IWIN, INC. SERVICE AGREEMENT
Last Updated: 11/3/2016
This Agreement is entered into by and between iWin, Inc., a Delaware corporation ("iWin") and anyone that uses the iWin Games Application. By accessing or using this application, collectively including games, programs, subscriptions, membership, services, content, functionality and the like available through the domain name www.heavygames.com (the "Application"), You acknowledge and agree that You have read, understand and agree to be bound by, the terms and conditions set forth below, including the exhibits referenced herein which are incorporated herein (this "Agreement"). This Agreement will refer to the user of the Application as "You" or "Your."
PLEASE READ THIS AGREEMENT CAREFULLY. If you do not agree to the Terms and Conditions set forth below, please exit this Application immediately.
TERMS AND CONDITIONS
1. Eligibility; Registration Any registration, use or access of this Application by users who are under thirteen (13) years of age or users who are under eighteen (18) years of age and are barred from receiving services under the laws of the United States (or state and local laws therein or other applicable jurisdictions) is strictly prohibited and is in violation of this Agreement. By using or accessing this Application, You (i) represent and warrant that You are 13 or older, or else that You are 18 or older, and are not barred from receiving services under the laws of the United States (or state and local laws therein or other applicable jurisdictions) and (ii) You agree to abide by all of the terms and conditions of this Agreement. If You are under the age of 18, You represent that You are either an emancipated minor, or have obtained the legal consent of Your parent or legal guardian to enter into this Agreement, submit content, participate on this Application and fulfill the obligations set forth in this Agreement.
You are allowed only one account at www.heavygames.com. iWin reserves the right to enforce this limitation by requesting a system wide unique email address and/or credit card number. If it is discovered that You have circumvented this limitation, iWin has the right to terminate multiple accounts at any time in order to bring You into compliance with this limitation. Any monies associated with closed accounts are subject to forfeiture.
Notwithstanding anything to the contrary herein, the following persons are ineligible to receive any prize offered on the Application: employees, officers, and directors (and their immediate family members) of iWin; its parent companies, subsidiaries, and affiliates; and any other person with access to non-public information regarding the operation of any tournament offered on the Application. For purposes of this section, immediate family members include parents, siblings, spouses, children, or any other person permanently residing in the same household with such employee, officer, or director.
2. Acceptance This Agreement constitutes Your Agreement with iWin with respect to Your use of the Application and the iWin services and network (hereinafter, the "Service"). iWin reserves the rights to change, modify, add, or remove any terms and/or conditions of this Agreement (including Exhibits referenced herein) at any time in its sole and absolute discretion, and without prior notice. We recommend You bookmark this page and review it each time You use or access the Application, noting the "Last Updated" information at the top of this page. Your continued use of the Application after any changes are made shall be deemed Your acceptance of changes, without limitation or qualification.
3. Refunds, & Certain Financial Terms. Requests for subscription refunds must be received within 24 hours of purchase. In some cases, it may be deemed necessary to issue a check for a refund, which may take up to 30 days. You agree that iWin is not liable for any loss caused by any unauthorized use of Your credit card or any other method of payment by a third party in connection with iWin. Any attempt to defraud iWin through the use of credit cards or other methods of payment, regardless of the outcome, or any failure by You to honor legitimate charges or requests for payment will result in immediate termination of Your account, and forfeiture of any funds You may have deposited to which You are otherwise entitled, and civil and/or criminal prosecution.
4. Limited Warranty
iWin warrants that for a period of 2 Years from the date of shipment from iWin: (i) the media on which the Software is furnished will be free of defects in materials and workmanship under normal use; and (ii) the Software substantially conforms to its published specifications. Except for the foregoing, the Software is provided AS IS. This limited warranty extends only to Customer as the original licensee. Customer's exclusive remedy and the entire liability of iWin and its suppliers under this limited warranty will be, at iWin or its service center's option, repair, replacement, or refund of the Software if reported (or, upon request, returned) to the party supplying the Software to Customer. In no event does iWin warrant that the Software is error free or that Customer will be able to operate the Software without problems or interruptions.
This warranty does not apply if the software (a) has been altered, except by iWin, (b) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by iWin, (c) has been subjected to abnormal physical or electrical stress, misuse, negligence, or accident, or (d) is used in ultrahazardous activities.
DISCLAIMER. EXCEPT AS SPECIFIED IN THIS WARRANTY, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW.
IN NO EVENT WILL iWin OR ITS SUPPLIERS BE LIABLE FOR ANY LOST REVENUE, PROFIT, OR DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE EVEN IF iWin OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event shall iWin's or its suppliers' liability to Customer, whether in contract, tort (including negligence), or otherwise, exceed the price paid by Customer. The foregoing limitations shall apply even if the above-stated warranty fails of its essential purpose. SOME STATES DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY OR CONSEQUENTIAL OR INCIDENTAL DAMAGES.
5. Purchase of Virtual Items The use or purchase of any virtual item or virtual currency sold at www.heavygames.com is a purchase of a limited non-transferable, non-sublicenseable, revocable license. The license may be terminated immediately, at iWin's sole and absolute discretion, if the iWin member account is terminated for any reason, or if iWin modifies or discontinues providing any of the Services. Except for earlier termination as set forth herein, the license term for any subscription is typically the duration of the applicable subscription period. However, subscriptions may be offered in a variety of forms, including delivery of a set amount of virtual currency or number of virtual items during given periods or certain play for a given period.
All purchases of virtual currency or virtual items sold on our site are final. No refunds will be given, except in our sole and absolute discretion. You agree that the purchase of virtual currency or virtual items sold on the site is the purchase of a limited license to a subscription service and that You have no property interest in the virtual currency or virtual items.
6. Proprietary Rights in Application Content; Limited License All content included on the Application, including videos, graphics, designs, text, pictures, applications, software, music, sound and other files (the "Content"), are the proprietary property of iWin, its users or its licensors with all rights reserved. Except as otherwise set forth herein, You may not modify, copy, distribute, frame, republish, display, post, transmit, download or sell any Content, in any form or by any means, in whole or in part, without iWin's prior written permission. You may not upload or republish Content on any Internet, Intranet or Extranet site or incorporate the information in any other database or compilation. The foregoing restrictions do not apply to Your User Content. User Content means any information (including a user's name, username, game records, and likeness), messages, notes, text, and other content that a user uploads, displays or otherwise publishes (hereinafter, "post") on or through the Application in accordance with this Agreement ("User Content"). Provided that You are eligible for use of the Application, and subject to the terms and conditions set forth herein, You are granted a non-exclusive, non transferrable limited license to access and use the Application and the Content and to download certain portions of the Content to which You have properly gained access solely for Your personal, non-commercial use, provided that You keep all copyright or other proprietary notices intact. Any use of the Application or the Content other than as specifically authorized herein, without the prior written permission of iWin, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws including copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in this Agreement shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time without notice and with or without cause. iWin reserves all rights not expressly granted in and to the Content and the Service.
7. Trademarks The names, graphics, logos, designs, page headers, button icons, scripts and service names are registered trademarks, trademarks or trade dress of iWin or its licensors in the U.S. and/or other countries. All rights reserved. All such trademarks and trade dress may not be copied or used in any manner with out the prior written consent of iWin.
8. Changes to the Application and Programs iWin may change, suspend or discontinue any aspect of the Application, the programs, products or services offered, or Your User Content at any time, without prior notice or liability. iWin may also impose limits on certain features and services or restrict access to parts or the entire Application without notice or liability. Changes will be posted on the Application. In addition, when using particular services offered by the Application, You will be governed by additional terms which will become legally binding when You procure such services. All additional terms are incorporated herein by reference. In the event of a conflict between such additional terms and these terms, such additional terms shall prevail.
9. User Representations and Warranties; User Conduct You represent, warrant and covenant that You meet the eligibility requirements set forth above and will not upload, display or otherwise publish (hereinafter, "post"), or distribute through the Application any materials which are unlawful, infringing, threatening, abusive, libelous, defamatory, obscene, harassing, vulgar, invasive of privacy or publicity rights, pornographic, profane, indecent, hatefully or racially, ethnically or otherwise objectionable. User Content cannot contain or display any commercial/corporate advertising or promotions (or any corporate logos, corporate URLs, brand names, trademarks, slogans, (other than references to iWin and its games) political, personal and religious statements) as determined by Company, in its sole discretion. You further represent, warrant and agree (i) that You own the content You provide and/or otherwise possess the rights to use it as provided in this Agreement and to grant the licenses and sublicenses contemplated herein, (ii) that all information You provide (including Your registration information, billing address and credit card information) is, and will continue to be, accurate, current and complete, and does not violate the terms of this Agreement; (iii) to maintain the security of Your password and identification and be fully responsible for all use of Your password, Your account and for any actions that take place using Your account. You are solely responsible for all acts or omissions that occur under Your listing or password, including the accuracy and completeness of all content that You (or anyone using Your account) submit or post on the Application. Except for advertising programs offered by iWin, You agree that Your access and/or use of the Application and related services are for personal, noncommercial purposes only, and will not use or attempt to use the Application for commercial purposes or solicit any user of the Application for commercial purposes. You agree to comply with all applicable laws and regulations in Your use of the Application.
In addition, You agree not to use the Application or the Service to: (i) upload, post, transmit, or otherwise make available any unauthorized advertising, solicitations, junk mail, chain letters or pyramids; (ii) collect email addresses or other information of other users from the Application by electronic or other means for the purpose of sending unsolicited emails or communications, harassment, or other unauthorized activity; (iii) use the Application or Services in any manner that could disable, overburden or damage the Application; (iv) solicit personal information from anyone under 18 or solicit passwords or personally identify information for commercial or unlawful purposes; (v) upload, post or otherwise make available any software virus or any computer code, or program designed to interrupt, destroy or limit functionality of any computer software or hardware or telecommunications equipment; (vi) impersonate anyone or falsely state or otherwise misrepresent Your affiliation with anyone; (vii) use or attempt to use another's account, service or system, or create a false identity on the Application; (viii) upload, transmit, share or otherwise make available content that, in the sole judgment of iWin, is objectionable or which may expose iWin or any user to liability or damage of any type; (ix) use any robot, spider, scraper, offline readers or other data gathering or extraction means to access the Application for any purpose; use or launch any automated system that sends more requests to iWin servers in a given period of time than a person using a conventional on-line web browser can reasonably produce in the same period; (x) promote any criminal activity or instruct others on illegal activities in any jurisdiction; (xi) harvest any personally identifiable information, including account names, from the Application, or use automated scripts to collect information from the Application for any purpose; (xii); harass, stalk, harm or abuse another person or encourage said behaviours towards another person; (xiii) promote racism, bigotry, hatred or physical harm of any kind against any individual or group; (xiv) publish falsehoods, misrepresentations or disparaging content that could damage iWin, its agents, or any third party; (xv) copy or distribute any part of the Application or any of the Content in any medium without iWin's prior written consent; (xvi) alter or modify any part of the Application, the Content (including any iWin game) other than as may be reasonably necessary to use the Application and the Content for its intended purpose. Any failure to comply with any of the term and conditions set forth herein, including without limitation, this Section 8 shall constitute a breach of this Agreement and may result in the elimination of Your account and the forfeiture of any funds You may have deposited.
iWin reserves the right to ban users who violate these standards, or who in any way abuse the community areas. Please limit chat to the subject of iWin games or the Application. Do not share personal information (Your name, phone number, home address, password, IM) with others on the site that You do not know from contexts not related to iWin. Information disclosed in Forums or in product reviewsis revealed to the public. iWin is not responsible for any information You choose to disclose to others. iWin is indemnified against any and all claims or damages resulting from member disputes. Advanced fonts, java, tables, or other programming codes or commands are not allowed in chat messages.
10. Anti-Spam Policy iWin prohibits the marketing practice commonly referred to as "Spam". In the event of any validated report of "Spam" by You, iWin may, at its sole discretion and without prior notice, terminate or suspend Your account, and in the case of termination, You will forfeit any funds You have deposited. iWin defines "Spam" as: Electronic mail messages addressed to a recipient with whom the initiator does not have an existing business or personal relationship or is not sent at the request of, or with the express consent of, the recipient; Messages posted to product reviews, forums and message boards that are off-topic (unrelated to the topic of discussion), cross-posted to unrelated newsgroups or forums, or posted in excessive volume; Solicitations posted in the product reviews, Forum, private messaging or chat rooms, or to groups or individuals via Internet Relay Chat or "Instant Messaging" system (such as Skype or WhatsApp); iWin will evaluate each validated abuse incident on a case-by-case basis and will, at its sole discretion and with or without notice, suspend Your account or terminate it, with forfeiture of any deposited funds.
ABUSE REPORTING: If You wish to report a violation of our Anti-Spam Policy, please submit a support ticket. Please refer responsibly!
You represent and warrant to iWin that You have the full legal right, power and authority to grant to iWin the license provided below, that You own or control the complete exhibition and other rights to the materials You submitted for the purposes contemplated herein, and that neither the materials nor the exercise of the rights granted herein shall infringe upon or violate any trademark, copyright, patent or trade secret law, or any right of privacy or right of publicity of, or constitute a libel or slander against, or violate any statutory, regulatory or common law or any other right of, any person or entity. You represent and warrant that, if necessary, You have the written consent of each and every identifiable natural person in any submission to use such person's name or likeness in the manner contemplated by herein, and each such person has released You and iWin from any liability that may arise in relation to such use.
By registering for an account and/ or using this Application, You automatically grant to iWin an irrevocable, perpetual, nonexclusive, transferrable, fully paid and royalty-free, worldwide license (and the right to use Your name, likeness and biographical data in connection with such license) to publicly perform and display, archive, store, use, copy, modify, translate, excerpt (in whole or in part), reproduce, create derivative works from, syndicate, license, print, publish, incorporate into other works, distribute, and otherwise exhibit Your User Content in any manner and for any promotional, advertising, commercial or other purpose, all and in any forum, medium, media, software, or technology of any kind now existing or developed in the future. You further grant and authorize iWin the right to issue sublicenses to all of the foregoing rights. You hereby waive all moral rights which You may hereafter acquire in Your User Content. You may remove Your User Content from the Application at any time, provided however, the foregoing license rights shall survive any removal of Your User Content from the Application.
12. Submissions If You send comments or suggestions about the Application to iWin, including, but not limited to, social media messages, notes, text, drawings, images, designs or computer programs, to iWin, such submissions shall become, and shall remain, the sole property of iWin. No submission shall be subject to any obligation of confidence on the part of iWin. iWin shall exclusively own all rights to (including intellectual property rights thereto), and shall be entitled to unrestricted use, publication, and dissemination as to all such submissions for any purpose, commercial or otherwise without any acknowledgment or compensation to You.
The foregoing provisions of Sections 4 through 11 are for the benefit of iWin, its subsidiaries, affiliates and its third party content providers and licensors and each shall have the right to assert and enforce such provisions directly or on its own behalf.
13. Technical Configuration It is Your sole responsibility to confirm the technical compatibility between Your computer system and the Application. For a detailed listing of optimum computer specifications, please visit our Support Center for assistance. Use of games obtained from the iWin Games Application is contingent on Your acceptance of the iWin Games Application.
14. Security iWin shall use reasonable efforts to restrict unauthorized access to Your data and files. However no system whether or not password protected can be entirely impenetrable. You acknowledge it may be possible for an unauthorized third party to access, view, copy, modify, or distribute the data and files You store using the Application. Use of the Application is completely at Your own risk.
15. Indemnity You agree to indemnify and hold iWin and each of its directors, officers employees, and agents, harmless from any and all liabilities, claims, damages and expenses, including reasonable attorney's fees, arising out of or relating to (i) Your breach of this Agreement, (ii) any violation by You of law or the rights of any third party, (iii) any User Content You post or share on or through the Application, (iv) Your use of the Application or the Services, and (v) Your conduct in connection with the Application or the Service or with other users of the Application or the Service. iWin reserves the right to assume the exclusive defense of any claim for which we are entitled to indemnification under this Section. In such event, You shall provide iWin with such cooperation as is reasonably requested by iWin.
16. Third Party Content This Application contains (or You may be sent through the Application or Services) communications and links to other web sites, as well as third party Content from a variety of sources not within the control of iWin. iWin does not represent, warrant, endorse or guarantee the accuracy, reliability, usefulness or intellectual property rights in or relating to any third party Content or any links, advertising, products or services offered, displayed, posted or published on or through the Application. Although we provide rules for user conduct and postings, we do not control and are not responsible for what users post, transmit or share on the Application and are not responsible for any inaccurate, offensive, inappropriate, obscene, unlawful or otherwise objectionable content You may encounter on the Application. iWin is not responsible for the conduct, whether online or offline, of any user of the Application or Service. IWin disclaims any responsibility for the accuracy, errors, or omissions of any third party content. IWin reserves the right to revise or reject any submission received. You acknowledge and agree that, under no circumstances, will IWin have any liability related to any goods, services or content available ON OR through the Application and/or any third party dealings or communications originated through the Application, or for any information that you provide to third parties.
17. General Practices Regarding Use and Storage You acknowledge that iWin may establish general practices and limits concerning use of the Application and the Services, including without limitation the maximum number of days that Content, messages or communications will be retained by the Application, the maximum disk space that will be allotted on iWin's servers on Your behalf, and the maximum number of times (and the maximum duration for which) You may access the Application and the Services in a given period of time. You agree that iWin has no responsibility or liability for the deletion or failure to store any Content, messages and other communications maintained or transmitted by the Service. You acknowledge that iWin reserves the right to log off accounts that are inactive for an extended period of time. You further acknowledge that iWin reserves the right to modify these general practices and limits from time to time.
18. Third Party Products and Services All listings posted on or through the Application by anyone other than iWin for products, services and transactions will be potential agreements or relationships between the members. iWin disclaims any responsibility or liability relating to such products, services and transactions. The parties to a transaction are solely responsible for all interactions with each other, for arranging for payment and the exchange of the goods or services purchased, and for the results and performance of any transaction or relationship entered into through the Application. ALL TRANSACTIONS BETWEEN MEMBERS ARE "AS IS" AND AT YOUR OWN RISK.
19. Mobile Services The Services offered by iWin include certain Services that may be available via Your cell phone, including (i) the ability to receive and reply to messages, and to post Content using text messaging; (ii) the ability to browse the Website at https://www.heavygames.com from Your cell phone; and (iii) the ability to upload content to the Application from Your cell phone. We do not charge You for these Services. However, Your carrier's normal messaging, data and other rates and fees will still apply. You should check with Your carrier to find out what plans are available and how much they cost. 20. Compliance with Law and Taxes You are subject to all laws of the state, province and/or country in which You reside and from which You access iWin and are solely responsible for obeying those laws. You agree that iWin cannot be held liable if laws applicable to You restrict or prohibit Your participation. iWin makes no representations or warranties, implicit or explicit, as to Your legal right to participate in any tournament offered on iWin nor shall any person affiliated, or claiming affiliation, with iWin have authority to make any such representations or warranties.
iWin reserves the right to monitor the location from which You access iWin and to block access from any jurisdiction in which participation is illegal or restricted.
It is the policy of iWin, in compliance with United States Internal Revenue Service regulations, to send a Form 1099 to any person who wins in excess of $600 (USD) on the Application in any given year. In order to receive a 1099 form You will be required to submit Your social security number. Failure to provide Your social security number at that time will result in iWin's inability to credit Your account for any winnings in excess of $600. At all times, You remain solely responsible for paying all federal and other taxes in accordance with the laws that apply in Your state, province, and/or country of residence.
20. Termination The only right with respect to dissatisfaction from You with any terms and conditions of this Agreement, in operating the Application, or any change in Content, is for You to discontinue accessing the Application. iWin may temporarily or permanently suspend and/or terminate Your membership and access to all or any part of the Application or the Service, for any reason or no reason, at any time in its sole discretion, with or without notice. iWin may discontinue operating the Application and terminate this Agreement without notice at any time for any reason in its sole discretion. You may not own an account or use the service if you have previously been removed by iWin or the Service, or have previously been banned from playing any IWin-affiliated game. Further, You agree that iWin shall not be liable to You or any third party for any termination of Your access to the Application. Either party may terminate this Agreement with or without cause at any time by giving notice.
21. Availability, Viruses, Warranty Disclaimer Due to the nature of the internet and computer systems, iWin cannot be held liable for the continuous availability of the Application. Although iWin makes every endeavor to keep the Application free from viruses, iWin cannot make any guarantee that it is virus-free. You shall, for Your own protection, take the necessary steps to ensure appropriate security measures and shall utilize a virus scanner before downloading any information, software or documentation. The Application and the Service may be unavailable from time to time for maintenance or other reasons. iWin assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, User communications or Content. iWin is not responsible for any technical malfunction or other problems of any telephone network or service, computer systems, servers or providers, computer or mobile phone equipment, software, on account of technical problems or traffic congestions on the internet or at the Application, including injury or damage to User's or to any other person's computer, cell phone or other hardware or software, related to or resulting from using or downloading materials in connection with the Application or the Service.
ALL INFORMATION AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE APPLICATION ARE PROVIDED "AS IS" AND "AS AVAILABLE" FOR YOUR PERSONAL, NON-COMMERCIAL USE. NEITHER IWIN, NOR ANY OF ITS EMPLOYEES, AGENTS, CONTENT PROVIDERS, SERVICE PROVIDERS, OR LICENSORS, MAKES ANY WARRANTY OF ANY KIND REGARDING THE APPLICATION AND/OR THE CONTENT CONTAINED THEREIN, THE PRODUCTS OR SERVICES AVAILABLE ON OR THROUGH THE APPLICATION, THE RESULTS THAT MAY BE OBTAINED FROM USING THE APPLICATION AND/OR THE PRODUCTS OR SERVICES OFFERED THROUGH THE APPLICATION.
IWIN DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. IWIN EXPRESSLY DISCLAIMS ALL WARRANTIES THAT THE CONTENT OF THE APPLICATION IS ACCURATE, RELIABLE OR CORRECT; THAT THE APPLICATION WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE CONTENT IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOUR USE OF THE APPLICATION IS SOLELY AT YOUR RISK. YOU DOWNLOAD OR OTHERWISE OBTAIN CONTENT, MATERIAL DATA OR SOFTWARE (INCLUDING ANY MOBILE USER) FROM OR THROUGH THE APPLICATION OR SERVICE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR YOUR USE THEREOF AND ANY DAMAGES TO YOUR CELL PHONE OR COMPUTER SYSTEM, LOSS OF DATA OR OTHER HARM OF ANY KIND THAT MAY RESULT. BECAUSE SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES, THESE EXCLUSIONS MAY NOT APPLY TO YOU. To the extent that we may not disclaim implied warranties as a matter of applicable law, the scope and duration of such warranty shall be the minimum required under such applicable law.
22. Limitation of Liability In case of a malfunction or disruption of service for which iWin is responsible that prevents you from completing the game in which you have begun to participate, iWin will refund the entry fee charged for that unfinished game only. iWin reserves the right to determine, in its sole discretion, whether it is responsible for any such malfunction or disruption. iWin also reserves the right to limit your play or terminate your account should iWin determine, in its sole discretion, that you have intentionally caused such a malfunction or disruption.
IWIN, ITS DIRECTORS, EMPLOYEES, AGENTS, CONTENT PROVIDERS, SERVICES PROVIDERS OR LICENSORS SHALL NOT BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES RELATED TO LOSS OF DATA, LOSS OF GOODWILL, PROFITS OR OPPORTUNITIES THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE APPLICATION OR FROM ANY OF THE CONTENT OR OTHER MATERIALS ON, ACCESSED THROUGH OR DOWNLOADED FROM THE APPLICATION. THIS LIMITATION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF IWIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN JURISDICTIONS THAT DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
IN NO EVENT SHALL IWIN, ITS DIRECTORS, EMPLOYEES, AGENTS, CONTENT PROVIDERS, SERVICE PROVIDERS OR LICENSORS BE LIABLE FOR ANY AMOUNT FOR DIRECT DAMAGES IN EXCESS OF THE LESSER OF THE AMOUNT PAID BY YOU TO IWIN, IF ANY, OR $1,000. YOU ACKNOWLEDGE THAT IF NO FEES ARE PAID TO IWIN FOR THE SERVICE, YOU SHALL BE LIMITED TO INJUNCTIVE RELIEF ONLY, UNLESS OTHERWISE PERMITTED BY LAW. IN NO EVENT SHALL IWIN ITS DIRECTORS, EMPLOYEES, AGENTS, CONTENT PROVIDERS, SERVICE PROVIDERS OR LICENSORS BE LIABLE FOR ANY DIRECT DAMAGES AFTER YOUR ACCOUNT REMAINS INACTIVE FOR A PERIOD OF ONE (1) YEAR.
23. Notice of Intellectual Property Infringement In accordance with the Digital Millennium Copyright Act (DMCA) and other applicable law, it is the policy of iWin in appropriate circumstances, to terminate the account of a user who is deemed to infringe third party intellectual property rights or to remove content that is deemed to be infringing. If You believe that Your work has been copied in a way that constitutes copyright infringement or are aware of any infringing material placed by any third party on iWin, please provide substantially the following information to our Copyright Agent (please consult Your legal counsel or see 17 U.S.C. Section 512(c)(3) to confirm these requirements):
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest that is allegedly infringed;
- Identification of the copyrighted work or other intellectual property claimed to have been infringed, or, if multiple copyrighted works or intellectual properties at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material (providing us with a listing number or Application URL is the quickest way to help us locate content quickly);
- Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
- a statement by the complaining party that he, she or it has a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- 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.
iWin's copyright agent can be reached as follows:
Please note that the above contact information is for intellectual property infringement notices only. DO NOT CONTACT IWIN'S COPYRIGHT AGENT FOR OTHER CUSTOMER INQUIRIES OR QUESTIONS. Please also note that, pursuant to Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
24. Counter-Notification for Intellectual Property Infringement If You believe that Your User Content that was removed (or to which access was disabled) is not infringing, or that You have the authorization from the copyright owner, the copyright owner's agent or pursuant to law, to post and use the content in Your User Content, You may send a written counter-notice containing the following information to the Copyright Agent:
- An electronic or physical signature of the user;
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled (providing us with a listing number or Application URL is the quickest way to help us locate content quickly);
- Your address, telephone number, and e-mail address;
- A statement, under penalty of perjury, that the user has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
- A statement by You that You consent to the jurisdiction of the Federal District Court for the judicial district in which Your address is located, or if Your address is outside of the United States, for any judicial district in which iWin may be found, and that You will accept service of process from the person who provided notification under Section 17 above or an agent of such person.
Please note that under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability. In accordance with the DMCA and other applicable laws, iWin has adopted a policy of terminating, in appropriate circumstances, and at iWin's sole discretion, users who are deemed to be repeat infringers. iWin may also, at its sole discretion, limit access to the Application and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
25. Governing Law; Venue and Jurisdiction By visiting or using the Application, You agree that the laws of the State of California, without regard to principles of conflict of laws, will govern this Agreement and any dispute of any sort that might arise between You and iWin with respect to any disputes or claims not subject to 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 in San Francisco 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 in San Francisco County, California.
26. Arbitration YOU AND IWIN AGREE THAT, EXCEPT AS MAY OTHERWISE BE PROVIDED, THE SOLE AND EXCLUSIVE FORUM AND REMEDY FOR ANY AND ALL DISPUTES AND CLAIMS RELATING IN ANY WAY TO OR ARISING OUT OF THIS AGREEMENT, THE APPLICATION AND/OR THE PRODUCTS AND SERVICES OFFERED (INCLUDING YOUR VISIT TO AND/OR USE OF THE APPLICATION AND/OR PRODUCTS OR SERVICES OFFERED) SHALL BE FINAL AND BINDING ARBITRATION EXCLUSIVELY IN SAN FRANCISCO COUNTY, CALIFORNIA. Notwithstanding the foregoing: (a) to the extent that either of us has in any manner infringed upon or violated or threatened to infringe upon or violate the other party's patent, copyright, trademark or trade secret rights, or You have otherwise violated any of the user conduct rules set forth above or otherwise on the Application, then the parties acknowledge that arbitration is not an adequate remedy at law and that injunctive or other appropriate relief may be sought. Moreover, any disputes or claims relating to any transactions You enter into with a third party through the Application are not subject to this Section.
Arbitration under this Agreement shall be conducted by the American Arbitration Association (the "AAA") and, except as otherwise provided herein, in accordance with its Commercial Arbitration Rules and, in the case of consumer disputes, the AAA's Supplementary Procedures for Consumer Related Disputes ( the "AAA Consumer Rules") (collectively the "AAA Rules"). To the fullest extent allowed by applicable law, the location of the arbitration shall be in San Francisco County, California. The allocation of costs and fees for such arbitration shall be determined in accordance with such AAA Rules and shall be subject to the limitations provided for in the AAA Consumer Rules (for consumer disputes). If such costs are determined to be excessive in a consumer dispute, iWin will be responsible for paying all arbitration fees and arbitrator compensation in excess of what is deemed reasonable. The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction.
To the fullest extent permitted by applicable law, NO ARBITRATION OR CLAIM UNDER THIS AGREEMENT SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SERVICE, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED.
27. E-Mail: Electronic Notification When You register with iWin, You expressly consent to receive any notices, announcements, agreements, disclosures, reports, documents, communications concerning new products or services, or other records or correspondence from iWin. You consent to receive notices electronically by way of transmitting the notice to You by email.
28. User Disputes You are solely responsible for Your interactions with other iWin users. We reserve the right, but have no obligations to monitor disputes between You and other users.
31. Statute of Limitations Regardless of any statute or law to the contrary, any claim or cause of action arising out of or relating to use of the Application or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
IWIN MEMBERSHIP PROGRAMS
ADDITIONAL TERMS AND CONDITIONS
1. Overview of iWin Membership Programs iWin Membership Programs (collectively "Programs") include AllAccess™. The benefits of the Program are summarized below.
Application AllAccess™ is a Program which eligible individuals may join to play certain iWin downloadable games and receive other benefits for the monthly membership fee of $9.99. The current benefits of AllAccess™ include (i) unlimited play on the full version of over 1,000 downloadable games (ad free) for so long as Your AllAccess membership is active.
Use of the AllAccess™ Program is restricted to You, as the account holder, on up to three unique authorized devices. iWin may use technologies to verify Your compliance. You must be online to activate the games that have been downloaded and then can play those games offline for up to 24 hours.
2. Enrollment and Acceptance Eligible individuals may enroll in the Program at https://www.heavygames.com or via the iWin Games Application (the "Application") for a subscription fee, at which time the enrolling member's account is activated. By enrolling in any Program, You (i) acknowledge and agree that You have read, understand and agree to be bound by the terms and conditions set forth herein (the "Program Terms"), as well as the Agreement to which these Program Terms have been attached as Exhibit A, and incorporated therein (the "Agreement"), and (ii) represent that You meet the eligibility requirements set forth in Section 3 below.
3. Eligibility Enrollment in the Program is limited to persons who are at least eighteen (18) years of age or older and not barred from receiving Services under the laws of the United States (or state and local laws therein or other applicable jurisdictions. By enrolling in any Program, You represent that You meet the foregoing requirements. The Programs are void where prohibited by law.
4. Payment, Cancellation & Services You agree to pay iWin the applicable membership fee for Your use of the Program, using a valid authorized credit card or PayPal account, plus any applicable taxes, in accordance with the billing terms and prices in effect at the time the fee or charge becomes payable. You authorize iWin to automatically bill the method of payment You provide each month or on each applicable subscription period renewal date until You cancel the Program. Payments are billed in advance at the beginning of the applicable month or at the beginning of the applicable subscription period. All payments are completely non-refundable. You may cancel the Program at any time, but iWin will not refund any remaining portion of Your subscription fees already billed to Your account. To ensure that Your credit card will not be charged for Your next billing period, You MUST cancel Your iWin membership no later than the day before Your next scheduled billing period begins. When You cancel Your membership, Your account will remain active until the end of the original billing period, but will not be renewed.
No refunds for the purchase of a Program Membership will be issued to credit cards or PayPal accounts unless appropriately authorized.
Periodically iWin may extend an offer to individuals who have not previously been subscribers of the All Access program for a limited time free trial of the service. Should you be eligible and elect participation for a free trial of the service, the following terms (also presented to you at time of registration) apply in addition to the complete terms of Exhibit A: Your All Access membership, which starts with your free offer, will begin as soon as you place your order. Simply cancel anytime during the trial and you will not be charged. To cancel, go to "Your Account" and click on "Cancel membership." By placing this order, you authorize us to continue your month-to-month All Access membership ($9.99) automatically, charged monthly to the payment method provided, until you cancel.
5. Modifications and Terminations of the Programs iWin reserves the right to shorten, extend, modify, terminate or cancel any Program (and the options and benefits available thereunder) at its discretion, at any time, without prior notice. Without limiting the generality of the foregoing, iWin may (i) change the benefits of any Program and/ or (ii) remove games from the AllAccess™ catalog; Your continued participation in the Program constitutes Your acceptance of any changes to the Agreement, including these Program Terms. See also, Section 2 Acceptance of the Agreement.
6. Individual Use Only The Programs are provided to individuals only. Corporations, associations or other groups may not participate in any Program, and are not transferable upon death, as part of a domestic relations matter or otherwise by operation of law.
7. Dispute Resolution All questions or disputes regarding eligibility for the Program, earning or Your compliance with the Agreement (including these Program Terms) will be resolved by iWin in its sole discretion.