November 14, 2013
IMPORTANT NOTICE: THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN SECTION 21
SITESITE LICENSE AND SERVICE AGREEMENT (the “Agreement”)
You agree that your use of this Call of Duty Endowment (”CODE”) software, including without limitation website, account (”Account”), service or other property (including any Service and/or Service Provided Content (as defined below)) operated and provided to you by CODE including any patches and updates (collectively “Site” or “Sites”) which posts, links to, or otherwise incorporates this Agreement, shall be subject to the terms of this Agreement.
SITE WARRANTY DISCLAIMER
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SITE IS PROVIDED "AS IS" AND CODE DOES NOT WARRANT THAT THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, THAT THE SITE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ALL OF THE SITE CONTENT WILL BE ACCURATE. TO THE EXTENT PERMITTED BY APPLICABLE LAW, CODE EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE, AND NON-INFRINGEMENT.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER CODE NOR ITS SUBSIDIARIES, LICENSORS OR AFFILIATES SHALL BE LIABLE IN ANY WAY FOR DAMAGE OR LOSS OF ANY KIND RESULTING FROM (A) THE USE OF OR INABILITY TO USE THE SITE INCLUDING WITHOUT LIMITATION LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION; (B) THE LOSS OR DAMAGE TO ACCOUNTS OR USER PROFILE INFORMATION; OR (C) INTERRUPTIONS OF SERVICE INCLUDING WITHOUT LIMITATION ISP DISRUPTIONS, SOFTWARE OR HARDWARE FAILURES, FAILURES OF ANY THIRD PARTY SERVICES, OR ANY OTHER EVENT WHICH MAY RESULT IN A LOSS OF DATA OR DISRUPTION OF SERVICE. IN NO EVENT WILL CODE BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, REMOTE, SPECULATIVE, PUNITIVE OR CONSEQUENTIAL DAMAGES.
1.1 In order to use certain Sites and Services and create Accounts you may be required to:
- meet minimum age requirements
- agree to Third Party Terms – see Section 14
- open an Account operated and provided by CODE – see Section 3 and 8
1.3 CODE recommends that parents and guardians familiarize themselves with parental controls available on Devices (as defined below) they provide to their child and supervise their child when online. Use of online functionality of any Sites by children under the age of 13 is not intended without adult supervision.
2.1 CODE grants you a personal, limited, non-exclusive license to use the Site for your non-commercial use. To the fullest extent permitted by applicable law, this license granted to use the Site is non-transferable. You may not rent, lease, lend, sell, redistribute or sublicense the Site. You may not copy, other than one (1) copy for your own personal back-up purposes (except as expressly permitted by this license and any other applicable terms, conditions, or usage rules), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Site, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the licensed application). You may not remove or alter CODE’s or its licensors’ trademarks or logos, or legal notices included in the Site or related assets. Any attempt to use the Site in breach of the terms of this Agreement is a violation of the rights of CODE and its licensors. If you breach the terms of this Agreement, you may be subject to prosecution and damages. The terms of this Agreement will govern any upgrades provided by CODE that replace and/or supplement the Site, unless such upgrade is accompanied by a separate (and/or updated) agreement, in which case the terms of that agreement will govern.
2.2 The license rights granted to you herein are also subject to the limitations set forth below. Any use of the Site in violation of these limitations is a material breach of the Agreement, subjects you to immediate revocation of your license, and will be regarded as an infringement of CODE’s copyrights and other rights in and to the Site. You agree that you will not, under any circumstances:
A. use, develop, host or distribute cheats, automation software (bots), modded lobbies, hacks, mods or any other unauthorized third-party software in connection with the Site, or engage in any form of cheating, boosting, or booting in order to gain (or allow others to gain) advantage through the use of the Site;
B. exploit or reverse engineer the Site (or any of its parts), for any commercial purpose, including without limitation (a) to enable use at a location-based site without the express written consent of CODE; (b) for gathering currency, items or resources for sale outside the Site; (c) performing services in exchange for payment outside the Site; or (d) the sale of accounts, log-in information, virtual goods and currency, or other Site materials, access, or rights;
C. use any unauthorized third-party software that intercepts, "mines", or otherwise collects information from or through the Site;
D. except as authorized by CODE in writing, host or provide services for the Site, or intercept, emulate or redirect the communication protocols used by CODE in any way, for any purpose, including without limitation unauthorized usage over the internet, network usage, or as part of content aggregation networks;
E. facilitate, create or maintain any unauthorized connection to the Site, including without limitation (a) any connection to any unauthorized server that emulates, or attempts to emulate, the Site; and (b) any connection using programs or tools not expressly approved by CODE in writing;
F. violate any applicable law or regulation in connection with your use of Site;
G. disrupt or assist in the disruption of: (a) any computer, device or server used to support the Site; or (b) any other user’s use of a Site. ANY ATTEMPT BY YOU TO DISRUPT THE SITE OR UNDERMINE ITS LEGITIMATE OPERATION MAY BE A VIOLATION OF CRIMINAL AND CIVIL LAWS;
H. interfere or attempt to interfere with the operation of the Site in any way through any means or device, including without limitation launching a denial of service attack, spamming, hacking, or uploading computer viruses or time bombs; or
I. reproduce, distribute, display, transfer, or use any part of the Site except as expressly authorized by CODE
4 ACCESS AND COSTS INCURRED BY USING THE SITE AND SERVICES
4.1 YOU ARE SOLELY RESPONSIBLE FOR ANY THIRD PARTY COSTS YOU INCUR TO USE THE SITE AND SERVICES. You acknowledge and agree that you will provide at your own cost and expense the equipment, Internet, or other connection charges required to access and use the Site. CODE makes no warranty that the Site can be accessed or used on all personal computers or other devices (each, a “Device”, or collectively, “Devices”), by means of any specific Internet or other connection provider, or in all countries.
4.2 You agree to pay all fees and applicable taxes incurred by you or anyone using A SITE OR SERVICE FROM YOUR DEVICE. To the fullest extent permitted by applicable law, you are responsible for all use of the Site or any Account associated with your use of the product and any costs incurred through the Site or any Account associated with the product. You must notify CODE immediately of any unauthorized use of your username, password, account information, or any other breach of security that you become aware of relating to your Account. Such notification should be sent to firstname.lastname@example.org.
4.4 Parents and Guardians of children under the age of majority in their jurisdiction or 18 years of age, whichever is older, agree that you will be responsible for all uses of the Site or Services by your child whether or not such uses were authorized by you. Nothing herein limits CODE’s rights to suspend, terminate or delete any Account, Site, or Service.
4.5 You may pay for certain Sites, Services, and Service Provided Content (as defined in Section 9 below) using the methods made available to you, and you agree to the terms and conditions applicable to each payment method you choose. Payment methods may vary by platform, system, or Device that you use to access the Site or Service Provided Content.
5 USE OF DATA
5.2 Some Sites may permit you to share certain information about yourself with the public, including people who may not be registered users of the Site, and the public may access and use that information and associate it with you. You acknowledge and confirm that you have no expectation of privacy when using such Site features, including without limitation when uploading or submitting UGC; searching for other users by username; discovering events that other users have signed up for; and linking to social media accounts that publicly display user information.
5.3 If you are a registered user of social media sites you may be able to connect your social media account and your CODE Account (if your applicable CODE Account has this functionality enabled). If you do this, you may use your social media data to enable you to find your social media “friends”, and your “friends” can use their social media data to find you, on your CODE Account.
6 USER GENERATED CONTENT
6.1 The Site may include message boards, content sharing features, and other means by which you and other users may share content that users create (“UGC”). To the fullest extent permitted by applicable law, by submitting any UGC (including without limitation, images, videos, customer service submissions, idea submissions, suggestions and message postings) you automatically grant (or represent and warrant that the owner of such rights has expressly granted) CODE a perpetual, worldwide, royalty-free, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, sub-license, create derivative works from and distribute such UGC or incorporate such UGC content into any form, medium, or technology now known or later developed throughout the universe, and agree that CODE shall be entitled to unrestricted use of the UGC for any purpose whatsoever, commercial or otherwise, without compensation, notice or attribution. You waive and agree not to assert against CODE or any ot its partners, affiliates, subsidiaries, or licensees, any moral or similar rights you may have in any of your UGC. If you are validly using the Site from outside the United States or the United Kingdom then CODE may be required to request that you enter into a separate license agreement permitting CODE to use the UGC for certain promotional, administrative, or other purposes.
6.2 To the extent the Site permits other users to access and use your UGC, you also grant all other users of the Site the right to use, copy, modify, display, perform, create derivative works from, and otherwise communicate and distribute your UGC on or through the Site without further notice, attribution or compensation to you.
6.3 You represent and warrant that any UGC you provide (a) does not and will not violate any third party intellectual property rights and/or any other person's rights, including without limitation any so-called "moral rights"; and (b) when used as contemplated herein does not and will not require the payment of any royalty or any consideration to a third party. You may not upload or post any UGC that infringes the copyright, trademark, or other intellectual property rights of a third party, nor may you upload any UGC that violates any third party's right of privacy or right of publicity, or may require the payment of a royalty or other consideration to a third party. Each user is responsible for any UGC he or she places on or through the Site, including the transmission, posting, or other provision of text, files, links, software, photographs, video, sound, music, or other information or material. You may only upload your own UGC to the Site; do not upload anyone else’s UGC. As set forth in Section 15 below, you agree to indemnify CODE for any losses related to or arising out of UGC you submit.
6.4 CODE has no obligation to monitor, approve, verify, or prescreen any UGC that you or other users may contribute to or through the Site. CODE reserves the right (but has no obligation) to remove, block, edit, move, or disable UGC for any reason in CODE’s sole discretion. To the maximum extent permitted by applicable law, CODE does not assume any responsibility or liability for your UGC or that of other users, or for any failure to monitor, edit, or remove UGC. You agree that you shall not hold CODE liable for any loss or damage arising from the contents of any UGC (yours or another user’s), including without limitation in respect of any defamation, harassment, or false endorsement claims.
6.5 You agree not to do any of the following actions while using the Site:
A. Harass, threaten, embarrass or cause distress or discomfort upon another participant, user, or other individual or entity;
B. Transmit any UGC that CODE considers to be disruptive, unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, hateful, or racially, sexually, ethnically or otherwise objectionable;
C. Impersonate any person or entity, including but not limited to CODE;
D. Disrupt normal Site functionality, or otherwise act in a manner that negatively affects other participants and/or the overall Site experience;
E. Post or transmit any unsolicited advertising, promotional materials, or any other forms of solicitation;
F. Intentionally or unintentionally violate any applicable law, regulation or treaty while using or accessing the Site;
G. Post multiple posts of the same content (i.e., “spam”); or
H. Invade the privacy or violate or infringe any right of any person or entity, including, without limitation, any intellectual property right.
6.6 CODE does not endorse, or guarantee the accuracy, efficacy or veracity of, any UGC.
7. COPYRIGHT NOTICE
7.1 CODE respects the intellectual property rights of others and expects the users of its Services to do the same. If you believe that any content appearing in the Site and/or UGC has been copied in a way that constitutes copyright infringement, please forward the following information to the copyright agent named below.
7.2 Please be aware that to be effective, your copyright infringement notification must comply with the Digital Millennium Copyright Act ("DMCA"). You are encouraged to review 17 U.S.C. § 512(c)(3) or consult with an attorney prior to sending a notice hereunder.
7.3 To file a copyright infringement notice, you will need to send a written communication that includes the following to the address listed below:
A. Your name, address, telephone number, and email address;
B. A description of the copyrighted work that you claim has been infringed;
C. The exact URL or a description of where the alleged infringing material is located;
D. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
E. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and
F. A statement by you, under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
CALL OF DUTY ENDOWMENT
3100 Ocean Park Boulevard
Santa Monica, California 90405
Attn: Business and Legal Affairs
Fax: (310) 255-2152
7.4 Please note that the DMCA provides that you may be liable for damages (including costs and attorney fees) if you knowingly misrepresent that material or activity is infringing. Please also note that the information provided in your copyright infringement notice may be provided to the person responsible for the allegedly infringing material.
8. CODE ACCOUNTS
YOU ARE RESPONSIBLE FOR ALL ACTIVITY ON YOUR ACCOUNT. YOU SHOULD NOT REVEAL YOUR ACCOUNT PASSWORD TO OTHERS.
8.2 Account Suspension/Termination
CODE MAY SUSPEND, TERMINATE, MODIFY, OR DELETE ANY ACCOUNT AT ANY TIME FOR ANY REASON OR FOR NO REASON, WITH OR WITHOUT NOTICE TO YOU, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. For purposes of explanation and not limitation, many Account suspensions, terminations and/or deletions may be the result of violations of this Agreement.
8.3 Usernames and Group Designations:
Depending on which Site and Device you are using, your username on the Device may be your username for your CODE When you choose a username or a Group name, or otherwise create a label that can be seen by other users, you must abide by the following guidelines as well as the rules of common decency. If CODE finds such a name to be offensive or improper, it may, in its sole and absolute discretion, change or remove the name, and/or suspend or terminate your use of the Services. In particular, you may not use any name:
A. belonging to another person with the intent to impersonate that person, including without limitation any Site administrators or any other employee or agent of CODE;
B. that incorporates vulgar language or is otherwise offensive, defamatory, obscene, hateful, or racially, sexually, ethnically, or otherwise objectionable;
C. that is subject to the rights of any other person or entity without written authorization from that person or entity;
D. that belongs or refers to a popular culture figure, celebrity, media personality, icon, or persona;
E. that is, contains, or is substantially similar to a trademark or service mark, whether registered or not;
F. belonging to any religious figure or deity; or
G. related to drugs, sex, alcohol, or criminal activity.
You may not use a misspelling or an alternative spelling to circumvent the name restrictions listed above, nor can you have a "first" and "last" name that, when combined, violate the above name restrictions.
9. SERVICE PROVIDED CONTENT
9.2 CODE does not recognize the transfer of Accounts or Service Provided Content. You may not purchase, sell, resell, lend, rent, gift, trade, or otherwise transfer any Account or Service Provided Content, or offer to purchase, sell, resell, lend, rent, gift, trade, or otherwise transfer any Account or Service Provided Content, and any such attempt shall be null and void.
9.3 You may not sell the Site or Service Provided Content, including without limitation exchanging in-Site items or currency for "real" money or value outside of the Site.
9.4 Upon termination of any Account, the Agreement, or license, you acknowledge and agree that, to the fullest extent permitted by applicable law, you shall retain no access or control over any aspect thereof.
10. CONTESTS & SWEEPSTAKES
10.1 From time to time CODE may offer you the opportunity to enter contests and sweepstakes. These contests and sweepstakes are governed by specific rules and a code of conduct, (together the “Rules”) which will be posted online. Your participation in a contest or sweepstake is conditioned upon your acceptance of the Rules. Not all users eligible to use the Site or register accounts will be eligible to enter and/or win all contests or sweepstakes. Minimum age and other requirements will be specified prior to the point of entry of the applicable contest or sweepstake and will form a condition of entry to that contest or sweepstake. Availability, frequency and eligibility of contests and sweepstakes shall be at CODE’s sole discretion and is subject also to local laws and restrictions.
11. CONSENT TO MONITOR
11.1 Communications made using a Site should not be considered private. CODE may monitor and/or record your communications (including without limitation chat text) when you are using a Site, and you hereby provide your irrevocable, express consent to such monitoring and recording. You acknowledge and agree that you have no expectation of privacy concerning the transmission of any UGC or communications, including without limitation chat text or voice communications. Because voice chat and other communications may be viewed and/or heard by others. Because UGC and in-Site communications may be widely viewed and/or heard, CODE cautions users to avoid revealing any personally identifiable information through such communications or UGC.
11.3 Additionally, CODE may, with or without notice to you, disclose your internet protocol address(es), personal information, chat logs, and/or other information about you and your activities (a) in response to a request by law enforcement, a court order, or other legal process; or (b) if CODE believes that doing so may protect its own rights and property or your safety or the safety of others.
12. PATCHES AND UPDATES, CHANGES
CODE may deploy or provide patches, updates and modifications to the Site that must be installed for the user to continue to play. CODE may update the Site remotely and without notice to you
CODE reserves the right to change the terms of this Agreement at any time. You agree to regularly review the terms of this Agreement, and your continued use of the Site acknowledges your acceptance of any changes to the Agreement.
The license granted under this Agreement is effective until terminated by you or CODE. Your rights under this Agreement will terminate automatically without notice from CODE if you fail to comply with any term of this Agreement or applicable Third Party Terms. Upon termination of the license, you shall cease all use of the Site, and destroy all copies, full or partial, of the Site.
CODE reserves the right to terminate this Agreement without cause on immediate written notice. CODE’s maximum liability to you in the event of such termination shall be limited as stated above in the Section entitled “Limitation of Liability.”
14. THIRD PARTIES
The Site may enable, or require, access to other third party materials, services, or websites (“Third Party Materials”). Use of and/or access to Third Party Materials may be subject to additional terms of service and may cause you to incur additional costs.
You understand that by using any Third Party Materials you may encounter content that may be deemed offensive, indecent, or objectionable. You agree (a) to use Third Party Materials at your sole risk; (b) that CODE shall not have any liability to you for Third Party Materials; and (c) that CODE is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect of such Third Party Materials. Third Party Materials are provided solely as a convenience to you.
Third parties may also impose limits on the use of or access to certain Sites, in any case and without notice or liability. You agree that CODE shall not be liable for any acts or omissions of such third parties.
You agree to indemnify, defend and hold harmless CODE and its affiliates, and their respective officers, directors, owners, agents, employees, contractors, information providers, and licensors (each, an “Indemnified Party”, and or collectively, "Indemnified Parties") from and against any claims, liability, losses, costs, and/or expenses (including attorneys' fees) incurred by an Indemnified Party in connection with (a) any breach by you of the Agreement, and/or (b) your posting or uploading any UGC.
CODE reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with CODE's defense of such claim.
16. RISK OF LOSS
You bear all risk of loss for accessing any Site and for any loss of any Site that you have accessed, including any loss due to a file corruption or Device crash.
Any Site may be available for limited periods of time, and/or subject to other access restrictions (including for example, possession of other specific Site(s) for access or use). Sites may become unavailable due to potential content provider licensing restrictions or other reasons; CODE will not be liable to you if any Site is or becomes unavailable for download or access, for any reason, to the fullest extent permitted by applicable law.
Except as otherwise set forth herein, CODE does not guarantee that any particular Site or Service Provided Content will be available at all times or at any given time or that CODE will continue to offer the Site or Service Provided Content for any particular length of time. CODE may change and update the Site or Service Provided Content without notice to you. CODE makes no warranty or representation regarding the availability of online Site features and reserves the right to modify or discontinue such features in its sole and absolute discretion without notice, including for example, ceasing an online service for economic reasons due to a limited number of users continuing to make use of the online service over time.
In addition, Sites that may be accessed from, displayed on, or linked to a Device are not available in all languages or in all countries. To the fullest extent permitted by applicable law (a) CODE and its licensors, reserve the right to change, suspend, remove, or disable access to any Site at any time without notice, and (b) CODE will not be liable for the removal of or disabling of access to any Site.
All title, ownership, and intellectual property rights in and to the Site (including without limitation any titles, trademarks, service marks, trade names, computer code, themes, objects, characters, character names, stories, dialog, catch phrases, locations, concepts, artwork, animations, sounds, musical compositions, audio-visual effects, methods of operation, moral rights, and any related documentation) are owned by CODE and/or CODE's licensors. The Site is licensed, not sold, for your use. Your license confers no title or ownership in this Site and should not be construed as a sale of any rights in the Site.
YOU ACKNOWLEDGE AND AGREE THAT, OTHER THAN THE LICENSE GRANTED TO YOU BY THIS AGREEMENT, YOU SHALL HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN ANY SITE OR SERVICE PROVIDED CONTENT,AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ALL RIGHTS IN AND TO SUCH SITES AND SERVICE PROVIDED CONTENT ARE AND SHALL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF CODE AND/OR ITS LICENSORS.
You agree that all Sites and Third Party Materials contain proprietary content, information and material that are protected by applicable intellectual property and other laws, including but not limited to copyright, and that you will not use such proprietary content, information or materials in any way whatsoever except for permitted use. No portion of the Sites or Third Party Materials may be reproduced in any form or by any means other than as permitted under the applicable license.
19. CHANGES TO THE AGREEMENT
CODE reserves the right, at its sole and absolute discretion, to change, modify, add to, supplement, or delete any of the terms and conditions of this Agreement at any time, effective with or without prior notice; provided, however, that CODE will disclose material changes (as determined in CODE’s sole and absolute discretion) in one or more of the following ways: by posting notification on any Site website, by email, patch process, pop-up screen, or in-Site notice. Your continued use of the Site following any revision to this Agreement constitutes your acceptance of any such changes. Additionally, you may be asked to affirmatively accept updates to this Agreement from time to time. Note that if you do not affirmatively indicate your acceptance when requested, you may not be able to continue to use the Site or Service Provided Content.
If you access content protected with Digital Rights Management (“DRM”), the software may automatically request media usage rights from a rights server online and download and install DRM updates so that you can use the content.
21. BINDING ARBITRATION AND CLASS ACTION WAIVER
|PLEASE READ THIS SECTION 21 CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT|
Dispute Resolution and Arbitration.
21.1 This Section 21 applies to you if you are domiciled in and/or acquired and use the Site in the United States. This Section 21 may also apply to you if you are domiciled in and/or acquired and use the Site from outside the United States. See Section 22 for details.
21.2 Initial Dispute Resolution: You can contact us at email@example.com to address any concerns you may have regarding the Site. Most concerns are quickly resolved in this manner to our customers’ satisfaction. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.
21.3 Binding Arbitration: If the parties do not reach an agreed upon solution within a period of 30 days from the time informal dispute resolution is pursued pursuant to Section 21.2, then either party may initiate binding arbitration as the sole means to formally resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to this Agreement (including its formation, performance and breach), the parties’ relationship with each other and/or your use of the Site shall be finally settled by binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with the provisions of its Commercial Arbitration Rules and the supplementary procedures for consumer related disputes of the AAA, excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of this Agreement, including without limitation any claim that all or any part of this Agreement is void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The Commercial Arbitration Rules governing the arbitration may be accessed at www.adr.org or by calling the AAA at +1 (800) 778-7879. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, CODE will pay the additional cost. If the arbitrator finds the arbitration to be non-frivolous, CODE will pay all of the actual filing and arbitrator fees for the arbitration, provided your claim does not exceed $75,000. The arbitration rules also permit you to recover attorneys’ fees in certain cases. The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
21.4 Location. If you are a resident of the United States, arbitration will take place at any reasonable location within the United States convenient for you. For residents outside the United States, arbitration shall be initiated in Los Angeles County, California, and you and CODE agree to submit to the personal jurisdiction of any federal or state court in Los Angeles County, California, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
Class Action Waiver
21.5 Class Action Waiver: The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND CODE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above in Section 21.3 shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
21.6 Exception - Litigation of Intellectual Property and Small Claims Court Claims: Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may bring an action in state or federal court for claims relating to patents, copyrights, moral rights, trademarks, and trade secrets, but not, for clarity, claims related to the license granted under Section 3 of this Agreement. Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
21.7 30 Day Right to Opt Out: You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in Sections 21.3, 21.4, and 21.5 by sending written notice of your decision to opt-out to the following address: Call of Duty Endowment, 3100 Ocean Park Boulevard, Santa Monica, CA 90405-3032, Attn: Business and Legal Affairs. The notice must be sent Site within 30 days of the date on which you first access or use the Site, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt-out of these arbitration provisions, CODE also will not be bound by them.
22. JURISDICTION AND APPLICABLE LAW
22.1 The Site is made available subject to the terms of this Agreement. You are contracting with Call of Duty Endowment, 3100 Ocean Park Boulevard, Santa Monica, CA 90405-3032. The laws of the state where you live govern the interpretation of this contract (including its formation and performance), claims for breach of it, and all other claims (including consumer protection, unfair competition, and tort claims), regardless of conflict of law principles. SiteYou and we irrevocably consent to the exclusive jurisdiction and venue of the state or federal courts in Los Angeles County, California, for all disputes arising out of or relating to this Agreement or the Sites that are heard in court (not arbitration and not small claims court).
Subject to Section 21.3 above, if any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.
22.4 Assignment and Transfer
We may assign this Agreement, in whole or in part, at any time without notice to you. You may not assign this Agreement or transfer any rights to use the Services.
You consent to CODE providing you notifications about the Site or information that the law requires us to provide via email to any address that you specified if you were required to register for the Site. Notices emailed to you will be deemed given and received when the email is sent. If you don't consent to receive notices electronically, you must stop using the Site. For Sites that do not require you to register or provide any email address, notices and other information may be made available in updates to this Agreement.
22.6 Force Majeure
CODE shall not be liable for any delay or failure to perform resulting from causes outside CODE’s reasonable control, including without limitation any failure to perform due to unforeseen circumstances or causes such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.
22.7 Equitable Remedies
In the event that you breach this Agreement, you hereby agree that CODE would be irreparably damaged if this Agreement were not specifically enforced, and therefore you agree that CODE shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as CODE may otherwise have available to it under applicable laws.
22.8 Export and Commercial Items
You may not use or otherwise export or re-export the Site except as authorized by United States law and, if applicable, the laws of the jurisdiction in which the Site was obtained. In particular, but without limitation, the Site may not be exported, re-exported, or downloaded into (or transferred to a resident of) (a) Cuba, North Korea, Iran, Syria, Sudan, any U.S. embargoed countries or any country against which the U.S. Government maintains comprehensive economic sanctions, or to a national of Cuba or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals and Blocked Persons or the U.S. Department of Commerce Denied Persons List or Entity List. By using the Site, you represent and warrant that you are not located in, under the control of, or a resident of any such country, a national of Cuba, or on any such list. You also agree that you will not use the Site for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear missiles, or chemical or biological weapons.
The Site and related documentation are "Commercial Items", as defined in 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished rights are reserved under the copyright laws of the United States.
22.9 Entire Agreement
This Agreement constitutes the entire agreement and understanding between you and CODE, and supersedes any prior or contemporaneous agreements or understandings, whether written or oral, relating to the matters contained herein.