Terms of Service
Effective Date: October 31, 2018.
These terms of service ("TOS") apply to you and Foggybus Ltd., Kirochnaya 64, 191015, Saint-Petersburg, Russian Federation, ("Foggybus") regarding your use of Foggybus's games, websites, discussion forums and related services ("Services"). Use of the Services is also governed by Foggybus's Privacy Notice available at foggybus.com/privacy, which is incorporated by reference.
For United States residents, these TOS contain a binding arbitration clause in Article 8 and a class-action waiver that affects your rights about how to resolve disputes. If you live in the United States, please read it carefully. Except where you opt out, and except for certain types of disputes described in Section 8, you agree that any disputes arising between you and Foggybus will be resolved by binding, individual arbitration and you waive your right to participate in any class-action lawsuit or class-wide arbitration.
As a precondition for using the Services, you must agree to these TOS. If you accept these TOS, you represent that you are age 13 or older. If you are between the ages of 13 and 17 or otherwise do not have the authority to enter into agreements such as these TOS, you represent that your legal guardian, or a holder of parental responsibility, has reviewed and agreed to these TOS.
By using or otherwise accessing the Services, you agree to these TOS. If you do not agree to these TOS, you may not use or otherwise access the Services.
Unless otherwise specified by a component of an applicable Service, the Services are free to use or download but may contain features that may allow you to make purchases within the Services.
If you access the Services from a social networking site ("SNS"), such as Facebook, you agree to comply with its terms of service as well as these TOS.
Foggybus may issue additional policies related to specific components of the Services (including, but not limited to, forums, contests, sweepstakes or loyalty programs). Your right to use the Services is subject to such relevant policies and these TOS.
1. Right to Use the Services
Subject to these TOS, Foggybus hereby grants you a non-exclusive, non-transferable, non-sublicensable, limited right and license to use the Services for your personal, non-commercial use. The rights granted to you are subject to your compliance with these TOS.
Except as previously set forth, you do not receive any other license. Foggybus retains all right, title and interest in and to the Services, including, but not limited to, all copyrights, trademarks, trade secrets, trade names, proprietary rights, patents, titles, computer codes, audiovisual effects, themes, characters, character names, stories, dialog, settings, artwork, sound effects, musical works, gameplay recordings made using the Services, moral rights, whether registered or not and all applications thereof. Unless expressly authorized by law, the Services may not be copied, reproduced or distributed in any manner or medium, in whole or in part, without Foggybus's prior written consent. Foggybus reserves all rights not expressly granted to you herein.
The Services and its contents are licensed, not sold. You agree that you have no right or title in or to any content that appears in the Service, including, but not limited to, the Virtual Items or currency appearing in or originating from the Services, whether earned in the Services or purchased from Foggybus or third parties.
2. Purchases in the Services
Foggybus may license to you certain virtual goods to be used within the Service and which you may purchase with "real world" money or which you may earn or redeem via gameplay ("Virtual Items"). Virtual Items are licensed to you on a limited, personal, non-transferable, non-sublicensable, revocable basis and are intended solely for non-commercial use.
Foggybus may manage, control, modify or eliminate Virtual Items at any time, with or without notice.
The transfer of Virtual Items is prohibited except where expressly authorized in the Services, as applicable.
Virtual Items do not have an equivalent value in real world money and are not a substitute for real world money. Neither Foggybus nor any other person or entity has any obligation to exchange Virtual Items for anything of value. Foggybus is not liable for hacking or loss of your Virtual Items.
Price and availability of Virtual Items are subject to change without notice.
By law, all purchases and redemptions of Virtual Items made through the Services are final and non-refundable. You acknowledge and consent that the provision of Virtual Items for use in the Services is a process that commences immediately upon purchase and that you forfeit your right of cancelation once the process has commenced.
Accordingly, you agree that Foggybus is not required to provide a refund for Virtual Items for any reason. You further acknowledge that you will not receive money or other compensation for unused Virtual Items, regardless of whether your loss of license under these TOS was voluntary or involuntary.
If you ask for your personal data to be deleted as described in Foggybus's Privacy Notice, you will permanently forfeit all of your Virtual Items without the right to refund, as Foggybus will no longer be able associate such Virtual Items with you.
3. Code of Conduct
You agree that you will not, under any circumstances:
- Use, either directly or indirectly, any cheats, exploits, automation software, bots, hacks, mods or any unauthorized third-party software designed to modify or interfere with the Services.
- Use the Services in violation of any applicable law or regulation.
- Use the Services for commercial purposes, including, but not limited to, to advertising, or solicitation, or transmission of any commercial advertisements such as spam emails, chain letters, pyramid or other get-rich-quick schemes.
- Use the Services for fraudulent or abusive purposes including, but not limited to, using the Services to impersonate any person or entity, or otherwise misrepresent your affiliation with a person, entity or the Services;
- Disrupt, interfere with or otherwise adversely affect the normal flow of the Services or otherwise act in a manner that may negatively affect other users' experience when using the Services.
- Disrupt, overburden, or aid or assist in the disruption or overburdening of any computer or servers used to offer or support the Services.
- Attempt to gain unauthorized access to the Services, to accounts registered to others or to the computers, servers, or networks connected to the Services by any means other than the user interface provided by Foggybus, including, but not limited to, by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device, encryption, or software that is part of the Services.
- Post any information, content or other material (or post links to any information or content) that contains nudity, excessive violence or is abusive, threatening, obscene, defamatory, libelous, or racially, sexually, religiously offensive or otherwise objectionable.
- Engage in ongoing toxic behavior, such as repeatedly posting information on an unsolicited basis.
- Attempt to, or harass, abuse, or harm, or advocate or incite harassment, abuse, or harm of another person, group, including Foggybus employees, directors, officers, and customer service representatives.
- Make available through the Services any material or information that infringes any copyright, trademark, patent, trade secret, right of privacy, right of publicity, or other right of any person or entity, or which impersonates any other person, including, but not limited to, a Foggybus employee, director or officer.
- Unless specifically authorized by law, attempt to decompile, reverse engineer, disassemble or hack any of the Services, or to defeat or overcome any of the encryption technologies or security measures or data transmitted, processed or stored by Foggybus, or to obtain any information from the Services using any method not expressly permitted by Foggybus.
- Solicit or attempt to solicit login information or any other login credentials or personal information from other users of the Services.
- Harvest, scrape or collect any information about or regarding other people that use the Services, including, but not limited to, through use of pixel tags, cookies, GIFs or similar items that are sometimes also referred to as spyware.
- Post anyone's private information, including personally identifiable information/personal data (whether in text, image or video form), identification documents, or financial information through the Services.
- Engage in any act that Foggybus deems to conflict with the spirit or intent of the Services or make improper use of Foggybus's support services.
4. Third-Party Services
Services may include links to third-party services (including, but not limited to, advertisements displayed by third parties) and/or the third-party services may be made available to you via Services. These services may include, but are not limited to gameplay recording and sharing, social media connectivity and advertisements. These services are subject to respective third party terms and conditions. Please read these third-party terms and conditions, carefully as they constitute an agreement between you and the relevant third-party service provider to which Foggybus is not a party.
5. Accounts and Login Information
Certain elements of the Services may enable you to create an account or otherwise register with the Services ("Account"). You may be required to select a password for your Account or you may also use other credentials to access the Account ("Login Information"). You agree that you will not give your Login Information to anyone else or allow anyone else to use your Login Information or Account. You are solely responsible for maintaining the confidentiality of the Login Information, and you are responsible for all uses thereof, including purchases. Foggybus may assume that anyone logging into your Account using your Login Information is either you or someone logging in with your permission.
Foggybus reserves the right to delete your Account if Foggybus observes no activity by you in relation to the Account for 180 days or more. In such event, you may no longer be able to access and/or use any Virtual Items associated with that Account and no refund will be offered to you.
6. User Contributions
The Services may allow you to create content, including, but not limited to, gameplay maps, characters, screenshots or videos of your gameplay (collectively "User Contributions").
In exchange for use of the Services, you hereby grant Foggybus a non-exclusive, royalty-free, perpetual, irrevocable, fully transferable and sub-licensable worldwide right and license to use your User Contributions in any way and for any purposes including, but not limited to, the right to reproduce, copy, adapt, modify, perform, display, publish, broadcast, transmit, or otherwise communicate to the public by any current or future means and to distribute your User Contributions without any further notice or compensation to you of any kind.
Where not expressly prohibited by law, you hereby waive any moral rights of paternity, publication, reputation, or attribution with respect to Foggybus's and other players' use and enjoyment of your User Contributions in connection with the Services and related goods and services under applicable law. This grant of license to Foggybus, and the foregoing waiver of any applicable moral rights, survives any termination of these TOS.
Foggybus, its directors, officers and employees do not accept or consider unsolicited idea or product submissions of any kind (e.g. game or other product ideas, stories, screenplays, artwork, musical or audiovisual works, concepts or any other creative materials) in any format, by means of any transmission ("Unsolicited Content"). Please do not submit any Unsolicited Content to Foggybus or its directors, officers or employees. However, if you submit Unsolicited Content to us, you agree that such Unsolicited Content will not be treated as confidential, regardless of what you otherwise state in your accompanying message. You further agree that such Unsolicited Content may be used and exploited by Foggybus without compensation to you or any third party and you grant Foggybus a perpetual, non-exclusive, irrevocable, fully paid, royalty free, sub-licensable and transferable (in whole or in part) worldwide license to use, exploit, reproduce, transmit, amend, display and exhibit Unsolicited Content in all current or future media for any purpose and to create derivative works based upon the Unsolicited Content.
7. Communications between Users of the Services
Foggybus assumes no responsibility for the conduct of other users of the Services and assumes no responsibility for monitoring the Services for inappropriate content or conduct. Foggybus does not, and cannot, pre-screen or monitor all content or conduct of users. Your use of the Services is at your own risk.
By using the Services, you may be exposed to content or conduct that is offensive, indecent or otherwise not in line with your values. Foggybus may utilize technology to monitor and/or record your interactions with the Services or communications (including, but not limited to, chat text) when you are using the Services. You irrevocably consent to such monitoring and recording. Accordingly, you agree that you have no expectation of privacy concerning the transmission of any content within the Services, including, but not limited to, chat text or voice communications.
Foggybus reserves the right at its sole discretion to review, monitor, prohibit, edit, delete, disable access to or otherwise make unavailable any content made available by users of the Service without notice for any reason or for no reason at any time. If at any time Foggybus chooses, at its sole discretion, to monitor the Services, Foggybus nonetheless assumes no responsibility for content made available by users of the Services, and Foggybus assumes no obligation to modify or remove any inappropriate content.
8. Binding arbitration / Class waiver
Payment of arbitration costs will be governed by the AAA's fee schedule, unless you are able to show that your portion will be prohibitive as compared to litigation costs, in which case Foggybus will pay as much of your arbitration costs as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to litigation costs. Foggybus also reserves the right in its sole and exclusive discretion to assume responsibility for all arbitration costs imposed by the AAA. Each party agrees to pay its own attorneys' fees and expenses unless there is a governing statutory provision that requires the prevailing party to be paid attorneys' fees and expenses.
The arbitration may be conducted in Los Angeles, California or, upon your request, in the city closest to you location where AAA maintains an office. The arbitrator's award shall be final and binding on you and Foggybus and may be entered as a judgment in any court of competent jurisdiction.
For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at www.adr.org.
As an exception to the binding arbitration rule, to the extent the Dispute arises from:
- A violation of Foggybus's intellectual property rights in any manner;
- Any claim related to, or arising from, allegations of theft, piracy, unauthorized use or a violation of the United States Computer Fraud and Abuse Act or Section "Code of conduct" of these TOS; and
- Any claim for equitable relief;
then both parties agree that a party may seek injunctive remedies (or an equivalent type of urgent legal relief) in any court with jurisdiction over the other party. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court's jurisdiction in lieu of arbitration.
To the extent permissible under applicable law, all Disputes shall be resolved by binding confidential arbitration on an individual basis. You expressly agree that no other Disputes shall be consolidated or joined with your Dispute, whether through class arbitration proceedings or otherwise. You and Foggybus agree that there is no right or authority for any dispute to be arbitrated on a class-action basis or to utilize class action procedures, there is no right or authority for any dispute to be brought in a purported representative capacity or as a private attorney general, and no arbitration shall be joined with any other arbitration.
You may opt out of this obligation to arbitrate. If you do so, neither you nor Foggybus can require the other to participate in an arbitration proceeding. To opt out, you must notify Foggybus in writing within 30 days of the date that you first became subject to this arbitration provision. You must use this address to opt out: Foggybus Ltd., ATTN: Legal Department, Kirochnaya 64, 191015, Saint-Petersburg, Russian Federation. You must include your name and residence address and a clear statement that you want to opt out of this arbitration clause.
To begin an arbitration proceeding, you must send a letter to: Foggybus Ltd., ATTN: Legal Department, Kirochnaya 64, 191015, Saint-Petersburg, Russian Federation requesting arbitration and describing your claim.
Foggybus will provide 30-days' notice of any changes to this Section "Binding arbitration/ Class waiver" through the Services or via other similar means. Changes will become effective on the 30th day and will apply prospectively only to any claims arising after the 30th day.
9. Suspension and Termination for your Breach
Without limiting any other remedies available to Foggybus, if Foggybus believes that you are in breach of these TOS, Foggybus reserves the right to take any of the following actions, whether individually or in combination, and either with or without notice to you: (i) delete, suspend and/or modify your Account or parts of your Account; (ii) limit, suspend and/or terminate your access to the Services; (iii) modify and/or remove any of your Virtual Items; (iv) reset and/or modify any game progression or benefits and privileges associated with you, such as any level or score you have reached in the Services.
10. Availability of the Services
Foggybus may limit, suspend or terminate the Services, or portions thereof, and take technical and legal steps to prevent users from accessing the Services if Foggybus believes they are creating risk or possible legal liabilities, infringing intellectual property rights of third parties, or not acting in accordance with the letter or spirit of these TOS.
Foggybus reserves the right to stop offering and/or supporting the Services or a part thereof (e.g. a game or a feature of a game) at any time, at which point your license to use the Services or a part thereof will be terminated automatically. In such an event, unless otherwise required by applicable law, Foggybus does not have to provide refunds for Virtual Items or other items in connection with such discontinued Services.
To the fullest extent permissible under applicable law, the Services are provided to you "AS IS," without warranty, assurances or guarantees of any kind. It may have defects, and your use is solely at your risk. Foggybus does not make, and hereby disclaims any and all express, implied or statutory warranties, including implied warranties of condition, uninterrupted use, accuracy of data (including, but not limited to, location data), merchantability, satisfactory quality, fitness for a particular purpose, non-infringement of third-party rights, and warranties (if any) arising in the course of dealing, usage, or trade practices. Foggybus does not warrant against interference with your enjoyment of the Services; that the Services will meet your requirements; that operation of the Services will be uninterrupted or error-free; that the Services will interoperate or be compatible with any other services; or, that any errors in the Services will be corrected. No oral or written advice provided by Foggybus, its employees or other representatives constitute a warranty.
Some jurisdictions do not allow disclaimers such as those set forth above; thus, the above terms may not apply to you. Instead, in such jurisdictions, the foregoing disclaimers shall only apply to the extent permitted by the laws of such jurisdictions. Moreover, you may have additional legal rights in your jurisdiction, and nothing in these TOS shall infringe upon the statutory rights that you may have as a consumer of the Services.
12. Limitations of Liability
In no way will Foggybus be liable for special, incidental or consequential damages resulting from access, use or malfunction of the Services, including but not limited to, damages to property, loss of goodwill, device failure or malfunction and, to the extent permitted by law, damages for personal injuries, property damage, lost profits or punitive damages from any causes of action arising out of or related to these TOS or the Services, whether arising in tort (including negligence), contract, strict liability or otherwise and whether or not Foggybus has been advised of the possibility of such damages. For purposes of Article 12 "Limitations of Liability," Foggybus's licensors and other partners are third-party beneficiaries to the limitations of liability specified herein and may enforce these TOS against you.
In no way will Foggybus's total aggregate liability arising out of or in connection with these TOS, the Privacy Notice or the Services exceed the higher of: (i) the actual price (if any) you paid for the license to use Virtual Items; or (ii) one hundred euros (€100). The exclusions and limitations of damages are fundamental elements of the basis of the agreement between Foggybus and you.
Some jurisdictions do not allow certain limitations of liability such as these stated above; thus, the above terms may not apply to you. Instead, in such jurisdictions, the foregoing limitations of liability shall apply only to the extent permitted by the laws of such jurisdictions. Moreover, you may have additional legal rights in your jurisdiction, and nothing in these TOS will infringe upon any statutory rights you may have as a consumer of the Services.
You agree to indemnify, defend and hold Foggybus (and Foggybus's officers, directors, agents, subsidiaries, joint ventures and employees) harmless from any claim, demand, damages or other losses, including reasonable attorneys' fees, asserted by any third-party resulting from or arising out of your use of the Services, or any breach by you of these TOS; however, the foregoing does not apply if the third-party claim is not attributable to your intentional or negligent behavior.
13. Copyright and DMCA
If you believe the Services or any of its content infringes your copyrights, please send a notice to: Foggybus Ltd., Legal Department, Kirochnaya 64, 191015, Saint-Petersburg, Russian Federation or alternatively via email to: firstname.lastname@example.org. Notices sent to the specified address will reach Foggybus's registered DMCA agent.
Please include all of the following in your DMCA notice:
- Identify the copyrighted work that you claim has been infringed. If your DMCA notice covers multiple works, you may provide a representative list of such works.
- Identify what you claim is the infringing material, including a description of where the material is located. Your description must be reasonably sufficient to enable Foggybus to locate the material.
- Provide your full legal name, mailing address, telephone number, and (if available) email address.
Include the following statement in the body of the DMCA notice:
"I have a good-faith belief that the use of the material is not authorized by the copyright owner, its agent, or the law. I represent that the information in this DMCA notice is accurate and, under penalty of perjury, that I am the owner of the copyright or authorized to act on the copyright owner's behalf."
Please note that under 17 U.S.C. 512(f), if you knowingly misrepresent that a material or activity is causing infringement, you may be liable for damages, including the costs and attorneys' fees incurred by us or our users. If you are unsure whether the material or activity you are reporting is causing infringement, you may wish to contact an attorney before serving a notice to Foggybus.
14. Links to Third-party Products and Services
15. Changes to these TOS
Notwithstanding Article 8 "Binding arbitration / Class Waiver," Foggybus may update these TOS from time to time in response to changing legal, technical or business developments. When Foggybus updates these TOS, Foggybus will take appropriate measures to inform you via the Services or otherwise, in accordance with the significance of the changes Foggybus makes.
By continuing to access or use the Services after updates become effective, you agree to be bound by the updated TOS.
16. Governing Law
If you are a United States resident, in addition to Article 8 above, "Binding Arbitration / Class Waiver," these TOS are governed by the laws of the State of California and applicable federal laws regardless of conflict of law provisions. If you are a resident outside the United States, you agree that all disputes between you and Foggybus shall be governed by the laws of Finland, regardless of conflict of law provisions. You agree that any claim or dispute you may file against Foggybus must be resolved exclusively by a court located in Espoo, Finland.
If the jurisdiction of your domicile prohibits Foggybus from enforcing the governing law provision, nothing in these TOS limits your rights based on the laws governing your domicile.
17. Assignment, Severability and Entire Agreement
Foggybus may assign these TOS, in whole or in part, to any person or entity at any time with or without your consent. You may not assign or delegate any rights or obligations under these TOS or the Privacy Notice without Foggybus's prior written consent, and any unauthorized assignment and delegation by you is void.
If any provision of these TOS is held to be invalid or unenforceable, such provision will be limited or eliminated to the minimum extent necessary, and the remaining provisions of these TOS will remain in full force and effect. Foggybus's failure to enforce any right or provision of these TOS will not be deemed a waiver of such right or provision.
This TOS and Privacy Notice set out the entire agreement between you and Foggybus regarding the Services and supersede all earlier agreements and understandings between you and Foggybus.
Any failure by Foggybus to exercise or enforce any of its rights under these TOS does not waive its right to enforce such right. Any waiver of such rights shall only be effective if it is in writing and signed by an authorized representative of Foggybus.
If you have any questions about these TOS, please contact email@example.com.