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Terms of Service

TERMS OF SERVICE

LAST UPDATED: May 3, 2021

This Terms of Service Agreement (the “TOS Agreement”) governs your use of the Services (defined below) offered by Maximum Games. Inc.  (“Maximum Games,” “we,” “us,” and “our”). By using or accessing the Services, you accept and agree to this TOS Agreement, our Privacy Policy (see the Privacy section below), and applicable terms and conditions, policies or disclaimers referenced in this TOS Agreement (collectively, the “Agreement”).

THIS AGREEMENT CONTAINS A BINDING, INDIVIDUAL ARBITRATION AND CLASS-ACTION WAIVER PROVISION. IF YOU ACCEPT THIS AGREEMENT, YOU AND MAXIMUM GAMES AGREE TO RESOLVE DISPUTES IN BINDING, INDIVIDUAL ARBITRATION AND GIVE UP THE RIGHT TO GO TO COURT INDIVIDUALLY OR AS PART OF A CLASS ACTION, AND MAXIMUM GAMES AGREES TO PAY YOUR ARBITRATION COSTS FOR ALL DISPUTES OF UP TO $5,000 THAT ARE MADE IN GOOD FAITH (SEE SECTION 13). YOU HAVE A TIME-LIMITED RIGHT TO OPT OUT OF THIS WAIVER.

TO ENTER INTO THIS AGREEMENT, YOU MUST BE AN ADULT OF THE LEGAL AGE OF MAJORITY IN YOUR COUNTRY OF RESIDENCE. YOU ARE LEGALLY AND FINANCIALLY RESPONSIBLE FOR ALL ACTIONS USING OR ACCESSING OUR SOFTWARE, INCLUDING THE ACTIONS OF ANYONE YOU ALLOW TO ACCESS TO YOUR ACCOUNT. YOU AFFIRM THAT YOU HAVE REACHED THE LEGAL AGE OF MAJORITY, UNDERSTAND AND ACCEPT THIS AGREEMENT (INCLUDING ITS DISPUTE RESOLUTION TERMS). IF YOU ARE UNDER THE LEGAL AGE OF MAJORITY, YOUR PARENT OR LEGAL GUARDIAN MUST CONSENT TO THIS AGREEMENT.

  1. SERVICES.
    • Description of Services.Maximum Games offers to you, i.e., its customers, Software (as defined in the End User License Agreement or “EULA”), Online Store (as defined in the Online Store Terms of Sale), the mechanism of accessing the Software and Store, and other services (the “Services”).
    • Accessing the Services. You will need a Maximum Games Account (the “Account”) to access many of the Services.
      1. Creating an Account. You can create an Account by signing up online. You agree not to use any false, inaccurate or misleading information when signing up for your Account. To protect your Account, keep your account details and password confidential. You are responsible for all activity that occurs under your Account.
      2. “Minors” and Account. By using the Services, you represent that you have either reached the age of “majority” where you live or have valid parent or legal guardian consent to be bound by this Agreement. If you do not know whether you have reached the age of majority where you live, or do not understand this section, please ask your parent or legal guardian for help and consent before you create an Account. If you are the parent or legal guardian of a minor who creates an Account, you and the minor accept and agree to be bound by this Agreement and are responsible for all use of the Account or Services, including purchases, whether the minor’s Account is now open or created later.
    • Customer Support. Customer support for Services is available at https://www.maximumgames.com/support-page/ or https://modusgames.com/support/ for product-related customer support.
  2. PRIVACY. We take the privacy of our users very seriously. For the current Privacy Policy as it relates to the Store, please click here.
  3. Geographic Availability. Available products and services may vary depending on your region or device. In addition, there may be limits on where we can ship goods, or provide services or digital content. To complete your purchase, you may be required to have a valid billing and shipping address within the country or region of the Store where you are purchasing. You agree that you shall not use IP proxying or other methods to disguise the place of your residence, whether to circumvent geographical restrictions on Product content, to purchase at pricing not applicable to your geography, or for any other purpose. If you do this, we may terminate your access to your account.
  4. Your Content. Our Services allow you to store and share user generated content (“UGC”) or receive materials from others. We don’t claim the ownership of your UGC. You are responsible for your UGC. Additional terms, as per the EULA may apply to UGC, if you also use our Software. Please be sure to review the same.
  5. Code of Conduct.
    • By agreeing to this Agreement, you’re agreeing that, when using the Services, you shall follow these rules:
      1. Don’t do anything illegal.
      2. Don’t engage in any activity that exploits, harms, or threatens to harm children.
      3. Don’t send spam. Spam is unwanted or unsolicited bulk email, postings, or contact requests.
      4. Don’t publicly display or use the Services to share inappropriate content or material (involving, for example, nudity, bestiality, pornography, offensive language, graphic violence, or criminal activity).
      5. Don’t engage in activity that is fraudulent, false or misleading (e.g., asking for money under false pretenses, impersonating someone else, manipulating the Services to increase play count, or affect rankings, ratings, or comments).
      6. Don’t circumvent any restrictions on access to or availability of the Services.
      7. Don’t engage in activity that is harmful to you, the Services or others (e.g., transmitting viruses, stalking, posting terrorist or violent extremist content, communicating hate speech, or advocating violence against others).
      8. Don’t infringe upon the rights of others (e.g., unauthorized sharing of copyrighted music or other copyrighted material, resale or other distribution of Bing maps, or photographs)
      9. Don’t engage in activity that violates the privacy of others.
      10. Don’t help others break these rules.
    • Additional Code of Conduct. When you access our Software, you may have to comply with additional rules. Please review the EULA
    • If you violate these terms, we may stop providing Services to you or we may close your Account. We may also block delivery of a communication (like email) to or from the Services in an effort to enforce these terms or we may remove or refuse to publish your UGC for any reason. When investigating alleged violations of these terms, Maximum Games reserves the right to review your UGC in order to resolve the issue. However, we cannot monitor the entire Services and make no attempt to do so.
  6. Software License. In order to access and use our Software, you must accept the terms of the End User License Agreement (the “EULA”). The terms of the EULA are incorporated herein.
  7. Feedback. If you provide Maximum Games with any Feedback, you hereby grant Maximum Games a non-exclusive, fully paid, royalty-free, worldwide, perpetual, irrevocable, sublicensable, transferable, and assignable license to use, reproduce, distribute, modify, adapt, prepare derivative works based on, publicly perform, publicly display, make, have made, use, sell, offer to sell, import, and otherwise exploit any and all Feedback for any purposes, for all current and future methods and forms of exploitation. “Feedback” means suggestions, comments, ideas, and all other types of information, including software and code, that you provide, publish, or otherwise communicate directly or indirectly (including your employees, agents, contractors, or representatives) to Maximum Games or its agents that relates to the Services or Software. If any such rights may not be licensed under applicable law (such as moral and other personal rights), you hereby waive and agree not to assert any such rights. You understand and agree that Maximum Games is not required to make any use of any Feedback that you provide. You agree that if Maximum Games makes use of your Feedback, Maximum Games is not required to credit or compensate you for your contribution. You represent and warrant that you have sufficient rights in any Feedback that you provide to Maximum Games to grant Maximum Games and other affected parties the rights described above. This includes but is not limited to intellectual-property rights and other proprietary or personal rights.
  8. Warranties. MAXIMUM GAMES AND OUR AFFILIATES, RESELLERS, DISTRIBUTORS, AND VENDORS, MAKE NO WARRANTIES, EXPRESS OR IMPLIED, GUARANTEES OR CONDITIONS WITH RESPECT TO YOUR USE OF THE SERVICES. YOU UNDERSTAND THAT USE OF THE SERVICES IS AT YOUR OWN RISK AND THAT WE PROVIDE THE SERVICES ON AN "AS IS" BASIS "WITH ALL FAULTS" AND "AS AVAILABLE." YOU BEAR THE ENTIRE RISK OF USING THE SERVICES. MAXIMUM GAMES DOESN'T GUARANTEE THE ACCURACY OR TIMELINESS OF THE SERVICES. TO THE EXTENT PERMITTED UNDER YOUR LOCAL LAW, WE EXCLUDE ANY IMPLIED WARRANTIES, INCLUDING FOR MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, AND NON-INFRINGEMENT. YOU MAY HAVE CERTAIN RIGHTS UNDER YOUR LOCAL LAW. NOTHING IN THESE TERMS IS INTENDED TO AFFECT THOSE RIGHTS, IF THEY ARE APPLICABLE. YOU ACKNOWLEDGE THAT COMPUTER AND TELECOMMUNICATIONS SYSTEMS ARE NOT FAULT-FREE AND OCCASIONAL PERIODS OF DOWNTIME OCCUR. WE DO NOT GUARANTEE THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE OR THAT CONTENT LOSS WON'T OCCUR, NOR DO WE GUARANTEE ANY CONNECTION TO OR TRANSMISSION FROM THE COMPUTER NETWORKS.
  9. LIMITATION OF LIABILITY. You explicitly agree that the limitation of liability as stated in the EULA and the Online Store Terms of Sale applies to your use and access of the Software and the Store, respectively. For the Services that are not covered by either the EULA or the Online Store Terms of Sale, if you have any basis for recovering damages (including breach of this Agreement), you agree that your exclusive remedy is to recover, from Maximum Games or any affiliates, resellers, distributors, and vendors, direct damages up to an amount equal to your Services fee for the month during which the loss or breach occurred (or up to $10.00 if the Services are free). You can't recover any other damages or losses, including direct, consequential, lost profits, special, indirect, incidental, or punitive. These limitations and exclusions apply even if this remedy doesn't fully compensate you for any losses or fails of its essential purpose or if we knew or should have known about the possibility of the damages. To the maximum extent permitted by law, these limitations and exclusions apply to anything or any claims related to this Agreement and the Services, or the software related to the Services.
  10. Without limiting any other rights of Maximum Games, this Agreement will terminate automatically without notice if you fail to comply with any of its terms and conditions. Any provision that is intended to survive, shall survive the termination.
  11. ORDER OF PRECEDENCE. In the event of any inconsistency between this TOS Agreement, End User License, Online Store Terms of Sale, and Privacy Policy, the End Use License Agreement shall take precedence with respect to the Software, the Online Store Terms of Sale shall take precedence with respect to the Store, and Privacy Policy shall take precedence with respect to privacy followed by this TOS Agreement.
  12. Governing Law and Jurisdiction.
    This Agreement is governed by and is to be construed in accordance with the laws of California, without reference to its choice of law rules. The Parties agree that venue for any and all disputes hereunder, or action on any obligation hereunder, will be exclusively brought in an appropriate state court in Contra Costa County, California or in the United States District Court for the Northern District of California, and the Parties irrevocably consent to the jurisdiction of such courts for any dispute hereunder or action on any obligation hereunder. You and Maximum Games agree to waive any jurisdictional, venue, or inconvenient forum objections to such courts (without affecting either party’s rights to remove a case to federal court if permissible), as well as any right to a jury trial. The Convention on Contracts for the International Sale of Goods will not apply. Any law or regulation which provides that the language of a contract shall be construed against the drafter will not apply to this Agreement. This paragraph will be interpreted as broadly as applicable law permits.
  13. Binding Individual Arbitration; Class Action Waiver.

    PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

    Most issues can be resolved quickly and amicably by contacting Maximum Games customer support at https://modusgames.com/support/. But we understand that sometimes disputes can’t be easily resolved by customer support. This Section explains how you and Maximum Games agree to resolve those disputes, including (where applicable) by binding, individual arbitration.

    Arbitration is an alternative dispute-resolution procedure that allows us to resolve issues without the formality of going to court. Any dispute between you and Maximum Games is submitted to a neutral arbitrator (not a judge or jury) for fair and fast resolution. Arbitration is more efficient for both you and Maximum Games.
    • Informal Resolution.  If you have an issue that our customer support can’t resolve, prior to starting arbitration You and Maximum Games agree to attempt to resolve the dispute informally to help get us to a resolution and control costs for both parties. You and Maximum Games agree to make a good-faith effort to negotiate any dispute between us for at least 30 days (“Informal Resolution”). Those informal negotiations will start on the day you or Maximum Games receive a written Notice of a Dispute in accordance with this Agreement.

      You will send your Notice of Dispute to Maximum Games, Inc., Legal Department, 590 Ygnacio Valley Road Suite 220, Walnut Creek CA 94596. Include your name, account name you use while playing the game, address, how to contact you, what the problem is, and what you want Maximum Games to do. If Maximum Games has a dispute with You, Maximum Games will send our Notice of Dispute to your registered email address and any billing address you have provided us.

      If you reside in the European Union (“EU”), You may also be entitled to submit your complaint to the European Commission’s Online Dispute Resolution (ODR) Platform. ODR allows EU consumers to resolve disputes related to the online purchases of goods and services without going to court.

      If the dispute isn’t resolved within by Informal Resolution or small-claims court (below), you or Maximum Games may start an arbitration in accordance with this Agreement.
    • Small Claims Court. Instead of using Informal Resolution, you and Maximum Games agree that you may sue us in small-claims court in your choice of the county where you live or Contra Costa County in California (if you meet the requirements of small-claims court). We hope you’ll try Informal Resolution first, but you don’t have to before going to small-claims court.
    • Binding Individual Arbitration. THE ARBITRATION PROCEEDINGS IN THIS SECTION WILL BE CONDUCTED ON AN INDIVIDUAL BASIS ONLY.

      You and Maximum Games agree that Disputes will be settled by binding individual arbitration conducted by the Judicial Arbitration Mediation Services, Inc. (“JAMS”) subject to the U.S. Federal Arbitration Act and federal arbitration law and according to the JAMS Streamlined Arbitration Rules and Procedures effective July 1, 2014 (the “JAMS Rules”) as modified by this Agreement.

      This means that you and Maximum Games agree to a dispute-resolution process where we submit any Dispute to a neutral arbitrator (not a judge or jury) that makes the final decision to resolve the Dispute. JAMS uses experienced professionals to arbitrate disputes, which helps You and Maximum Games resolve any disputes fairly, but more quickly and efficiently than going to court. The arbitrator may award the same remedies to you individually as a court could, but only to the extent required to satisfy your individual claim.

      The arbitrator’s decision is final, except for a limited review by courts under the U.S. Federal Arbitration Act, and can enforced like any other court order or judgment.
      1. Disputes We Agree to Arbitrate

        You and Maximum Games agree to submit all Disputes between you and Maximum Games to individual binding arbitration. “Dispute” means any dispute, claim, or controversy (except those specifically exempted below) between You and Maximum Games that relates to your use or attempted use of Maximum Games’ products or services and Maximum Games’ products and services generally, including without limitation the validity, enforceability, or scope of this Binding Individual Arbitration section.

        You and Maximum Games agree to arbitrate all Disputes regardless of whether the Dispute is based in contract, statute, regulation, ordinance, tort (including fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory.

        The Informal Resolution and Arbitration sections do not apply to (1) individual actions in small-claims court; (2) pursuit of enforcement actions through a government agency if the law allows; (3) a complaint or remedy under the EU General Data Protection Regulation; (4) an action to compel or uphold any prior arbitration decision; (5) Maximum Games’ right to seek injunctive relief against You in a court of law to preserve the status quo while an arbitration proceeds; (6) claims of piracy, creation, distribution, or promotion of Cheats, and intellectual-property infringement, and (7) the enforceability of the Class Action Waiver clause below.

        You and Maximum Games agree that whether a dispute is subject to arbitration under this Agreement will be determined by the arbitrator rather than a court.
      2. Arbitration Procedure

        To start an arbitration, review the JAMS Rules and follow the instructions for initiating an arbitration on the JAMS The party starting an arbitration must send JAMS a “Demand for Arbitration” (available on its website), pay a filing fee, and mail a copy of the Demand for Arbitration to the opposing party. You will send a copy to Maximum Games, Inc., Legal Department, 590 Ygnacio Valley Road Suite 220, Walnut Creek CA 94596, U.S.A. Maximum Games will send our copy to your registered email address and any billing address you have provided us.

        The arbitration will be conducted by a single JAMS arbitrator selected with substantial experience in resolving intellectual-property and commercial-contract disputes. You and Maximum Games both agree that the arbitration will be conducted in the English language and that the arbitrator will be bound by this Agreement.

        If an in-person hearing is required, the hearing will take place either in Contra Costa County in California, or where you reside; you choose.

        The arbitrator (not a judge or jury) will resolve the Dispute. Unless you and Maximum Games agree otherwise, any decision or award will include a written statement stating the decision of each claim and the basis for the award, including the arbitrator’s essential factual and legal findings and conclusions.

        The arbitrator may only award legal or equitable remedies that are requested by you or Maximum Games to satisfy one of our individual claims (that the arbitrator determines are supported by credible relevant evidence). The arbitrator may not award relief against Maximum Games respecting any person other than you.

        Any decision or award may be enforced as a final judgment by any court of competent jurisdiction or, if applicable, application may be made to such court for judicial acceptance of any award and an order of enforcement.
      3. Arbitration Fees and Location

        If you start the arbitration, you must pay the JAMS filing fee required for consumer arbitrations.

        In some situations, Maximum Games will help with your fees to (hopefully) get us to a resolution quickly and fairly:

        If the Dispute involves $10,000 or less, Maximum Games will pay all of the JAMS costs, including the fees you otherwise would have been required to pay.

        If the above doesn’t apply to You, but You demonstrate that arbitration costs will be prohibitive compared to litigation costs, Maximum Games will pay as much of your JAMS costs as the arbitrator finds is necessary to prevent arbitration from being cost-prohibitive (as compared to the cost of litigation).

        Even if Maximum Games wins the arbitration and the applicable law or the JAMS Rules allow Maximum Games to seek our portion of the JAMS fees from you, we won’t.

        The fee assistance offered above is contingent upon You bringing the arbitration claim in “good faith.” If the arbitrator finds You brought an arbitration claim against Maximum Games for an improper purpose, frivolously, or without a sufficient pre-claim investigation into the facts or applicable law, then the payment of all fees will be governed by the JAMS rules.

        JAMS costs do not include your Attorneys’ fees and costs and Attorneys’ fees and JAMS costs are not counted when determining how much a dispute involves.

        Maximum Games won’t seek our attorneys’ fees or expenses from you in any arbitration, even if the law or the JAMS rules entitle us to do so.If you choose to be represented by an attorney, you will pay your own attorneys’ fees and costs unless the applicable law provides otherwise.
      4. Notice and Filing. If a Dispute must be arbitrated, you or Maximum Games must start arbitration of the Dispute within two (2) years from when the Dispute first arose. If applicable law requires you to bring a claim for a Dispute sooner than two years after the Dispute first arose, you must start arbitration in that earlier time period. Maximum Games encourages you to tell us about a Dispute as soon as possible so we can work to resolve it. The failure to provide timely notice shall bar all claims.
      5. Continuation in Effect. This Binding Individual Arbitration section survives any termination of this Agreement or Maximum Games’ provision of services to you.
      6. Future Arbitration Changes.Although Maximum Games may revise this Agreement in its discretion, Maximum Games does not have the right to alter this agreement to arbitrate or the rules specified herein with respect to any Dispute once that Dispute arises.
    • Class Action Waiver.

      Unless you live in the European Union or expect where otherwise prohibited by your local law, You and Maximum Games agree to only bring Disputes in an individual capacity and shall not:

       - seek to bring, join, or participate in any class or representative action, collective or class-wide arbitration, or any other action where another individual or entity acts in a representative capacity (e.g., private attorney general actions); or

       - consolidate or combine individual proceedings or permit an arbitrator to do so without the express consent of all parties to this Agreement and all other actions or arbitrations.


    • If all or any provision of this Binding Individual Arbitration agreement is found invalid, unenforceable, or illegal, then You and Maximum Games agree that the provision will be severed and the rest of the agreement shall remain in effect and be construed as if any severed provision had not been included. The sole exception is that if the Class Action Waiver is found invalid, unenforceable, or illegal, you and Maximum Games agree that it will not be severable; this entire Binding Individual Arbitration section will be void and unenforceable and any dispute will be resolved in court subject to the venue and choice of clauses specified in this Agreement. Under no circumstances shall arbitration be conducted on a class basis without Maximum Games’ express consent.

Your 30-Day Right to Opt Out

You have the right to opt out of and not to be bound by the arbitration and class action waiver provisions set forth in this Agreement. To exercise this right, you must send written notice of your decision to the following address: Maximum Games, Inc., Attn Legal Department, 590 Ygnacio Valley Road Suite 220, Walnut Creek CA 94596 U.S.A. Your notice must include your name, mailing address, and account name you use while playing the game, and state that you do not wish to resolve disputes with Maximum Games through arbitration. To be effective, this notice must be postmarked or deposited within 30 days of the date on which you first accepted this Agreement unless a longer period is required by applicable law; otherwise you will be bound to arbitrate disputes in accordance with this section.You are responsible for ensuring that Maximum Games receives your opt-out notice, so you may wish to send it by a means that provides for a delivery receipt. If you opt out of these arbitration provisions, Maximum Games will not be bound by them with respect to Disputes with you.