User Agreement

Effective as of November 1, 2018.

1. This Agreement is a Binding Contract.

This User Agreement (“Agreement”) is a legally binding contract between you and Kongregate Inc. and with our parent company, subsidiaries and affiliates (“Kongregate,” “we” or “us”).

By visiting or playing games on www.kongregate.com, by visiting, downloading or purchasing games on www.kartridge.com and any other site or online service that is owned or operated by Kongregate (each, a “Site,” and collectively, the “Sites,”), by purchasing or downloading mobile games, whether published by Kongregate (each, an “App,” and collectively, the “Apps,” and together with the Sites, the “Platform”) or made available on a Platform owned or operated by Kongregate (e.g., Kartridge), by playing games that can be played through third party platforms, e.g., via consoles, PCs and/or social media sites such as Facebook (“3rd Party Platform Games”) or by otherwise accessing any of our other products, services or content through any of our Platform or through 3rd Party Platform Games (collectively, “Services”), you agree to and accept this User Agreement, which we may update from time to time. Your use of our Services is also subject to our Privacy Policy (which is a part of this User Agreement) and our Cookie Policy (which is incorporated into the Privacy Policy) which cover how we collect, use, share and store your personal information. This Agreement takes effect as soon as you indicate your acceptance of these terms.

2. Changes To The Agreement and Severability

We reserve the right, at our discretion, to change, modify, add or remove portions of the Agreement at any time by posting the amended Agreement on our Platform or within our Services (such as through in-game notices). If there is a material change, we may also provide additional notice by sending an email or messaging within the Services. Unless we state otherwise, the changes are effective immediately upon posting. Each time you access our Services, the Platform or 3rd Party Platform Games, the then current version of the Agreement applies, and you agree that the changes apply to your continued use of the Services.

Your failure to cancel your account, or cease use of our Services, after receiving notification of the amended Agreement, will constitute your acceptance of the amended terms. If you do not agree to the amendments or to any of the terms in this Agreement, your only remedy is to terminate your account or to cease use of our Services.

If any portion of this Agreement is deemed to be illegal or unenforceable, the remainder of the Agreement shall be unaffected and shall continue to be fully valid, binding, and enforceable.

3. Requirements To Use Our Services

To use our Services or become a “User” (as defined below), you agree that you can enter into a binding contract with Kongregate and that you are not a Child. “Child” or “Children” means anyone under the age of 13 (or under 16 in certain European countries). Creating an account with false information is a violation of this Agreement. Our Services are designed for and directed at people 18 years of age or older and not intended for Children. Children should not attempt to create an account or send any of your information to us. We will not knowingly collect personal information from Children as further provided in our Privacy Policy. If you are under the age of majority where you are located, you represent that your parent or legal guardian has reviewed and agreed to this Agreement on your behalf.

We also reserve the right, in our sole discretion and at any time, to discontinue or modify our Services or any part thereof, or remove or edit Content (as defined below), without prior notice (although we will endeavor to give you at least one month’s notice of material changes) either permanently or temporarily, at which point your right to use those Services or any part thereof will be automatically terminated or suspended.

4. Account Information and Security

In order to use our Services, we may ask that you create an Account and select a password and/or provide us with certain personal information, which may include your email, user name and certain other information. You become a user (“User”) by completing the registration of an account to access our Services (“Account”). Such Account information will be used in accordance with our Privacy Policy. You agree to provide Kongregate with accurate, complete and up-to-date information, particularly your email address.

You are responsible for maintaining the security of your Account. You should not share your Account details with others to access or use your Account. You agree to accept responsibility for all activities that occur under your Account, and you understand that you may be held liable for losses incurred by us or any other use of the Services caused by someone else using your Account. However, if you become aware of loss, theft, fraud or unauthorized use of your Account, please contact us at support@kongregate.com immediately.

5. Deleting Your Account

If you are unsatisfied with our Services or disagree with this Agreement, our Privacy Policy or Cookie Policy, you may stop using our Services at any time and may request that we delete your Account. Please refer to our Privacy Policy for “Your Rights and Options.” UNLESS APPLICABLE LAW REQUIRES OTHERWISE, WE ARE NOT REQUIRED TO PROVIDE REFUNDS, BENEFITS OR OTHER COMPENSATION IF YOU REQUEST DELETION OF YOUR ACCOUNT.

TO AVOID RETAINING DATA THAT IS NO LONGER NEEDED AND/OR TO IMPROVE OUR SERVICES, WE MAY DELETE OR TERMINATE ACCOUNTS THAT ARE INACTIVE (I.E., NOT LOGGED INTO) FOR OVER ONE YEAR. IN SUCH AN EVENT, WE WILL ATTEMPT TO PROVIDE AT LEAST ONE MONTH’S NOTICE TO YOU.

6. Our Ownership of Content; Limited License To User Our Services

Our Services are comprised of works and intellectual property owned by Kongregate and/or its licensors, including, without limitation, games (“Games”), artwork, graphics, images, screen shots, text, music, digitally downloadable content or files (“DLC”), trademarks, logos, product and character names, slogans, and the compilation of the foregoing (“Content”). The Content is protected in the U.S. and internationally under trademark, copyright, trade dress, patent, and other applicable laws, rules and regulations.

Under this Agreement, we grant you a limited, personal, non-transferable and non-assignable license to use our Services and the Content therein. The Content in our Services are for gaming services and for your non-commercial enjoyment and entertainment. Any other use, including modification, reproduction, uploading, posting, transmission, or distribution in any form or by any means without Kongregate’s prior written permission, is strictly prohibited.

You agree not to display or use any Content or third party content located on the Platform (excepting games listed under “Games for Your Site”) in any publications, in public performances, for any commercial purpose, in connection with products or services that are not those of Kongregate, in any other manner that is likely to cause confusion among consumers, that disparages or discredits Kongregate and/or its licensors, that dilutes the strength of Kongregate’s or its licensor’s property, or that otherwise infringes Kongregate’s or its licensor’s intellectual property rights. You further agree to in no other way misuse any Content that appears in our Services.

You are not granted any other right, title or interest in our Services or any Content except as expressly provided herein. All other rights are reserved.

IF YOU HAVE BEEN FOUND IN VIOLATION OF THIS AGREEMENT, WE RESERVE THE RIGHT, IN OUR SOLE DISCRETION AND AT ANY TIME, TO LIMIT, SUSPEND, MODIFY OR TERMINATE ACCOUNTS OR ACCESS TO SERVICES OR ANY PORTION THEREOF. IF THIS HAPPENS, KONGREGATE IS NOT REQUIRED TO COMPENSATE YOU FOR ANY LOSSES OR RESULTS. IN ADDITION, YOU MAY BE FOUND TO BE IN VIOLATION OF CRIMINAL AND CIVIL LAWS, INCLUDING KONGREGATE’S INTELLECTUAL PROPERTY RIGHTS.

7. Posting Rules for Users Generated Content

On certain areas of our Platform, through your Account or otherwise, you may be able to chat with other users, and submit texts, files, images, photos, videos, sounds, musical works, works of authorship, text postings (including through the posting of online games) and other materials and content (“User Generated Content” or “UGC”). Your posting of UGC is subject to this Agreement and the following posting rules (“Posting Rules”):

  1. You agree that your UGC is:

    1. Accurate;
    2. Not confidential;
    3. Not in violation of law;
    4. Not in violation of contractual restrictions or third party rights, and that you have permission to use content from any other party whose personal or other information or intellectual property is contained in the UGC;
    5. Not abusive, harmful, libelous, profane, obscene or otherwise objectionable;
    6. Not for commercial purposes or business solicitations;
    7. Free of viruses, corrupting files, interference, cheat software, worms or other malicious code; and
    8. In compliance with our Conduct Guidelines.
  2. Responsibility of Postings. You understand and acknowledge that UGC is solely your responsibility, and that Kongregate is not responsible for the information, data, text or other materials that may appear in UGC. Opinions expressed in UGC do not necessarily reflect the opinions of Kongregate. UGC is not necessarily reviewed by Kongregate prior to posting and Kongregate makes no warranties, express or implied, as to the UGC or to the accuracy and reliability of the UGC.

  3. No Monitoring/Violation Notices. You acknowledge that Kongregate does not necessarily monitor any materials posted, transmitted, or communicated to or within the Platform. Notwithstanding the foregoing, you further agree that Kongregate and its designees will have the right (but not the obligation) in their sole discretion to refuse, edit, move, or remove any UGC that is available via the Platform. If you believe that something on the Platform violates these Posting Rules or otherwise violates this Agreement, please contact support@kongregate.com.

YOU UNDERSTAND AND AGREE THAT KONGREGATE MAY CANCEL YOUR ACCOUNT AND DELETE ALL UGC ASSOCIATED WITH YOUR ACCOUNT AT ANY TIME, AND WITHOUT NOTICE, IF KONGREGATE DEEMS THAT YOU MATERIALLY BREACH THESE POSTING RULES, THIS AGREEMENT, APPLICABLE LAW, OR FOR ANY OTHER REASON. KONGREGATE ASSUMES NO LIABILITY FOR ANY INFORMATION REMOVED FROM OUR PLATFORM AND RESERVES THE RIGHT TO PERMANENTLY RESTRICT ACCESS TO SERVICES OR TERMINATE AN ACCOUNT.

8. Your Ownership of UGC; UGC License

After posting your UGC to the Platform, you continue to retain all ownership rights in such UGC, and you continue to have the right to use your UGC in any way you choose, subject to this Agreement and the license described herein (“UGC License”).

  1. Scope of License. By displaying, publishing, or otherwise posting any UGC on or through the Platform, you hereby grant to Kongregate a limited, non-exclusive, sub-licensable, worldwide, fully-paid, royalty free license to use, modify, publicly perform, publicly display, reproduce, and distribute such UGC. This license will terminate at the time your UGC is removed either by you or Kongregate from the Platform.

  2. Representations. You represent and warrant that: (i) you solely own the UGC displayed, published or posted by you on the Platform or otherwise have the right to grant the license set forth herein, and (ii) the displaying, publishing or posting of your UGC does not violate infringe on the rights of any third party, including any copyright, trademark, patent, trade secret or other intellectual property right, or the privacy rights, publicity rights, contract rights or any other rights of any person. You agree to pay for all royalties, fees, and any other monies owing any person by reason of any UGC displayed, published or posted by you to the Platform. Except for your UGC, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any UGC appearing on this Platform.

9. Billing, Payment and Virtual Items

  1. Billing and payment methods and services are provided by one or more third party billing service providers (collectively, the “Billing Company”) and not by Kongregate. By purchasing Virtual Items (as defined below), you agree to be bound by the terms and conditions imposed by the Billing Company, including its privacy policy, in addition to the terms of this Agreement. We reserve the right to change the Billing Company at any time.

  2. Payment. You must have a valid credit card or other valid payment method accepted by the Billing Company (collectively, “Payment Method”) and have reached the age of majority in the state in which you reside in order to purchase Virtual Items and to establish a payment account, which may not be transferred to or used by any third party. You represent and warrant to Kongregate that (i) you are authorized to use the billing Payment Method for the Virtual Items (including, without limitation, all accounts, credit cards, direct bank transfers, checks and other payment mechanisms associated therewith) for the purposes of purchasing Virtual Items as described herein; (ii) the Payment Method is valid; (iii) all information and data you submit in connection with the purchase of a Virtual Item and any Payment Method is complete, true, accurate and up-to-date; (iv) Kongregate and the Billing Company are authorized to and may charge such Payment Method; (v) you have reached the age of majority in the state in which you reside; and (vi) you are able to form a legally binding contract under applicable law. If payment cannot be charged to your Payment Method or your payment or charge is returned for any reason, including without limitation chargeback, Kongregate and the Billing Company reserve the right to either suspend or terminate your access to the payment account and/or your ability to purchase Virtual Items without notice.

    As the Account holder, you are responsible for all charges incurred, including applicable taxes, and all purchases made by you or anyone that uses your Account, including family and friends. Any delinquent or unpaid Accounts must be settled before Kongregate will allow you to register again. Kongregate reserves the right to collect fees, surcharges or costs incurred prior to the cancellation of your Account or termination of your access to our Services. Kongregate is expressly relying on your representation that you have reached the age of majority; Kongregate would not enter into this “Billing, Payment and Virtual Items” portion of the Agreement with you but for the representation that you have reached the age of majority under the laws of where you reside.

  3. Prices and Taxes. All prices we show in our Services are subject to change without notice. Prices stated at the beginning of delivery apply. Applicable taxes or shipping and handling charges are included in the product prices, but all such charges will be added to your invoice and will be visible at check out before you complete your purchase. Kongregate or the Billing Company will collect sales tax in the states where we are required by law to do so. Thus we may require you to tell us or the Billing Company your state of residency when ordering. Applicable sales tax will be included in your purchase price.

  4. Kreds, In App Purchases and Other Virtual Items.

    1. Kongregate credits (“Kreds”), Kongregate Plus in-app purchases, Games, DLC and any other virtual in game items or services offered through any Kongregate Platform (collectively, “Virtual Items”) and either earned by you through game play or purchased by you are licensed, not sold, to you on the following terms and conditions.
    2. Effective upon your earning or purchase of a Virtual Item, subject to these terms, Kongregate grants you a limited, non-exclusive, non-transferable, revocable license to publicly display on the Platform and use the Virtual Item as authorized by Kongregate through our Services or under this Agreement, provided that you comply with the following license conditions.
    3. Virtual Items have no monetary value, are non-refundable and cannot be used to purchase or use products or services other than use in connection with in-game play offered on the Site, as determined by Kongregate in its discretion.
    4. You may not distribute or otherwise transfer any Virtual Item to any third party. You may not distribute Kreds to yourself or to members of your immediate family, even if they are a game developer. Any attempt to distribute, sell or otherwise transfer any Virtual Item except as expressly authorized under these Terms will result in an automatic termination of such license. Further, as the Virtual Items are merely licensed game play activities, they are deemed consumed upon purchase event.
    5. Except as expressly stated in the terms of this Agreement, you have no property, proprietary or ownership interest in, or other right or license to, the Platform or any Virtual Item, all of which remain the exclusive property of Kongregate or its licensors.
    6. The Virtual Items are protected in the U.S. and internationally under trademark, copyright and/or other rights protected by intellectual property laws. Your use of any Virtual Item outside the scope of the license grant and these license conditions constitutes infringement of such intellectual property rights.
    7. Software that may be available in connection with our Services (the “Software”) is further subject to United States export controls. No Software may be downloaded from the Platform or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk.
    8. All Virtual Item purchases are non-refundable and non-returnable except:

      1. For a Game or DLC that is charged to your Account within two (2) weeks of such original purchase, provided that the Game or DLC has not yet been downloaded;
      2. For a Game or DLC that is misrepresented in the images or descriptions in Kartridge or www.kartridge.com;
      3. For a Game or DLC that has significant technical issues, provided that Kongregate (or the developer) has had sufficient time to try to resolve the issue before processing the refund; or
      4. In Kongregate's sole and absolute discretion or where required by law.

      Kongregate reserves the right to refuse a refund if we determine that there is abuse of the refund policy.

10. Third Party Sites and Advertising

Our Services may feature advertisements from third party companies. Please review our Privacy Policy which explains what information we share with advertisers.

Our Services may link to third party sites. Such third party sites are not maintained by or related to Kongregate and such a link does not mean we endorse or approve of such linked site or information on that site. Such third party sites may collect data or ask that you provide them with personal information, which is subject to the terms of that site’s privacy policy. Once you choose to link to another website, you should read that site’s privacy statement before disclosing any personal information. Any separate charges or obligations you incur in your dealings with these third parties are your responsibility. Kongregate is not liable for any claim relating to any content, goods or services of third parties.

11. Indemnification

You agree to indemnify, defend and hold Kongregate, its parents, subsidiaries, officers, employees, and contractors harmless from and against any and all third party claims, damages and expenses (including reasonable attorneys’ fees) arising from or in connection with (A) your use of our Services; (B) your UGC; (C) your conduct or interactions with other users of our Services; or (D) your breach of this Agreement or any breach thereof by your dependents.

We will promptly notify you of any such claim and will provide you (at your expense) with reasonable assistance in defending the claim. You will allow us to participate in the defense and will not settle any such claim without our prior written consent. We reserve the right, at our own expense, to assume the exclusive defense of any matter otherwise subject to indemnification by you. In that event, you will have no further obligation to defend us in that matter.

12. Warranty Disclaimer

USE OF OUR SERVICES IS AT YOUR SOLE RISK. KONGREGATE AND ITS AFFILIATES AND SERVICE PROVIDERS EXPRESSLY DISCLAIM (A) ANY WARRANTY FOR THE PLATFORM, THE CONTENT AND SERVICES, AND (B) ANY COMMON LAW DUTIES WITH REGARD TO THE PLATFORM, THE CONTENT AND SERVICES, INCLUDING DUTIES OF LACK OF NEGLIGENCE AND LACK OF WORKMANLIKE EFFORT. THE PLATFORM, THE CONTENT AND SERVICES, AND ANY INFORMATION AVAILABLE IN CONNECTION THEREWITH, ARE PROVIDED ON AN “AS IS, AS AVAILABLE” BASIS, “WITH ALL FAULTS,” AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. ANY WARRANTY AGAINST INFRINGEMENT THAT MAY BE PROVIDED IN SECTION 2-312 OF THE UNITED STATES UNIFORM COMMERCIAL CODE AND/OR IN ANY OTHER COMPARABLE STATE STATUTE IS EXPRESSLY DISCLAIMED. ALSO, THERE IS NO WARRANTY OF TITLE, NON-INTERFERENCE WITH YOUR ENJOYMENT, OR AUTHORITY IN CONNECTION WITH KONGREGATE, THE CONTENT AND SERVICES, OR INFORMATION AVAILABLE IN CONNECTION THEREWITH.

KONGREGATE AND ITS AFFILIATES AND SERVICE PROVIDERS MAKE NO PROMISES OR GUARANTEES OF CONTINUOUS, ERROR-FREE, VIRUS-FREE OR SECURE OPERATION AND ACCESS TO SERVICES AND/OR YOUR ACCOUNT OR ANY INFORMATION AVAILABLE IN CONNECTION THEREWITH.

13. Limitations of Liability; Waiver

YOU AGREE THAT IN NO EVENT SHALL KONGREGATE, ITS LICENSORS, AND ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, OR ANY OTHER DAMAGES, INCLUDING LOSS OF PROFITS, GOODWILL OR DATA, ARISING OUT OF OR IN CONNECTION WITH THE USE OF, OR INABILITY TO USE, THE SERVICES, EVEN IN THE EVENT OF KONGREGATE’S OR ITS AFFILIATES’ FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR BREACH OF KONGREGATE’S WARRANTY AND EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS AND LIABILITY EXCLUSIONS APPLY EVEN IF ANY REMEDY FAILS TO PROVIDE ADEQUATE RECOMPENSE.

TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, THE TOTAL LIABILITY OF KONGREGATE, ITS LICENSORS, AND ITS AFFILIATES IS LIMITED TO THE TOTAL AMOUNT YOU HAVE PAID KONGREGATE, ITS LICENSORS, AND/OR ITS AFFILIATES IN THE ONE YEAR IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM.

IF YOU HAVE NOT PAID KONGREGATE, ITS LICENSORS, AND ITS AFFILIATES ANY AMOUNT IN THE ONE YEAR IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH KONGREGATE, ITS LICENSORS, AND/OR ITS AFFILIATES IS TO STOP USING THE SERVICES AND TO CANCEL YOUR ACCOUNT.

BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, EACH OF KONGREGATE, ITS LICENSORS, AND ITS AFFILIATES’ LIABILITY SHALL BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW. SOME LAWS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY, SO THESE LIMITS MAY NOT APPLY TO YOU.

14. Terms; Termination

  1. Term. The term of this Agreement (the “Term”) commences on the date you first indicate your acceptance of these terms, and will continue in effect until otherwise terminated in accordance with this Agreement.

  2. Termination by You. You may terminate your Account at any time. You may cease use of the Platform at any time. Your cancellation of an Account, or your cessation of use of any service or request that access to the Platform be terminated, will not entitle you to any refund, including of any fees. In addition, you are responsible for any charges incurred to third-party vendors or content providers before your cancellation.

  3. Termination by Kongregate. Kongregate may terminate your Account or suspend, withdraw, restrict or remove all or any part of our Services at any time in the event that (i) Kongregate ceases providing such services to similarly situated Users generally for business or operational reasons, or (ii) you breach any terms of this Agreement (including the Privacy Policy or Posting Rules). In the event that your Account is terminated or cancelled by Kongregate for a violation of this Agreement or improper or illegal activity, no refund, including of any fees or of any unused funds in your Kreds, will be granted.

  4. Survival of Terms. Sections 11–14, 16 and 18 will survive any expiration or termination of this Agreement.

15. Copyright Notices/Complaints

We respect the intellectual property of others and ask that you do the same. If you are a copyright owner or an agent thereof and believe that any content in our Services infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”), the E-Commerce Directive and associated legislation in the EU, and similar or equivalent other local laws that may apply. Please provide the necessary information on our Proprietary Rights Complaint Process doc and send it to support@kongregate.com.

16. Governing Law, Dispute Resolution and Class Action Waiver

  1. Attempt at Informal Resolution. In the event of a dispute relating to the interpretation, the performance or the validity of the Agreement, we hope to resolve quickly and reach an amicable solution with you before any legal action. You can file your complaint at support@kongregate.com, and we will make reasonable and good faith efforts to respond to such claims within 14 days. If, however, the matter is not resolved in a timely manner and you live in the EU, you may submit your legal claims to the online dispute resolution platform operated and provide by the European Commission which can be accessed at https://ec.europa.eu/consumers/odr/main/index.cfm?event=main.home2.show&lng=EN to reach an out of court settlement or initiate a lawsuit. For non-EU residents, the following provisions shall apply.

  2. Arbitration for Less than $10,000. For any claim (excluding claims for injunctive or other equitable relief) under this Agreement where the total amount of the award sought is less than $10,000 USD, the party requesting relief may elect to resolve the dispute through binding non-appearance-based arbitration. The party electing such arbitration will initiate the arbitration through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, as selected by the party initiating the arbitration; (ii) the arbitration will not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

  3. For Users within the United States; Waiver of Jury Trial. You agree that this Agreement shall be deemed to have been made and executed in the State of California, U.S.A., and any dispute arising hereunder shall be resolved in accordance with the law of California excluding the law of conflicts and the Convention on Contracts for the International Sale of Goods. You agree that any claim asserted in any legal proceeding by you against Kongregate shall be commenced and maintained exclusively in any state or federal court located in San Francisco County, California, having subject matter jurisdiction with respect to the dispute between the parties and you hereby consent to the exclusive jurisdiction of such courts. In any dispute arising under this Agreement, the prevailing party will be entitled to attorneys’ fees and expenses. YOU HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

  4. For Users Outside of the United States. You agree that this Agreement and any dispute or claim in connection with this Agreement will be governed by the laws of Sweden and shall be irrevocably settled by arbitration in accordance with the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce (the “Rules”) in force on the date when the notice of arbitration is submitted in accordance with these Rules. Each party waives, to the fullest extent permitted by applicable law, any objection to such choice of exclusive governing law and jurisdiction and any claim that any such action or proceedings brought in such court has been brought in an inconvenient forum. Unless otherwise mutually agreed between the parties in writing, the arbitration shall be conducted with a panel of three arbitrators, selected in accordance with the Rules. The seat of arbitration shall be in Stockholm, Sweden. Each party shall bear its own costs of arbitration. The language to be used in the arbitral proceedings shall be English. The arbitrators shall be fluent in the English language and have experience in commercial contract and intellectual property laws. Nothing contained herein shall be deemed to give the arbitrator any authority, power, or right to alter, change, amend, modify, add to, or subtract from any of the provisions of this Agreement. Arbitral award is final and will be binding on both parties. This choice of governing law, jurisdiction and venue is subject to any mandatorily applicable principles of consumer protection or other law in your jurisdiction of residence which would not otherwise be available.

  5. CLASS ACTION WAIVER. This provision only applies to Users in the U.S. and Canada. YOU AGREE THAT WE CAN ONLY BRING A CLAIM AGAINST EACH OTHER ON AN INDIVIDUAL BASIS AND YOU AGREE NOT TO BRING OR PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR COLLECTIVE ARBITRATION. YOU AGREE THAT THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT OF THAT PARTY’S INDIVIDUAL CLAIM AND NOT OTHER KONGREGATE USERS AND CANNOT BE USED TO DECIDE OTHER DISPUTES WITH OTHER USERS. If a court decides that this provision on “CLASS ACTION WAIVER” is illegal or unenforceable, you agree that it shall be severable from the Agreement and any claim or dispute would be resolved in court. You have the right to opt out ad not be bound by the class action waiver by sending us written notice of your decision to opt out through support@kongregate.com or by physical mail as stated in “Our Contact Information.” The notice must be sent within thirty (30) days of your first use of the Services or availability of this opt-out, whichever is later; otherwise, you shall be bound by this class action waiver.

17. Force Majeure

Neither you nor we will be liable for any failure to perform any obligation under this Agreement or to provide access to Services of that failure is caused by the happening of any unforeseen event beyond your or our reasonable control, including without limitation, war, terrorism, riots, embargoes, Internet outages, network infrastructure failures, natural disasters, fire, flood or act of God.

18. Miscellaneous Terms

  1. Entire Agreement. This Agreement (including the Privacy Policy and Cookie Policy) constitutes the entire agreement between you and Kongregate regarding the use of our Services and your Account and supersedes all prior understandings.

  2. Assignment. We can assign, subcontract or transfer this Agreement to a third party or an affiliate of Kongregate if necessary for the support of our Services, as part of any reorganization, change of control, or for any other business reasons. If this happens, we will notify you. You may not assign or transfer your rights or obligations under this Agreement to anyone without first obtaining our written consent. Any attempt to assign without our consent is void.

  3. No Beneficiaries. This Agreement governs the relationship between you and us and does not create any rights for anyone else. Notwithstanding the foregoing, in the event of a valid assignment or transfer, this Agreement shall be binding on and inure to the benefit of the relevant party’s representatives, successors, and permitted assigns.

  4. No Right to Obligate the Other. This Agreement does not create a partnership, joint venture or similar relationship between the parties, and neither party will have the power to obligate the other party in any manner whatsoever.

  5. English Applies. If we provide a translated version of the Agreement, Privacy Policy, Cookie Policy or any other terms of rules, it is for informational purposes only. If the translated version means something different from the English version, then the English meaning applies.

  6. Contact Information. You can contact us and provide written notices to us at support@kongregate.com or at:

    ATTENTION: LEGAL
    Kongregate Inc.
    450 Sansome Street
    12th Floor
    San Francisco, CA 94111

Last updated: October 31, 2018