Digital Service Agreement
Scope of Agreement.
This Agreement governs your purchase of cash, coins, chips or any of our other virtual currencies (each individually or collectively referred to in this Agreement as “Virtual Currency”) and any of our products and services through which you can purchase or use the Virtual Currency (“Casual Gaming Services”). In this Agreement, the term “you” means you the customer; and the terms “Insomniac”, “we”, “us” and “our” means Insomniac Games, Inc., a California corporation, located at 2255 N. Ontario Street, Suite 550, Burbank, California USA. This Agreement supplements the Insomniac Terms of Service. The Insomniac Terms of Service can be found at the bottom of all Insomniac hosted websites and by typing “terms.Insomniac.com” in your browser. Please print out copies of these documents for your records when completing any purchase of Virtual Currency. If there is an inconsistency between the Insomniac Terms of Service and this Agreement, the terms of this Agreement will govern your purchase and use of Virtual Currency. By selecting the “I have read and accept Insomniac’s Digital Services Agreement” checkbox, you agree that your use of Virtual Currency, Casual Gaming Services and all related content is subject to this Agreement.
We may revise this Agreement at any time and the revisions will apply to all subsequent purchases of Virtual Currency and the subsequent entitlements to content that you receive by using Virtual Currency. When we revise this Agreement, we change the “Last Updated” date above. Each time you purchase Virtual Currency you agree that you will review the terms of this Agreement. If you don’t agree to the changes, you should stop using the Casual Gaming Services.
If any of the Casual Gaming Services require you to open an account (a “Casual Gaming Account”), you must complete the registration process by providing us with current, complete and accurate information (including your email address) as prompted by the applicable registration form. You may also be asked to choose a password and a user/account name. You may not use a user/account name that is used by someone else, is vulgar or otherwise offensive (as determined by us), infringes any trademark or other proprietary rights of others, or is used in any way that violates this Agreement or the Insomniac Terms of Service. You are entirely responsible for maintaining the confidentiality of your password and account. Furthermore, you are entirely responsible for any and all activities that occur under your account. You agree to notify us immediately of any unauthorized use or theft of your account or any other breach of security (and to provide properly documented evidence as reasonably requested by us). We will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you will be liable for losses incurred by Insomniac or another party due to someone else using your account or password. You may not use anyone else’s account at any time.
Where the Casual Gaming Services utilize the account management of a social networking website (such as Facebook or Google Plus), you are responsible for maintaining the confidentiality of your applicable social networking website password and account, and are fully responsible for all activities that occur under your account.
Virtual Currency License.
Virtual Currency can be purchased via the Casual Gaming Services. We may also award Virtual Currency in connection with promotions and as part of tournaments. When you purchase Virtual Currency you agree to pay taxes that Insomniac assesses on your purchase. By purchasing or otherwise acquiring Virtual Currency as set out above, you obtain a limited license to access and select from content that we expressly make available as part of the Casual Gaming Services (the “Casual Gaming Content”). Virtual Currency has no monetary value and does not constitute currency or property of any type. Virtual Currency may be redeemed for Casual Gaming Content only. Virtual Currency cannot be sold or transferred, and cannot be exchanged for cash or for any other goods and services, except for the Casual Gaming Content. Virtual Currency is non-refundable. You are not entitled to a refund for any unused Virtual Currency.
Virtual Currency Term.
The term of your Virtual Currency license starts when you acquire Virtual Currency and, subject to this Agreement, ends the earlier of the second anniversary of the date of purchase or award (as the context requires and applicable to each individual purchase or award) and the day that your access to the Casual Gaming Services is cancelled, suspended or terminated as set forth in this Agreement.
To purchase Virtual Currency, (i) follow the Casual Gaming Services instructions on the applicable website; (ii) sign into your Casual Gaming Account if required (or create a Casual Gaming Account if required); (iii) provide your billing information; and (iv) confirm the details of what you are purchasing and that you have read and accept the Insomniac Digital Services Agreement. If you decide to purchase subscription-based Casual Gaming Services, you agree that all information that you submit is true and accurate (including, without limitation, your billing information such as credit card number and expiration date), and you agree to pay all subscription fees you incur plus all applicable taxes.
The price payable by you (the “Price”) is the price indicated on the applicable website for the Casual Gaming Services. If you are resident in Europe, the Price includes any applicable VAT. We reserve the right to change the Price and specifications shown in relation to the Casual Gaming Services. If the price or specification published on the applicable website for the Casual Gaming Services is materially incorrect when you place an order for those products or services and you contact us to inform us of this incorrect information, we will: (i) provide you with the correct price or specification; and (ii) ask you to confirm whether you would like to purchase the applicable products or services at the correct price or specification. If applicable, we will also state the period for which the offer or Price remains valid. If you choose not to complete your purchase at the corrected price or product specification, we will provide you with a full refund for any amounts already paid by you.
You may pay for Virtual Currency either by credit card or by using the services of any alternate billing and payment provider (such as PayPal, Trialpay, Paymo and PayByCash) that we identify on the applicable website. If you pay for Virtual Currency by credit card, then you must supply your credit card details when you place your order. We will not supply any products or services to you until your credit card issuer or alternative billing and payment provider has authorized the use of your card or other applicable method for payment. If you elect to use the services of an alternate billing and payment provider, you will be bound by that third party provider’s terms and conditions, which are available from the provider. You may be required to create an account with the alternate provider, and to provide that provider with your bank account or credit or debit card details. Costs associated with accessing the Casual Gaming Services depends on your Internet Service Provider. Please see your Internet Service Provider’s terms and conditions.
Performance of the Contract.
Virtual Currency is available to you immediately as soon as you complete your purchase. If you reside in the European Union and you purchase a product or service from Insomniac, you have the right to withdraw from your purchase within fourteen calendar days, commencing on the day after the date of purchase (the “Cooling Off Period”). However, please note that you will lose your right of withdrawal if the performance of the services has begun before the end of the Cooling Off Period. Accordingly, please note that if you purchase Virtual Currency from us, your right of withdrawal is lost as the performance of our services begins immediately once your purchase is completed. This Agreement does not confer any rights or remedies upon any person other than the parties to this Agreement. You may also have additional rights under applicable law.
Use and Expiration of Virtual Currency.
During the term of your license, you have the right to redeem Virtual Currency for selected Casual Gaming Content. We do not guarantee that any particular item offered as part of the Casual Gaming Services will be available at all times or at any given time. We do not guarantee that we will continue to offer particular items for any particular length of time. We reserve the right to change and update our inventory of Casual Gaming Content without notice to you. If you have not used your Virtual Currency for twenty four (24) months or more and your account has a Virtual Currency balance, your Virtual Currency shall expire and your account may be cancelled for non-use. Once you — or we as set forth below — have redeemed Virtual Currency for Casual Gaming Content, that content is not returnable, exchangeable, or refundable for Virtual Currency or for cash, or other goods or services.
Casual Gaming Content.
When you acquire Casual Gaming Content, you receive a limited license to use Casual Gaming Content for your personal, non-commercial use with any specified permitted Casual Gaming Services that we identify from time to time. Insomniac reserves all right, title and interest in Casual Gaming Content and all associated copyrights, trademarks, and other intellectual property rights therein. This License is limited to the intellectual property rights of Insomniac in the Casual Gaming Content and does not include any rights to other patents or intellectual property. You may not remove, alter, or obscure any identification, copyright, or other intellectual property notices in the Casual Gaming Content.
Virtual Currency Availability.
Virtual Currency may only be held by legal residents of countries where access to and use of the Casual Gaming Services is permitted. Virtual Currency may be purchased or acquired only from Insomniac through means we provide on the applicable website(s) or otherwise expressly authorize. Insomniac reserves the right to refuse your request(s) to purchase and/or acquire Virtual Currency, and Insomniac reserves the right to limit or block any request to purchase and/or acquire Virtual Currency for any reason.
Cancellation and Suspension.
We can cancel or suspend your access to Virtual Currency, the Casual Gaming Services or your Casual Gaming Account, in our sole discretion and without prior notice, if (a) you fail to comply with this Agreement or the Insomniac Terms of Service; or (b) if we otherwise suspect fraud or misuse of Casual Gaming Services and/or Virtual Currency, or any other unlawful activity associated with an account membership registered to or used by you.
Termination of Services.
You agree that Insomniac may stop making Virtual Currency and the Casual Gaming Services available, at any time, without any liability to you. If we stop supporting the Casual Gaming Services, we will provide at least thirty (30) days advance notice to you by posting a notice on http://www.Insomniac.com/2/service-updates.
Disclaimer of Warranties.
THE CASUAL GAMING SERVICES ARE PROVIDED ON AN “AS IS” BASIS. INSOMNIAC MAKES NO WARRANTIES WITH RESPECT TO THE CASUAL GAMING SERVICES, THE CASUAL GAMING CONTENT OR VIRTUAL CURRENCY. TO THE EXTENT PERMITTED BY LAW, INSOMNIAC DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON‑INFRINGEMENT. INSOMNIAC DOES NOT WARRANT THAT THE FUNCTIONALITY OR OPERATION OF THE CASUAL GAMING SERVICES, ANY ACCOUNTS OR SUPPORTING SYSTEMS AND WEBSITES (COLLECTIVELY, “INSOMNIAC SERVICES”) WILL BE UNINTERRUPTED OR FREE FROM ERROR, THAT ANY DEFECTS IN THE INSOMNIAC SERVICES WILL BE CORRECTED, OR THAT THE INSOMNIAC SERVICES OR THE SERVERS THAT MAKE THOSE INSOMNIAC SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL CONDITIONS OR COMPONENTS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability.
INSOMNIAC SHALL HAVE NO LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, FOR DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES) IN ANY WAY ARISING FROM THE FUNCTIONALITY OR OPERATION (OR FAILURE TO FUNCTION OR OPERATE) OF THE INSOMNIAC SERVICES, THE VIRTUAL CURRENCY, OR THE CASUAL GAMING CONTENT EVEN IF INSOMNIAC IS EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event shall Insomniac’s aggregate liability under this Agreement exceed the amount actually paid by you for Virtual Currency. Notwithstanding the foregoing, nothing contained in this Agreement limits Insomniac’s liability to you for fraudulent misrepresentations, death or personal injury caused by Insomniac’s negligence, or any other liability to the extent such liability cannot be excluded or limited as a matter of applicable law. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS LIABILITY, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU
Reservation of Rights.
Insomniac reserves the right to take all legal and technical steps available, including pursuing civil remedies and criminal prosecution, for any violation of this Agreement or the Insomniac Terms of Service. Our failure to enforce this Agreement or the Insomniac Terms of Service in every instance in which it is entitled does not amount to a waiver of Insomniac’s rights.
You acknowledge and agree that by clicking the ‘purchase’ (or similar) button when you place your order, you are placing a legally binding offer. You consent to: (i) the use of electronic communications to enter into contracts and place orders with us; and (ii) the electronic delivery of notices, policies and records of transactions initiated or completed by you online. You have the right to withdraw this consent, but if you do, we may cancel your access to the Casual Gaming Services. If you do not consent to receive any notices electronically, you must stop using the Casual Gaming Services. As long as you place orders with us online, you agree that you will have access to the necessary software and hardware to receive electronic records from us in connection with transactions initiated or completed by you online.