5. Feedback

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You may choose to submit comments, bug reports, ideas or other feedback about the Site, including without limitation about how to improve the Site (collectively, "Feedback"). By submitting any Feedback, you agree that we are free to use such Feedback at our discretion and without additional compensation to you, and to disclose such Feedback to third parties (whether on a non-confidential basis, or otherwise). You grant Blockade a perpetual, fully paid up, royalty-free, irrevocable, worldwide, non-exclusive, non-transferable, and non-sublicensable license to use and incorporate into the Services or the Assets or other Blockade products, business, or services any suggestions, enhancement requests, recommendations or other feedback provided by you or its employees or agents relating to the Services or the Assets.

 

6. Customer Conduct

 

As a condition of use, you agree not to use the Services for any purpose that is prohibited by this Agreement or by applicable law. Transmission of any material in violation of any federal, state or local regulation is prohibited. This includes, but is not limited to copyrighted material, material legally judged to be threatening or obscene, pornographic, profane, or material protected by trade secrets. This also includes links or any connection to such materials. You shall not (and shall not permit any third party) either (a) take any action or (b) upload, post, e-mail, transmit or otherwise make available any Assets on or through the Services that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without Blockade’s prior written consent; (v) impersonates any person or entity, including any employee or representative of Blockade; (vi) interferes with or attempt to interfere with the proper functioning of the Services or uses the Services in any way not expressly permitted by this Agreement; or (vii) attempts to engage in or engage in, any potentially harmful acts that are directed against the Services, including but not limited to violating or attempting to violate any security features of the Services, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in the Services, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Services. We reserve the right to refuse Service or access to the Services, or terminate accounts at our sole discretion, including, without limitation, if we believe that your conduct violates applicable law, violates this Agreement, or is harmful to our interests.

 

By accepting this Agreement, you represent and warrant to Blockade that (a) you have all necessary rights and authority to execute and deliver this Agreement, and perform your obligations hereunder and to grant the rights granted under this Agreement; and (b) nothing contained in this Agreement, or in the performance of this Agreement will place it in breach of any other material contract or obligation. You further represent and warrant to Blockade and unconditionally guarantees that any elements of text, graphics, videos, photos, content, designs, trademarks, artwork or other materials furnished to Blockade for inclusion in web pages, social media, etc. are owned by you, or that you have permission from the rightful owner to use each of these elements. You agree to hold harmless, protect, and defend Blockade from any claim or suit arising from the use of such elements furnished by you. You solely responsible for actions and omissions of its personnel and the accuracy and completeness of any advertising claims and associated disclaimers made in such content.

 

7. Interactions with Other Customers

You are solely responsible for your interactions with other Customers and any other parties with whom you interact; provided, however, that Blockade reserves the right, but has no obligation, to intercede in such disputes. You agree that Blockade will not be responsible for any liability incurred as the result of such interactions.

 

Services may contain User Content provided by other Registered Users. Company is not responsible for and does not control User Content. Company has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to, User Content. You use all User Content and interact with other Registered Users at your own risk.

 

8. Third-Party Services

 

As applicable, we may utilize links and other tools to connect users to third party services and websites. You acknowledge and agree that the Services may operate on, or with, or using application programming interfaces (“APIs”) and/or other services operated or provided by third parties (“Third Party Services”). Blockade does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Services, and Blockade is not responsible for the operation of any Third Party Services or the availability or operation of the Platform to the extent such availability and operation is dependent upon Third Party Services. You are solely responsible for procuring any and all rights necessary to access Third Party Services and for complying with any applicable terms or conditions thereof. Blockade does not make any representations or warranties with respect to Third Party Services. Any exchange of data or other interaction between you and Third Party Services is solely between you and that third party, and is governed by such third party’s terms and conditions.

 

We have no control over the content and policies of these Third Party Services, and in no event shall we be held responsible or liable for the accuracy, reliability, or currentness of any third party’s content or policies. Users who access or use a Third Party Service through Blockade are solely responsible for complying with the terms and policies of these third parties. You hereby release and forever discharge the Blockade (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Platform (including any interactions with, or act or omission of, other Platform users or any Third-Party Services).  IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”

 

9. Fees and Purchase Terms

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Payment

You agree to pay all fees or charges to Your account in accordance with your Purchases, Subscriptions the fees, charges and billing terms in effect at the time a fee or charge is due and payable (“Fees”). You must provide Blockade with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) through a payment provider (“Payment Provider”), or purchase order information, as a condition to signing up for the Services. Your Payment Provider agreement governs Your use of the designated credit card, and You must refer to that agreement, not this Agreement, to determine your rights and liabilities. By providing Blockade with your credit card number and associated payment information, you agree that Blockade is authorized to immediately invoice Your account for all Fees due and payable to Blockade hereunder and that no additional notice or consent is required. You agree to immediately notify Blockade of any change in Your billing address or the credit card used for payment hereunder. Blockade reserves the right at any time to change the Fees and billing methods, either immediately upon posting on the Services or by e-mail delivery to You.

 

Purchases

You will be responsible for payment of Your Purchases in advance and must be paid in U.S. dollars. Except as set forth in the Agreement, all Fees for the Services are non-refundable, non-cancelable and non-creditable. No contract will exist between You and Blockade for the Services until Blockade accepts Your order by a confirmatory e-mail, SMS/MMS message, or other appropriate means of communication.

Blockade reserves the right to modify the Fees for the Services at any time. You acknowledge and agree that future Purchases may be subject to the updated Fees. Please see our paid Services page[a][b] for a description of the currently available Purchases.

 

Subscriptions

You will be responsible for payment of the applicable Subscriptions for any Services at the time You create your account and select Your Subscriptions. Fees are charged and billed only monthly or yearly, depending on the Customer’s Subscriptions, in advance and must be paid in U.S. dollars. Except as set forth in the Agreement, all Fees for the Services are non-refundable, non-cancelable and non-creditable. No contract will exist between You and Blockade for the Services until Blockade accepts Your order by a confirmatory e-mail, SMS/MMS message, or other appropriate means of communication.

Blockade reserves the right to modify the Fees for the Services under one or more Subscriptions, effective upon the Renewal Commencement Date (as defined below), by notifying Customer in writing of the change in Fees before the end of the then-current Subscription term. Please see our paid Services page for a description of the currently available Subscriptions.

 

Automatic Renewal

Your Subscription will continue indefinitely until terminated in accordance with the Agreement. After Your initial Subscription period, and again after any subsequent Subscription period, Your Subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at Blockade’s then-current price for such Subscription. You agree that Your account will be subject to this automatic renewal feature unless You cancel (i) your yearly Subscription via Your account at least thirty (30) days or (ii) your monthly Subscription via Your account at least ten (10) days prior to the Renewal Commencement Date. If You do not wish Your account to renew automatically, or if You want to change or terminate Your Subscription, You can adjust Your preference within Your account. If You cancel or downgrade Your Subscription, You may use Your Subscription until the end of Your then-current Subscription term; Your Subscription will not be renewed after Your then-current term expires. However, You will not be eligible for a prorated refund of any portion of the Subscription fee paid for the then-current Subscription period. By subscribing to Your Subscription, You authorize Blockade to charge your Payment Provider now, and again at the beginning of any subsequent Subscription period. Upon renewal of Your Subscription, if Blockade does not receive payment from Your Payment Provider, (a) You agree to pay all amounts due on Your account upon demand and/or (b) You agree that Blockade may either terminate or suspend Your Subscription and continue to attempt to charge Your Payment Provider until payment is received (upon receipt of payment, Your account will be activated and for purposes of automatic renewal, Your new Subscription period will begin as of the day payment was received).

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Subscription Upgrade or Downgrade

For any upgrade in a subscription level with a month-to-month Subscription, Customer shall be automatically charged the new subscription Fee (or a prorated portion of new subscription Fee if the Subscription upgrade is requested prior to the end of the then-current Subscription term), effective as of the date the Subscription upgrade is requested and for each subsequent one-month recurring cycle pursuant to the billing method applicable to Customer. If Customer has a yearly Subscription, it shall be immediately charged any increase in subscription level plan cost pursuant to the billing method applicable to Customer, prorated for the remaining Subscription of the yearly billing cycle; provided, however, any decrease in a Subscription level plan cost shall only take effect upon the Renewal Commencement Date. Any downgrade of Subscription level may cause the loss of features or capacity of Customer’s accounts. We do not accept any liability for such loss.

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Subscription Excess

In the event that Customer uses up its entire Subscription and does not otherwise upgrade its Subscription for additional Services, Customer will have to wait until its Subscription is renewed and/or upgraded to continue using the Services. Skybox generations are limited to permitted number of generations under each Subscription offered by Blockade and additional generations over the number of generations permitted under each Subscription are not allowed until otherwise agreed by Blockade.

 

Late Payment

If any amount owing by Customer under this Agreement for the Services is ten (10) or more days overdue, Blockade may, in our sole discretion and without limiting our other rights and remedies, suspend your and any of Customer’s access to the Services and/or otherwise limit the functionality of the Services until such amounts are paid in full, or terminate the Subscription. If Blockade suspends, limits, or terminates the Services pursuant to this Section 2, then Blockade will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur in connection with any such actions. Additionally, any payments more than ten (10) days overdue shall bear a late payment fee of one and one-half percent (1.5%) per month, or, if lower, the maximum rate allowed by law (the “Late Payment Fee”).

Blockade reserves the right to modify the Late Payment Fee for the Services under one or more Subscriptions, effective upon the Renewal Commencement Date, by notifying Customer in writing of the change in Fees before the end of the then-current Subscription term.

 

Taxes

The Fees do not include any Sales Tax that may be due in connection with the Services. If Blockade determines it has a legal obligation to collect a Sales Tax from You in connection with this Agreement, Blockade shall collect such Sales Tax in addition to the Subscription or Purchase fees. If any Services, or payments for any Services, under the Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Blockade, You will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and You will indemnify Blockade for any liability or expense Blockade may incur in connection with such Sales Taxes. Upon Blockade’s request, You will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that You have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.

 

Withholding Taxes

You agree to make all payments of fees to Blockade free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to Blockade will be Your sole responsibility, and You will provide Blockade with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.

 

Free Trials and Other Promotions

Any free trial or other promotion that provides access to Services must be used within the specified time of the trial. Any promotions made available by Blockade may be governed by rules that may be separate from this Agreement. If you participate in any promotions, please review the applicable rules as well as our privacy policy (blockadelabs.com/privacy). If the rules for a promotion conflict with this Agreement, the promotion rules will apply.

 

10. Non-Disclosure and Confidentiality

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From time to time during the term of this Agreement and/or the applicable Subscription (the “Term”), Blockade (as the “Disclosing Party”) may disclose or make available to Customer (as the “Receiving Party”) information about its business affairs and services, confidential information and materials comprised of or related to intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, as well as this Agreement or the terms of the customer agreement for the applicable Subscription or Purchase, whether orally or in written, electronic or other form or media, and, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that at the time of disclosure: (i) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 10 by the Receiving Party or any of its representatives; (ii) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (iii) was in the possession of the Receiving Party or its representatives prior to being disclosed by or on behalf of the Disclosing Party; (iv) was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party’s Confidential Information; or (v) is required to be disclosed pursuant to applicable law.

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The Receiving Party shall during Term and for five years after the termination of the Term: (i) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (ii) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement and/or the applicable Subscription or Purchase; and (iii) not disclose any such Confidential Information to any person, except to the Receiving Party’s representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under these Terms.  The Receiving Party shall be responsible for any breach of this Section 10 caused by any of its representatives. On the expiration or earlier termination of this Agreement and/or the applicable Subscription or Purchase, the Receiving Party and its representatives shall, promptly return all Confidential Information and copies thereof that it has received under this Agreement and/or the applicable Subscription or Purchase.

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11. Indemnification

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You agree to indemnify and hold Blockade, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Blockade Party” and collectively, the “Blockade Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Asset; (b) Your use of, or inability to use, any Services; (c) Your violation of the Agreement; (d) Your violation of any rights of another party, including infringing or misappropriating third parties’ intellectual property rights; or (e) Your violation of any applicable laws, rules or regulations. Each applicable Blockade Party reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event You will fully cooperate with such Blockade Party in asserting any available defenses. This provision does not require You to indemnify any of the Blockade Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of the Agreement and/or your access to the Services.

 

12. Disclaimer of Certain Damages and Limitation on Liability

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Your use of the Services is at your own risk. If you are dissatisfied with any of the Asset, other contents, any service on, or feature of the Services or with this Agreement, your sole remedy is to discontinue use of the Services. IN NO EVENT WILL BLOCKADE OR ANY THIRD PARTIES MENTIONED ON THE SERVICES BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, PUNITIVE, INCIDENTAL, EXEMPLARY, AND CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) RESULTING FROM THE USE OR INABILITY TO USE THE SITE AND THE CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT BLOCKADE IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME COUNTRIES, STATES, OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY GROSS NEGLIGENCE, PERSONAL INJURY OR DEATH, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU, IN WHICH CASE BLOCKADE’S LIABILITY SHALL BE LIMITED TO THE FULLEST EXTENT SUCH EXCLUSION OR LIMITATION IS ALLOWABLE UNDER THE APPLICABLE LAW.  In no event shall the total liability of Blockade to you for all losses and damages, including for any implied warranties, exceed the greater of fifty U.S. dollars (US $50.00) or the total amount You paid Blockade to use any product of, service on, or feature of the Services in the twelve months prior to the date of an initial claim made against Blockade.

 

Customer acknowledges and agrees that the Services is an experimental and in-development service that may change, be updated, or modified in various ways, and that it may encounter issues, errors, or other unexpected challenges. Blockade makes no guarantees or warranties as to the performance, functionality, or suitability of the Services for any particular purpose. Notwithstanding the foregoing, Blockade values its relationship with Customer and shall use commercially reasonable efforts to support Customer’s success and address any issues that may arise in connection with Customer’s use of the Services.

 

13. Term and Termination

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The Agreement commences on the date when You accept them (as described in the preamble above) and remain in full force and effect while you use the Services, unless terminated earlier in accordance with the Agreement.

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Notwithstanding the foregoing, You hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date You first used the Services or (b) the date You accepted the Agreement, and will remain in full force and effect while You use any the Services, unless earlier terminated in accordance with the Agreement.

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If Customer subscribes to a Subscription, either Customer or Company may terminate the Subscription for any reason upon (i) thirty (30) days' written notice for yearly Subscriptions and/or (ii) ten (10) days' written notice for monthly Subscriptions to the other party. Customer will not be eligible for a prorated refund of any portion of the Fee paid for the then-current Subscription. Any termination of this Agreement, Services and/or Subscriptions will also contemporaneously terminate all licenses and access authorizations that they grant.

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If You have materially breached any provision of the Agreement, or if Company is required to do so by law (e.g., where the provision of the website, the application or the Services is, or becomes, unlawful), Company has the right to, immediately and without notice, suspend or terminate any Services and/or Subscriptions provided to You. You agree that all terminations for cause shall be made in Company’s sole discretion and that Company shall not be liable to You or any third party for any termination of your Services and/or Subscriptions. Company shall not be liable to Customer by reason of the termination of your Services and/or Subscriptions in accordance with this Agreement in any circumstances whatsoever, whether on account of the loss by Customer or of present or prospective sales, investments, compensation or goodwill, and Company shall not be obligated to make any termination or other payments to Customer in connection with the termination of this Agreement unless explicitly required to under this Agreement.

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Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services may also include deletion of all Your related information, files and Your Asset; provided that, any of Your Asset that You previously made available in any public areas of the Service may be retained in perpetuity. Upon termination of any Service, Your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Asset associated therewith from our live databases. Blockade will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Asset. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.

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14. Copyright Policy​

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Blockade respects the intellectual property rights of others. It is Blockade’s policy, at its discretion and when appropriate, to terminate the accounts of/relationship with users who may infringe or repeatedly infringe the copyrights of third parties.

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To submit a copyright infringement notification to Blockade relating to the Services, including but not limited to user submissions or Asset, please submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") or, as applicable, other laws, by providing the following information in writing:

• A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

• Identification of the copyrighted 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.

• 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 the service provider to locate the material.

• Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.

• 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.

• 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.

 

You acknowledge that if you fail to comply with all of the requirements of the preceding paragraph, your notification may not be valid. Please see 17 U.S.C. § 512 for more information regarding the DMCA and DMCA notifications.

 

Our agent to receive notification of claimed copyright infringement can be reached as follows:

 

By email: legal@blockadelabs.com

 

By mail:
Blockade Games, Inc.
Attn: Marguerite DeCourcelle
8520 Allison Pointe Blvd Ste 223 Indianapolis, IN

 

15. Dispute Resolution

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PLEASE READ THIS ARBITRATION AGREEMENT CAREFULLY.  IT IS PART OF YOUR CONTRACT WITH BLOCKADE AND AFFECTS YOUR RIGHTS.  IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.

 

Applicability of Arbitration Agreement.  All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Agreement or the use of any product or service provided by Blockade that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this arbitration agreement (this “Arbitration Agreement”).  Unless otherwise agreed to, all arbitration proceedings shall be held in English.  This Arbitration Agreement applies to you and Blockade, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Agreement.

 

Notice Requirement and Informal Dispute Resolution.  Before either party may seek arbitration, the party must first send to the other party a written notice of dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief.  A Notice to Blockade should be sent to:

 

Blockade Games, Inc.

Attn: Marguerite DeCourcelle
8520 Allison Pointe Blvd Ste 223 Indianapolis, IN
legal@blockadelabs.com

 

After the Notice is received, You and Blockade may attempt to resolve the claim or dispute informally.  If You and Blockade do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding.  The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.

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Arbitration Rules.  Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section.  If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider.  The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms.  The AAA Consumer Arbitration Rules (“Arbitration Rules”) governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879.  The arbitration shall be conducted by a single, neutral arbitrator.  Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief.  For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules.  Any hearing will be held in the State of New York, unless the parties agree otherwise.  If You reside outside of New York, the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.  Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.

 

Additional Rules for Non-Appearance Based Arbitration.  If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration.  The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.

 

Time Limits.  If You or Blockade pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.

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Authority of Arbitrator.  If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Blockade, and the dispute will not be consolidated with any other matters or joined with any other cases or parties.  The arbitrator shall have the authority to grant motions dispositive of all or part of any claim.  The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms.  The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded.  The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have.  The award of the arbitrator is final and binding upon You and Blockade.

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Waiver of Jury Trial.  THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement.  Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court.  In the event any litigation should arise between you and Blockade in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND BLOCKADE WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.

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Waiver of Class or Consolidated Actions.  ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.  

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Confidentiality.  All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential.  The parties agree to maintain confidentiality unless otherwise required by law.  This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.

 

Severability.  If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.

 

Right to Waive.  Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted.  Such waiver shall not waive or affect any other portion of this Arbitration Agreement, including the rights set forth in this Arbitration Agreement as they apply to the party asserting the claim.

 

Survival of Agreement.  This Arbitration Agreement will survive the termination of Your relationship with Blockade.  

 

Small Claims Court.  Notwithstanding the foregoing, either You or Blockade may bring an individual action in small claims court.

 

Emergency Equitable Relief.  Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration.  A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.

 

Claims Not Subject to Arbitration.  Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.

 

Governing Law and Jurisdiction.  All legal issues arising from or related to your use of the Services and this Agreement shall be construed in accordance with and governed by the laws of the State of Delaware applicable to contracts entered into and performed within the State of New York.  Solely in the event that the foregoing Arbitration Agreement permits the parties to litigate in court (a) the parties hereby agree that all matters relating to the Services and this Agreement, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) and (b) any legal suit, action, or proceeding arising out of, or related to, this Agreement or Services shall be instituted exclusively in the federal courts of the United States or the courts of the State of New York, although we retain the right to bring any suit, action, or proceeding against you for breach of this Agreement in Your country of residence or any other relevant country. You waive any and all objections to the exercise of jurisdiction over You by such courts and to venue in such courts.

 

Venue and Forum Waiver.  To the fullest extent permitted by law, you hereby waive any objection which you may now or hereafter have to an inconvenient venue and/or forum by way of arbitral proceeding in the state of Delaware. If (a) you are not a U.S. citizen; (b) you do not reside in the U.S.; (c) you are not accessing the Site from the U.S.; and (d) you are a citizen of one of the countries identified below, you hereby agree that any dispute, claim, or cause of action arising from this Agreement or your use of the Services shall be governed by the applicable law set forth above, without regard to any conflict of law provisions, and you hereby irrevocably submit to the jurisdiction of the courts located in the state, province or country identified below whose law governs.

 

Specifically excluded from application to this Agreement is the United Nations Convention on Contracts for the International Sale of Goods.

 

16. Miscellaneous

 

Force Majeure. Neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control, including acts of God, natural disasters, terrorism, riots, war or failure of third-party service providers.

Security. You warrant and represent that you have taken all reasonable precautions to ensure that any data or information you input and/or upload to the Services is not infected with any virus or anything else which may have a destructive effect on any part of the Services. We take reasonable precautions to prevent the existence of computer viruses or other malicious programs on the Services, but we accept no liability for them if they do exist. It is solely your responsibility to use, update and maintain appropriate antivirus software on your computer.