Last modified: March 22, 2021
Welcome to Wimo Games, Inc. (“WIMO,” “us,” “our,” or “we”). This End User License Agreement and Terms of Use (“Terms of Use”) applies to you and WIMO in connection with your use of WIMO’s online and mobile games and applications, including any content, functionality, discussion forums, products and services offered on or through our games and applications (collectively, “Applications”), as well as any other WIMO products and services that include or link to these Terms of Use (such other products and services, together with our Applications, are collectively referred to in these Terms of Use as the “Services”).
PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE DOWNLOADING, INSTALLING, AND/OR USING OUR SERVICES. BY CLICKING “I AGREE” OR BY DOWNLOADING OR USING OUR SERVICES, YOU ACCEPT THESE TERMS OF USE AND AGREE TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THESE TERMS OF USE. IF YOU DO NOT AGREE TO THESE TERMS OF USE, PLEASE DO NOT DOWNLOAD OR USE OUR SERVICES.
TO ENTER INTO THE CONTRACT CREATED BY THESE TERMS OF USE, YOU MUST BE AN ADULT OF THE LEGAL AGE OF MAJORITY IN YOUR COUNTRY OF RESIDENCE. YOU ARE LEGALLY AND FINANCIALLY RESPONSIBLE FOR ALL ACTIONS USING OR ACCESSING OUR SERVICES, INCLUDING THE ACTIONS OF ANYONE YOU ALLOW TO ACCESS YOUR ACCOUNT. YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE REACHED THE LEGAL AGE OF MAJORITY, AND UNDERSTAND AND ACCEPT THESE TERMS OF USE (INCLUDING ITS ARBITRATION AGREEMENT TERMS). IF YOU ARE UNDER THE LEGAL AGE OF MAJORITY, YOUR PARENT OR LEGAL GUARDIAN MUST CONSENT TO THESE TERMS OF USE.
There may also be other terms and conditions that WIMO presents to you from time to time in writing (including electronically or by posting on our through the Services), and your continued use of the Services after those terms become effective shall constitute your acceptance of those new terms. If there is any conflict or inconsistency between these Terms of Use and any such new terms, the new terms will govern and control with respect to any such inconsistencies.
THESE TERMS OF USE CONTAIN AND INCORPORATE A BINDING, INDIVIDUAL ARBITRATION AND CLASS-ACTION WAIVER AGREEMENT (“ARBITRATION AGREEMENT”). EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AGREEMENT BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND WIMO WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO GO TO COURT INDIVIDUALLY AND/OR TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
Our mobile Applications are available through third-party app stores, including Google Play and the Apple App Store (“Application Marketplace Providers”). In addition to these Terms of Use, access to and use of our mobile Applications is subject to any additional terms and conditions provided by the applicable Application Marketplace Providers (such as the Apple App Store Terms and Conditions and Google Play Terms of Service). Unless expressly stated, these Terms of Use do not modify any other terms or conditions set forth by the applicable Application Marketplace Providers.
The Services (including all references to the Services in these Terms of Use) include all information, text, features, software, interfaces, displays, images, videos, audio, trademarks, logos, slogans and other content available on or through the Services (“Content”), and all Updates and modifications to the Services Content.
WIMO reserves the right, in our sole discretion, to modify these Terms of Use at any time. If you do not agree to the Terms of Use as modified, you must stop using the Services. YOUR CONTINUED USE OF THE SERVICES FOLLOWING THE POSTING OF ANY CHANGES TO THESE TERMS OF USE CONSTITUTES YOUR ACCEPTANCE OF THOSE CHANGES. These Terms of Use governs any updates to the Services that replace or supplement the original version unless such update is accompanied by separate terms, in which case those terms will govern.
Certain Services may require or permit you to create an account or otherwise register with the Services (“Account”). In order to create an Account, you will be asked to provide certain registration details and required to select a username, password and/or other credentials to access your Account (“Account Credentials”). You acknowledge and agree to provide true, accurate, current and complete information during the registration process for any Account, and to keep such information current by notifying us of any changers or through updates to your Account.
You may not impersonate any person or entity or misrepresent your identity when creating an Account or accessing the Services. You agree that you will not give your Account Credentials to anyone else or allow anyone else to use your Account Credentials or Account. You are solely responsible for maintaining the confidentiality of your Account Credentials, and you are fully responsible and liable for all uses of your Account and Account Credentials, including purchases made through your Account. WIMO may assume that anyone logging into your Account using your Account Credentials is either you or someone logging in with your permission. If you disclose your Account Credentials to any other person, you do so at your own risk.
You agree that you will notify WIMO immediately if you believe that a third party has obtained your Account Credentials, or if you believe that any unauthorized access or use may occur or has occurred using your Account or Account Credentials. For your protection, if WIMO believes that any unauthorized access may occur or has occurred, WIMO may terminate such access without prior notice to you.
YOU UNDERSTAND AND AGREE THAT YOU DO NOT OWN THE ACCOUNT YOU USE TO ACCESS THE SERVICES, AND YOU DO NOT OWN AND HAVE NO OWNERSHIP INTEREST IN ANY DATA, VIRTUAL ITEMS, OR VIRTUAL CURRENCY ASSOCIATED WITH THE ACCOUNT OR STORED ON WIMO’S SERVERS RELATED TO THE ACCOUNT. You acknowledge and agree that any virtual items or currency in the Services (“Virtual Items”) are virtual only, with no cash value in the “real world” or online outside of the Services. Your Account is nontransferable and you do not have any right to sell or otherwise transfer your Account or any Virtual Items associated with your Account, except where expressly authorized in the Services, as applicable.
WIMO reserves the right to delete your Account if WIMO observes no activity by you in relation to the Account for 180 days or more. In such event, you may no longer be able to access and/or use any Virtual Items associated with the Account and no refund will be offered to you.
All information provided by you to create your Account is governed by our Privacy Statement at https://wimogames.com/privacy-policy, and you consent to all actions we take with respect to your Account information consistent with such Privacy Statement.
Subject to the terms and conditions set forth in these Terms of Use, WIMO grants you a personal, revocable, limited, non-transferrable and non-exclusive license to access and use the Services, including any Content available on or through the Services, on any compatible device that you own or control and as permitted by all applicable terms and usage rules set forth in any applicable application marketplace. The Services (including the Content) are made available only for your personal, lawful, non-commercial use.
You acknowledge and agree that the Services are provided under license, and not sold, to you. The Services (including the Content) are the exclusive property of WIMO or WIMO’s affiliates, licensors and service providers and are protected by copyright, trademark and other intellectual property laws. Further, you acknowledge and agree that WIMO and our affiliates, licensors and service providers own the data gathered through the Services. You do not acquire any ownership interest in the Services (including the Content) or data gathered through the Services under these Terms of Use, or any other rights thereto other than to access and use the Services in accordance with the license granted, and subject to all terms, conditions and restrictions of these Terms of Use. WIMO and our affiliates, licensors, and service providers reserve and shall retain their entire right, title, and interest in and to the Services, including all copyrights, trademarks and other intellectual property rights therein or relating thereto, except as expressly granted to you in these Terms of Use.
You may not download, copy, print, display, perform, reproduce, publish, modify, prepare derivative works from, license, transmit, or distribute the Services (including the Content and the design, selection and arrangement thereof), in whole or in part, for any public or commercial purpose without prior written consent from WIMO.
ALL CHARGES INCURRED IN CONNECTION WITH THE SERVICES ARE PAYABLE IN ADVANCE AND ARE NOT REFUNDABLE IN WHOLE OR IN PART, REGARDLESS OF THE PAYMENT METHOD, EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS OF USE OR AS REQUIRED BY APPLICABLE LAW.
Except as otherwise provided in these Terms of Use, you agree to make all payments through a third-party service provider that WIMO has engaged to accept and process credit card, debit card, ACH/bank account debit, and other types of payments (“Payment Partner”). You may be required to register with our Payment Partner to use their services. WIMO does not assume any liability for the actions or services of our Payment Partners, as described more fully below.
You acknowledge and agree that WIMO is authorized, but not required, to act on payment instructions received from you or anyone using your Account. You authorize WIMO to initiate payments from or debits against your financial account(s) periodically for the amount then due, and to initiate any other payments or debits authorized by you or anyone using your Account.
This authorization will remain in force until thirty (30) days after you change your payment preferences. All payments must be made in U.S. dollars. You acknowledge and agree that WIMO may share your information, including information about your financial accounts, with our Payment Partners for this purpose. You should be aware that online payment transactions may be subject to validation checks by our Payment Partners and your card issuer or financial institution, and we are not responsible if your card issuer or financial institution declines to authorize payment for any reason. For your protection, our Payment Partners use various fraud prevention protocols and industry standard verification systems to reduce fraud and you authorize applicable Payment Partners to verify and authenticate your payment information. Please note, it is possible that your card issuer or financial institution may charge you an online handling fee or processing fee. WIMO is not responsible for any such fee.
You understand and agree that no transaction is final until you receive a confirmation from WIMO. Please print and save the confirmation provided to you after making a purchase.
With respect to Applications obtained and downloaded from an Application Marketplace Provider, all purchases and payments will be processed by and through the Application Marketplace Provider (e.g., Google Play or iTunes app store) from which you originally downloaded the Application. Any purchases made in connection with such Applications are also subject to the applicable Application Marketplace Provider’s purchase terms and conditions which are available directly from the applicable Application Marketplace Provider. If you have any payment-related issues with purchases made through Application Marketplace Providers, then you need to contact the applicable Application Marketplace Provider directly.
WIMO may license to you certain Virtual Items to be used within the Services and which you may purchase with “real world” money or which you may earn or redeem via gameplay. Virtual Items are licensed to you on a limited, personal, non-transferable, non-sublicensable, revocable basis and are intended solely for non-commercial use. WIMO may manage, control, modify or eliminate Virtual Items at any time, with or without notice. Price and availability of Virtual Items are subject to change without notice.
The transfer of Virtual Items is prohibited except where expressly authorized in the Services, as applicable.
Virtual Items do not have an equivalent value in real world money and are not a substitute for real world money. Neither WIMO nor any other person or entity has any obligation to exchange Virtual Items for anything of value. WIMO is not liable for hacking or loss of your Virtual Items.
All purchases and redemptions of Virtual Items made through the Services are final and non-refundable. You acknowledge and agree that you will not receive money or other compensation for unused Virtual Items, regardless of whether your loss of license under these Terms of Use was voluntary or involuntary.
If you ask for your personal data to be deleted as described in WIMO’s Privacy Statement, you will permanently forfeit all of your Virtual Items without the right to refund, as WIMO will no longer be able associate such Virtual Items with you.
You may use the Services only for lawful purposes and in accordance with these Terms of Use. You agree not to access or use the Services for any purpose that is illegal or beyond the scope of the Service’s intended use (in WIMO’s sole judgment). You further understand and agree that you shall not(and shall not permit others to):
If you engage in any of the above activities or otherwise violate these Terms of Use, your license to use the Services will terminate effective immediately. In addition, you may be subject to legal action and may be denied future participation in any products distributed by WIMO.
WIMO may from time to time, in our sole discretion, develop and provide Service updates or other maintenance and support services, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain Service features and functionality. You agree that WIMO has no obligation to provide any Updates or to continue to provide or enable any particular Service features or functionality. Based on your device settings, when your device is connected to the internet, either the Application will automatically download and install all available Updates or you may receive notice of or be prompted to download and install available Updates.
You shall promptly download and install all Updates and acknowledge and agree that the Services or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Services and be subject to all terms and conditions of these Terms of Use.
To the extent WIMO chooses in our sole discretion to provide any Updates with respect to the Services, WIMO will be solely responsible for providing such Updates. You acknowledge and agree that the applicable Application Marketplace Providers have no obligation whatsoever to furnish any Updates or other maintenance or support services with respect to the Services.
In addition to any Updates we may provide, WIMO reserves the right to withdraw any Service in its entirety in our sole discretion without notice. You agree that WIMO and the applicable Application Marketplace Providers will not be liable if for any reason all or any part of the Services are terminated or unavailable at any time or for any period. In the event that we terminate any Service, you agree that WIMO in its sole discretion can delete any information associated with your Account or maintain any information associated with your Account for use with other Services.
Services may include links to third-party services (including, but not limited to, advertisements displayed by third parties) and/or the third-party services may be made available to you via the Services. These services may include, but are not limited to gameplay recording and sharing, social media connectivity, and advertisements. These services are subject to respective third party terms and conditions. Please read these third-party terms and conditions, carefully as they constitute an agreement between you and the relevant third-party service provider to which WIMO is not a party.
Information and data we collect through or in connection with the Services is further described in and subject to our Privacy Statement at https://wimogames.com/privacy-policy.
WIMO may work with other companies to provide you with the Services. These parties are collectively referred to in these Terms of Use as “Third Party Partners.” For example, Third Party Partners may include, without limitation, telecommunications providers, wireless providers, identity verification and fraud prevention service providers, advertising partners, and any other person or entity who provides any service, equipment, content, features or facilities in connection with the Services. If any of the Third Party Partners imposes additional terms and conditions on the services they provide, those terms and conditions will be conveyed to you by those Third Party Partners.
For further information about how WIMO handles your information, please view WIMO’s Privacy Statement at https://wimogames.com/privacy-policy. You agree to the collection, use, and sharing of information and data collected by WIMO in accordance with these Terms of Use and WIMO’s Privacy Statement.
“Speech Data” means the audio files, associated transcripts, and log files provided by you or generated in connection with the Services. WIMO and/or our licensors may collect and use Speech Data to tune, enhance, and improve the speech recognition and other components of Services. You acknowledge, consent, and agree that WIMO and our licensors may record and collect Speech Data as part of your use of the Services and that such information will only be used by WIMO and our licensors, or Third Party Partners acting under the direction of WIMO and our licensors pursuant to confidentiality agreements, to provide, tune, enhance, and improve the speech recognition and other components of the Services and other products and services owned, licensed or developed by WIMO and our licensors.
The Services may contain various forums, networks, and other interactive features that allow you to post, submit, publish, display, or transmit to WIMO and other users (“Post”) content or materials (“User Contributions”) on or through the Services. All User Contributions must comply with these Terms of Use. You represent and warrant that you own or otherwise control all of the rights to the User Contributions that you Post at the time of Posting. WIMO takes no responsibility and assumes no liability for any User Contributions or other content Posted by you or any third party.
Any User Contribution that you Post will be considered non-confidential and non-proprietary, and you grant WIMO a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, copy, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such User Contribution throughout the world in any media.
WIMO has the right but not the obligation to monitor and edit or remove any User Contributions. WIMO also has the right to terminate your access to all or part of the Services for any or no reason, including without limitation, any violation of these Terms of Use. WIMO may exercise these rights at any time, without notice or liability to you or any third party.
Services transmit data via your wireless carrier or an accessible Wi-Fi network. You are solely responsible for any and all telecommunications, data, or other connectivity charges incurred through your use of the Services. WIMO is not responsible or liable for any data charges associated with the use of the Services. The Services may occasionally be restricted, interrupted or discontinued due to conditions including, but not limited to, application design, network coverage, government regulation, or other situations beyond WIMO’s control.
You agree to be bound by any affirmance, assent, or agreement you enter into using the Services. YOU AGREE AND CONSENT TO USE ELECTRONIC SIGNATURES WHICH SHALL HAVE THE SAME FORCE AND EFFECT AS YOUR WRITTEN SIGNATURE. Electronic signatures may take various forms on the Services, including clicking on an “I agree,” “I consent,” or other similarly worded “button” or entry field in the Services. Your consent for WIMO and our Third Party Partners to use your electronic signature for all WIMO Services you may purchase or use in the future.
We may provide you with emails, text messages, push notifications, alerts and other messages related to the Services, such as Updates and enhancements, changes to these Terms of Use, and other information relating to WIMO’s Services. After downloading certain Services, you will be asked to accept or deny push notifications/alerts. If you deny, you will not receive any push notifications/alerts. If you accept, push notifications/alerts will be automatically sent to you. If you no longer wish to receive push notifications/alerts from the Services, you may opt out by changing your notification settings on your device. Please note that certain push notification may be required for the Services to function properly.
With respect to other types of messaging or communications, such as emails, text messages, etc., you can unsubscribe or opt out by either following the specific instructions included in such communications, or by emailing us with your request at the email address provided under the Contact Us section below.
The Services may allow access to or make available opportunities for you to view certain content and receive other products, services or other materials based on your location. To make these opportunities available to you, the Services will determine your location using one or more reference points, such as GPS, Bluetooth and/or software within your device. If you have set your device to disable GPS, Bluetooth or other location determining software or do not authorize the Services to access your location data, you will not be able to access such location-specific content, products, services and materials. For more about how the Services use and retain your information, please read our Privacy Statement at https://wimogames.com/privacy-policy.
The following additional terms and conditions apply to you if you download an Application from an Application Marketplace Provider. To the extent that the other terms and conditions of these Terms of Use are less restrictive than, or otherwise conflict with, the terms and conditions of this section, the more restrictive or conflicting terms and conditions in this section will apply, but solely with respect to the Application and the Application Marketplace Provider. You acknowledge and agree that:
In the event of a conflict between an Application Marketplace Provider’s or mobile carrier’s applicable terms and conditions and these Terms of Use, the terms and conditions of the Application Marketplace Provider or mobile carrier shall govern and control. We are not responsible and have no liability whatsoever for third-party goods or services you obtain through an Application Marketplace Provider or mobile carrier. We encourage you to make whatever investigation you feel necessary or appropriate before proceeding with any online transaction with any of these third parties.
WIMO may terminate or suspend these Terms of Use, including your Account and access to the Services, if you breach these Terms of Use or if WIMO is required to do so by applicable law. You agree that all terminations for cause shall be made in WIMO’s sole discretion and that WIMO shall not be liable to you or any third party for any termination of your Account or access to the Services.
Without limiting any other remedies available to WIMO, in the event that WIMO determines, in its sole discretion, that you have breached any portion of these Terms of Use, or have otherwise demonstrated conducted inappropriate for the Services, WIMO reserves the right to take any of the following actions, whether individually or in combination, and either with or without notice to you: (a) delete, suspend, and/or modify your Account; (b) limit, suspend, and/or terminate your access to the Services; (c) modify and/or remove any of your Virtual Items; (d) reset and/or modify any game progression or benefits and privileges associated with you, such as any level or score you have reached in the Services; and/or (e) pursue any other action which WIMO deems to be appropriate.
All provisions of these Terms of Use, which by their nature should survive, shall survive termination of these Terms of Use, including, without limitation, the Arbitration Agreement, ownership provisions, warranty disclaimers, and limitation of liability.
THE SERVICES ARE PROVIDED “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, WIMO, ON OUR OWN BEHALF AND ON BEHALF OF OUR AFFILIATES AND OUR AND THEIR RESPECTIVE LICENSORS AND THIRD PARTY PARTNERS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICES AND CONTENT, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, WIMO AND OUR AFFILIATES AND OUR AND THEIR RESPECTIVE LICENSORS AND THIRD PARTY PARTNERS AND SERVICE PROVIDERS PROVIDE NO WARRANTY OR UNDERTAKING, AND MAKE NO REPRESENTATION OF ANY KIND THAT THE SERVICES AND CONTENT WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER WIMO NOR OUR AFFILIATES, NOR ANY OF OUR OR THEIR RESPECTIVE LICENSORS OR THIRD PARTY PARTNERS OR SERVICE PROVIDERS, WILL BE LIABLE FOR ANY DAMAGES, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, INCOME, PROFIT OR GOODWILL, LOSS OF OR DAMAGE TO PROPERTY AND CLAIMS OF THIRD PARTIES ARISING OUT OF YOUR ACCESS TO OR USE OF THE SERVICES OR CONTENT, HOWEVER CAUSED, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PROPRIETARY RIGHTS INFRINGEMENT, PRODUCT LIABILITY OR OTHERWISE.
THE FOREGOING SHALL APPLY EVEN IF WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOU BECOME DISSATISFIED IN ANY WAY WITH THE SERVICES OR CONTENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO STOP YOUR USE OF THE SERVICES.
YOU HEREBY WAIVE ANY AND ALL CLAIMS ARISING OUT OF YOUR USE OF THE SERVICES AND CONTENT. BECAUSE SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF DAMAGES, THESE PROVISIONS MAY NOT APPLY TO YOU. IF ANY PORTION OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN OUR AGGREGATE LIABILITY SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100).
THE LIMITATION OF LIABILITY HEREIN IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN AND REFLECTS A FAIR ALLOCATION OF RISK. THE SERVICES AND CONTENT WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS AND YOU AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY, DISCLAIMERS AND EXCLUSIVE REMEDIES SPECIFIED HEREIN WILL SURVIVE EVEN IF FOUND TO HAVE FAILED IN THEIR ESSENTIAL PURPOSE. THE FOREGOING DOES NOT APPLY TO LIABILITY ARISING FROM ANY FRAUD OR FRAUDULENT MISREPRESENTATIONS, OR ANY OTHER LIABILITY THAT CANNOT BE LIMITED BY APPLICABLE LAW.
YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD HARMLESS WIMO, OUR AFFILIATES, AND ANY OF OUR/THEIR RESPECTIVE LICENSORS, THIRD PARTY PARTNERS, SERVICE PROVIDERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES, SUCCESSORS, AND ASSIGNS FROM AND AGAINST ANY AND ALL LOSSES, DAMAGES, LIABILITIES, DEFICIENCIES, CLAIMS, ACTIONS, JUDGMENTS, SETTLEMENTS, INTEREST, AWARDS, PENALTIES, FINES, COSTS, OR EXPENSES OF WHATEVER KIND, INCLUDING REASONABLE ATTORNEYS’ FEES, ARISING FROM OR RELATING TO YOUR USE OR MISUSE OF THE SERVICES OR CONTENT OR YOUR BREACH OF THESE TERMS OF USE.
PLEASE READ THE FOLLOWING ARBITRATION AGREEMENT CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH WIMO AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM WIMO. Both you and WIMO acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms of Use, WIMO’s officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of these Terms of Use, and that upon your acceptance of these Terms of Use, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms of Use against you as the third-party beneficiary hereof.
The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of these Terms of Use directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in Collin County, Texas. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
The Rules will govern payment of all arbitration fees. WIMO will pay all arbitration fees for claims less than seventy-five thousand ($75,000) dollars. WIMO will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
Either you or WIMO may assert claims, if they qualify, in small claims court in Collin County, Texas, or any United States county where you live or work. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.
YOU AND WIMO WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and WIMO are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and WIMO over whether to vacate or enforce an arbitration award, YOU AND WIMO WAIVE ALL RIGHTS TO A JURY TRIAL, AND ELECT INSTEAD TO HAVE THE DISPUTE BE RESOLVED BY A JUDGE.
ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE PLAYER OR SERVICE USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER PLAYER OR USERS. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor WIMO is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.
You have the right to opt out of the provisions of this Section by sending written notice of your decision to opt out to the postal address provided under the Contact Us section below, postmarked within thirty (30) days of first accepting these Terms of Use. You must include (i) your name and residence address, (ii) the email address associated with your Account, and (iii) a clear statement that you want to opt out of these Terms of Use’s Arbitration Agreement.
If you send the opt-out notice in (f), and/or in any circumstances where the foregoing Arbitration Agreement permits either you or WIMO to litigate any dispute arising out of or relating to the subject matter of these Terms of Use in court, then the foregoing Arbitration Agreement will not apply to either party, and both you and WIMO agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, Collin County, Texas, or the federal district in which that county falls.
If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration Agreement section will be null and void. This Arbitration Agreement will survive the termination of your relationship with WIMO.
Notwithstanding anything to the contrary, these Terms of Use and your relationship with WIMO hereunder shall be governed by the laws of the State of Texas without regard to its conflict of laws provisions. You and WIMO agree to submit to the exclusive jurisdiction of the courts located within the State of Texas to resolve any legal matter arising from these Terms of Use or your use of the Services that for whatever reason are not submitted to arbitration, and all claims or cases challenging the enforceability or applicability of the arbitration provisions herein. Notwithstanding the foregoing, you agree that WIMO shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction. You understand, acknowledge and agree that a printed version of these Terms of Use will be admissible in judicial and administrative proceedings based upon or relating to these Terms of Use or your use of the Services to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
The Convention on Contracts for the International Sale of Goods will not apply. Any law or regulation which provides that the language of a contract shall be construed against the drafter will not apply to these Terms of Use. This paragraph will be interpreted as broadly as applicable law permits.
The Application may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Services to, or make the Services accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services available outside the U.S.
These Terms of Use, including the Arbitration Agreement contained herein and together with our Privacy Statement, constitute the entire agreement between you and WIMO with respect to the Services (including the Content) and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Services.
If any provision of these Terms of Use is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of these Terms of Use will continue in full force and effect.
No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder.
These Terms of Use constitute a binding legal agreement between you as user of the Services (“you” or “your”) and WIMO. To contact us about these Terms of Use or our Services, please contact us at:
U.S. Mail
Wimo Games, Inc.
Attn: Support
3005 S. Lamar Blvd D109
#190
Austin, TX 78704
Email support@wimogames.com
Telephone 1-800-410-0471