SEGA MOBILE APPLICATION END USER LICENSE AGREEMENT (draft)
Last Updated Date: December 7, 2021
IMPORTANT NOTICE FOR RESIDENTS IN THE UNITED STATES AND CANADA ONLY: THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN SECTION 24 BELOW.
KEY CONTENT-RELATED TERMS
“Collective Content” means, collectively, SEGA Content and User Content.
“Content” means text, graphics, images, music, software (excluding the Applications), audio, video, information or other materials.
“SEGA Content” means Content that SEGA makes available through the Services, including any Content licensed from a third party and Virtual Goods and Virtual Currency (defined below), but excluding User Content.
“User” means a person who uses, downloads and/or installs any Services.
“User Content” means Content that a User posts, uploads, publishes, submits or transmits to be made available through the Services.
Certain areas of the Services (and your access to or use of certain areas of the Applications or Collective Content) may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms and terms and conditions posted for a specific area of the Services or Collective Content, the latter terms and conditions will take precedence with respect to your use of or access to that area of the Services or Collective Content, as applicable.
YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SERVICES, OR BY DOWNLOADING OR POSTING ANY CONTENT THROUGH THE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY, THESE TERMS, WHETHER OR NOT YOU HAVE REGISTERED THROUGH THE SERVICES. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SERVICES OR COLLECTIVE CONTENT. If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
SEGA reserves the right, at its sole discretion, to modify, discontinue or terminate the Services or to modify these Terms, at any time and without prior notice. If we modify these Terms, we will post the modification via the Services or provide you with notice of the modification. We will also update the “Last Updated Date” at the top of these Terms. By continuing to access or use Services after we have posted a modification via the Services or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to stop using the Services.
The Services are intended solely for persons who are 13 or older. Any access to or use of the Services by anyone under 13 is expressly prohibited. By accessing or using the Services you represent and warrant that you are 13 or older.
- ACCOUNT REGISTRATION
In order to access certain features of the Services and to post any User Content on or through the Services, you may be required to register to create an account (“Account”). For certain Services, you may register by logging into your account with certain third party social media or social networking services (“SNS”) (including, but not limited to, Facebook) via the Services, as described herein. If you decide to register through an SNS, we will extract the personal information you have provided to the SNS (such as your “real” name, email address and other information you make publicly available via the SNS) from the account you have with the applicable SNS and use that information to create your Account. The specific information that we extract may depend on the privacy settings you have with the SNS. You hereby consent to our access to and collection of such personal information about you.
You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. SEGA reserves the right to suspend or terminate your Account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password. You agree that you will not disclose your password to any third party and that you will take sole responsibility for any activities or actions under your Account, whether or not you have authorized such activities or actions. You will immediately notify SEGA of any unauthorized use of your Account.
You may not purchase, sell, gift or trade any Account, or offer to do same and any such attempt will be null and void. You agree that you have no right to or title in or to any Collective Content (excluding your User Content provided by you), including without limitation, any Virtual Currency or Virtual Goods (defined below) originating in the Services, or any other attributes associated with your Account, except as expressly provided in these Terms.
- IN-SERVICES CURRENCIES AND GOODS
The Services may include a virtual, in-Services currency (“Virtual Currency”). Virtual Currency may be (i) obtained through gameplay within the Services, (ii) purchased from SEGA for “real world” money if you are a legal adult in your country of residence, (iii) obtained by exchanging credits or other virtual items from third-party websites through which the Services are available for Virtual Currency, so long as such an exchange is permitted by the applicable third-party website, or (iv) obtained through interaction or participation with certain third-party advertisements and services. SEGA has no control over how such third-party websites operate a system of credits or virtual items and whether such credits or virtual items can be exchanged with the Virtual Currency or not, so this method of obtaining Virtual Currency may not always be available to you. In addition, SEGA’s Virtual Currency is made available to you at the sole discretion of SEGA and may be discontinued at any time. The Services may also include virtual, in-Services digital items and/or other virtual, in-Services goods and services (collectively, “Virtual Goods”) that may be purchased from SEGA within the Services with Virtual Currency. Regardless of the terminology used, Virtual Currency and Virtual Goods may never be redeemed with “real world” money, goods or other items of monetary value from SEGA or any other party.
Virtual Goods and Virtual Currency are digital items only. Your right to use any Virtual Goods and Virtual Currency that you obtain are limited to a non-exclusive, non-transferable, non-sublicensable, revocable right to use such Virtual Goods and Virtual Currency solely for your personal entertainment and non-commercial use and for no other purpose. Except for the limited rights described herein, you have no property interest or right or title in or to any such Virtual Goods or Virtual Currency, which remain the exclusive property of SEGA. As stated above, the existence of a particular offer of Virtual Goods or Virtual Currency is not a commitment by SEGA to maintain or continue to make the Virtual Goods or Virtual Currency available in the future. The scope, variety and type of Virtual Goods and Virtual Currency that you may obtain can change at any time. SEGA has the absolute right to manage, regulate, control, modify or eliminate such Virtual Currency or Virtual Goods as it sees fit in its sole discretion, and SEGA will have no liability to you or anyone for the exercise of such rights.
Except where explicitly authorized by SEGA, (i) transfers of Virtual Currency or Virtual Goods are strictly prohibited; (ii) outside of the Services, you may not buy or sell any Virtual Currency or Virtual Goods for “real world” money or otherwise exchange items for value; and (iii) SEGA does not recognize any such purported transfers of Virtual Currency or Virtual Goods, nor the purported sale, gift or trade in the “real world” of anything that appears in the Services. Any attempt to do any of the foregoing is in violation of these Terms and will result in an automatic termination of your rights to use the Virtual Currency or Virtual Goods and may result in termination of your Account, a lifetime ban from the Services and/or possible legal action. You agree that all sales of Virtual Goods and Virtual Currency are final. No refunds will be given, except in SEGA’s sole and absolute discretion. All Virtual Goods and Virtual Currency are forfeited if your Account is terminated or suspended for any reason, in SEGA’s sole and absolute discretion, or if SEGA discontinues providing the Services.
- PAYMENT TERMS
Certain aspects of the Services are, or may in the future be, provided for a fee or other charge. In the event you choose to use paid aspects of the Services, (e.g., if you decide to purchase Virtual Currency or Virtual Goods), you agree to the pricing, payment and billing policies applicable to such fees and charges, as posted in the Services. All fees are non-refundable and non-transferable except as expressly provided in these Terms. All fees and applicable taxes, if any, are payable in the currency associated with the account you use to purchase paid Services.
The Services (including, but not limited to, any games, titles, computer code, themes, objects, characters, character names, stories, dialogue, catch phrases, concepts, artwork, animations, sounds, musical compositions, audio-visual effects, methods of operation, moral rights, documentation, in-Services chat transcripts, character profile information, recordings of games played using the Services and server software) and Collective Content are protected by copyright, trademark, and other laws of Japan and foreign countries. You acknowledge and agree that you shall have no ownership or other property interest in the Services and SEGA Content, including all associated intellectual property rights, and that the aforementioned are the exclusive property, shall forever be owned by and inure to the benefit of SEGA and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Collective Content.
- LICENSES GRANTED BY SEGA TO SEGA CONTENT AND USER CONTENT
Subject to your compliance with these Terms, SEGA grants you a limited, non-exclusive, non-transferable license: (i) to access and use any SEGA Content solely for your personal entertainment and non-commercial purposes; and (ii) to view any User Content to which you are permitted access solely for your personal and non-commercial purposes. You have no right to sublicense the license rights granted in this section.
You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services or Collective Content, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by SEGA or its licensors, except for the licenses and rights expressly granted in these Terms.
- LICENSE GRANTED BY USER
We may, in our sole discretion, permit Users to post, upload, publish, submit or transmit User Content. By making available any User Content on or through the Services, you hereby grant to SEGA a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, modify, distribute, license, transfer, publicly display, publicly perform, transmit, stream, broadcast and otherwise exploit such User Content only on, through or by means of the Services. SEGA does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any User Content.
You acknowledge and agree that you are solely responsible for all User Content that you make available through the Services. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all User Content that you make available through the Services or you have all rights, licenses, consents and releases that are necessary to grant to SEGA the rights in such User Content, as contemplated under these Terms; and (ii) neither the User Content nor your posting, uploading, publication, submission or transmittal of the User Content or SEGA’s use of the User Content (or any portion thereof) on, through or by means of the Services will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
- APPLICATIONS LICENSE
Subject to your compliance with these Terms, SEGA grants you a limited non-exclusive, non-transferable license to download and install a copy of each Application on a single mobile device or computer that you own or control and to run such copy of each Application solely for your own personal use. Furthermore, with respect to any Applications accessed through or downloaded from the Apple App Store (“App Store Sourced Applications”), you will use the App Store Sourced Applications only: (i) on an Apple-branded product that runs iOS (Apple’s proprietary operating system software); and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. SEGA reserves all rights in and to the Applications not expressly granted to you under these Terms.
- ACCESSING AND DOWNLOADING THE APPLICATIONS FROM ITUNES
The following applies to any App Store Sourced Applications:
- You acknowledge and agree that (i) these Terms are concluded between you and SEGA only, and not Apple, and (ii) SEGA, not Apple, is solely responsible for the App Store Sourced Applications and content thereof. Your use of the App Store Sourced Applications must comply with the App Store Terms of Service.
- You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Applications.
- In the event of any failure of any App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between SEGA and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of SEGA.
- You and SEGA acknowledge that, as between SEGA and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Applications or your possession and use of the App Store Sourced Applications, including, but not limited to: (i) product liability claims; (ii) any claim that an App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- You and SEGA acknowledge that, in the event of any third party claim that an App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between SEGA and Apple, SEGA, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
- You and SEGA acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms as related to your license of the App Store Sourced Applications, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App Store Sourced Applications against you as a third party beneficiary thereof.
- Without limiting any other terms of these Terms, you must comply with all applicable third party terms of agreement when using the App Store Sourced Applications.
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Services (“Feedback”). You may submit Feedback by emailing us at firstname.lastname@example.org. You acknowledge and agree that if you submit any Feedback to us, you hereby grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sub-licensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
- GENERAL PROHIBITIONS
You agree not to do any of the following:
- Post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances.
- Use, display, mirror or frame the Services, or any individual element within the Services, SEGA’s name, any SEGA trademark, logo or other proprietary information, or the layout and design of the Services, without SEGA’s express written consent;
- Access, tamper with, or use non-public areas of the Services, SEGA’s computer systems, or the technical delivery systems of SEGA’s providers;
- Attempt to probe, scan, or test the vulnerability of any SEGA system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by SEGA or any of SEGA’s providers or any other third party (including another user) to protect the Services or Collective Content;
- Attempt to access or search the Services or Collective Content or download Collective Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by SEGA or other generally available third party web browsers;
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
- Use any meta tags or other hidden text or metadata utilizing a SEGA trademark, logo URL or product name without SEGA’s express written consent;
- Use the Services or Collective Content for any commercial purpose or the benefit of any third party or in any manner not permitted by these Terms;
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services or Collective Content to send altered, deceptive or false source-identifying information;
- Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services or Collective Content;
- Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
- Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
- Impersonate or misrepresent your affiliation with any person or entity;
- Create an Account if you are a registered sex offender;
- Violate any applicable law or regulation; or
- Encourage or enable any other individual to do any of the foregoing.
- RULES FOR USE OF THE SERVICES
In addition to the General Prohibitions listed above, your playing of, and participation in, the Services is governed by specific rules (“Rules”) maintained and enforced exclusively by SEGA. Your cooperation in understanding and complying with the Rules is essential to ensure that all Users can enjoy their experience with the Services. According to the Rules, you must:
- respect the rights of other Users to enjoy and play the Services. To this end, you may not defraud, harass, threaten, or cause distress and/or unwanted attention to other Users.
- not spam, flood, or make duplicate posts, post commercial solicitations or ads when engaging in any interaction with other Users or any SEGA employees or agents, including customer service representatives, or otherwise disrupt the normal flow of dialogue, or use sexually explicit, harmful, threatening, abusive, defamatory, obscene, hateful, or racially or ethnically offensive language or link to any such language or content;
- not impersonate any employee or agent including customer service representatives, of SEGA or its affiliates;
- not post or communicate any User’s “real world” information (name, address, account name, etc.) through the Services;
- not offer or perform in-Services services for “real world” cash;
- not exchange or transfer – whether in or outside of the Services- any Virtual Currency or Virtual Goods available in the Services, except as permitted by the in-Services play;
- not organize or be a member of any groups within the Services that are based on or espouse any racist, sexist, anti-religious, anti-ethnic, anti-gay or other discriminatory values;
- not exploit any errors in design features which have not been documented, and/or “bugs” to gain access to content that is otherwise not available to Users, or to obtain a competitive advantage over other Users or any other unintended benefit; or communicate the existence of any such errors or “bugs”, either directly or through public posting, to other Users. Errors and bugs should be promptly reported to us at email@example.com;
- not use any third-party program (such as a “bot”) in order to automate gameplay functions, including playing, interacting, or gathering Virtual Currency or Virtual Goods within the Services; or
- not cheat as part of in-Services play or engage in any other conduct that is disrespectful to other Users or contrary to the “spirit” of the Services.
SEGA will have the right to investigate and prosecute violations of any of these Terms to the fullest extent of the law, including, without limitation, the General Prohibitions and Rules. SEGA may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that SEGA has no obligation to monitor your access to or use of the Services or Collective Content or to review or edit any Collective Content, but has the right to do so for the purpose of operating the Services, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. SEGA reserves the right, at any time and without prior notice, to remove or disable access to any Collective Content that SEGA, at its sole discretion, considers to be in violation of these Terms or otherwise harmful to the Services.
- COPYRIGHT POLICY
SEGA respects copyright law and expects its users to do the same. It is SEGA’s policy to terminate in appropriate circumstances Users or other account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders.
The Services may contain links to third-party websites or resources. You acknowledge and agree that SEGA is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by SEGA of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the content, products, or services on or available from such websites or resources.
- TERMINATION AND ACCOUNT CANCELLATION
If you breach any of these Terms, SEGA will have the right to suspend or disable your Account or terminate these Terms, at its sole discretion and without prior notice to you. SEGA reserves the right to revoke your access to and use of the Services and Collective Content at any time, with or without cause. In the event SEGA terminates these Terms for your breach, you will remain liable for all amounts due hereunder. You may cancel your Account with SEGA at any time by sending an email to firstname.lastname@example.org.
THE SERVICES AND COLLECTIVE CONTENT ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, SEGA EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. SEGA MAKES NO WARRANTY THAT THE SERVICES OR COLLECTIVE CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. SEGA MAKES NO WARRANTY REGARDING THE QUALITY OF ANY PRODUCTS, SERVICES OR COLLECTIVE CONTENT PURCHASED OR OBTAINED THROUGH THE SERVICES OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM SEGA OR THROUGH THE SERVICES OR COLLECTIVE CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
THE SERVICES MAY ONLY BE PLAYED ONLINE, OR VIA MOBILE DEVICE. YOU ARE SOLELY RESPONSIBLE FOR OBTAINING AND MAINTAINING ADEQUATE INTERNET CONNECTIONS AND MOBILE DEVICE PLANS AND PAYING FOR ANY RELATED CHARGES FOR USE OF THE SERVICES.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES. YOU UNDERSTAND THAT SEGA DOES NOT SCREEN OR INQUIRE INTO THE BACKGROUND OF ANY USERS OF THE SERVICES, NOR DOES SEGA MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SERVICES. SEGA MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SERVICES OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON.
You agree to defend, indemnify, and hold SEGA, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your access to or use of the Services or Collective Content, or your violation of these Terms.
- LIMITATION OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SERVICES AND COLLECTIVE CONTENT REMAINS WITH YOU. NEITHER SEGA NOR ANY OTHER PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES OR COLLECTIVE CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR COLLECTIVE CONTENT, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICES OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SEGA HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL SEGA’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR COLLECTIVE CONTENT EXCEED THE AMOUNTS YOU HAVE PAID TO SEGA FOR USE OF THE SERVICES OR COLLECTIVE CONTENT IN THE THREE (3) MONTH PERIOD PRIOR TO THE CLAIM GIVING RISE TO LIABILITY, IF YOU HAVE MADE ANY PAYMENTS TO SEGA. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SEGA AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
- PROPRIETARY RIGHTS NOTICES
All trademarks, service marks, logos, trade names and any other proprietary designations of SEGA used herein are trademarks or registered trademarks of SEGA. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
- CONTROLLING LAW AND JURISDICTION
These Terms and any action related thereto will be governed by the laws of Japan without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights will be the Tokyo district courts and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
For any disputes with a different subject matter as those set forth above, you and SEGA agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a 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 acknowledge and agree that you and SEGA are each waiving the right to a trial by jury or to participate as a plaintiff or class User in any purported class action or representative proceeding. Further, unless both you and SEGA otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
Arbitration Rules and Governing Law. The arbitration will be administered by the Japan Commercial Arbitration Association (“JCAA”) in accordance with the Commercial Arbitration Rules Disputes (the “JCAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The JCAA Rules are available at http://www.jcaa.or.jp/e/ or by contacting the JCAA via telephone at 03 (5280) 5200 or via fax at 03 (5280) 5170). The Arbitration Act of Japan (Act No. 138 of 2003) will govern the interpretation and enforcement of this Section.
Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written “Request for Arbitration” as specified in the JCAA Rules.The arbitration proceedings shall be conducted in Tokyo, Japan. The arbitral tribunal, composed of one or more arbitrators in accordance with the JCAA Rules, shall have the sole discretion to determine the extent and scheduling of any and all discovery to be promulgated in resolving any dispute between the parties hereunder. If a party’s claim does not exceed JPY 20,000,000, the arbitration proceedings shall be conducted in accordance with Chapter VI “Expedited Procedures” of the JCAA Rules. Costs and attorney fees incurred by each party in the arbitration shall not be reimbursed by the other party. Rule 83.2 of the JCAA Rules shall not apply
If you reside in or purchased and use the Product in the United States or Canada any dispute arising out of or related to this Agreement shall be governed in all respects by the laws of the State of California of the United States of America without regard to conflict of law provisions. If you are a resident of the United States or Canada, the United States Federal Arbitration Act governs the interpretation and enforcement of the agreement to arbitrate and class action waiver provisions of Section 24.
- FOR RESIDENTS IN THE UNITED STATES AND CANADA –
BINDING ARBITRATION AND CLASS ACTION WAIVER
This Section 24 applies to you if reside in or acquired and use the Product in the United States or Canada.
Binding Arbitration: You and SEGA (each a “party” for purposes of this Section, and collectively “the parties”) agree that all claims arising out of or relating to this Agreement (including its interpretation, formation, performance and breach), our relationship with each other, or your use of the Product shall be finally settled solely by binding arbitration unless the claim is within the exceptions described below. THIS AGREEMENT MEANS THAT YOU AND SEGA AGREE TO NOT HAVE SUCH CLAIMS RESOLVED IN A TRIAL BY A JUDGE OR JURY. This agreement applies to all kinds of claims, including legal, equitable, or statutory claims, under any legal theory. It also applies even after you stop using or delete, destroy, or otherwise no longer possess the Product. If you or SEGA brings a claim in court that is subject to arbitration under this section, either party can ask the court to order the parties to resolve the claim by arbitration. The arbitrator, and not a court, shall have the exclusive authority to decide whether any portion of this section is valid or enforcement, or whether it applies to a claim.
An arbitration proceeding shall be held before a neutral arbitrator and not a judge or a jury, so you and SEGA agree to give up the right to a trial before a judge or jury. An arbitration proceeding has different rules than a lawsuit in a court. For example, arbitration is less formal and usually provides for more limited information sharing between the parties in the process called discovery. After the arbitrator decides the outcome, that decision will be final and you or SEGA will generally not be able to change the outcome in a court.
This arbitration provision is made pursuant to a transaction involving interstate commerce, and the Federal Arbitration Act (the “FAA”) shall apply to the interpretation, applicability, enforceability, and formation of this Agreement notwithstanding any other choice of law provision contained in this Agreement.
You and SEGA agree that the arbitration will be administered by JAMS in accordance with the provisions of its Comprehensive Arbitration Rules or Streamlined Arbitrations Rules, as appropriate, excluding any rules or procedures governing or permitting class actions. But if there is a conflict between this Agreement and the JAMS rules, then we will follow this Agreement. The JAMS Rules governing the arbitration may be accessed at http://www.jamsadr.com/ or by calling JAMS at (800) 352-5267. Your arbitration fees and your share of arbitrator compensation shall be governed by the JAMS Comprehensive Arbitration Rules, but shall not incorporate the JAMS Class Action Procedures, and to the extent applicable, the Consumer Minimum Standards, including the then-current limit on arbitration filing fees. If the filing fee for the arbitration exceeds the cost of filing a lawsuit, SEGA will pay the additional cost. The parties understand that, in some instances, the costs of arbitration could exceed the costs of litigation. Each party will pay its own attorneys’ fees and costs unless the claims allow for to the prevailing party to recover attorneys’ fees and costs, in which case the arbitrator may award them under the applicable law. If either party unsuccessfully challenges the validity of the arbitrator’s decision or award through a subsequent court case, the unsuccessful party shall pay the opposing party’s costs and attorneys’ fees associated with the challenge.
Location: The arbitration will take place in Los Angeles County, California or in the county or province where you reside. You and SEGA agree to submit to the personal jurisdiction of any federal or state court in Los Angeles County, California, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
Class Action Waiver: The parties further agree that any arbitration or court proceeding shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. As a result:
YOU CANNOT BRING A CLAIM AGAINST SEGA AS A PLAINTIFF OR CLASS MEMBER IN A CLASS ACTION OR ANY OTHER COLLECTIVE, CONSOLIDATED, OR REPRESENTATIVE ACTION.
AN ARBITRATOR CANNOT COMBINE YOUR CLAIMS AGAINST SEGA WITH ANY OTHER PERSON’S CLAIMS AGAINST SEGA INTO A SINGLE CASE.
If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then Section 19 shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
Exceptions to Agreement to Arbitrate: We agree that we each will still have the right to go to court to resolve the following claims:
Claims about SEGA’s intellectual property (for example, trademarks, trade dress, domain names, trade secrets, copyrights or patents).
Claims related to piracy or tortious interference.
Claims that are not subject to an arbitration agreement as a matter of law and are not preempted by federal law that would allow for an agreement to arbitrate.
Claims in small claims court.
Any dispute not subject to arbitration under these exceptions shall be resolved by a court of competent jurisdiction subject to the venue requirements described in Section 20.
30 Day Right to Opt Out: You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in Section 19 by sending written notice of your decision to opt-out to the following address: SEGA, 6400 Oak Canyon, Suite 100; Irvine, CA 92618; Attn. Legal & Business Affairs Department. The notice must include the following information:
Your full name.
The name of Product you purchased and the date you purchased it or, if no purchase was made, the date that you first accessed or used the Product.
All usernames or identifiers you use to access or use the Product, if any.
The notice must be sent within 30 days of purchasing the Product (or if no purchase was made, then within 30 days of the date on which you first access or use the Product and agree to these terms); otherwise, you shall be bound to arbitrate disputes in accordance with this section. If you opt-out of these arbitration provisions, SEGA also will not be bound by them
- EXPORT CONTROL
You agree to comply fully with all Japanese and foreign export laws and regulations to ensure that neither the Applications nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. By using the App Store Sourced Applications, you represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
- ENTIRE AGREEMENT
These Terms constitute the entire and exclusive understanding and agreement between SEGA and you regarding the Services and Collective Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between SEGA and you regarding the Services and Collective Content.
You may not assign or transfer these Terms, by operation of law or otherwise, without SEGA’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. SEGA may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by SEGA: (i) via email (in each case to the address that you provide, as applicable); or (ii) by posting via the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
The failure of SEGA to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of SEGA. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
- CONTACTING SEGA
If you have any questions about these Terms or any App Store Sourced Applications, please contact SEGA at
Osaki Garden Tower
Shinagawa-ku, Tokyo 141-0033