Nodding Frog Limited Terms of Service
Effective Date: January 12, 2016
BY INSTALLING, USING OR OTHERWISE ACCESSING THE SERVICE, YOU AGREE TO THESE TERMS OF SERVICE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, PLEASE DO NOT INSTALL, USE OR OTHERWISE ACCESS THE SERVICE. USE OF THE SERVICE IS VOID WHERE PROHIBITED.
1.1. Grant of a Limited License to Use the Service
Subject to your agreement and continuing compliance with these Terms of Service and any other relevant Nodding Frog policies, Nodding Frog grants you a non-exclusive, non-transferable, non-sublicensable, revocable limited license subject to the limitations below to access and use the Service for your own non-commercial entertainment purposes. You agree not to use the Service for any other purpose.
The following restrictions apply to the use of the Service:
You shall not create an Account or access the Service if you are under the age of 13. You shall restrict use by minors, and you will deny access to children under the age of 13. You accept full responsibility for any unauthorized use of the Service by minors. You are responsible for any use of your credit card or other payment instrument (e.g. PayPal™) by minors.
You shall not have more than one Account at any given time, sell or give away your Account, create an Account using a false identity or information, or on behalf of someone other than yourself. You shall not use the Service if you have previously been removed by Nodding Frog, or previously been banned from playing any Nodding Frog game.
You shall use your Account only for non-commercial purposes. You shall not use the Service to advertise, or solicit, or transmit any commercial advertisements, including chain letters, junk or spam e-mail or repetitive messages to anyone.
Username and Password
During the Account creation process, you will be required to select a password (“Login Information”). You shall not share the Account or the Login Information, nor let anyone else access your account or do anything else that might jeopardize the security of your Account. In the event you become aware of or reasonably suspect any breach of security, including without limitation any loss, theft, or unauthorized disclosure of the Login Information, you must immediately notify Nodding Frog and modify your Login Information. You are solely responsible for maintaining the confidentiality of the Login Information and you will be responsible for all uses of the Login Information, including purchases, whether or not authorized by you. You are responsible for anything that happens through your Account.
Nodding Frog reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to claims by a third party that a username violates the third party’s rights.
Any use of the Service in violation of these License Limitations is strictly prohibited, can result in the immediate revocation of your limited license and may subject you to liability for violations of law.
You agree that you will not, under any circumstances:
Engage in any act that Nodding Frog deems to be in conflict with the spirit or intent of the Service or make improper use of Nodding Frog’s support services;
Use cheats, exploits, automation software, bots, hacks, mods or any unauthorized third-party software designed to modify or interfere with the Service, any Nodding Frog game or any Nodding Frog game experience or without Nodding Frog’s express written consent, modify or cause to be modified any files that are a part of the Service or any Nodding Frog game;
Disrupt, overburden, or aid or assist in the disruption or overburdening of any computer or server (“Server”) used to offer or support the Service or any Nodding Frog game environment;
Institute, assist, or become involved in any type of attack, including without limitation distribution of a virus, denial of service attacks upon the Service, or other attempts to disrupt the Service or any other person’s use or enjoyment of the Service.
Attempt to gain unauthorized access to the Service, Accounts registered to others or to the computers, Servers, or networks connected to the Service by any means other than the user interface provided by Nodding Frog, including but not limited to, by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device, or software that is part of the Service;
Post any information that is abusive, threatening, obscene, defamatory, libelous, or racially, sexually, religiously, or otherwise objectionable or offensive;
Post any information that contains nudity, excessive violence, or offensive subject matter or that contains a link to such content;
Attempt to, or harass, abuse, or harm, or advocate or incite harassment, abuse, or harm of another person, group, including Nodding Frog employees, including Nodding Frog’s customer service representatives;
Make available through the Service any material or information that infringes any copyright, trademark, patent, trade secret, right of privacy, right of publicity, or other right of any person or entity or impersonates any other person, including without limitation a Nodding Frog employee;
Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying software or other intellectual property used to provide the Service or any Nodding Frog game, or to obtain any information from the Service or any Nodding Frog game using any method not expressly permitted by Nodding Frog; or
Solicit or attempt to solicit personal information from other users of the Service or any Nodding Frog game or collect or post anyone’s private information, including personally identifiable information (whether in text, image or video form), identification documents, or financial information through the Service.
Nodding Frog reserves the right to determine what conduct it considers to be in violation of the rules of use or otherwise outside the intent or spirit of these Terms of Service or the Service itself. Nodding Frog reserves the right to take action as a result, which may include terminating your Account and prohibiting you from using the Service.
1.2. Suspension and Termination of Account and Service
WITHOUT LIMITING ANY OTHER REMEDIES, NODDING FROG MAY LIMIT, SUSPEND, TERMINATE, MODIFY, OR DELETE ACCOUNTS OR ACCESS TO NODDING FROG SERVICES OR PORTIONS THEREOF IF YOU ARE, OR NODDING FROG SUSPECTS THAT YOU ARE, FAILING TO COMPLY WITH ANY OF THESE TERMS OF SERVICE OR FOR ANY ACTUAL OR SUSPECTED ILLEGAL OR IMPROPER USE OF THE SERVICE, WITH OR WITHOUT NOTICE TO YOU. YOU CAN LOSE YOUR USER NAME AND PERSONA AS A RESULT OF ACCOUNT TERMINATION OR LIMITATION, AS WELL AS ANY BENEFITS, PRIVILEGES, EARNED ITEMS AND PURCHASED ITEMS ASSOCIATED WITH YOUR USE OF THE SERVICE, AND NODDING FROG IS UNDER NO OBLIGATION TO COMPENSATE YOU FOR ANY SUCH LOSSES OR RESULTS
WITHOUT LIMITING OUR OTHER REMEDIES, WE MAY LIMIT, SUSPEND OR TERMINATE THE SERVICE AND USER ACCOUNTS OR PORTIONS THEREOF, PROHIBIT ACCESS TO OUR GAMES AND SITES, AND THEIR CONTENT, SERVICES AND TOOLS, DELAY OR REMOVE HOSTED CONTENT, AND TAKE TECHNICAL AND LEGAL STEPS TO PREVENT USERS FROM ACCESSING THE SERVICE IF WE BELIEVE THAT THEY ARE CREATING RISK OR POSSIBLE LEGAL LIABILITIES, INFRINGING THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, OR ACTING INCONSISTENTLY WITH THE LETTER OR SPIRIT OF OUR TERMS OR POLICIES. ADDITIONALLY, WE MAY, IN APPROPRIATE CIRCUMSTANCES AND AT OUR SOLE DISCRETION, SUSPEND OR TERMINATE ACCOUNTS OF USERS WHO MAY BE REPEAT INFRINGERS OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
NODDING FROG RESERVES THE RIGHT TO TERMINATE ANY ACCOUNT THAT HAS BEEN INACTIVE FOR 180 DAYS.
Nodding Frog reserves the right to stop offering and/or supporting the Service or a particular game or part of the Service at any time, at which point your license to use the Service or a part thereof will be automatically terminated. In such event, Nodding Frog shall not be required to provide refunds, benefits or other compensation to users in connection with such discontinued Services. Termination of your Account can include disabling your access to the Service or any part thereof including any content you submitted or others submitted.
You may terminate your Account at any time and for any reason by sending an email to Nodding Frog at [?] and instructing us that you wish to terminate your Account. We will terminate your account within [x] days of receiving your email to that effect .
2.1. Games and Service
All rights, title and interest in and to the Service (including without limitation any games, titles, computer code, themes, objects, characters, character names, stories, dialogue, catch phrases, concepts, artwork, animations, sounds, musical compositions, audio-visual effects, methods of operation, moral rights, documentation, in-game chat transcripts, character profile information, recordings of games played using a Nodding Frog game client, and the Nodding Frog game clients and server software) are, as between you and Nodding Frog, owned by Nodding Frog. Nodding Frog reserves all rights, including without limitation, all intellectual property rights or other proprietary rights, in connection with its games and the Service
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN THE ACCOUNT, AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT ALL RIGHTS IN AND TO THE ACCOUNT ARE AND SHALL FOREVER BE OWNED BY AND ENURE TO THE BENEFIT OF NODDING FROG.
2.3. Virtual Items
Nodding Frog owns, has licensed, or otherwise has rights to use all of the content that appears in the Service or in Nodding Frog games. 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 Service, including without limitation the virtual goods or currency appearing or originating in any Nodding Frog game, whether earned in a game or purchased from Nodding Frog, or any other attributes associated with an Account or stored on the Service.
2.4. User Content
3. USER CONTENT
3.1. Content Screening
Nodding Frog assumes no responsibility for the conduct of any user submitting any User Content, and assumes no responsibility for monitoring the Service for inappropriate content or conduct. We do not, and cannot, pre-screen or monitor all User Content. Your use of the Service is at your own risk. By using the Service, you may be exposed to User Content that is offensive, indecent or otherwise not in line with your expectations. You bear all risks associated with the use of any User Content available in connection with the Service. At our discretion, our representatives or technology may monitor and/or record your interaction with the Service or communications (including without limitation chat text) when you are using the Service.
By entering into these Terms of Service, you hereby provide your irrevocable consent to such monitoring and recording. You acknowledge and agree that you have no expectation of privacy concerning the transmission of any User Content, including without limitation chat text or voice communications.
If at any time Nodding Frog chooses, in its sole discretion, to monitor the Service, Nodding Frog nonetheless assumes no responsibility for User Content and assumes no obligation to modify or remove any inappropriate User Content. We have the right, but not the obligation, in our sole discretion to edit, refuse to post, or remove any User Content.
3.2. Information Use by Other Members of the Service 3.2.1. Public Discourse
The Service may include various forums, blogs and chat features where you can post User Content, including your observations and comments on designated topics. Nodding Frog cannot guarantee that other members will not use the ideas and information that you share. Therefore, if you have an idea or information that you would like to keep confidential and/or don’t want others to use, do not post it on the Service. Nodding Frog shall have no responsibility to evaluate, use or compensate you for any ideas or information you may choose to submit.
3.2.2. Responsible For Your Own Content
You are solely responsible for the information that you post on, through or in connection with the Service and that you provide to others. Nodding Frog may reject, refuse to post or delete any User Content for any or no reason, including, but not limited to, User Content that in the sole judgment of Nodding Frog violates these Terms of Service.
You hereby grant to Nodding Frog an irrevocable, perpetual, transferable, fully paid-up, royalty-free, worldwide license (including the right to sublicense and assign to third party) and right to copy, reproduce, fix, adapt, modify, create derivative works from, manufacture, commercialize, publish, distribute, sell, license, sublicense, transfer, lease, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, communicate to the public by telecommunication, display, perform, enter into computer memory, and use and practice, in any way, your User Content as well as all modified and derivative works thereof in connection with our provision of the Service, including marketing and promotions of the Service. You also hereby grant to Nodding Frog the right to authorize others to exercise any of the rights granted to Nodding Frog under these Terms of Service. You further hereby grant to Nodding Frog the unconditional, irrevocable right to use and exploit your name, likeness and any other information or material included in any User Content and in connection with any User Content, without any obligation to you. Except as prohibited by law, you waive any rights of attribution and/or any moral rights you may have in your User Content, regardless of whether your User Content is altered or changed in any manner. Nodding Frog does not claim any ownership rights in your User Content and nothing in these Terms of Service is intended to restrict any rights that you may have to use and exploit your User Content. Nodding Frog has no obligation to monitor or enforce your intellectual property rights in or to your User Content.
3.4. User Interactions
You are solely responsible for your interactions with other users of the Service and any other parties with whom you interact through the Service and/or Nodding Frog games. Nodding Frog reserves the right, but has no obligation, to become involved in any way with these disputes. You will fully cooperate with Nodding Frog to investigate any suspected unlawful, fraudulent or improper activity, including, without limitation, granting Nodding Frog access to any password-protected portions of your Account.
If you have a dispute with one or more users, you release us (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his settlement with the debtor.”
4. FEES AND PURCHASE TERMS
In the Service you may purchase, with “real world” money, a limited, personal, non-transferable, non-sublicensable, revocable license to use (a) “virtual currency”, including but not limited to virtual cash or diamonds, all for use in Nodding Frog games; (b) “virtual in-game items” (together with “virtual currency”, “Virtual Items”); and (c) other goods or services (“Merchandise”). You may also obtain a license to use Virtual Items by redeeming third party virtual currency such as Facebook Credits.[MD2]
Nodding Frog may manage, regulate, control, modify or eliminate Virtual Items and/or Merchandise at any time, with or without notice. Nodding Frog shall have no liability to you or any third party in the event that Nodding Frog exercises any such rights.
The transfer of Virtual Items and Merchandise is prohibited except where expressly authorized in the Service. Other than as expressly authorized in the Service, you shall not sell, redeem or otherwise transfer Virtual Items or Merchandise to any person or entity, including but not limited to Nodding Frog, another user or any third party.
ALL PURCHASES AND REDEMPTIONS OF THIRD PARTY VIRTUAL CURRENCY MADE THROUGH THE SERVICE ARE FINAL AND NON-REFUNDABLE.
The provision of Virtual Items for use in Nodding Frog games is a service provided by Nodding Frog that commences immediately upon acceptance by Nodding Frog of your purchase.
4.2. Payment of Fees
You agree to pay all fees and applicable taxes incurred by you or anyone using an Account registered to you. Nodding Frog may revise the pricing for the goods and services offered through the Service at any time. YOU ACKNOWLEDGE THAT NODDING FROG IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON, AND THAT YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED VIRTUAL ITEMS WHEN AN ACCOUNT IS CLOSED, WHETHER SUCH CLOSURE WAS VOLUNTARY OR INVOLUNTARY.
5. UPDATES TO THE SERVICE
You understand that the Service is an evolving one. Nodding Frog may require that you accept updates to the Service and to Nodding Frog’s games you have installed on your computer. You acknowledge and agree that Nodding Frog may update the Service and Nodding Frog games, with or without notifying you. You may need to update third party software from time to time in order to receive the Service and play Nodding Frog’s Games.
6. DISCLAIMER OF WARRANTIES
WITHOUT LIMITING NODDING FROG’S LIABILITY UNDER SECTION 7 BELOW, THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. NODDING FROG DOES NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE GAME OR THE SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
7. LIMITATION OF LIABILITY; SOLE AND EXCLUSIVE REMEDY; INDEMNIFICATION
NODDING FROG SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUES, LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION OR OTHER INTANGIBLE LOSSES (HOWEVER SUCH LOSSES ARE QUALIFIED), ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS OF SERVICE OR THE SERVICE ITSELF, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
LEGAL THEORY, AND WHETHER OR NOT NODDING FROG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NODDING FROG SHALL NOT BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID TO NODDING FROG IN ACCORDANCE WITH THESE TERMS OF SERVICE IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT A CLAIM. YOU ACKNOWLEDGE AND AGREE THAT IF YOU HAVE NOT PAID ANYTHING TO NODDING FROG DURING SUCH TIME PERIOD, YOUR SOLE REMEDY (AND NODDING FROG’S EXCLUSIVE LIABILITY) FOR ANY DISPUTE WITH NODDING FROG IS TO STOP USING THE SERVICE AND TO CANCEL YOUR ACCOUNT.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for certain types of damages. Accordingly, some of the above disclaimers and limitations may not apply to you. To the extent that Nodding Frog may not, as a matter of applicable law, disclaim any warranty or limit its liability as set forth herein, the scope of such warranty and the extent of Nodding Frog’s liability shall be the minimum permitted under such applicable law. IN PARTICULAR, NOTHING IN THESE TERMS OF SERVICE SHALL AFFECT THE STATUTORY RIGHTS OF ANY CONSUMER OR EXCLUDE OR RESTRICT ANY LIABILITY FOR DEATH OR PERSONAL INJURY ARISING FROM ANY NEGLIGENCE OR FRAUD OF NODDING FROG.
You agree to indemnify, defend and hold Nodding Frog harmless from any claim, demand, damages or other losses, including reasonable attorneys’ fees, asserted by any third-party resulting from or arising out of your use of the Service, or any breach by you of these Terms of Service, however the foregoing does not apply if the infringement of rights is not attributable to your intentional or negligent behavior.
8. DISPUTE RESOLUTION AND LAW
If a dispute arises between you and Nodding Frog, we strongly encourage you to first contact us directly to seek a resolution by email at [email protected].
10. GENERAL PROVISIONS
10.2. Supplemental Policies
Nodding Frog may publish additional policies related to specific services such as forums, contests or loyalty programs. Your right to use such services is subject to those specific policies and these Terms of Service.
10.3. Entire Agreement
10.4. No Waiver
Except as expressly and specifically set forth in this these Terms of Service, no representations, statements, consents, waivers, or other acts or omissions by Nodding Frog shall be deemed a modification of these Terms of Service nor legally binding, unless documented in physical writing, hand signed by You and a duly appointed officer of Nodding Frog.
10.6. Equitable Remedies
You acknowledge that the rights granted and obligations made under these Terms of Service to Nodding Frog are of a unique and irreplaceable nature, the loss of which shall irreparably harm Nodding Frog and which cannot be replaced by monetary damages alone so that Nodding Frog shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety or proof of damages) in the event of any breach or anticipatory breach by you.
You irrevocably waive all rights to seek injunctive or other equitable relief, or to enjoin or restrain the operation of the Service or any Nodding Frog game, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Service or any content or other material used or displayed through the Service and agree to limit your claims to claims for monetary damages, limited by Section 7 (if any).
10.7. Force Majeure
Nodding Frog shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of Nodding Frog, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond Nodding Frog’s control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.