(1) YOU MUST AGREE TO THESE TERMS OF USE BEFORE USING THE BLUE ISLE SERVICES, INCLUDING BLUE ISLE’S GAMES
These Terms of Use consist of the terms, conditions, disclaimers, notices and policies (collectively the “Terms”) that apply to your access and use of the websites of Blue Isle Studios Inc., an Ontario Corporation (“Blue Isle”, “we”, “our” and “us”), and any and all games, products, services and applications provided by Blue Isle on any platform (collectively, the “Services”). These Terms constitute a binding contract between you and Blue Isle that provides for important rights and obligations; for clarity, these Terms are an agreement between you and Blue Isle only, and not between you and any of Blue Isle’s licensors, including without limitation Microsoft, Sony, Valve or any of their affiliates. These Terms include the provisions in this document, as well as those in Blue Isle’s Privacy Policy. By accessing, browsing, and/or using the Services, you represent to Blue Isle that you have read, understood and agree to be bound by these Terms and all applicable local, state, national and international laws and conventions, including without limitation all intellectual property laws. Blue Isle reserves the right, at its sole and absolute discretion, to deny any user access to any Services, without notice. If you violate any of the Terms, Blue Isle may, at its option, give you a warning notice of violation or terminate your account immediately for violation of the Terms. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES.
NOTE: THESE TERMS CONTAIN A BINDING ARBITRATION AND CLASS ACTION WAIVER PROVISION IN SECTION 17 THAT MAY AFFECT YOUR RIGHTS UNDER THESE TERMS WITH RESPECT TO ANY “DISPUTE” (AS DEFINED BELOW) BETWEEN YOU AND BLUE ISLE. YOU HAVE A RIGHT TO OPT OUT OF THE BINDING ARBITRATION AND CLASS ACTION WAIVER PROVISIONS AS DESCRIBED IN SECTION 17.
(2) ELIGIBILITY TO ACCEPT TERMS AND USE SERVICES; RESTRICTIONS
By your use of the Services, you agree that you are either 18 years of age or older or possess legal parental or guardian consent to use the Services, and that you are fully able and competent to understand and accept these Terms as a binding contract and to abide by all Terms. If you are under 18, your parent or guardian agrees to these Terms on your behalf and is responsible and liable for your compliance with the Terms. You will only use the Services for your own internal, personal, non-commercial use, and not on behalf of or for the benefit of any third party and only in a manner that complies with all laws that apply to you.
(3) BLUE ISLE’S RIGHT TO MODIFY TERMS
We are constantly trying to improve our Services, so these Terms may need to change along with the Services. Blue Isle may modify these Terms at any time, with or without notice to you, by posting the modified Terms on our websites. Your continued use of the Services after such modification shall be deemed to be your acceptance of any such modification. Any such modification will only apply to matters and events that occur following the date of modification. You may not modify these Terms without the prior written authorization of an officer of Blue Isle. It is your responsibility to check these Terms regularly to determine whether they have been modified. IF YOU DO NOT AGREE TO ANY MODIFICATION OF THESE SERVICES YOU MUST IMMEDIATELY CEASE USE OF THE SERVICES.
(4) POLICY ON PRIVACY
These Terms include the Privacy Policy relating to the collection, use and disclosure of your information. Please read the Privacy Policy. Note that, as described in the Privacy Policy, we do not knowingly collect personally identifiable information from children under 13 (or older, if applicable law provides for different protections).
(5) BLUE ISLE’S OWNERSHIP OF THE SERVICES AND PROPRIETARY MATERIALS
The Services contain copyrighted material, technology, trademarks, service marks, trade secrets and other proprietary information, which may include computer code, text, data, video, images, illustrations, animations, sounds, musical compositions and recordings, audiovisual effects, color schemes, business methods and methods of operation, concepts, ideas, know-how, moral rights, and any related documentation (collectively the “Proprietary Material”). All intellectual property rights to the Proprietary Material, including without limitation patent, copyright, trademark and trade secret rights, are owned or licensed by Blue Isle. You: (a) agree not to copy, download, reproduce, republish, upload, post, transmit, perform, display, distribute or sell, or in any other way exploit the Proprietary Material, or to participate with or to encourage others to engage in such acts, without the prior written consent of Blue Isle; and (b) may not reverse engineer, disassemble, decompile, or translate any computer software programs that comprise Proprietary Material, or otherwise attempt to derive the source code of such programs, except that the foregoing restrictions on copying or reverse engineering does not apply to the extent prohibited by applicable law. No Proprietary Material, or any portion thereof, may be modified or used for any purpose other than as expressly authorized in these Terms. The Proprietary Material may include materials licensed by Blue Isle from third parties, and the licensors of those materials may enforce their rights in the event of any violation of this Agreement. ALL RIGHTS NOT EXPRESSLY GRANTED TO YOU IN THIS AGREEMENT ARE RESERVED BY BLUE ISLE AND ITS LICENSORS OR SUPPLIERS.
(6) OWNERSHIP OF IDEAS, INVENTIONS AND USER SUBMISSIONS, INCLUDING USER-GENERATED CONTENT
The Services provide you with access to a variety of resources, materials and downloads, and may allow you to access content made available by other users of the Services. Such content may include, without limitation, game levels, content creation tools, audio, video, film, music, text, communications, software, graphics, images, and information. All such content made available by you or by other users of the Services is referred to in this Agreement as “User-Generated Content.” As between Blue Isle and you, you own the copyright in any User-Generated Content that is exclusively created by you. You expressly acknowledge and agree that any User-Generated Content that you make available through the Services may be made freely available by Blue Isle to others, including without limitation for download by others.
You further acknowledge and agree that this permission is made and granted by you in consideration of your use of the Services, and that this permission constitutes (and you hereby grant) a world-wide, non-exclusive, perpetual, royalty-free, irrevocable and transferable license to Blue Isle to use, copy, perform, display and distribute such User-Generated Content, and to grant and authorize sublicenses of such User-Generated Content to others.
From time to time you may disclose, submit, or offer to Blue Isle comments, feedback, suggestions, gameplay features, level designs, and other submissions (“User Ideas”). You hereby grant a world-wide, non-exclusive, perpetual, royalty-free, irrevocable and transferable license to Blue Isle to use, copy, perform, display and distribute such User Ideas, and to grant and authorize sublicenses of such User Ideas to others. Unless otherwise prohibited by law, Blue Isle may use, sell, exploit, or create derivative works from these User Ideas and, further, Blue Isle may disclose these User Ideas to third parties or the general public, without compensation to you.
YOU ACKNOWLEDGE THAT USER IDEAS AND USER-GENERATED CONTENT ARE PROVIDED BY YOU ON A COMPLETELY VOLUNTARY BASIS. SHOULD YOU NOT WISH TO HAVE YOUR USER IDEAS AND USER-GENERATED CONTENT SUBJECT TO THE LICENSES SET FORTH ABOVE, YOU MAY CHOOSE NOT TO SHARE THEM WITH BLUE ISLE ON THE SERVICES.
(7) END USER LICENSE
ALL BLUE ISLE SOFTWARE IS LICENSED, NOT SOLD. Such software includes the Blue Isle game software that Blue Isle provides to you for download and installation (“Games”).
Subject to your compliance with these Terms, Blue Isle hereby grants you a non-exclusive, non-transferable, limited and revocable right and license to install and use one (1) copy of each Game solely and exclusively for your personal and non-commercial use for gameplay on a single game system (e.g., computer, mobile device, or gaming console) that you own or control. For clarity, the foregoing does not prohibit you from installing and using an additional copy of each Game on a different game system. These Terms shall also apply to any patches or updates you may obtain for the Games. DUPLICATION, COPYING OR ANY FORM OF REPRODUCTION OF THE GAMES OR RELATED INFORMATION, MATERIALS OR OTHER CONTENT TO ANY OTHER SERVER OR LOCATION FOR THE PURPOSES OF DUPLICATION, COPYING OR ANY OTHER FORM OF REPRODUCTION IS, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, EXPRESSLY AND EXPLICITLY PROHIBITED. Your use of any of the Games is governed by Blue Isle’s End User License Agreement.
(8) PROHIBITED USER CONDUCT
You are solely responsible and liable for any User-Generated Content that you upload, post, input, publish or otherwise distribute using the Services. As a condition of your use of the Services, you agree not to use the Services for any unlawful or prohibited purpose.
You further represent, warrant, and agree that you will not, under any circumstances, contribute any User-Generated Content or otherwise use the Services or interact with the Services in a manner that:
(a) constitutes or includes any illegal or unauthorized copy, in whole or in part, of another person’s copyrighted or copyrightable work, discloses trade secrets without authorization, or otherwise violates the proprietary rights of a third party or Blue Isle;
(b) misrepresents the source or identity of any material;
(c) is unlawful, vulgar, obscene, defamatory, libelous, threatening, abusive, harassing, harmful, “toxic,” or promotes racism, bigotry, hatred or physical harm of any kind against any individual or group, or encourages any other conduct that would be considered a criminal offense, create civil liability, or is otherwise offensive or inappropriate or objectionable;
(d) violates the rights of privacy or publicity of any person;
(e) is false or deceptive;
(f) displays pornographic or sexually explicit material of any kind;
(g) includes material that exploits people in a sexual or violent manner;
(h) posts, uploads, transmits, or streams any unauthorized or unsolicited material that disrupts the normal flow of chat or other activities in the Services, including spam, junk mail, excessive mail, or chain letters;
(i) is an advertisement or solicitation to sell a product or service to users of the Services, or constitutes any other commercial use of the Services, without the prior written consent of Blue Isle;
(j) is unlawful under the laws of Canada or any individual state or locality, the laws of any foreign or local jurisdiction, or any international treaty or convention or that is prohibited by any applicable government regulation;
(k) interferes with the proper functioning of the Services, or violates any other of the Terms;
(l) sells, grants a security interest in, or transfers reproductions of all or any portion of the Services to other parties in any way not expressly authorized herein, or that rents, leases or licenses all or any portion of the Services to others;
(m) exploits the Services or any of its parts for any commercial purpose whatsoever without the express prior written authorization of Blue Isle;
(n) hosts, provides or develops services for or using the Services, or intercepts, emulates, disrupts, or redirects the communication protocols, hardware, software, network, or system used by Blue Isle in any way, including without limitation through protocol emulation, tunneling, packet sniffing, modifying or adding components to the Services, use of a utility program or any other techniques now know or hereafter developed, for any purpose, including without limitation unauthorized access in any form over the Internet;
(o) facilitates, creates or maintains any unauthorized connection to the Services, or any portion thereof, including without limitation any connection to any unauthorized server that emulates, or attempts to emulate, hacks, or reverse-engineers the Services. All connections to the Services, or any portion thereof, may only be made through methods and means expressly approved by Blue Isle. Under no circumstances may you connect, or create tools that allow you or others to connect to the Services, or any portion thereof, other than those expressly provided by Blue Isle;
(p) develops or allows any viruses, malware, adware, spyware, Trojan Horses, cancelbots, other automated “bots”, “auto players”, cheat utilities, spoofers, keyloggers, or other circumvention devices to be present on any machine used to access the Services; and/or to attempts to upload/utilize such devices against the Services;
(q) is related to any games of chance, gambling, sweepstakes, lotteries, contests, surveys, chain letters, pyramid schemes or other similar services, whether or not they are used for commercial gain;
(r) collects, harvests, scrapes or captures any other user’s information, email addresses or other personal data of any other users to send unsolicited emails or any other communication, whether or not this is done for commercial gain;
(s) makes false reports of user abuse to Blue Isle or affiliated companies and partners;
(t) impersonates any person, including an employee of Blue Isle or any third party; or
(u) attempts in any manner to obtain the password, account, or other security information from any other user.
You should not post any User-Generated Content if you are in doubt about its legality or its prohibition by the Terms. You acknowledge that Blue Isle is a service provider that may allow its users to interact online regarding topics and content self-chosen by the users. Blue Isle does not endorse any User-Generated Content or any opinion, recommendation or advice that may be expressed. Blue Isle shall have no obligation to monitor any User-Generated Content. Nonetheless, Blue Isle and its agents shall have and reserve the right to monitor any User-Generated Content from time to time for any lawful purpose. Blue Isle may, without notice to you, remove or block any User-Generated Content, including disabling access to such User-Generated Content. Blue Isle also may terminate your access to the Services and refer the User-Generated Content to law enforcement if it is in violation of any federal, state or local law or regulation.
Blue Isle expressly reserves the right to monitor any and all network traffic between any user(s) and the Services to prevent the use of said means to compromise the Services.
Blue Isle (within its sole discretion) expressly reserves the right to ban you from, or limit your access to, the Services temporarily or permanently for failure to comply with the restrictions and limitations contained in these Terms (including without limitation this Section 8), and such failure to comply may termination may subject you to civil and/or criminal liability.
(9) USER REGISTRATION AND ACCOUNT SECURITY
As a condition to using certain components of the Services, you may be required to register with Blue Isle and select a password and/or screen name (“User ID”) to obtain a personal account on a particular game system or platform. In addition, Blue Isle may automatically assign you a user ID on each such game system or platform to identify you to our servers. If you are required to enter registration information, you agree to provide Blue Isle with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of the Terms, which may result in immediate, automatic termination of your access to the Services. You may not select or use as a User ID a name of another person with the intent to impersonate that person; use as a User ID a name subject to any rights (including trademarks or copyrights) of a person other than you without appropriate authorization; or use as a User ID a name that is otherwise offensive, vulgar or obscene. Blue Isle reserves the right to refuse registration of, or to cancel, a User ID in its sole and absolute discretion. Notwithstanding the foregoing, you acknowledge that Blue Isle cannot guarantee the accuracy of any information submitted by any User of the Services, nor any identifying information about any User. You are solely responsible for the activity that occurs through your account. You shall be solely responsible for maintaining the confidentiality of your password. You may not share your account with a third party or use the account of a third-party. You agree to notify Blue Isle immediately in writing of any unauthorized use of your account, or other account-related security breach of which you are aware. You may cancel your account at any time upon written notice to Blue Isle.
(10) VIRTUAL CURRENCY AND VIRTUAL GOODS
If a Game allows you to purchase and/or earn through play a license to use Virtual Currency and Virtual Goods (as defined below), the following additional terms and conditions apply.
(A) The Games may enable users to (i) use fictional virtual currency as a medium of exchange exclusively within each such Game (“Virtual Currency” or “VC”); (ii) gain access to (and certain limited rights to use) virtual goods within the Game (“Virtual Goods” or “VG”); and (iii) barter or exchange VC and VG with other users of the Game. Regardless of the terminology used, VC and VG represent a limited license right governed by these Terms. Subject to the terms of and compliance with these Terms, Blue Isle hereby grants you the nonexclusive, non-transferable, non-sublicensable, limited and revocable right and license to use VC and VG obtained by you for your personal non-commercial gameplay exclusively within the Games. Except as otherwise prohibited by applicable law, VC and VG obtained by you are licensed to you, and you hereby acknowledge that no title or ownership in or to VC and VG is being transferred or assigned hereunder. These Terms should not be construed as a sale of any rights in VC and VG.
VC and VG do not have an equivalent value in real currency and do not act as a substitute for real currency. You are prohibited from converting VC and VG into a unit of value outside of the Games, such as actual currency or actual goods. You acknowledge and agree that Blue Isle may revise or take action that impacts the perceived value of or purchase price for any VC and/or VG at any time except as prohibited by applicable law. VC and VG do not incur fees for non-use; provided, however, that the license granted hereunder to VC and VG will terminate in accordance with the terms and conditions of these Terms and the Games’ documentation, when Blue Isle ceases providing the Services, or these Terms are otherwise terminated. Blue Isle, in its sole discretion, reserves the right to charge fees for the right to access or use VC or VG and/or may distribute VC or VG with or without charge.
(B) You may have the ability to purchase VC or to earn VC from Blue Isle for the completion of certain activities or accomplishments in the Games. For example, Blue Isle may provide VC or VG upon the completion of an in-Game activity, such as attaining a new level, completing a task, or creating user content. Once obtained, VC and/or VG will be credited to your user account (“User Account”). You may purchase VC and VG only within the Games, or through a platform, participating third-party online store, application store, or other store authorized by Blue Isle (all referred to herein as “Software Store”). Purchase and use of in-Game items or currency through a Software Store are subject to the Software Store’s governing documents, including but not limited to these Terms. This online service has been sublicensed to you by the Software Store. Blue Isle may offer discounts or promotions on the purchase of VC, and such discounts and promotions may be modified or discontinued by Blue Isle at any time without notice to you. Upon completing an authorized purchase of VC from a Software Store, the amount of purchased VC will be credited to your User Account. Blue Isle shall establish a maximum amount you may spend to purchase VC per transaction and/or per day, which may vary depending on the associated Software. Blue Isle, in its sole discretion, may impose additional limits on the amount of VC you may purchase or use, how you may use VC, and the maximum balance of VC that may be credited to your User Account. You are solely responsible for all VC purchases made through your User Account regardless of whether or not authorized by you.
(C) You can access and view your available VC and VG in your User Account when logged into your User Account. Blue Isle reserves the right, in its sole discretion, to make all calculations regarding the available VC and VG in your User Account. Blue Isle further reserves the right, in its sole discretion, to determine the amount of and manner in which VC is credited and debited from your User Account in connection with your purchase of VG or for other purposes. While Blue Isle strives to make all such calculations on a consistent and reasonable basis, you hereby acknowledge and agree that Blue Isle’s determination of the available VC and VG in your User Account is final, unless you can provide documentation to Blue Isle that such calculation was or is intentionally incorrect.
(D) All purchased in-Game Virtual Currency and/or Virtual Goods may be consumed or lost by players in the course of gameplay according to the Game rules applicable to currency and goods, which may vary depending on the associated Game. VC and VG may only be used within the Games, and Blue Isle, in its sole discretion, may limit use of VC and/or VG to a single Game. The authorized uses and purposes of VC and VG may change at any time. Your available VC and/or VG as shown in your User Account will be reduced each time you use VC and/or VG within the Games. The use of any VC and/or VG constitutes a demand against and withdrawal from your available VC and/or VG in your User Account. You must have sufficient available VC and/or VG in your User Account in order to complete a transaction within the Games. VC and/or VG in your User Account may be reduced without notice upon the occurrence of certain events related to your use of the Games. You are responsible for all uses of VC and/or VG made through your User Account, regardless of whether or not authorized by you. You must notify Blue Isle immediately upon discovering the unauthorized use of any VC and/or VG made through your User Account by sending an email to support@blueislestudios.com.
(E) VC and VG may only be redeemed for in-game goods and services. You may not sell, lease, license, or rent VC or VG. VC and VG may only be redeemed for in-Game goods or services and are not redeemable for any sum of money or monetary value or other goods from Blue Isle or any other person or entity at any time, except as expressly provided herein or otherwise required by applicable law. VC and VG have no cash value, and neither Blue Isle nor any other person or entity has any obligation to exchange your VC or VG for anything of value, including, but not limited to, real currency.
(F) All purchases of VC and VG are final and under no circumstances will such purchases be refundable, transferable, or exchangeable. Except as prohibited by applicable law, Blue Isle has the absolute right to manage, regulate, control, modify, suspend, and/or eliminate such VC and/or VG as it sees fit in its sole discretion, and Blue Isle shall have no liability to you or anyone else for the exercise of such rights.
(G) Any transferring, trading, selling, or exchanging of any VC or VG to anyone, other than in gameplay using the Games as expressly authorized by Blue Isle (“Unauthorized Transactions”), including, but not limited to, among other users of the Services, is not sanctioned by Blue Isle and is strictly forbidden. Blue Isle reserves the right, in its sole discretion, to terminate, suspend, or modify your User Account and your VC and VG and terminate these Terms if you engage in, assist in, or request any Unauthorized Transactions. All users who participate in such activities do so at their own risk and hereby agree to indemnify and hold harmless Blue Isle, its partners, licensors, affiliates, contractors, officers, directors, employees, and agents from all damages, losses and expenses arising directly or indirectly from such actions. You acknowledge that Blue Isle may request that the applicable Software Store stop, suspend, terminate, discontinue, or reverse any Unauthorized Transaction, regardless of when such Unauthorized Transaction occurred (or has yet to occur) when it suspects or has evidence of fraud, violations of these Terms, violations of any applicable law or regulation, or any intentional act designed to interfere or that otherwise has the effect of or may have the effect of intervening in any way with the operation of the Services. If Blue Isle believes or has any reason to suspect that you have engaged in an Unauthorized Transaction, you further agree that Blue Isle may, in its sole discretion, restrict your access to your available VC and VG in your User Account or terminate or suspend your User Account and your rights to any VC, VG, and other items associated with your User Account.
(H) VC is only available to customers in certain locations. You may not purchase or use VC if you are not in an approved location.
(11) PROMOTIONAL PROGRAMS & TOURNAMENTS
Blue Isle may implement marketing and promotional programs or tournaments in which users are offered benefits, considerations or rewards based upon the performance of specified activities, the satisfaction of specified requirements, or other criteria. Any such program, including the eligibility and selection of users, the award, compensation or other benefit to be granted users, if any, and the duration, shall be at the sole and absolute discretion of Blue Isle. You acquire no right or interest to participate in such program or to the impartial implementation of the program and distribution of any awards, compensation or benefits. You hereby expressly waive and disclaim any such right or interest. To the extent such program may involve one or more third parties and permitted by applicable law, you further expressly waive and disclaim any such right or interest against such third party. Blue Isle may elect in its sole and absolute discretion to contact you with regard to a program or tournament. You hereby expressly authorize Blue Isle to contact you by means of the contact information you have provided to Blue Isle.
Additional terms and restrictions may apply to you if you choose to participate in promotional programs or tournaments.
(12) THIRD-PARTY WEBSITES AND SERVICES
Solely as a convenience to you, Blue Isle may provide links on the Services to other websites owned by third parties. Further, the Blue Isle Services may be available to you through third-party websites, platforms and/or services. Unless otherwise expressly stated, Blue Isle does not endorse or control these third parties or their offering, and assumes no responsibility for them or the content contained therein.
(13) USE OF THE SERVICES OUTSIDE OF CANADA
The Services are controlled and operated by Blue Isle in the Province of Ontario. To the extent permissible by applicable local law and except as expressly set forth in these Terms, Blue Isle makes no representations or warranties, either express or implied, that Services and other materials available through the Services are appropriate, legally permissible or available for use in other locations. Whether or not you use the Services inside Canada, you agree to abide by any applicable export control laws and not to transfer, by electronic transmission or otherwise, any User-Generated Content, software or other materials subject to restrictions under such laws to a national destination prohibited by such laws, without first obtaining, and then complying with, any requisite government authorization. You further agree not to upload to the Services any data or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software.
(14) GENERAL DISCLAIMERS
(a) TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, THE SERVICES AND ANY ACCOMPANYING DOCUMENTATION AND MATERIAL ARE BEING PROVIDED TO YOU “AS IS” WITHOUT WARRANTY OF ANY KIND WHATSOEVER. WITHOUT LIMITING THE INTENDED GENERALITY OF THE PRECEDING SENTENCE, NEITHER BLUE ISLE, NOR ITS LICENSORS OR SUPPLIERS, WARRANTS THAT THE SERVICES OR ANY PORTION THEREOF (i) WILL BE UNINTERRUPTED, SECURE OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED; (ii) IS COMPATIBLE WITH ANY SOFTWARE, INCLUDING WITHOUT LIMITATION INTERNET BROWSER SOFTWARE; (iii) IS FREE OF INFECTION BY VIRUSES, WORMS, TROJAN HORSES OR ANYTHING ELSE MANIFESTING CONTAMINATING OR DESTRUCTIVE PROPERTIES; OR (iv) IS FREE OF DEFAMATORY, DEROGATORY OR ADULT-ORIENTED MATERIAL, OR MATERIAL THAT SOME INDIVIDUALS MAY DEEM OFFENSIVE OR OBJECTIONABLE. TO THE FULLEST EXTENT ALLOWED BY LAW, BLUE ISLE DISCLAIMS ALL REPRESENTATIONS, TERMS, WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE.
(b) NEITHER BLUE ISLE, NOR ITS LICENSORS OR SUPPLIERS, IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SERVICES. UNDER NO CIRCUMSTANCES WILL BLUE ISLE OR ITS LICENSORS OR SUPPLIERS BE RESPONSIBLE FOR ANY LOSS OR DAMAGE RESULTING FROM YOUR USE OF THE SERVICES, ANY USER-GENERATED CONTENT POSTED ON THE SERVICES, OR TRANSMITTED TO ANOTHER USER, OR ANY TRANSACTIONS BETWEEN OR AMONG YOU AND OTHER USERS, WHETHER ONLINE OR OFFLINE.
(c) THE SERVICES ARE CONTROLLED AND PROVIDED BY BLUE ISLE FROM ITS FACILITIES IN CANADA. TO THE EXTENT PERMISSIBLE BY APPLICABLE LOCAL LAW AND EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, BLUE ISLE MAKES NO REPRESENTATION THAT THE SERVICES ARE APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS.
(d) BECAUSE SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU TO THE EXTENT THAT SUCH EXCLUSIONS OR LIMITATIONS ARE NOT PERMITTED UNDER LOCAL LAW.
(15) LIMITATION OF LIABILITY TO THE FULLEST EXTENT ALLOWED BY LAW
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, BLUE ISLE (AND ITS LICENSORS, SUPPLIERS, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS) SHALL NOT BE LIABLE TO YOU OR ANY OTHER PERSON, WHETHER UNDER CONTRACT OR OTHERWISE, FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, AND/OR (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) $1,000 OR (II) THE AMOUNTS PAID AND/OR PAYABLE BY YOU TO BLUE ISLE (OR TO A THIRD-PARTY PLATFORM THAT PROVIDED YOU WITH ANY GAMES) IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM, OR (III) ANY MATTER BEYOND BLUE ISLE’S REASONABLE CONTROL. BLUE ISLE CANNOT AND WILL NOT BE RESPONSIBLE FOR ANY LOSS OF YOUR USER-GENERATED CONTENT OR ANY INTERRUPTIONS OF SERVICE, INCLUDING BUT NOT LIMITED TO ISP DISRUPTIONS, SOFTWARE OR HARDWARE FAILURES, OR ANY OTHER EVENT WHICH MAY RESULT IN A LOSS OF DATA OR A DISRUPTION OF SERVICE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, NOTHING IN THESE TERMS SHALL EXCLUDE OR LIMIT ANYTHING WHICH MAY NOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW, INCLUDING WITHOUT LIMITATION, DEATH OR PERSONAL INJURY ARISING THROUGH NEGLIGENCE OR FOR FRAUD.
(16) INDEMNIFICATION
To the maximum extent permitted by law, you agree to defend, indemnify and hold harmless Blue Isle, its officers, directors, employees and agents, from and against all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney fees) arising from your use of the Services, your violation of any of the Terms, your violation of any third-party right, including without limitation any copyright, trade secret, privacy or property right, or any claim that your User-Generated Content caused damage to a third-party.
(17) BINDING INDIVIDUAL ARBITRATION
The term “Dispute” means any dispute, claim, or controversy between you and Blue Isle arising from or relating to the Terms or Services, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Section 17 (with the exception of the enforceability of the Class Action Waiver clause below). Dispute is to be given the broadest possible meaning that will be enforced. If you have a Dispute with Blue Isle or Blue Isle’s officers, directors, employees and agents that cannot be resolved through negotiation within the time frame described in the “Notice of Dispute” clause below, then you and Blue Isle agree to seek resolution of the Dispute only as follows:
• If you are using or accessing the Services outside of the European Union, through binding arbitration of that Dispute in accordance with the terms of this Section 17. “Binding arbitration” means that the Dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury.
• If (and only if) you are using or accessing the Services in the European Union, then pursuant to the terms of Section 20 below.
RIGHT TO OPT OUT OF BINDING ARBITRATION AND CLASS ACTION WAIVER WITHIN 30 DAYS: IF YOU DO NOT WISH TO BE BOUND BY THE BINDING ARBITRATION AND CLASS ACTION WAIVER IN THIS SECTION 17, YOU MUST NOTIFY BLUE ISLE IN WRITING WITHIN 30 DAYS AFTER THE DATE THAT YOU ACCEPT THESE TERMS UNLESS A LONGER PERIOD IS REQUIRED BY APPLICABLE LAW. YOUR WRITTEN NOTIFICATION MUST BE EITHER (A) SENT VIA EMAIL TO SUPPORT@BLUEISLESTUDIOS.COM OR (B) MAILED TO BLUE ISLE STUDIOS INC. AT: 181 BAY STREET, PO BOX 30064, BROOKFIELD P.O, TORONTO, ON, ATTN: LEGAL/ARBITRATION. IN EITHER CASE YOU MUST INCLUDE: (1) YOUR NAME, (2) YOUR ADDRESS, AND (3) A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH BLUE ISLE THROUGH BINDING ARBITRATION.
Notice of Dispute. IF YOU HAVE A DISPUTE WITH BLUE ISLE YOU MUST SEND WRITTEN NOTICE EITHER BY (A) SENDING AN EMAIL TO SUPPORT@BLUEISLESTUDIOS>COM OR (B) WRITING TO BLUE ISLE STUDIOS INC., AT: 181 BAY STREET, PO BOX 30064, BROOKFIELD P.O, TORONTO, ON, ATTN: LEGAL/ARBITRATION, TO GIVE BLUE ISLE THE OPPORTUNITY TO RESOLVE THE DISPUTE INFORMALLY THROUGH NEGOTIATION. You agree to negotiate resolution of the Dispute in good faith for no less than 60 days after you provide notice of the Dispute. If Blue Isle does not resolve your Dispute within 60 days from receipt of notice of the Dispute, you or Blue Isle with may pursue your claim in arbitration pursuant to the terms in this Section 17.
Class Action Waiver. ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION, UNLESS BOTH YOU AND BLUE ISLE SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE PROCEEDINGS. THE WAIVER IN RELATION TO YOUR PARTICIPATION IN CLASS ACTIONS IN THESE TERMS IS NOT APPLICABLE TO THE EXTENT SUCH WAIVER IS PROHIBITED BY LAW.
Initiation of Arbitration Proceeding/Selection of Arbitrator. If you or Blue Isle elect to resolve your Dispute through binding arbitration, the party initiating the arbitration proceeding may initiate it with the Judicial Arbitration and Mediation Services, Inc. (JAMS), www.jamsadr.com. The terms of this Section 17 govern in the event they conflict with the rules of the arbitration organization selected by the parties.
Location of Arbitration. You or Blue Isle may initiate arbitration in Toronto, Ontario, Canada.
Severability of Class Action Waiver. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Section 17 will be unenforceable, and the Dispute will be decided by a court and you and Blue Isle each agree to waive in that instance, to the fullest extent allowed by law, any trial by jury.
(18) GENERAL PROVISIONS
Subject to, and to the maximum extent permitted by the, local law applicable in the country in which you obtain or use the Service: You agree that the Services shall be deemed exclusively based in the Province of Ontario, Canada, and these Terms shall be deemed to have been made and executed exclusively in the Province of Ontario, Canada. Any dispute arising out of these Terms shall be resolved in accordance with the laws of the Province of Ontario, Canada without reference to its conflict of law provisions or the United Nations Convention on Contracts for the International Sale of Goods. Subject to the provisions of Section 17, you agree that any claim asserted in any legal proceeding by you or Blue Isle in connection with these Terms shall be commenced and maintained in any state or federal court located in Toronto, Ontario, Canada, having subject matter jurisdiction with respect to such dispute. You and Blue Isle each agree to submit to the personal jurisdiction of such court. The prevailing party in any such proceeding shall be entitled to reimbursement of court costs, including reasonable attorneys’ fees, in addition to any other remedy awarded.
In the event any provision of these Terms shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will be enforced to the maximum extent permissible and the remaining portions of these Terms shall remain in full force and effect. You may not transfer or assign any of your rights or obligations provided in these Terms without the express prior written approval of Blue Isle; Blue Isle may assign these Terms without restriction of any kind. No failure on the part of Blue Isle to enforce any provision of these Terms shall be deemed a waiver or consent. These Terms and the Privacy Policy constitute and contain the entire agreement and understanding between you and Blue Isle with respect to the subject matter hereof and supersedes any prior oral or written agreements or understandings.
As between Blue Isle and its licensors, Blue Isle will be solely responsible for the Services and support for the Services.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: Sections 5, 6, 8, 12, and 14–20.
(19) DIGITAL MILLENNIUM COPYRIGHT ACT NOTICE
As an online service provider, Blue Isle has adopted the following general policy regarding copyright infringement in accord with the Digital Millennium Copyright Act, 17 U.S.C. § 512 (“DMCA”). The email address of the Blue Isle Designated Agent to Receive Notification of Claimed Infringement (“Designated Agent”) is:
Copyright Designated Agent Blue Isle Studios Inc. info@blueislestudios.com
For any notice of infringement to be effective, the notice must include:
(a) A physical or electronic signature of a person authorized to act on behalf of the intellectual property owner of an exclusive right that is allegedly infringed;
(b) A description of the copyrighted work that you claim has been infringed upon;
(c) A description of where the material that you claim is infringing is located on the Services;
(d) Information to permit Blue Isle to contact the complaining party, including address, telephone number, and, if available, an e-mail address at which the complaining party may be contacted;
(e) A statement by the complaining party that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
(f) A statement made under penalty of perjury that the information in the notification is accurate and that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
It is Blue Isle’s policy to block access to or remove content that it believes in good faith to be copyrighted material that has been illegally copied and distributed by any user or other content provider, and remove and discontinue service to repeat offenders. If you believe that User-Generated Content or other material residing on or accessible through the Services infringes a copyright, please send a notice of copyright infringement to the Designated Agent. The notice of infringement should conform to the elements of notification listed above. Once proper infringement notification is received by the Designated Agent, Blue Isle may remove or disable access to the claimed infringing User-Generated Content or other material; notify the accused infringing party that it has removed or disabled access to the User-Generated Content or other material; and determine appropriate measures to prevent recurrence by the accused infringing party.
If the accused infringing party believes that the material that was removed (or to which access was disabled) is not infringing, or s/he believes that s/he has the right to post and use such material from the copyright owner, the copyright owner’s agent, or, pursuant to the law, s/he may send us a counter-notice containing the following information to the Designated Agent:
(a) A physical or electronic signature of the accused infringing party;
(b) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or disabled;
(c) A statement that the accused infringing party has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material; and
(d) The accused infringing party’s name, address, telephone number, and, if available, email address, and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the accused infringing party’s address is located, or, if that party’s address is located outside Canada, for any judicial district in which Blue Isle is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Designated Agent, Blue Isle may, in its discretion, send a copy of the counter-notice to the original complaining party informing that person that Blue Isle may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider accused of committing infringement, the removed material may be replaced or access to it restored in 10 to 14 business days or more after receipt of the counter-notice, at Blue Isle’s discretion.
(20) USERS IN THE EUROPEAN UNION
If (and only if) you are using or accessing the Services in the European Union, the terms of this Section 20 apply. Any Dispute shall be resolved under the laws of England and Wales. You agree that any claim asserted in any legal proceeding by you or Blue Isle in connection with these Terms shall be commenced and maintained in any court of competent jurisdiction in London, England, and you and Blue Isle each agree to submit to the personal jurisdiction of such court.
I HEREBY ACKNOWLEDGE THAT I HAVE READ IN THEIR ENTIRETY AND UNDERSTAND THE FOREGOING TERMS. I AGREE THAT BY BROWSING, INSTALLING OR USING THE SERVICES I AM ACKNOWLEDGING MY AGREEMENT TO BE BOUND BY THESE TERMS.