Mage Faire Studios, LLC (“Mage Faire”) is a publisher and developer of interactive software entertainment, and offers games, activities, and services through its Game and System. A Mage Faire “Game” refers to any Mage Faire software product. The Mage Faire “System” refers to the social networking features and all interactive features, forums, chat rooms, websites and services associated with Mage Faire or any Mage Faire Game, including the Game itself. This Terms of Service applies to the Mage Faire System (“System”).
EACH TIME YOU USE OR ACCESS THE SYSTEM OR A MAGE FAIRE GAME, YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE AND REPRESENT THAT YOU HAVE READ AND UNDERSTAND THESE TERMS OF SERVICE AND AGREE TO BE LEGALLY BOUND BY THEM. IF YOU DO NOT AGREE TO BE BOUND BY (OR CANNOT COMPLY WITH) ANY OF THESE TERMS OF SERVICE, PLEASE DO NOT USE OR ACCESS THE SYSTEM OR GAME. ANY REFERENCES HEREIN TO “YOU” AND “YOUR” REFER TO BOTH YOU AND SUCH PERSON AND ENTITY ON WHOSE BEHALF YOU ACT, IF ANY.
PART I: TERMS THAT APPLY TO THE ENTIRE MAGE FAIRE SYSTEM
1. Accounts and Naming
You may view some of the content on the System as a visitor without registering. By using the System, you agree to be bound by this Terms of Service. In order to post to any forum, participate in chats, or play any of the Mage Faire Games, you must register for a Mage Faire Account. By completing any specific Mage Faire Game’s registration process, you will establish a Mage Faire Account with which to access the System and become a Mage Faire Account Holder. Mage Faire Accounts have specific Game Accounts attached to them (Mage Faire Accounts and Game Accounts, unless specified, are collectively referred to as “Accounts”).
1.1. Accounts for Personal Use Only
You shall not share your Accounts with anyone or allow anyone else other than you to access or use your Accounts, other than your parent(s) or guardian(s) who have rights to access and manage your Account if you are a Minor. Joint or shared ownership or use of an Account by more than one individual natural person is prohibited, other than parent(s) or guardian(s) who have rights to access and manage your Account if you are a Minor. Selling or renting access to another person to your Account for the purposes of allowing them access to the Mage Faire System is prohibited. Access to the Mage Faire System is intended solely for the purposes of entertainment by individual natural persons, and not for purposes of corporate, business, commercial, or income-seeking activities.
1.2 For Children Under 13 Years Old
You may not register for a Mage Faire Account if you are under 13, which will allow you access to certain portions (but not all) of the Mage Faire System.
1.3 For Minors Between the Ages of 13 and 17 Inclusive
If you are between the ages of 13 and 17, you may register for a Mage Faire Account with the permission of your parent or guardian.
1.4 Naming Policy
To create a Mage Faire Account, you may create a Mage Faire Public Name. Certain Mage Faire Public Names are not acceptable, including those that either directly or by use of misspellings, phonetics, or numbers are: 1) vulgar, obscene, lewd, sexual, racist, hateful, or contain ethnic references or slurs; 2) refer to any drug or drug paraphernalia references; 3) created with the clear intent to harass, impersonate, or abuse other players, guilds, or staff; 4) are a part of any Mage Faire Game; 5) derived from popular culture, media, religious, or historical significance or origin; 6) the trademark or service mark (whether registered or under common law) of any third party; or 7) are non-pronounceable (e.g., no “asdbxwrs” or “2lkjf25”). Such names may be removed by Mage Faire. Extreme violations of the Naming Policy can result in suspension or termination of your Mage Faire Account.
We reserve the right to change any name that we feel—in our sole discretion—violates the spirit of any Mage Faire Game or the Naming Policy, with or without warning or consent.
1.5 Sale of Accounts Prohibited
You may not transfer, sell or auction, or offer to transfer, sell or auction, or buy or accept any offer to transfer, sell, or auction, any Mage Faire Account. The buying, selling, auctioning of Mage Faire Accounts whether through online auctions (for example through eBay), newsgroups or postings on message boards, or through a third-party broker service, and/or any offer or attempt to do so, constitutes a violation of this Terms of Service.
2.1. Charges Apply to Some Activities
You may create a Mage Faire Account without paying any registration or subscription fees to access the Mage Faire System. However, Mage Faire may charge fees to access or participate in certain activities on the System. You will be informed prior to entering any agreement whereby charges will be imposed. All billing issues are handled through the Account Management section of the relevant Game website. Any applicable fees and other charges are payable in advance. Mage Faire may change its fees and external billing methods which directly impact you at any time effective immediately after notice of these changes are given. You are responsible for reviewing the Account Management section of the Game to obtain timely notice of such changes. If any change is unacceptable to you, you may cancel your Mage Faire Account or Game Account at any time, but Mage Faire will not refund any fees that may have accrued to your Mage Faire Account or Game Account before such cancellation, and we will not prorate fees for any charges.
2.2. Payment Options/Major Credit Card
Subject to technical problems and revisions to payment policies which may be instituted by Mage Faire at any time without notice, you may pay for any applicable fees and charges by major credit card, or other methods expressly authorized by Mage Faire. When you provide payment method information to Mage Faire, you represent to Mage Faire that you are the authorized user of the payment method that is used to pay the fees and charges applicable to the subject Account. As the Mage Faire Account Holder, you are responsible for all fees and charges incurred, including applicable taxes, and all purchases made by you or anyone that uses your Account or any linked Mage Faire Account, including your family or friends. This means that, unless your Account or credit card information is obtained unlawfully or fraudulently by someone using your Account, you will be responsible for all usage and purchases on your Account.
2.3. Refund Policy
All fees and/or charges incurred by a Mage Faire Account Holder through the use of their Mage Faire Account are non-refundable except in the following situation: If the Mage Faire Account Holder who incurred the subject fees and/or charges can prove that the Mage Faire Account Holder has been victimized by identity theft. If you have any questions regarding our refund policy, please contact our customer service department at the relevant Game website.
3.1 Ownership of Content; Assignment
By “Content,” we mean all games, software, communications, images, sounds, material and information you see through the System. You acknowledge and agree that Mage Faire is the sole and exclusive owner of the Mage Faire System. Mage Faire or its suppliers are the sole and exclusive owner(s) of all right, title and interest in and to the System including, without limitation, all intellectual property rights in the same and other proprietary rights owned by Mage Faire or its suppliers, title to all of which is expressly reserved, and that you acquire no rights in any of the same, express or implied, beyond the limited revocable personal use license granted specifically in this Terms of Service.
You acknowledge and agree that Mage Faire is the sole and exclusive owner of the Game, and that Mage Faire or its suppliers are the sole and exclusive owner(s) of all right, title and interest (including, without limitation, all intellectual property rights) in the computer code, programs, routines, subroutines, objects, files, data, characters (including all items, currency, objects and attributes comprising or associated with a character and a Game Account) (known as “Game Content”).
You acknowledge and agree that we are the owner of all User Generated Content (“UGC”), generated using the System. For any materials not provided by us, that you transmit to the System, including, but not limited to, your original artwork, stories, poems, music, or lyrics, except as otherwise provided herein, you hereby grant Mage Faire a perpetual, irrevocable (even beyond termination of this TOS), license to use such posts in any medium without any additional consideration. You represent and warrant that any of your contributions to the UGC do not infringe the rights of any third-party.
3.2. Mage Faire Rights to Non-Personally Identifiable Information and User Generated Content
Without limitation of any of its other rights, Mage Faire shall have the right to display and publish any information (except personally-identifiable information about you) associated with any character or identity developed in your Account, for example, in charts, lists and other compilations, such as Leaderboards and the like without any prior notification to you of its intent to do so and without any compensation or any form of recompense whatsoever. Mage Faire shall also have the right to display “screenshots” or videos that may include your character, identity, user generated content, or sub-identity data without your prior permission or without compensation to you.
3.3. Copyrights and Copyright Agent
Mage Faire respects the rights of all copyright holders and in this regard, Mage Faire has adopted and implemented a policy that provides for the termination in appropriate circumstances of subscribers and Mage Faire Account Holders who infringe the rights of copyright holders on multiple occasions (“repeat offenders”). If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Mage Faire’s copyright agent the following information required by the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act, (“DMCA”) 17 U.S.C. 512:
(1) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(2) Identification and location of the copyright work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site and their locations;
(3) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
(4) Information reasonably sufficient to permit us to contact the complaining party;
(5) A statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(6) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
For copyright inquiries under the DMCA please contact:
Mage Faire Studios, LLC
Attn: A Bouchard, DMCA Agent
11024 Montgomery Blvd. NE #161
Albuquerque, NM 87111
Upon proper receipt of this information from you (“notice”) that substantially complies with all of the requirements above, we will investigate your claim and respond expeditiously. Then, we will remove, or “take down” any infringing material. At that point we will notify the individual who uploaded the alleged infringing material, as required by statute, and allow them the opportunity to take advantage of the “counter-notice” and “put-back” provisions of the DMCA.
Do not contact Mage Faire’s DMCA copyright agent for inquiries other than those relating to alleged copyright infringement.
3.4 Mage Faire System for Personal Enjoyment Only
YOU SPECIFICALLY ACKNOWLEDGE THAT THE TIME YOU SPEND USING THE MAGE FAIRE SYSTEM IS BEING DONE ONLY FOR THE PURPOSE OF YOUR ENTERTAINMENT, AND THAT YOU CLAIM NO INTEREST IN THE VALUE OF SUCH TIME AS REPRESENTED BY THE NUMBER OF POSTS OR OTHER CONTRIBUTIONS TO THE FORUM, OR CREATION OF ANY UGC.
3.5 Monitoring of Content
Strong vulgar language, crude or explicit sexual references, discussions of illegal drugs, and hate speech are always inappropriate content for the System. Mage Faire may monitor any content on the System at any time. But we do not monitor all of the content on the System, and we do not attempt to do so. If you encounter any content that you do not agree with or find objectionable, please use the features we provide in the System to report the content. Mage Faire does not endorse, approve, or prescreen any content that you or other users communicate on the System. Mage Faire does not assume any responsibility or liability for User Generated Content such as the results of Mage Faire magic spells, forum posts, tweets, or other content originating from other players. We reserve the right to remove content that is objectionable to us in our sole and absolute discretion. Mage Faire does not assume any liability for any failure to remove, or any delay in removing, any content.
Mage Faire only operates the Service in the English language. This includes, but is not limited to, chat services, design content (written content), tutorials, forum content, blog content, and Customer Support interactions (such as Account management, phone, or email correspondence with Mage Faire staff). If a user communicates in any language other than English within the Service, Mage Faire holds the right to suspend or terminate the Account.
3.6 Links Outside of the System
For the convenience of our users, the System provides certain links to sites provided by third parties. Mage Faire is not responsible for the content of any other site linked to or from the Mage Faire System. If you link to another site, you leave the System and you do so entirely at your own risk. Mage Faire provides links from the System to other sites solely as a convenience to you and in no way should this be interpreted as a referral or endorsement of any content, sponsor or owner of any other site. MAGE FAIRE DISCLAIMS ALL WARRANTIES, CONDITIONS OR OTHER TERMS EXPRESS OR IMPLIED AS TO ANY SUCH LINKED SITE, INCLUDING, WITHOUT LIMITATION, AS TO ACCURACY, OWNERSHIP, VALIDITY OR LEGALITY OF ANY CONTENT OF A LINKED SITE.
3.7 Proprietary Rights
You shall not download, copy, transmit, modify, reproduce, distribute, show in public or in private, or create any derivative works of the System, or any associated Content. Unauthorized downloading, copying, transmitting, modifying, reproducing, distributing, showing and creating of derivative works of any Content may lead to the termination of your Mage Faire Account and subject you to further legal action. Similarly, other Content owners may take criminal or civil action against you. In that event, you agree to indemnify and hold harmless Mage Faire and its licensors, affiliates, employees, officers, directors and agents from all claims for liabilities, losses and expenses, including reasonable attorneys’ fees, from third parties in connection with such actions.
We do grant a limited revocable license to use screenshots and in game footage for non-commercial, personal use for fan sites, machinima, and other similar non-commercial projects. This limited license is revocable upon notice by us at any time for any reason, including disparaging the Game or use of any of the Content in poor taste, in our sole discretion.
Mage Faire Studios, LLC, the logo(s) of Mage Faire Online, and associated brand names and domain names are trademarks of Mage Faire in the United States or its parent company Zunomi, LLC and other countries. Mage Faire trademarks and trade dress may not be used in connection with any product or service that is likely to cause confusion among customers, or in any manner can be interpreted as business disparagement. All other trademarks not owned by Mage Faire that may appear on the System are the property of their respective owners. You may not use, and nothing contained on the System grants, by implication, waiver, estoppel or otherwise, any right to use, any trademark displayed on the System without the written permission of Mage Faire or the respective owner of such trademark, service mark or logo.
You agree that you will be personally responsible for your use of the System and for all of your content and online activity while using the System, and that you will indemnify and hold harmless Mage Faire, its licensors, affiliates, employees, officers, and directors from all claims for liabilities, losses and expenses, including reasonable attorneys’ fees, from third parties arising from such conduct or any use of the System. Specifically, you agree to comply with all applicable laws, rules and regulations governing the disclosure and use of third party property, including, without limitation, any and all intellectual property rights. You also agree to abide by the following Mage Faire Rules of Conduct:
4.1 While accessing any part of the System, you must respect the rights of others to play and enjoy the System as intended by Mage Faire.
4.2 You may not communicate any player’s real-world information through the use of the System or any other means.
4.3 You may not use or distribute sexually explicit, harmful, threatening, abusive, defamatory, obscene, hateful, racially or ethnically offensive language (including, by way of example, but not limited to, ethnic slurs and religious epithets), content, character names, titles, descriptions, or in-game labels (including, by way of example, but not limited to, offensive or inappropriate guild names, pet names and inscriptions).
4.4 You may not form or participate in groups whose ideology is based upon or resembles anti-religious, anti-ethnic, anti-sexual orientation, nationalistic, racist or sexist philosophies.
4.5 While using the System, you may not exhibit or partake in behavior that is disruptive to the System’s normal playability, causes grief or alarm to other players, or degrades the service performance or other players’ client software (for example, deliberately using game bugs or loopholes to disrupt the game or dropping excessive items or summoning excessive portals).
4.6 You may not spam or flood the in-game chat or any part of the System with multiple posts.
4.7 You may not impersonate any staff member of Mage Faire or its affiliates or subsidiaries, past or present.
4.8 You may not violate any local, state, national, or international laws or regulations.
4.9 You may not market, promote, advertise, or solicit products or services within the System.
4.10 You may not modify the System, except in ways expressly permitted by Mage Faire.
4.11 You may not advertise the intent to, commit the act of, or facilitate the ability of others to commit the act of, unauthorized selling, buying, transferring or sharing access to any Mage Faire Account.
4.12 You may not advertise the intent to, commit the act of, or facilitate the ability of others to commit the act of, unauthorized selling or buying of in-game items for real-world monetary values or other consideration.
4.13 While participating in the System, you will follow the instructions and guidelines of authorized personnel at all times.
4.14 You may not intentionally hide or falsify personal information that is deemed necessary for Account creation.
4.15 You may not upload or transmit copyrighted material to any part of our System without the express consent of the copyright holder.
4.16 You will not attempt to interfere with, hack into, or decipher any transmissions to or from the System or related services.
4.17 You will not exploit, distribute or publicly communicate any System error, miscue or bug which gives an unintended advantage within the System, but rather will report any error, miscue or bug you find that provides an unintended advantage to us through our various bug reporting mechanisms.
4.18 You may not create, post, use or distribute any utilities, emulators or other third party software tools (including, without limitation, macroing programs, botting programs, server emulators, client hacks, map hacks, and data gathering utilities).
4.19 You may not harass other players or Mage Faire staff, including by way of example, but not limited to, threats, stalking or abuse of others.
4.20 You may not post website links or URLs in the System that point to content deemed by Mage Faire to be inappropriate, including, and without limitation, any website links or URLs directed to other commercial products or services not owned or controlled by Mage Faire. You may not post website links or URLs to any materials (including software and other information) that could harm (or is designed to harm) other players’ computers or would allow others to inappropriately access software or websites.
4.21 You may not use the System and/or related services for illegal activities. Mage Faire is not responsible for anything you say (text or voice) in-game or in our chat channels or forums, or for any consequences that arise from what you say. If you break the law, you alone will be responsible for the consequences. If we feel, in our sole discretion, that your chat or implied actions could result in damage being done to our game, or to one of our customers, we may turn over such evidence to law enforcement agencies to protect our interests.
4.22 Although the System may involve role-playing, you may not claim “role-playing” in defense of any violation of the Terms of Service.
4.23 You may not conduct surveys, contests, pyramid schemes, chain letters, junk email, spamming or any duplicative or unsolicited messages (commercial or otherwise).
4.24 You may not defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
4.25 You may not post or upload files that contain viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files or data, or any other similar software or programs that may damage the operation of the System or any other user’s computer.
4.26 You may not advertise or offer to sell or buy any goods or services for any purpose, unless the System specifically allows such messages.
4.27 You may not falsify, delete or disable any copyright management information, such as author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other Content.
4.28 You may not restrict or inhibit any other user from using and enjoying the System or related services. For example, begging, panhandling, or harassing other players for mana tips or virtual-item gifts, disrupting the flow of chat in chat channels with vulgar language, abusiveness, hitting the return key repeatedly, inputting excessively large images so the screen goes by too fast to read, use of excessive SHOUTING (all caps) in an attempt to disturb other users, “spamming,” or “scrolling” (continuous posting repetitive text), are prohibited.
4.29 You may not harvest (in an automated manner or otherwise) or otherwise collect personal information about others, including e-mail addresses, or use such information to send unsolicited emails.
4.30 You may not use, download or otherwise copy, or provide (whether or not for a fee) to a person or entity any directory of users of the System and related services or other user or usage information or any portion thereof.
4.31 You may not attempt to get a password, other Mage Faire Account information, or other private information from a Mage Faire Account Holder or any other user of the System and/or related services.
4.32 You may not improperly use support or complaint buttons or make false reports to Mage Faire administrators.
4.33 You may not use the System and/or related services in any manner other than for personal communication as an individual user (i.e. not as a corporation or other entity).
4.34 You may not use the System and/or related services for fraudulent transactions including, without limitation, fraudulent in-game virtual transactions.
4.35 You will not encourage, condone, or assist other players in violating any of their contracts or agreements with us, including but not limited to the End User License Agreement, Terms of Service or any applicable Non-Disclosure Agreement.
4.36 Leaders of guilds within the Game and System (including all related concepts such as Associations, Circles, Teams, Crews, etc.) and/or officers may be held accountable for the actions of their membership if we believe, in our sole discretion that the group is encouraging, assisting, or condoning actions that violate our agreements or contracts.
4.37 We reserve the right, but not the responsibility, to take corrective action against any form of conduct or User Generated Content that we feel, in our sole discretion, to be against the interest of the Mage Faire Account Holders or the spirit of any Mage Faire Game.
4.38 You agree not to reverse engineer, decompile, disassemble, pirate, or otherwise make any derivative works of the System.
4.39 If you encounter another Mage Faire Account Holder who is violating any of the items described in the Online Conduct list above, you are obligated to report them.
5. Virtual Items and Currency
You may obtain virtual currency (e.g., in the form of mana) from Mage Faire for use in connection with the Game. Any items or virtual currency distribution is in Mage Faire’s sole and absolute discretion. The items, services or access to other specific forms of Content offered by Mage Faire in exchange for virtual currency may be discontinued or modified by Mage Faire at any time in its sole and absolute discretion.
(i) Mage Faire may, in its sole and absolute discretion, determine the availability of virtual currency with respect to any Account, the time period applicable to such availability, and the availability and time period applicable to any Item or other specific forms of Content not otherwise available without virtual currency, including but not limited to item characteristics or characteristics related to a character such as inventory space, consumables, estates, skyships, character customizations, etc.
(ii) You acknowledge that virtual currency and items are digital material with no cash value, that no interest is paid or earned with respect to virtual currency, that there is no right to transfer or exchange virtual currency.
6.1 Deactivation by You
You have the right to deactivate or cancel your Mage Faire Account at any time. You understand and agree that the deactivation of your Mage Faire Account is your sole right and remedy with respect to any dispute, including, but not limited to, related to, or arising out of: (i) any term of these Terms of Service or Mage Faire’s enforcement or application of these Terms of Service; (ii) the Content available through the System; (iii) your ability to access and/or use the System; or (iv) the amount or type of fees, surcharges, applicable taxes, billing methods, or any change to the fees, applicable taxes, surcharges or billing methods.
You may deactivate your Account by delivering notice to Mage Faire’s customer service department at firstname.lastname@example.org or by accessing the Account Management area. Mage Faire reserves the right to collect accrued fees and charges and costs incurred by you before you cancel your Account. In the event your Account is deactivated for any reason, no online time or other credits (e.g., points in an online game including virtual currency) will be credited to you or converted to cash or other form of reimbursement, and you will have no further access to your Account or anything within the System or associated with it (such as credits or in-game items).
6.2 Termination by Mage Faire
We reserve the right to suspend or deactivate your Mage Faire Account in the event that you violate either this TOS or in the event that we stop providing a Game. We reserve the right to retain all records related to your Account upon suspension, deactivation, or termination of such Account either by you or by Mage Faire up to the maximum length of time allowed under Federal or state law in order to fight fraud or abuse on the System and in Games, or for other purposes allowed under Federal and state laws.
In the event that a Mage Faire Account is terminated, Mage Faire reserves the right to terminate any and all other Mage Faire Accounts that share the name, phone number, email address, internet protocol address, credit card number, or PayPal account with the terminated Mage Faire Account.
7.1 The Mage Faire System and Mage Faire Games Are Provided “AS IS”, Disclaimer of Warranties
The System is provided on an “as is” and “as available” basis. Mage Faire reserves the exclusive right and may, at any time and without notice and liability to you, modify or discontinue the System or any portion thereof or delete the data that you provide, whether temporarily or permanently. Temporary interruptions in the availability of the System may occur from time to time as normal events. Under no circumstances will Mage Faire be held liable for any damages resulting from such interruptions. The System may include technical inaccuracies, typographical errors or may enable you to access or download harmful or malicious code. The System is made available internationally and may contain references to products, programs and services of Mage Faire and/or its suppliers that are not available in your location. Such references do not imply that Mage Faire or its suppliers intend to make available such products, programs or services in your location.
YOU EXPRESSLY AGREE THAT THE USE OF THE MAGE FAIRE SYSTEM AND THE INTERNET IS AT YOUR SOLE RISK. MAGE FAIRE’S SYSTEM AND ANY THIRD-PARTY SERVICES AND PRODUCTS ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTIBILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. MAGE FAIRE PROVIDES THE MAGE FAIRE SYSTEM ON A COMMERCIALLY REASONABLE BASIS AND DOES NOT GUARANTEE THAT YOU WILL BE ABLE TO ACCESS OR USE THE MAGE FAIRE SYSTEM AT TIMES OR LOCATIONS OF YOUR CHOOSING, OR THAT MAGE FAIRE WILL HAVE ADEQUATE CAPACITY FOR THE MAGE FAIRE SYSTEM AS A WHOLE OR IN ANY SPECIFIC GEOGRAPHIC AREA.
The System may require that you download software from Mage Faire or its licensors onto your computer. You understand that Mage Faire’s introduction of various technologies may not be consistent across all platforms and that the performance and some features offered by Mage Faire may vary depending on your computer and other equipment.
7.2 User Warranty and Indemnification
You represent and warrant to Mage Faire: (a) that you have full power, authority, and legal capacity to enter into the Agreements and follow its obligations, and if you are registering on behalf of another entity, you have the authority to do so, and if you are a Minor, that your parent or legal guardian has reviewed and agreed to this document; (b) you will provide complete and accurate information to Mage Faire, including, but not limited to your full billing and contact information; (c) the charges incurred by you will be honored by your credit card company or payment funding source; and (d) you will pay all charges that you incur with Mage Faire at the then-current rates.
7.3 Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH MAGE FAIRE OR ITS LICENSORS IS TO STOP USING THE MAGE FAIRE SYSTEM, AND TO CANCEL YOUR MAGE FAIRE ACCOUNT. You acknowledge and agree that in no event shall Mage Faire be liable to you or any third party FOR (I) ANY DAMAGES OF ANY TYPE CAUSED TO ANY COMPUTER SYSTEM OR OTHER PERSONAL PROPERTY, OR FOR PERSONAL INJURY, INCLUDING WITHOUT LIMITATION, DEATH, RESULTING FROM ACCESS TO, OR USE OF, THE SYSTEM, THE SOFTWARE OR DOWNLOAD OF INFORMATION OR MATERIALS CONNECTED WITH THE SYSTEM OR (ii) any indirect, incidental, special, punitive, consequential, reliance, or other damages or penalties, including WITHOUT LIMITATION, personal injury or death, loss of profits, or lost savings, income, revenue, data or use, whether in an action in contract or tort, including without limitation negligence, or otherwise, arising out of this agreement or your use, misuse of, or access to the SYSTEM or content relating to it, or the exchange of information with the SYSTEM, even if any those parties has been advised of the possibility of such damages. YOU assume any and all risk associated with the ACCESS AND use of, OR EXCHANGE OF INFORMATION OR DATA WITH, the SYSTEM. IN ANY EVENT, OUR LIABILITY TO YOU OR ANY THIRD PARTIES SHALL BE LIMITED TO AN AGGREGATE AMOUNT OF $20.
8.1 Governing Law, and Dispute Resolution Procedure
To facilitate the resolution of any controversy related to this Agreement (“Dispute”), you and Mage Faire agree to first attempt to resolve any Dispute (except those Disputes expressly provided below) informally for at least 30 days before initiating any arbitration or court proceeding. Informal resolution may be completed through a customer service mechanism. If this fails, additional informal discussions begin upon written notice from you or Mage Faire. Mage Faire will send its notice to the email address you have provided to us and may also provide a copy to a physical address if we have one on file. You will send your notice to Mage Faire Studios, LLC, 11024 Montgomery Blvd. NE #161, Albuquerque, NM, 87111, USA.
If you and Mage Faire are unable to resolve a Dispute through informal discussions, either you or Mage Faire may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by final binding arbitration. YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration shall be performed under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”). Your arbitration fees and your share of arbitrator compensation shall be governed by these AAA rules. If such costs are determined by the arbitrator to be excessive, Mage Faire will pay all arbitration fees and expenses. The arbitration may be conducted in person, through the submission of documents, by phone or online as allowed by the AAA rules. Except as otherwise provided in this Agreement, you and Mage Faire may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, or enter judgment on the award entered by the arbitrator.
No Class Action. You and Mage Faire agree that any arbitration shall be limited to the Dispute between Mage Faire and you individually. To the full extent permitted by law no arbitration or other dispute resolution proceeding shall be joined with any other or decided on a class-action basis.
Exceptions to Informal Discussions and Arbitration. You and Mage Faire agree that the following Disputes are not subject to the above provisions concerning informal discussions and binding arbitration: (1) any Disputes seeking to enforce or protect, or concerning the validity of, any of intellectual property rights; (2) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy, or criminal activity; and (3) any claim for injunctive relief.
Venue. Any arbitration will take place in the County of New York, State of New York, United States of America. Any Dispute not subject to arbitration (other than claims proceeding in any small claims court), or where no election to arbitrate has been made, shall be decided by a court of competent jurisdiction within the County of New York, State of New York, United States of America, and you and Mage Faire agree to submit to the personal jurisdiction of that court. Construction and performance of this Agreement and the legal relations between the parties hereto shall be under the law of the State of New York without regard to its conflict of laws provisions. Each party hereby waives any claim that such venue is improper or inconvenient.
8.2. Modification to System/Permanent Discontinuation of System
Mage Faire may at any time and from time to time revise, supplement, suspend, modify, or discontinue, temporarily or permanently, the System (or any part thereof) with or without notice to you, and terminate all licenses granted in these Terms of Service. You agree that neither Mage Faire nor any of its affiliates, licensors, agents, or employees is liable to you or any third party for any revision, supplement, suspension, or discontinuation of the System, and termination of any license.
Mage Faire, in its sole discretion, may remove or delete any of your Content when such Content has exceeded a pre-determined time restriction and/or quantity, or when the System, or any component thereof, requires maintenance or upgrades.
You may not assign or transfer this agreement or your rights hereunder, and any attempt to the contrary is void. Mage Faire may assign its rights and responsibilities under this agreement in its sole discretion.
8.5 Third Party Service Providers and Licensors
You agree to comply with all requirements imposed upon Mage Faire by third party service providers and licensors, including, without limitation, Jenkins Software LLC.
You acknowledge and agree that you are not a third party beneficiary of any agreements between Mage Faire and its third party service providers and licensors, including, without limitation, Jenkins Software LLC.
You acknowledge and agree that Jenkins Software LLC is and shall be a third party beneficiary of this Terms of Service.
You acknowledge and agree that no claim, action, or demand shall lie against Jenkins Software LLC with respect to any loss, cost, liability, damages, or expense arising out of or related to this Terms of Service or Mage Faire Online. For clarity, you shall not file any suit or bring any cause of action against Jenkins Software LLC with respect to this Terms of Service or Mage Faire Online.
You acknowledge that Jenkins Software LLC has not made any warranties to you with respect to Mage Faire Online, that Jenkins Software LLC expressly disclaims implied warranties of merchantability or fitness for a particular purpose, and that Jenkins Software LLC has no obligation to honor any warranties that Mage Faire may provide to you in this Terms of Service or otherwise.
Neither you nor any of your agents or consultants shall assign, sublicense, transfer, reproduce, copy, modify, disassemble, decompile, or otherwise reverse engineer any portion of the RakNet components provided with Mage Faire Online.
You shall adhere to all applicable laws, regulations and rules relating to the export of technical data and shall not export or re-export any technical data, any products received from Mage Faire, or the direct product of such technical data to any proscribed country listed in such applicable laws, regulations and rules unless properly authorized.
PART III: TERMS THAT APPLY TO ALL ALPHA AND BETA TESTS
You may be given the opportunity to test new game elements and site features. Your participation as a tester is subject to the following terms and conditions:
Closed Tests are confidential. The Closed Tests, including information about features and functionality to be offered as part of the games, are confidential. If you participate in a Closed Test, you must safeguard and prevent unauthorized access to, copying, disclosure, and unauthorized use of the Closed Test. Specifically, you may discuss any items in the Closed Test in our forums, but not disclose it to press or third-parties. You will carry out the testing personally and not provide access to the Closed Test to any other person. You agree that breach of the above confidentiality obligations will entitle Mage Faire to (in addition to any other remedies available to it) limit or remove your access to any test content—without notice to you—to prevent any breach, potential breach or threatened breach. Your obligation to keep the Closed Test confidential will continue until Mage Faire publicly distributes, or has otherwise disclosed to the public through no fault of yours, each of the games and the content that you are testing.
All Tests (Closed and Open)
As a tester, you are invited to play test games for the sole purpose of evaluating the games and identifying errors. Nothing in these Terms of Service or on the System shall be construed as granting you any rights or privileges of any kind with respect to the test games or content that you find here. The test games are provided for testing on an “as is” and “as available” basis and we make no warranty to you of any kind, express or implied. In fact, as a tester you should expect errors during game play. When playing some test games, you may accumulate items, experience points, equipment, or other value or status indicators. This data may be reset at any time during the testing process. We reserve the right to reset player history and erase data. By using the Mage Faire System during the test period, you agree that: (i) playing test games is at your own risk and that you know the games may include known or unknown bugs; (ii) any value or status indicators that you achieve through game play may be erased at any time; (iii) Mage Faire has no obligation to make these games available for play without charge for any period of time, nor to make them available at all; (iv) these games may be available only by purchasing virtual currency once the testing process is complete or at any time in the future; (v) these Terms of Service apply to your use of the games during the testing phase; and (vi) if it is a Closed Test, you will keep all information about the test games confidential as stated above and not disclose such information to any other person.
Test Accounts are non-transferable under any circumstances.