Starting way back in 1997, we were the first to come up with the idea of allowing players compete online in casual games. We started playtournamentgames.com, created the best possible Klondike Solitaire game for the PC, and built the first tournament system of its kind, then we hung an Open sign on the web. Ever since, we have been creating new online games, more Prize and Gifts tickets tournaments and growing a great family of players. Come join us today!
BY REGISTERING FOR AN ACCOUNT WITH US (your "Account"), CLICKING "I ACCEPT" BELOW, DOWNLOADING ANY SOFTWARE APPLICATION FROM US (as further defined in Section 2.2 below, "Software"), OR REGISTERING FOR OR PARTICIPATING IN ANY COMPETITIONS, YOU: (A) ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS AND CONDITIONS OF SERVICE AND ALL OBLIGATIONS AND RULES THAT MAY BE INCLUDED WITHIN EACH COMPETITION IN WHICH YOU PARTICIPATE ("Rules") (these Terms and Conditions of Service, the terms of any policy incorporated herein, and the Rules are collectively referred to as the "Terms") IN THEIR ENTIRETY; (B) AGREE TO BE BOUND BY THE TERMS; AND (C) ARE AUTHORIZED AND ABLE TO ACCEPT THESE TERMS. If you don't wish to be bound by the Terms, do not click "I accept" and do not register with Tournament Games ("Tournament Games", "we" or "us"). Declining to accept these Terms means you will be unable to participate in Competitions or use your Tournament Games account.
1. GENERAL TERMS
1.1. Arbitration. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, ANY CLAIM, DISPUTE OR CONTROVERSY OF WHATEVER NATURE ("CLAIM") ARISING OUT OF OR RELATING TO THESE TERMS AND/OR OUR SOFTWARE OR SERVICES MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION IN ACCORDANCE WITH THE PROCESS DESCRIBED IN SECTION 14 BELOW. PLEASE READ SECTION 14 CAREFULLY. To the maximum extent permitted under applicable law, you are giving up the right to litigate (or participate in as a party or class member) all disputes in court before a judge or jury.
1.2. Changes to the Terms. We may change the Terms at any time, but we will post a notice on our website at [www.PlayTournamentGames.com] ("Website") of any material changes, and you can see when these Terms were last revised by referring to the "Updated" legend above. Your continued participation in Competitions and/or use of Software or Services means you accept any new or modified Terms. You are responsible for reviewing the Terms for any changes, so please check back here from time to time.
1.3.1. United States (U.S.). To be eligible to register an Account, to participate in any Competition or receive Services, and/or to download Software, you must: (a) be a natural person who is at least 18 years of age or older, and who is personally assigned to the email address submitted during your Account registration; (b) have the power to enter into a contract with Tournament Games; (c) be physically located within the U.S. when accessing your Account and participating in Competitions; (d) be physically located within a U.S. state in which participation in the Competition you select is unrestricted by that state's laws; and (e) at all times abide by these Terms. If any one of these requirements is not met at any time, we may suspend or close your Account with or without notice.
1.3.2. Non-U.S. To be eligible to register an Account, to participate in any Competition or receive Services, and/or to download Software, you must: (a) be a natural person who is at least 18 years of age or older, and who is personally assigned to the email address submitted during your Account registration; (b) have the power to enter into a contract with Tournament Games; (c) be physically located in a jurisdiction in which participation in the Competition you select is permitted and unrestricted by that state or country's laws; and (d) at all times abide by these Terms. If any one of these requirements is not met at any time, we may suspend or close your Account with or without notice.
1.4. Registration. When you create an Account, you will be asked for a legitimate email address that you control and to create a password. After registration, you will be given the opportunity to create a username or accept a username given by the Services. The password and username are needed to participate in the Services. As a registered user, you can update your account settings, including your email address by logging into your Tournament Games Account inside any Tournament Games enabled game and clicking "Account Settings". Also, if you forget either your password or username, you can visit the Website or email us for help. Please keep your username and password secret because you are responsible for all activity taken through your Account. Although we may offer a feature that allows you to "save" or "remember" your password, this feature makes it possible for third parties to access your Account, so please use that feature prudently because such use is at your own risk. We may, in our sole discretion, reject, change, suspend and/or terminate your username.
1.5. Your Account. You, as the holder of your Account, are solely responsible for complying with these Terms, and only you are entitled to all benefits accruing thereto. You may not allow any other person to (i) access your Account; (ii) access Services or Software through your Account; or (iii) accept or use Prize and Gifts, winnings and other representative of value (including without limitation digital trophies, virtual currency or virtual goods) (collectively "Winnings"). Neither your Account nor Winnings nor any Digital Assets (defined in Section 10.3) are transferable to any other person or account. You must immediately notify us of any unauthorized use of your password or identification or any other breach or threatened breach of our security or the security of your Account.
1.6. Personal Location Data: As a part of this service, we collect location information from your device. If you would like to opt out of having this information collected, you can disable location access to any Tournament Games game through the Settings menu on your mobile device.
1.7. Use of Information Collected: By upgrading an account and providing an email address, users authorize Tournament Games to provide them with important announcements, relevant promotions, and other related communications. Users will always have the opportunity to opt out of these communications at any time.
2. SERVICES AND SOFTWARE
2.1. Our Services. We may, with or without notice to you: (1) modify, suspend or terminate your access to the Website, Services and/or Software; and (2) interrupt the operation of the Website, Services and/or Software as necessary to perform maintenance, error correction, or other work. We may suspend and/or close the account of any user who violates, or whom we reasonably believe may be in violation of or will violate, these Terms, at any time without notice. Also, and without limiting our other rights or remedies, if you violate these Terms, we may determine that your Winnings, if any, will be forfeited, disgorged or recouped by us.
2.2. Software. If you wish to participate in Competitions or receive Services, you may be required to first download certain proprietary Tournament Games software and/or mobile applications (together with the content included therein, any associated documentation, and any application program interfaces, license keys, and patches, updates, upgrades, improvements, enhancements, fixes and revised versions of any of the foregoing, is collectively "Software"). If you do not download the Software, you will not be able to participate in Competitions or receive relevant Services. Sometimes you will download the Software directly from us, and sometimes you will download Software from a third party, such as a game developer, but in either case your use of the Software is subject to these Terms. We license the Software to you under Section 10.2.
2.4. Beta Releases. For any Service that is identified by us as a "beta" version ("Beta Service"), you acknowledge and agree that a Beta Service may contain more or fewer features than the final release of the Service. We reserve the right, in our sole discretion, not to release a final release of a Beta Service or to alter its features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics. Beta Services may not be suitable for production use and may contain errors affecting proper operation and functionality.
2.5. Third Party Sites. You may be able to access third-party websites or services via the Software, Services or Website. We are not responsible for third-party websites, services, or content available through those third-party services. You are solely responsible for your dealings with third-parties (including advertisers and game developers). Your use of third-party software, websites or services may be subject to that third-party's terms and conditions.
3. COMPLIANCE WITH LAWS
3.1. Prohibited US States/Countries. You acknowledge that various rules, regulations and laws addressing sweepstakes, contests, and tournaments with entry fees and/or Prize and Gifts govern your participation in Competitions ("Gaming Laws"), and that Gaming Laws are set up by each individual US state, country, territory, or jurisdiction. Therefore, we DO NOT offer Prize and Gifts Competitions (as defined in section 8.3) to users participating in Competitions in any state in which such Competition violates its Gaming Laws ("Prohibited Jurisdiction"), and if you are located in any Prohibited Jurisdiction then you may not participate in Prize and Gifts Competitions. In the United States, Prohibited Jurisdictions, as of the "Updated" date above, include: Arizona, Arkansas, Connecticut, Delaware, Florida, Illinois, Iowa, Louisiana, Maryland, Montana, South Carolina, South Dakota, and Tennessee. It is your responsibility to determine whether the state, country, territory or jurisdiction in which you are located is a Prohibited Jurisdiction. We reserve the right (but have no obligation) to monitor the location from which you access Services, and we may block access from any Prohibited Jurisdiction. Each time you log in to participate in a Prize and Gifts Competition, you must accurately confirm the location from which you are playing.
3.2. Additional Laws. In addition to Gaming Laws, you are also subject to all municipal, state and federal laws, rules and regulations of the city, state and country in which you reside and from which you access and use Services, including without limitation U.S. export laws (together with Gaming Laws, the "Applicable Laws"). You are solely responsible for your compliance with all Applicable Laws. Access to Competitions may not be legal for some or all residents of, or persons present in, certain jurisdictions. SERVICES AND COMPETITIONS ARE VOID WHERE PROHIBITED OR RESTRICTED BY APPLICABLE LAWS. Your participation in Competitions is at your own risk, and you agree not to hold us responsible or liable if Applicable Laws restrict or prohibit your access or participation.
3.3. Legal Disclaimers. WE MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO THE LAWFULNESS OF YOUR PARTICIPATING IN ANY COMPETITION OR USE OF SERVICES, NOR SHALL ANY PERSON AFFILIATED, OR CLAIMING AFFILIATION, WITH US HAVE AUTHORITY TO MAKE ANY SUCH REPRESENTATIONS OR WARRANTIES.
4. YOUR REPRESENTATIONS AND WARRANTIES TO US
You represent and warrant to us that (1) you have the right, authority, and capacity to agree to these Terms, to register for an Account, and to participate in those Competitions for which you register; and (2) you will comply with these Terms when participating in Competitions, receiving Services, and/or using Software; and (3) all information you supply to us is complete, accurate and current (and knowingly submitting incomplete or inaccurate information, or failing to update and maintain current, complete and accurate information, may result, without limitation, in immediate termination of your Account and forfeiture of Winnings).
5. YOUR INDEMNIFICATION OF US
You will, at your own cost and expense, indemnify and hold us and our directors, officers, employees and agents harmless from and against any and all claims, disputes, liabilities, judgments, settlements, actions, debts or rights of action, losses of whatever kind, and all costs and fees, including reasonable legal and attorneys' fees, arising out of or relating to (i) your breach of these Terms; (ii) any use of your Account by any person; (iii) your violation of Applicable Laws; and/or (iv) your negligence or misconduct; and, if we instruct you in writing, you will, at your cost and expense, defend us from any of the foregoing using counsel reasonably acceptable to us.
6.4. Warning. Please take care in sending us sensitive information because third parties can unlawfully intercept or access transmissions or private communications between you and us, and you acknowledge that internet transmissions are never completely private or secure.
6.6. Gameplay Dialogue. We may use third party websites and technologies to record or stream gameplay or chat dialogue occurring through the Services, including your own dialogue ("Recordings"). We use Recordings to verify compliance with these Terms and as part of marketing and promotion of the Services. Please do not submit personally identifiable information in gameplay dialogue—this information is available for anyone to see and use. You may record and distribute your own recordings of gameplay dialogue for non-commercial purposes (i.e., you may not record or distribute Recordings for compensation) so long as your recording and distribution: (a) do not include other products or services that are competitive with our products or services, and (b) comply with these Terms.
6.7. Children. The Services will not knowingly accept personal information from anyone under 18 years old. If you believe that a child under 18 has gained access to the Services, please contact us at support@Play Tournament Games.com. We have taken commercially reasonable steps to restrict use of Services to those who are at least 18 years old. We do not sell products or services for purchase by minors.
7. ACCEPTABLE USE POLICY
7.1. Rules of Conduct. You are personally responsible for your use of Services and Software, and while using Services and Software you must conduct yourself in a lawful and respectful manner in accordance with our rules of conduct below. We may temporarily or permanently ban users who violate these rules, or who abuse email communications, support communications, or the community purpose of any message board areas, as determined by us in our sole discretion. We reserve the right to disable a player's ability to upload profile photos or edit their username at any time. * Profanity, obscenities, or the use of **asterisks** or other "masking" characters to disguise such words, is not permitted. * You may not use or upload obscene, lewd, slanderous, pornographic, abusive, violent, insulting, indecent, threatening and harassing language of any kind, as determined by us in our sole discretion. * Service usernames will be displayed as 'Your Name'; impersonating other players is not allowed. * Do not share personal information (your name, phone number, home address, and password) with other users. * Do not transmit or upload any copyrighted, or trademarked materials in messages or postings. * Information disclosed in chat rooms, message boards, gameplay dialogue or via eMessages is revealed to the public, and we are not responsible for information you choose to disclose to others. * Advanced fonts, java, tables, html, or other programming codes or commands are not allowed in messages. * You may not attempt to participate in any Service by means of automatic, macro, programmed, or similar methods. * You may not commit fraud with regard to any Service. * You may not attempt to impersonate or deceive another user for the purposes of illicitly obtaining cards, passwords, account information etc. (aka "scamming"). You may not make any commercial use of any of the information provided on the Website or through the Services nor make any use of the Website or Services for the benefit of a business.
7.2. Your Content. You acknowledge that the Service is a passive conduit for user content and that we do not pre-screen user content or communications. We do not control, verify or pay for any user content or communications. We do not endorse, and specifically disclaim any responsibility or liability for, any publicly posted content. In addition, we may terminate your access to any public forums at any time, without notice, for any reason whatsoever, and/or delete, move or edit content submitted publicly, in whole or in part. You may only upload, send, and receive messages and material that is related to the subject matter of the public forums, complies with Applicable Laws, and conforms to any additional terms of service we post in the public forums. You may not upload to, distribute, or otherwise publish any content, information, or other material that (a) violates or infringes the copyrights, patents, trademarks, service marks, trade secrets, or other proprietary rights of any person; (b) is libelous, threatening, defamatory, obscene, indecent, pornographic, or could give rise to any civil or criminal liability under U.S. or international law; or (c) includes any bugs, viruses, worms, trap doors, Trojan horses or other harmful code or properties. Submissions or opinions expressed by users are that of the individual expressing such submission or opinion and may not reflect our opinions. Subject to the foregoing, we may edit, refuse to post, or to remove any information or materials that you submit to us, in our sole discretion. You may not use a false email address, pretend to be someone other than yourself or otherwise mislead us or third parties as to the origin of your submissions or content. We may, but shall not be obligated to, remove or edit any of your submissions or content for any reason.
7.3. Cheating, Fraud, and Abuse. In accessing or participating in Services or using the Software, you represent and warrant to us that you will not engage in any activity that interrupts or attempts to interrupt the operation of the Services or Software. Anyone who engages in, participates in, or displays behavior that may be interpreted, in our sole discretion, as unfair methods in participating in Services or using the Software, including but not limited to, the opening and/or use of multiple accounts, the use of unauthorized or altered software or hardware to assist play (e.g., bots, bot nets, and collusion with bots), intentionally poor play in certain games to achieve competitive advantage, collusion with other players (e.g. intentionally losing rematches in Prize and Gifts Competitions), deliberate transfer of money between accounts (e.g., "money laundering"), harassment of other participants, posting objectionable material, breach of these Terms, breach of security of your Account or, or any other act (whether through the use of automated technology or otherwise) that unfairly alters your chance of winning or constitutes the commission of fraud (collectively, "Abuse"), you will be subject to immediate sanction (as determined by us in our sole discretion), which may include, without limitation: (1) immediate termination of your Account and blocking of your access to the Website and Services; (2) any Winnings that you may otherwise have been entitled to receive shall be void and forfeited; and (3) any Winnings received by you shall be subject to disgorgement and/or recoupment. In addition to the foregoing, we reserve the right to disclose or report any money laundering similar illegal activity to law enforcement and regulatory authorities. Without limiting our other available remedies, we may institute or seek any injunctive relief, civil and/or criminal proceedings against you and/or any of your co-conspirators arising out of or related to your commission of Abuse, including without limitation recovering all of our fees and expenses (including reasonable attorneys’ fees) in connection with such efforts.
7.4. Hacking, Tampering, or Unauthorized Access. Any attempt to gain unauthorized access to our systems or any other user's account, interfere with procedures or performance of Services, Software or the Website, or deliberately damage or undermine the Services or Software is subject to civil and/or criminal prosecution and will result in immediate termination of your Account and forfeiture of your Winnings. You acknowledge that we are not responsible for any damage, loss, or injury resulting from hacking, tampering, or other unauthorized access or use of Services or your Account.
7.5. Restrictions. Any use, reproduction or redistribution of the Service, Software, or related products or services (including without limitation, Digital Assets, as defined in Section 10.3) not expressly authorized by these Terms is expressly prohibited. You may not engage in, or assist others to engage in, conduct that would damage or impair our property including, without limitation: (a) copying, distributing, transmitting, displaying, performing, framing, linking, hosting, caching, reproducing, publishing, licensing, or creating derivative works from any information, software, products or services obtained from us; (b) providing unauthorized means through which others may use Services such as through server emulators; (c) taking actions that impose an unreasonable or disproportionately large load on our or our suppliers' network infrastructure, or that could damage, disable, overburden, or impair our Websites or Services; (d) interfering with any other party's use and enjoyment of Services and/or Software (including cheating) or the Website; and/or (e) attempting to gain unauthorized access to third party accounts, the Service, or Software.
8. PRIZE AND GIFTS, ACCOUNT FUNDS, AND PAYMENTS
8.1. Fees. Fees and payments for Services that you pay to us ("Fees") and our billing procedures are detailed in our billing application. If there are Fees charged to your Account, you agree to pay those Fees. All Fees are stated in U.S. Dollars, must be prepaid, and are non-refundable. You are fully responsible and liable for all charges, deposits and Prize and Gifts requests made under your Account, including any unauthorized charges, deposits or Prize and Gifts requests. We may change the price of Services at any time, but no price change will affect your past purchases.
8.2. Billing. We may change Fees and billing procedures by updating our billing application. By providing us with a payment method, you (i) represent that you are authorized to use the payment method that you provided and that any payment information you provide is true and accurate; (ii) authorize us to charge you for the Services using your payment method; and (iii) authorize us to charge you for any paid feature of the Services that you choose to sign up for. We may bill you (a) in advance; (b) at the time of purchase; or (c) shortly after purchase, in our sole discretion. If we make an error on your bill, you must tell us within 120 days after the error first appears on your bill. We will then promptly investigate the charge. If you don't tell us within that time, we'll not be liable for any losses resulting from the error and we won't be required to correct the error or provide a refund. If we identify a billing error, we will correct that error within 90 days. You must pay for all reasonable costs we incur to collect any past due amounts, including without limitation reasonable attorneys' fees and other legal fees and costs.
8.4. Bonus Funds. If you are a Premium Player then we may, from time to time in our sole discretion, grant you bonus funds and/or credits ("Bonus Funds"). Bonus Funds can be used to enter Premium Competitions, but cannot be withdrawn or used for any other Service. When you enter a Premium Competition, US$0.01 (one U.S. cent) of Bonus Funds will be converted into U.S. Dollars for every US$0.10 (ten U.S. cents) spent on the Premium Competition entry fee. All Prize and Gifts Competition entry fees will be deducted from your Account balance before being deducted from Bonus Funds. If you initiate a request for Prize and Gifts won from your Account, you will forfeit all Bonus Funds currently in your Account. If you do not enter a Premium Competition within a continuous 60 day time period, all Bonus Funds in your account will be forfeit.
8.5. Prize and Gifts Requests. If you are a Premium Player, you may request a Prize and Gifts request from Prize and Gift awarded to your Account at any time. Digital Assets (as defined in Section 10.3) and Bonus Funds (as defined in Section 8.4) cannot be withdrawn. Processing of Prize and Gifts requests may take up to ninety (90) days; provided, however, that we may freeze your Account and/or delay a request for pending completion of any investigation of reported or suspected Abuse, verification of eligibility, or to comply with Applicable Laws. We may assess a request processing fee of up to $2.00 for any request valuing less than $10.00.
8.6. Closing Accounts; Forfeiture of Funds. If you close your Account, we will return the funds in your Account subject to the terms of Section 8.5. If we unilaterally close or terminate your Account for cause as allowed in these Terms, funds in your Account may be forfeited and not returned to you. If your funds are forfeited by you in accordance with this Section or Sections 2.1, 4, 7.3, 7.4, 8.6 or 8.9 hereof, we may use these funds to defray the costs of administration and enforcement of these Terms, allocate or disburse such amounts to other Services, or donate these funds.
8.7. Refund Policy. Unless otherwise required by law, no refunds are given.
8.8. Prize and Gifts. If you are eligible to receive a Prize and Gifts, we may require that you provide us with proof that you are, or were at the time of your participation in the subject Competition, eligible to participate in accordance with these Terms and that your participation was in accordance with these Terms. If you do not provide us with such proof to our reasonable satisfaction, then you will not receive the awarded Prize and Gifts. If you receive a Prize and Gifts in error, we may reverse or require return of the Prize and Gifts. You agree to cooperate with us in our efforts to do this. We may also reduce payment to you without notice to adjust for any previous overpayment.
8.9. Credit Card/PayPal Use. When you pay for any charges by credit card, you represent to us that you are the authorized user of such credit card. You must promptly notify us of any changes to your credit card account number, its expiration date and/or your billing address, or if your credit card expires or is canceled for any reason. We are not liable for any loss caused by any unauthorized use of your credit card or other method of payment by a third party (such as PayPal) in connection with the Services. Any attempt to defraud through the use of credit cards or other methods of payment, regardless of the outcome, or any failure by you to honor legitimate charges or requests for payment, will result in immediate termination of your Account, forfeiture of awarded Prize and Gifts, and pursuit of civil litigation and/or criminal prosecution.
8.10. Taxes. If you are a U.S. resident, we may send you an IRS Form W-9 and 1099-MISC or other appropriate form if your total awarded Prize and Gifts equal or exceed a value of $600 or more in any given calendar year. Depending on the state in which you reside, we may also send you additional federal or state tax forms. Without limiting the foregoing, we may withhold from your existing Account balance and/or from future awarded Prize and Gifts any amount required to be withheld by Applicable Laws, including amounts due in connection with your failure to complete relevant tax documentation, but you remain solely responsible for paying all federal, state and other taxes in accordance with all Applicable Laws.
9. COPYRIGHT COMPLAINTS
We respect the intellectual property of others. If you believe that your work has been copied in a way that constitutes copyright infringement, please send us an email at support@Play Tournament Games.com.
10. PROPRIETARY RIGHTS
10.1. Your Content. Subject to these Terms, you grant to us a worldwide, perpetual, unrestricted, royalty-free license to use, copy, modify, distribute, publish, perform, transmit, and display any and all communications, materials, content and information that you submit to us, whether directly or through the Website, Services or Software ("Content"), and waive any moral rights you may have in Content. Subject to these Terms, any communication or material you transmit to us, including any data, questions, comments, suggestions, or the like, will be treated by us as non-confidential and non-proprietary. Subject to these Terms, we may use Content for any purpose, without any compensation, accounting or other liability or obligation to you. If you use or share Content in a way that infringes others' copyrights, trademarks, other intellectual property rights, or privacy rights, you are breaching these Terms. You represent and warrant to us that for the duration of these Terms you have (and will have) all the rights necessary for the Content you upload or share on the services and that the use of the Content, as contemplated in this Section will not violate any Applicable Laws. If your Account is cancelled or terminated, we may permanently delete your Content from our servers and we have no obligation to return Content to you.
10.2. Software License. Subject to these Terms, we grant to you a personal, nonexclusive, limited, non-transferable, non-assignable, non-sublicensable, limited license to install and run the Software, in object code format only, on a Device owned or controlled by you, solely for the purpose of accessing and using the Services in accordance with these Terms, and solely for so long as your Account is open. You acknowledge that you are receiving licensed rights only. You may not network the Software among devices. You may not directly or indirectly, or authorize any person or entity to: (i) reverse engineer, decompile, disassemble, re-engineer or otherwise create or attempt to create or permit, allow, or assist others to create the source code of the Software, or its structural framework; (ii) create derivative works of the Software; (iii) use the Software in whole or in part for any purpose except as expressly provided herein; or (iv) disable or circumvent any access control or related device, process or procedure established with respect to the Software. You acknowledge that you have access to sufficient information such that you do not need to reverse engineer the Software in any way to permit other products or information to interoperate with the Software. You are responsible for all use of the Software that is under your possession or control.
10.3. Digital Assets. Some Services and Software may allow you to create digital objects, such as avatars. Such digital objects, in addition to any digital or virtual objects or assets we assign to your Account, such as "Z", virtual trophies or virtual goods, are collectively referred to as "Digital Assets". You acknowledge that because all Digital Assets are created through the Software and/or Services, we solely and exclusively own all Digital Assets. To the extent we do not automatically own any Digital Asset, you hereby irrevocably, expressly and automatically assign to us, in perpetuity, all right, title and interest in and to such Digital Assets, including, without limitation, all copyrights, patent rights, trade secrets, trademarks, moral rights and all other applicable proprietary and intellectual property rights throughout the world. If you have any rights to Digital Assets that cannot (as a matter of law) be assigned to us in accordance with the foregoing, you unconditionally and irrevocably: (i) waive the enforcement of such rights against us; and (ii) grant to us an exclusive, irrevocable, perpetual, worldwide, royalty-free license (a) to reproduce, create derivative works of, distribute, publicly perform, publicly display, digitally perform, and otherwise use and exploit such Digital Assets, (b) to use, make, have made, sell, offer to sell, import, and otherwise exploit any product or service based on, embodying, incorporating, or derived from Digital Assets, and (c) to exercise any and all other present or future rights not yet known in Digital Assets. Subject to these Terms, we grant you a limited license to use Digital Assets through your own Account solely for purposes and in furtherance of your use of Services.
10.4. Ownership. All content of the Website, the Software, Services, and all Tournament Games products and services, and all Tournament Games logos, symbols, expansion names and symbols, play level symbols, trade dress or "look and feel", and all Digital Assets, and all derivative works or modifications of any of the foregoing, and all related and underlying intellectual property (including without limitation patents, trademarks, trade secrets and copyrights), are our sole and exclusive property. We reserve all rights not expressly granted herein. Except as expressly set forth herein: no right or license is granted hereunder, express or implied or by way of estoppel, to any intellectual property rights and your use of Services and/or Software does not convey or imply the right to use the Services or Software in combination with any other information or products.
11. TERM AND TERMINATION
These Terms apply to you and to us from the date that you accept them as provided above, until termination of your Account (whether by deactivation, cancellation, closure, expiration or termination by you or us). You may terminate these Terms at any time and for any reason by going to your Account webpage and following the account closure process. Upon termination of your Account, you must immediately discontinue use of the Services and the Software and your Account and promptly uninstall and delete all copies of the Software. Immediately upon termination of your Account, all license and rights granted to you under these Terms automatically terminate and you shall automatically forfeit the right to use Digital Assets. Your obligation to pay accrued Fees will survive any termination of these Terms. Any and all terms and conditions within these Terms which should, by their nature, survive termination of these Terms, will survive such termination (including without limitation Sections 3.3, 4, 5, 6, 8.6, 8.8, 8.9, 8.10, 10.3 and 12 through 15 (inclusive).
We strive to keep Services up and running; however, all online services suffer occasional disruptions and outages, we are not responsible or liable for any disruption or loss you may suffer as a result. You should regularly backup content that you store on the Services. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, ALL SERVICES, PRODUCTS, INFORMATION AND DATA PROVIDED OR MADE AVAILABLE BY US (INCLUDING WITHOUT LIMITATION DIGITAL ASSETS AND SOFTWARE) ARE "AS IS" AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND YOU ASSUME THE ENTIRE RISK WITH RESPECT THERETO. WE MAKE NO REPRESENTATION, WARRANTY OR GUARANTEE THAT SERVICES, YOUR ACCOUNT, SOFTWARE, THE WEBSITE AND/OR DIGITAL ASSETS WILL BE SECURE, VIRUS-FREE, UNINTERRUPTED OR ERROR-FREE, OR THAT THE SAME WILL FUNCTION PROPERLY IN COMBINATION WITH ANY THIRD PARTY COMPONENT, TECHNOLOGY, HARDWARE, SOFTWARE, OR SYSTEM. We are not responsible or liable for any damage, loss, or injury resulting from, relating to or arising out of (1) use, access, or attempted use or access of Services, Digital Assets, the Software or the Website; (2) downloading any information from the Software, Services or Website; and/or (3) violations of these Terms by other users. We have no responsibility to enforce these terms for the benefit of any user. Some states do not allow the disclaimer of implied warranties; as such the foregoing disclaimer may not apply to you in its entirety.
13. LIMITATIONS OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, NEITHER WE, NOR OUR SUPPLIERS OR LICENSORS, WILL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST DATA OR LOSS OF GOODWILL), OR INCIDENTAL DAMAGES, ARISING OUT OF OR RELATING TO THESE TERMS, THE WEBSITE, OR ANY INFORMATION, SERVICES, PRODUCTS OR SOFTWARE MADE AVAILABLE OR ACCESSIBLE TO YOU, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF WE OR OUR THIRD PARTY SUPPLIERS OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, OUR MAXIMUM LIABILITY TO YOU ARISING OUT OF OR IN ANY WAY CONNECTED TO THESE TERMS SHALL NOT EXCEED U.S. $50.00. THE EXISTENCE OF ONE OR MORE CLAIMS BY YOU WILL NOT INCREASE OUR LIABILITY. IN NO EVENT SHALL OUR SUPPLIERS OR LICENSORS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO OUR PRODUCTS, INFORMATION OR SERVICES. Certain jurisdictions do not allow limitations of liability for incidental, consequential or certain other types of damages; as such, the limitations and exclusions set forth in this Section may not apply to you.
14. DISPUTE RESOLUTION AND ARBITRATION
14.1. General. This Section applies to any Dispute except for Disputes relating to the enforcement or validity of our intellectual property rights. The term "Dispute" means any dispute, action, or other controversy between you and us concerning these Terms, the Services or any product, service or information we make available to you, whether in contract, warranty, tort, statute, regulation, ordinance, or any other legal or equitable basis. "Dispute" will be given the broadest possible meaning allowable under law. In the event of a Dispute, you or we must give the other a Notice of Dispute, which is a written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the Dispute, and the relief requested. You must send any Notice of Dispute by U.S. Mail to Tournament Games Customer Support, 2933 Pleasant Hill Rd, Duluth GA 30096. We will send any Notice of Dispute to you by U.S. Mail to your address if we have it, or otherwise to your email address. You and we will attempt to resolve any Dispute through informal negotiation within sixty (60) days from the date the Notice of Dispute is sent. After sixty (60) days, either you or we may commence arbitration. You may also litigate any Dispute in small claims court in your county of residence or San Francisco, California, if the Dispute meets all requirements to be heard in the small claims court. You may litigate in small claims court whether or not you negotiated informally first.
14.2. Binding arbitration. If you and we do not resolve any Dispute by informal negotiation or in small claims court, any other effort to resolve the Dispute will be conducted exclusively by binding arbitration as described in this Section. Instead, all Disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the Federal Arbitration Act. Any court with jurisdiction over the parties may enforce the arbitrator's award.
14.3. Class action waiver. To the maximum extent permitted under applicable law, any proceedings to resolve or litigate any Dispute in any forum will be conducted solely on an individual basis. Neither you nor we will seek to have any Dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings. If this waiver is found to be illegal or unenforceable as to all or some parts of a Dispute, then it won't apply to those parts. Instead, those parts will be severed and proceed in a court of law, with the remaining parts proceeding in arbitration.
14.4. Arbitration procedure. If you are located within the United States, Canada, the United Kingdom or the European Union, or any of their territories, then any arbitration will be conducted by the American Arbitration Association (the "AAA") under its Commercial Arbitration Rules. You and we each agree to commence arbitration only in Atlanta GA, USA. You may request a telephonic or in-person hearing by following the AAA rules. In a Dispute involving $10,000 or less, any hearing will be telephonic unless the arbitrator finds good cause to hold an in-person hearing instead. If you are located in a country other than listed above, then arbitration will be conducted by the International Court of Arbitration of the International Chamber of Commerce (ICC) pursuant to UNCITRAL rules, and the arbitration shall be conducted in English and the English version of these Terms (and not any translation) shall control, and both parties hereby agree to accord this arbitration agreement the broadest scope admissible under applicable Laws, and that it shall be interpreted in a non-restrictive manner. The arbitrator may award the same damages to you individually as a court could. The arbitrator may award declaratory or injunctive relief only to you individually, and only to the extent required to satisfy your individual claim. These Terms govern to the extent they conflict with the arbitrators' commercial rules. The arbitrator may award compensatory damages, but shall NOT be authorized to award non-economic damages, such as for emotional distress, or pain and suffering or punitive or indirect, incidental or consequential damages. Each party shall bear its own attorneys' fees, cost and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the arbitrator and AAA; however, the arbitrator may award to the prevailing party reimbursement of its reasonable attorneys' fees and costs (including, for example, expert witness fees and travel expenses), and/or the fees and costs of the arbitrator. Within fifteen (15) calendar days after conclusion of the arbitration, the arbitrator shall issue a written award and a written statement of decision describing the material factual findings and conclusions on which the award is based, including the calculation of any damages awarded. Judgment on the award may be entered by any court of competent jurisdiction. The parties waive their right to commence any action or judicial proceeding in connection with a dispute hereunder, except for purposes of: (i) recognition and/or enforcement of the arbitration award or any other decision by the arbitral tribunal, (ii) obliging the other party to participate in the arbitration proceedings, (iii) requesting any type of conservative or interim measure in connection with the dispute prior to the constitution of the arbitral tribunal, (iv) requesting the appearance of witnesses and/or experts, and/or (v) requesting that any information and/or documentation discovery be complied with. By agreeing to this binding arbitration provision, you understand that you are waiving certain rights and protections which may otherwise be available if a claim or Dispute were determined by litigation in court, including, without limitation, the right to seek or obtain certain types of damages precluded by this arbitration provision, the right to a jury trial, certain rights of appeal, the right bring a claim as a class member in any purported class or representative proceeding, and the right to invoke formal rules of procedure and evidence.
14.5. Claims or Disputes must be filed within one year. To the extent permitted by applicable law, any claim or Dispute under these Terms must be filed within one year from the date of the cause of action. If a claim or dispute isn't filed within one year, it's permanently barred.
14.6. Equitable Relief. You agree that we would be irreparably damaged if these Terms were not specifically enforced. Therefore, in addition to any other remedy we may have at law, and notwithstanding our agreement to arbitrate Disputes, we are entitled without bond, other security, or proof of damages, to seek appropriate equitable remedies with respect to your violation of these Terms in any court of competent jurisdiction.
These Terms constitute the entire agreement between you and us pertaining to the subject matter hereof and supersede all prior or other arrangements, understandings, negotiations and discussions, whether oral or written. These Terms cannot be modified by you, and may only be modified by us as provided above. Our failure to require or enforce strict performance by you of any provision of these Terms or to exercise any right under them shall not be construed as a waiver or relinquishment of our right to assert or rely upon any such provision or right in that or any other instance. The provisions of these Terms are intended to be severable. If for any reason any provision of these Terms shall be held invalid or unenforceable in whole or in part by any court of competent jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of the Terms, which shall continue to be in full force and effect. Section titles in these Terms are for reference only and have no legal effect. No right or remedy of ours shall be exclusive of any other, whether at law or in equity, including without limitation damages injunctive relief, attorneys' fees and expenses. We may assign these Terms, in whole or in part, at any time without notice to you. You may not assign these Terms or transfer any rights to use the Services or Software. You consent to our providing you notifications about the Services or information the law requires us to provide via email to the address that you specified when you created your Account. Notices emailed to you will be deemed given and received when the email is sent. If you do not consent to receive notices electronically, you must close your Account. These Terms are solely for your and our benefit, and not for the benefit of any other person, except for our successors and assigns. A printed version of these Terms and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Please send any questions or comments (including all inquiries unrelated to copyright infringement) to: Tournament Games Customer Support. Please print these Terms for your records.
AFFILIATE PROGRAM TERMS OF SERVICE
Tournament Games is happy to be working with you. These Affiliate Terms of Service define the relationship between TOURNAMENT GAMES, Inc. ("Tournament Games") and you, the person registering, on behalf of yourself or the organization or entity that has authorized you to register for the Affiliate program (in either case, "Affiliate") to exchange affiliate services and other valuable consideration with Tournament Games in accordance with these Terms of Service. By clicking "Agreed and Accepted" at the end of this agreement, and in creating an affiliate account, Affiliate agrees that (i) he, she, or it has read, understands, agrees, and accepts these Affiliate Terms of Service and agrees to be bound by these Terms of Service and all terms, policies and guidelines incorporated in these Terms of Service by reference (collectively, the "Agreement"); and (ii) if Affiliate is an individual, is at least eighteen (18) years old. If Affiliate does not agree to be bound by this Agreement, Affiliate must not create an affiliate account, and Affiliate must check the button indicating non-acceptance. The date of Affiliate's acceptance of these Affiliate Terms and Conditions is the "Effective Date" of the Agreement.
Tournament Games may modify the Agreement at any time by posting such modifications to the Tournament Games affiliate website and/or Affiliate's account homepage. Modifications will be effective either upon such posting, or, if Tournament Games informs Affiliate by email, when Tournament Games sends that email. Affiliate's continued use of the Tournament Games affiliate website or Tournament Games Content (defined below) posted to Affiliate's account homepage after Tournament Games has posted a revised Agreement signifies Affiliate's acceptance of such revised Agreement. No amendment or modification of this Agreement will be binding unless in writing and signed by a Tournament Games duly authorized representative or posted to the Tournament Games affiliate website or Affiliate's account homepage by a Tournament Games duly authorized representative.
Tournament Games desires for Affiliate to actively promote and solicit consumer downloads of Tournament Games' suite of games (each a "Tournament Games Game" and collectively, the "Tournament Games Games") through Affiliate URLs in accordance with these Terms of Service.
"Competition" means a multiplayer competition managed by Tournament Games. "Net Revenue" means all Tournament Games Tournament entry fees received by Tournament Games from each Valid Referral that created its initial Tournament Games account within the preceding 12-month period, less deductions for taxes and expenses attributable to Competitions. "Referral Fee" means the amount payable to Affiliate by Tournament Games based on the Commission Schedule set forth in Section 4.2 of these Terms of Service and shall equal a percentage of the Net Revenue of each Valid Referral. "Tournament Games Content" means data, graphics, information, images, links and displays provided by Tournament Games to Affiliate in support of Affiliate's activities hereunder, including without limitation trademarks, logos, service marks and brands. Tournament Games Content may include third party content provided by Tournament Games to Affiliate. "Tournament Games Game" means any mobile game that includes one or more Tournament Games Tournaments. Tournament Games may change or discontinue any Tournament Games Game at any time, in its sole discretion. "Tournament Games Tournament" means a Competition featuring a real money entry fee. Tournament Games may change or discontinue any Tournament Games Tournament at any time, in its sole discretion. "User" means anyone who has registered for an account with Tournament Games, downloaded any software application from Tournament Games or participated in any Competition. Users are subject to the Tournament Games User Terms of Service and may have their account suspended or closed at any time. "Valid Referral" means a User that (i) downloads a Tournament Games Game directly through Affiliate's Tournament Games Content link on an Affiliate URL (ii) creates a new Tournament Games account and (iii) enters a Tournament Games Tournament within thirty (30) days of the account creation.
3. APPOINTMENT AND AUTHORITY OF AFFILIATE.
3.1. Appointment and License. Subject to the terms and conditions of this Agreement, Tournament Games appoints Affiliate as a nonexclusive referral agent for Tournament Games Tournaments, and Affiliate hereby accepts such appointment. Affiliate's sole authority will be to publicly display Tournament Games Content on Affiliate URLs and Tournament Games hereby grants Affiliate a limited, nonexclusive, non-transferable, non-sublicensable, royalty-free license to display Tournament Games Content as necessary to perform the foregoing during the term of this Agreement. Affiliate will use Tournament Games' then-current names for Tournament Games and Tournament Games (but will not represent or imply that it is Tournament Games or is a part of Tournament Games) and will not add to, delete from or modify any Tournament Games Content without Tournament Games' written approval. Affiliate acknowledges and agrees that all of its use of Tournament Games Content, including all goodwill associated therewith, shall inure to the benefit of Tournament Games and its licensors. Tournament Games, on behalf of itself and its licensors, reserves all rights in and to its technology, Tournament Games, Tournament Games Content, Tournament Games Tournaments, and all related intellectual property rights, and except for the express limited license granted to Affiliate in this Section 3.1, Tournament Games does not grant Affiliate any right or license in and to any of the foregoing, whether by implication, estoppel or otherwise.
3.2. Limitations and Obligations. Affiliate has no power or authority, express or implied, to make any commitment or incur any obligations on behalf of Tournament Games. Affiliate shall use reasonable and diligent efforts to actively promote and solicit consumer downloads of Tournament Games through Affiliate URLs on a continuing basis during the term of this Agreement, and shall comply with good business practices and all applicable laws and regulations, and shall conduct its business in a manner that will reflect favorably on the good name and reputation of Tournament Games and it products, and shall not make any representations, promises, warranties or guarantees with respect to Tournament Games products or services that are inconsistent with or supplemental to or greater than any representations and warranties published by Tournament Games. If Tournament Games, in its sole discretion, determines that Affiliate's display of Tournament Games Content on any given Affiliate URL may harm Tournament Games' or its partners' name or reputation, then Tournament Games may instruct Affiliate to remove such Tournament Games Content from such Affiliate URL, and Affiliate shall do so within 24 hours. Affiliate shall not, either individually or on behalf of or through any third party, directly or indirectly, solicit, divert or appropriate or attempt to solicit, divert or appropriate any of Tournament Games' game or tournament developers, publishers or partners for the purpose of competing with Tournament Games, or where such solicitation, diversion or appropriation could have the effect of reducing Tournament Games' relationship with such persons or entities.
4. REFERRAL FEES.
4.1. Referral Fee. During the Term, Tournament Games will pay Affiliate a Referral Fee equal to (i) Net Revenue received by Tournament Games during the applicable calendar month, multiplied by (ii) the percentage set forth in the Commission Schedule below, as determined by the aggregate total of Net Revenue received during such calendar month.
4.2. Commission Schedule. The percentage used to calculate Referral Fees payable to Affiliate on a calendar month basis shall be based upon aggregate Net Revenue received during such calendar month as follows: $0-$2000 20% REFERRAL FEE $2001 - $5000 25% REFERRAL FEE $5001+ 30% REFERRAL FEE
4.3. No Self-Play. Referral Fees and Commission Schedule will not include any user accounts that Tournament Games determines in its sole discretion to have been created directly by Affiliate or otherwise created to falsely generate or enhance Net Revenue. As a member of the Program, Affiliate agrees to refrain from creating player accounts.
4.4. Tracking and Reporting. In order to calculate the Referral Fees, Tournament Games shall refer to Affiliate URLs used by Affiliate. Upon Affiliate's reasonable request, Tournament Games agrees to have good faith discussions as to any dispute with respect to its calculation of Referral Fees.
4.5. Payment Terms. Tournament Games will pay all Referral Fees on a monthly basis within thirty (30) days of the close of each calendar month ("Payment Due Date"). Tournament Games' payment of Referral Fees is subject to all applicable governmental regulations and rulings, including the withholding of any taxes required by law. Affiliate's sole source of compensation for rendering services pursuant to this Agreement is Referral Fees payable pursuant to this Section 4, and Affiliate has no right to receive any other compensation for services rendered hereunder or to receive reimbursement of any expenses or other costs incurred by Affiliate in connection therewith. Tournament Games will accrue and withhold referral fees until the total amount due is at least $25.00.
4.6. Taxes. Affiliate is responsible for paying all taxes, tariffs, duties or assessments arising out of the transactions contemplated under this Agreement (except for taxes imposed on Tournament Games' income).
5. WARRANTIES. Affiliate represents, warrants and covenants to Tournament Games as follows: (i) Affiliate's execution and performance of this Agreement does and will not violate any judgment, writ, injunction, or order of any court, arbitrator, or governmental agency applicable to Affiliate, or conflict with, result in the breach of any provisions of or the termination of, or constitute a default under, any contractual or legal obligation or agreement to which Affiliate is a party or by which Affiliate or any of its assets or properties is or may be bound; (ii) Affiliate has the power and authority to execute, deliver, and perform its obligations under this Agreement in accordance with this Agreement; and (iii) Affiliate shall perform this Agreement only as specified hereunder, only for lawful purposes, conforming to all applicable laws and ethical business practices, and without knowingly violating any intellectual property, publicity, privacy, confidentiality, contractual or other right of any third party.
6. LIMITATIONS ON LIABILITY. TOURNAMENT GAMES WILL NOT BE LIABLE TO AFFILIATE FOR ANY LOST PROFITS, LOST DATA, COST OF SUBSTITUTE PRODUCTS OR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES, HOWEVER CAUSED, AND WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER THEORY OF LIABILITY, REGARDLESS OF WHETHER TOURNAMENT GAMES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TOURNAMENT GAMES' TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED REFERRAL FEES PAYABLE TO AFFILIATE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING AFFILIATES' CAUSE OF ACTION.
7. ACKNOWLEDGMENT. Affiliate acknowledges that (i) it has no expectation and has received no assurances that any investment by Affiliate in the promotion of Tournament Games will be recovered, or that Affiliate will obtain any amount of profits under this Agreement; and (ii) it will not have or acquire by virtue of this Agreement any rights, proprietary or otherwise, in its promotion of Tournament Games, or in any goodwill created by its efforts hereunder. Affiliate acknowledges that the manner and notice of termination set forth in this Agreement is reasonable and that, upon termination, no payment or indemnity for loss of goodwill, loss of profit, investments made, or otherwise shall be due to Affiliate, except for Referral Fees payable in accordance with this Agreement.
8. CONFIDENTIALITY. Affiliate acknowledges that by reason of its relationship to Tournament Games hereunder, Affiliate will have access to certain information and materials concerning Tournament Games' business, plans, customers, technology, services and products that is confidential or proprietary ("Confidential Information"). Affiliate shall not use Confidential Information in any way for its own account or the account of any third party other than to fulfill its obligations under this Agreement, nor disclose Confidential Information to any third party. Affiliate shall take every reasonable precaution to protect the confidentiality of such information, and shall protect Confidential Information with at least as much care as it protects its own most highly sensitive information.
9. TRADEMARKS. At no time during or after the term of this Agreement shall Affiliate challenge or assist others to challenge Tournament Games' trademarks or trade names or the registration thereof or rights thereto, or attempt to register any such trademarks or trade names, or any trademarks, marks or trade names confusingly similar to those of Tournament Games'.
10. TERM AND TERMINATION.
10.1. Term. The term of this Agreement shall commence on the Effective Date and continue until terminated by either party as set forth in this Agreement (the "Term").
10.2. Mutual Termination Rights. Each party may terminate this Agreement immediately upon delivery of written notice to the other party provided in accordance with Section 12 hereof.
10.3. Effect of Termination. The provisions of Sections 4, 5, 6, 8, 10.3, 11 and 12 will survive the termination or expiration of this Agreement for any reason. Upon termination of this Agreement, (i) Affiliate shall return or destroy, and promptly (and in any event within two business days) cease further use of, any and all Tournament Games Content and Confidential Information of Tournament Games, and (ii) Tournament Games shall continue to pay the Referral Fee for the remaining period of such obligation unless Affiliate has breached and not cured such breach of this Agreement as of the termination date or breaches this Section 10.3. All other rights and obligations of the parties will cease upon termination of this Agreement.
11. INDEMNITY. Affiliate will indemnify and hold harmless Tournament Games and its affiliates, licensors, employees, directors, officers, agents and customers from and against any and all claims, damages, losses, costs, liabilities and expenses, including without limitation attorneys' fees, incurred by any of the foregoing persons or entities arising out of or relating to Affiliate's performance and/or breach of this Agreement.
12. MISCELLANEOUS. The relationship of the parties is that of independent contractors, and nothing contained in this Agreement will be construed to give the other party the power to direct or control the day-to-day activities of the other party or its employees. No amendment or modification hereof will be valid or binding unless made in writing and signed by the duly authorized representatives of both parties. If any provision or provisions of this Agreement is held to be unenforceable, this Agreement will continue in full force and effect without said provision and will be interpreted to reflect the original intent of the parties. This Agreement will be governed by the laws of the Commonwealth of Massachusetts, without regard to its conflict of laws principles. The parties consent to the personal and exclusive jurisdiction of courts located in Atlanta GA. Waiver by either party of a breach of any provision of this Agreement or the failure by either party to exercise any right hereunder will not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any other right. The Agreement and all rights and obligations hereunder are not assignable or transferable by Affiliate and any attempt to do so shall be void. Affiliate acknowledges that it has not been induced to enter into this Agreement by any representation or warranty not set forth in this Agreement. This Agreement constitutes the entire agreement and understanding of the parties and terminates and supersedes any and all prior agreements, arrangements and understandings, both oral and written, express or implied, between the parties hereto concerning the subject matter of this Agreement. Any notice required or permitted to be given by either party under this Agreement shall be in writing and shall be personally delivered or sent by a reputable overnight mail service (e.g., Federal Express), or by prepaid first class mail (certified or registered), or email if permitted below. Notices to Tournament Games shall be sent to Tournament Games Inc., Corporation Service Company, and notices to Affiliate shall be sent to the name and physical address provided on the account page of Affiliate's profile or to the email address provided on the Affiliate's account page.