Terms of Use

Last updated: December 18, 2019
1.
Introduction

Welcome to the Ultimate Rivals website operated by Bit Fry Game Studios, Inc. (“we”, “us”, “our” or “Bit Fry”)!

The use of our website located at www.ultimaterivals.com (“Website”) by users (“you”, “your” or “users”) is subject to the terms and conditions contained in these Terms of Use (“Terms”). Please read these Terms carefully before you begin using the Website. These Terms are legally binding and your use of the Website serves as your acceptance of the Terms. If you do not agree with any of the Terms, you are not permitted to use the Website. Children should review the Terms with their parent or legal guardian to ensure that the child and parent or legal guardian understand and agree to the Terms.

We may amend the Terms by posting the amended versions on our Website. You agree that the foregoing will constitute sufficient and effective notice. By continuing to use the Website more than 30 days after we post an amended version, you confirm your acceptance of the Terms as amended. If you do not agree with any of the changes, you must immediately stop using the Website, and your license to use the Website will immediately terminate.

IMPORTANT: PLEASE REVIEW THE ARBITRATION AGREEMENT SET FORTH BELOW CAREFULLY, AS IT REQUIRES YOU TO RESOLVE DISPUTES WITH BIT FRY ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION, AND NOT BY A JURY TRIAL. BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.

2.
Dispute resolution; arbitration agreement; class action and jury trial waiver

BY AGREEING TO THE TERMS, YOU AGREE THAT YOU ARE REQUIRED TO RESOLVE ANY CLAIM THAT YOU MAY HAVE AGAINST BIT FRY ON AN INDIVIDUAL BASIS IN ARBITRATION, AS SET FORTH IN THIS SECTION. THIS WILL PRECLUDE YOU FROM BRINGING ANY CLASS, JOINT, COLLECTIVE, REPRESENTATIVE, OR CONSOLIDATED ACTION AGAINST BIT FRY, AND ALSO PRECLUDE YOU FROM PARTICIPATING IN OR RECOVERING RELIEF UNDER ANY CURRENT OR FUTURE CLASS, JOINT, COLLECTIVE, REPRESENTATIVE, OR CONSOLIDATED ACTION BROUGHT AGAINST BIT FRY BY SOMEONE ELSE.

Most disputes that arise out of the use of the Website can be resolved quickly, informally, and with mutual satisfaction by reaching out to us at legal@bitfry.com. If any dispute remains unresolved after that process, however, you and Bit Fry agree to have all disputes resolved by arbitration, which shall be final and binding on both parties, except disputes (i) that may be brought in an individual action in small claims court, or (ii) that relate to the ownership or enforcement of intellectual property rights. In addition, you and Bit Fry each retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights. In any such case, your waiver of the right to a jury trial and the class action waiver set forth in this Agreement shall continue to apply.

“Dispute” includes any dispute, action, or other controversy, whether based on past, present, or future events, between you and Bit Fry concerning the Website or Terms, whether in contract, tort, warranty, statute, regulation, or other legal or equitable basis. You and Bit Fry empower the Arbitrator with the exclusive authority to resolve any dispute relating to the interpretation, applicability or enforceability of these terms or the formation of this contract, including the arbitrability of any dispute and any claim that all or any part of the Terms are void or voidable.

CLASS ACTION AND JURY TRIAL WAIVERS. BY ENTERING INTO THE TERMS, YOU AND BIT FRY EACH EXPRESSLY WAIVE THE RIGHT TO A TRIAL BY JURY. ADDITIONALLY, YOU AND BIT FRY AGREE THAT EACH MAY ONLY BRING CLAIMS AGAINST THE OTHER IN AN INDIVIDUAL CAPACITY AND THAT THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED IN ANY PURPORTED CLASS, JOINT, COLLECTIVE, REPRESENTATIVE, OR CONSOLIDATED PROCEEDING OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR ON BEHALF OF THE GENERAL PUBLIC, OTHER USERS, OR ANY OTHER PERSONS.

As such, you and Bit Fry acknowledge and agree that each waives any right to participation as a plaintiff or a class member in a class action litigation or arbitration, or in any other collective or consolidated action, with respect to these terms. Neither you nor Bit Fry may be a representative of any other potential claimants or class of potential claimants in any such dispute, nor may two or more users’ disputes be consolidated or otherwise determined in one proceeding. This will also preclude you and Bit Fry from participating in or recovering relief under any current or future class, joint, collective, representative, or consolidated action brought by someone else.

A.
Rules and Governing Law. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the AAA’s Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (“AAA Rules”) then in effect, except as modified by this Arbitration Agreement. The AAA Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. Notwithstanding any choice of law or other provision in the Terms, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the state of New York.
B.
Initiating Arbitration. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration - Consumer Arbitration Rules at www.adr.org or by calling the AAA at 1-800-778-7879.) The Arbitrator will be either (1) a retired judge or (2) an attorney specifically licensed to practice law in the state of New York, and will be selected by the parties from the AAA's roster of consumer dispute arbitrators. If the parties are unable to agree upon an Arbitrator within seven (7) days of delivery of the proposed list of arbitrators by the AAA, then the AAA will appoint the Arbitrator in accordance with the AAA Rules.
C.
Location and Procedures. If the claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Bit Fry submit to the Arbitrator, unless you request a hearing and the Arbitrator determines that a hearing is necessary. If the claim exceeds $10,000, arbitration may be conducted in person, through the submission of documents, by phone, or online, and your right to a hearing will be determined by the AAA Rules. Proceedings that cannot be conducted through the submission of documents, by phone, or online, will take place in New York County, New York or in another jurisdiction to which you and Bit Fry agree in writing; provided, provided, however, that if circumstances prevent you from traveling to New York, the AAA may hold an in-person hearing in the state where you reside. Subject to the AAA Rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
D.
Arbitrator’s Decision. The Arbitrator will render a written award within the time frame specified in the AAA Rules and shall provide a written decision with a statement of reasons if requested by either party. The Arbitrator may award declaratory or injunctive relief, but only in favor of the individual claimant, but only to the extent necessary to provide relief warranted by the claimant's individual claim. The Arbitrator shall not have authority to entertain any claim on behalf of a person who is not a named party, nor shall the Arbitrator have authority to make any award for the benefit of, or against, any person who is not a named party. The Arbitrator’s decision shall be final and binding on all parties. The Arbitrator’s decision and judgment thereon shall have no precedential or collateral estoppel effect.

You and Bit Fry agree to submit to the exclusive jurisdiction of the federal or state courts located in New York County, New York in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
E.
Fees. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. Bit Fry will reimburse those fees for claims totaling less than $10,000 unless the Arbitrator determines the claims are frivolous or brought for an improper purpose (based on the standards set forth in Federal Rule of Civil Procedure 11(b)). Likewise, Bit Fry will not seek attorneys' fees and costs in arbitration unless the arbitrator determines the claims are frivolous or brought for an improper purpose (based on the standards set forth in Federal Rule of Civil Procedure 11(b)). The right to recover attorneys' fees and expenses set forth in the Terms supplements any right to attorneys' fees and expenses you may have under applicable law. You may not, however, recover duplicative awards of attorneys' fees or costs.
F.
Severability. If any part of this Arbitration Agreement, other than the class action waiver, is deemed or found to be unenforceable for any reason, the remainder shall be enforceable. The class action waiver is non-severable and if it is deemed or found to be unenforceable for any reason, the whole Arbitration Agreement shall be null and void.
G.
Disputes Between Users. You are solely responsible for your interactions with other users. Bit Fry reserves the right, but has no obligation, to become involved in any way with disputes between you and other users.
3.
Privacy

We are committed to transparency about Bit Fry’s privacy practices.  Please view the Privacy Policy applicable to the Website for more information.

4.
Acceptable Use

Our goal is to create a respectful, positive, and safe environment for our Website users. In order to promote this goal, we prohibit certain kinds of conduct with respect to the Website. We reserve the right to determine whether a user’s conduct violates these Terms, and to take action as we deem appropriate, which may include removing objectionable content. You may use the Website only for lawful purposes and in accordance with these Terms, and you agree not to use the Website:

in any way that violates any applicable federal, state, local or international law or regulation (including without limitation any laws regarding the export of data or software to and from the United States or other countries);
to knowingly send or upload false, inaccurate, misleading, libelous, defamatory, obscene, threatening, invasive, abusive, illegal, or otherwise objectionable communications;
to impersonate or attempt to impersonate any person or entity (including without limitation by using such person’s or entity’s identifiable information);
for the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise;
to transmit, or procure the sending of, any advertising or promotional material, including any “junk email,” “chain letter,” “spam,” or any other similar solicitation;
to violate, infringe, or misappropriate other people’s intellectual property, privacy, publicity, or other legal rights; or
to engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Website, or which, as determined by us, may harm Bit Fry or users of the Website or expose them to liability.
to violate, infringe, or misappropriate other people’s intellectual property, privacy, publicity, or other legal rights; or

Additionally, you agree not to:

use the Website in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Website;
use any robot, spider or other automatic device, process or means to access the Website for any purpose, including monitoring or copying any of the material on the Website;
use any manual process to monitor or copy any of the material on the Website or for any other unauthorized purpose without our prior written consent;
use any device, software or routine that interferes with the proper working of the Website;
introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful;
attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Website, the server on which the Website is stored, or any server, computer or database connected to the Website;
attack the Website via a denial-of-service attack or a distributed denial-of-service attack; or
otherwise attempt to interfere with the proper working of the Website.
5.
Ownership

The Website and all rights, title and interest therein are and shall remain the property of Bit Fry or its licensors. This may include without limitation all software, text, displays, images, titles, characters, character names or profiles, stories, dialogue, animations, art, concepts, content, audio sounds and effects, musical compositions, visual effects, methods of operation, documentation, moral rights, and all recordings of games and game play. Except for the limited license granted below, neither these Terms nor your use of the Website convey or grant to you any rights in or related to the Website, or any right to use or reference Bit Fry or its licensors’ names, representations and likenesses, trademarks, logos and designs, or product and service marks (collectively, "Protected Material"). Protected Material displayed in the Website is the property of Bit Fry or its licensors. You may not remove, copy or alter any Protected Material.  Except as otherwise required by applicable law, any use, reproduction, distribution, modification, retransmission or publication of any Protected Material is strictly prohibited without the express written consent of the owner of the Protected Material. All rights not expressly granted herein are reserved by Bit Fry.

6.
License

Subject to your acceptance of the Terms and your continued compliance with the Terms, we grant you a limited, non-transferable, non-exclusive license to access and use the Website for your own personal, non-commercial use. You may not copy, display, seek to disable, distribute, perform, publish, modify, transfer, create works from, or use the Website or any component of it, except as expressly authorized by us. We reserve the right to withdraw or amend this Website, and any functionality, service, or material we provide on the Website, in our sole discretion, without notice. We will not be liable if for any reason all or any part of the Website is unavailable at any time or for any period. You are responsible for making all arrangements necessary for you to have access to the Website and ensuring that all persons who access the Website through your internet connection are aware of these Terms and comply with them.

7.
Reliance on Information Posted

The information presented on or through the Website is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Website, or by anyone who may be informed of any of its contents. We may update the content on this Website from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Website may be out of date at any given time, and we are under no obligation to update such material.

8.
Linking to the Website

You may link to our homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval, or endorsement on our part without our prior written consent. Subject to the foregoing, you shall not (i) establish a link from any website that is not owned by you, (ii) cause the Website or portions of it to be displayed, or appear to be displayed by, for example, framing, deep linking or in-line linking, on any other site, (iii) link to any part of the Website other than the homepage, or (iv) otherwise take any action with respect to the materials on the Website that is inconsistent with any other provision of these Terms. You agree to cooperate with us in causing any unauthorized framing or linking immediately to cease. We reserve the right to withdraw linking permission in our sole discretion, without notice.

9.
Links from the Website

If the Website contains links to other sites and resources provided by third parties, these links are provided for your convenience only. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third party websites linked from this Website, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.

10.
User-Generated Content

To the extent that any content generated through your use of the Website (“User-Generated Content” or “UGC”) gives rise to any copyright interest, you hereby grant Bit Fry an exclusive, perpetual, irrevocable, fully transferable and sub-licensable worldwide right and license to use your UGC in any way and for any purpose in connection with the Website and related goods and services, and to distribute your UGC without any further notice or compensation to you of any kind for the whole duration of protection granted to intellectual property rights by applicable laws and international conventions. You hereby waive any moral rights of paternity, publication, reputation, or attribution with respect to Bit Fry’s and other users’ use and enjoyment of such assets in connection with the Website and related goods and services under applicable law. The foregoing license grant to Bit Fry, and the above waiver of any applicable moral rights, survives any termination of this license.

11.
Geographic Restrictions

Bit Fry is based in the State of New Hampshire in the United States. We make no claims that the Website or any of its content is accessible or appropriate outside of the United States. Access to the Website may not be legal by certain persons or in certain countries. If you access the Website from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.

12.
DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY

YOU ACKNOWLEDGE AND UNDERSTAND THAT WE CANNOT AND DO NOT GUARANTEE OR WARRANT THAT FILES AVAILABLE FOR DOWNLOADING FROM THE INTERNET OR THE WEBSITE WILL BE FREE OF VIRUSES OR OTHER DESTRUCTIVE CODE. YOU ARE RESPONSIBLE FOR IMPLEMENTING SUFFICIENT PROCEDURES AND CHECKPOINTS TO SATISFY YOUR PARTICULAR REQUIREMENTS FOR ANTI-VIRUS PROTECTION AND ACCURACY OF DATA INPUT AND OUTPUT, AND FOR MAINTAINING A MEANS EXTERNAL TO OUR SITE FOR ANY RECONSTRUCTION OF ANY LOST DATA. BIT FRY WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT. THE WEBSITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR USE, WITH NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.  BIT FRY DOES NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE WEBSITE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING, THAT THE WEBSITE WILL BE OF A CERTAIN QUALITY OR SUITABILITY, OR WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED; OR THAT THE WEBSITE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

BIT FRY WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER SIMILAR DAMAGES ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS OR THE WEBSITE, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT BIT FRY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE REMEDY (AND BIT FRY’S EXCLUSIVE LIABILITY) FOR ANY DISPUTE WITH BIT FRY IS TO STOP USING THE WEBSITE.

TO THE EXTENT THAT BIT FRY MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY WARRANTY OR LIMIT ITS LIABILITY AS SET FORTH HEREIN, THE SCOPE OF SUCH WARRANTY AND THE EXTENT OF BIT FRY’S LIABILITY WILL BE THE MINIMUM REQUIRED UNDER SUCH APPLICABLE LAW.

13.
Indemnification

You agree to indemnify, defend, save, and hold Bit Fry, its affiliated companies, officers, directors, contractors, employees, agents, licensors, and partners (collectively, “Bit Fry Entity”) harmless from and against any and all claims, losses, damages, and liabilities, including legal fees and expenses, arising out of or relating to: (i) your use of the Website; (ii) any breach or violation of these terms; or (iii) your UGC. You are solely responsible for defending any claim against a Bit Fry Entity, subject to such Bit Fry Entity’s right to participate with counsel of its own choosing, at its own expense, and for payment of all judgments, settlements, damages, losses, liabilities, costs, and expenses, including reasonable attorneys’ fees, resulting from all claims against a Bit Fry Entity, provided that you will not agree to any settlement that imposes any obligation or liability on a Bit Fry Entity without its prior express written consent. If we assume the defense of any claim, you agree to cooperate with our defense of such claims.

14.
Claims of Copyright Infringement and the DMCA

We respect the intellectual property of others, and ask that users of the Website do the same. We may remove infringing materials and may terminate our license to use the Website for users who are repeat infringers of intellectual property rights, including copyrights.  If you believe that one of our users is unlawfully infringing the copyright(s) in a work via the Website, and wish to have the allegedly infringing material removed, please provide the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) to our designated Copyright Agent:

A.
your physical or electronic signature;
B.
identification of the copyrighted work(s) that you claim to have been infringed;
C.
identification of the material on our services that you claim is infringing and that you request us to remove;
D.
sufficient information to permit us to locate such material;
E.
your address, telephone number, and e-mail address;
F.
a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
G.
a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.

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

Bit Fry’s designated Copyright Agent is:

Pierce Atwood LLP
Attn: Bit Fry Game Studios Copyright Agent
One New Hampshire Ave, Suite 350
Portsmouth, NH 03801

15.
Miscellaneous
A.
Term and Termination. We reserve the right to condition a user’s license to access and use the Website on that user’s compliance with these Terms. We also reserve the right to terminate a user’s license to access and use the Website, at any time, at our sole discretion.  You may terminate these Terms by discontinuing your use of the Website. Notwithstanding such a termination, Sections 2, 5, 10, 12, 13, 14 and 15 of the Terms will remain in force, and you will continue to be liable for all your activities during the time you used the Website.
B.
Severability. You and Bit Fry agree that if any portion of these Terms is found unlawful or unenforceable, in whole or in part, that provision will be ineffective only to the extent of such finding and as to such jurisdiction, without affecting the validity or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of these Terms, which will be enforced to the fullest extent of applicable law.
C.
Choice of Law; Venue. You and Bit Fry agree that these Terms and any dispute of any nature that might arise between you and Bit Fry will be governed by and construed in accordance with the laws of the state of New York, without giving effect to its conflict or choice of laws principles. You and Bit Fry agree that any action at law or in equity that is not subject to the arbitration clause in Section 2 above shall be filed, and that venue properly lies, only in the state or federal courts located in New York County, New York, United States of America, and you and Bit Fry expressly consent and submit to the exclusive and personal jurisdiction of such courts for the purposes of litigating such action.
D.
Assignment. We may assign our rights and obligations under these Terms, in whole or in part, to any person or entity at any time with or without your approval. You may not assign any of the rights or obligations you have under these Terms without our prior written approval. Any such assignment without our prior written approval is ineffective and in violation of these Terms.
E.
Entire Agreement. These Terms, including any additional policies referenced in the Terms, are the entire agreement between you and Bit Fry. They supersede all prior and/or contemporaneous understandings, regardless of the medium (oral, written, or electronic) and practice (custom, policy, course of business, precedent) by which such understandings were communicated.
F.
No Waiver. Our failure to enforce any right or provision in these Terms shall not constitute a waiver or relinquishment of such right or provision unless acknowledged and agreed to by us in writing.
G.
Notices to Bit Fry. All notices given by you or required from you under these Terms must be in writing and addressed to us at the address set forth below in the Contact Information section, below. Any notices that you provide without compliance with this subsection will have no legal effect.
H.
Contact Information. If you have questions, complaints, or claims with respect to the Terms, please direct such communications to:  legal@bitfry.com