BANDAI NAMCO ENTERTAINMENT END USER LICENSE AGREEMENT
Last Updated: April 1, 2018
PLEASE READ THIS AGREEMENT CAREFULLY. BY ACCESSING OR USING OUR GAMES OR SERVICES, YOU AGREE TO BE BOUND BY ALL TERMS DESCRIBED HEREIN AND ALL TERMS INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT ACCESS OR USE OUR GAMES OR SERVICES.
THIS AGREEMENT CONTAINS, AMONG OTHER THINGS, AN ARBITRATION PROVISION (SECTION 19(a)) AND A CLASS ACTION WAIVER (SECTION 19(b)), WHICH DO NOT APPLY TO YOU IF YOU RESIDE OUTSIDE THE UNITED STATES.
If you are a resident of Germany, some specific clauses apply to you. See Sections 7 and 15 for details.
If you are a resident of the European Union, a specific clause applies to you. See Section 10 for details.
If you are a resident of Australia, a specific clause applies to you. See Section 15 for details.
If you are a resident of North, Central, or South America, excluding the United States, a specific clause applies to you. See Section 18 for details.
If you are a resident of the United States a specific clause applies to you. See Section 19 for details.
This End User License Agreement (this “Agreement”) is a contract between you and either BANDAI NAMCO Entertainment Inc. (“BNEI”), BANDAI NAMCO Entertainment America Inc. (“BNEA”) or BANDAI NAMCO Entertainment Europe S.A.S. (“BNEE”) as applicable (in either case, “BANDAI NAMCO”, “us”, “we” or “our”) and applies to your access to, and use of, the game in which this Agreement appears (or if posted online, the game referenced above), including, without limitation, any multi-player, online, or downloadable portions thereof and any related written or electronic documentation or content (the “Game”). The Game is licensed, and not sold, and this Agreement confers no title or ownership to the Game or any copy thereof. This Agreement does not alter in any way the terms or conditions of any other agreement you may have with BANDAI NAMCO for other products or services. Any changes, additions, or deletions by you are not acceptable, and are hereby expressly rejected by BANDAI NAMCO.
Additional terms provided by us (including, but not limited to, posted fees, billing procedures, and promotion rules) may apply to particular functionalities and features that are part of the Game. Unless otherwise indicated, any additional applicable terms are incorporated by reference into this Agreement. In the event of a conflict between this Agreement and any additional terms, the additional terms shall govern with respect to such particular functionalities and features.
- 1.CONTRACTING PARTY.
- The BANDAI NAMCO entity with which you are entering into a contractual relationship with depends on your place of residence. If you are a resident of Asia, this Agreement is between you and BNEI. If you are a resident of North, Central, or South America, this Agreement is between you and BNEA. If you are a resident of anywhere else, this Agreement is between you and BNEE.
- 3.PRECONDITIONS OF THE LICENSES.
The licenses granted in this Agreement are specifically conditioned upon the following and your full compliance with all other terms and conditions set forth in this Agreement:
- a) You have reached the age of majority in your jurisdiction. If you are under the age of majority in your jurisdiction, your parent or legal guardian must agree to be bound by this Agreement and any applicable additional terms;
- b) You agree to and comply with all of the terms in this Agreement, and any additional terms as may be applicable to the Game;
- c) Your access and use of the Game is subject to certain security measures, including, without limitation, registering the Game with a serial code, having continuous access to the Internet, and accepting certain security/digital rights management features. Failure to accept and fully-comply with such security measures may partially or completely impair your use of the Game.
- d) Your access and use of the Game is in accordance with all applicable local, state, national, and foreign laws and regulations.
- e) You access and use the Game only on local machines, running validly licensed copies of operating systems on which the Game was designed to operate (the “Hardware”);
f) If you are a resident of North, Central, or South America:
Purchase and use of items are subject to the Network Terms of Service and User Agreement. This online service has been sublicensed to you by Sony Interactive Entertainment America.
If you are a resident of Asia:
You have accepted and are in compliance with all terms and conditions applicable to the Hardware, including any terms of such platform regarding the checkout process.
If you are a resident elsewhere:
Any content purchased in an in-game store will be purchased from Sony Interactive Entertainment Network Europe Limited (“SIENE”) and be subject to PlayStation™Network Terms of Service and User Agreement which is available on the PlayStation™Store. Please check usage rights for each purchase as these may differ from item to item. Unless otherwise shown, content available in any in-game store has the same age rating as the game.
- 4.LIMITED USE LICENSE.
- b) The preceding states the entirety of your rights with respect to the Game, and we reserve all rights in and to the Game not expressly granted to you in this Agreement. Without limiting the foregoing, you will not do, or authorize or permit any third party to do, any of the following: (i) distribute, copy, license, rent, or sell the Game (except as expressly permitted by this license or the applicable platform usage rules); (ii) use the Game for any purpose other than your own personal, noncommercial use; (iii) reverse engineer, decompile, disassemble, or attempt to discover the source code for the Game; (iv) modify, alter, or create any derivative works of the Game; (v) remove, alter, or obscure any copyright, trademark, or other proprietary rights notice on or in the Game; (vi) use the Game for purposes for which it is not designed; (vii) use the Game on any Hardware that you do not own or exclusively control; (viii) circumvent, or attempt to circumvent, any security measures in the Game; or (ix) attempt to obscure or mask your region when accessing any online features of the Game.
- The Game and all content (other than User Content, as defined below) and other materials in the Game or available through the Game, including, without limitation, the BANDAI NAMCO logo, and all designs, text, graphics, pictures, information, data, software, sound files, Game Currency, Virtual Items, other files and the selection and arrangement thereof are the property of BANDAI NAMCO or its licensors and are protected by copyright and other intellectual property laws and treaties. Notwithstanding any provision to the contrary herein, you agree that you have no right or title in or to any content that appears in the Game, including without limitation any Game Currency and Virtual Items.
- a) Subject to your satisfaction of the preconditions set forth in Section 3, this Agreement will remain in full force and effect while you use the Game. Either party may terminate this Agreement with or without cause at any time with reasonable prior notice. You may terminate this Agreement by deleting or destroying all copies of the Game in your possession, custody, or control. BANDAI NAMCO shall not be liable to you or any third party for termination of your use of the Game.
- b) Without limiting any other rights of BANDAI NAMCO, if you fail to comply with the terms and conditions of this Agreement, BANDAI NAMCO retains the right to immediately limit, suspend, or terminate your license to the Game.
- c) Upon termination of this Agreement: (i) your license to the Game shall cease immediately; and (ii) you will not be entitled to a refund of any fees, including any unused fees, if any, except for Purchased Game Currency refunded as required by applicable law.
- d) Sections 4(b), 5, 6(d), 8, 11, 14-23 shall survive termination of this Agreement.
BANDAI NAMCO reserves the right to change or modify this Agreement at any time and for any reason at BANDAI NAMCO’s sole discretion. If BANDAI NAMCO makes changes to this Agreement, we will provide one month prior notice of such changes, such as by providing notice through the Game. Your continued use of the Game after the effective date of such changes will confirm your acceptance of the revised Agreement.
If you are a resident of Germany, in addition to the above terms in this section, the following additional wording will apply to you:
BANDAI NAMCO reserves the right to change or modify this Agreement at any time, with the exception of the provisions determining the parties' primary contractual obligations hereunder. The parties' primary contractual obligations will not be changed in the manner described in this section. BANDAI NAMCO will inform you of any proposed modification of this Agreement, provide you with the proposed new version of this Agreement and notify you of the date when the new Agreement will be implemented. Any change is subject to a prior written (e-mail sufficient) notice of six weeks. If you do not expressly refuse the respective modification within six weeks from the date on which the new Agreement is implemented, you are deemed to have approved the modification of the Agreement. In the aforementioned notice of the proposed modification, BANDAI NAMCO will inform you expressly and specifically about the right to object within the six week period and the consequences of not expressly refusing the proposed modification.
- 8.MODIFICATION OF THE GAME.
- BANDAI NAMCO reserves the right to modify or discontinue, temporarily or permanently, the Game or any features or portions thereof with prior reasonable notice and, in case of emergency or if absolutely necessary, without prior notice. You agree that BANDAI NAMCO will not be liable for any modification, suspension, or discontinuance of the Game or any part thereof.
- 9.IN-GAME CURRENCY AND VIRTUAL ITEMS.
- a) BANDAI NAMCO may offer you the ability to: (i) purchase a limited license to use in-game currency (“Purchased Game Currency”); (ii) earn a limited license to use in-game currency by performing specified tasks in the Game (together with the Purchased Game Currency, (“Game Currency”); and/or (iii) earn a limited license, and/or purchase a limited license with Game Currency, to virtual goods and services made available by BANDAI NAMCO in the Game (“Virtual Items”). If BANDAI NAMCO offers the ability to purchase or earn such licenses, BANDAI NAMCO shall grant you a non-exclusive, non-transferable, revocable, limited right and license to use such Game Currency or Virtual Items, as applicable, for your personal, non-commercial use exclusively in the Game, subject to the terms of this Agreement and your compliance therewith.
- b) Game Currency may only be redeemed for Virtual Items for use in the Game and neither Game Currency nor Virtual Items are redeemable for money, any thing of monetary value, or for any monetary equivalent from BANDAI NAMCO or any other person or entity, except as otherwise required by applicable law. Game Currency and Virtual Items do not have an equivalent value in real currency and do not act as a substitute for real currency. Neither BANDAI NAMCO nor any other person or entity has any obligation to exchange Game Currency or Virtual Items for anything of value, including, but not limited to, real currency. You acknowledge and agree that BANDAI NAMCO may engage in actions that may impact the in-game attributes or perceived value of Game Currency and/or Virtual Items at any time, except as prohibited by applicable law. BANDAI NAMCO, in its sole discretion, may impose limits on the amount of Game Currency that may be purchased, earned, or redeemed.
- c) All purchases of Purchased Game Currency are final and are not refundable, transferable, or exchangeable under any circumstances, except as otherwise required by applicable law. Except for the purchase price of Purchased Game Currency and certain Virtual Items, BANDAI NAMCO does not charge any fees for the access, use, or non-use of Game Currency or Virtual Items.
- d) You may not transfer, sell, gift, exchange, trade, lease, sublicense, or rent Game Currency or Virtual Items except in the Game and as expressly permitted by BANDAI NAMCO. Except as otherwise agreed herein, BANDAI NAMCO reserves and retains all rights, title, and interest in and to the Game Currency and Virtual Items.
- e) The licenses granted hereunder to Game Currency and Virtual Items will terminate upon termination of this Agreement in accordance with Section 6, except as otherwise provided herein.
- 10.RIGHT OF WITHDRAWAL.
- If you are a resident of a member state of the European Union, you have certain withdrawal rights for purchases of Game Currency or Virtual Items made with real currency. However, you expressly waive your withdrawal right once the performance of the service begins when your account is provided access to the Game Currency or Virtual Items. You agree that: (i) download of Game Currency or Virtual Items begins immediately after purchase; and (ii) you lose your right of withdrawal once the purchase is complete.
- 11.USER CONTENT.
- By posting any communication, information, intellectual property, material, messages, photos, graphics, videos, URLs, and other items or content to the Game (“User Content”), to the extent permitted by applicable local law, you hereby grant BANDAI NAMCO a non-exclusive, royalty-free, fully transferable and sub-licensable worldwide license for the whole duration of the applicable legal protection of intellectual rights to use the User Content in connection with the Game and related goods and services including the rights to reproduce, copy, adapt, modify, perform, create derivative works from, display, publish, broadcast, transmit, or otherwise use, distribute, exploit and communicate to the public by any and all means and media whether now known or hereafter devised without any further notice or compensation of any kind to you. To the extent permitted by applicable law, you hereby waive any moral rights of paternity, publication, reputation, or attribution with respect to BANDAI NAMCO’s and other players’ use and enjoyment of such assets in connection with the Game and related goods and services under applicable law. The license grant to BANDAI NAMCO survives any termination or revocation of this Agreement.
- 12.ONLINE CONDUCT.
Unless through the intentional fault or gross negligence of BANDAI NAMCO, BANDAI NAMCO is not responsible or liable for the conduct of any users, whether or not such conduct relates to the access or use of the Game. BANDAI NAMCO may suspend or terminate your access to the Game at any time if you violate the terms of this Section 12 or any other terms and conditions of this Agreement. BANDAI NAMCO may (for example in response to a claim from a copyright owner) review any User Content that is uploaded, published, stored, or displayed on the Game (hereinafter, “posted”) provided that in the case of User Content shared as a part of any private message within the Game, BANDAI NAMCO will not screen or review such content unless at least one party to the communication grants its consent (e.g. by reporting the message to BANDAI NAMCO as objectionable). BANDAI NAMCO reserves the right to delete or refuse to take online any User Content. Although BANDAI NAMCO does not regularly screen, edit, or monitor any of the User Content posted on the Game, BANDAI NAMCO reserves the right, and has absolute discretion, to remove, screen, or edit any User Content posted through the Game if BANDAI NAMCO determines in its reasonable discretion that such User Content violates this Agreement and/or any third party right, applicable law, rule, or regulation. You may not use the Game if you have previously been suspended or removed from the Game. You are solely responsible for any User Content that you post or transmit to any users or third parties. Specifically, you agree not to do, attempt to do, or cause another to do any of the following in connection with the Game:
- a) post any User Content that is unlawful, libelous, defamatory, offensive, obscene, pornographic, indecent, vulgar, lewd, sexually explicit, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, or fraudulent; promotes or encourages any illegal or other antisocial activity, including hacking; promotes racism, bigotry, hatred, or physical or other harm of any kind against any group or individual or is otherwise objectionable;
- b) post any User Content that may infringe any patent, trademark, trade secret, copyright, or other intellectual or proprietary right of any person or entity;
- c) engage in commercial activities or commercial sales, including transmission of any commercial advertisements or solicitations;
- d) enter, disclose or disseminate any personal information about anyone (including you);
- e) impersonate any person or entity, including any BANDAI NAMCO officials, forum leaders, guides, hosts, employees, or agents, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- f) impede or disrupt the Game or the normal flow of Game play or dialogue or use vulgar language, abusiveness, excessive shouting (e.g., ALL CAPS), “spamming,” or any other disruptive or detrimental methods that disturb other users of the Game;
- g) use or exploit any bugs, errors, or design flaws to obtain unauthorized access to the Game, to gain an unfair advantage over other players, or to cheat or utilize unauthorized exploits in connection with the Game, including but not limited to accessing portions of the Game that you are not authorized to access and using any bots, emulators, or other unauthorized third party tools;
- h) do anything that interferes with the ability of other users to enjoy playing the Game in accordance with its rules or that materially increases the expense or difficulty of BANDAI NAMCO or the platform provider in maintaining the Game for the enjoyment of all its users.
- i) intentionally disconnect from the network during online play or allow yourself to be defeated by a given player repeatedly to help boost their rankings or win counts in the Game.
- j) trade, sell, auction, or otherwise transfer or attempt to transfer any Virtual Items or Game Currency outside the Game;
- k) otherwise violates the terms of this Agreement, other policies communicated by BANDAI NAMCO, or creates liability for BANDAI NAMCO.
- 13.COPYRIGHT POLICY.
Copyright owners or agents of copyright owners who believe that anything in the Game infringes upon any copyright owned or controlled by them, may submit a notification of such infringement with our designated Copyright Agent as set forth below. The processing of your notification can be expedited by providing the information and declarations set out in 17 U.S.C. §512(c)(3). Compliance with this statute is not a prerequisite for infringement notification except for copyright owners located in the United States. Any person who knowingly misrepresents in a notification that the material or activity is infringing, may be liable for any damages, including costs and attorneys’ fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the accused material or activity. BANDAI NAMCO has adopted a policy of terminating, in appropriate circumstances and at BANDAI NAMCO’s sole discretion, users who are repeat infringers of the intellectual property rights of third parties. Provided however that, BANDAI NAMCO also may limit or terminate access to the Game of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
BANDAI NAMCO Entertainment Inc.
Attn: Copyright Agent
5-37-8 Shiba, Minato-ku,
- 14.THIRD PARTY CONTENT.
- Content from any users, advertisers, and other third parties may be made available to you through the Game. Because we do not control third party content, you agree that unless due to intentional fault or gross negligence of BANDAI NAMCO, we are not responsible for any third party content, make no guarantees about the accuracy or quality of the information in third party content; and assume no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful third party content. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by BANDAI NAMCO, except where expressly stated by BANDAI NAMCO.
YOU ACKNOWLEDGE AND AGREE THAT BANDAI NAMCO AND ITS LICENSORS AND SUPPLIERS ARE NOT RESPONSIBLE OR LIABLE FOR ANY VIRUSES OR OTHER DISABLING FEATURES THAT AFFECT YOUR ACCESS TO OR USE OF THE GAME OR ANY INCOMPATIBILITY AMONG THE GAME, OTHER SERVICES, AND HARDWARE. THE GAME AND ALL OTHER SERVICES ARE PROVIDED “AS IS.” EXCEPT AS MIGHT BE DESCRIBED HEREIN, BANDAI NAMCO AND ITS LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES OR CONDITIONS OF ANY KIND (EXPRESS OR IMPLIED AND ARISING BY LAW OR OTHERWISE) INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
Some jurisdictions do not allow the disclaimer of implied terms nor the exclusion or limitation of warranties or guarantees in contracts with consumers, so some or all of the disclaimers in this section may not apply to you.
If you are a resident of Australia, in addition to the above terms in this section, the following additional wording will apply to you:
This Section 15 does not intend to limit or reduce any mandatory or statutory consumers’ rights or remedies that apply under the laws of your local jurisdiction. To the extent permitted by law, the conditions and warranties implied by the Schedule 2 of the Competition and Consumer Act 2010 (Cth) (the Australian Consumer Law) are entirely excluded from this Agreement, and to the extent that they may not be excluded, you acknowledge that the liability of BANDAI NAMCO is limited to, and acknowledge that, it is fair and reasonable so to limit BANDAI NAMCO’S liability to:
(i) the supplying of the Game again; or
(ii) the payment of the cost of having the Game supplied again.
If you are a resident of Germany, in addition to the above terms in this section, the following additional wording will apply to you:
To the extent any services are provided against a fee, the following applies: BANDAI NAMCO warrants that the Game will operate materially as specified in the applicable documentation or product description. In the event of any defect, BANDAI NAMCO will provide subsequent performance by either removing the defect (e.g. by providing a patch) or providing a new version of the service that does not have the defect, within a reasonable time period allowing for at least three attempts at subsequent performance. If subsequent performance definitely fails, you may exercise your other statutory rights, provided however that BANDAI NAMCO’s no-fault liability for initial defects under sec. 536a para 1. of the German Civil Code is excluded in any event.
- YOU ACKNOWLEDGE AND AGREE THAT BANDAI NAMCO IS NOT RESPONSIBLE OR LIABLE FOR ANY DELAYS OR FAILURES YOU MAY EXPERIENCE IN INITIATING, CONDUCTING, OR COMPLETING ANY TRANSMISSIONS OR TRANSACTIONS IN CONNECTION WITH THE GAME IN AN ACCURATE OR TIMELY MANNER. Further, BANDAI NAMCO cannot and does not promise or ensure that you will be able to access the online, multi-player, or downloadable portions of the Game whenever you want, and there may be extended periods of time when you cannot access such portions of the Game. BANDAI NAMCO does not ensure continuous, error-free, secure, or virus-free operation of any online, multi-player, or downloadable portions of the Game or continued operation or availability of any given server.
- 17.LIMITATION ON LIABILITY.
- EXCEPT FOR (1) DEATH OR PERSONAL INJURY CAUSED BY BANDAI NAMCO’S NEGLIGENCE, (2) FRAUD OR FRAUDULENT MISREPRESENTATION BY BANDAI NAMCO, (3) INTENTIONAL ACTS OR GROSS NEGLIGENCE OF BANDAI NAMCO, (4) LOSS OR DESTRUCTION OF TANGIBLE PERSONAL PROPERTY CAUSED BY THE USE OF THE GAME, AND (5) ANY OTHER LIABILITY WHICH CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW, IN NO EVENT SHALL BANDAI NAMCO OR ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, AND OTHER PARTNERS AND SUPPLIERS BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY OTHER DAMAGES INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE GAME OR THE CONTENT CONTAINED IN OR ACCESSED THROUGH THE GAME OR THE FAILURE TO PROVIDE SUPPORT SERVICES. IN THE EVENT OF SLIGHT OR ORDINARY NEGLIGENCE, OR BREACH OF BANDAI NAMCO’S ESSENTIAL OBLIGATIONS UNDER THIS AGREEMENT, BANDAI NAMCO’S LIABILITY SHALL BE LIMITED TO DIRECT AND FORESEEABLE DAMAGES SUFFERED BY YOU. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF BANDAI NAMCO, WHETHER IN CONTRACT, WARRANTY, TORT, PRODUCT LIABILITY, STRICT LIABILITY, INTELLECTUAL PROPERTY INFRINGEMENT OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE GAME OR TO THESE TERMS EXCEED ONE HUNDRED DOLLARS ($100) OR, IF HIGHER, THE AMOUNT PAID BY YOU TO BANDAI NAMCO FOR YOUR USE OF THE GAME. THIS SECTION 17 DOES NOT LIMIT ANY MANDATORY OR STATUTORY GUARANTEES THAT CANNOT BE LIMITED BY CONTRACT UNDER THE LAWS OF YOUR LOCAL JURISDICTION.
- 18.DISPUTE RESOLUTION.
THIS SECTION 18 APPLIES TO YOU ONLY IF YOU RESIDE IN NORTH, CENTRAL, AND SOUTH AMERICA, OTHER THAN THE UNITED STATES.
If you are a resident of any nation of the Americas, other than the United States of America, either you or BNEA may refer any dispute relating to or arising from this Agreement or the Game to alternative dispute resolution (such as conciliation or arbitration) with the prior written consent of the other party. Notwithstanding the foregoing, the terms of this Agreement will not prevent you from bringing any dispute or claim that may be subject to this Section 18: (i) to the attention of any federal, state, or local government agencies that can, if the law allows, seek relief from BNEA on your behalf; (ii) bringing against BNEA, in any court of competent jurisdiction, any claim that is not arbitrable or for which arbitration is prohibited or restricted by applicable law; or (iii) from bringing any claim before a small claims court, subject to the jurisdictional limitations and requirements of such small claims court.
- 19.DISPUTE RESOLUTION.
THIS SECTION 19 APPLIES TO YOU ONLY IF YOU RESIDE IN THE UNITED STATES.
If you are a resident of the United States of America, by accepting the terms of this Agreement, you and BNEA: (i) agree to resolve certain disputes through mandatory binding arbitration, as set forth in Section 19(a), and each subpart thereof (collectively, the “Arbitration Agreement”); and (ii) expressly waive the right to a trial by jury or to participate in any class action brought against the other party, pursuant to Section 19(b) (the “Class Action Waiver”); unless (iii) you exercise your right to opt out of the Arbitration Agreement and/or the Class Action Waiver, as set forth in Section 19(c).
a) MANDATORY, BINDING ARBITRATION.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AND BNEA: (i) ACKNOWLEDGE AND AGREE TO RESOLVE ALL DISPUTES AND CLAIMS BETWEEN YOU AND BNEA THROUGH BINDING ARBITRATION, PURSUANT TO THE FEDERAL ARBITRATION ACT, INCLUDING WITHOUT LIMITATION (EXCEPT AS EXPRESSLY SET FORTH IN SECTION 19.a.iii) ANY DISPUTES OR CLAIMS BASED ON LEGAL THEORIES OF BREACH OF CONTRACT, TORTIOUS INJURY, STATUTORY VIOLATIONS, FRAUD, UNFAIR COMPETITION, RIGHTS OF PRIVACY, MISREPRESENTATION, OR ANY OTHER LEGAL THEORY, THAT MAY ARISE OUT OF OR RELATE TO ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND BNEA, ANY TERM OR PROVISION OF THIS AGREEMENT, OR YOUR ACCESS TO OR USE OF THE GAME (EACH, A “CLAIM”); (ii) EXPRESSLY AND IRREVOCABLY WAIVE ANY RIGHT TO PURSUE ANY CLAIMS IN COURT OR TO HAVE ANY CLAIMS HEARD OR TRIED BEFORE A JUDGE OR JURY; (iii) SHALL NOT BRING OR PARTICIPATE IN A CLASS OR REPRESENTATIVE ARBITRATION AGAINST THE OTHER PARTY, EVEN IF OTHERWISE PERMITTED BY THE FEDERAL ARBITRATION ACT; AND (iv) SHALL NOT SEEK TO CONSOLIDATE OR COMBINE ANY ARBITRATION OF ANY CLAIM BY YOU OR BNEA WITH ANY ACTION OR ARBITRATION BROUGHT BY OR AGAINST ANY THIRD PARTY, WITHOUT THE EXPRESS WRITTEN CONSENT OF EACH SUCH THIRD PARTY AND BOTH PARTIES TO THIS AGREEMENT. UNLESS YOU SUBMIT A PROPER OPT OUT NOTICE (IN STRICT COMPLIANCE WITH SECTION 19(c)), YOU AND BNEA AGREE THAT ANY CLAIMS AGAINST THE OTHER PARTY WILL ONLY BE CONDUCTED THROUGH MANDATORY, BINDING ARBITRATION.
i) Pre-Arbitration Informal Dispute Resolution.
Prior to initiating arbitration of any Claim subject to this Arbitration Agreement, you and BNEA agree to make reasonable, good faith efforts to informally resolve any dispute or Claim between you and BNEA. The party seeking to raise such dispute or Claim shall send to the other party a written notice describing the nature and basis of such dispute or Claim and identifying the relief sought. All such written notices to BNEA must be sent via first class mail to: BANDAI NAMCO Entertainment America Inc., Attn: Legal & Business Affairs Department, 2051 Mission College Blvd., Santa Clara, CA 95054, USA. If you and BNEA do not agree to resolve such dispute or Claim within 30 days after such written notice is received, the party seeking to raise such dispute or Claim may initiate an arbitration action against the other, as permitted by the Arbitration Agreement, above.
ii) Arbitration Procedure.
Arbitration is a legally-binding process, through which a party may seek legal remedies from or against another party, similar to a legal action brought before a court, but that generally imposes fewer strict procedural formalities, is held before a third party, neutral arbitrator (instead of before a judge or jury), provides for more limited discovery and potentially reduced legal fees for each party, and is subject to limited review by courts. The procedure for arbitration of any Claim under this Arbitration Agreement will be governed by the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where applicable, the AAA’s Supplementary Procedures for Consumer Related Disputes, both of which are available at: http://www.adr.org. Notwithstanding the foregoing, you and BNEA agree that any such arbitration will be conducted in English, and permit the electronic submission of documents and allow participation by phone or by teleconference, or in person, at a mutually agreed location.
iii) Excluded Claims.
Notwithstanding the foregoing, the terms of this Arbitration Agreement will not prevent you or BNEA from bringing any Claim: (i) to the attention of any federal, state, or local government agencies with the governmental authority and competent jurisdiction to seek relief on your or BNEA’s behalf, from the other party; or (ii) before a small claims court, subject to the jurisdictional limitations and requirements of such small claims court.
iv) Severability of Arbitration Agreement.
You and BNEA agree that, no provision of this Arbitration Agreement shall be enforceable against you or BNEA and all Claims shall be governed by Sections 20(a) and 21(a), below, in the event either: (i) a court of competent jurisdiction conclusively determines that any term or provision of this Arbitration Agreement is unenforceable, prohibited by applicable law, or inapplicable to any Claim; or (ii) you submit a proper Opt Out Notice (in compliance with Section 19(c)), wherein you have expressed your election to opt out of this Arbitration Agreement.
- i) Pre-Arbitration Informal Dispute Resolution.
b) CLASS ACTION WAIVER.
IF YOU ARE A RESIDENT OF THE UNITED STATES OF AMERICA, BY ACCEPTING THE TERMS OF THIS AGREEMENT, YOU AND BNEA HEREBY AGREE: (i) THAT EACH CLAIM IS PERSONAL TO YOU AND BNEA, AND SHALL ONLY BE CONDUCTED AS AN INDIVIDUAL ARBITRATION (OR AN INDIVIDUAL COURT PROCEEDING, WITH RESPECT TO CLAIMS EXCLUDED FROM THE ARBITRATION AGREEMENT, PURSUANT TO SECTION 19.a.iii) AND NOT AS A CLASS ACTION OR OTHER FORM OF REPRESENTATIVE ACTION; (ii) EXPRESSLY WAIVE ANY RIGHT TO FILE OR PARTICIPATE IN A CLASS ACTION OR SEEK RELIEF ON A CLASS OR REPRESENTATIVE BASIS; AND (iii) THE ARBITRATOR (OR COURT, WITH RESPECT TO CLAIMS EXCLUDED FROM THE ARBITRATION AGREEMENT, PURSUANT TO SECTION 19.a.iii) MAY ONLY CONDUCT AN INDIVIDUAL ARBITRATION (OR COURT ACTION, WITH RESPECT TO CLAIMS EXCLUDED FROM THE ARBITRATION AGREEMENT, PURSUANT TO SECTION 19.a.iii), MAY NOT CONSOLIDATE MORE THAN ONE INDIVIDUAL’S CLAIMS, AND MAY NOT PRESIDE OVER ANY FORM OF REPRESENTATIVE OR CLASS PROCEEDING RELATING TO SUCH CLAIMS. UNLESS YOU SUBMIT A PROPER OPT OUT NOTICE (AS DESCRIBED IN SECTION 19(c)), YOU AND BNEA 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.
i) Severability of Class Action Waiver.
You and BNEA agree that, no provision of this Class Action Waiver shall be enforceable against you or BNEA and all Claims shall be governed by Sections 20(a) and 21(a), below, in the event either: (i) a court of competent jurisdiction conclusively determines that any term or provision of this Class Action Waiver is unenforceable, prohibited by applicable law, or inapplicable to any Claim; or (ii) you submit a proper Opt Out Notice (in compliance with Section 19(c)), wherein you have elected to opt out of this Class Action Waiver. In no event may the severance of the Class Action Waiver be interpreted or deemed to constitute consent by you or BNEA to participate in a class action or class arbitration.
- i) Severability of Class Action Waiver.
c) OPT OUT PROCEDURE.
You have the right to opt out and not be bound by the foregoing Arbitration Agreement and Class Action Waiver, by sending a written notice of your election to opt out from such Arbitration Agreement and/or Class Action Waiver (the “Opt Out Notice”), in strict compliance with the following requirements of Sections 19.c.i – 19.c.iii:
i) Form & Address.
Your Opt Out Notice must be sent to the following address: BANDAI NAMCO Entertainment America Inc., ATTN: Legal & Business Affairs, 2051 Mission College Blvd., Santa Clara, CA 95054, USA, and either by: (i) first class mail, postage prepaid, certified and return receipt requested; or (ii) overnight courier service (such as Federal Express).
ii) Time Limitations.
Unless a longer period is required by applicable law, your Opt Out Notice must be postmarked (if sent by first class mail) or deposited (if sent by overnight courier service) within: (i) 30 days of your purchase of your copy of the Game; or (ii) if no purchase was made, then within 30 days of the date on which you first accessed or used your copy of the Game.
iii) Required Information.
Your Opt Out Notice must include: (i) the title of the specific Game to which your Opt Out Notice is intended to apply; (ii) your first and last name; (iii) your address; (iv) your phone number; (v) your email address; (vi) if you are a registered user of the Game or any other BNEA product or service, each of your usernames for the Game and such other BNEA products and services; and (vii) a statement that you do not agree to the Arbitration Agreement and/or to the Class Action Waiver. BNEA may use the foregoing information included in the Opt Out Notice to record, process, maintain, and administer your opting out of the Arbitration Agreement and/or Class Action Waiver, as applicable, but not for marketing purposes.
iv) Effects of Proper Opt Out Notice.
If your Opt Out Notice meets all of the above requirements, you and BNEA will be deemed to have opted out of the Arbitration Agreement and/or Class Action Waiver, subject to your statement in such Opt Out Notice, with respect to this Agreement. Submission of a valid Opt Out Notice applies only to Claims arising from or relating to the Game and Agreement identified therein, as between BNEA and the individual identified in such Opt Out Notice.
v) Effects of Improper Opt Out Notice.
If you submit an Opt Out Notice that fails to meet any of the requirements set forth in Sections 19.c.i – 19.c.iii, you and BNEA will be bound by the Arbitration Agreement and Class Action Waiver set forth in this Agreement.
- i) Form & Address.
- a) MANDATORY, BINDING ARBITRATION.
- 20.GOVERNING LAW.
To the extent required by applicable law, all terms and provisions of this Agreement shall be governed and construed in accordance with all applicable mandatory laws, even if inconsistent with the governing law set forth in this Section 20 and in no event shall the application, interpretation, or enforcement of the terms of this Agreement, under any jurisdictional law contemplated by this Section 20 exclude, limit, or otherwise restrict any rights vested with you, as a consumer, under any applicable consumer protection laws. Please note that your conduct may also be subject to other local, state, national, and international laws. The parties agree that the UN Convention on Contracts for the International Sale of Goods shall not apply to any dispute or transaction arising out of this Agreement.
a) If you reside in North, Central, or South America:
The laws of the State of California, excluding its conflicts-of-law rules, govern the application, interpretation, or enforcement of the terms of this Agreement and your use of the Game.
b) If you reside in Asia:
Any dispute between the parties arising from or relating to this Agreement will be governed by this Agreement and the laws of Japan, without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction.
c) If you reside in any other location:
Any dispute between the parties arising from or relating to this Agreement, will be governed by this Agreement and the laws of France, without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction.
- a) If you reside in North, Central, or South America:
a) If you reside in North, Central, or South America:
You and BNEA expressly agree that, for all claims and disputes arising out of or relating to this Agreement and/or your use of the Game that are not subject to the Arbitration Agreement in Section 19, above, exclusive jurisdiction for any such claim or action shall be the federal or state courts that govern Santa Clara County, California, and you expressly consent to the exercise of personal jurisdiction of such courts.
b) If you reside in Asia:
Any dispute between the parties arising from or relating to this Agreement shall be decided by the Tokyo District Court, and you and BNEI agree to submit to the exclusive jurisdiction of that court.
c) If you reside in any other location:
Any dispute between the parties arising from or relating to this Agreement shall be decided by the Commercial Court of Lyon, and you and BNEE agree to submit to the personal jurisdiction of that court.
- a) If you reside in North, Central, or South America:
- 22.THIRD-PARTY BENEFICIARIES.
- Except as set forth in this section below, a person or entity who is not a party to this Agreement shall have no rights under any law to enforce any terms of this Agreement, regardless of whether such person or entity has been identified by name. You acknowledge and agree that Sony Interactive Entertainment Inc., Sony Interactive Entertainment America LLC, and Sony Interactive Entertainment Europe Ltd. (each an “SIE Group Company”), are third-party beneficiaries of this Agreement and that upon your acceptance of the terms and conditions of this Agreement, each SIE Group Company will have the right to enforce this Agreement against you as a third-party.
- This Agreement contains the entire agreement between you and BANDAI NAMCO regarding the use of the Game. If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall continue in full force and effect for the remainder of the term, or as otherwise set forth in Section 6(d), except if such provision deprives the Agreement from its essential obligations. You may not assign this Agreement or any of its rights under this Agreement without the prior written consent of BANDAI NAMCO, and any attempted assignment without such consent shall be void. Subject to the foregoing restriction, this Agreement will be fully binding upon, inure to the benefit of, and be enforceable by us and our respective successors and assigns. The failure of BANDAI NAMCO to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect.
To contact BNEI, please follow the process described on our support page located at http://bandainamcoent.co.jp/cs_support/.
To contact BNEA, please contact BNEA’s customer support line at https://www.bandainamcoent.com/support or by writing to BNEA at: BANDAI NAMCO Entertainment America Inc., 2051 Mission College Blvd., Santa Clara, CA 95054, USA.
To contact BNEE, please contact BNEE through BNEE customer service at http://www.bandainamcoent.eu/support or BANDAI NAMCO Entertainment Europe S.A.S., 49/51 rue des Docks, CS 90618 – 69258 LYON CEDEX 09 – France.