TERMS OF USE

Effective Date: February 4, 2014
(Last Updated: February 4, 2014)

Limbic Software, Inc. (“Limbic Software”) provides interactive software products (“Games”) under its “Limbic Software” brand name via online services such as Apple iTunes App Store, Google Play Store, Amazon Appstore for Android, Samsung Appstore, and owns and operates various websites and their subdomains including but not limited to www.limbic.com and www.towermadness.com (our “Sites”) to provide access to information about Limbic Software, the Games, message boards, head to head match play or provide technical support to Limbic Software customers (our “Content”). Please read the following terms and conditions (“Terms of Use”) carefully. These Terms of Use govern your access to and use of our Games, Sites and Content (defined below) and set forth the legally binding terms for your use of the Games and Content.

Our Games, Sites and Content are available for individuals aged 13 years or older. If you are 13 or older but under the age of 18, you should review these Terms of Use with your parent or guardian to make sure that you and your parent or guardian understand these Terms of Use. BY ACCESSING OR USING OUR SITES OR BY PURCHASING, DOWNLOADING AND/OR INSTALLING A GAME, YOU REPRESENT THAT YOU ARE AT LEAST 13 YEARS OLD AND THAT YOU HAVE READ AND UNDERSTAND AND ACCEPT THESE TERMS OF USE AND YOU AGREE AND UNDERSTAND THAT YOU ARE BOUND BY THESE TERMS OF USE AND ALL TERMS, POLICIES AND GUIDELINES INCORPORATED IN THESE TERMS OF USE, INCLUDING WITHOUT LIMITATION OUR PRIVACY POLICY LOCATED AT www.limbic.com/privacypolicy. IF YOU DO NOT AGREE TO THESE TERMS OF USE, THEN YOU HAVE NO RIGHT TO ACCESS OR USE OUR SITES, GAMES OR CONTENT. Additional terms and conditions set forth in the applicable End User License Agreement may apply to your use of the Sites or Game and such terms along with these Terms of Use shall apply. In case of any conflict between any End User License Agreement and these Terms of Use, such End User License Agreement shall control. We reserve the right to amend these Terms of Use in any and all respects at any time. IF YOU ARE NOT AT LEAST 13 YEARS OLD AND/OR YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST IMMEDIATELY (1) REFRAIN FROM USING THE SOFTWARE AND ANY OTHER MATERIALS ASSOCIATED WITH THE SOFTWARE, (2) COMPLETELY DELETE ALL COPIES OF THE SOFTWARE AND ALL RELATED FILES FROM YOUR DEVICE.

IN ADDITION TO THE FOREGOING, IF YOU ARE PURCHASING, DOWNLOADING AND/OR INSTALLING A GAME FROM AN ONLINE SERVICE SUCH AS APPLE ITUNES APP STORE, GOOGLE PLAY STORE, AMAZON APPSTORE FOR ANDROID, SAMSUNG APPSTORE YOU REPRESENT THAT YOU ARE NOT LOCATED IN A COUNTRY EMBARGOED BY THE UNITED STATES AND/OR ON THE U.S. TREASURY DEPARTMENT’S LIST OF SPECIALLY-DESIGNATED NATIONALS. IF YOU DO NOT MEET THIS REQUIREMENT, YOU MUST IMMEDIATELY (1) REFRAIN FROM USING THE SOFTWARE AND ANY OTHER MATERIALS ASSOCIATED WITH THE SOFTWARE, (2) COMPLETELY DELETE ALL COPIES OF THE SOFTWARE AND ALL RELATED FILES FROM YOUR DEVICE.

We reserve the right to modify or discontinue the Sites, Games or Content in any and all respects. You agree to check www.limbic.com/terms-of-use periodically for new information and terms that govern your use of our services. Revisions to terms affecting existing services shall be effective thirty (30) days after posting at www.limbic.com/terms-of-use. Terms for new services are effective immediately upon posting at www.limbic.com/terms-of-use.

Certain Definitions

Certain types of content are made available through the Sites and/or Games. “Content” includes, but is not limited to, the software, data, technology, text, forum posts, chat posts, profiles, widgets, messages, links, e-mails, music, sound, graphics, pictures, images, illustrations, forms, video, code, and all audio visual or other material appearing on or emanating to and/or from the Sites or Games, including their look and feel attributes, as well as the design and appearance of the Sites, the Limbic Software trademarks and logos and other content made available through the Sites and Games. “User Content” means any text, data, graphics, images, photos, video or audiovisual content, hypertext links and any other content uploaded, transmitted or submitted by individual users to the Sites or Games, including through use of any widget.

Intellectual Property Rights

The Sites, Games and Content are owned by Limbic Software or Limbic Software’s third party licensors and are protected by U.S. copyright laws, trade dress, patent, and trademark laws, international conventions, and other laws protecting intellectual property and related proprietary rights. You may not copy or download any Content unless you are expressly authorized to do so. You do not acquire any ownership rights in our Sites, Games or Content by using the Sites, Games or Content.

You agree not to remove, obscure, or alter copyright, patent, trademark, or other proprietary rights notices affixed to Content or Games. You may not sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of Games or Content. We reserve all rights in our Sites, Games and Content that are not expressly granted to you in these Terms of Use. Making unauthorized copies of Games and/or Content found on the Sites will result in the termination of your rights to use the Sites and Games and further legal action. We or our licensors and exclusive licensees may take criminal or civil action against you for unauthorized use of intellectual property. You agree to indemnify and hold us and our employees, representatives, agents, licensees and providers of Third Party Services linked to our Sites and Games harmless from any unauthorized or illegal conduct by you, or through the use of the Sites or Games.

We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Sites, Products and Content (“Feedback”). You may submit Feedback by emailing us at support@limbic.com or through the Contact section of the Sites. You acknowledge and agree that all Feedback will be our sole and exclusive property and you hereby irrevocably assign to Limbic Software and its licensees and successors and assigns, and agree to irrevocably assign to Limbic Software and its licensees and successors and assigns all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent rights, copyright rights, trade secret rights, and other proprietary or intellectual property rights therein. At our request and expense, you will execute documents and take such further acts as we may reasonably request to assist us to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.

Contributing Third Party Content

We respect the intellectual property rights of others. You must have the legal right to upload User Content to the Sites or Games. You may not upload or post any User Content that is protected by copyright, trademark or other intellectual property rights unless (i) you are the owner of all of those rights or (ii) you have the prior written consent of the owner(s) of those rights to make such use of that User Content. We may, without prior notice to you and in our sole judgment, remove User Content that may infringe the intellectual property rights of a third party. If you are an infringer of our or a third party’s intellectual property rights, we may terminate your right to access the Sites or Games without notice to you. If your access is terminated to the Sites or Games as a result of any infringement of intellectual property rights, you are not entitled to a refund for any fees you have paid.

Takedown Procedure under the U.S. Digital Millennium Copyright Act

We have adopted and implemented a policy respecting the U.S. copyright law that provides for the removal of User Content that infringes the rights of third parties and, in appropriate circumstances, disabling access to the Sites and/or Games and/or Content of users who are infringers of intellectual property rights, including copyrights under U.S. law. If you believe that one of our users is, through the use of one of our Games or Sites, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed from our web site(s), the following information in the form of a written notification (pursuant to 17 U.S.C. - 512(c)) must be provided to our designated Copyright Agent:

Identification of the copyrighted work(s) that you claim to have been infringed;
Identification of where the infringing material is located on our Sites or Products;
A statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law;
A statement that the information in the notification is accurate, and that under penalty of perjury, you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner;
Your address, telephone number, and e-mail address; and
Your physical or electronic signature.

Please note that pursuant to 17 U.S.C. - 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by Limbic Software in connection with the written notification and allegation of copyright infringement.

Our designated Copyright Agent is copyright@limbic.com.

Contributing User Content; License Grant to Limbic Software

When you contribute User Content to the Sites or a Game, you expressly grant to us and our licensees, successors and assigns, a non-exclusive, perpetual, worldwide, complete, irrevocable, fully-paid and royalty-free right to quote, re-post, use, reproduce, modify, create derivative works from, syndicate, license, print, sublicense, distribute, transmit, broadcast, and otherwise communicate, and publicly display and perform the User Content, or any portion thereof, in any manner or form and in any medium or forum, whether now known or hereafter devised, without notice, payment or attribution of any kind to you or any third party. You grant us all licenses, consents and clearances to enable us to use such User Content for such purposes. You waive, and agree not to assert any moral or similar rights you may have in such User Content.

Third Party Services

The Sites and Games may contain or link to third-party websites or resources, such as Apple iTunes App Store, Google Play Store, Amazon Appstore for Android, Samsung Appstore, and websites owned and operated by publishing and distribution partners (“Third Party Services”) where you can access the content, products, or services on or available from such websites or resources (“Third Party Materials”). Third Party Services, Third Party Materials and links to other websites are provided solely as a convenience to you, and links to such Third Party Services do not imply any endorsement by us of such Third Party Services or Third Party Materials available from such websites or resources nor do such links imply and endorsement by the providers of such Third Party Services or Third Party Materials of us, or the Game or Content. You acknowledge and agree that (i) we are not responsible or liable for examining or evaluating the content, the availability or accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, maintenance or support, or any other aspect of such Third Party Services or Third Party Materials, and (ii) the providers of such Third Party Services or Third Party Materials are not responsible or liable for examining or evaluating the content, the availability or accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, maintenance or support, or any other aspect of our Sites, Games and Content. We encourage you to review the terms of use or terms of service of any other Third Party Services provider from whom you request services, because by visiting a Third Party Service that is linked to the Sites or Game, you will be governed by such party’s terms of use or terms of service and privacy policy and you should consult that site’s terms of use or terms of service, and that site’s privacy policy before entering and using that site and before providing any personal information.

Sweepstakes and Contests

We may operate sweepstakes, contests and similar promotions (collectively, “Promotions”) through the Sites and Games. You should carefully review the rules (e.g., the “Official Rules”) of each Promotion in which you participate through the Sites and Games, as they may contain additional important information about our rights to and ownership of the submissions you make as part of the Promotions and as a result of your participation in such Promotion. To the extent that the terms and conditions of such Official Rules conflict with these Terms of Use, the terms and conditions of such Official Rules will control.

Privacy

Personal information gathered in connection with your use of the Sites or Game, submitted with User Content or upon entry into Promotions shall be held by Limbic Software in compliance with Limbic Software’s Privacy Policy, which is incorporated herein by reference. See our Privacy Policy at www.limbic.com/privacy for information and notices concerning our collection and use of your personal information. If you have any questions about our Privacy Policy, please contact us at privacyofficer@limbic.com. Because we cannot control the activities of third parties (including the providers of such Third Party Services or Third Party Materials), we cannot accept responsibility for any use of your personal information by such third parties, and we cannot guarantee that they will adhere to the same privacy and security practices as we do. We encourage you to review the privacy policies of any other Third Party Services provider from whom you request services, because by visiting a Third Party Service that is linked to the Sites or Game, you will be governed by such party’s terms of use or terms of service and privacy policy and you should consult that site’s terms of use or terms of service and that site’s privacy policy before entering and using that site and before providing any personal information.

Rules of Conduct

By agreeing to these Terms of Use you acknowledge that you may not:

Post, transmit, promote, or distribute User Content that is illegal.
Harass, threaten, embarrass, or do anything else to another user that is unwanted, such as sending unwanted messages or making personal attacks or statements about race, sexual orientation, religion, heritage, etc.
Transmit or facilitate distribution of User Content that is harmful, abusive, racially or ethnically offensive, vulgar, sexually explicit, defamatory, infringing, invasive of personal privacy or publicity rights, or in a reasonable person’s view, objectionable. Hate speech is not tolerated.
Disrupt the flow of chat in chat interfaces with vulgar language, abusiveness, causing the interface to scroll excessively, use of excessive shouting (typing in all caps) in an attempt to disturb other users, “spamming” or flooding (posting repetitive text).
Impersonate another person (including celebrities); indicate falsely that you are our employee or our representative, or attempt to mislead users by indicating that you represent us or any of our partners or affiliates.
Engage in any commercial activities, including but not limited to any attempts to raise money for anyone or advertise or promote a product, service, website, pyramid scheme or multi-tiered marketing scheme.
Attempt to get a password, account information, or other private information from any user.
Upload any software or User Content that you do not own or have permission to freely distribute.
Promote or encourage any illegal activity including hacking, cracking or distribution of counterfeit software.
Upload files that contain a virus or corrupted data.
Post messages for any purpose other than personal communication, including advertising or promotional messaging, chain letters, pyramid schemes, or other commercial activities.
Use or distribute “auto” software programs, “macro” software programs or other “cheat utility” software program or applications.
Modify any part of the Sites, Game or Content that we do not specifically authorize you to modify.
Post or communicate any other player’s real-world personal information through the Games.
Attempt to interfere with, hack into or decipher any transmissions to or from our servers.
Attempt to use Games on or through any service that is not controlled or authorized by us.
Interfere with the ability of others to enjoy playing a Game or take actions that interfere with or materially increase the cost to provide Games for the enjoyment of all its users.
Specific Third Party Services may also post additional rules that apply to your conduct on those services. You must also obey all applicable laws, regulations and rules that apply to your activities when you use the Sites or Games.

If you encounter another user who is violating any of the Rules of Conduct, please report this activity to Limbic Software at support@limbic.com.

Termination

We reserve the right to terminate your access and to prevent your use of any and all Sites or Games if you engage in illegal activity or violate these Terms of Use. We will have the right to investigate and prosecute violations of any of the above, including intellectual property rights infringement and Sites and Game security issues, to the fullest extent of the law. We may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms of Use. You acknowledge that we have no obligation to monitor your access to or use of the Sites, Games or Content or to review or edit any User Content, but has the right to do so for the purpose of operating the Sites and Games, to ensure your compliance with these Terms of Use, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Limbic Software reserves the right, at any time and without prior notice, to remove or disable access to any Content or other content, including any User Content, that we, in our sole discretion, considers to be in violation of these Terms of Use or otherwise harmful to the Sites or Games.

NO WARRANTY

YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SITES, GAMES AND CONTENT, AS WELL AS THE THIRD PARTY SERVICES LINKED TO OUR SITES AND GAMES, AND THE THIRD PARTY MATERIALS OFFERED THROUGH SUCH LINKS IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SITES, GAMES AND CONTENT AND ANY THIRD PARTY SERVICES OR THIRD PARTY MATERIALS PERFORMED OR PROVIDED BY THE SITE OR PRODUCTS ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND WE AND THE PROVIDERS OF THE THIRD PARTY SERVICES LINKED TO OUR SITES AND GAMES, AND THE THIRD PARTY MATERIALS OFFERED THROUGH SUCH LINKS, HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SITES, GAMES AND CONTENT AND ANY THIRD PARTY SERVICES AND THIRD PARTY MATERIALS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS. WE DO NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SITES, GAMES AND CONTENT, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE SITES, GAMES AND CONTENT WILL MEET YOUR REQUIREMENTS OR THAT ANY ERRORS IN THE OPERATION OF THE SITES, GAMES OR THIRD PARTY SERVICES OR THIRD PARTY MATERIALS WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US OR OUR AUTHORIZED REPRESENTATIVES OR BY THIRD PARTY SERVICES LINKED TO OUR SITES AND GAMES SHALL CREATE A WARRANTY. SHOULD THE SITES, GAMES, CONTENT, THIRD PARTY SERVICES OR THIRD PARTY MATERIALS PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION INCURRED BY YOU AS A RESULT OF YOUR USE OF THE SITES, GAMES, CONTENT, THIRD PARTY SERVICES OR THIRD PARTY MATERIALS. FOR THE AVOIDANCE OF DOUBT, WE ARE NOT AUTHORIZED TO MAKE AND DO NOT MAKE ANY WARRANTIES ON BEHALF OF THE PROVIDERS OF THE THIRD PARTY SERVICES LINKED TO OUR SITES AND GAMES, AND THE THIRD PARTY MATERIALS OFFERED THROUGH SUCH LINKS, AND OUR LICENSEES AND THE PROVIDERS OF THE THIRD PARTY SERVICES LINKED TO OUR SITES AND GAMES, AND THE THIRD PARTY MATERIALS OFFERED THROUGH SUCH LINKS ARE NOT AUTHORIZED TO MAKE AND DO NOT MAKE ANY WARRANTIES ON BEHALF OF OUR SITES, GAMES OR CONTENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.

LIMITATION OF LIABILITY

TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL WE OR ANY OF OUR EMPLOYEES, REPRESENTATIVES, AGENTS OR LICENSEES BE LIABLE FOR PERSONAL INURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SITES, PRODUCTS, CONTENT, THIRD PARTY SERVICES OR THIRD PARTY MATERIALS, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF FIVE DOLLARS (US$5). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

Indemnity

You agree to defend, indemnify, and hold us and our employees, representatives, agents, licensees and providers of Third Party Services linked to our Sites and Games harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with User Content you submit to us, your access to or use of our Sites, Games or Content, or your violation of these Terms of Use.

Injunctive Relief

You agree that a breach of these Terms of Use will cause irreparable injury to us for which monetary damages would not be an adequate remedy and we shall be entitled to seek equitable relief in addition to any remedies we may have hereunder or at law without a bond, other security or proof of damages.

Controlling Law and Jurisdiction

These Terms of Use and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions. Any dispute, claim, disagreement or controversy arising out of or relating to this Terms of Use or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate (“Dispute”), shall be determined in accordance with this Section. You agree that, by accepting these Terms of Use, you and we are each waiving the right to a trial by jury or to participate in a class action. In the event of a Dispute, You agree that such Dispute shall be resolved in the following manner:

First, by direct negotiation between you and our representative with authority to settle the Dispute. The party claiming that there is a Dispute must notify the other party in writing, giving full details of the claim and the specific relief sought (the “Dispute Notice”). Following receipt of the Dispute Notice, our representative shall attempt to contact you by e-mail or telephone to try to resolve the Dispute in good faith within thirty (30) days of receipt of the Dispute Notice. All offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, experts and attorneys are confidential, privileged and inadmissible for any purpose, including impeachment, in arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation.
If the Dispute is not resolved by the foregoing negotiations within thirty (30) days, then the Dispute shall be submitted to binding arbitration as follows: (i) if you are a resident of the United States, Canada or Mexico, in San Jose, California, under the auspices of JAMS Endispute and in accordance with the rules of JAMS’ Streamlined Arbitration Rules and Procedures and in accordance with the expedited procedures set forth in the JAMS Comprehensive Arbitration Rules and Procedures as those Rules exist on the effective date of these Conditions, including Rules 16.1 and 16.2 of those Rules; or (ii) if you are a resident elsewhere, in London, England, under the auspices of JAMS International, in accordance with the rules of JAMS’ Streamlined Arbitration Rules and Procedures and in accordance with the expedited procedures set forth in the JAMS Comprehensive Arbitration Rules and Procedures as those Rules exist on the effective date of these Conditions, including Rules 16.1 and 16.2 of those Rules. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. If your claim is for $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the rules of JAMS.
The arbitrator shall be appointed by JAMS in accordance with its rules. The arbitrator shall serve as neutral, independent and impartial arbitrator. The arbitrator shall be a retired judge or attorney with at least ten (10) years practice advising clients in the internet or e-commerce industry. The arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. Except for the initial filing fee if you file a Dispute, we will pay all other filing, administration, and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. If, however, the arbitrator finds that either the substance of your claim or the relief sought in the Dispute Notice is frivolous or brought for an improper purpose (as measured by the standards set forth in U.S. Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the JAMS. In such case, you agree to reimburse us for all monies previously disbursed by us that are otherwise your obligation to pay under the applicable Rules. In any Dispute arising out of or related to these Terms of Use, the arbitrator is not empowered to award punitive or exemplary damages, except where permitted by statute, and the parties waive any right to recover any such damages. In any Dispute arising out of or related to these Terms of Use, the arbitrator(s) may not award any incidental, indirect or consequential damages, including damages for lost profits.
The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. YOU AND WE 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. Further, unless both you and we agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.

Entire Agreement; Severability; Waiver

Except as otherwise provided in any applicable End User License Agreement, these Terms of Use constitute the entire and exclusive understanding and agreement between Limbic Software and you regarding the Sites, Games and Content, and these Terms of Use supersede and replace any and all prior oral or written understandings or agreements between Limbic Software and you regarding the Sites, Games and Content. You agree that these Terms of Use are not intended to confer and do not confer any rights or remedies upon any person other than the parties to these Terms of Use. You also understand and agree that these Terms of Use and the Limbic Software Privacy Policy incorporated by reference into these Terms of Use, including our enforcement of those policies, are not intended to confer, and do not confer, any rights or remedies upon any third party. If any part of these Terms of Use is held invalid or unenforceable, that portion shall be interpreted in a manner consistent with applicable law to reflect, as nearly as possible, our original intentions, and the remaining portions shall remain in full force and effect. Our failure to enforce any right or provision of these Terms of Use will not constitute a waiver of future enforcement of that right or provision.

Notices

You consent to the use of (i) electronic means to complete these Terms of Use and to deliver any notices or other communications permitted or required hereunder and (ii) electronic records to store information related to these Terms of Use or your use of the Sites, Games or Content. Any notices or other communications permitted to required hereunder, including those regarding modifications to these Terms of Use, will be in writing and given (x) by us via email (in each case to the address that you provide) or (y) by posting to the Sites or Game. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.