Terms of Service
Last Updated: October 28, 2022
Please
read these Terms of Service (the “Terms”) and our Privacy
Policy carefully
before using our Services (as defined below).
These Terms and our Privacy Policy govern the relationship
between you and Flare Star LLC (“Studio”, “our”, “we” or “us”) and apply to
your use of our Services. The term “Services”
includes, without limitation, our website https://www.flarestar.fun (the “Site”), mobile applications (each a “Game” and collectively
“Games”), and any related services and content.
Our
Privacy Policy describes how we collect, store, use, share, and otherwise process
your personal information when providing our Services to you, as well as your
rights and choices concerning your information.
Please read our Privacy Policy carefully.
If
you do not agree to the Terms set forth below, or if you do not want us to
collect, store, use, or share your information in the ways described in our Privacy Policy, you must not use our Services.
Please
note that, to use our Services, you need compatible hardware, software (latest
version recommended and sometimes required), and internet access (fees may
apply), among other technological features. Our Services’ performance may be affected by
these or related factors, each of which we do not control.
1. Agreement to Terms
By using our Services, you agree to be bound by these Terms. As
set forth above, if you don’t agree to these Terms or our Privacy Policy, you
must not use the Services.
SECTION 18 OF THESE TERMS OF SERVICE CONTAINS AN INFORMAL DISPUTE
RESOLUTION PROCESS, A BINDING AGREEMENT TO ARBITRATE, AND A CONSOLIDATED, CLASS
ACTION, AND REPRESENTATIVE ACTION WAIVER, WHICH WAIVE YOUR RIGHT TO A COURT
HEARING OR A TRIAL BEFORE A JUDGE OR JURY.
2. Changes to Terms or
Services
We may modify the Terms at any time, in our sole discretion. If we do so, we’ll let you know either by
posting the modified Terms on the Site or through other communications via the
Services. It’s important that you review the Terms carefully whenever we modify
them, because if you continue to use the Services after we have posted modified
Terms on the Site or via the Services, you are indicating to us that you agree
to be bound by the modified Terms. If
you don’t agree to be bound by the modified Terms, then you must not continue
to use the Site or the Services.
Because our Services are evolving over time we may update, change,
or discontinue all or any part of the Services, at any time and without notice,
at our sole discretion. From time to
time, we may make you update your software or hardware to continue to use our
Services. We may also perform these
updates remotely without notifying you.
We reserve the right to stop offering
and/or supporting the Services or a particular Game or part of the Services at
any time either permanently or temporarily, at which point your right to use
the Services or any part of them will be automatically terminated or suspended.
If that happens, unless applicable law
requires otherwise, we are not required to provide refunds, benefits, or other
compensation to you in connection with discontinued elements of the Services or
for Virtual Items (as defined below) previously earned or purchased.
WE MAY, IN OUR SOLE DISCRETION, LIMIT,
SUSPEND, TERMINATE, MODIFY, OR DELETE ACCOUNTS OR ACCESS TO THE SERVICES OR ANY
PORTION OF THEM; PROHIBIT ACCESS TO OUR GAMES AND SITES, AND THEIR CONTENT,
SERVICES, AND TOOLS; OR DELAY OR REMOVE HOSTED CONTENT, AND WE ARE UNDER NO
OBLIGATION TO COMPENSATE YOU FOR ANY LOSSES OR RESULTS.
3. Limited License; Who May
Use the Services
3.1
Limited License Grant. Subject to your agreement and continuing
compliance with these Terms, we grant you a non-exclusive,
non-transferable, non-sublicensable, revocable limited license to access and
use the Services for your own personal, non-commercial, and entertainment
purposes. You agree not to use the
Services for any other purpose and further agree that we will have no
liability to you for any damage or loss arising from unauthorized uses.
3.2 Eligibility – You may use the Services only if you are 16
years or older and are not barred from using the Services under applicable law.
If you are under the age of 18, or under the age of majority where
you live, you represent that your legal guardian has reviewed and agreed to
these Terms.
You may not use our Services if you are
not allowed to receive products, including services or software, from the
United States, for example if you are in a country embargoed by the United
States or if you are on the U.S. Treasury Department’s list of Specially Designated
Nationals.
3.3 Registration and Your Information – It’s important that you
provide us with accurate, complete, and up-to-date information for your account
and you agree to update such information, as needed, to keep it accurate,
complete, and up to date. If you don’t,
we might have to suspend or terminate your account at your sole discretion, and
without notice to you. You agree that
you won’t disclose your account password to anyone, and you’ll notify us
immediately of any unauthorized use of your account. You’re responsible for all activities that
occur under your account, whether you know about them or not.
4. Intellectual Property
Rights
Except for the
limited license granted above, we and our licensors retain all right, title,
and interest in and to the Services, including the technology and software used
to provide the Services. The Services
are protected by copyright, trademark, trade dress, other worldwide
intellectual property rights, and other applicable laws, rules, and regulations. These Terms do not grant you or any other
party any right, title, or interest in the Services or any content in the
Services.
In addition, you agree not to modify, create derivative
works of, decompile, or otherwise attempt to extract source code from the
Services.
If you violate these Terms, or any of our other terms that
apply to you, we may take action against you, including, among other things,
terminating your account at our sole discretion, and without notice to you. In addition, you may be breaking the law,
including by violating our intellectual property rights. We and our licensors
may also affirmatively protect our intellectual property rights in the event
you violate these Terms, including by seeking injunctive relief against you. ANY ATTEMPT BY YOU TO DISRUPT OR INTERFERE
WITH THE SERVICES, INCLUDING, WITHOUT LIMITATION, UNDERMINING OR MANIPULATING
THE LEGITIMATE OPERATION OF ANY GAME, VIOLATES THIS AGREEMENT AND MAY BE A
BREACH OF CRIMINAL OR CIVIL LAWS.
If you provide us with any suggestions for enhancement or
feedback regarding the Services, or if you choose to participate in any Studio
surveys, user research projects, or related activities, you agree that we will
have a perpetual, transferable, sublicensable, royalty-free, irrevocable,
worldwide license to use your suggestions and feedback or the results of any
Studio surveys, user research projects, or related activities, including by
incorporating your suggestions, feedback, or any results into the Services,
without any obligation to compensate you. To the extent permitted by applicable law, you
waive any moral rights you may have in connection with your suggestions and
feedback and/or the results of any Studio surveys, user research projects, or
related activities.
5. Privacy Policy
Please
refer to our Privacy Policy available at https://www.flarestar.fun/privacy.html
for information on how we collect, store, use, share, and otherwise process
information from you, your computer, and/or your mobile device. When you use our Services, you acknowledge
that the Privacy Policy applies. If you
do not want us to collect, store, use, or share your information in the ways
described in our Privacy Policy, you must not use our Services.
6. User Content and
Monitoring Use of Services
We may permit
you or other users to submit, upload, publish, transmit, or otherwise make
available to us materials, data, information, communications, pictures, and
sounds using the Services (“User Content”). Any User Content that you post, publish, or
transmit will be considered non-proprietary and non-confidential. You retain all of your ownership rights in
your User Content, but you give us a perpetual, irrevocable, transferable,
sublicensable, fully paid-up, royalty-free, non-exclusive, worldwide right and
license to use, copy, reproduce, fix, adapt, modify, create derivative works
from, manufacture, commercialize, publish, distribute, sell, license,
sublicense, transfer, lease, transmit, publicly display, publicly perform,
provide access to electronically, broadcast, communicate to the public by telecommunication,
display, perform, enter into computer memory, and use and practice, in any way,
your User Content, as well as any modified and derivative works thereof, in
connection with the Services, including marketing and promotion of the
Services, without notice to or consent from you, and without compensation to
you or any other person or entity. You
further grant to Studio the unconditional, irrevocable right to use and exploit
your name, likeness, and any other information or material submitted or
transmitted to Studio in connection with any User Content, without any
obligation by us or compensation to you. Except as prohibited by law, you waive any
rights of attribution and/or any moral rights you may have in your User
Content.
If you post, publish,
transmit, or upload User Content to our Services, you represent, warrant, and
affirm that it will be:
·
Accurate;
·
Not confidential or proprietary;
·
Not in violation of law;
·
Not in violation of contractual restrictions or other
parties’ rights, and that you have permission to use the User Content from any
other party whose personal or other information or intellectual property may be
contained within the User Content;
·
Not tortious, defamatory, libelous, obscene, threatening,
harassing, abusive, violent, hateful, racist, or otherwise objectionable or
inappropriate; and
·
Free of viruses, adware, spyware, worms, or other
malicious code.
As a user, you
are personally and solely responsible for all information posted and/or sent,
transmitted, or provided to others by you in connection with our Services,
including, but not limited to, User Content posted in forums, blogs, and player
chat features.
We have no
obligation to monitor the Services for inappropriate or illegal user Content or
the conduct of other players, and we take no responsibility for such
conduct. We also are not responsible for
information or materials provided by other players, and we do not approve User
Content. By using our Services, you
understand that you may be exposed to conduct that you might find offensive or
otherwise objectionable. We do not
endorse any User Content posted on the Services, nor do we guarantee its
truthfulness or accuracy. However, if someone
is violating these Terms (including the Code of Conduct set forth below) or
misusing the Services, please let us know by using any links provided in the
Services or by contacting Customer Support.
While we have no
obligation to monitor the Services, we have the right, in our sole discretion,
to monitor, record, or store your interactions with the Services or your
communications with us or other players when you are using the Services. For more information, see our Privacy Policy.
We may also, at
our sole discretion, choose to edit, refuse to post, or remove any User Content
or any other materials that we deem in our sole discretion to be offensive or
otherwise objectionable. If we determine
that your communications or User Content violate these Terms, we have the
right, in our sole discretion and without notice, to disable your ability to
post User Content or to communicate with other players, or we may terminate
your access to the Services entirely, among other remedies available to us.
7. Code of Conduct and Our Enforcement Rights
7.1 Code of Conduct.
When you access or use any Service, you agree:
●
Not to use the Services, intentionally or unintentionally,
in violation or breach of any applicable law or regulation, or in a way that
may put us in violation or breach of any applicable law or regulation, or in a
way that promotes the violation or breach of any applicable law or regulation.
●
Not to Engage in any act that we deem in our sole
discretion to conflict with the spirit or intent of the Services, including
without limitation circumventing or manipulating these Terms, game rules, game
mechanics, or any other rules or policies.
●
To abide by all terms and conditions of any third-party
platform provider through which you access and/or use the Services, including,
without limitation, all terms that apply to any payment you make through any
Platform
●
Not to interfere with or disrupt another player’s use of a
Service. This includes disrupting the
normal game play or game mechanics, chat, or dialogue within a Service by, for
example, using vulgar or harassing language, being abusive, excessive shouting
(all caps), spamming, flooding, or hitting the return key repeatedly.
●
Not to harass, threaten, bully, embarrass, spam, or do
anything else that may be offensive or objectionable to another player or to
our employees (including Customer Support), such as repeatedly sending unwanted
messages, using profanity, making threats, or making discriminatory statements about
race, sexual orientation, religion, heritage, etc. Hate speech of any form will
not be tolerated, nor will threats to other players or to our employees
(including Customer Support).
●
Not to contribute User Content or organize or participate
in any activity or group that is inappropriate, abusive, harassing, profane,
threatening, hateful, offensive, vulgar, obscene, sexually explicit,
defamatory, infringing, invades another’s privacy, or could be considered otherwise
objectionable.
●
Not to publish, post, upload, or distribute User Content
or content that is illegal or that you don’t have permission to distribute.
●
Not to publish, post, upload, or distribute any content,
such as a topic, name, screen name, avatar, persona, or other material or
information, that can be considered inappropriate, abusive, hateful, harassing,
profane, defamatory, threatening, hateful, obscene, sexually explicit,
infringing, privacy-invasive, vulgar, offensive, indecent, or unlawful.
●
Not to post a message or other User Content for any
purpose other than personal communication. Prohibited messages include
advertising, spam, chain letters, pyramid schemes, and other types of
solicitation or commercial activities.
●
Not to impersonate another person or falsely imply that
you are a Studio employee or representative.
●
Not to improperly use in-game support or complaint buttons
or make false reports to Studio staff.
●
Not to attempt to obtain, or phish for, a password,
account information, or other private information from anyone else on the
Services or from our employees.
●
Not to use any payment methods to access or purchase
Services for fraudulent purposes, without permission of the authorized owner,
or otherwise in connection with a criminal offense or other unlawful activity.
●
Not to use any robot, spider, malware, or other automated
device or process to access this website for any purpose or copy any material
on this website.
●
Not to use or distribute unauthorized software programs or
tools, such as “auto” software programs, “macro” software programs, “cheat
utility” software program, or similar applications, exploits, cheats, or any
other game hacking, altering, or cheating software or tool.
●
Not to modify any file or any other part of the Services
that Studio does not specifically authorize you to modify.
●
Not to use exploits, cheats, undocumented features, design
errors, or problems in a Service.
●
Not to use or distribute counterfeit software or content,
including virtual goods or Virtual Items (as defined below).
●
Not to attempt to use a Service on or through any service
that is not controlled or authorized by Studio.
●
Not to sell, buy, trade, or otherwise transfer or offer to
transfer your Studio account, any personal access to
the Services, including Virtual Items (as defined below) and other
entitlements, either within a Service or on a third party website, or in
connection with any out-of-game transaction, unless expressly authorized by
Studio.
●
Not to use a Service in a country in which we are
prohibited from offering such services under applicable export control laws or
any similar laws or regulations.
●
Not to use your full name as your user
name or persona on any game, not to use a user name or persona used by someone
else, and not to use a user name or persona that could be considered vulgar, offensive
or otherwise objectionable, or in violation of someone else’s rights (including
rights to privacy).
●
Not to engage in any other activity that disturbs the
peaceful, fair, and respectful gaming environment of a Service.
●
Not to use information about users publicly available in
any Service (e.g., on a leaderboard) for any purpose unrelated to the Service,
including to attempt to identify such users in the real world.
●
Not to interfere with or disrupt any Service or any server
or network used to support or provide a Service, including any hacking or
cracking into a Service.
●
Not to use any software or program that damages,
interferes with, or disrupts a Service or another’s computer or property, such
as denial of service attacks, spamming, hacking, or uploading computer viruses,
worms, Trojan horses, cancelbots, spyware, corrupted files and time bombs.
●
Not to promote, encourage, participate in, or facilitate
any of the prohibited activity described above.
7.2 Noncompliance — Failure to comply with this Code of Conduct may
result in the suspension of your account and access to the Services, and/or
subject you to any of the penalties identified in these Terms or available
under applicable law.
8. Your Interactions with
Other Users
You
are solely responsible for your interactions with other players. If you have a problem with another player, we
are not required to get involved, but we can if we desire. If requested by us, you will cooperate fully with any investigation,
including, without limitation, by granting us access to any portion of
your account that may be relevant to the investigation.
Unless otherwise provided under applicable law, if you have a
dispute with another player, you release us (and
our employees, officers, directors, agents, corporate parents, affiliates, and
joint ventures) from responsibility, claims, demands, and/or damages (indirect,
actual, or consequential) of every kind and nature, whether known or unknown,
resulting from that dispute or connected to that dispute. This includes damages
for loss of profits, goodwill, use, or data.
If you are located in California, you waive California Civil Code
§1542, which says: “A general release
does not extend to claims that the creditor or releasing party does not know or
suspect to exist in his or her favor at the time of executing the release and
that, if known by him or her, would have materially affected his or her
settlement with the debtor or released party.” If you live outside of California, you waive
any other statute, law, or rule of similar effect in your jurisdiction.
9. DMCA/Copyright Policy
We respect the intellectual property rights of others and ask that
you do the same. We respond to notices of alleged copyright infringement that
comply with the US 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. For more information, please go to our Copyright Page on our Site to review our notification guidelines.
We reserve the right, in our sole discretion and without notice, to terminate
any player’s access to the Services if we determine that the player may be a “repeat
infringer.”
10. Payment Terms
10.1 In-Game purchases and Virtual Items.
We provide a
service in the form of access to games, virtual in-game items or currency,
including virtual coins, cash, tokens, or points (collectively “Virtual
Items”), and our other Services. In the
Services, you may use “real world” money to obtain a limited, personal,
non-transferable, and revocable license and right to use Virtual Items and/or
other goods or services solely for personal, non-commercial, and entertainment
purposes. As described below, you do not
own Virtual Items that you obtained through our Services, regardless of whether
you “earned” those Virtual Items or “purchased them.” Your account and any related Virtual Items
are owned by us and Virtual Items do not have “real world” value.
When you purchase Virtual Items in our
Games on third-party platforms such as Facebook, Apple, or Google, we are not a
party to the transaction and your purchase will be governed by the third-party
platform’s payment terms and conditions. Please review the platform’s terms of service carefully
for additional information.
For
Virtual Items, your order will represent an offer to us to obtain a limited
license and right to use the relevant Virtual Item(s) that will be accepted by
us when we accept payment. At that
point, the limited license begins.
For
orders to obtain a limited license and right to use Virtual Items, by clicking
the purchase/order button on the purchase window or page you:
You
understand that while you may “earn,” “buy,” or “purchase” Virtual Items in our
Services, you do not legally “own” the Virtual Items and the amounts of any
Virtual Item do not refer to “real” money or any credit balance in actual
real-world currency. The amounts of any
Virtual Items or any “virtual currency” balance shown in your account have no
value outside of the game (e.g., in the real world), and instead only
constitute a measurement of the extent of your limited license. We may modify or
eliminate Virtual Items at any time and at our sole discretion, with or without
notice.
You
are not allowed to transfer Virtual Items outside of the Services (e.g., in the
“real world”), for example by selling, gifting, or trading them. We won’t recognize those transfers as
legitimate. In addition, you may not
sublicense, trade, sell, or attempt to sell Virtual Items for “real” money, or
exchange Virtual Items for value of any kind outside of a game. Any such transfer or attempted transfer is
prohibited and void, and we may terminate your Account because of it, among
exercising other remedies available to us under these Terms or applicable law.
ALL
SALES ARE FINAL: YOU
ACKNOWLEDGE THAT WE ARE NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON, AND
THAT YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED VIRTUAL ITEMS
WHEN AN ACCOUNT IS CLOSED, WHETHER SUCH CLOSURE WAS VOLUNTARY OR INVOLUNTARY,
OR WHETHER YOU MADE A PAYMENT THROUGH OUR SITE OR SERVICES OR ANOTHER PLATFORM
SUCH AS APPLE, GOOGLE, FACEBOOK, OR ANY OTHER SITES OR PLATFORMS WHERE WE OFFER
OUR SERVICES.
PURCHASES
TO ACQUIRE A LIMITED LICENSE AND RIGHT TO USE VIRTUAL ITEMS ARE NON-REFUNDABLE
TO THE FULLEST EXTENT ALLOWED BY LAW.
Additional
Payment Terms:
You
agree to pay all fees and applicable taxes incurred by you or anyone using an
account registered to you. We may revise the pricing for the Virtual Items it
licenses to you through the Services at any time.
10.2 Subscriptions
Some of our
Games may offer subscription-based Services. If you purchase a subscription (or if you activate a trial subscription
offered free of charge for a certain period of time that automatically converts
to a paid subscription of if not cancelled prior to the expiration of the trial
period), then by clicking the purchase button you are requesting that we begin
supplying the subscription Services immediately and you are entering into a periodic
subscription contract with us. You are
also authorizing a charge to you on a recurring basis of a periodic subscription
fee at the rate quoted at the time of purchase. By purchasing a
subscription, we will automatically charge on a recurring basis the payment
method associated with your account. In addition, if you activate a trial
subscription offered free of charge for a certain period of time and do not
cancel the trial subscription prior to the expiration of that period, the trial
subscription will automatically convert to a paid subscription and begin charging
on a recurring basis the payment method associated with your account. For subscription Services purchased in a
Studio Game played on a platform such as Apple or Google, the applicable
platform will charge you for the subscription fee and the platform’s payment
terms will apply. Please review the
appropriate platform’s payment terms carefully for additional information.
Subscription charges will be applied to the payment instrument or
method you provide when you start your subscription (or to a different payment
instrument or method if you change your account information). Please note that
prices and charges, including the fees associated with any subscriptions or the
prices for any Virtual Items, are subject to change at any time and in our sole
discretion. If we make a change to the
periodic subscription rate in U.S. Dollars, we will let you know in
advance.
Your
subscription will automatically renew each subscription period unless and until
you terminate your subscription, or we terminate it. You must cancel
your subscription before it renews each billing period (or your trial
subscription before expiration of the trial period), otherwise payment of the
subscription fees for the next period will be taken automatically via your
chosen payment method. You are
solely responsible for the timely payment of all fees and charges and in
ensuring the accuracy of the payment information associated with your account. If your payment does not process for any
reason, your subscription may be automatically cancelled.
For subscriptions purchased through a platform such as Apple or
Google (or for trial
subscriptions that automatically converts to a paid subscription of if not
cancelled prior to the expiration of the trial period), you may cancel
at any time directly through the platform, as follows: you can manage and
cancel your subscription at any time in your “Account Settings” of your device.
For iOS subscriptions, please see Apple’s support page available here. For Google Play
subscriptions, please see Google Play’s support page available here.
Except where required by applicable law, subscription payments are
non-refundable and there WILL BE no refunds or credits for partially used
subscription periods.
11. Links to Third Party
Websites, Resources, or Advertising
Our Services may feature advertisements from us or other companies. Our Privacy Policy explains what information
we share with advertisers. Please read
it carefully.
Sometimes we provide links in our games or on the Services to
other third-party companies’ websites or resources. We provide these links only as a convenience
and are not responsible for the content, products, or services on or available
from those websites or resources or links displayed on such websites. We are not liable for any claim relating to
any content, goods, and/or services of third parties, and you acknowledge sole
responsibility for, and assume all risk arising from, your use of any
third-party websites or resources.
Please also note that we do not control linked third-party websites
or resources and they may collect data or ask you to provide them with personal
or other information, or they may automatically collect information from you. When you use these third-party sites and
services, the third-party company may (or may not) ask you for permission to access
your information and content. We are not responsible for these other companies’
content, business practices, or privacy policies, or for how they collect, use,
or share the information they get from you.
12. Termination
We have the right to terminate your access to, and use of, the
Services, at our sole discretion, at any time and without notice to you. Upon any termination, discontinuation, or
cancellation of Services or your account, all provisions of these Terms which
by their nature should survive will survive, including, without limitation,
ownership provisions, warranty disclaimers, limitations of liability, and
dispute resolution provisions.
13. Indemnity
If you violate the law
or breach these Terms, and your violation or breach results in loss, damage, a
claim, or liability against us, you agree to indemnify, defend, and hold us
harmless from (which means you agree to compensate us for) that loss, damage,
claim or liability, including our legal fees and expenses. We may exercise exclusive control of the
defense of any legal action subject to indemnification by you, at your expense.
You agree to cooperate in our defense of
these actions. We will use reasonable
efforts to notify you of any claim for which you are obligated to indemnify us.
14. Warranty Disclaimers
We make no promises or guarantees that the Services or any content
on them will always be available, uninterrupted, or error-free. As set forth above, our Services’ performance may be affected by your
hardware, software, and/or internet access, each of which we do not control. In addition, we may
suspend, withdraw, or restrict the availability of all or any part of our
Services for business and operational reasons.
USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES AND CONTENT ARE PROVIDED ON AN
“AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE CLAIM, WE MAKE NO
WARRANTIES, CONDITIONS, OR OTHER TERMS OF ANY KIND, EITHER EXPRESS OR IMPLIED,
ABOUT THE SERVICES. WITHOUT LIMITING THE
FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF TITLE OR IMPLIED ARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT,
NON-INFRINGEMENT OR AVAILABILITY, AND ANY WARRANTIES ARISING OUT OF COURSE OF
DEALING OR USAGE OF TRADE. WE MAKE NO WARRANTY THAT THE SERVICES WILL MEET YOUR
REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS.
WE MAKE NO WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS,
COMPLETENESS, OR RELIABILITY OF ANY CONTENT AVAILABLE IN THE SERVICES.
If your state or country does not allow
these disclaimers, they do not apply to you.
If your state or country requires a certain period for which a warranty
applies, it will be either the shorter of thirty (30) days from your first use
of the Services or the shortest period required by law.
15. Limitation of Liability
YOU ACKNOWLEDGE THAT NEITHER WE NOR ANY OTHER PARTY INVOLVED IN
CREATING, PRODUCING, OR DELIVERING THE SERVICES (INCLUDING OUR CORPORATE
PARENTS) WILL BE LIABLE:
·
FOR ANY PERSONAL INJURY OR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY,
OR CONSEQUENTIAL DAMAGES, INCLUDING FOR LOST PROFITS, LOSS OF DATA OR GOODWILL,
SERVICE INTERRUPTION, COMPUTER DAMAGE, SYSTEM FAILURE, OR THE COST OF
SUBSTITUTE SERVICES, IN ANY WAY WHATSOEVER ARISING OUT OF THESE TERMS OR THE
USE OF, OR INABILITY TO USE, THE SERVICES OR CONTENT, AND WHETHER BASED ON
WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER
LEGAL THEORY, AND WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF
SUCH DAMAGE; OR
·
FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER USERS OF
THE SERVICES AND OPERATORS OF EXTERNAL WEBSITES OR RESOURCES.
THE RISK OF USING THE SERVICES AND EXTERNAL WEBSITES OR RESOURCES
RESTS ENTIRELY WITH YOU, AS DOES THE RISK OF INJURY FROM THE SERVICES OF
EXTERNAL WEBSITES OR RESOURCES.
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, THE DISCLAIMERS
OF LIABILITY IN THESE TERMS APPLY TO ALL DAMAGES OR INJURY CAUSED BY THE
SERVICES, OR RELATED TO USE OF, OR INABILITY TO USE, THE SERVICES, UNDER ANY
CAUSE OF ACTION IN ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION, ACTIONS FOR
BREACH OF WARRANTY, BREACH OF CONTRACT, OR TORT (INCLUDING NEGLIGENCE). IF YOU LIVE IN A JURISDICTION THAT DOES NOT ALLOW
THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL
DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, THE TOTAL
LIABILITY OF STUDIO AND ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR
DELIVERING THE SERVICES (INCLUDING OUR CORPORATE PARENTS) IS LIMITED TO THE
TOTAL AMOUNT YOU HAVE PAID US IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING
THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM. IF YOU HAVE NOT PAID STUDIO
ANY AMOUNT IN SUCH SIX (6) MONTH PERIOD, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY
DISPUTE WITH STUDIO IS TO STOP USING THE SERVICES AND TO CANCEL YOUR
ACCOUNT.
Some states or countries do not allow the
exclusion of certain warranties or the limitations/exclusions of liability
described above, which means these limitations/exclusions may not apply to you
if you reside in one of those states or countries. To the extent that we
may not, as a matter of applicable law, disclaim any warranty or limit its
liability as set forth herein, the scope of such warranty and the extent of our
liability will be the minimum permitted under such applicable law.
16. Time Limitation on
Claims
You agree that any claim you may have in any way arising out of or
relating to your relationship with us, including your use of the Services, must
be filed within one (1) year after the factual basis for the claim arose; otherwise,
your claim will be permanently barred as untimely.
17. Governing Law and Venue
These Terms and our relationship will be governed by the laws of
the State of California, except for its conflict of law principles.
Further, you and we agree to the jurisdiction of the courts in
Santa Clara County, California to resolve any dispute, claim, or controversy
that relates to or arises in connection with the Services (and any
non-contractual disputes/claims relating to or arising in connection with
them).
18. Informal Dispute Resolution Process; Agreement to Arbitrate; Class
Action and Representative Action Waiver
PLEASE READ THIS SECTION
CAREFULLY. IT AFFECTS YOUR RIGHTS AND
INCLUDES WAIVER OF A TRIAL BY JURY IN A COURT AND OF THE ABILITY TO BRING ANY
CLASS ACTIONS OR REPRESENTATIVE ACTIONS.
Overview; Notice of Claim
and Required Informal Dispute Resolution Process
In the event of any
controversy or claim arising out of or relating to these Terms, including any
question regarding its existence, validity, termination, or breach thereof, or
your use of the Services, the parties hereto shall consult and negotiate with
each other and, recognizing their mutual interests, attempt to reach a
satisfactory solution, through first contacting Customer Support and then
through the Informal Dispute Resolution Process described below. If these informal efforts do not resolve the
concern or issue, as explained in more detail below, we each agree to resolve
any dispute between us through binding arbitration or small claims court
instead of in courts of general jurisdiction.
If you have any concerns
about, or experience any issue with, the Services, most user concerns or issues
can be resolved by contacting our Customer Support team at support@flarestar.fun.
Before initiating the Informal Dispute
Resolution Process (as described below) or any arbitration or court proceeding
pursuant to this Section, you must first contact our Customer Support team to
address your concerns or issues. Most
disputes can be resolved that way.
If you have any concern or dispute that Customer Support cannot resolve, you agree to then try to resolve the dispute informally (the “Informal Dispute Resolution Process”) and in good faith by contacting us and providing a written notice of claim (the “Notice of Claim”) to the address provided below for Service of Process or by sending an email to legal@flarestar.fun. The Notice of Claim must provide us with an individualized and detailed description of the nature and factual basis of your individual, personal claim(s), and the relief you seek, including the specific amount of any monetary relief you seek and the basis for your calculation of that relief. Your Notice of Claim may only include your individual personal claim(s) and may not be combined with a Notice of Claim for other individuals. After submitting your Notice of Claim, you then agree to meet and confer by email, telephonically, or by videoconference (such as Zoom), in good faith regarding your individual claim before taking any further action.
If any dispute related to your Notice of Claim cannot be resolved through
the Informal Dispute Resolution Process within sixty (60) days of our receipt
of the Notice of Claim, this Section explains how you and we agree to resolve
it. As explained in more detail below, we
each agree to resolve any dispute between us through binding arbitration or
small claims court instead of in courts of general jurisdiction. You understand and agree that you and we
are giving up the right to sue in court and the right to have a trial before a
judge of jury.
Severability
This Section 18
applies to the maximum extent permitted by applicable law. If any competent authority deems
any portion of this Section illegal or unenforceable, such provision will be
severed and the remainder of this Section will be given full force and effect.
If any competent authority
determines that applicable law precludes the arbitration of any claim, cause of
action, or requested remedy, then that claim, cause of action, or requested
remedy, and only that claim, cause of action, or requested remedy, will be
severed from this Agreement to Arbitrate (as described below), and will be
brought in a court of competent jurisdiction.
If a claim, cause of action, or requested remedy is severed pursuant to
this paragraph, then you and we agree that the claims, causes of action, or
requested remedies that are not subject to arbitration will be stayed until all
arbitrable claims, causes of action, and requested remedies are resolved by the
arbitrator.
Agreement to Arbitrate; Exceptions to Agreement
to Arbitrate
If we cannot resolve our dispute
through Customer Support or through an Informal Dispute Resolution Process (as
described above), YOU AND WE AGREE TO RESOLVE ALL DISPUTES AND CLAIMS
BETWEEN US IN INDIVIDUAL BINDING ARBITRATION, INCLUDING CLAIMS CONCERNING ANY
ASPECT OF THE RELATIONSHIP BETWEEN US, YOUR DECISION TO DOWNLOAD THE GAME, YOUR
USE OF THE GAME, ANY USER CONTENT, OR YOUR ACCOUNT.
This Agreement to Arbitrate is
intended to be interpreted broadly, and it applies to all disputes or claims of
any kind under any theory (whether based in contract, tort, statute, fraud,
misrepresentation, or any other legal theory) that you may have or assert
against us, including disputes or claims that you assert or that arise after
you stop using the Services or delete your account for the Game, stop using the
Game, or delete the Game application. This Agreement to Arbitrate also
applies to any claims that are currently the subject of a purported class
action litigation in which you are not a member of a certified class.
You and we agree that the
arbitrator shall have the exclusive authority to resolve any dispute relating
to the interpretation, applicability, or enforceability of the terms or
formation of this contract, including whether any dispute between us is subject
to this Agreement to Arbitrate (i.e., the arbitrator will decide the
arbitrability of any dispute) and whether all or any part of these terms are
void or voidable.
Please note that an arbitration
is a proceeding before a neutral arbitrator, instead of before a judge or
jury. Arbitration is less formal than a
lawsuit in court and provides more limited discovery. It follows different rules than court proceedings
and is subject to very limited review by courts. The arbitrator will issue a written decision
and provide a statement of reasons if requested by either party. YOU UNDERSTAND THAT YOU AND WE ARE GIVING
UP THE RIGHT TO SUE IN COURT AND THE RIGHT TO HAVE A TRIAL BEFORE A JUDGE OR
JURY.
Exceptions
to Agreement to Arbitrate
This
Section does not apply to the following types of claims or disputes,
which you or we may bring in court in accordance with Section 17 above:
(1) claims of infringement
or other misuse of intellectual property rights, including such claims seeking
injunctive relief; and
(2) claims for preliminary
injunctive relief for violations of these Terms.
This Section does not
prevent you from bringing your dispute to the attention of any federal, state,
or local government agencies that can, if the law allows, seek relief from us
for you. In addition, any of us can
bring a claim in small claims court either in Santa Clara County, California,
or the county where you live, or some other place we both agree on, if such
claims meet the requirements to be brought in that small claims court. If either party files a claim in arbitration
that could have been brought in small claims court, the other party may elect to
resolve the claim through small claims court (rather than through arbitration)
by providing notice to the other party before appointment of an arbitrator;
upon receipt of such notice, the arbitration provider shall administratively
close the case before assessing any fees, and the party bringing the claim must
proceed in small claims court in lieu of arbitration.
Procedure for Arbitration
The Federal Arbitration Act
applies to this Section. The arbitration
will be governed by the Streamlined Arbitration Rules & Procedures (the
“Rules”) of JAMS (“JAMS”), as modified by these Terms. The Rules are available at https://www.jamsadr.com/rules-streamlined-arbitration/. The arbitrator will be bound by these Terms. In the event of a conflict between the rules
of the arbitration provider and the Terms, including with respect to the
assessment of the fees and costs of arbitration, these Terms will govern.
To start an arbitration proceeding, use
the form available on JAMS website (https://www.jamsadr.com/submit/).
Any arbitration under this Section
that must take place in person will take place pursuant to the Rules and these
Terms. The parties agree that any live
proceedings, including the arbitration hearing, will be conducted at a location
reasonably convenient to both parties with due consideration of their ability
to travel and other pertinent circumstances.
Payment of all filing, administrative,
arbitrator fees, and costs of arbitration will be governed by the Rules, except
as modified by these Terms. If your
claim is for US$25,000 or less, we agree to reimburse your share of the
arbitration costs, including your share of arbitrator fees, at the conclusion
of the proceeding, unless the arbitrator determines your claims are frivolous,
your claims were brought for an improper purpose, or your arbitration costs are
unreasonable as determined by the arbitrator.
If you seek more than US$25,000, the arbitration costs, including
arbitrator compensation, will be split between you and us according to the rules
of the arbitration provider. Notwithstanding
the above, if you demonstrate that you are unable to afford the fees or costs
of arbitration, qualify for a statutory exemption, or if the arbitrator
determines that your payment of any portion of the costs or fees would be
cost-prohibitive (as compared to litigation), we will pay them. Irrespective of the amount you seek, neither
party shall be entitled to have their attorneys’ fees or costs paid by the
other party; provided, however, that either party may seek to recover their
attorneys’ fees and costs in arbitration if the arbitrator determines that the
other party’s claims (or counterclaims) are frivolous or were brought for an improper
purpose.
For non-US Users
In the event of any controversy or claim
arising out of or relating to these Terms, including any question regarding its
existence, validity, termination, or breach thereof, the parties shall consult
and negotiate with each other in good faith and, recognizing their mutual
interests, attempt to reach a satisfactory solution. If they do not reach
settlement within a period of sixty (60) days, then, upon notice by any party
to the other(s), any unresolved controversy or claim shall be settled by
arbitration administered by the International Centre for Dispute Resolution
(“ICDR”) (www.icdr.org) in accordance with the provisions of its International
Arbitration Rules. The place of arbitration shall be in London, England, and the
number of arbitrators shall be one. The language to be used in the arbitral
proceedings shall be English.
Except as may be required by law, neither
a party nor its representatives may disclose the existence, content, or results
of any arbitration hereunder without the prior written consent of Studio. The
European Union also operates an online dispute resolution platform which can be
found at www.ec.europa.eu/consumers/odr.
Class Action and
Representative Action Waiver
For disputes arising between us
and you, or any other user, you and we agree that we can only bring a claim
against each other on an individual basis. NEITHER YOU NOR WE CAN BRING A CLAIM
AS A PLAINTIFF OR CLASS MEMBER IN A CLASS ACTION, CLASS-WIDE ARBITRATION,
CONSOLIDATED ACTION, OR REPRESENTATIVE ACTION.
THE ARBITRATOR CANNOT COMBINE MORE THAN ONE PERSON’S CLAIM INTO A SINGLE
CASE, AND CANNOT PRESIDE OVER ANY CONSOLIDATED, CLASS, OR REPRESENTATIVE
ARBITRATION PROCEEDING, UNLESS WE BOTH AGREE OTHERWISE IN WRITING. NONETHELESS, IF ANY PORTION OF THIS CLASS
ACTION OR REPRESENTATIVE ACTION WAIVER IS DEEMED UNENFORCEABLE OR INVALID, THE
ARBITRATOR SHALL HAVE AUTHORITY TO ISSUE ANY AND ALL REMEDIES AUTHORIZED BY
LAW.
YOU UNDERSTAND THAT, ABSENT THIS AGREEMENT
TO ARBITRATE, YOU WOULD HAVE HAD A RIGHT TO LITIGATE THROUGH A COURT, TO HAVE A
JUDGE OR JURY DECIDE YOUR CASE, AND TO BE PARTY TO A CONSOLIDATED, CLASS, OR
REPRESENTATIVE ACTION. HOWEVER, YOU
UNDERSTAND AND CHOOSE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY AND ONLY THROUGH
ARBITRATION.
Service of Process
To initiate arbitration or any legal
proceeding against us, you must serve appropriate initiating documents on our
registered agent at: United Agent Group Inc., 3411 Silverside Road, Tatnall Building #104, Wilmington, New Castle, DE,19810, United
States.
Changes to this Section
Notwithstanding any provision in these Terms to the
contrary, we agree that, if we make any future change to this Section, you may
reject any such change by sending us written notice within thirty (30) days of
the change to: legal@flarestar.fun.
19. California Notice
Under California Civil Code Section 1789.3,
consumers from California are entitled to the following specific consumer
rights notice: The Complaint Assistance Unit of the Division of Consumer
Services of the California Department of Consumer Affairs may be contacted in
writing at 1625 N. Market Blvd., Suite N 112, Sacramento, CA 95834, or by
telephone at 1(916) 445-1254 or 1(800) 952-5210.
We may be contacted in writing at Attn:
“Legal”, Flare Star LLC, 2100 Geng Road, Suite 210
Palo Alto, CA 94303.
20. Miscellaneous Terms
Photosensitivity Warning — Certain people may react
to certain images, backgrounds, features, or effects, including light patterns
or flashing lights (regardless of whether they have a diagnosed condition or
history) in our Services, Site, or other content. If you or anyone in your family has an
epileptic condition, consult your physician prior to playing. If you experience any issues or symptoms while
using our Services or playing a Game, IMMEDIATELY discontinue use and consult
your physician before returning to our Services or resuming play.
Entire Agreement — These Terms constitute the entire and exclusive
understanding and agreement between us and you regarding the Services, and
these Terms supersede and replace all prior oral or written understandings or
agreements between us and you regarding the Services.
Severability — 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.
No Assignment or Transfer by You — You may not assign or
transfer these Terms, by operation of law or otherwise, without our prior
written consent. Any attempt by you to
assign or transfer these Terms, without such consent, will be null and void. We may freely assign or transfer these Terms
without restriction. Subject to the
foregoing, these Terms will bind and inure to the benefit of the parties, their
successors, and permitted assigns.
Notices — Any notices or other communications provided by us under
these Terms, including those regarding modifications to these Terms, will be
given: (i) via email; or (ii) by posting to the
Services. For notices made by e-mail,
the date of receipt will be deemed the date on which we transmit the notice by
email.
No Waiver — Our failure to enforce any right or provision of these
Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will
be effective only if in writing and signed by our duly authorized
representative. 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.
21. Contact Information
If you have any questions about these Terms or the Services,
please contact us at legal@flarestar.fun.