TERMS OF SERVICE
Nitro Games Terms of Service
Effective Date: December 1, 2022
IMPORTANT NOTICE: For United States residents, you also agree that disputes with Nitro Games must be resolved on an individual basis through final and binding arbitration as described in detail in Section 8 (Dispute Resolution).
BY INSTALLING, USING OR OTHERWISE ACCESSING THE SERVICE, YOU AGREE TO THESE TOS. IF YOU DO NOT AGREE TO THESE TOS, 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 ToS and any other relevant Nitro Games policies, Nitro Games 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.
1.2. Use of the Service
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 and Facebook Credits) 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 Nitro Games, or previously been banned from playing any Nitro Games 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;
1.3. Username and Password
During the Account creation process, you may be required to select a password (“Login Information”). The following rules govern the security of your 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 Nitro Games 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.
Nitro Games 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.
1.4. License Limitations
Any use of the Service in violation of these License Limitations is strictly prohibited, can result in the immediate revocation of your limited license granted by Section 1.1 and may subject you to liability for violations of law.
You agree that you will not, under any circumstances:
Engage in any act that Nitro Games deems to be in conflict with the spirit or intent of the Service or make improper use of Nitro Games’ 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 Nitro Games game or any Nitro Games game experience or without Nitro Games’ express written consent, modify or cause to be modified any files that are a part of the Service or any Nitro Games 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 Nitro Games 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 Nitro Games, 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 Nitro Games employees, including Nitro Games’ 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 Nitro Games 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 Nitro Games game, or to obtain any information from the Service or any Nitro Games game using any method not expressly permitted by Nitro Games.
Solicit or attempt to solicit personal information from other users of the Service or any Nitro Games 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.
Nitro Games 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 ToS or the Service itself. Nitro Games reserves the right to take action as a result, which may include terminating your Account and prohibiting you from using the Service.
1.5. Suspension and Termination of Account and Service
WITHOUT LIMITING ANY OTHER REMEDIES, NITRO GAMES MAY LIMIT, SUSPEND, TERMINATE, MODIFY, OR DELETE ACCOUNTS OR ACCESS TO NITRO GAMES SERVICES OR PORTIONS THEREOF IF YOU ARE, OR NITRO GAMES SUSPECTS THAT YOU ARE, FAILING TO COMPLY WITH ANY OF THESE TOS 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 NITRO GAMES 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.
Nitro Games does not guarantee that the Service are available at all times or will continue to be available in the future. The Service may be temporarily unavailable due to technical issues or maintenance related reasons, which may occur on a scheduled or unscheduled basis. Furthermore, the Service or parts thereof may be designed to be available only for a limited time (e.g. when content is seasonal or early access is provided to a development version of a game), or their life cycle may be affected by technological developments or changes in consumer behavior. Accordingly, Nitro Games 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, unless otherwise required by applicable law, Nitro Games shall not be required to provide refunds, benefits or other compensation to users in connection with such discontinued Services or any Virtual Items and/or Merchandise. Where appropriate, Nitro Games will take reasonable measures to provide advance notice when any Service or parts thereof are discontinued.
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 contacting us at email@example.com and informing Nitro Games that you wish to terminate your Account.
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 Nitro Games game client, and the Nitro Games game clients and server software) are owned by Nitro Games. Nitro Games 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 INURE TO THE BENEFIT OF NITRO GAMES. GENERALLY, GAME OR OTHER ACCOUNTS CREATED WITH NITRO GAMES WILL BE CONSIDERED ACTIVE UNTIL WE RECEIVE A USER REQUEST TO DEACTIVATE OR DELETE THEM; HOWEVER, WE RESERVE THE RIGHT TO TERMINATE ANY ACCOUNT THAT HAS BEEN INACTIVE FOR 180 DAYS. IN SUCH EVENT, YOU MAY NO LONGER BE ABLE TO ACCESS AND/OR USE ANY VIRTUAL ITEMS AND/OR MERCHANDISE ASSOCIATED WITH THAT ACCOUNT AND NO REFUND WILL BE OFFERED TO YOU.
2.3. Virtual Items
Nitro Games owns, has licensed, or otherwise has rights to use all of the content that appears in the Service or in Nitro Games 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 Items and/or Merchandise appearing or originating in any Nitro Games game, whether earned in a game or purchased from Nitro Games, or any other attributes associated with an Account or stored on the Service.
2.4. User Content
3. USER CONTENT
3.1. Content Screening
Nitro Games 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 ToS, 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 Nitro Games chooses, in its sole discretion, to monitor the Service, Nitro Games 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. Nitro Games 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. Nitro Games 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. Nitro Games 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 Nitro Games violates these ToS.
You hereby grant to Nitro Games 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 Nitro Games the right to authorize others to exercise any of the rights granted to Nitro Games under these ToS. You further hereby grant to Nitro Games 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. Nitro Games does not claim any ownership rights in your User Content and nothing in these ToS is intended to restrict any rights that you may have to use and exploit your User Content. Nitro Games 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 Nitro Games games. Nitro Games reserves the right, but has no obligation, to become involved in any way with these disputes. You will fully cooperate with Nitro Games to investigate any suspected unlawful, fraudulent or improper activity, including, without limitation, granting Nitro Games 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 skulls, all for use in Nitro Games 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.
Nitro Games may manage, regulate, control, modify or eliminate Virtual Items and/or Merchandise at any time, with or without notice. Nitro Games shall have no liability to you or any third party in the event that Nitro Games 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 Nitro Games, another user or any third party.
ALL PURCHASES AND REDEMPTIONS OF THIRD PARTY VIRTUAL CURRENCY MADE THROUGH THE SERVICE ARE FINAL AND NON-REFUNDABLE.
You acknowledge and consent that the provision of Virtual Items and Merchandise for use in Nitro Games games is a service provided by Nitro Games that commences immediately upon acceptance by Nitro Games of your purchase and that you forfeit any right to cancel or withdraw from the purchase once the process has commenced. Accordingly, you agree that Nitro Games is not required to provide a refund for Virtual Items and/or Merchandise for any reason. The foregoing does not affect your rights under applicable law, including those you may have based on the legal guarantee of conformity described in Section 7 (Limitation of Liability; Sole and Exclusive Remedy; Indemnification).
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. Nitro Games may revise the pricing for the goods and services offered through the Service at any time. YOU ACKNOWLEDGE THAT NITRO GAMES 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.
4.3. Right of Withdrawal
If you are a consumer based in the European Union or a member country of the European Economic Area (“EEA”), this Section applies to you.
You may have the right to withdraw from these ToS within fourteen (14) days from the day you agreed to them. You may also have the right to withdraw from the purchase of a license to a Virtual Item or a Service within fourteen (14) days from purchase. You are not required to give a reason for exercising the right of withdrawal. However, you are not entitled to withdraw from a purchase if you have consented to the Virtual Item or Service being fully provided to you during the withdrawal period and acknowledged that you thereby forfeit your right of withdrawal.
To withdraw from these ToS, you must inform Nitro Games of your decision to withdraw and discontinue your use of the Service. To withdraw from the purchase of a license to a Virtual Item or a Service, you must inform the merchant of record, which may be either Nitro Games or its authorized partner through whom you made the purchase. Please note that Nitro Games is neither able nor required to fulfil your request to withdraw from a purchase where Nitro Games is not the merchant of record.
To inform Nitro Games of your decision to withdraw, you must send an equivocal statement of your decision by email to firstname.lastname@example.org. To meet the deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the expiry of the withdrawal period.
If you withdraw from the purchase of a license to a Virtual Item or a Service, you are entitled to be reimbursed for the purchase without undue delay and in any event not later than fourteen (14) days from the day on which you informed the merchant of record of your decision to withdraw from the purchase. The reimbursement will be carried out using the same means of payment as you used for the initial payment, unless you have agreed otherwise. You will not incur any fees as a result of such reimbursement.
5. UPDATES TO THE SERVICE
You understand that the Service is an evolving one. Accordingly, Nitro Games may change, manage, modify, or update the Service or parts thereof (including, but not limited to, Virtual Items) from time to time. Nitro Games may, at its sole discretion, make any such changes as it believes to be necessary to maintain and improve the Service, including, but not limited to, introducing, modifying, or removing game content and features according to Nitro Games’ development roadmap, adapting to new technologies, reflecting changes to Nitro Games’ agreements with third parties, preventing abuse or technical issues, and addressing any legal, safety, or regulatory requirements. When changes are made to the Service, Nitro Games may require that you accept updates to the Service and to Nitro Games’ games you have installed on your computer, smartphone, tablet, SmartTV or any other device used to access the Service. You acknowledge and agree that Nitro Games may update the Service and Nitro Games 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 Nitro Games’ games.
6. DISCLAIMER OF WARRANTIES
WITHOUT LIMITING NITRO GAMES’ 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. NITRO GAMES 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
NITRO GAMES 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 TOS OR THE SERVICE ITSELF, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT NITRO GAMES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NITRO GAMES SHALL NOT BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID TO NITRO GAMES IN ACCORDANCE WITH THESE TOS 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 NITRO GAMES DURING SUCH TIME PERIOD, YOUR SOLE REMEDY (AND NITRO GAMES’ EXCLUSIVE LIABILITY) FOR ANY DISPUTE WITH NITRO GAMES 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 Nitro Games 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 Nitro Games’ liability shall be the minimum permitted under such applicable law. IN PARTICULAR, NOTHING IN THESE TOS 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 NITRO GAMES. Specifically, if you are a consumer based in the EEA, you are provided with a legal guarantee of conformity under which Nitro Games may be liable for a lack of conformity that you discover: (i) within two years from any one-time supply of the Services (such as the supply of a Virtual Item or Merchandise); or (ii) at any time during any continuous supply of the Services.
You agree to indemnify, defend and hold Nitro Games 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 ToS, however the foregoing does not apply if the infringement of rights is not attributable to your intentional or negligent behavior.
8. DISPUTE RESOLUTION; BINDING ARBITRATION
Sections 8.1 to 8.6 apply to you if you are a resident of the United States. They do not apply to you if you are a resident of any other country.
8.1. Informal Dispute Resolution
You must try to informally resolve any dispute directly with Nitro Games for at least thirty (30) days before you start an arbitration. The informal dispute resolution process starts when you give Nitro Games a written notice of the dispute through email@example.com.
8.2. Agreement to Arbitrate
Either you or Nitro Games may choose to submit any dispute for resolution exclusively by final and binding arbitration unless the claim is within the exceptions described below. If you or Nitro Games brings a claim in court that can be resolved by arbitration under this Section, then either party can ask the court to order the parties to resolve the claim by arbitration. The arbitrator will have the exclusive authority to decide whether any portion of Section 8 (“Dispute Resolution”) is valid or enforceable, or whether it applies to a claim.
An arbitration proceeding will be held before a neutral arbitrator. This means you and Nitro Games agree to give up the right to resolve the dispute in a trial before a judge or jury. Arbitration has different rules than more formal lawsuits. For example, the ability to force the other side to share information may be more limited than the process called discovery in formal lawsuits. After the arbitrator decides the outcome, that decision will be final. You or Nitro Games can ask the arbitrator to put a decision or award and the reasons for it in writing. Either of us can ask a court to confirm or enter the arbitrator’s final decision or award, which will make it the same as a court judgment. You and Nitro Games will generally not be able to change the outcome of arbitration through courts outside of very limited circumstances.
8.3. Arbitration Process
The arbitration will be run by the American Arbitration Association (“AAA”). AAA’s rules and procedures will be used for the arbitration, including the Consumer Arbitration Rules. However, if there is a conflict between these ToS and AAA’s rules and procedures, then these ToS will be followed. To review AAA’s Rules or to start arbitration, you can go to AAA’s website (www.adr.org). If either of us decide to start arbitration, we agree to provide the other party with a written Demand for Arbitration as specified in the AAA Rules.
The fees for arbitration will be determined by AAA’s Consumer Arbitration Rules. If the arbitrator decides that those fees are excessive, Nitro Games will pay the fees. Each side will pay their own attorneys’ fees and costs unless the claims allow for the prevailing party to recover attorneys’ fees and costs, in which case the arbitrator may award them under the applicable law. If either party unsuccessfully challenges the validity of the arbitrator’s decision or award through a subsequent court case, the unsuccessful party shall pay the opposing party’s costs and attorneys’ fees associated with the challenge.
The arbitration will take place either in New York, New York, USA or in the county or province where you reside.
8.4. Exceptions to Agreement to Arbitrate
You and Nitro Games agree that the arbitration agreement specified in the Section 8.2 will not apply to the following disputes:
Claims about Nitro Games’ intellectual property, such as claims to enforce, protect, or concerning the validity of Nitro Games’ copyrights, trademarks, trade dress, domain names, patents, trade secrets, or other intellectual property rights.
Claims related to, or arising from, allegations of theft, piracy, unauthorized use or a violation of the of these ToS.
Claims that are not subject to an arbitration agreement as a matter of law and are not pre-empted by federal law that would allow for an agreement to arbitration.
Any dispute not subject to arbitration under these exceptions shall be resolved by a court of competent jurisdiction as described in Section 9 below.
8.5. No Class Actions
You and Nitro Games agree that we can only bring claims against each other on an individual basis.
That means, to the full extent permitted by law:
You cannot bring a claim against Nitro Games as a plaintiff or class member in a class, collective, consolidated, or representative action.
The arbitrator cannot combine any other person’s claims with yours into a single case or preside over any class, collective, consolidated, or representative arbitration proceeding.
The arbitrator’s decision or award in your case will not apply to anyone else and cannot be used to decide other people’s disputes.
If this Section is found to be unenforceable or invalid, then the entirety of Section 8 (including sub sections) shall be void.
8.6. Opt-Out of Arbitration Agreement; No Class Actions Provisions
You can choose to opt out of and not be bound by the Arbitration Agreement and No Class Action provisions (described above in Sections 8.1 to 8.5) by sending written notice of your decision to opt out to Nitro Games at firstname.lastname@example.org with the subject line “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” You must send us this notice within thirty (30) days of your first use of the Service or availability of this opt-out, whichever is later. If you do not send us a notice within that time, you will be bound to arbitrate disputes in accordance with the terms of these Sections. If you opt out of these arbitration provisions, Nitro Games also will not be bound by them.
8.7. Dispute resolution for persons who are residents of other countries than the United States
You agree that any claim or dispute you may file against Nitro Games must be resolved exclusively by a court located in Helsinki, Finland.
If you are a consumer based in the EEA, you may also make use of the Online Dispute Resolution platform offered by the European Commission as an out-of-court alternative to resolve disputes. Please note that Nitro Games may not be required to accept the use of this or other alternative dispute resolution platforms.
9. GOVERNING LAW
If you are resident in the European Union and elsewhere in the world (but not the United States), you agree that all disputes between you and Nitro Games shall be governed by the laws of Finland, regardless of conflict of law provisions.
If the jurisdiction of your domicile prohibits Nitro Games from enforcing the governing law provision, nothing in these ToS limits your rights based on the laws governing your domicile.
11. GENERAL PROVISIONS
11.2. Supplemental Policies
Nitro Games 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 ToS.
11.3. Entire Agreement
11.4. No Waiver
Except as expressly and specifically set forth in this these ToS, no representations, statements, consents, waivers, or other acts or omissions by Nitro Games shall be deemed a modification of these ToS nor legally binding, unless documented in physical writing, hand signed by You and a duly appointed officer of Nitro Games.
11.6. Equitable Remedies
You acknowledge that the rights granted and obligations made under these ToS to Nitro Games are of a unique and irreplaceable nature, the loss of which shall irreparably harm Nitro Games and which cannot be replaced by monetary damages alone so that Nitro Games 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 Nitro Games 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).
11.7. Force Majeure
Nitro Games shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of Nitro Games, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond Nitro Games’ 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.