Defy operates and controls the Site from its offices in New York, NY, in the United States of America. We make no representation that the Site is appropriate or available in other locations. Accordingly, those persons accessing the Site from other locations do so on their own initiative and are responsible for compliance with applicable local laws. Software made available from this Site (including without limitation game downloads) is subject to United States export controls. Thus, no software from this Site may be downloaded, exported or re-exported (a) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria, or any other country to which the United States has embargoed goods; or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading any software, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list.
These terms and conditions regarding your use of the Site constitute a legally binding agreement between you and Defy. In this Agreement, the term "Site" includes all websites and web pages within the Site as well as any equivalent, mirror, replacement, substitute or backup websites and web pages that are associated with the Site and also includes all software and Applications (as defined in Section 10 of this Agreement) made available through the Site. Your use of the site constitutes your acknowledgement of, and agreement to, abide by the terms of this Agreement and any additional terms that govern certain products and services, such as subscription services and e-commerce services ("Services"), which will be presented in conjunction with those products and services ("Additional Terms"), including the Shockwave User Submission Agreement (governing your submission of User Material (as such term is defined therein), the Virtual Currency Purchasing Agreement (governing purchases of/with Virtual Currencies), and/or any rules of participation ("Rules") presented with certain activities and services including, but not limited to, contests and sweepstakes, and award programs.
The words "use" and/or "using" in this Agreement mean any time an individual (a "user"), directly or indirectly, with or without the aid of a machine or device, does or attempts to access, interact with, use, display, view, print or copy from the Site, transmit, receive or exchange data or communicate with the Site, or in any way utilizes, benefits, takes advantage of or interacts with any function, Service or feature of the Site, for any purpose whatsoever. This Agreement does not cover your rights or responsibilities with respect to third party content or sites or any links that may direct your browser or your connection to third party sites or pages. This is the entire and exclusive Agreement between you and us regarding your use of the Site and it cannot be modified, except as specifically described below in Section 5.
PASSWORDS ARE ISSUED ON A PERSONAL BASIS. ACCORDINGLY, ALL CONTENT OR INSTRUCTIONS TRANSMITTED BY OR RECEIVED FROM ANYONE PRESENTING YOUR PASSWORD ON THE SITE WILL BE DEEMED BINDING ON YOU. You agree that you are solely responsible and liable for all actions taken via your password, whether or not made with your knowledge or authority. You agree to guard your password carefully, with the full awareness that a failure to keep it secure will enable others to engage in transactions through the Site for which you will be legally responsible.
In consideration of your use of the Site (and/or software or Services purchased through the Site) you agree to provide true, accurate and complete information about yourself as prompted by the Site registration or ordering process, provided that in connection with registration, you do not need to, and should not, use your full or true name for your screen name or username. Additionally, you represent that you are of legal age to form a binding contract and you agree to update information provided in connection with registration or the ordering process in order to maintain its truth, accuracy and completeness.
If you provide information that we believe to be inaccurate, not current, or incomplete, or if you select a username that we in our sole discretion find offensive or inappropriate, we have the right to suspend or terminate your account and refuse any and all current or future use of the Site.
When purchasing game downloads on the Site, you agree to pay us the applicable download charges for your purchase of the game, using a valid charge card or other payment method we may accept in accordance with the billing terms and prices in effect at the time the fee or charge becomes payable. All refund requests for purchased game downloads must be received within 48 hours from the time of purchase. Refund requests past 48 hours from time of purchase will not be honored.
By creating a Site subscription you authorize the Site to automatically bill the charge card you provide each month or on each applicable membership period renewal date, or withdraw funds via electronic transfer from your checking account (depending on what type of charge card you are using), until you cancel the subscription. Payments are billed in advance at the beginning of the applicable month or at the beginning of the applicable subscription period, if not monthly. All payments are completely non-refundable.
When submitting information to purchase a subscription service on this Site, you agree to our credit card authorization policy, in which we issue a small temporary authorization charge to validate your credit card account. This policy helps protect you against credit card fraud and will not result in a charge to your account, though it may temporarily appear as a pending charge on some bank statements.
You are responsible and liable for any fees, including attorney and collection fees, that the Site may incur in its efforts to collect any remaining balances from you. You also agree that you will be billed for and will pay any outstanding commitment remaining on your subscription or other purchase if you cancel or terminate the Service or any portion thereof. You agree to notify us about any billing problems or discrepancies within 90 days after they first appear on your account statement. If you do not bring them to our attention within 90 days, you agree that you waive your right to dispute such problems or discrepancies.
Please see Shockwave's subscription cancellation policy for more information on the cancellation of subscription Services which is incorporated by reference to this Agreement.
We reserve the right to terminate your subscription account and terminate your access to subscription Services if we cannot successfully bill the subscription fee to your charge card on record. Termination of your subscription account may result in loss of any Tokens, Trophies, Virtual Currency or Virtual Content credited to your account.
We provide Rules for participating in certain activities on this Site including, without limitation, contests, sweepstakes and instant win prizes and sometimes in conjunction with third parties. While all users who subscribe to the Shockwave UNLIMITED subscription Service may play games that have prize winnings, only residents of the United States and Canada (except residents of Quebec) will be allowed to win prizes associated with such games and sweepstakes. For more information on Shockwave UNLIMITED eligibility to win Shockwave UNLIMITED sweepstakes and instant win games please the Rules.
We may modify the terms under which we provide you with subscription Services including but not limited to the price, content or nature of a subscription Service, upon notice to you. In the event we modify the price or materially degrade the features or nature of a subscription Service, you may terminate such Service. We may terminate this Agreement and any Service at any time upon notice to you, provided that you will be entitled to receive the applicable Service for any period for which you have already paid, or a pro-rata refund, at our sole discretion. We may provide notice by e-mail. This Agreement will automatically terminate if you fail to comply with any term. Your obligation to pay accrued charges and fees shall survive any termination of this Agreement.
The contents of this Site, including all Site software, design, text, images, photographs, illustrations, audio and video material, artwork, graphic material, databases, Applications, proprietary information and all copyrightable or otherwise legally protectable elements of the Site, including, without limitation, the selection, sequence and 'look and feel' and arrangement of items, and all trademarks, Service marks and trade names (individually and/or collectively, "Material"), are the property of Defy, its Affiliates, and any of their successors and assigns, and any of their respective licensors, Advertisers (as defined below), suppliers, and operational service providers and are legally protected, without limitation, under U.S. Federal and State, as well as applicable foreign laws, regulations and treaties. Unless the context clearly requires otherwise or we explicitly say so in writing, the term "Site" includes "Material" as well. We require users to respect our copyrights, trademarks, and other intellectual property rights. We likewise respect the intellectual property of others. On notice, we will act expeditiously to remove content on the Site that infringes the copyright rights of others and will disable the access to the Site and its Services of anyone who uses them to repeatedly to infringe the intellectual property rights of others.
We take protection of copyrights, both our own and others, very seriously. We therefore employ multiple measures to prevent copyright infringement over this Site and to promptly end any infringement that might occur. If you believe that the Site contains elements that infringe your copyrights in your work, please follow the procedures set forth in our Copyright Compliance Policy.
EXCEPT AS EXPRESSLY PROVIDED HEREIN BY THESE TERMS, NEITHER DEFY, ITS AFFILIATES, NOR ANY THIRD PARTY HAS CONFERRED UPON YOU BY IMPLICATION, ESTOPPEL OR OTHERWISE, ANY LICENSE OR RIGHT UNDER ANY PATENT, TRADEMARK, COPYRIGHT OR OTHER PROPRIETARY RIGHTS TO USE THE SITE OR ANY APPLICATIONS OFFERED ON THE SITE. EXCEPT FOR USER MATERIALS SUBMITTED BY YOU, NO OWNERSHIP RIGHTS ARE OR WILL BE ASSIGNED TO YOU.
From time to time, during your use of the Site, you may communicate with, receive communications from, be re-directed to, interact with, or participate in or use the services or obtain goods and services of or from, third parties such as our advertisers, sponsors, or promotional partners (collectively, the "Advertisers"). All such communication, interaction and participation is strictly and solely between you and such Advertisers and we are not responsible or liable to you in any way in connection with these activities or transactions (including, without limitation, any representations, warranties, covenants, contracts or other terms or conditions that may exist between you and the Advertiser or any goods or services you may purchase or obtain from any Advertiser).
All transactions with or through the Site or Defy may, at our option, be conducted and executed electronically. We may keep records of any type of communication conducted via the Site. All electronic records are deemed sent when they are properly addressed to the recipient and the record enters an information processing system outside the control of the sender or the record enters a region of an information processing system under the recipient's control. All electronic records are received when the record enters an information processing system that the recipient has designated or uses for the purpose of receiving electronic records or information of the type sent, in a form capable of being processed by that system, and from which the recipient is able to retrieve the electronic record.
Your use of the Site is subject to all applicable local, state, national laws and regulations and, in some cases, international treaties. You are solely responsible for all activities, acts and omissions that occur in, from, through or under your user name or password. You shall not use, allow, or enable others to use the Site, or knowingly condone use of this Site by others, in any manner that is, attempts to, or is likely to:
In addition, if you choose to use the embedded link function, you agree not to embed a link on or within any illegal site, including but not limited to any site that is indecent, obscene or pornographic or that is determined to be otherwise objectionable in our sole and absolute discretion. We reserve the right to disable embedded links at any time without notice.
Defy hereby grants you a personal limited license to Use the Site only for the purposes of accessing, viewing or playing content, posting or submitting User Material (as defined in the Shockwave User Material Submission Agreement), using the embedded link function, placing product orders or for accessing information, Applications (as defined herein) and Services solely for your noncommercial, non-exclusive, non-assignable, non-transferable and limited personal use and for no other purposes. You must not alter, delete or conceal any copyright or other notices contained on the Site, including notices on any Material you download, transmit, display, print or reproduce from the Site. You shall not, nor will you allow any third party (whether or not for your benefit) to reproduce, modify, create derivative works from, display, perform, publish, distribute, disseminate, broadcast or circulate to any third party (including, without limitation, on or via a third party website), or otherwise use, any Material without the express prior written consent of Defy. Any unauthorized or prohibited use of any Material may subject you to civil liability, criminal prosecution, or both, under applicable federal, state and local laws.
Any rights not expressly granted to you herein are reserved to Defy. Minors should seek consent of his or her legal guardian before using this Site. Unless you have received specific written permission from Defy, you may not (a) "frame" or otherwise impose editorial comment, commercial material or any information or content on, or in proximity to, content displayed on the Site; (b) alter or modify any content on the Site; or (c) deep link or gain unauthorized access to any portion of the Site. Without limiting other restrictions, you agree not to reproduce, transmit, sell, or otherwise exploit the Site and/or Applications for any commercial purpose. In the event of non-compliance with these terms, we reserve the right to suspend or deny, in our sole discretion, your access to all or any portion of the Site.
We may offer you the ability to use and sometimes download certain applications, including without limitation, instant messages, chat areas, bulletin boards, e-mail functions, software, video games, multi-player games, and software that allows you to create content such as greetings, puzzles, photographs, musical compositions and mixes, music videos and cartoons ("Applications"). Without limiting your obligations and restrictions described in Section 9 above, your limited license to use the Applications is subject to the following conditions:
12. WIRELESS MARKETING SERVICES AND PROMOTIONAL OPPORTUNITIES
Under no circumstances will the Site, Defy, or any Affiliates be responsible for any wireless email or text messaging charges incurred by a user or by a person that has access to a user's wireless device, telephone number, or email address.
You understand, acknowledge and agree that we may, at our sole discretion and without liability to any user, terminate its offer of any specific wireless marketing service or all wireless marketing services at any time without advance notice. We may provide notice of such terminations or changes on this Site.
Your comments, suggestions and information are important to us. Portions of this Site may provide you and other users an opportunity to participate in instant messaging, forum services, blogs, web communities and other message and communication facilities ("Communities") and may provide you the opportunity, through such Communities or otherwise, to submit, post, display, transmit and/or exchange (a) information, ideas, opinions, messages or other information ("Post" or "Postings") and (b) User Material (as defined in the Shockwave User Submission Agreement), your submission of which is also governed by the terms and conditions therein, and considered a Posting for purposes of this Agreement. You understand, acknowledge and agree that such Postings are the sole responsibility of the person from which such Postings originated. This means that you are solely and entirely responsible for the consequences of all Postings that you upload, post, email, transmit or otherwise make available via the Site. Postings do not reflect the views of the Site, Defy, or the Affiliates. We reserve the right to monitor, edit or screen any Postings. If we determine, in our sole discretion, that any Posting does or may violate any of the terms of this Agreement, we reserve the right, at any time and without limiting any and all other rights we may have under this Agreement, at law or in equity, to: (a) refuse to allow you to Post; (b) remove and delete Postings; (c) revoke your right to use the Site; (d) disclose any information that we deem necessary to ensure your compliance with all applicable laws and with this Agreement; and/or (e) use any technological, legal, operational or other means available to us to enforce the provisions of this Agreement, including, without limitation, blocking specific IP addresses or deactivating your registration on the Site.
If a Posting originates from you or your account, you hereby agree that: (a) you specifically authorize the Site, Defy, and its Affiliates to use for free such Posting in whole or in part, throughout the universe, in perpetuity in or on any and all media, now known or hereafter devised, and alone or together or as part of other information, content and/or material of any kind or nature; (b) you represent and warrant that (i) the Posting is original to you and/or fully cleared for use as contemplated herein, (ii) the Posting does and will not, in any way, violate or breach any of the terms of this Agreement, (iii) the Posting does not contain libelous, tortious, or otherwise unlawful information, infringe or violate any copyright or other right, or contain any matter the publication or sale of which will violate any federal or state statute or regulation, (iv) the Posting is not obscene or in any other manner unlawful, (v) the Posting shall not be injurious to the health of any user, and (vi) we shall not be required to pay or incur any sums to any person or entity as a result of our use or exploitation of the Posting; and (c) if your Posting incorporates the name, logo, brand, service or trademark, voice, likeness or image of any person, firm or enterprise, you specifically represent and warrant that (i) you have the right to grant the Site, Defy, and its Affiliates the right to use all such Postings as described above, (ii) the Posting was produced in compliance with all applicable laws and regulations.
You understand, acknowledge and agree that we have the right to delete, re-format and/or change your Postings in any manner that we may determine (although you will not be responsible for any such changes made). The amount of storage space on the Site per user is limited. Some Postings may not be processed due to space constraints or outbound message limitations. You understand, acknowledge and agree that we assume no responsibility for deletion of Postings or any failure to store, receive or deliver Postings in a timely manner or any other matter relating to Postings. Posting is for noncommercial purposes only and you may not Post in any manner which does or is intended to promote or generate revenue for any business enterprise or commercial activity.
If you believe that any content on the Site (including, without limitation, User Material) violates any of the terms of this Agreement (except for any notices covered by the Copyright Compliance Policy), please click here to send us a message about it (please refer to our Copyright Compliance Policy for any notices covered by the Copyright Compliance Policy). We cannot guarantee that we will respond to your message and we reserve the right to take or refrain from taking any or all steps available to us once we receive any such message.
We take great care and pride in creating this Site. We are always on the lookout for technical glitches that effect how the Site works. When we find them on our end, we will fix them. Unfortunately, your home computer may cause some glitches that effect how you see our Site -- and that is beyond our control.
If you experience any unusual behavior, content or ads on the Site, it may be the result of Malware on your computer. Malware -- short for MALicious softWARE -- is a term used to broadly classify a form of software which is installed in a computer system with malicious intentions, usually without the owner's knowledge or permission. Malware includes computer viruses, key loggers, malicious active content, rogue programs and dialers, among others. While we continuously work closely with our partners to ensure that everything on the Site is working properly, sometimes Malware programs on your personal computer may interfere with your experience on our Site and on other sites that you visit.
We suggest that you take some of the following actions which may help to clean your computer and which could prevent future installations of Malware.
Please note that we cannot be responsible for the effects of any third-party software including Malware on your computer system. Please make sure to carefully read the Help or Customer Support areas of any software download site.
If you do discover any Malware on your system, we also suggest you speak with a qualified computer technician. If, after taking the above actions, you are still experiencing any problems, please feel free to contact us.
The Site may offer users points ("Tokens") for participating in certain Site activities such as achieving certain game scores, playing certain games, etc. The Site may also offer to users who have completed or excelled at specified Site activities or games trophies, virtual awards or achievement symbols ("Trophies"). Trophies have no monetary value and can only be used to participate in activities within the Site. As a guest to the Site you do not own your account, activities, Tokens or Trophies; they are for you to only use and play with while on the Site. Except as permitted by the functionality of this Site, you can't sell Tokens or Trophies or give them to anyone, trade them for anything (including Tokens), or pretend you made them. This means that you cannot try to make money off the Tokens, Trophies, or virtual items in your account or even sell the time it took you to collect such items and Tokens. If we find someone selling Tokens, Trophies, or other virtual items, we will freeze every account controlled by that user and every account of the user who purchased such Tokens, Trophies or virtual items.
You acknowledge and agree that you are not permitted under any circumstances or for any reason to cheat or utilize third-party games or code in order to win at, or gain Tokens or Trophies from any game or activity on the Site. You agree not to design, disseminate or use any third party programs designed to change the game play or Token or Trophy providing activities on the site including, but without limitations, programs such as autobuyers, flash game cheats, autofreshers, and snipers. Any use, dissemination or design of such programs is a breach of this Agreement and you will be responsible for any resulting damages to the Site. You agree that if you disseminate, design or assist in the design of a third party program that changes the game play or activities on the Site thus affecting the accumulation of Tokens or Trophies, you will pay Defy liquidated damages in the sum of Fifty Thousand Dollars for each such program. You agree that if you use such a program on the Site, you will pay Defy liquidated damages in the sum of Five Hundred Dollars for each time you use a program.
THIS SITE, AND ALL MATERIALS, PRODUCTS, APPLICATIONS, AND POSTINGS ARE MADE AVAILABLE ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, OR ANY GUARANTY OR ASSURANCE THE SITE WILL BE AVAILABLE FOR USE, OR THAT ALL PRODUCTS, FEATURES, FUNCTIONS OR OPERATIONS WILL BE AVAILABLE OR PERFORM AS DESCRIBED. Without limiting the foregoing, we are not responsible or liable for any malicious code, delays, inaccuracies, errors, or omissions arising out of your use of the Site. You understand, acknowledge and agree that you are assuming the entire risk as to the quality, accuracy, performance, timeliness, adequacy, completeness, correctness, authenticity, security and validity of any and all features and functions of the Site, including, without limitation, Postings and Materials associated with your use of the Site.
EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, WE EXPRESSLY DISCLAIM ANY AND ALL LIABILITY ARISING FROM OR RELATING IN ANY WAY TO ANY AND ALL PRODUCTS, APPLICATIONS, OR SERVICES. EXCEPT AS SPECIFICALLY MADE IN WRITING. WE EXPRESSLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES OF ANY AND EVERY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO ANY AND ALL PRODUCTS, APPLICATIONS, OR SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE.
YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, THIS SITE, DEFY, ANY OF ITS AFFILIATES, OR THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS, OPERATIONAL SERVICE PROVIDERS, ADVERTISERS, OR SUPPLIERS, SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE, OF ANY KIND, DIRECT OR INDIRECT, IN CONNECTION WITH OR ARISING FROM USE OF THE SITE OR FROM THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, COMPENSATORY, CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES.
YOU AGREE THAT YOUR SOLE REMEDY FOR ANY BREACH OF THESE TERMS BY DEFY OR ANY OF ITS AFFILIATES OR AGENTS SHALL BE, AT OUR OPTION, (1) SUBSTITUTION OR REPLACEMENT OF ALL OR PART OF THE APPLICATION, SERVICE, OR PRODUCT THAT GIVES RISE TO DAMAGES INCURRED BY YOU IN REASONABLE RELIANCE ON US; OR (2) REFUND OF THE AMOUNT THAT YOU PAID TO US. YOU AGREE THAT THE DAMAGE EXCLUSIONS IN THESE TERMS SHALL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
YOU ASSUME ALL RISKS THAT THE SITE, CONTENT, USER MATERIALS, APPLICATIONS, AND RELATED INFORMATION ARE SUITABLE OR ACCURATE FOR YOUR NEEDS AND WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE. ANY APPLICATIONS DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE SITE ARE AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER OR LOSS OF DATA. BY PARTICIPATING IN MULTI-PLAYER GAMES OR VISITING CHAT ROOMS YOU MAY BE EXPOSED TO RUDE, CRUDE, INDECENT, OR OTHER OFFENSIVE LANGUAGE OR REFERENCES. YOU AGREE THAT DEFY, OR ANY OF ITS AFFILIATES OR AGENTS SHALL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE OF ANY SORT RELATING TO YOUR DEALINGS WITH ANY THIRD PARTY ADVERTISER OR CONTENT PROVIDER ON THE SITE.
You agree to indemnify, defend and hold the Site, Defy, its Affiliates, or any of their successors and assigns, and any of their respective officers, directors, employees, agents, representatives, licensors, Advertisers, suppliers, and operational service providers harmless from and against any and all claims, actions, losses, expenses, damages and costs (including reasonable attorneys' fees), resulting from any breach or violation of this Agreement by you, or public posting of your Postings.
This Site is controlled and operated by Defy from its offices within New York, United States of America. Defy makes no representation that the Site, Applications, or related information offered by Defy are appropriate or available in other locations. Those who choose to access the Site from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.
This Agreement and your use of the Site is governed by, construed and enforced in accordance with the internal substantive laws of the State of New York (notwithstanding the State's conflict of laws provisions) applicable to contracts made, executed and wholly performed in New York, and, for the purposes of any and all legal or equitable actions, you specifically agree and submit to the exclusive jurisdiction and venue of the State and Federal Courts situated in the State and County of New York, NY and agree you will not object to such jurisdiction or venue on the grounds of lack of personal jurisdiction, forum non conveniens or otherwise. To the extent it may be applicable, you agree to opt out from and expressly exclude any applicability of the Uniform Computer Information Transactions Act. IN ANY ACTION OR PROCEEDING COMMENCED TO ENFORCE ANY RIGHT OR OBLIGATION OF THE PARTIES UNDER THIS AGREEMENT, YOUR USE OF THE SITE OR WITH RESPECT TO THE SUBJECT MATTER HEREOF, YOU HEREBY WAIVE ANY RIGHT YOU MAY NOW HAVE OR HEREAFTER POSSESS TO A TRIAL BY JURY.
Except as expressly stated otherwise, any notices required or allowed under this Agreement shall be given to Defy by postal mail to: Defy Media, LLC, Attn: Legal Department, 498 7th Avenue, 19th Floor, New York, NY 10018, or as to a successor address that Defy makes available on the Site or through other reasonable manner.
Copyright © - Defy Media, LLC. All rights reserved.