These Terms of Service (these "Terms") constitute a binding agreement ("Agreement") between Bunchball, Inc. ("Bunchball") and each person who uses the Bunchball Nitro Virtual Goods Service ("Service"). The Service may be accessed via Bunchball.com (referred to as the "Site"), other websites owned and operated by Bunchball ("Other Bunchball Sites"), or those portions of websites of third parties ("Publishers") that consist of the Nitro Service. "You" or "Your" refers to the person or entity using the "Service". These Terms of Service do not apply to those third-party websites that integrate the Service into their websites ("Publishers").
YOU MUST BE AGE 13 OR OLDER TO USE THIS SERVICE ; IF YOU ARE UNDER AGE 18 YOU MUST HAVE YOUR PARENT OR LEGAL GUARDIAN'S PERMISSION TO USE THIS SERVICE, AS WELL AS HAVE THEM READ AND AGREE TO THESE TERMS.
YOU REPRESENT, ACKNOWLEDGE AND AGREE THAT YOU ARE AT LEAST 18 YEARS OF AGE OR THAT YOU ARE THE PARENT OR LEGAL GUARDIAN OF A USER THAT IS AT LEAST 13 YEARS OF AGE, AND YOU AGREE TO THESE TERMS.
PLEASE READ THESE TERMS AND CONDITIONS OF USE ("TERMS") CAREFULLY BEFORE USING THIS SERVICE.
By using the Service, through a website owned and operated by Bunchball or through a third-party Publisher, you agree to these Terms, including but not limited to the conducting of these transactions electronically, disclaimers of warranties, damage and remedy exclusions and limitations, and choice of California law and exclusive venue in California. If you do not agree to these Terms, you do not have permission to use the Service. Bunchball reserves the right, at its discretion, to change, modify, add, or remove portions of these Terms at any time. Notification of changes to these Terms will be posted on the Site or sent via e-mail. Revised Terms will become effective when such notification is provided by Bunchball. If any future changes to these Terms are unacceptable to you, you must discontinue use of the Service.
You may also be subject to additional terms and conditions of third parties when you use third-party content, services, or software accessed through or promoted on the Service.
1. ORDERING OBLIGATIONS
In consideration of your use of the Service, you agree to provide true, accurate and complete information about yourself as prompted by the ordering process. Bunchball may deny you access to the Service or reject your order in the event that your information is untrue, inaccurate or incomplete.
2. AGREEMENT TO DEAL ELECTRONICALLY
All transactions with or through the Service may, at Bunchball's option, be conducted electronically. Bunchball may keep records of any type of communication conducted via the Service. All electronic records are deemed sent when they are properly addressed to the recipient and the record enters an information processing system outside the control of the sender or the record enters a region of an information processing system under the recipient's control. All electronic records are received when the record enters an information processing system that the recipient has designated or uses for the purpose of receiving electronic records or information of the type sent, in a form capable of being processed by that system, and from which the recipient is able to retrieve the electronic record.
3. LIMITED NON-COMMERCIAL LICENSE TO USE SERVICE
Bunchball hereby grants you the limited right to view and use the Service only for the purposes of purchasing, sending, and viewing any media, including images and interactive Flash files ("Virtual Goods"), available through the Service. Bunchball reserves the right to suspend or deny, in its sole discretion, your access to all or any portion of the Service as described in Section 19. This license is limited to personal and non-commercial uses by you. Any rights not expressly granted to you herein are reserved by Bunchball. Unless you have received specific written permission from Bunchball, you may not (a) "frame" or otherwise impose editorial comment, commercial material or any information or content on, or in proximity to, content displayed on the Service or (b) alter or modify any content on the Service or Site. Without limiting other restrictions, you agree not to reproduce, transmit, sell, or otherwise exploit the Service and/or Virtual Goods for any commercial purpose.
4. SERVICE FEE; VIRTUAL GOOD PURCHASES
(a) All fees are stated in U.S. Dollars. FEES ARE PAYABLE IN ADVANCE AND ARE NOT REFUNDABLE IN WHOLE OR IN PART FOR ANY REASON WHATSOEVER, INCLUDING, WITHOUT LIMITATION, INTERRUPTION OR UNAVAILABILITY OF SERVICE. YOU ARE FULLY LIABLE FOR ALL CHARGES TO YOUR ACCOUNT. You represent to Bunchball that you are the authorized account holder or an authorized user of the chosen method of payment used to pay for the paid aspects of the Service.
(b) YOU UNDERSTAND AND AGREE THAT ANY ATTEMPT TO MAKE ANY CHARGE BACK OR OTHERWISE RECLAIM OR OBTAIN A REFUND OF OR A CREDIT AGAINST ANY FEES PAID WITHOUT FIRST HAVING OBTAINED BUNCHBALL'S PRIOR WRITTEN CONSENT TO SUCH REFUND WILL ENTITLE BUNCHBALL TO DEACTIVATE YOUR ACCOUNT UNLESS AND/OR UNTIL SUCH TIME AS THE FEES ARE REPAID OR A CREDIT OR REFUND IS AGREED WITH BUNCHBALL. DEACTIVATION WILL INCLUDE NOT ONLY THE CASH AND CREDIT BALANCE TO WHICH THE REFUND OR CREDIT WAS OBTAINED, BUT ALSO ALL ACCESS TO THE SERVICE. YOU FURTHER AGREE THAT THE PAID ASPECTS FORM PART OF THE SERVICE AND ARE DELIVERED 'UNSEALED' AUTOMATICALLY UPON RECEIPT OF THE FEES AND THEREFORE YOU HAVE NO CANCELLATION RIGHTS (SAVE FOR A WILFULL ERROR OR FAULT WITH THE PAID ASPECTS IF REPORTED IMMEDIATELY TO BUNCHBALL).
(c) Bunchball reserves the right to alter the fees payable for the paid aspects of the Service or introduce alternative fee structures for the Service. If you do not agree to any such alteration, you should not purchase Virtual Goods or related features and/or terminate your Account prior to the date on which the alteration takes effect.
(d) When a Virtual Good is ordered via the Service, you are acquiring a one-time license to send that Virtual Good to yourself or another user of the Service (a "Virtual Gifting"). The Virtual Gifting will remain in effect for a specified duration during which the Virtual Good will be displayed on the Service in a location or locations deemed appropriate by Bunchball. The duration of a Virtual Gifting varies for each Virtual Good and is indicated when that Virtual Good is ordered. If no duration is indicated, then the Virtual Gifting will expire after one (1) year from the date of purchase. Upon expiration, Bunchball may or may not, at its sole discretion, remove any record or representation of the Virtual Gifting from the Service.
5. BUNCHBALL CURRENCY
BUNCHBALL "CURRENCY" IS A LIMITED LICENSE RIGHT AVAILABLE FOR PURCHASE OR FREE DISTRIBUTION AT BUNCHBALL'S DISCRETION, AND IS NOT REDEEMABLE FOR MONETARY VALUE FROM BUNCHBALL. You acknowledge that the Service presently includes a component of fictional currency ("Credits" or "Bunchball Credits"), which constitutes a limited license right to use a feature of our product when, as, and if allowed by Bunchball. Bunchball and Publishers may use their own, custom, naming convention for Bunchball Credits. Bunchball may charge fees for the right to use Bunchball Credits, or may distribute Bunchball Credits without charge, in its sole discretion. Regardless of terminology used, Bunchball Credits represent a limited license right governed solely under the terms of this Agreement, and are not redeemable for any sum of money or monetary value from Bunchball at any time. Bunchball Credits are valid for one (1) year after the date they were purchased or earned, after which time they will expire, as permitted by law. Notwithstanding this standard expiration period, you agree that Bunchball has the absolute right to manage, regulate, control, modify and/or eliminate such Currency as it sees fit in its sole discretion, in any general or specific case, and that Bunchball will have no liability to you based on its exercise of such right.
6. AGREEMENT TO PRICING AND BILLING
IN THE EVENT YOU CHOOSE TO USE PAID ASPECTS OF THE SERVICE, YOU AGREE TO THE POSTED PRICING AND BILLING POLICIES ON THE SITE. Certain aspects of the Service are provided for a fee or other charge. These fees and charges are described on the Site, and in the event you elect to use paid aspects of the Service, you agree to the pricing, payment and billing policies applicable to such fees and charges. Bunchball may add new services for additional fees and charges, or proactively amend fees and charges for existing services, at any time in its sole discretion.
7. NO REFUNDS FOR CANCELLATION OR TERMINATION
YOU MAY CANCEL YOUR ACCOUNT AT ANY TIME; HOWEVER, THERE ARE NO REFUNDS FOR CANCELLATION. Upon your election to cancel, your account will be cancelled within 2 business days. There will be no refunds for any unused credits (including without limitation Bunchball Credits) or any prepaid fees for any portion of the Service.
- Bunchball has the right at any time for any reason or no reason to suspend or terminate your Account, terminate this Agreement, and/or refuse any and all current or future use of the Service without notice or liability to you. In the event that Bunchball suspends or terminates your Account or this Agreement, you understand and agree that you will receive no refund or exchange for any unused credits on the account (including without limitation Bunchball Credits), any license or fees, any content or data associated with your Account, or for anything else.
- In the event an Account is suspended or terminated for your breach of this Agreement (in each case as determined in Bunchball's sole discretion), Bunchball may suspend or terminate the Account associated with such breach and any or all other Accounts held by you or your affiliates, and your breach will be deemed to apply to all such Accounts.
8. COPYRIGHTS AND TRADEMARKS
EXCEPT AS EXPRESSLY PROVIDED HEREIN BY THESE TERMS, NEITHER BUNCHBALL, NOR ANY THIRD PARTY HAS CONFERRED UPON YOU BY IMPLICATION, ESTOPPEL OR OTHERWISE, ANY LICENSE OR RIGHT UNDER ANY PATENT, TRADEMARK, COPYRIGHT OR OTHER PROPRIETARY RIGHTS TO USE THE SERVICE. NO OWNERSHIP RIGHTS ARE OR WILL BE ASSIGNED TO YOU. Bunchball will not tolerate copyright infringement and reserves the right to terminate access to the Service if you engage in copyright or other intellectual property infringement. The law provides for civil and criminal penalties for copyright and other intellectual property law infringements. Displaying, performing, storing, copying, distributing, or otherwise making available or using any content from the Service is prohibited, unless specifically authorized by Bunchball. Accordingly no such content may be used on another website without express written permission from Bunchball.
You agree to indemnify and hold Bunchball, its, affiliates, officers, agents, partners and employees harmless from any claim or demand, including reasonable attorneys fees, arising out of your use of the Service, your violation of these Terms or your violation of any third party's rights including such party's copyrights and trademarks.
11. DISCLAIMER OF WARRANTIES
EXCEPT IF EXPRESSLY PROVIDED OTHERWISE IN A WRITTEN AGREEMENT (SUCH AS A EULA) BETWEEN YOU AND BUNCHBALL, THE SERVICE IS PROVIDED TO YOU "AS IS" WITHOUT WARRANTY OF ANY KIND AND WITH ALL RISKS. BUNCHBALL HEREBY DISCLAIMS TO THE MAXIMUM EXTENT PERMITTED BY LAW (A) ALL WARRANTIES EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; AVAILABILITY OF THE SERVICE; LACK OF VIRUSES, WORMS, TROJAN HORSES, OR OTHER CODE THAT MANIFESTS CONTAMINATING OR DESTRUCTIVE PROPERTIES; ACCURACY, COMPLETENESS, RELIABILITY, TIMELINESS, CURRENCY, OR USEFULNESS OF ANY INFORMATION ON THE SERVICE; AND (B) ANY DUTIES OF REASONABLE CARE, WORKMANLIKE EFFORT OR LACK OF NEGLIGENCE IN CONNECTION WITH THE SITE, APPLICATIONS, OR RELATED INFORMATION. THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IN CONNECTION WITH THE SERVICE IS BORNE BY YOU. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
IN ADDITION, BUNCHBALL DISCLAIMS ANY WARRANTIES OF NON-INFRINGEMENT, TITLE OR QUIET ENJOYMENT IN CONNECTION WITH THE SERVICE AND RELATED INFORMATION.
12. ASSUMPTION OF RISKS
YOU ASSUME ALL RISKS THAT THE SERVICE AND RELATED INFORMATION ARE SUITABLE OR ACCURATE FOR YOUR NEEDS AND WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE. BY PARTICIPATING IN THE SERVICE YOU MAY BE EXPOSED TO RUDE, CRUDE, INDECENT, OR OTHER OFFENSIVE LANGUAGE OR REFERENCES. YOU AGREE THAT BUNCHBALL WILL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE OF ANY SORT RELATING TO YOUR DEALINGS WITH ANY THIRD PARTY ADVERTISER OR CONTENT PROVIDER THROUGH THE SERVICE.
13. NO INCIDENTAL, CONSEQUENTIAL OR CERTAIN OTHER DAMAGES
TO THE MAXIMUM EXTENT ALLOWED BY LAW, YOU AGREE THAT NEITHER BUNCHBALL NOR ANY OF BUNCHBALL'S AFFILIATES OR AGENTS WILL BE LIABLE TO YOU AND/OR ANY OTHER PERSON FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF PRIVACY OR FOR FAILURE TO MEET ANY DUTY INCLUDING BUT NOT LIMITED TO ANY DUTY OF GOOD FAITH, LACK OF NEGLIGENCE OR OF WORKMANLIKE EFFORT) OR ANY OTHER INDIRECT, SPECIAL, OR PUNITIVE DAMAGES WHATSOEVER THAT ARISE OUT OF OR ARE RELATED TO THE SERVICE OR RELATED INFORMATION, OR TO ANY BREACH OF THESE TERMS, EVEN IF BUNCHBALL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IN THE EVENT OF FAULT, TORT (INCLUDING NEGLIGENCE) OR STRICT OR PRODUCT LIABILITY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
14. LIMITATION OF LIABILITY AND EXCLUSIVE REMEDY
YOU AGREE THAT YOUR SOLE REMEDY FOR ANY BREACH OF THESE TERMS BY BUNCHBALL OR ANY BUNCHBALL AGENTS WILL BE, AT BUNCHBALL'S OPTION, (1) SUBSTITUTION OR REPLACEMENT OF ALL OR PART OF THE SERVICE OR PRODUCT THAT GIVES RISE TO DAMAGES INCURRED BY YOU IN REASONABLE RELIANCE ON BUNCHBALL; OR (2) REFUND OF THE AMOUNT THAT YOU PAID TO BUNCHBALL. YOU AGREE THAT THE DAMAGE EXCLUSIONS IN THESE TERMS WILL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
15. YOUR REPRESENTATIONS AND WARRANTIES
You represent and warrant for the benefit of Bunchball, Bunchball's suppliers, and any third parties mentioned on the Service, in addition to other representations and obligations contained in these Terms, that: (a) you possess the legal right and ability to enter into and make the representations and warranties contained in these Terms; (b) all information submitted by you to the Site is true and accurate; (c) you will keep your registration information current; (d) you will be responsible for all use of your password even if such use was conducted without your authority or permission; (e) you will not use the Service for any purpose that is unlawful or prohibited by these Terms; (f) you agree to defend, indemnify, and hold Bunchball (and its employees, representative, agents, and assigns) harmless from breaches of (a) through (e).
16. LINKS - ADVERTISERS AND PUBLISHERS
The Service may contain links to third party sites ("Advertisers") or may be provided via links from third-party sites and Publishers that are not under the control of Bunchball. Bunchball is not responsible for any content on any site linking to or linked from the Service. If you access a third party site from the Service, then you do so at your own risk. Bunchball provides links only as a convenience and the inclusion of the link does not imply that Bunchball endorses or accepts any responsibility for the content on those third party sites. Additionally, your dealings with or participation in promotions of Advertisers or Publishers linked to the Service, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such Advertisers or Publishers. You agree that Bunchball will not be responsible for any loss or damage of any sort relating to your dealings with such Advertisers or Publishers.
17. INTERNATIONAL USAGE
This Site is controlled and operated by Bunchball from its offices within California, United States of America. Bunchball makes no representation that the Service or related information offered by Bunchball are appropriate or available in other locations. Those who choose to access the Service from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.
The Service and related information are the exclusive property of Bunchball or its suppliers. All rights not licensed herein are hereby reserved to Bunchball or its suppliers.
19. TERMINATION OR CANCELLATION OF SERVICE ACCESS; MODIFICATIONS TO SERVICE
If you violate these Terms, Bunchball may terminate or cancel your access rights to the Service immediately without notice. Bunchball may also block your use of the Service or direct you to cease using it. Bunchball reserves the right at any time to modify or discontinue the Service or any part thereof and you agree that Bunchball will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Service, or any part thereof (including the refund of Bunchball Credits), except at Bunchball's discretion you may receive a pro-rata refund in the event such modification, suspension, or discontinuance materially affects your access to those parts of the Service that you have paid for, provided the modification, suspension or discontinuance is not due to or in response to your wrongful acts or omissions.
20. EXCLUSIVE JURISDICTION
These Terms will be governed by the laws of the State of California, USA, without regard to its conflict of law provisions. Any disputes arising under or related in any way to these Terms or the Service will be litigated or otherwise heard in the appropriate forum in Santa Clara County, California, USA. The parties hereto hereby consent to the exclusive jurisdiction of the state and federal courts sitting in Santa Clara County, California, USA, and hereby waive any claim or defense that such forum is not convenient or proper, and consent to service of process by any means authorized by California law.
21. ENTIRE AGREEMENT
These Terms, as amended, your registration forms, and the disclosures provided by Bunchball and the consents provided by you, constitute the entire agreement between you and Bunchball. If any provision of these Terms will be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions. Bunchball's failure to act with respect to a breach by you or others does not waive Bunchball's right to act with respect to subsequent or similar breaches.
You agree that Bunchball may amend or modify these Terms or impose new conditions at any time by updating these Terms on the Site or upon notice from Bunchball to you as published through the Site or by email. Any use of the Service or order by you after such updating will be deemed to constitute acceptance of such amendments, modifications, or new conditions. If you do not want to be bound by an amendment, you will need to terminate your registration, if any, and refrain from using the Service or using or ordering Virtual Goods after that date. No other amendments will be valid unless they are in a paper writing signed by Bunchball and by you.
Except as expressly stated otherwise, any notices required or allowed under these Terms will be given to Bunchball by postal mail to: Bunchball, Inc., 355 Santana Row, Suite 2020, San Jose, CA 95128, or as to a successor address that Bunchball makes available on the Site or through other reasonable manner. If applicable law requires that Bunchball accepts email notices (but not otherwise), then you may send Bunchball email notice to firstname.lastname@example.org . With respect to Bunchball's notices to you, Bunchball may provide notice of amendments by posting them in the Site and you agree to check for changes. Instead or in addition, Bunchball may give notice by sending email to the email address you provide during registration. Notice will be deemed given 24 hours after it is posted or an email is sent, unless (as to email) the sending party is notified that the email address is invalid.
Last updated October 14, 2011.