TERMS OF SERVICE
These terms apply to your download, access and/or use of Gigantic Duck games (whether on a computer, on a mobile device or on our website www.giganticduck.com) and websites, discussion forums or any other related services (“Services”).
These terms represent a legal agreement between you and Gigantic Duck AB, a Swedish company with registered office address at Klintegatan 9, 50640, Borås, Sweden, (company registration number 59204-0033) (“Gigantic Duck Games”).
As a precondition for using the Services, you must agree to these Terms. If you do not agree to these terms or any future updated version of them then you must not access and/or use the Services.
If you accept these Terms, you represent that you are at least 13 years old and that if you are between 13 years and 18 years old, you represent that your legal guardian has reviewed and agreed to these Terms.
For residents in the USA, these Terms contain a binding arbitration clause and a class-action waiver in Section 21 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 21, you agree that any disputes arising between you and Gigantic Duck Games will be resolved by binding, individual arbitration and you waive your right to participate in any class-action lawsuit or class-wide arbitration.
ACCESSING AND USING THE SERVICES
You are responsible for the internet connection and/or mobile charges that you may incur for accessing and/or using the Services.
There may be times when the Services or any part of them are not available for technical or maintenance related reasons, whether on a scheduled or unscheduled basis, as specified in Section 9.
When using the Services, you may choose to, and in some instances, you will be required to, create an account with us. If you do create an account with us, you agree that you shall take all steps necessary to protect your log in details and keep them secret.
Gigantic Duck Games are entitled to assume that anyone logging into your account using your log in details is either you or someone logging in with your permission. If you fail to keep your login details secret, or if you share your login details or account with someone else (whether intentionally or unintentionally), you accept full responsibility for the consequences of this (including any unauthorized purchases) and agree to fully compensate Gigantic Duck Games for any losses or harm that may result. Gigantic Duck Games will not be responsible for any loss that you suffer as a result of an unauthorized person accessing your account and/or using the Services and Gigantic Duck Games accept no responsibility for any losses or harm resulting from its unauthorized use, whether fraudulently or otherwise.
Gigantic Duck Games reserves the right to delete your Account if Gigantic Duck Games 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 (as defined below) associated with that account and no refund will be offered to you in relation to the same.
You understand that if you delete your account, or if Gigantic Duck Games delete your account in accordance with these terms, you may lose access to any data previously associated with your account (including, without limitation, your progress through our games and any Virtual Items associated with your account).
You acknowledge and agree that you shall have no ownership or other property interest in any account that you create using the Services. Gigantic Duck Games may suspend, terminate, modify or delete your account at any time for any reason or no reason, with or without notice to you.
Your account is personal to you and you are not entitled to transfer your account to any other person.
PURCHASES IN THE SERVICES – VIRTUAL ITEMS
From time to time, Gigantic Duck Games may offer products and services for purchase (“in app purchases”) through iTunes, Google Play, carrier billing, Gigantic Duck Games direct billing or other payment platforms authorized by Gigantic Duck Games. If you choose to make an in app purchase, you will be prompted to confirm your purchase with the applicable payment provider, and your method of payment (be it your card or a third party account such as Google Play or iTunes) (your “Payment Method”) will be charged at the prices displayed to you for the service(s) you’ve selected as well as any sales or similar taxes that may be imposed on your payments, and you authorize Gigantic Duck Games or the third party account, as applicable, to charge you. Depending on your Payment Method, additional charges may be issued by your bank; Gigantic Duck Games have no control over this and accept no liability in relation to the same. Our payment processing partners may have their own terms and conditions and you should ensure you are in agreement with these prior to making any payment. If your transaction with our payment processing partners is not successful, your purchase will not be fulfilled.
If you purchase an auto-recurring periodic subscription, your Payment Method will continue to be billed for the subscription until the subscription is cancelled. Your subscription will automatically renew on a monthly-basis unless you turn off auto-renew via your third-party account at least 24 hours before the end of the then-current subscription period. You agree that sales by Gigantic Duck Games to you of subscriptions are final and that cancellation is not permitted during an active subscription period.
The Services may include virtual currencies items or services (“Virtual Items”). You agree that once purchased Virtual Items has no monetary value and can never be exchanged for real money, real goods or real services from Gigantic Duck Games or anyone else.
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. 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 Terms was voluntary or involuntary. Gigantic Duck Games is not liable for hacking or loss of your Virtual Items.
You do not own Virtual Items but instead you purchase a limited personal revocable license to use them. Any balance of Virtual Items does not reflect any stored value.
Gigantic Duck Games may manage, control, modify or eliminate Virtual Items at any time, with or without notice. Price and availability of Virtual Items are subject to change without notice.
You agree that Virtual Items are not transferrable to anyone else except where expressly authorized in the Services.
CODE OF CONDUCT
You agree that you will comply with all laws applicable to you. If any laws applicable to you restrict or prohibit you from using the Services, you must comply with those legal restrictions or, if applicable, stop accessing and/or using the Services.
You agree that you will not:
- use the Services to cheat or design or assist in cheating, whether directly or indirectly (including, without limitation, the use of 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 any commercial or business purpose or for the benefit of any third party or to send unsolicited communications, including, without limitation, advertising, or solicitation, or transmission of any commercial advertisements;
- sell, transfer or attempt to sell or transfer an account or any part of an account or Virtual Items;
- use the Services for fraudulent or abusive purposes including, without limitation, 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 Gigantic Duck Games, including, without limitation, 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, User Contributions or other material (or post links to any information or User Contributions) that contains nudity, violence or is abusive, threatening, obscene, defamatory, libelous, or racially, sexually, religiously offensive or otherwise objectionable;
- engage in offensive behavior, including, without limitation, 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, without limitation, Gigantic Duck Games 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, without limitation, a Gigantic Duck Games employee, director or officer;
- remove or amend any proprietary notices or other ownership information from the Services;
- 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 Gigantic Duck Games, or to obtain any information from the Services using any method not expressly permitted Gigantic Duck Games;
- 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 personal data or information about or regarding people that use the Services, including, without limitation, through use of pixel tags, cookies, graphic interchange formats (gifs) or similar items that are sometimes also referred to as spyware;
- post anyone’s private information, including, without limitation, 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 Gigantic Duck Games deems to conflict with the spirit or intent of the Services or make improper use of Gigantic Duck Games support services;
- disobey any requirements or regulations of any network connected to the Services; or
- use the Services in any other way not permitted by these terms.
Information, data, software, sound, photographs, graphics, videos, tags, or other materials may be sent, uploaded, communicated, transmitted or otherwise made available via the Services by you or another user (“User Contributions”). You understand and agree that all User Contributions that you may be sent when using the Services, whether publicly posted or privately sent, is the sole responsibility of the person that sent the User Contributions. This means that you, not Gigantic Duck Games, are entirely responsible for all User Contributions that you may upload, communicate, transmit or otherwise make available via the Services.
You agree not to upload, communicate, transmit or otherwise make available any User Contributions:
- that is or could reasonably be viewed as unlawful, harmful, harassing, defamatory, libelous, obscene or otherwise objectionable;
- that is or could reasonably be viewed as invasive of another’s privacy;
- that is likely to, or could reasonably be viewed as likely to incite violence or racial or ethnic hatred;
- which you do not have a right to make available lawfully (such as inside information, information which belongs to someone else or confidential information);
- which infringes any intellectual property right or other proprietary right of others;
- which consists of any unsolicited or unauthorized advertising, promotional materials, ‘junk mail’, ‘spam’, ‘chain letters’, ‘pyramid schemes’ or any other form of solicitation; or
- which contains software viruses, or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
Gigantic Duck Games, its directors, officers and employees do not accept or consider unsolicited idea or product submissions of any kind, including, without limitation, 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 User Contributions”). Please do not submit any Unsolicited User Contributions to Gigantic Duck Games or its directors, officers or employees. However, if you submit Unsolicited User Contributions to us, you agree that such Unsolicited User Contributions will not be treated as confidential, regardless of what you otherwise state in your accompanying message. You further agree that such Unsolicited User Contributions may be used and exploited by Gigantic Duck Games without compensation to you or any third party and you grant Gigantic Duck Games 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 User Contributions in all current or future media for any purpose and to create derivative works based upon the Unsolicited User Contributions.
The Services may include links to third-party services (including, without limitation, advertisements displayed by third parties) and/or the third-party services may be made available to you via the 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.
INTERACTIONS BETWEEN USERS OF THE SERVICES
Gigantic Duck Games assumes no responsibility for the conduct of other users of the Services and assumes no responsibility for monitoring the Services for inappropriate User Contributions or conduct. Gigantic Duck Games does not, and cannot, pre-screen or monitor all User Contributions or conduct of users. Your use of the Services is at your own risk.
By using the Services, you may be exposed to User Contributions or conduct that is offensive, indecent or otherwise not in line with your values. Gigantic Duck Games may utilize technology to monitor and/or record your interactions with the Services or communications (including, without limitation, 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 User Contributions within the Services, including, without limitation, chat text or voice communications.
Gigantic Duck Games reserves the right at its sole discretion to review, monitor, prohibit, edit, delete, disable access to or otherwise make unavailable any User Contributions made available by users of the Service without notice for any reason or for no reason at any time. If at any time Gigantic Duck Games chooses, at its sole discretion, to monitor the Services, Gigantic Duck Games nonetheless assumes no responsibility for User Contributions made available by users of the Services, and Gigantic Duck Games assumes no obligation to modify or remove any inappropriate User Contributions.
AVAILABILITY OF THE SERVICES
Gigantic Duck Games make no warranty or representation regarding the availability of the Services. Gigantic Duck Games do not guarantee that any of the Services will be available or error-free at all times or at any given time. Gigantic Duck Games will provide the Services in accordance with any legally required standards.
Gigantic Duck Games are not liable or responsible for any failure to perform, or delay in performance of, any of our obligations that is caused by events outside our reasonable control. If such circumstances result in material degradation in the functionality of the Services then any obligation you may have to make any payment to download, use or access them will be suspended for the duration of such period.
Gigantic Duck Games may limit, suspend or terminate the Services, or portions thereof, and take technical and legal steps to prevent users from accessing the Services if Gigantic Duck Games 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 Terms.
Gigantic Duck Games are entitled to, in our sole discretion, modify or discontinue the Services or any part of them, including services which are paid for with real money, 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, Gigantic Duck Games does not have to provide refunds for Virtual Items or other items in connection with such discontinued Services.
YOUR BREACH OF THESE TERMS
Without limiting any other remedies available to Gigantic Duck Games, if Gigantic Duck Games believes that you are in breach of these Terms, Gigantic Duck Games 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.
You agree to compensate Gigantic Duck Games, according to law, for all losses, harm, claims and expenses that may arise from any breach of these terms by you.
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. Gigantic Duck Games 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, without limitation, 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. Gigantic Duck Games 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 Gigantic Duck Games, 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 Terms shall infringe upon the statutory rights that you may have as a consumer of the Services.
LIMITATION OF LIABILITY
Gigantic Duck Games are not liable for:
- losses or harm not caused by our breach of these Terms or negligence;
- losses or harm which are not reasonably foreseeable by you and Gigantic Duck Games at the time of you agreeing to these Terms and conditions including those losses which happen as a side effect of foreseeable losses. This could include loss of data, loss of opportunity, service interruption, computer or other device failure or financial loss;
- any damage that may be caused to any device on which you access or use the Services that is caused in any way by the Services unless that damage is directly caused by our failure to exercise reasonable skill and care in the provision of the Services;
- any increase in loss or damage resulting from breach by you of any of these Terms; or
- technical failures or the lack of availability of any of the Services where these are not within our reasonable control.
Under no circumstances will Gigantic Duck Games be liable for special, incidental or consequential damages resulting from access, use or malfunction of the Services, including without limitation, 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 Terms or the Services, whether arising in tort (including negligence), contract, strict liability or otherwise and whether or not Gigantic Duck Games has been advised of the possibility of such damages. For purposes of this Section 12 “Limitations of Liability,” Gigantic Duck Games licensors and other partners are third-party beneficiaries to the limitations of liability specified herein and may enforce these Terms against you.
Under no circumstances will Gigantic Duck Games total aggregate liability arising out of or in connection with these Terms, 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 Gigantic Duck Games and you.
Some jurisdictions do not allow certain limitations of liability such as the limitations stated in this Section 12; 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 Terms will infringe upon any statutory rights you may have as a consumer of the Services.
You agree to indemnify, defend and hold Gigantic Duck Games (and Gigantic Duck Games 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 Terms; however, the foregoing does not apply if the third-party claim is not attributable to your intentional or negligent behavior.
Whilst you are in compliance with these terms, Gigantic Duck Games Whilst grants you a non-exclusive, non-transferable, personal, revocable limited license to access and/or use the Services (but not any related object and source code) for your own personal private use, in each case provided that such use is in accordance with these terms. You agree not to use the Services for anything else. These terms also apply to any update or patches which Gigantic Duck Games may release or make available for any of the Services and any such update or patch shall be deemed part of the Services for the purposes of these terms.
You acknowledge that all copyright, trademarks, and other intellectual property rights in and relating to the Services (other than User Contributions which is contributed and owned by players) is owned by or licensed to us.
Gigantic Duck Games retains all right, title and interest in and to the Services, including, without limitation, 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, online accounts, Virtual Items, gameplay recordings made using the Services, moral rights, whether registered or not and all applications thereof. You must not copy, distribute, make available to the public or create any derivative work from the Services or any part of the Services unless Gigantic Duck Games have first agreed to this in writing.
Intellectual property and User Contributions
You acknowledge and agree that you shall have no ownership or other property interest in any User Contributions that you create using the Services.
By submitting User Contributions via the Services, you:
- are representing that you are fully entitled to do so;
- grant Gigantic Duck Games the right to edit, adapt, publish and use your entry and any derivative works Gigantic Duck Games may create from it, in any and all media (whether it exists now or in the future), for any purpose, in perpetuity, without any payment to you;
- acknowledge that you may have what are known as “moral rights” in the User Contributions, for example the right to be named as the creator of your entry and the right not to have work subjected to derogatory treatment. You agree to waive any such moral rights you may have in the User Contributions; and
- agree that Gigantic Duck Games have no obligation to monitor or protect your rights in any User Contributions that you may submit to us, but you do give Gigantic Duck Games the right to enforce your rights in that User Contributions if Gigantic Duck Games want to, including but not limited to taking legal action (at our cost) on your behalf.
If you, by law, are considered to having acquired property interest to any User Contribution, you hereby grant Gigantic Duck Games 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, without limitation, 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 Gigantic Duck Games 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 Gigantic Duck Games, and the foregoing waiver of any applicable moral rights, survives any termination of these Terms.
You must not copy, distribute, make available to the public or create any derivative work from any User Contributions belonging to any other user of the Services.
Intellectual property and DMCA-notice
If you believe the Services or any of its User Contributions infringes your copyrights, please send a notice to: Gigantic Duck AB, Legal Department, Klintegatan 9, 506 40, Borås, Sweden or via email to: firstname.lastname@example.org. Please include all of the following in your DMCA notice:
- a description of the intellectual property rights and an explanation as to how they have been infringed;
- a description of where the infringing material is located;
your address, phone number and email address;
- a statement by you, made under penalty of perjury, that (i) you have a good-faith belief that the disputed use of material in which you own intellectual property rights is not authorized, and (ii) the information that you are providing is accurate, correct, and that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; and
- a physical or electronic signature of the person authorized to act on behalf of the owner of the exclusive right that has allegedly been infringed.
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 Gigantic Duck Games 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 Gigantic Duck Games.
The data controller for all personally identifiable information or personal data that Gigantic Duck Games collect about you through or in relation to the Services is Gigantic Duck AB.
If any provisions of these Terms or the application of it shall be declared or deemed void, invalid or unenforceable in whole or in part for any reason, the remaining provisions of these Terms shall continue in full force and effect. The parties shall seek to amend such void, invalid or unenforceable provisions and thereby these Terms in order to give effect to, so far as it is possible, the spirit of these Terms and to achieve the purposes intended by the parties.
Notwithstanding Section 21, Gigantic Duck Games Gigantic Duck Games reserve the right to update these Terms from time to time by posting the updated version at our website. Gigantic Duck Games may do so for a number of reasons including, without limitation, because Gigantic Duck Games change the nature of our services, for technical or legal reasons, or because the needs of our business have changed. You agree that if you do not accept any amendment to our terms then you shall immediately stop accessing and/or using the Services.
By continuing to access or use the Services after updates become effective, you agree to be bound by the updated Terms.
Any failure by Gigantic Duck Games to insist on adherence to any term of these Terms shall not be considered a waiver of any right, nor shall it deprive Gigantic Duck Games of the right thereafter to insist on the adherence to that provision or any other provision of these Terms.
FOR RESIDENTS IN THE UNITED STATES – BINDING ARBITRATION AND CLASS ACTION WAIVER
The BINDING ARBITRATION AND CLASS ACTION WAIVER provisions in this paragraph 21 apply to all Disputes between you and Gigantic Duck Games. “Dispute” shall include any dispute, claim, controversy or action between you and Gigantic Duck Games arising out of or relating to this agreement, the Services, or any other transaction involving you and Gigantic Duck Games, whether in contract, warranty, misrepresentation, fraud, tort, intentional tort, statute, regulation, ordinance, or any other legal or equitable basis, except disputes relating to the enforcement or validity of your, your licensors’, our, or our licensors’ intellectual property rights.
Notice of Dispute: If you have a Dispute and our customer service cannot resolve it, send a Notice of Dispute to Gigantic Duck AB, Legal Department, Klintegatan 9, 50640, Borås, Sweden. Include in your notice your name, address, how to contact you, what the problem is and what you want.
Binding Arbitration: If the parties do not reach an agreed upon solution within a period of 30 days from the time informal dispute resolution is pursued pursuant to the paragraph 21.2, then you and Gigantic Duck Games agree that all Disputes shall be resolved by binding arbitration according to this agreement. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JUDGE OR JURY IN A COURT PROCEEDING AND YOUR GROUNDS FOR APPEAL ARE LIMITED. Under this agreement, binding arbitration shall be administered by American Arbitration Association (AAA).
Arbitration procedure: The arbitration will be governed by the AAA’s commercial arbitration rules and, if the arbitrator deems them applicable, the supplementary procedures for consumer related disputes (collectively “Rules and Procedures”). To begin an arbitration proceeding, you must send a letter to: Gigantic Duck AB, Klintegatan 9, 50640, Borås, Sweden requesting arbitration and describing your claim. The arbitration may be conducted in Los Angeles, California or, upon your request, in the city closest to your location where AAA maintains an office. The arbitrator’s award shall be final and binding on you and Gigantic Duck Games 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.
Arbitration fees and payments: 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 Gigantic Duck Games 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. Gigantic Duck Games 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.
Exception: As an exception to the binding arbitration rule, to the extent the Dispute arises from:
- A violation of Gigantic Duck Games 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.
Right to Opt Out: You may opt out of this obligation to arbitrate. If you do so, neither you nor Gigantic Duck Games can require the other to participate in an arbitration proceeding. To opt out, you must notify Gigantic Duck Games 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: Gigantic Duck AB, Klintegatan 9, 50640, Borås, Sweden. You must include your name and residence address and a clear statement that you want to opt out of this arbitration clause.
Changes to this paragraph: Gigantic Duck Games will provide 30-days’ notice of any changes to this section 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 60th day.
A party shall be relieved from liability for a failure to perform its obligations under this agreement during such period, and to the extent that the due performance thereof by the party is prevented by reason of any circumstance beyond the control of the party, which could not reasonably have been foreseen by the party prior to entering into this agreement, such as war, civil war, fire, flood, interruption in public transport, communications or general energy supply, or other circumstances of similar importance.
GOVERNING LAW AND JURISDICTION
If you are a United States resident, in addition to Section 21, these Terms 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, this Agreement shall be governed by the substantive law of Sweden. You agree that any claim or dispute you may file against Gigantic Duck Games must be resolved exclusively by a court located in Stockholm, Sweden.
If the jurisdiction of your domicile prohibits Gigantic Duck Games from enforcing the governing law provision, nothing in these Terms limits your rights based on the laws governing your domicile.
This document was last changed 07/2020.