19 October 2012

IMPORTANT NOTICE: THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN SECTION 22

PRODUCT LICENSE AND SERVICE AGREEMENT (the “Agreement”)

You agree that your use of this Activision website, application for mobile phone or tablet (“App”), Account (as defined below), service or other property (including Service and/or Service Provided Content as defined below) operated and provided to you by Activision, or other software provided to you by Activision, including any patches, updates, and downloadable content associated with any App or other software (collectively “Product” or “Products”) which posts, links to, or otherwise incorporates this Agreement, shall be subject to the terms of this Agreement.

All rights not expressly granted to you are reserved by Activision and its licensors.

Use of the Product is also subject to acceptance of Activision’s Privacy Policy.

1. ELIGIBILITY

1. 1. In order to use certain Products you may be required to:

      • meet minimum age requirements –see Sections 1 and 8

      • agree to Third Party Terms – see Section 13

      • open an Account operated and provided by Activision - see Section 8

1. 2. Subject to any applicable Product age ratings, restrictions and Account requirements, Products are made available to individuals aged 13 or older. If you are aged 13 but under 18 years of age, you and your parent or guardian must review this Agreement and the Privacy Policy together. Parents/ guardians are jointly and severally liable for all acts (including purchases and payments for Service Provided Content) and omissions of their children aged under 18 years when using a Product. Activision recommends that parents and guardians familiarize themselves with parental controls available on Devices they provide to their child and accompany their child if aged under 13 years of age when online.

2. ACCESS AND COSTS

You acknowledge and agree that you will provide at your own cost and expense the equipment, Internet or other connection charges, required to access and use the Product. Activision makes no warranty that the Product can be accessed on all personal computers, games consoles, smartphones, tablets or other devices (each, a “Device”, or in the plural, “Devices”), by means of any specific Internet or other connection provider, or in all countries.

YOU ARE SOLELY RESPONSIBLE FOR ANY THIRD PARTY COSTS YOU INCUR TO USE THE PRODUCT.

3. LICENSE

3. 1. Activision grants you a personal, limited, non-exclusive license to use the Product for your non-commercial use. To the fullest extent permitted by applicable law, this license granted to use the Product is non-transferable. You may not rent, lease, lend, sell, redistribute or sublicense the Product. You may not copy (except as expressly permitted by this license and any other applicable terms, conditions, or usage rules), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Product, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the licensed application). You may not remove or alter Activision or its licensors’ trademarks or logos, or legal notices included in the Product or related assets. Any attempt to use the Product in breach of the terms of this Agreementis a violation of the rights ofActivision and its licensors. If you breach the terms of this Agreement, you may be subject to prosecution and damages. The terms of this Agreement will govern any upgrades provided by Activision that replace and/or supplement the Product, unless such upgrade is accompanied by a separate (and/or updated) agreementin which case the terms of that agreement will govern.

3. 2. If the Product is an App then unless expressly authorised by Activision in writing

      • installation and use is restricted to an authorised Device; and

      • you are prohibited from making a copy of the App available on a network where it could be used or downloaded by multiple users.

3. 3. The license rights granted to you herein are also subject to the limitations set forth below. Any use of the Product in violation of these limitations is a material breach of the Agreement, subjects you to immediate revocation of your license, and will be regarded as an infringement of Activision’s copyrights and other rights in and to the Product. You agree that you will not, under any circumstances:

      1. 1. use, develop, host or distribute cheats, automation software (bots), modded lobbies, hacks, mods or any other unauthorized third-party software in connection with the Product, or engage in any form of cheating, boosting, or booting;

         2. exploit or reverse engineer the Product (or any of its parts), for any commercial purpose, including without limitation (a) to enable use at a cyber cafe, computer gaming center or any other location-based site without the express written consent of Activision; (b) for gathering in-game currency, items or resources for sale outside the Product; (c) performing in-game services in exchange for payment outside the Product, e.g., power-leveling; or (d) the sale of accounts, log-in information, or other Product materials, access, or rights;

         3. use any unauthorized third-party software that intercepts, "mines", or otherwise collects information from or through the Product;

         4. except as authorized by Activision in writing, host, provide or develop matchmaking services for the Product, or intercept, emulate or redirect the communication protocols used by Activision in any way, for any purpose, including without limitation unauthorized play over the internet, network play, or as part of content aggregation networks;

         5. facilitate, create or maintain any unauthorized connection to the Product, including without limitation (a) any connection to any unauthorized server that emulates, or attempts to emulate, the Product; and (b) any connection using programs or tools not expressly approved by Activision in writing;

         6. violate any applicable law or regulation in connection with your use of Product;

         7. disrupt or assist in the disruption of: (i) any computer, device or server used to support the Product; or (ii) any other player's use of a Product. ANY ATTEMPT BY YOU TO DISRUPT THE PRODUCT OR UNDERMINE ITS LEGITIMATE OPERATION MAY BE A VIOLATION OF CRIMINAL AND CIVIL LAWS;

         8. interfere or attempt to interfere with the operation of the Product in any way through any means or device including, but not limited to, launching a denial of service attack, spamming, hacking, or uploading computer viruses or time bombs; or

         9. reproduce, distribute, display, transfer or use any part of the Product except as expressly authorized by Activision.

4. SERVICES

Separate from any license to use the intellectual property of Activision or its licensors set out in Section 3 above, some Products also contain game features or content that are only accessible through online hosting and/or other online services and functionality provided by Activision (“Services). As detailed in Section 2, you will provide Internet access necessary to use these services at your own cost and expenses. All such Services are provided to you by Activision on a personal, non-commercial and non-transferable basis. All such Services are provided subject to the terms of this Agreement and Activision’s Privacy Policy.

5. USE OF DATA

FOR FULL DETAILS ABOUT HOW ACTIVISION COLLECTS, STORES AND USES PERSONAL AND OTHER INFORMATION, PLEASE SEE THE APPLICABLE PRIVACY POLICY

(HTTP://WWW.ACTIVISION.COM/ATVIHUB/PRIVACY.DO?SUB=PRIVACY).

5. 1. YOU ARE RESPONSIBLE FOR REVIEWING, AND AGREE TO REVIEW, ACTIVISION’S PRIVACY POLICY AND THE PRIVACY POLICIES OF APPLICABLE THIRD PARTIES LISTED IN THE ACTIVSION PRIVACY POLICY THAT MAY COLLECT INFORMATION VIA THIS PRODUCT. IF YOU DO NOT WISH TO REVIEW THOSE PRIVACY POLICIES OR IF YOU ARE CONCERNED ABOUT THE INFORMATION THEY MAY COLLECT, PLEASE DO NOT USE THE PRODUCT.

6. USER GENERATED CONTENT

6. 1. The Product may include message boards, content sharing features, and other means by which you and other users may share content that you create (“UGC”). To the fullest extent permitted by applicable law, by submitting any UGC (including without limitation, images, videos, customer service submissions, idea submissions, suggestions and message postings) you automatically grant (or represent and warrant that the owner of such rights has expressly granted) Activision a perpetual, worldwide, royalty-free, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, sub-license, create derivative works from and distribute such UGC or incorporate such UGC content into any form, medium, or technology now known or later developed throughout the universe, and agree that Activision shall be entitled to unrestricted use of the UGC for any purpose whatsoever, commercial or otherwise, without compensation, notice or attribution. You waive and agree not to assert any moral or similar rights you may have in any of your UGC. If you are validly using the Product from outside the United States of America or the United Kingdom then Activision may be required to request you to enter into a separate license agreement permitting Activision to use the UGC for certain promotional, administrative or other purposes.

6. 2. To the extent the Product permits other users to access and use your UGC, you also grant all other users of the Product the right to use, copy, modify, display, perform, create derivative works from, and otherwise communicate and distribute your UGC on or through the Product without further notice, attribution or compensation to you.

6. 3. You represent and warrant that any UGC you provide (i) does not and will not violate any third party intellectual property rights and/or any other person's rights, including, without limitation, any so-called "moral rights"; and (ii) its use as contemplated herein does not and will not require the payment of any royalty or any consideration to a third party. You may not upload or post any UGC that infringes the copyright, trademark or other intellectual property rights of a third party nor may you upload any UGC that violates any third party's right of privacy or right of publicity, or may require the payment of a royalty or other consideration to a third party. Each user is responsible and liable for any UGC her or she places on or through the Product, including the transmission, posting, or other provision of text, files, links, software, photographs, video, sound, music or other information or material. You may only upload your own UGC to the Product; do not upload anyone else’s UGC.

6. 4. Activision has no obligation to monitor, approve, verify, or prescreen any UGC that you and other users may contribute to or through the Product. Activision reserves the right (but has no obligation) to remove, block, edit, move or disable UGC for any reason in Activision’s sole discretion. To the maximum extent permitted by applicable law, Activision does not assume any responsibility or liability for your UGC or that of other users, or for any failure to monitor, edit, or remove UGC. You agree that you shall not hold Activision liable for any loss or damage arising from the contents of any UGC (yours or another user’s) including without limitation in respect of any defamation, harassment, or false endorsement claims.

6. 5. Listed below are some, though not all, violations that may result in Activision terminating or suspending your access to the Product and/or restricting your ability to access and/or post UGC. You agree not to do any of the following actions while using the Product:

      1. 1. Harass, threaten, embarrass or cause distress or discomfort upon another participant, user, or other individual or entity;

         2. Transmit any UGC that Activision considers to be disruptive, unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, hateful, or racially, sexually, ethnically or otherwise objectionable;

         3. Impersonate any person or entity, including but not limited to Activision;

         4. Disrupt normal Product functionality, or otherwise act in a manner that negatively affects other participants and/or the overall Productexperience;

         5. Post or transmit any unsolicited advertising, promotional materials, or any other forms of solicitation;

         6. Intentionally or unintentionally violate any applicable law, regulation or treaty while using or accessing the Product;

         7. Post multiple posts of the same content (e.g., “spam”); or

         8. Invade the privacy or violate or infringe any right of any person or entity, including, without limitation, any intellectual property right.

6. 6. ACTIVISION DOES NOT ENDORSE, OR GUARANTEE THE ACCURACY, EFFICACY OR VERACITY OF, ANY UGC GENERATED BY USERS.

6. 7. Some Products may permit you to share certain information about yourself with the public, including people who may not be registered users of the Product, and the public may access and use that information and associate it with you. You acknowledge and confirm that you have no expectation of privacy when using such Product features, including without limitation, uploading or submitting UGC; comparing your statistics, personal bests and leaderboards against other users; searching for other users by username; discovering events that other users have signed up for, and linking to social media accounts that publicly display user information. For example, by logging into your social media accounts from Products where this functionality is enabled, you agree that, subject to the privacy settings applied by you to your social media accounts and subject to Activision’s Privacy Policy, Activision may link and display your gameplay information, including your gamertag and/or username, with your social media account information, including, by way of example, your name and the names of your friends also using the Product. See Section 8.5 below for further details.

7. COPYRIGHT NOTICE

7. 1. Activision respects the intellectual property rights of others and expects its players and the users of its services to do the same. If you believe that any content appearing in the Product and/or UGC has been copied in a way that constitutes copyright infringement, please forward the following information to the Copyright Agent named below.

7. 2. Please be aware that to be effective, your copyright infringement notification must comply with the Digital Millennium Copyright Act ("DMCA"). You are encouraged to review 17 U.S.C. § 512(c)(3) of the DMCA or consult with an attorney prior to sending a notice hereunder.

7. 3. To file a copyright infringement notice, you will need to send a written communication that includes the following to the address listed below:

      1. Your name, address, telephone number, and email address;

      2. A description of the copyrighted work that you claim has been infringed;

      3. The exact URL or a description of where the alleged infringing material is located;

      4. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;

      5. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and

      6. A statement by you, under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.

         
         
         

         Activision Publishing, Inc.
         3100 Ocean Park Boulevard
         Santa Monica, California 90405
         Attn: Activision Business and Legal Affairs
         Fax: (310) 255-2152
         E-Mail: legalaffairs@activision.com

7. 4. Please note that the DMCA provides that you may be liable for damages (including costs and attorney fees) if you knowingly misrepresent that material or activity is infringing. Please also note that the information provided in your copyright infringement notice may be provided to the person responsible for the allegedly infringing material.

8. ACTIVISION ACCOUNTS (including Accounts for “Call of Duty Elite”)

YOU ARE RESPONSIBLE FOR ALL ACTIVITY ON YOUR ACCOUNT.  YOU SHOULD NOT REVEAL YOUR ACCOUNT PASSWORD TO OTHERS. 

8. 1. REGISTRATION

      
      

      If the Product requires you to provide registration information, all such requirements to provide information are subject to both this Agreement and the Activision Privacy Policy which are incorporated by reference hereintogether with any other Third Party Terms. You have the option of providing such information or not. However, should you choose not provide the information, your access to the Product may be limited or non-available. If you do decide to provide us with the requested information, you represent and warrant that you will provide only true, current and accurate information. You agree not to impersonate any person or entity or misrepresent your identity or affiliation with any person or entity. From time to time, you may be asked to confirm your registration information (such as your email address) to continue using the Product; if you choose not to do so, your access to the Product may be restricted or terminated

8. 2. ELIGIBILITY

      
      

      You affirm that you are at least the age specified in any applicable age rating or restriction specified for the Product, and are fully able and competent to enter into the terms, conditions, obligations, representations and responsibilities set forth in this Agreement, and to abide and comply with this Agreement.

      Subject to any applicable age ratings or other restrictions, you may establish an Account only if (i) you are 18 years of age and a "natural person" in your country of residence, or (ii) if your parent or guardian reads and accepts the terms of this Agreement and the Activision Privacy Policy on their and your behalf if you are aged 13 or over but under 18 years of age. Corporations, limited liability companies, partnerships and other legal or business entities may not establish an Account. Individuals prohibited by Activision from using the Product may not create or use an Account, and doing so and may result in severe civil and criminal penalties. By accepting this Agreement, you hereby represent and warrant that you meet these eligibility requirements.

8. 3. PARENTS AND GUARDIANS

      
      

      You agree that you will be responsible for all uses of the Account by your child whether or not such uses were authorized by you. Nothing herein limits Activision’s rights to suspend, terminate or delete any Account.

      
      Skylanders Universe Accounts do not collect personally identifying information (such as names or addresses) and are not subject to an age restriction but do require the consent and approval of a parent or guardian who must agree and accept via email confirmation the terms of this Agreement and the Activision Privacy Policy on behalf of their child as part of the Skylanders Universe Account registration process.

8. 4. ACCOUNT SUSPENSION/TERMINATION

      
      

      ACTIVISION MAY SUSPEND, TERMINATE, MODIFY, OR DELETE ANY ACCOUNT AT ANY TIME FOR ANY REASON OR FOR NO REASON, WITH OR WITHOUT NOTICE TO YOU, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. For purposes of explanation and not limitation, many Account suspensions, terminations and/or deletions may be the result of violations of this Agreement.

8. 5. SOCIAL MEDIA

      
      

      If you are a registered user of social media sites you may be able to connect your social media account and your Activision Account (if your applicable Activision Account has this functionality enabled). If you do this, you may use your social media data to enable you to find your social media “friends”, and your “friends” can use their social media data to find you, on your Activision account.

      If you connect your Facebook account to an Activision Account, such as Call of Duty Elite or Activate, your Facebook friends will be able to associate your screen name on your Activision Account with your real name on your Facebook account when they use the Facebook “friends” feature. Your social media accounts are subject to their own Third Party Terms (in relation to Facebook see also Facebook’s Statement of Rights and Responsibilities which can be found on Facebook’s website). You acknowledge and agree that your social media account provider (including without limitation Facebook) is not responsible for your Activision Account, including for any liability connected to your use of your Activision Account, and that irrespective of whether you use an anonymous gamertag or username, once connect your Activision Account to your social media account, your real name will be available and viewable by your social media “friends”. Please also see Activision’s Privacy Policy for additional information on social networks.

8. 6. USERNAMES AND GROUP DESIGNATIONS:

      
      

      Depending on which Productand platform (e.g console or mobile phone operating system) you are using, your username on the platform may be your username in the Activision account. Additionally, some Activision accounts may allow users to form different “clans”, “squads”, “teams”, or other groups (collectively “groups”) with unique group names. When you choose a username or a group name, or otherwise create a label that can be seen by other users, you must abide by the following guidelines as well as the rules of common decency. If Activision finds such a name to be offensive or improper, it may, in its sole and absolute discretion, change or remove the name, and/or suspend or terminate your use of the service. In particular, you may not use any name:

      1. Belonging to another person with the intent to impersonate that person, including without limitation any Product administrators or any other employee or agent of Activision;

      2. That incorporates vulgar language or which is otherwise offensive, defamatory, obscene, hateful, or racially, sexually, ethnically or otherwise objectionable;

      3. That is subject to the rights of any other person or entity without written authorization from that person or entity;

      4. That belongs or refers to a popular culture figure, celebrity, media personality, icon or persona;

      5. That is, contains, or is substantially similar to a trademark or service mark, whether registered or not;

      6. Belonging to any religious figure or deity; or

      7. Related to drugs, sex, alcohol, or criminal activity.

      You may not use a misspelling or an alternative spelling to circumvent the name restrictions listed above, nor can you have a "first" and "last" name that, when combined, violate the above name restrictions.

      To the fullest extent permitted by applicable law, you are responsible for all use of your Account. You must notify Activision immediately of any unauthorized use of your username, password, account information, or any other breach of security that you become aware of relating to your Account. Such notification should be made via the Customer Support web page at www.support.activision.com.

8. 7. CERTAIN CALL OF DUTY ELITE TERMS

      1. Without limiting the terms contained herein, your use of the Call of Duty Elite Product is also governed by the Call of Duty Software License Agreement (“SLA”) that accompanies the games for which the Product is enabled. The SLA governs your use of the game, and this Agreement governs your use of Call of Duty Elite, regardless of the platform on which you use Call of Duty Elite (e.g. console, online, mobile, etc.). Your use of Call of Duty Elite is also governed by, and conditional upon, your having a valid console ID online account with Call of Duty multiplayer functionality, and compliance with such account’s own terms of service.

      2. From time to time Call of Duty Elite may offer you the ability to enter into contests and sweepstakes. These contests and sweepstakes are governed by specific rules and a code of conduct (which are incorporated by reference into this Agreement), which will be posted in connection with the applicable contest, sweepstakes or elsewhere on Call of Duty Elite. Your participation in a contest or sweepstakes is conditioned upon your acceptance of those terms. For select contests and sweepstakes, Activision reserves the right to limit the quantity of prizes a participant may win during a certain period of time.Before participating in a contest or sweepstakes, it is your responsibility to carefully review the applicable rules and enlistment information for such contest or sweepstakes to confirm whether you are eligible to win the applicable prizes. Winners who are ineligible or unable to claim or use their prizes are not entitled to any substitute prizes or accommodations. Eligibility for contests and sweepstakes may be restricted to participants of the same age or older than the age rating applicable to the relevant supported Call of Duty game (e.g. Call of Duty: Black Ops II rated ESRB 17 for the United States of America; PEGI 18 for the European Union (excluding Germany); USK 18 for Germany; ACB 15 for Australia). For participants from eligible countries without any applicable age ratings system, Activision may apply a minimum age requirement of 18 years of age in line with the PEGI and USK age ratings. Minimum age requirements will be specified prior to the point of entry of the applicable contest or sweepstakes and will form a condition of entry to that contest or sweepstakes. Availability, frequency and eligibility of contests and sweepstakes shall be at Activision’s sole discretion and is subject also to local laws and restrictions.  

      3. By joining a Call of Duty Elite clan, you agree that your clan leader is authorized to enter your clan in one or more contests, such entry to be made on behalf of the clan and all of its individual members.

      4. Remember to take frequent breaks when you engage in contests, play any Activision games and use Call of Duty Elite.

9. SERVICE PROVIDED CONTENT

9. 1. “Service Provided Content" consists of those materials provided to Product users (with or without an Account as applicable) such as unlockable content, virtual assets, codes, achievements, etc. You understand that while at times you may “earn” "buy" or "purchase" “Service Provided Content”; you do not in fact own or have any property interest in the ”Service Provided Content” and the price of any ”Service Provided Content” does not refer to any credit balance of real currency or its equivalent. Rather, unless otherwise specified in or with a specific item of Service Provided Content (e.g., in an end user license agreement and/or click-through agreement), any Service Provided Content that you receive is licensed to you as set out on Section 3 and subject to all other terms of this Agreement and Activision’s Privacy Policy.

9. 2. Activision does not recognize the transfer of Accounts or Service Provided Content. You may not purchase, sell, resell, lend, rent, gift, trade or otherwise transfer any Account or Service Provided Content, or offer to purchase, sell, resell, lent, rent, gift, trade or otherwise transfer any Product account or materials, and any such attempt shall be null and void.

9. 4. You may not sell the Product or Service Provided Content, including but not limited to in-game items or currency for "real" money, or exchange those items or currency for value outside of the Product.

9. 5. Upon termination of any Account, the Agreement, or license, you acknowledge and agree that, to the fullest extent permitted by applicable law, you shall retain no access or control over any aspect thereof.

10. CONSENT TO MONITOR

10. 1. Communications made using a Product should not be considered private. Activision may monitor and/or record your communications (including without limitation chat text) when you are using a Product, and you hereby provide your irrevocable, express consent to such monitoring and recording. You acknowledge and agree that you have no expectation of privacy concerning the transmission of any UGC or communications, including without limitation chat text or voice communications. Because voice chat and other communications may be viewed and/or heard by other users, users should avoid revealing any personally identifiable information.

10. 2. Additionally, Activision may, with or without notice to you, disclose your Internet Protocol (IP) address(es), personal information, chat logs, and other information about you and your activities: (a) in response to a request by law enforcement, a court order or other legal process; or (b) if Activision believes that doing so may protect its own rights and property or your safety or the safety of others

11. SUPPORT

If you have a complaint regarding the Product or desire further information on use of a Product, visit Activision's Customer Support web pages at www.support.activision.com.

12. TERMINATION.

The license granted under this Agreement is effective until terminated by you or Activision. Your rights under this Agreement will terminate automatically without notice from Activision if you fail to comply with any term(s) of this Agreement or applicable Third Party Terms. Upon termination of the license, you shall cease all use of the Product, and destroy all copies, full or partial, of the Product.

Activision reserves the right to terminate this Agreement without cause on immediate written notice. Activision’s maximum liability to you in the event of such termination shall be limited to the amount paid by you to and received by Activision for the Product in the immediately preceding twelve (12) months.

13. THIRD PARTIES

The Product may enable, or require, access to other third party materials, services or web sites (“Third Party Materials”). Use of Third Party Materials may require additional terms of service.

You understand that by using any Third Party Materials you may encounter content that may be deemed offensive, indecent, or objectionable. You agree (i) to use Third Party Materials at your sole risk; (ii) that Activision shall not have any liability to you for Third Party Materials; (iii) Activision is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials. Third Party Materials are provided solely as a convenience to you.

Your right to use the Product is also predicated on your compliance with any applicable terms of service, terms of use, and privacy policies you have agreed and accepted with Third Parties (e.g. agreements with Apple, Inc. in relation to purchase and use of Apps sold through the iTunes Store, or your internet service provider in relation to internet access) (“Third Party Terms”).

Applicable third parties (such as your console account, mobile phone, or internet access account provider) may also impose limits on the use of or access to certain Products, in any case and without notice or liability. You agree that Activision shall not be liable for any acts or omissions of such third parties.

14. WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY

14. 1. WARRANTY DISCLAIMER.

       TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCT IS PROVIDED "AS IS" AND ACTIVISION DOES NOT WARRANT THAT THE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, THAT THE PRODUCT IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ALL OF THE PRODUCT CONTENT WILL BE ACCURATE. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ACTIVISION EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE, AND NON-INFRINGEMENT.

       AUSTRALIA: YOU HAVE CERTAIN STATUTORY GUARANTEES UNDER AUSTRALIAN CONSUMER LAW AND NOTHING IN THE AGREEMENT IS INTENDED TO AFFECT THOSE RIGHTS. PRODUCTS THAT YOU HAVE PURCHASED COME WITH GUARANTEES THAT CANNOT BE EXCLUDED UNDER AUSTRALIAN CONSUMER LAW: YOU ARE ENTITLED TO A REFUND FOR A MAJOR FAILURE AND COMPENSATION FOR ANY OTHER REASONABLY FORESEEABLE LOSS OR DAMAGE: YOU ARE ALSO ENTITLED TO HAVE GOODS REPAIRED OR REPLACED IF GOODS FAIL TO BE OF ACCEPTABLE QUALITY AND THE FAILURE DOES NOT AMOUNT TO A MAJOR FAILURE.

14. 2. LIMITATION OF LIABILITY.

       1. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER ACTIVISION NOR ITS PARENT, SUBSIDIARIES, LICENSORS OR AFFILIATES SHALL BE LIABLE IN ANY WAY FOR DAMAGE OR LOSS OF ANY KIND RESULTING FROM (A) THE USE OF OR INABILITY TO USE THE PRODUCT INCLUDING WITHOUT LIMITATION LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION; (B) THE LOSS OR DAMAGE TO CHARACTERS, ACCOUNTS, STATISTICS, INVENTORIES, VIRTUAL GOODS, OR USER PROFILE INFORMATION; OR (C) INTERRUPTIONS OF SERVICE INCLUDING WITHOUT LIMITATION ISP DISRUPTIONS, SOFTWARE OR HARDWARE FAILURES, FAILURES OF ANY THIRD PARTY BILLING SOLUTIONS OR OTHER SERVICES, OR ANY OTHER EVENT WHICH MAY RESULT IN A LOSS OF DATA OR DISRUPTION OF SERVICE. IN NO EVENT WILL ACTIVISION BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, REMOTE, SPECULATIVE, PUNITIVE OR CONSEQUENTIAL DAMAGES.

       2. IN NO CASE SHALL ACTIVISION’S LIABILITY EXCEED THE AMOUNT THAT YOU PAID TO US DURING THE TWELVE (12) MONTHS PRIOR TO THE TIME YOUR CAUSE OF ACTION AROSE.

       3. IMPORTANT INFORMATION RELATING TO WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY: BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES OR THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL, INCIDENTAL, OR OTHER TYPES OF DAMAGES, IN SUCH STATES OR JURISDICTIONS, YOU MAY HAVE DIFFERENT OR ADDITIONAL RIGHTS ACCORDING TO THE APPLICABLE LAWS OF COUNTRY FROM WHICH YOU VALIDLY ACQUIRED AND USE THE PRODUCT AND IN WHICH CASE THE LIABILITY OF ACTIVISION AND ITS AFFILIATES SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

       4. Member States of the European Union: subject to Section 23, Activision shall be liable in accordance with statutory law in cases of its (a) intent; (b) gross negligence; (c) breach of applicable Product Liability Acts . Without limiting the foregoing, Activision may only be liable for modest levels of negligence in cases of a breach of a “material” contractual obligation under the Agreement, the breach of which would jeopardise the purpose of the Agreement. In such circumstances, Activision’s liability will be limited to typical and foreseeable damages: in other circumstances Activision shall not be liable for acts of modest negligence.

       FOR INDIVIDUALS VALIDLY ACQUIRING AND USING THE PRODUCT FROM A MEMBER STATE OF THE EUROPEAN UNION NOTHING SHALL EXCLUDE ACTIVISION’S LIABILITY FOR DEATH OR PERSONAL INJURY AS A RESULT OF ITS NEGLIGENCE.

15. INDEMNIFICATION

You agree to indemnify, defend and hold harmless Activision and its affiliates, and their respective officers, directors, owners, agents, employees, contractors, information providers and licensors (“Indemnified Party”, and collectively the "Indemnified Parties") from and against any claims, liability, losses, costs and expenses (including attorneys' fees) incurred by an Indemnified Party in connection with (i) any breach by you of the Agreement, and/or (ii) your posting or uploading any UGC.

Activision reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with Activision's defense of such claim.

16. RISK OF LOSS

You bear all risk of loss for accessing or completing the download of any Product and for any loss of any Product that you have accessed or downloaded, including any loss due to a file corruption or Device crash.

Any Product may be available for limited periods of time, and/or subject to other access restrictions (including for example, possession of other specific Product(s) for access or use). Products may become unavailable due to potential content provider licensing restrictions or other reasons; Activision will not be liable to you if any Product is or becomes unavailable for download or access, for any reason, to the fullest extent permitted by applicable law.

17. AVAILABILITY

Except as otherwise set forth herein, Activision does not guarantee that any particular Product or Service Provided Content will be available at all times or at any given time or that Activision will continue to offer the Product or Service Provided Content for any particular length of time. Activision may change and update the Product or Service Provided Content without notice to you. Activision makes no warranty or representation regarding the availability of online Product features and reserves the right to modify or discontinue online Product features in its discretion without notice, including for example, ceasing an online service for economic reasons due to a limited number of users continuing to make use of the online service over time.

In addition, Products that may be accessed from, displayed on or linked to from a Device are not available in all languages or in all countries. To the fullest extent permitted by applicable law (i) Activision, and its licensors, reserve the right to change, suspend, remove, or disable access to any Product at any time without notice, and (ii) Activision will not be liable for the removal of or disabling of access to any Product.

18. OWNERSHIP

All title, ownership, and intellectual property rights in and to the Product (including, but not limited to, any titles, trademarks, service marks, and trade names, computer code, themes, objects, characters, character names, stories, dialog, catch phrases, locations, concepts, artwork, animations, sounds, musical compositions, audio-visual effects, methods of operation, moral rights, and any related documentation) are owned by Activision and/or Activision's licensor(s). The Product is licensed, not sold, for your use. Your license confers no title or ownership in this Product and should not be construed as a sale of any rights in the Product.

YOU ACKNOWLEDGE AND AGREE THAT, OTHER THAN LICENSE GRANTED TO YOU BY THIS AGREEMENT, YOU SHALL HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN ANY PRODUCT OR SERVICE PROVIDED CONTENT (INCLUDING WITHOUT LIMITATION ANY VIRTUAL GOODS), AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ALL RIGHTS IN AND TO SUCH PRODUCTS AND SERVICE PROVIDED CONTENT ARE AND SHALL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF ACTIVISION AND ITS LICENSORS.

You agree that all Products and Third Party Materials contain proprietary content, information and material that are protected by applicable intellectual property and other laws, including but not limited to copyright, and that you will not use such proprietary content, information or materials in any way whatsoever except for permitted use. No portion of the Products or Third Party Materials may be reproduced in any form or by any means other than as permitted under applicable license.

19. PAYMENT

YOU AGREE TO PAY ALL FEES AND APPLICABLE TAXES INCURRED BY YOU OR ANYONE USING A PRODUCT FROM YOUR DEVICE.

19. 1. Payment Options / Third Party Billing Partners. You may pay for certain Products and Service Provided Content using the methods made available to you, and you agree to the terms and conditions applicable to each payment method you choose. Payment methods may vary by console, platform, system or Device that you use to access the Product or Service Provided Content.

19. 2. By paying for a Product or Service Provided Content you (i) represent that you are authorized to use the payment method you have selected and that any payment information you provide is true and accurate; (ii) authorize Activision, or the third party charging you for the Product or Service Provided Content, as applicable, to take payment from you for the Product or Service Provided Content, using the payment method you have selected.

19. 3. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU ACKNOWLEDGE THAT ACTIVISION IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON, AND THAT YOU WILL NOT RECEIVE MONEY BACK WHEN AN ACCOUNT IS CLOSED PRIOR TO EXPIRY OF ANY SUBSCRIPTION OR MEMBERSHIP PLAN, WHETHER SUCH CLOSURE WAS VOLUNTARY OR INVOLUNTARY. IN CERTAIN JURISDICTIONS,IF AN ACCOUNT IS CLOSED BY ACTIVISION WITHOUT CAUSE PRIOR TO EXPIRY OF ANY SUBSCRIPTION OR MEMBERSHIP PLAN YOU MAY BE ENTITLED TO A PRO-RATA REFUND OF FEES THAT YOU HAVE PAID IN ADVANCE.

20. CHANGES TO THE AGREEMENT

Activision reserves the right, at its sole and absolute discretion, to change, modify, add to, supplement or delete any of the terms and conditions of this Agreement at any time, effective with or without prior notice; provided, however, that Activision will disclose material changes (as determined in Activision’s sole and absolute discretion) in one or more of the following ways: by posting notification on any Product website, by email, through a patch process, pop-up screen, or in-Product notice. Your continued use of the Product following any revision to this Agreement constitutes your acceptance of any such changes. Additionally, you may be asked to affirmatively accept updates to this Agreement from time to time. Note that if you do not accept affirmatively indicate your acceptance when requested, you may not be able to continue to use the Product or Service Provided Content. In relation to Products and Service Provided Content you have paid for, if you do not wish to accept a change to the Agreement, please stop using the Product or Service Provided Content and contact Activision for refund options.

21. DRM

If you access content protected with Digital Rights Management (DRM), the software may automatically request media usage rights from a rights server online and download and install DRM updates so that you can play the content.

22. BINDING ARBITRATION AND CLASS ACTION WAIVER

Dispute Resolution and Arbitration.

This Section 22 applies to you if you are domiciled in and/or acquired and use the Product in the USA.

This Section 22 may also apply to you if you are domiciled in and/or acquired and use the Product from outside the USA. See Section 23 for details.

(A) Initial Dispute Resolution: Our Customer Support department is available by phone (800 225-6588) or on the web (support.activision.com) to address any concerns you may have regarding the Product. Most concerns are quickly resolved in this manner to our customer’s satisfaction. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.

(B) Binding Arbitration: If the parties do not reach an agreed upon solution within a period of 30 days from the time informal dispute resolution is pursued pursuant to paragraph (a) above, then either party may initiate binding arbitration as the sole means to formally resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to this Agreement (including its formation, performance and breach), the parties’ relationship with each other and/or your use of the Product shall be finally settled by binding arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules and the supplementary procedures for consumer related disputes of the American Arbitration Association (the “AAA”), excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement, including, but not limited to any claim that all or any part of this Agreement is void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The Commercial Arbitration Rules governing the arbitration may be accessed at www.adr.org or by calling the AAA at +1.800.778.7879. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, Activision will pay the additional cost. If the arbitrator finds the arbitration to be non-frivolous, Activision will pay all of the actual filing and arbitrator fees for the arbitration, provided your claim does not exceed $75,000. The arbitration rules also permit you to recover attorney’s fees in certain cases.The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.

(C)    Location.  If you are a resident of the United States, arbitration will take place at any reasonable location within the United States convenient for you.  For residents outside the United States, arbitration shall be initiated in the County of Los Angeles, State of California, United States of America, and you and Activision agree to submit to the personal jurisdiction of any federal or state court in Los Angeles County, California, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.

Class Action Waiver

(D) Class Action Waiver: The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND ACTIVISION AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above in paragraph (B) shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.  

(E) Exception - Litigation of Intellectual Property and Small Claims Court Claims: Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may bring an action in state or federal court to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy, publicity rights, or the license granted under Section 3 of this Agreement). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.

(F) 30 Day Right to Opt Out: You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in paragraphs (B), (C) and (D) by sending written notice of your decision to opt-out to the following address: Activision Publishing, Inc., of 3100 Ocean Park Boulevard, Santa Monica, CA 90405-3032, Attn: Business and Legal Affairs. The notice must be sent within 30 days of purchasing the Product (or if no purchase was made, then within 30 days of the date on which you first access or use the Product), otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt-out of these arbitration provisions, Activision also will not be bound by them.

23. JURISDICTION AND APPLICABLE LAW

23. 1. The Product is made available subject to the terms of this Agreement. If you acquired and use the Product from:

       1. the United States of America then you are contracting with Activision Publishing, Inc., of 3100 Ocean Park Boulevard, Santa Monica, CA 90405-3032 and any claims arising out of this Agreement (including interpretation, claims for breach, and all other claims (including consumer protection, unfair competition, and tort claims)) will be subject to the laws of the state of California, without reference to conflict of laws principles. If any court or arbitrator determines that the class action waiver set forth in Section 22 (D)  is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then any and all claims arising out of this Agreement (including interpretation, claims for breach, and all other claims (including consumer protection, unfair competition, and tort claims)) shall be decided under the laws of the state where you were a citizen at the time you obtained or bought the Product that was subject to this Agreement. In addition, you and we irrevocably consent to the exclusive jurisdiction and venue of state or federal courts in Los Angeles, California, USA to resolve any claims that are subject to exceptions to the arbitration agreement described in Section 22 above, or otherwise determined to be arbitrable. The parties agree that the arbitration agreement in Section 22(B) shall be governed by the Federal Arbitration Act.

       2. the United Kingdom, the French Republic, the Federal Republic of Germany, then you are contracting with Cooperatie Activision Blizzard International UA of Beechavenue 131, 1119RB Schipohol-Rijk, Netherlands and the laws of England and Wales govern the interpretation of this Agreement and apply to claims for breach of it, without reference to conflict of laws principles. All other claims, including claims regarding consumer protection laws, unfair competition laws, and in tort, will be subject to the laws of the country (e.g. the United Kingdom, the French Republic, or the Federal Republic of Germany) in which you acquired and use the Product. In addition, with respect to jurisdiction, you may choose either the courts of the country (e.g. the United Kingdom, the French Republic, or the Federal Republic of Germany) in which you acquired and use the Product, or in the alternative the courts of England and Wales or other court as applicable under the Brussels Regulation EC 44/2001.

       3. locations other than the United States of America, the United Kingdom, the French Republic of the Federal Republic of Germany, then you do so on your own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable, and you expressly indemnify and hold harmless Activision from any and all claims, loss, injury, damage or costs arising from your use of the Product to the extent permitted by applicable law. No warranty or representation is made by Activision that the Product or any use of the Product outside of the United States of America, the United Kingdom, the French Republic, or the Federal Republic of Germany, complies with any applicable local law. Further:

          1. your use of the Product and all claims arising out of or related to the Product or this Agreement will, to the extent permitted under applicable law, be subject to the laws of the State of California, without reference to conflict of laws principles and you consent to the exclusive jurisdiction and venue of state and federal courts in Los Angeles, California, USA to resolve any claims that are subject to exceptions to the arbitration agreement described in Section 22 above, or otherwise determined to be arbitrable.;

          2. in respect of users who live in and use the Product from a member state of the European Union other than the United Kingdom the French Republic, or the Federal Republic of Germany, to the extent that Sections 23.1 (C) and (C)(i) above are held by a court of competent jurisdiction to be unlawful, void, or for any reason unenforceable, you agree that the laws of England and Wales govern the interpretation of this Agreement and apply to claims for breach of it, without reference to conflict of laws principles. All other claims, including claims regarding consumer protection laws, unfair competition laws, and in tort, will be subject to the laws of the member state of the European Union in which you acquired and use the Product. In addition, with respect to jurisdiction, you may choose either the courts of the member state of the European Union in which you live, acquired and use the Product, or in the alternative the courts of England and Wales or other court as applicable under the Brussels Regulation EC 44/2001.

23. 2. To the fullest extent permitted by applicable law, if any user outside of the United States of America is entitled to commence and/or participate in legal proceedings within the United States of America, then that user agrees to be bound by Section 22 “BINDING ARBITRATION AND CLASS WAIVER”.

24. GENERAL

24. 1. Severability

       Subject to 22. C above, if any provision of this Agreement shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.

24. 2. Survival

       SECTIONS 6, 10, 12 to 24 inclusive, and, those other sections that by their terms apply after this Agreement ends, and the Privacy Policy, will survive any termination or cancellation of this Agreement.

24. 3. Assignment and Transfer

       We may assign this Agreement, in whole or in part, at any time without notice to you. You may not assign this agreement or transfer any rights to use the services.

24. 4. Notices

       You consent to Activision providing you notifications about the Product or information the law requires us to provide via email to any address that you specified if you were required to register for the Product. Notices emailed to you will be deemed given and received when the email is sent. If you don't consent to receive notices electronically, you must stop using the Product. For Products that do not require you to register or provide any email address, notices and other information may be made available in updates to this Agreement.

24. 5. Force Majeure

       Activision shall not be liable for any delay or failure to perform resulting from causes outside Activision’s reasonable control, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond Activision'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.

24. 6. Equitable Remedies

       In the event that you breach this Agreement, you hereby agree that Activision would be irreparably damaged if this Agreement were not specifically enforced, and therefore you agree that Activision shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as Activision may otherwise have available to it under applicable laws.

24. 7. Activision Entities

       Activision Publishing, Inc., is located at 3100 Ocean Park Blvd., Santa Monica, CA 90405, and its Customer Support telephone number is 001 (800) 225-6588.

       Cooperatie Activision Blizzard International UA is located at Beechavenue 131, 1119RB Schipohol-Rijk, Netherlands. As set out in Activision’s Privacy Policy, if you acquired and use the Product from a member state of the European Union, Cooperatie Activision Blizzard International UA has contracted with its wholly owned subsidiary Activision Blizzard UK Limited of 3 Roundwood Avenue, Stockley Park, Uxbridge, UB11 1AF, England, to manage and control the collection, storage and use of personal information provided by you. Please read Activision’s Privacy Policy (http://www.activision.com/atvihub/privacy.do?sub=privacy) for further details of how Activision uses and protects personal information.

24. 8. Export and Commercial Items

       You may not use or otherwise export or re-export the Product except as authorized by United States law and, if applicable, the laws of the jurisdiction in which the Product was obtained. In particular, but without limitation, the Product may not be exported, re-exported, or downloaded into (or transferred to a resident of) (a) Cuba, North Korea, Iran, Syria, Sudan, any U.S. embargoed countries or any country against which the U.S. Government maintains comprehensive economic sanctions, or to a national of Cuba or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals and Blocked Persons or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Product, you represent and warrant that you are not located in, under the control of, or a resident of any such country, a national of Cuba, or on any such list. You also agree that you will not use these Products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.

       The Product and related documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.

24. 9. Entire Agreement

       This Agreement constitutes the entire agreement and understanding between you and Activision, and supersedes any prior or contemporaneous agreements or understandings, whether written or oral, relating to the matters contained herein.