WEBKINZ USER AGREEMENT

Last Updated on: December 8, 2021


READ THE FOLLOWING CAREFULLY BEFORE YOU OR A CHILD AUTHORIZED BY YOU (FOR WHOM YOU ARE A PARENT OR LEGAL GUARDIAN) ACCESS OR USE WEBKINZ.COM (THE “SITE”) AND WEBKINZ-BRANDED APPLICATIONS FOR MOBILE DEVICES, ON WHICH THE TERMS OF THIS USER AGREEMENT (THE “AGREEMENT”) ARE POSTED (THE “SERVICE”). BY CLICKING THE “I ACCEPT” BUTTON OR BY YOUR CONTINUED USE OF THE SERVICE, YOU ACKNOWLEDGE THAT YOU ARE 18 YEARS OF AGE OR OLDER, HAVE THE RIGHT, AUTHORITY AND CAPACITY TO ENTER INTO THIS AGREEMENT, OR YOU ARE OF THE LEGAL AGE REQUIRED TO FORM A BINDING CONTRACT IN YOUR JURISDICTION IF THAT AGE IS GREATER THAN 18 AND YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT.

IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, DO NOT SET UP AN ACCOUNT, OR OTHERWISE USE THE SERVICE. PLEASE PRINT A COPY OF THIS AGREEMENT FOR YOUR RECORDS.

You should read the entire Agreement but here is a partial list of some of the key points. Any capitalized terms have the meaning given to them where defined in the Agreement.

The Agreement Governs Your Use of the Service.

The Agreement governs the relationship between you and Ganz regarding your use of the Service. All supplemental terms and rules issued by Ganz that apply to the Service, e.g., those regarding social networking and other features and activities, form an integral part of this Agreement and are incorporated herein by this reference.

In this Agreement, “Ganz” means Ganz, an Ontario partnership, which is located at One Pearce Road, Woodbridge, Ontario, L4L 3T2 Canada. In this Agreement, “you” refers to both you and/or your child. If you have any questions relating to the Service, they can be sent to the attention of our Customer Service by clicking here, by mail to the above address or by email to webkinzsupport@ganz.com. The publication of electronic mail addresses is to facilitate communications relating to the Service and must not be inferred as consent by us to receiving unsolicited commercial electronic messages.

Although the Service is accessible worldwide, the Service may not be: (i) available to all persons; (ii) available in all geographic locations; or (iii) be appropriate or available for use outside Canada. You understand and agree that the Service is provided by Ganz and may be terminated or otherwise discontinued by Ganz at its discretion pursuant to this Agreement.

As permitted by applicable law, U.S. residents agree to arbitrate disputes and waive jury trial and class actions.

By accepting this Agreement, you agree that you will not:

  1. Monitor, harvest, collect or attempt to obtain passwords or other Account information from or about other users of the Service, disclose your, or another person’s Personal Information as such term is defined in the Children’s Privacy Policy; (“Privacy Policy”)
  2. Impersonate another person (including a celebrity), attempt to mislead others by indicating that you represent Ganz, any of its partners, affiliates, related companies, or any of their directors, employees, agents, distributors, licensees and licensors (collectively and individually, the “Ganz Group”), express or imply that any statements you make or actions you take are endorsed by Ganz;
  3. Download or copy any Content (defined below), except as may occur through the normal caching function of your browser and except to print and retain a copy for your own personal, non-commercial use, or reproduce, republish, upload, post, transmit, modify, distribute or publicly display any of the Content except as expressly authorized by this Agreement;
  4. Outside the Service, sell, advertise, or post information on hacks for the Service, whether for free or for the commercial benefit of you or third parties;
  5. Improperly use in-game support or complaint buttons or make false reports to Ganz;
  6. Use the Service or any part thereof for performing in-game services, such as power-leveling and item collection services, in exchange for payment outside the Service;
  7. Sell or otherwise trade for consideration of any kind any virtual item collected through the Service;
  8. Engage in hacking, password "mining", botting, or any other behavior that allows you (or any character you are controlling) to automatically function or effect any action in a game with or without your presence or take steps to change "game play" in any way, including, without limitation, by creating cheats and/or hacks;
  9. Use any device, software or routine to access any Content, interfere or attempt to interfere with any transaction being conducted through the Service, or with any other person's use of the Service; or
  10. Probe, scan or test the vulnerability of the Service or breach its security or authentication measures; take any action that imposes an unreasonable or disproportionately large load on the infrastructure used to deliver the Service, Ganz’s systems or networks, or any systems or networks connected to the Service or to Ganz.

The Service Is Evolving and May Result in Changes to the Agreement.

You understand that the Service is an evolving one. Ganz may require that you accept updates to the Service. Ganz reserves the right to change, modify, add or remove portions of this Agreement, at any time, for any reason, with or without notice to you, or to do any of the following:

  1. Modify, suspend, limit, or terminate operation of, or access to, any portion of any feature or function of the Service, and/or any of its applicable policies or terms, including hours of availability;
  2. Change any fees or charges that may be related to your use of the Service;
  3. Change the equipment, hardware or software required to access the Service;
  4. Interrupt the Service, or any portion of the Service, to perform routine or non-routine maintenance, error correction, or other changes.

Ganz may update, or reset certain parameters to balance game play and usage of the Service. These updates or “resets” may cause setbacks within the relevant game and may affect characters, games, groups or items. Ganz reserves the right to make these updates and is not liable to you for these changes.

Any changes to the Agreement will be effective immediately upon notice, which Ganz may provide by any means, including, without limitation, by electronic posting. You agree to check this Agreement periodically for the new provisions that govern the Service. Your continued use of the Service following the posting of changes will mean that you accept and agree to them.

The Privacy Policy Outlines How We Treat Your Personal Information. Please Review It Often.

Your privacy is important to us. While setting up the Account or using the Service, you agree to provide accurate, current and complete information about yourself as prompted by our registration form or otherwise. As part of the registration process, you may be asked to select a user name.

We reserve the right to refuse to grant you or to terminate a user name that represents your full name or other personal information, or:

  1. Impersonates someone else, including, without limitation, another user or a non playing character;
  2. Is or may be
    1. illegal;
    2. protected by trademark or other proprietary right;
    3. considered vulgar, defamatory, obscene, hateful, racially, ethnically or otherwise offensive, including any user name which is sexual in nature;
  3. Is comprised of or includes any of the following
    1. the name of a popular culture icon, persona or media personality, religious deity or figure, or your real name (e.g., "BarbaraWalters" or "JamesBond");
    2. the names (including "street" names) of any drug, narcotic or other criminal activity;
    3. partial or complete sentences (e.g., "Iwillgetyou");
    4. gibberish (e.g., "Bgrewazx");
    5. "Leet" or "Dudespeak" (e.g., OMGnewb, xLOLx);
    6. any rank and/or fantasy titles (e.g., "MajorDude" or "QueenKate");
    7. special characters (i.e., ASCII codes);
  4. Is otherwise inappropriate, regardless of our software's ability to disallow such user names; and/or
  5. Which may mislead others to believe that you are affiliated with Ganz.

You agree that you will not use misspellings or alternative spellings or take any other actions for the purpose of circumventing the foregoing restrictions. You understand and agree that, in addition to the foregoing restrictions, we reserve the right to change, remove, alter or delete any user name at any time and for any reason.

All information provided by you or collected by us in connection with your use of the Service will be collected and used pursuant to the Privacy Policy, which you consent to with your use of the Service. Through the Service, Ganz may provide links to independent third party websites. Ganz is providing these links to you only as a convenience. GANZ DOES NOT ENDORSE OR CONTROL ANY INFORMATION ACCESSED ON OR FROM ANY THIRD PARTY WEBSITE AND ASSUMES NO RESPONSIBILITY FOR ANY MATERIAL WHICH MAY BE ACCESSED THROUGH SUCH LINKS.
Third party websites are not part of the Service, and each may be subject to separate terms and conditions, including different policies with respect to the collection, use and disclosure of your personal information. These third party websites may collect data or solicit personal information from you. We do not have control over such third party websites. You will need to make your own independent judgment regarding your interaction with them. Please be sure to review the applicable agreements and policies carefully when visiting any third party websites.

Review Our Ad Policy to Learn About Your Options Regarding Third Party Ads.

The Site may feature advertisements from Ganz or third parties. To learn more about the ads and third party ad service provides authorized to serve ads on the Site, as well as your options for limiting exposure to third party ads and tracking technologies used by Ganz and third party advertising service providers, see our Ad Policy, which is incorporated into the Agreement by this reference, and our Privacy Policy.

To Access the Service, You Must Set Up an Account or Download an App.

All content offered by Ganz through the Service, including but not limited to games, titles, computer code, themes, objects, characters, character names, stories, dialogue, catch phrases, concepts, artwork, animation, sound, musical composition, audio-visual elements, methods of operation, moral rights, documentation, in-game chat transcripts, character profile information, recordings of games, virtual currency, including but not limited to virtual coins, cash, tokens, or eStore Points purchased on ganzestore.com and virtual in-game items (together with virtual currency, "Virtual Items"), eStore Points deposited to your Account, video, text, graphics, images and information and all other material appearing on or emanating to and/or from the Service, as well as their overall design and appearance (collectively and individually, "Content") is owned, controlled or licensed by or to Ganz, and is protected by trade dress, copyright, patent and trademark laws, and various other intellectual property rights and unfair competition laws within and outside of Canada. Free Accounts may have limited access to Content, in particular, games, game environment, and social networking features.

You may not modify, publish, transmit, transfer, sell, reproduce, upload, post, perform, display, create derivative works from, in any way exploit, such Content or distribute it in any way (including "mirroring") to any other computer, server, website or other medium for publication or distribution or for any commercial purpose, except as Ganz expressly permits in this Agreement. For clarification purposes only, a "derivative work based on" the Content is a work substantially similar, both in ideas and expression, to the Content. Similarity of ideas in the Content and derivative works concern similarities between things such as plot, theme, mood, setting, appearance, and character traits. Similarity of expression concerns the total concept and feel of the Content and the derivative works. Thus, if a work created by you or someone other than Ganz is likely to bring to mind the Content, then it is likely that such work is a derivative work of the Content, and may not be used for commercial purposes. Without limiting the generality of this Agreement, you shall not use any Content on any other website or network computer environment or in a manner that suggests an association with the Service or Ganz itself, or in a manner that disparages Ganz.

Making unauthorized copies of the Content may result in the termination of your Account, prohibition to use the Service, and further legal action.

You understand that, while at times you may “earn”, "buy" or "purchase" Virtual Items, these real world terms are only being used as shorthand. You do not in fact "own" the Virtual Items and the amounts of virtual currency do not refer to any credit balance of real currency or its equivalent. eStore Points deposited to your Account do not expire and cannot be transferred or refunded. You are responsible for managing the eStore Points balance on your Account.

If you access our App via Apple, click here  for additional terms that are applicable to you and are incorporated into this user agreement by this reference.

Terms Applicable For Apple iOS. 

(i)         To the extent that you are accessing the Service through an Apple mobile application, you acknowledge that these terms are entered into between you and Ganz and, that Apple, Inc. (“Apple”) is not a party to these Terms other than as third-party beneficiary as contemplated below.

(ii)        The license granted to you by Ganz under the terms is subject to the permitted Usage Rules set forth in the App Store Terms of Use (see: http://www.apple.com/legal/itunes/us/terms.html) and any third-party terms of agreement applicable to the Service.

(iii)       You acknowledge that Ganz, and not Apple, is responsible for providing the Service and content thereof.

(iv)       You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or any support services to you with respect to the Service.

(v)        To the maximum extent not prohibited by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Service.

(vi)       Notwithstanding anything to the contrary herein, and subject to the terms and conditions of these terms, you acknowledge that, solely as between Apple and Ganz, Ganz, and not Apple is responsible for addressing any claims you may have relating to the Service, or your possession and/or use thereof, including, but not limited, to: (i) product liability claims; (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

(vii)      Further, you agree that if the Service, or your possession and use of the Service, infringes on a third-party’s Intellectual Property rights, you will not hold Apple responsible for the investigation, defense, settlement and discharge of any such Intellectual Property infringement claims.

(viii)     You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms against you as a third-party beneficiary thereof.

(ix)       When using the Service, you agree to comply with any and all third-party terms that are applicable to any platform, website, technology or service that interacts with the Service.

(x)        Your use of real time route guidance on the Service (if any) is at your sole risk.  Location data may not be accurate.

 

         (a) Minimum Technical Requirements

Subject to your agreement and continued compliance with this Agreement and any relevant Ganz Policies (defined below), Ganz grants you a non-exclusive, non-transferable, revocable limited license to access the Service using Ganz supported web browsers or authorized mobile devices solely for your own non-commercial entertainment purposes. You must provide all equipment and software necessary to connect to and use the Service. In cases where the Service offers a mobile component, you must provide a mobile device that is suitable to connect with and use the Service. You are responsible for any fees, including Internet connection or mobile fees that you incur when accessing the Service.
You understand and agree that you are solely responsible for obtaining and maintaining all telephone, cable, wireless, computer hardware, software and other equipment needed to access and use the Service and that you shall be solely responsible for all charges and fees related thereto. To make the Service experience more enjoyable, you will need, at a minimum, high-speed Internet, monitor resolution of 1366x768, one of Windows 7, 8, 10 or Mac OSX, Internet Explorer, Safari, Chrome or Firefox.

These requirements may change from time to time, and such changes will be posted on the Service and/or in this Agreement. You, and not Ganz, shall be responsible for purchasing any necessary additional software and/or hardware in order to access the Service. If you download, access or use software through the Service, the software, including any files, codes, images, and audio clips incorporated in or generated by the software, and data accompanying the software (collectively, the “Software”) are licensed to you for your personal, non-commercial use pursuant to a personal, non-exclusive, non-assignable, non-transferable license. Ganz keeps full and complete title to the Software and all intellectual property rights therein. You may not redistribute, sell, lend, decompile, reverse engineer, disassemble or otherwise render the Software to a human-readable form. Any unauthorized or prohibited use may subject you to civil liability and criminal prosecution under applicable laws.

         (b) Your Account

In order to access the Service, you must register an account (the “Account”) and/or have an account with the application provider for your mobile device. You agree that you are entirely liable for all activities conducted through the Account. In particular, you are responsible for maintaining the confidentiality of your password and you are responsible for any harm resulting from your disclosure or allowing the disclosure of your password or from use by any person of your password to gain access to your Account. We will use your user name and password to identify you when you attempt to access the Service. You can print your Account summary when you complete the registration process. At no time should you respond to an online request for a password. Ganz will never ask for your password offline or online, except that you will be required to enter your password as part of the login process. If you have reason to believe that your Account with us is no longer secure, you must immediately notify us of the problem by contacting our Customer Service.

Accounts, user names and passwords are not transferable, even between your own Accounts, and similar to Virtual Items, have no retail value and are not redeemable for cash. The Service is designed for you to register all secret/adoption and feature codes using your original user name and password. We strongly recommend that you do register all codes using your original user name and password so that you can take full advantage of the features that we have on the Service.

Renewing, extending or resetting one Account does not renew, extend or reset any other Account that you may have on the Service. If you stop using the Service, after twenty-four (24) months of inactivity, we reserve the right to delete your Account and everything associated with your Account, in-game currency balance or privileges that may have been licensed, or six (6) months if that account has had no paid pets or Deluxe Membership. Furthermore, you can request deletion of the account at any time, via your Parent’s Account.

NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN THE ACCOUNT, AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT ALL RIGHTS IN AND TO THE ACCOUNT ARE AND SHALL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF GANZ. FURTHERMORE, YOU ARE ENTIRELY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF YOUR PASSWORD AND FOR ANY AND ALL ACTIVITIES THAT ARE CONDUCTED THROUGH YOUR ACCOUNT.

         (c) Beta Tests

From time to time, Ganz may offer you the opportunity to review and evaluate one or more games prior to their commercial release for the sole purpose of evaluating the games and identifying errors. This process is known as a "Beta Test”. The beta games are provided for testing on an "as is" and "as available" basis and Ganz makes no warranty to you of any kind, express or implied, with respect to such beta games. Furthermore, nothing herein shall be construed as granting you any rights or privileges of any kind with respect to the beta games. When playing some beta games, you may accumulate Virtual Items. Such Content may be erased when the testing phase is complete. You understand and agree that the pre-release copy and all Content provided to you by Ganz during the Beta Test are confidential and proprietary information owned by Ganz. You agree as a condition of participating in a Beta Test to safeguard the pre-release Content and prevent its copying, reproduction or unauthorized access, disclosure or use. Your obligation to keep the Content confidential will continue until Ganz publicly distributes, or has otherwise disclosed it to the public, through no fault of yours.

Restricted Chat on the Service Is Monitored and Filtered.

As part of the Service, Ganz may offer you the ability to chat with other Site users.

When chatting, you agree not to:

  • Disclose personal information of any person;
  • Disrupt the normal course and pace of chat, including through: (i) use of a macro with large amounts of text; (ii) use of mechanisms causing the chat screen to scroll faster than other users are able to read; (iii) hitting the return key repeatedly; (iv) excessive “shouting” through the use of the "all caps" key; (v) posting spam messages; and/or (vi) sending repeated unsolicited or unwelcome messages to a single user or repeatedly posting similar messages;
  • Harass, threaten, stalk, embarrass or cause distress, unwanted attention or discomfort to any other user; or
  • Participate in any action that, in our sole discretion, "scams" or otherwise defrauds any other user, including with respect to any items that a user has earned or otherwise obtained.

You Agree to Communicate With Us in English.

To the extent permitted by applicable law, the parties have requested that this Agreement and all communications and documents relating hereto be expressed in the English language. Dans la mesure où la loi est applicable, les parties ont demandé à ce que ces présentes Conditions d'Utilisation ainsi que toutes les communications et documents s’y rattachant soient exprimés en langue anglaise.

If we provide you with a translation of the English language version of this Agreement, the Privacy Policy or any other documents related to the Service (collectively, “Ganz Policies”), then you agree that the translation is provided for information purposes only, may be updated with delay and does not modify the English version of the Ganz Policies. In the event of a conflict between a translation of the Ganz Policies and the English version, the English version of the Ganz Policies will control.

You further acknowledge and agree that all communications and documents between you and Ganz with respect to your use of the Service may take place electronically and that all such electronic notices, agreements, and other communications from Ganz shall be the legal equivalent of written communications.

Certain Provisions of the Agreement Survive Its Termination.

Any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of this Agreement, including but not limited to those addressing privacy, content ownership, code of conduct, chat rules, and those dealing with spam shall survive and remain in effect after such event. Furthermore, the following sections of this Agreement shall survive any termination or discontinuance of the Service or your access to it.

This Agreement Shall Remain Effective Until Terminated.

If you wish to terminate your Account, you may do so by contacting our Customer Service or via your Parent’s Account tools. Upon our acceptance of your request, your Account will be deleted. Ganz reserves the right to suspend or terminate your Account immediately and without notice if you are, or Ganz suspects that you are, (i) in breach of any of the provisions contained in this Agreement, (ii) willfully infringing any third party’s intellectual property rights, or if we are unable to verify or authenticate any information you provide to us, or (iii) upon game play, chat or any user activity whatsoever which is, in our opinion, inappropriate and/or in violation of the spirit of the game. In response to a violation of this Agreement, Ganz may issue you a warning, suspend your Account or portion thereof, selectively remove, prohibit access to the Service or portion thereof, Content or tools, delay or remove hosted Content, revoke or garnish Virtual Items associated with your Account or immediate terminate any and all Accounts that you have established on the Service. Ganz reserves the right to terminate without notice any Account if its user is determined by Ganz, in its sole discretion, to be a “repeat infringer”. You can lose your user name as a result of Account termination or limitation, as well as any benefits, privileges, earned items and Virtual Items associated with your Account, and Ganz is under no obligation to compensate you for any such loss or result. In addition, Ganz may terminate or suspend your Account and/or access to all or part of the Service in the event Ganz ceases its operations and/or provision of any applicable products or services in connection with the Service.

You understand that Ganz provides access to the Service via the Internet through the use of servers, Sites and other technology. Notwithstanding anything to the contrary in this Agreement, Ganz reserves the right to permanently discontinue the Service or part of the Service at any time either permanently or temporarily, at which point your license to use the Service or a part thereof will be automatically terminated or suspended. In such case, Ganz shall not be required to provide refunds, benefits or other compensation to users in connection with such discontinued elements of the Service. Termination of your Account can include disabling your access to the Service or any part thereof. Upon such discontinuation, your Account and the agreement contemplated by this Agreement shall terminate

 

Governing Law.

Ganz administers and operates the Service from Ontario, Canada. Except if you are a resident of the United States, this Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario, and the laws of Canada applicable therein, without giving effect to any principles of conflicts of law. Except as set forth in the sections below titled “Waiver of Jury and Class Actions” and “Resolution of Disputes” you agree that any action at law or in equity arising out of or relating to this Agreement shall be filed only in the Superior Court of Justice or, for matters involving intellectual property, the Federal Court of Canada, located in Toronto, Ontario, Canada, and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. The language of any proceedings arising under this Agreement shall be English. If you are a resident of the United States, this Agreement shall be governed and construed in accordance with the laws of the state of Georgie, U.S.A., without regard to its conflicts of law provisions that might apply the laws of another jurisdiction.

If you choose to access and use the Service from another location, country or jurisdiction, you are responsible for compliance with local laws, if and to the extent local laws are applicable. Nothing in this Agreement shall be deemed to affect any statutory or other consumer rights that you may have under local laws which cannot be or have not been altered, limited or waived by this Agreement. You might wish to consult with a legal professional in your own jurisdiction about the exact implications of this Agreement.

Regardless of any statute or law to the contrary, any claim or cause of action against Ganz arising out of or related to your use of the Service must be filed within one (1) year after such claim or cause of action arose or be forever barred.

If you have a dispute with one or more Service users, you release the Ganz Group from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.

Waiver of Jury Trial and Class Actions – WHERE PERMITTED UNDER APPLICABLE LAW OF YOUR JURISDICTION, AND IF YOU ARE A RESIDENT OF THE UNITED STATES, BY ACCEPTING THIS AGREEMENT, YOU AND GANZ ACKNOWLEDGE AND AGREE TO WAIVE CERTAIN RIGHTS TO RECEIVE A JURY TRIAL, OR TO PARTICIPATE AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLAIM ON A CLASS OR CONSOLIDATED BASIS OR IN A REPRESENTATIVE CAPACITY.

Resolution of Disputes.

Where permitted under applicable law of your jurisdiction, and if you are a resident of the United States, all actions or proceedings arising in connection with, touching upon or relating to any controversy, allegation, or claim arising out of or relating to the Service, or the scope of the provisions of this section, shall be submitted to JAMS (www.jamsadr.com) for final and binding arbitration under its Comprehensive Arbitration Rules and Procedures if the matter in dispute is over $250,000 or under its Streamlined Arbitration Rules and Procedures if the matter in dispute is $250,000 or less, to be held in Toronto, Canada, before a single arbitrator; provided however consumer arbitrations will be held in the largest city within 100 miles of the consumer’s residence and the matter shall be submitted to JAMS in accordance with its Policy on Consumer Arbitration Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural Fairness. The arbitrator shall be selected by mutual agreement of the parties or, if the parties cannot agree, then by striking from a list of arbitrators supplied by JAMS.  We may have the right to pay the JAMS fees if required for arbitration to be enforceable.  The arbitration shall be a confidential proceeding, closed to the general public; provided, however, that a party may disclose information relating to the arbitration proceedings to its and its affiliates’ lawyers, insurance providers, auditors and other professional advisers.  The fact that there is a dispute between the parties that is the subject of arbitration shall be confidential to the same extent. The arbitrator shall issue a written opinion stating the essential findings and conclusions upon which the arbitrator’s award is based.  Neither party shall be entitled or permitted to commence or maintain any action in a court of law with respect to any matter in dispute until such matter shall have been submitted to arbitration as herein provided and then only for the enforcement of the arbitrator’s award; provided, however, that prior to the appointment of the arbitrator or for remedies beyond the jurisdiction of an arbitrator, at any time, either party may seek pendente lite relief (subject to the provisions of these Terms waiving or limiting that relief) in a court of competent jurisdiction in Atlanta, Georgia, or, if sought by Ganz, such other court that may have jurisdiction over you, without thereby waiving its right to arbitration of the dispute or controversy under this Section; provided further, however, that the losing party shall have fifteen (15) business days after the issuance of the arbitrator’s decision to fully comply with such decision, after which the prevailing party may enforce such decision by a petition to any court having jurisdiction over you, which may be made ex parte, for confirmation and enforcement of the award.

Limitation on Injunctive Relief.

AS PERMITTED BY APPLICABLE LAW, IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE SERVICE, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE DEEMED IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND.  THIS MEANS (WITHOUT LIMITATION) THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, OR SERVICE OWNED, LICENSED, USED, OR CONTROLLED BY GANZ.

Ganz Obligations Are Subject to Limited Liability.

GANZ PROVIDES THE SERVICE ON A COMMERCIALLY REASONABLE BASIS AND DOES NOT GUARANTEE THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICE AT TIMES OR LOCATIONS OF YOUR CHOOSING, OR THAT GANZ WILL HAVE ADEQUATE CAPACITY FOR THE SERVICE AS A WHOLE OR IN ANY SPECIFIC GEOGRAPHICAL LOCATION.

TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, FOR USE AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, THE GANZ GROUP DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, IN CONNECTION WITH THE SERVICE, SITE OR CONTENT WITH WHICH IT IS LINKED. THE GANZ GROUP DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR SECURE, THAT IT WILL BE AVAILABLE AT ANY PARTICULAR TIME, FREE OF INACCURACIES, ERRORS, OMISSIONS, VIRUSES OR OTHER HARMFUL COMPPONENTS, OR WILL BE CORRECTED IF FOUND TO BE DEFECTIVE. WE RESERVE THE RIGHT TO MODIFY AND/OR DISCONTINUE THE SERVICE, OR ACCESS THERETO, AT ANY TIME WITHOUT NOTICE. TO THE EXTENT THAT YOU COMMUNICATE WITH CUSTOMER SERVICE OR A GANZ REPRESENTATIVE THROUGH ANY SOURCE, THE STATEMENTS AND PROMISES MADE OR ACTIONS TAKEN BY THEM SHALL NOT LIMIT OR OTHERWISE MODIFY THE TERMS OF THIS DISCLAIMER AND/OR THIS AGREEMENT AND THIS DISCLAIMER AND THIS AGREEMENT SHALL APPLY TO ANY INFORMATION PROVIDED TO YOU THROUGH SUCH SOURCES.

IN ADDITION, GANZ DOES NOT WARRANT THAT THE SERVICE OR THE SERVERS THAT MAKE THE SERVICE AVAILABLE WILL WORK WITH ANY PARTICULAR HARDWARE OR SOFTWARE SYSTEMS OR CONFIGURATIONS.

SOME JURISDICTIONS MAY NOT ALLOW DISCLAIMERS OF IMPLIED WARRANTIES AND THE ABOVE DISCLAIMERS MAY NOT APPLY TO YOU TO THE EXTENT PROHIBITED.

TO THE FULLEST EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, SHALL THE GANZ GROUP BE LIABLE FOR ANY LOSS OF USE, LOSS OF DATA, LOSS OF INCOME OR PROFIT, LOSS OF OR DAMAGE TO PROPERTY, OR FOR ANY DAMAGES OF ANY KIND OR CHARACTER (INCLUDING WITHOUT LIMITATION ANY COMPENSATORY, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES), ARISING OUT OF OR IN CONNECTION WITH THE USE OF, OR THE INABILITY TO USE, THE SERVICE, EVEN IF THE GANZ GROUP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.

NOTHWITHSTANDING THE GENERALITY OF THE ABOVE, GANZ DOES NOT SEEK TO LIMIT ITS LIABILITY, OR THAT OF THE GANZ GROUP, IN RESPECT OF FRAUD OR FOR DEATH OR PERSONAL INJURY CAUSED BY GANZ’S NEGLIGENCE OR THAT OF ITS EMPLOYEES OR AGENTS ACTING IN THEIR CAPACITY AS EMPLOYEES OR REPRESENTATIVES OF GANZ.

YOU AGREE THAT YOU WILL NEVER ASSERT OR BRING ANY CLAIMS OR SUIT AGAINST ANY MEMBER OF THE GANZ GROUP, WHICH IS RELATED TO OR BASED ON: (I) A CLAIM THAT YOU “OWN” YOUR ACCOUNT OR ANY CONTENT; (II) A CLAIM FOR THE “VALUE” OF THE ACCOUNT OR ANY CONTENT IF GANZ DELETED THEM (AND/OR TERMINATED YOUR ACCOUNT(S)) IF YOU OR ANYONE ACTING IN CONCERT WITH YOU VIOLATES THIS AGREEMENT; (III) THE “VALUE” OF ANY CONTENT THAT YOU MAY LOSE IF GANZ DOES ANYTHING THAT IT IS ENTITLED TO DO PURSUANT TO THIS AGREEMENT, OR FOR ANY MALFUCTIONS AND/OR “BUGS” IN THE GAME; AND/ OR (IV) A CLAIM THAT THE “VALUE” OF ANY CONTENT HAS INCREASED OR DECREASED BY VIRTUE OF ANY GAME MODIFICATION THAT GANZ HAS MADE OR WILL MAKE.

GANZ SHALL NOT BE LIABLE FOR ANY DELAY OR FAILURE TO PERFORM RESULTING FROM CAUSES OUTSIDE THE REASONABLE CONTROL OF GANZ, INCLUDING WITHOUT LIMITATION ANY FAILURE TO PERFORM HEREUNDER DUE TO UNFORESEEN CIRCUMSTANCES OR CAUSE BEYOND GANZ’S CONTROL SUCH AS ACTS OF GOD, WAR, TERRORISM, RIOTS, EMBARGOES, ACTS OF CIVIL OR MILITARY AUTHORITIES, FIRE, FLOODS, ACCIDENTS, NETWORK INFRASTRUCTURE FAILURES, STRIKES, OR SHORTAGES OF TRANSPORTATION FACILITIES, FUEL, ENERGY, LABOUR OR MATERIALS.

APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. HOWEVER, IN NO EVENT SHALL THE TOTAL LIABILITY OF THE GANZ GROUP FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION AND COSTS AND EXPENSES (INCLUDING LEGAL FEES) WHETHER IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), OR OTHERWISE, RELATED TO YOUR USE OF, OR THE INABILITY TO USE THE SERVICE EXCEED THE LESSER OF: (I) THE AMOUNT, IF ANY, PAID BY YOU IN CONNECTION WITH YOUR ACCESS, USE AND/OR PURCHASES MADE IN RELATION TO THE SERVICE; OR (II) USD$100.

YOU HEREBY AGREE TO INDEMNIFY, DEFEND AND HOLD EACH MEMBER OF THE GANZ GROUP HARMLESS FROM AND AGAINST ANY LOSS, LIABILITY, CLAIM, DEMAND, DAMAGES, COSTS AND EXPENSES, INCLUDING ALL LEGAL AND OTHER FEES AND EXPENSES FOR INVESTIGATING OR DEFENDING ANY ACTION OR THREATENED ACTION, AS WELL AS SETTLEMENT COSTS) WHICH ANY OF THE INDEMNIFIED PARTIES MAY INCUR IN CONNECTION WITH ANY CLAIM ARISING OUT OF OR RESULTING FROM: (I) ANY BREACH BY YOU OF THIS AGREEMENT; (II) YOUR USE OF THE SERVICE, YOUR ACCOUNT(S), YOUR USER GENERATED CONTENT; AND/OR (IV) ANY VIOLATION BY YOU OF ANY LAW OR THIRD PARTY RIGHTS. YOU MUST USE YOUR BEST EFFORTS TO COOPERATE WITH THE GANZ GROUP IN THE DEFENCE OF ANY CLAIM. WE RESERVE THE RIGHT TO ENGAGE SEPARATE COUNSEL AND ASSUME THE EXCLUSIVE DEFENCE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU.

This Agreement (including all agreements and policies referenced herein) constitutes the entire agreement between you and Ganz with regard to your use of the Service, and any and all other written or oral agreements or understandings previously existing between you and Ganz with respect to such use are hereby superseded and cancelled. Ganz will not accept any counter-offers to this Agreement, and all such offers are hereby categorically rejected. Your use of the Service is not intended and shall not be deemed to create any agency, joint venture or other legal relationship of any kind between you and Ganz other than that of independent contractors. This Agreement may not be assigned by you.

Ganz's failure to insist on or enforce strict performance of this Agreement shall not be construed as a waiver by Ganz of any provision or any right it has to enforce this Agreement, nor shall any course of conduct between Ganz and you or any other party be deemed to modify any provision of this Agreement. This Agreement shall not be interpreted or construed to confer any rights or remedies on any third parties.

If any provision of this Agreement is found to be illegal, void or unenforceable, then: (i) such provision (or portion thereof as applicable) will be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and (ii) the remaining terms, provisions, covenants and restrictions of this Agreement will remain in full force and effect. Notwithstanding the foregoing, if any provision of this Agreement which is held null, void or otherwise ineffective or invalid by a court of competent jurisdiction cannot be restated by such court to reflect as nearly as possible the original intentions of the parties, then that provision shall be deemed severable from this Agreement.

Please note that certain people are susceptible to epileptic seizures and loss of consciousness when exposed to certain flashing lights or light patterns in everyday life. Such people may have a seizure while watching certain monitor images or playing games. This may happen even if the person has no medical history of epilepsy or has never had any epileptic seizures. If you experience any of the following symptoms: dizziness, blurred vision, eye or muscle twitches, loss of consciousness, disorientation, any involuntary movement or convulsion, while using the Service, immediately discontinue use of the Service and consult with your doctor.

The UN Convention on Contracts for the International Sale of Goods is expressly disclaimed. Notwithstanding anything else in this Agreement, no default, delay or failure to perform on the part of Ganz shall be considered a breach of this Agreement if such default, delay or failure to perform is shown to be due to causes beyond the reasonable control of Ganz.