these Terms.
v. All payments for Yahaha Virtual Currency are final and not refundable or exchangeable, except as required by applicable law. You may not transfer, assign, sell, gift, exchange, trade, convert, lease, sublicense, rent, or distribute Yahaha Virtual Currency except through the Service and as expressly permitted by us. Any disposition or attempted disposition of Yahaha Virtual Currency in violation of these Terms will be void and will result in immediate termination of your Account and your license to use Yahaha Virtual Currency. We do not recognize any third-party services that may be used to sell, trade, transfer, or otherwise dispose of Yahaha Virtual Currency. We do not assume any responsibility for, and will not support, such transactions.
vi. We may at any time regulate, control, modify and eliminate Yahaha Virtual Currency as we see fit in our sole discretion. You acknowledge and agree that we may engage in actions that may impact the perceived value or acquired price of Yahaha Virtual Currency at any time, except as prohibited by applicable law.
vii. Except as otherwise prohibited by applicable law and except for the limited licenses granted under these Terms, we reserve and retain all rights, title, and interest in and to Yahaha Virtual Currency.
viii. We, in our sole discretion, have the absolute right to manage, modify, suspend, revoke, and terminate your license to use Yahaha Virtual Currency without notice, refund, compensation, or liability to you, except as otherwise prohibited by applicable law. We make no guarantee as to the nature, quality, or value of Yahaha Virtual Currency or the availability or supply thereof.
(b) Making Payments
ii. Unless otherwise expressly stated in these Terms or unless otherwise agreed to, all payments are final and non-refundable, except as required by applicable law. You represent and warrant that you have the authority and right to use the payment method selected by you and that such payment method has sufficient credit or funds available to complete your payment. If you believe someone has made unauthorized purchases without your permission, you should notify us of the charge immediately. We reserve the right to close any Account with unauthorized charges.
iii. As discussed elsewhere in these Terms, there may be situations where games, assets, or other content may be removed from the Service (due to violations of these Terms or for other reasons). We want to remind you that all sales are final and there shall be no refunds except as required by law. We will not allow changes to your purchase after you complete it. We will have no liability for any losses you may incur as a result, and will not be liable to refund any Yahaha Virtual Currency or other funds you spent in or for that game or content.
(c) Receiving Payments
i. Users can receive payments as the reward for the UGC they created on the Platform. The payments will be in the form of Yahaha Virtual Currency, paid by us or by other users who exploit your content, and you are allowed to redeem Yahaha Virtual Currency for cash to receive the payments through the Service. You represent and warrant that you are the creator of the UGC which you earn Yahaha Virtual Currency from, and the payments shall only be received on creators’ behalf.
ii. During the promotion period specified by Yahaha at its sole discretion, Yahaha will pay you 85% of the Revenue generated by your UGC on the Platform in the form of Yahaha Virtual Currency. Revenue refers to payments directly generated by your UGC and actually received by Yahaha. Yahaha reserves its right to determine a different Revenue share methodology when the promotion period is over.
iii. We will implement tools to track the source of Yahaha Virtual Currency in your Account. If you violate the Terms by trying to redeem Yahaha Virtual Currency in your Account which are not from the payments to your UGC, your license to use Yahaha Virtual Currency will be terminated by us immediately without prior notice.
iv. Payments made under the Agreement shall be made without deduction or set-off for any withholding taxes, levies, imports, duties, charges and/or fees imposed by any governmental taxing authority except as required by law. If you are required to make any such deduction, you will pay to Yahaha such additional amounts as are necessary to ensure Yahaha’s receipt of the full amount that Yahaha would have received but for the deduction. You will be responsible for, and agree to promptly pay, all taxes or duties of any kind (including but not limited to sales, use and withholding taxes) associated with any payment or income from your use of the Services. In the event that Yahaha is required to collect any tax for which you are responsible, you will pay such tax directly to Yahaha or its payment processor. Yahaha reserves the right to collect any applicable sales, use or value added tax.
5. Intellectual Property
i. The visual interfaces, graphics, design, assets, compilation, information, data, computer code (including source code or object code), products, software, applications, services, and all other elements of the Service (“Intellectual Property” or “IP”) are protected by applicable laws and regulations. All IP contained in the Service is our property or third-party licensors’ property. Except as expressly authorized by us in these Terms, you may not make use of any IP contained in the Service unless you get separate permission from the owner. We reserve all rights to the IP not granted expressly in these Terms.
ii. You are permitted to use the Service for your personal, non-commercial use only or legitimate business purposes related to your role as a user of Yahaha. Subject to your ongoing compliance with these Terms, we grant you a non-exclusive, personal, limited, revocable, non-transferable and non-sublicensable license to use the Service on compatible devices that you own or control for your personal, entertainment use. For clarity, the foregoing permissions are limited to the Service, and no rights are granted with respect to any servers, computers, or databases associated with the Service.
iii. You are not allowed to export any raw data or files of any content present on the Platform to your personal devices. You are not allowed to hack, reverse engineer, decompile or change our Service, which includes the code or any content or data. You also aren’t allowed to create any software or content that mimics our Service or branding. You may not rent, lease, lend, sell, redistribute, and sublicense any portion of the Service for any commercial purposes. You may not copy, distribute, publicly perform, publicly display, decompile, reverse engineer, disassemble, attempt to derive the source code and assets, nor attempt to disable or circumvent any security or other technological measure designed to protect the Service, including any protections for the Platform.
iv. If you breach these restrictions, or otherwise exceed the scope of the licenses granted herein, you may be subject to prosecution and damages, as well as liability for infringement of Intellectual Property Rights. We have the right to ask you to provide necessary information or documents for the purpose of investigation if such breach is detected.
i. Yahaha will provide an opportunity for you to Provide UGC through the Service, including but not limited to 3D images, animation, codes, computer graphics (CG), assets, and games. “Provide” means to create, modify, or generate through the Service, or upload, post, publish, or otherwise provide to, for, or through us, someone, or something on behalf of us or the Service.
ii. For any UGC that you have ever Provided or that you will Provide (whether created solely by you or together with others) between you and us or you and users, you will retain all Intellectual Property Rights in the UGC. In consideration of using the Service and the potential to earn Yahaha Virtual Currency as discussed in the Yahaha Virtual Currency section, you grant us a perpetual, irrevocable, worldwide, non-exclusive, royalty-free right and license (with the right to sublicense to an person or entity associated with the use and operation of the Service within Yahaha Platform) to host, store, transfer, publicly display, publicly perform, reproduce, modify, create derivative works of, distribute, and use in any way the UGC that you Provide, in whole or in part, including modifications and derivative works, in any media or format (tangible or intangible) and through any media, items or channels (online, offline, or others, now known or hereafter developed), including for publicity and marketing purposes. If you Provide UGC, you do not have the right to remove or modify that UGC (unless Yahaha provides tools for you to remove or modify that specific type of UGC, or unless otherwise required by law). When using the Service, you will also grant other users the right to use your UGC, and other users may use your UGC to create their own games and other UGC on the Service, and you will not be entitled to any revenue that those other users earn, even if they use your UGC. “Intellectual Property Rights” means any and all intellectual property rights wherever in the world and whenever arising (and including any application), including patent laws, copyright, trade secrets, know-how, confidential information, business names and domain names, computer programs, trademark laws, service marks, trade names, utility models, design rights, semi-conductor topography rights, database rights, goodwill or rights to sue for passing off, and any and all other proprietary rights worldwide.
iii. Other than the potential to earn Yahaha Virtual Currency by allowing other users to pay for your UGC, we shall not be obligated to provide to you any compensation, attribution, or other payments for any reasons, including for exploitation of the rights discussed immediately above, whether in relation to the Service or otherwise. BY ACCEPTING THESE TERMS AND CONTINUING TO USE THE SERVICE, YOU AGREE THAT THE TERMS APPLLY TO ANY UGC YOU PROVIDED TO US AT ANY TIME (FROM YOUR FIRST USE OF THE SERVICE, WHICH MAY PREDATE YOUR ACCEPTANCE OF THIS VERSION OF THE TERMS).
iv. Templates may be made available to you as a starting point for creating your UGC, however your use of a template does not give you any copyrights or other ownership rights in such template.
v. You are solely responsible for your UGC and you represent and warrant that:
1. You are the creator of, or have the necessary licenses, rights, consents, and permissions, to use your UGC and Provide your UGC to us. You must not Provide any UGC if you are not the creator of or are not fully authorized to Provide us the UGC you intend to Provide. You agree to pay all monies owing to any person as a result of Providing your UGC; and
2. Your UGC, and the use of your UGC as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party legitimate rights and interests; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; (iii) require Yahaha to obtain any further licenses from or pay royalties or compensation or other amounts or provide any attribution to any third parties; (iv) result in a breach of contract between you and a third party; or (v) cause us to violate any law or regulation. Examples of the content which we consider as inappropriate include: content that include racist or homophobic language; content that are bullying; content that are offensive or that damage our or another person’s reputation; content that include porn, advertising or someone else’s creation or image; or content that impersonate a moderator or try to trick or exploit people.
vi. We do not allow any gambling related content on the Platform. Gambling means the users agree to win or lose something of monetary value solely or partially by chance. For content that allow users to pay (with Yahaha Virtual Currency or otherwise) for random virtual items only, you must let users know the odds of receiving each type of random item (that a user might receive) prior to paying. Please note that you must disclose those odds whether the user pays directly or indirectly.
vii. We will but we are under no obligation to edit or control UGC that you or others Provide, and will not be in any way responsible or liable for UGC. We may, at any time and without prior notice, screen, remove, edit, or block any UGC that in our sole judgment violates these Terms or is otherwise objectionable. Your provision of UGC may be subject to ex-post screening by us.
viii. You understand that when using the Service, you will be exposed to UGC from a variety of sources and acknowledge that UGC may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against us with respect to UGC. If notified by a user or content owner that UGC allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the UGC, which we reserve the right to do at any time and without notice. For clarity, we do not permit copyright-infringing activities on the Service.
(c) Notice and Takedown Procedure
i. We respect the Intellectual Property Rights of others and we ask you to do the same. If you are an Intellectual Property Rights holder or an agent of a Intellectual Property Rights holder and believe that any content on the Service infringes upon your Intellectual Property Rights, you may submit a notification by contacting our agent at [firstname.lastname@example.org] by providing the following information in writing:
1. An electronic or physical signature of the person authorized to act on behalf of the owner of the Intellectual Property Rights being infringed;
2. A description of the protected work that you claim has been infringed;
3. A description of the material that you claim is infringing and where it is located;
4. Your address, telephone number, and email address;
5. A statement by you that you have a good faith belief that the use of those materials is not authorized by the Intellectual Property Rights holder, its agent, or the law; and
6. A statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the Intellectual Property Rights holder or authorized to act on the Intellectual Property Rights holder’s behalf.
ii. Regarding any content that was removed or disabled, if you believe that your content is not infringing or that you have the authorization from the Intellectual Property Rights holder, the Intellectual Property Rights holder’s agent, or pursuant to the law, to post and use the material in your content, you may send a counter-notice to our agent, providing the proof of the authorization or statement of the legitimacy of the use.
iii. When our agent receives a counter-notice, we may send a copy of the counter-notice to the original complaining party informing that party that we may restore the removed content or stop disabling it. Unless the Intellectual Property Rights holder files an action seeking a court order against the provider of the content, the removed content may be restored after receipt of the counter-notice, in our sole discretion.
iv. You acknowledge that if you fail to comply with all of the requirements of this Section 5(c), your notice or counter-notice may not be valid. We reserve the right to request for more materials from you as we see fit for the above procedures.
v. Yahaha’s intellectual property policy is to: (i) remove or disable access to material that Yahaha believes in good faith, upon notice from an Intellectual Property Rights holder or his or her agent, is infringing the Intellectual Property Rights of a third party by being made available through the Service; and (ii) in appropriate circumstances, to terminate the Accounts of and block access to the Service by any User who repeatedly or egregiously infringes other people’s Intellectual Property Rights.
6. Third-Party Materials.
(a) Certain portions of the Service may include, display, or make available content, data, information, applications or materials from third parties (“Third-Party Materials”). You understand that by using the Service, you may encounter Third-Party Materials, such as third-party advertisements and promotional content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that may contain links or references to objectionable material. Nevertheless, you agree to use the Service at your sole risk and that we shall not have any liability to you for content that may be found to be offensive, indecent, objectionable, inaccurate, incomplete, untimely, invalid, illegal, of poor quality or otherwise.
(b) In addition, Third-Party Materials that may be accessed from, displayed on or linked to from your device are not available in all languages or in all countries. We make no representation that such services and materials are appropriate or available for use in any particular location. To the extent you choose to access such services or materials, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws.
You agree that you will be responsible for your use of the Service, and to the maximum extent permitted by law, you agree to defend and indemnify us and our officers, directors, employees, consultants, affiliates, investors, business partners, subsidiaries and agents (together, the “Affiliated Parties”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property or proprietary right, publicity or privacy right, property right, or confidentiality obligation; or (d) any Dispute or issue between you and any third party.
THE SERVICE ARE ALL PROVIDED BY YAHAHA ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATIONS, WARRANTIES, COVENANTS OR CONDITIONS OF ANY KIND. YAHAHA AND ITS LICENSORS DO NOT WARRANT OR REPRESENT THAT THE SERVICE, OR ANY PART THEREOF, WILL OPERATE UNINTERRUPTED OR ERROR-FREE. YAHAHA AND ITS LICENSORS DISCLAIM ALL WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL: (I) WARRANTIES OF MERCHANTABILITY; (II) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT YAHAHA KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE); AND (III) WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM YAHAHA OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THE AGREEMENT.
YOU SHALL BE SOLELY RESPONSIBLE FOR THE ACCURACY AND QUALITY OF YOUR CONTENT, AND YOU UNDERSTAND THAT YOU MUST EVALUATE AND BEAR ALL RISKS ASSOCIATED WITH YOUR USE OF THE SERVICE, OR YOUR RELIANCE ON THE ACCURACY, COMPLETENESS, OR USEFULNESS OF THE SERVICE.
9. No Warranties
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE AFFILIATED PARTIES OR US THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALING WITH ANY OTHER USERS ON THE SERVICE, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT. THESE LIMITATIONS APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
10. Limitation of Liability
(a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE AFFILIATED PARTIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
(b) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT THE AGGREGATE LIABILITY OF THE AFFILIATED PARTIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO (A) THE AMOUNTS PAID BY YOU IN THE MOST RECENT THREE (3) MONTHS FOR USE OF THE SERVICE; OR (B) ONE HUNDRED U.S. DOLLARS (US$100) (EXCEPT AS NOTED IN THE ARBITRATION SECTION BELOW).
11. Dispute Resolution, Arbitration and No Class Actions
(a) YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. You and we agree as follows: (a) neither you nor we will seek to have a Dispute heard as a class action, private attorney general action, or in any other proceeding in which either party acts or proposes to act in a representative capacity; (b) no arbitration or proceeding can be combined with another without the prior written consent of all parties to the arbitration or proceeding; and (c) if the class action waiver or any part of this Section 11 is found to be illegal or unenforceable as to all or some parts of a Dispute, those parts will be severed and proceed in a court of law, with the remaining parts proceeding in arbitration.
(b) For the purpose of this Agreement, “Dispute(s)” shall mean any dispute, action, controversy or claim arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal or equitable basis, and regardless of whether a claim arises during or after the termination of these Terms.
(c) These Terms are governed by the laws of the People’s Republic of China (“PRC”) without regard to conflict of law principles.
(d) If a lawsuit or court proceeding is permitted under these Terms, you and we agree to submit to the personal and exclusive jurisdiction of the courts located within the People’s Republic of China for the purpose of litigating any Dispute.
(e) Arbitration of Disputes
i. You and we agree to arbitrate all Disputes between you and us or our affiliates. You and we empower the arbitrator with the exclusive authority to resolve any Dispute, including without limitation whether or not any part of these Terms is void or voidable.
ii. You and we agree that nothing in these Terms will be deemed to waive, preclude, or otherwise limit your or our right to: (a) pursue an enforcement action through the applicable court if that action is available; (b) seek temporary, preliminary or other expedited or provisional injunctive relief (but not money damages); or (c) file suit in a court of law to address an intellectual property infringement claim or to compel or uphold any arbitration decision hereunder. In such cases, neither you nor we shall need to follow the informal negotiations procedure and timeline set out in the next subsection.
iii. To help get you and us to a resolution and to control costs for you and us regarding any Dispute, you and we agree to first attempt to informally discuss and try to negotiate a resolution to any Dispute for at least 90 days from when notice of the Dispute is sent. Those informal negotiations will commence upon written notice from you to us or us to you. We will send our notice to your registered email address and any billing address that you provided to us. If the Dispute cannot be resolved within that time period, and if either you or we desire to continue the Dispute, the party desiring to continue the Dispute shall commence arbitration.
iv. If you and we do not resolve a Dispute by informal negotiation, the Dispute shall be settled by binding arbitration before a neutral arbitrator whose decision will be final except for a limited right of appeal under the Arbitration Law of the PRC. YOU AGREE THAT YOU ARE GIVING UP THE RIGHT TO LITIGATE A DISPUTE IN COURT BEFORE A JUDGE OR JURY AND GIVING UP YOUR RIGHT TO A CLASS ACTION. Disputes shall be resolved by arbitration administered by the Shanghai International Arbitration Center (the “SHIAC”) under the SHIAC Administered Arbitration Rules in force when the Notice of Arbitration is submitted. The law of this arbitration clause shall be PRC law. The seat of arbitration shall be Shanghai. The number of arbitrators shall be three. The arbitration proceedings shall be conducted in English. Arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator may award damages to you individually as a court could, including declaratory or injunctive relief, but only to the extent required to satisfy your individual claim.
Any part of these Terms which by their nature should survive the termination of these Terms, shall survive such termination, including without limitation Sections 5, 8, 9, 10, 11, 12, and 13.
No waiver of any part of these Terms by either you or us shall be deemed a continuing or further waiver of any such part or any other part of the Terms, and your or our failure to assert any rights or part of these Terms shall not be deemed or otherwise constitute a waiver of such right or part.
(a) These Terms, together with the other documents expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and us regarding your use of the Service.
(b) The English language version of the Agreement is legally binding in case of any inconsistencies between the English version and any translations.
(c) You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time to any entity without notice or consent.
(d) This Agreement is binding on and inures to the benefit of our respective heirs, successors and assigns.
(e) Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision.
(f) If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible (or, if it cannot legally be given any effect, will be severed from these Terms), and the remaining parts will remain in full force and effect.
(g) Nothing in these Terms shall be deemed to confer any rights or benefits on a third party.
(h) You will comply with all laws in your use of the Service, including any applicable export laws. You will not directly or indirectly export, re-export, or transfer the Service to prohibited countries or individuals or permit use of the Service by prohibited countries or individuals.
(i) The Service is offered by Yahaha Studios Oy Limited Company located at Keilaranta 16 B, 02150, Espoo, Finland. You may contact us by sending correspondence to that address, calling us at [+358 5055 365 99] or email us at Contact@yahaha.com.