Last Modified: 4/21/22
Big Fish Games, Inc.
Attn: Legal Department
906 Alaskan Way, Suite 700
Seattle, Washington 98104
- ADDITIONAL TERMS AND AMENDMENTS
- ACCOUNT REGISTRATION
You may need to create a Big Fish Account in order to access some Big Fish Offerings. If you create a Big Fish Account, you must provide truthful and accurate information to us in creating such account and promptly update this information if it changes. Big Fish reserves the right to limit the number of accounts a user can establish. This limit may change over time in our sole discretion.
You are solely responsible for all activity on your Big Fish Accounts and for the security of your Big Fish Accounts and computer system. You must not reveal your username or password to any other person and must promptly notify us if you discover or suspect that someone else has accessed your Big Fish Accounts. If you forget your password, you can request to have a new password sent to your registered e-mail address.
- ELECTRONIC COMMUNICATIONS
When you access a Big Fish Offering, send e-mails or electronically chat with Big Fish, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices in the Big Fish Offerings. You agree that all agreements, notices, disclosures and other communications that Big Fish provides to you electronically satisfy any legal requirement that such communications be in writing.
- OWNERSHIP; LIMITED LICENSE
- VIRTUAL ITEMS
Certain Big Fish Offerings may provide you with the opportunity to license a variety of virtual items such as virtual currency, virtual goods and content packs ("Virtual Items") that can be used while playing the Big Fish Offering. You may be required to pay a fee to obtain Virtual Items. When you use Virtual Items within a Big Fish Offering, any Virtual Items that you have purchased will be deemed used before any Virtual Items that you have earned.
You have no property interest in any Virtual Items. Virtual Items obtained through a Big Fish Offerings is provided to you under a limited, non-transferable, revocable, non-sublicensable license to use those Virtual Items within the applicable Big Fish Offering. Virtual Items may not be transferred or resold for commercial gain or in any manner, including, without limitation, by means of any direct sale or auction service. Virtual Items may not be purchased or sold from any individual or entity via cash, barter or any other transaction. Virtual Items have no monetary value and cannot be used to purchase or use products or services other than within the applicable Big Fish Offering and then only to the extent offered within such applicable Big Fish Offering. Virtual Items cannot be refunded or exchanged for cash or any other tangible value.
Big Fish may manage, regulate, control, modify or eliminate your Virtual Items in our sole discretion and without limitation or restriction, and Big Fish will have no liability to you or anyone or any entity for exercising those rights. In addition, all Virtual Items are unconditionally forfeited if your Big Fish Offering account is terminated or suspended for any reason, including terminations or suspensions in Big Fish's sole discretion. If Big Fish discontinues any Big Fish Offering or any portion or feature of any Big Fish Offering, you also unconditionally forfeited any Virtual Items connected to the discontinued Big Fish Offering.
- REVIEWS, COMMUNICATIONS AND SUBMISSIONS
Our Big Fish Offerings may allow you and other users to create, post, store and share content, including usernames, messages, text, photos, videos, software and other materials (collectively, “User Content”). Except for the license you grant below, as between you and Big Fish, you retain all rights in and to your User Content, excluding any portion of the Big Fish Offerings included in your User Content.
You grant Big Fish and its subsidiaries and affiliates a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully paid, and sublicensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform, and display your User Content and any name, likeness, voice, biography, or signature provided in connection with your User Content in all media formats and channels now known or later developed without compensation to you. Depending on your account settings and which Big Fish Offering you are interacting with, when you post or otherwise share User Content on or through a Big Fish Offering, your User Content and any associated information (such as your city and state location, skill level, favorite game and favorite genres) may be visible to others.
Big Fish does not endorse or approve any User Content that you or other users post or communicate on or through any Big Fish Offerings. Big Fish does not assume any responsibility or liability for any content that is generated, posted or communicated by any user on or through the Big Fish Offerings.
- PROHIBITED CONTENT AND CONDUCT
- Is inappropriate, obscene, defamatory, offensive, crude, illegal, immoral or possibly offensive;
- Contain a virus, corrupted data, malware, spyware, adware, or any other malicious, invasive harmful, disruptive, or destructive code or program;
- Is for a purpose other than personal communication, including without limitation advertising, promotional materials, chain letters, pyramid schemes, political campaigning, soliciting funds, mass mailings and sending "spam";
- Contains any private or personal information of a third party without that third party’s consent; or
- Acts as a passive or active information collection or transmission mechanism, including, without limitation, gifs, 1x1 pixels, web bugs, and other similar devices.
Additionally, you may not:
- Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
- Impersonate another person, including by indicating that you are a Big Fish employee or a representative of Big Fish (if you are not);
- Attempt to obtain a password, other account information, or other private information from any other user of a Big Fish Offering;
- Disrupt the normal flow of dialogue, or otherwise act in a manner that negatively affects or disrupts other users;
- Improperly using any game support functions or complaint buttons, such as by making false complaints or other reports to Big Fish representatives;
- Use or launch any automated system, including, without limitation, any spider, bot, cheat utility, scraper or offline reader that accesses a Big Fish Offering, or any other unauthorized script or software that interacts with a Big Fish Offering;
- Modify, translate, reverse-engineer, reverse-compile or decompile, disassemble or create derivative works from any part of the Big Fish Offerings, except to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
- Use a false e-mail address or otherwise disguise the source of any content that you submit within a Big Fish Offering, such as by anonymizing your internet protocol address;
- Interfere with or circumvent any Big Fish Offering security feature or any other feature that is intended to restrict or enforce limitations on use of or access to a Big Fish Offering;
- Sell, lease, loan, or rent any part of a Big Fish Offering, including, without limitation, any Virtual Items, Big Fish Accounts and access to them; or
- Engage in cheating or any other activity that Big Fish deems to be in conflict with the spirit of a Big Fish Offering.
Content standards may vary depending on where you are within a Big Fish Offering and the expectations of the relevant game community. Some game play may involve use of stronger language than others, including mild expletives. You must always use good, respectful, and conservative judgment in interacting as part of any game play, and submitting any User Content, such as a review or post to any forums or message boards, within a Big Fish Offering.
Enforcement of this Section 8 is solely at Big Fish’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances. In addition, this Section 8 does not create any private right of action on the part of any third party or any reasonable expectation that the Big Fish Offerings will not contain any content that is prohibited by such rules.
- COMMERCIAL ACTIVITY AND UNSOLICITED E-MAIL
As stated in Section 5, you may only use the Big Fish Offerings for your own personal, noncommercial use. This means you may not use any portion of the Big Fish Offerings to collect information, including login names, about other users, and use of such information to send unsolicited e-mail or for any other purpose is strictly prohibited. You may not advertise any goods or services on any Big Fish Offerings, or otherwise exploit your participation on or through any Big Fish Offerings for any commercial purpose.
- BIG FISH SOFTWARE
The license granted to you to use Big Fish Software is limited to only permitting you to install and use the Big Fish Software on computers or mobile devices owned or controlled by you and solely to allow you to participate in the Big Fish Offerings.
- DIGITAL MILLENNIUM COPYRIGHT ACT
In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable laws, we have adopted a policy of terminating, in appropriate circumstances, the accounts of users who repeatedly infringe the intellectual property rights of others. If you believe that anything on Big Fish Offerings infringes any copyright that you own or control, you may notify Big Fish's designated agent:
Designated Agent Legal Department
Address: 906 Alaskan Way, Suite 700
Seattle, Washington 98104
Telephone Number: 206-213-5753
Email Address email@example.com
Please see 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. Also, please note that if you knowingly misrepresent that any activity or material on Big Fish Offerings is infringing, you may be liable to Big Fish for certain costs and damages.
- SOCIAL NETWORK SITES
If you access a Big Fish Offering via a third party social networking site (a "Social Game"), you acknowledge that you are aware that Social Games are only available to individuals who have registered with the social networking site through which s/he accesses Social Games. If you use Social Games, you must keep your social networking site account information accurate, current and complete. Social networking sites are “third party content and services” as described in the following Section.
- THIRD PARTY LINKS AND THIRD PARTY CONTENT AND SERVICES
Any and all software, content and services (including advertising) within a Big Fish Offering that are not owned by Big Fish are "third party content and services." Big Fish acts merely as an intermediary service provider of, and accepts no responsibility or liability for, third party content and services.
In addition, and without limiting the generality of the foregoing, certain Big Fish Offerings may include links to sites, such as social networking sites or payment sites, operated by third parties, including, without limitation, advertisers, payment providers and other content providers (“Other Sites”). Those Other Sites may collect data or solicit personal information from you. Big Fish does not control such Other Sites, and you agree that Big Fish is not responsible for the content or policies of Other Sites or third-party content and services, or for the collection, use or disclosure of any information those Other Sites may collect. Any and all use of any Other Sites is at your sole risk, cost and responsibility.
- TERMINATION OF ANY BIG FISH ACCOUNT
Big Fish and you each have the right to terminate or cancel any of your Big Fish Account(s), if applicable, at any time for any reason or no reason. Big Fish reserves the right to collect fees, surcharges or costs incurred before you cancel your Big Fish Account(s) or a particular subscription. In the event that your Big Fish Account or a particular subscription is terminated or cancelled unless otherwise agreed by Big Fish in writing, no refund will be granted, no online time or other credits (e.g., points in an online game) will be credited to you or converted to cash or other form of reimbursement, and you will have no further access to your account or anything associated with it (such as points, tokens or Virtual Items). Any delinquent or unpaid accounts must be settled before Big Fish may allow you to create any new or additional accounts. All Virtual Items are unconditionally forfeited if your Big Fish Account is terminated or suspended for any reason, including terminations or suspensions in Big Fish's sole discretion.
Big Fish Games, Inc. and the names and logos, product or service names, slogans and the look and feel of the Big Fish Offerings constitute trademarks or trade dress of Big Fish and may not be copied, imitated, reverse engineered, or used, in whole or in part, without the prior written permission of Big Fish. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Big Fish Offerings are the property of their respective owners, who may or may not be affiliated with or connected to Big Fish. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier or otherwise, does not constitute or imply endorsement, sponsorship or recommendation by us.
If you choose to provide to Big Fish any ideas, suggestions, or other feedback regarding any Big Fish Offerings, or any proposed software or offerings (collectively “Feedback”), you hereby grant Big Fish a perpetual, irrevocable, non-exclusive, worldwide, fully sublicensable, royalty-free, fully paid, right and license to use and exploit (including, without limitation, commercially exploit) in any manner, means, language and/or media, whether now known or hereafter devised such Feedback without restriction, including in connection with any Big Fish Offerings, or other products or services of Big Fish. You understand that Big Fish may treat Feedback as nonconfidential.
YOU EXPRESSLY AGREE THAT THE USE OF ANY BIG FISH OFFERING, BIG FISH SOFTWARE AND THE INTERNET IS AT YOUR SOLE RISK. ALL BIG FISH OFFERINGS AND BIG FISH SOFTWARE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BIG FISH DOES NOT GUARANTEE THAT YOU WILL BE ABLE TO ACCESS OR USE THE BIG FISH OFFERINGS OR BIG FISH SOFTWARE AT ANY PARTICULAR TIMES OR LOCATIONS, OR THAT THE BIG FISH OFFERINGS, BIG FISH SOFTWARE, NEWSLETTERS, E-MAILS OR OTHER COMMUNICATIONS SENT FROM BIG FISH ARE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS.
- LIMITATIONS OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, BIG FISH AND OUR SUBSIDIARIES AND AFFILIATES AND EACH OF OUR RESPECTIVE EMPLOYEES, AGENTS, LICENSORS, LICENSEES, OFFICERS, DIRECTORS AND SHAREHOLDERS (INDIVIDUALLY AND COLLECTIVELY, THE “BIG FISH PARTIES”) WILL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY—WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, WARRANTY, OR OTHERWISE—FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES OR LOST PROFITS, EVEN IF BIG FISH OR THE OTHER BIG FISH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE LIMITATIONS SET FORTH IN THIS SECTION 18 WILL NOT LIMIT OR EXCLUDE LIABILITY FOR THE GROSS NEGLIGENCE, FRAUD OR INTENTIONAL MISCONDUCT OF BIG FISH OR THE OTHER BIG FISH PARTIES OR FOR ANY OTHER MATTERS IN WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. ADDITIONALLY, BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH JURISDICTIONS, SUCH LIABILITY SHALL INSTEAD BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW.
- IMPORT TAXES AND FEES
When you buy physical goods (e.g. disc) through any Big Fish Offering for delivery outside the United States, you are considered an importer and, as between you and Big Fish, you will be responsible for payment of all taxes, duties, fees or other charges that may be applicable to such importation, including VAT, and you must comply with all laws and regulations of the country in which you are receiving the goods. Note that cross-border deliveries are subject to opening and inspection by customs authorities.
Big Fish reserves the right to revoke any stated offer and to correct any errors, inaccuracies or omissions (including after an order was submitted and accepted) in any order, price, advertisement, promotion or giveaway.
- PROCESSING CREDIT AND DEBIT CARD PAYMENTS
Access to the Big Fish Offerings, or to certain features of the Big Fish Offerings, may require you to pay fees. Big Fish may give you different payment options. We reserve the right to change our payment options at any time and for any reason.
In the event it becomes necessary to collect on balances due, you will reimburse us and our vendors or agents for all expenses incurred to recover sums due, including attorneys’ fees and other legal expenses. Credits or refunds, when offered, will be made to the same method of payment and account used to place the order. Depending on where you reside and when your purchase was made, any taxes you paid on an order may not be included in a credit or refund you receive for the order.
The Big Fish Offerings may include functionality for activating, updating or canceling recurring payments for periodic charges. If you activate or update recurring payments through the Big Fish Offerings, you authorize Big Fish to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, all accrued sums on or before the payment due date for the accrued sums. If you use the Big Fish Offerings to update or cancel any existing authorized one-time or recurring payment, it may take several business days for the update or cancellation to take effect.
- EXPORT CONTROL LAWS
Certain Big Fish Offerings may be subject to United States and international export controls. By accessing Big Fish Offerings, you warrant that you are not located in any country, or exporting any Big Fish Offerings, to any person or place to which the United States, European Union or any other jurisdiction has embargoed goods. You agree to abide by all applicable export control laws and further agree not to transfer or upload, by any means electronic or otherwise, any Big Fish Offerings that may be subject to restrictions under such laws to a national destination prohibited by such laws without obtaining and complying with any required governmental authorizations.
- OTHER LEGAL TERMS
- DISPUTE RESOLUTION; BINDING ARBITRATION
PLEASE READ THIS SECTION 26 CAREFULLY, BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES WITH BIG FISH AND IT LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US, UNLESS YOU OPT OUT OF ARBITRATION BY FOLLOWING THE INSTRUCTIONS SET FORTH BELOW. NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS ARE ALLOWED UNDER THIS ARBITRATION PROVISION. IN ADDITION, ARBITRATION PRECLUDES YOU FROM SUING IN COURT OR HAVING A JURY TRIAL.
WHETHER TO AGREE TO ARBITRATION IS AN IMPORTANT DECISION. IT IS YOUR DECISION TO MAKE AND YOU SHOULD NOT RELY SOLELY ON THE INFORMATION PROVIDED IN THIS AGREEMENT, AS IT IS NOT INTENDED TO CONTAIN A COMPLETE EXPLANATION OF THE CONSEQUENCES OF ARBITRATION. YOU SHOULD TAKE REASONABLE STEPS TO CONDUCT FURTHER RESEARCH AND TO CONSULT WITH OTHERS REGARDING THE CONSEQUENCES OF YOUR DECISION.
- Confidentiality. You, Big Fish and the arbitrator shall maintain the confidential nature of the arbitration proceedings and the arbitration award, including the arbitration hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality unless the law provides to the contrary.
- Allocation of Arbitration Fees. If you assert a Dispute as a consumer, you will only be required to pay arbitration fees of $250 of the fees charged by JAMS in connection with any arbitration under this section, and Big Fish will bear all other costs charged by JAMS or the arbitrator, including any remaining JAMS Case Management Fee and all professional fees for the arbitrator's services. You will still be responsible for paying your own attorneys’ fees.
- STATUTE OF LIMITATIONS. ANY DISPUTE MUST BE FILED WITHIN ONE YEAR AFTER THE RELEVANT CLAIM AROSE; OTHERWISE, THE DISPUTE IS PERMANENTLY BARRED, WHICH MEANS THAT YOU AND BIG FISH WILL NOT HAVE THE RIGHT TO ASSERT THE CLAIM.
- WAIVER OF CLASS RELIEF. WHETHER THE DISPUTE IS HEARD IN ARBITRATION OR IN COURT, YOU AGREE THAT YOU AND BIG FISH WILL NOT COMMENCE AGAINST THE OTHER A CLASS ACTION, CLASS ARBITRATION OR OTHER REPRESENTATIVE ACTION OR PROCEEDING. YOU AND BIG FISH ARE EACH WAIVING RESPECTIVE RIGHTS TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY PAST, PENDING, OR FUTURE CLASS ACTION OR ANY OTHER CONSOLIDATED OR REPRESENTATIVE PROCEEDING.
- APPLICABLE LAW, JURISDICTION, AND VENUE
- CALIFORNIA NOTICE
Under California Civil Code Section 1789.3, California consumers are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N-112, Sacramento, California 95834, or by telephone at 1 (800) 952-5210.
Big Fish Games, Inc.
Attn: Legal Department
906 Alaskan Way, Suite 700
Seattle, Washington 98104