TERMS OF SERVICE
Last updated: September 22, 2016
1.1 These Terms of Service govern the relationship between you and IP Kremlev I.S. or any one of its affiliated entities(“Cruderocks”, “we”, “our” and “us”) in relation to:
(a) our websites, including without limitation cruderocks.com, hidrift.com, driftheads.com and any other websites owned or operated by Cruderocks (the “Sites”);
(b) any online, desktop and mobile games owned, operated or made available by Cruderocks including, but not limited to, “High Octane Drift” (the “Games”); and
(c) any of our other products and services (including support services), including without limitation any such products and services accessible via a third party platform, web application or social networking service (together the “Ancillary Services”).
1.2 These Terms of Service also govern the relationship between you and us regarding your use of any of the forums that we operate for the Games (the “Games Forums”). The rules and guidelines applicable to the Games Forums (the “Forum Rules”) are set out at http://cruderocks.com/?view=thread&id=2,and form part of these Terms of Service.
1.3 In these Terms of Service we refer to the Sites, the Games, the Games Forums and the Ancillary Services together as the “Services”.
2.1 You must be at least 13 years of age to use the Services. If you are under the age of 13 or you do not agree to these Terms of Service, then you may not use or access the Services. By agreeing to these Terms of Service, you represent and warrant to us: (i) that you are at least thirteen years of age; (ii) that you have not previously been suspended or removed from the Service; and (iii) that your registration and your use of the Service is in compliance with any and all applicable laws and regulations.
2.2 You agree that you will not knowingly allow any individual under the age of 13 or other minimum legal age where it differs under local legal requirements to use or access the Services.
3. Amendments to the Terms of Service and the Forum Rules
3.1 From time to time, we may need to amend these Terms of Service, for example to reflect new products or services or because of changes in the law. If we make a material change to these Terms of Service, we will make reasonable efforts to notify you and, where required by applicable law, we will obtain your consent. We may provide notice through a pop-up or banner within the Service, by sending an email to any address you may have used to register for an account, or through other mechanisms. Material changes to these Terms of Service will take effect upon the earlier of (a) your actual notice or (b) thirty (30) days from posting of such change. If we make a non-material change to these Terms of Service which does not reduce your rights, we will post a new version of these Terms of Service and the new version of these Terms of Service will take effect immediately upon the date of posting. The latest version of these Terms of Service will always be available on the Sites, so we recommend that you check for updates to these Terms of Services each time you use the Services. If you continue to use the Services after a new version of these Terms of Services take effect, then (other than for those material changes where your consent is required), you shall be considered to have accepted the latest version of Terms of Services. Disputes arising under these Terms of Service will be resolved in accordance with the version of the Terms of Service in place at the time the dispute arose. (This section does not apply to changes to the Forum Rules which are addressed in section 3.2).
3.2 From time to time we may also need to amend the Forum Rules, for example to ensure that the Games Forums operate smoothly and to reflect the needs of the community using the Games Forums. The latest version of the Forum Rules will always be available on the Sites. Any new version of the Forum Rules shall take effect immediately upon the date of posting on the Sites. If you continue to use a Games Forum after a new version of the Forum Rules takes effect, then you shall be considered to have accepted the amended Forum Rules.
You must also accept and comply with all rules of external platforms applicable to specific Game, including but not limited to, Xbox Games and other Xbox services rules, Apple Appstore and Game Center rules, and Google Play rules. Any breach of any rules of the external platforms shall also be regarded as a fundamental breach of the Terms of Service by you.
5. Your Cruderocks Account
Creating an Account
5.1 In order to use the Services, you need to have a Cruderocks account (an “Account”).
5.2 The Games and the Services are using Steam service as an Account registration gateway, creating Account using Steam ID. Cruderocks do not save any personal information you have provided to Steam service, except for public Steam ID, Steam Account Nickname and Steam Account Avatar provided via Steam API. The Account will be automatically created for the Games on your first launches of the Games.
5.3 YOU MUST COMPLY WITH ALL TERMS AND CONDITIONS SET BY STEAM SERVICE. THE REGISTRATION AND LOGGING IN THE GAMES ARE SUBJECT TO RULES OF STEAM SERVICES. CRUDEROCKS DISCLAIMES ANY LIABILITY OF ANY NATURE FOR STEAM ACTIONS.
5.4 You are fully responsible for the conduct and actions using your Account and for all breaches of these Terms of Service committed by using your Account. Also, your are fully responsible for the conduct and actions using your Steam ID and for all breaches of Steam Service Terms of Service committed by using your Steam ID. We shall have no liability to you for any loss or damage arising from any unauthorised use of your Account or any unauthorised access, use, alteration, modification and/or disclosure of your Steam ID information.
Security of Your Account
5.8 You must ensure that you secure your Steam ID, computer, mobile phone or other device from third party access. Please notify us immediately at http://cruderocks.com/contact if you become aware of:
(a) any unauthorised use of your Account or any other breach of security;
(b) any hacking tools being used or that might be used in relation to the Services; or
(c) loss of control over you Steam ID.
5.9 Although we use procedures reasonably designed to safeguard the security of your Account information, transmissions made on or through the Internet and Account information stored on our servers or the servers of third parties that we use and using of Steam ID via Steam API are vulnerable to attack and cannot be guaranteed to be secure. In addition, submissions made by email are not protected by encryption and are vulnerable to disclosure to third parties, including due to interception during transmission.
6. Charges and Billing
6.1 You do not have to pay any registration or subscription fees to create an Account. However, some of the Services may require you to pay a fee. If you decide to subscribe to any such Services, you must ensure that you fully eligible for payments using Steam.
6.2 YOU MUST COMPLY WITH ALL TERMS AND CONDITIONS SET BY STEAM SERVICES. THE CHARGING AND BILLING IN THE GAMES ARE SUBJECT TO RULES OF STEAM SERVICES. CRUDEROCKS DISCLAIMES ANY LIABILITY OF ANY NATURE FOR STEAM ACTIONS.
7. Service and Content Licenses
7.1 The software, technology, text, forum posts, chat posts, profiles, widgets, messages, links, emails, music, sound, graphics, pictures, video, data, and all other elements of the Services, as well as the design and appearance of our Sites and the Games (collectively, the “Content”), provided by Cruderocks are protected by all relevant intellectual property and proprietary rights and applicable laws.
7.2 As between you and Cruderocks, the Content and all of the intellectual property rights in the Content are owned by Cruderocks. Except as expressly authorized by Cruderocks, you may not make use of the Content or the Service. Cruderocks reserves all rights in and to the Content and the Services not expressly granted in these Terms of Service.
7.3 Subject to your compliance with the terms and conditions herein, Cruderocks grants you a personal, non-exclusive, revocable, non-transferable, limited right to access the Content in connection with your access and use of the Services. Unless and to the extent that we have expressly authorised you in writing, you must not:
(a) copy or download any Content from a Service (except as part of the proper use or operation of that Service);
(b) distribute, publicly perform or display, lease, sell, transmit, transfer, publish, edit, copy, create derivative works from, rent, sub-license, distribute, decompile, disassemble, reverse engineer or otherwise make unauthorized use of Content;
(c) make any commercial use (i.e. for profit) of the Content; or
(d) remove, obscure, or alter copyright, patent, trademark, or other proprietary rights notices affixed to Content.
7.4 Cruderocks makes the Content available to you subject to the following conditions:
(a) we can only make Content available to you if it is legal for you to have access to that Content in your home country;
(b) you may only obtain Content from us (or from any person or third party that we authorise for this purpose) and you must not obtain Content from any other person or attempt to do so;
(c) we reserve the right to refuse your request(s) to acquire Content, and we also reserve the right to limit or block any request to acquire or obtain Content for any reason;
(d) WE DO NOT GUARANTEE THAT ANY CONTENT WILL BE AVAILABLE AT ALL TIMES, IN ALL COUNTRIES AND/OR ALL GEOGRAPHIC LOCATIONS, OR AT ANY GIVEN TIME OR THAT WE WILL CONTINUE TO OFFER PARTICULAR CONTENT FOR ANY PARTICULAR LENGTH OF TIME (UNLESS WE EXPRESSLY SAY OTHERWISE AS PART OF THE SERVICES);
(e) once you have redeemed or activated Content, including without limitation any Virtual Good, it is not returnable, exchangeable, or refundable for other Content or for cash, or other goods or services; and
(f) we may change, replace, remove access to or update the Content at any time in our sole discretion.
8. Virtual Goods
8.1 Virtual Goods. The Services may permit you to acquire and accumulate certain virtual goods as made available by Cruderocks (“Virtual Goods”). Virtual Goods constitute a limited, non-transferable, revocable right to use features of the Services when, as, and if allowed by Cruderocks and solely as governed by and permitted under these Terms of Service. Subject to these Terms of Service, Virtual Goods may be exchanged for access to upgraded features, may be exchanged for other Virtual Goods, or used in connection with other features made available by Cruderocks through the Services. Virtual Goods are not real-world currency, have no monetary value, and cannot be used, exchanged, or redeemed except as provided in these Terms of Service, and cannot be transferred, in any case. For avoidance of doubt, Virtual Goods are not redeemable or refundable for any sum of money or monetary value from Cruderocks or any third party at any time; provided, however, if and to the extent that any Virtual Goods are determined by applicable law to constitute real world currency or property, then they are the property of Cruderocks.
8.2 Acquiring Virtual Goods. You may accrue Virtual Goods in a variety of ways. Cruderocks may distribute Virtual Goods in exchange for taking certain actions (either directly within the Services, or in connection with a third party service), for a fee, or without any fee or required action, in its sole discretion. Cruderocks may charge fees for the right to exercise rights associated with Virtual Goods. You agree that you do not “own” the Virtual Goods and that Cruderocks has the absolute right to manage, regulate, control, modify and/or eliminate such Virtual Goods in its sole discretion, in any general or specific case, and that Cruderocks will have no liability to you based on its exercise of such right. Cruderocks allows you to accumulate and manage your Virtual Goods, and may use terms such as “buy” and “sell” to refer to the grant or transfer of rights to use the Services. Use of terms such as “buy” or “sell” does not indicate any ownership right.
8.3 Additional Terms and Conditions. Without limiting the foregoing, the following rules apply to Virtual Goods:
(a) Virtual Goods may only be redeemed for other Virtual Goods where permitted in the Services;
(b) once you have purchased Virtual Goods, those Virtual Goods are non-refundable and non-exchangeable (whether or not you use them);
(c) Virtual Goods cannot be sold or transferred to anyone;
(d) Virtual Goods cannot be exchanged for cash or any goods or services (except other Virtual Goods as permitted in the Services);
(e) to acquire Virtual Goods, you need to follow the instructions provided in the Services;
(f) the price payable for the Virtual Goods (including any value added tax or other applicable taxes of duties) will be as set out as part of the Services (as applicable), but we reserve the right to change the price of Virtual Goods at any time at our discretion;
(g) we do not make any promises about how or when Virtual Goods may be available and can update or change Virtual Goods at any time;
(h) you may only acquire Virtual Goods from us (or from any person that we authorise for this purpose), or from another authorized user of a Game through the use of a feature included in the Game by Cruderocks expressly for such purpose (such as a gift through the gift shop applicable to that Game), and you must not obtain Virtual Goods from any other person or in any other way or attempt to do so; and
(i) we may limit or block a request to acquire Virtual Goods for any reason.
8.4 Non-Refundable Purchase. In the event you purchase Virtual Goods from Cruderocks, we will transfer the Virtual Goods to you only once that payment has been processed, and you may start using Virtual Goods as soon as you have completed the purchase process. You therefore have no right to cancel any transaction to purchase Virtual Goods after completion of the purchase process and being entitled to download the Virtual Goods.
8.5 Restrictions. You agree and acknowledge that Cruderocks may deny or place limitations or restrictions on any purchase, issue, or redemption of Virtual Goods, individually or with respect to general volume, at any time and for any reason. Cruderocks may halt, suspend, discontinue, or reverse any Virtual Goods transaction (whether proposed, pending or past) in cases of actual or suspected fraud, violations of other laws or regulations, or deliberate disruptions to or interference with the Services, or the service of any affiliated or related third party.
9. User Generated Content
9.1 General. Some Services permit you to create or upload content which you own, have created or otherwise have appropriate rights in (which we refer to in these Terms of Service as “User Generated Content” or “UGC”). UGC includes, for example: Account personas, forum posts, chat posts, voice chat, messenger type features, profile content and any other content or materials contributed by users to, on, or through the Services. If Cruderocks believes that your use or uploading of UGC breaches any of the terms and conditions set forth herein, then Cruderocks may remove, block, edit, move or disable such UGC in its sole discretion. If you contravene any of the terms and conditions herein, Cruderocks reserves the right to suspend or permanently remove availability of your UGC and to take any other steps which we consider appropriate.
9.2 License Grant to Cruderocks. By posting or publishing UGC, you grant Cruderocks a worldwide, non-exclusive, royalty-free right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify, and distribute your UGC, in whole or in part, in any media formats and through any media channels (now known or hereafter developed). Any such use of your UGC by Cruderocks may be without any compensation paid to you.
9.3 License Grant to Other Users. By posting and sharing UGC on the Services or otherwise with another user of the Service, you hereby grant that user a non-exclusive license to access and use such UGC as permitted by these Terms of Service and the functionality of the Service.
9.4 You are solely responsible for your UGC and the consequences of posting or publishing UGC. By posting or publishing UGC on or through the Services, you affirm, represent, and warrant that:
(a) any part of the UGC which comprises or incorporates any of our intellectual property rights remains our property and, as between us and you, we own the UGC which you create that is a derivative work of our intellectual property rights;
(b) you are the creator of or otherwise own the rights in the UGC that you make available to or through the Services, or, for any UGC that is owned by a third party, you have the express authorization of such third party to upload such UGC to or through the Service;
(c) no item of UGC that you upload infringes the intellectual property rights or privacy or any other rights of anyone else or is illegal or breaches these Terms of Services;
(d) you waive and agree not to assert any moral rights or similar rights you may have in UGC;
(e) you are solely responsible for your UGC, and acknowledge that Cruderocks does not pre-screen any UGC and does not endorse, approve, or pre-screen any UGC that you and other users may contribute to Services;
(f) you must not in any way claim or suggest that any UGC is endorsed, supported by, or affiliated with us; and
(g) the UGC you upload complies with all applicable laws legislation and does not contain any material which may be considered offensive, defamatory, illegal or which could cause any reputational loss or embarrassment to Cruderocks or its affiliates.
9.5 USERS OF THE SERVICES CREATE, DOWNLOAD AND USE UGC AT THEIR OWN RISK. WE ARE UNDER NO OBLIGATION TO EDIT OR CONTROL UGC THAT YOU OR OTHER USERS POST OR PUBLISH, AND WILL NOT BE IN ANY WAY RESPONSIBLE OR LIABLE FOR UGC. CRUDEROCKS MAY, HOWEVER, AT ANY TIME AND WITHOUT PRIOR NOTICE, SCREEN, REMOVE, EDIT, OR BLOCK ANY UGC THAT IN OUR SOLE JUDGMENT VIOLATES THESE TERMS OF SERVICE OR IS OTHERWISE OBJECTIONABLE. YOU UNDERSTAND THAT WHEN USING THE SERVICES YOU WILL BE EXPOSED TO UGC FROM A VARIETY OF SOURCES AND ACKNOWLEDGE THAT UGC MAY BE INACCURATE, OFFENSIVE, INDECENT OR OBJECTIONABLE. YOU AGREE TO WAIVE, AND DO HEREBY WAIVE, ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST CRUDEROCKS WITH RESPECT TO UGC. WE EXPRESSLY DISCLAIM ANY AND ALL LIABILITY IN CONNECTION WITH UGC. IF NOTIFIED BY A USER OR CONTENT OWNER THAT UGC ALLEGEDLY DOES NOT CONFORM TO THESE TERMS OF SERVICE, WE MAY INVESTIGATE THE ALLEGATION AND DETERMINE IN OUR SOLE DISCRETION WHETHER TO REMOVE THE UGC, WHICH WE RESERVE THE RIGHT TO DO AT ANY TIME AND WITHOUT NOTICE. FOR CLARITY, CRUDEROCKS DOES NOT PERMIT COPYRIGHT-INFRINGING ACTIVITIES ON THE SERVICE.
10. Feedback and User Submissions
10.1 We are always pleased to hear from our users and welcome specific comments about our Services. Unfortunately, however, our long-standing company policy does not allow us to accept or consider creative ideas, suggestions or materials other than those we have specifically requested. The aim of this policy is to avoid the possibility of future misunderstandings when projects that we develop might seem to others to be similar to their own creative work. Accordingly, we must, regretfully, ask that you do not send us any original creative suggestions, ideas, notes, drawings, concepts or other information such as game ideas or original artwork (“Submissions”).
10.2 Any and all Submissions that you send to us, whether at our specific request or notwithstanding our request that you do not do so, shall be deemed, and shall remain, our property from the time of uploading or transmission.
10.3 Accordingly, you hereby assign to Cruderocks (including as a present assignment of future rights) all intellectual property rights in Submissions that you send to us to the extent owned by you. If for any reason this assignment is not effective, then you agree that Cruderocks shall have a worldwide, perpetual, irrevocable and royalty-free license to do any of the acts restricted by the copyright in these Submissions and to use and exploit any other intellectual property rights in these Submissions and to authorise others to do so, throughout the world for any purpose and in any way whatsoever. To the extent permitted by applicable laws, you also waive any moral rights or rights of a like nature that you may have in such Submissions.
11. Forum Rules
11.1 The Forum Rules set out how we expect you to behave when using any of the Games Forums. Please review the Forum Rules carefully before using any of the Games Forums.
11.2 If you contravene the Forum Rules, we may, in our sole discretion, take some or all of the following actions without any notice to you:
(a) we may restrict your access to the Games Forums to read-only status for a short period of time;
(b) we may restrict your access to the Games Forums to read-only status for a longer period of time;
(c) we may restrict your access to the Games Forums to read-only status permanently; and/or
(d) we may suspend or terminate your Account as provided in section 14.
11.3 If you encounter another user who is contravening any of the Forum Rules, please report this activity to Cruderocks using the “Help” or “Report Abuse” functions in the relevant Games Forum if available, or otherwise contact Customer Support at https://cruderocks.com/contact.
12. Suspension and Termination of Use, Account or Services
12.1 If you violate any provision of these Terms of Service or the EULA,, then we may, at our sole discretion depending on the seriousness of the breach and without any notice to you, take some or all of the following actions:
1. suspend your Account for a short period of time;
2. suspend your Account for a longer period of time; and
3. may close your Account, and
in each case the level of seriousness of the breach shall be determined exclusively by Cruderocks and you agree not to appeal against such Cruderocks decisions.
If we suspend your Account, then during the period of that suspension you will not be able to access your Account or use any of the Services. If we close your Account, then you will never be able to access your Account and we may also prohibit you from accessing or using the Services in future.
We also reserve the right to modify or discontinue any or all of the Services at any time (including, without limitation, by limiting or discontinuing certain features of the Services) without notice to you. We will have no liability whatsoever on account of any change to the Services or any suspension or termination of your access to or use of the Services.
12.2 You may terminate your account at any time by contacting customer service at http://cruderocks.com/contact. If you terminate your Account, you will remain obligated to pay all outstanding fees, if any, relating to your use of the Services incurred prior to termination. Upon any termination of your Account or the Services, we may remove all Virtual Goods from that Account and you will not be entitled to any refunds or compensation..
13. Updates and Interruptions to the Services
13.1 From time to time we may need to update, reset, temporarily interrupt or shut down some or all of the Services. Any of these actions may cause you to lose access to the Services temporarily and/or cause you setbacks within a Game or other aspects of your use of the Services. Please bear in mind that these activities are sometimes required to enable us to continue to provide the Services.
13.2 We shall have no liability to you if the Services or any aspect of them (including any Virtual Goods, accounts, statistics, user ranks or profile information) are interrupted or unavailable for any reason.
14. Links to Third Party Sites
The Services may include hyperlinks to web sites operated by third parties including advertisers and other content providers. Those sites may collect data or solicit personal information from you. We do not control such web sites, and are not responsible for their content, privacy policies, or for the collection, use or disclosure of any information those sites may collect.
15. Beta Tests
15.1 We may give you the opportunity to beta test new games and features of the Sites. Your participation as a beta tester is subject to the following terms and conditions.
15.2 Unless expressly indicated otherwise, all beta tests are confidential. The beta games, including information about features and functionality to be offered as part of the games, are confidential. If you participate in a beta test, you must safeguard and prevent unauthorised access to, copying, disclosure, and unauthorised use of the beta games. You will carry out the testing personally and not provide access to beta games to any other person. Your obligation to keep the beta games confidential will continue until we publicly distribute, or otherwise disclose to the public through no fault of yours, each of the games and the content that you are testing.
15.3 If Cruderocks notifies you that you have been selected as a beta tester for an applicable beta game, you are invited to play the beta game for the sole purpose of evaluating the beta game and identifying errors. Nothing in these Terms of Service or the Sites shall be construed as granting you any rights or privileges of any kind with respect to the beta games. THE BETA GAMES ARE PROVIDED FOR TESTING ON AN “AS IS” BASIS AND WE MAKE NO WARRANTY TO YOU OF ANY KIND, EXPRESS OR IMPLIED.
15.4 When playing certain beta games, you may accumulate or have access to Virtual Goods or other features referred to as treasure, experience points, equipment, or other value or status indicators. We may reset this data when the relevant game completes this testing phase or at any time during the testing process. In this case, all player history and data will be erased and each player will return to novice status.
15.5 By starting a beta game, you agree that:
(a) playing beta games is at your own risk and that you know that the games may include known or unknown bugs;
(b) any value or status indicators that you achieve through game play may be erased at any time;
(c) we have no obligation to make these games available for play without charge for any period of time, nor to make them available at all;
(d) these games may be available only by subscription once the testing process is complete or at any time in the future;
(e) these Terms of Service apply to your use of the games during the testing phase; and
(f) unless otherwise expressly indicated by Cruderocks, you will keep all information about the beta games confidential and not disclose such information to any other person.
16. Epilepsy Warning
Certain people are susceptible to epileptic seizures or loss of consciousness when exposed to certain flashing lights or light patterns in everyday life. Such people may have a seizure while watching certain monitor images or playing certain video games. This may happen even if the person has no medical history of epilepsy or has never had any epileptic seizures. If you or anyone in your family has ever had symptoms related to epilepsy (seizures or loss of consciousness) when exposed to flashing lights, consult your doctor prior to playing. We advise that parents should monitor the use of video games by their children. If you or your child experience any of the following symptoms: dizziness, blurred vision, eye or muscle twitches, loss of consciousness, disorientation, any involuntary movement or convulsion, while playing a video game, IMMEDIATELY discontinue use of the video game and consult your doctor. Please also note that when using a video game you should take certain standard health and safety precautions, including avoiding playing the game when tired and not had much sleep, taking 10 to 15 minute breaks every hour, sittinga reasonable distance from the screen, and playing the game in a well-lit environment.
You agree that you are responsible for your use of the Services, and you agree to defend, indemnify, and hold harmless Cruderocks and its affiliates, and their officers, directors, employees, consultants, and agents (collectively, the “Cruderocks Entities”) from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorneys’ fees and costs, arising out of or in any way connected with (i) your access to, use of, or alleged use of the Services; (ii) your violation of these Terms of Service or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) your violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (and without limiting your indemnification obligations with respect to such matter), and in such case, you agree to cooperate with our defense of such claim.
18. Disclaimers; No Warranties
EXCEPT AS OTHERWISE SET FORTH HEREIN OR IN AN APPLICABLE END USER LICENSE AGREEMENT, THE SERVICES, GAMES, ANCILLARY SERVICES AND ALL CONTENT AVAILABLE THROUGH THE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE CRUDEROCKS ENTITIES SPECIFICALLY (BUT WITHOUT LIMITATION) DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER STATUTORY, EXPRESS, IMPLIED OR OTHERWISE, RELATING TO THE SERVICES AND ALL CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING BUT NOT LIMITED TO (i) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (ii) ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE Cruderocks ENTITIES DO NOT WARRANT THAT THE SERVICES OR ANY PART THEREOF, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICES, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICES AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICES AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM USED IN CONNECTION WITH THE SERVICES) OR LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICES OR THE DOWNLOAD OR USE OF ANY GAMES, MATERIALS OR CONTENT.
19. Limitation of Liability
19.1 IN NO EVENT WILL THE CRUDEROCKS ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES OR COST OF PROCURING SUBSTITUTE GOODS OR SERVICES) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICES OR ANY GAMES, MATERIALS OR CONTENT ON OR THROUGH THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT THE CRUDEROCKS ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.
19.2 YOU AGREE THAT THE AGGREGATE LIABILITY OF THE CRUDEROCKS ENTITIES TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF RELATING TO THE USE OF OR ANY INABILITY TO USE THE SERVICE (INCLUDING ANY GAMES, MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE) OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF (i) THE AMOUNTS YOU HAVE PAID TO CRUDEROCKS IN THE 12 MONTHS PRIOR TO THE CLAIM FOR ACCESS TO AND USE OF THE SPECIFIC SERVICE OR GAME FROM WHICH THE CLAIM AROSE OR (ii) $100.
19.3 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
19.4 EACH PROVISION OF THESE TERMS OF SERVICE THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS OF SERVICE BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 21 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
20. Governing Law and Jurisdiction
These Terms of Service and any dispute, claim or obligation (whether contractual or non-contractual) arising out of or in connection with it or its subject matter or formation shall be governed by laws of the State of California, USA, without regard to the conflict of laws principles thereof. To the extent that any lawsuit or court proceeding is permitted hereunder, you and Cruderocks agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Alameda County, California, USA for the purpose of litigating all such disputes.
21. Dispute Resolution and Arbitration
21.1 Generally. In the interest of resolving disputes between you and Cruderocks in the most expedient and cost effective manner, you and Cruderocks agree that any and all disputes arising in connection with these Terms of Service shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of these Terms of Service, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of these Terms of Service. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS OF SERVICE, YOU AND CRUDEROCKS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
21.2 Exceptions. Notwithstanding subsection 22.1, we both agree that nothing herein will be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.
21.3 Arbitrator. Any arbitration between you and Cruderocks will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms of Service, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Cruderocks.
21.4 Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Notice”). Cruderocks’s address for Notice can be obtained after appropriate request via http://cruderocks.com/contact. The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Cruderocks may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Cruderocks shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. In the event our dispute is finally resolved through arbitration in your favor, Cruderocks shall pay you (i) the amount awarded by the arbitrator, if any, (ii) the last written settlement amount offered by Cruderocks in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.00, whichever is greater.
21.5 Fees. In the event that you commence arbitration in accordance with these Terms of Service, Cruderocks will reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees shall be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in Alameda County, California, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephonic hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse Cruderocks for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
21.6 No Class Actions. YOU AND CRUDEROCKS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Cruderocks agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
21.7 Modifications. In the event that Cruderocks makes any future change to this arbitration provision (other than a change to Cruderocks’s address for Notice), you may reject any such change by sending us written notice within 30 days of the change to Cruderocks’s address for Notice, in which case your account with Cruderocks shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject shall survive.
21.8 Enforceability. If Subsection 22.6 is found to be unenforceable or if the entirety of this Section 22 is found to be unenforceable, then the entirety of this Section 22 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 22 shall govern any action arising out of or related to these Terms of Service.
22. Copyright and Trade Mark Notices
“High Octane Drift”, “Driftheads”, “Cruderocks” and their respective logos are trade marks or registered trade marks of Cruderocks. You may not use or display such trademarks in any manner, except as expressly set out in these Terms of Service. All third party trademarks and service marks that appear in the Games are the property of their respective owners and all rights in them are reserved.
23. Contact Us
If you have any questions, complaints, or comments regarding these Terms of Service, please contact us at http://cruderocks.com/contact.If you are a California resident, you may have these Terms of Service mailed to you electronically by sending a letter to the address above with your electronic mail address and a request for these Terms of Service.