TERMS GOVERNING USE OF MOSS
Date of Last Revision: June 5, 2018
These terms and conditions are a legally binding agreement between you and Polyarc, Inc. that govern your access to and use of our game titled Moss (the “Game”). By accessing or using the Game, you represent to us that you have read, understood, and agree to be bound by these terms and conditions, which, collectively, we refer to as the “Agreement.”
References in this Agreement to “Polyarc,” “we,” “us,” and “our” refer to Polyarc, Inc. You are referred to with the terms “you” and “your.” Collectively, either us or you may be referred to as a “party” and, collectively, as the “parties.”
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING OR USING THE GAME. BY ACCESSING OR USING THE GAME, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, INCLUDING THOSE TERMS AND CONDITIONS IN SECTION 8 BELOW THAT REQUIRE YOU TO RESOLVE CERTAIN DISPUTES WITH US BY BINDING, INDIVIDUAL ARBITRATION AND CONTAIN A CLASS ACTION WAIVER. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, YOU MUST NOT ACCESS OR USE THE GAME.
NOTE: YOU HAVE A RIGHT TO OPT OUT OF THE BINDING ARBITRATION AND CLASS ACTION WAIVER PROVISIONS BY FOLLOWING THE PROCEDURE DESCRIBED IN SECTION 8 BELOW.
In order to access and use the Game, you must be at least 18 years of age (or the age of majority in the jurisdiction where you live, if it is older). If you are a minor (meaning that you are under 18 or the age of majority in the jurisdiction where you live), then you must obtain the consent of your parent or legal guardian before accessing or using the Game. If you are a minor, you must have your parent or legal guardian read this Agreement and accept it on your behalf before accessing or using the Game. You (or, if you are a minor, your parent or legal guardian), understand that, in order for you to be eligible to access or use the Game, you must comply with the terms and conditions set forth in this Agreement.
You may access and use the Game only for the purposes for which we designed and developed it. You will not knowingly allow any person that gains access to the Game through you to do anything that is not permitted by this Agreement.
We may, in our sole discretion, refuse to offer access to and use of the Game to any person at any time. Further, we reserve the right to change the eligibility criteria for access to and use of the Game at any time. The right to access the Game is revoked where this Agreement or access to or use of the Game is prohibited by law or to the extent offering access to or use of the Game conflicts with any applicable law.
If you breach this Agreement, we may give you a warning notice or we may terminate your access to and use of the Game immediately. We reserve the right to choose whether or not to warn you before terminating your access to and use of the Game.
2. MODIFICATIONS TO THIS AGREEMENT
We reserve the right to change or modify the terms and conditions set forth in this Agreement, or any policy related to access to and use of the Game, at any time and in our sole discretion; provided, that, in the event that we make such a modification, we will endeavor to notify you and other users of the Game of the modification and allow you to review and accept this Agreement, as modified, prior to continuing to access or use the Game. However, your continued use of the Game, following notice of such modifications, will constitute your acceptance of this Agreement, as modified. If you do not agree to any modifications of this Agreement or related policies, as they may occur, you must immediately discontinue accessing or using the Game, including, if applicable, immediately uninstalling the Game on your computers, consoles, or other devices that you use to access and use the Game.
The Game comprises copyrighted material, technology, trademarks, service marks, trade secrets, and other proprietary materials, which may include computer code, text, dialogue, data, video, graphics, images, illustrations, animations, sounds, musical compositions and recordings, audiovisual effects, color schemes, business methods and methods of operation, concepts, ideas, know-how, moral rights, and related documentation (collectively, the “Proprietary Material”). As between you and us, all intellectual property rights in and to the Proprietary Material, including any and all patent rights, copyrights, trademark rights, and rights in trade secrets recognized anywhere in the world, are owned exclusively by us.
You may not modify, reproduce, redistribute, upload, post, transmit, perform, or publish any element of the Proprietary Materials or sell or offer to sell any element of the Proprietary Materials to others, unless we have separately granted you permission to do so (e.g., as part of a fan content policy that we make available to you and other users of the Game on our web site). This includes any use of our name, trademarks, service marks, logos, or trade dress without our prior approval.
You may not reverse engineer, disassemble, decompile, or translate any computer software programs that comprise Proprietary Material, or otherwise attempt to derive the source code of such programs, except to the extent allowed under applicable law. If applicable law permits such activities, you shall promptly disclose any information so discovered to us, and such information will be deemed to be our confidential and proprietary information.
If you do make or create any authorized or unauthorized modifications to or adaptations of the Proprietary Materials (each, a “User Modification”), you understand that such User Modifications are our exclusive property, and you hereby assign any rights you may have in such User Modifications to us in consideration for your right to access and use the Game. Further, all comments, feedback, suggestions, gameplay features, level designs, storylines, character ideas, and other submissions (each, a “User Idea“) disclosed, submitted, or offered to us shall be our exclusive property. Unless otherwise prohibited by law, we may use, sell, exploit, or create derivative works from User Modifications and User Ideas and, further, we may disclose these User Modifications and User Ideas to third parties or the general public without compensation to you. YOU ACKNOWLEDGE THAT USER MODIFICATIONS AND USER IDEAS ARE MADE, CREATED, AND/OR PROVIDED BY YOU ON A COMPLETELY VOLUNTARY BASIS. SHOULD YOU NOT WISH TO HAVE YOUR USER MODIFICATIONS OR USER IDEAS INCORPORATED INTO OUR PRODUCTS OR SERVICES OR OTHERWISE OWNED, USED, EXPLOITED, MODIFIED, OR DISCLOSED BY US, YOU MAY CHOOSE NOT TO MAKE, CREATE, OR SHARE THEM.
The Proprietary Material may include materials licensed by us from third parties, and the licensors of those materials may enforce their rights in the event of your breach of this Agreement.
POLYARC, MOSS, the Polyarc logo, the Moss logo, and any other unique identifiers that we use to identify the source of the Game and our other products and services are our registered or unregistered trademarks. In addition, the look and feel of the Game and our other products and services are our trademarks, service marks, and trade dress. You may not copy, imitate, or otherwise use our trademarks, service marks, or trade dress, in whole or in part, unless we have separately granted you permission to do so. All other trademarks, registered trademarks, product names, service names, and company names, or logos used in the Game that are not our property are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us. References in the Game to any products, services, processes, or other information by trademark, service mark, trade name, product name, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation thereof by us.
ALL RIGHTS NOT EXPRESSLY GRANTED TO YOU IN THIS AGREEMENT ARE RESERVED BY POLYARC AND OUR LICENSORS.
4. CODE OF CONDUCT
In connection with your access to and use of the Game, you agree that you will comply with the following code of conduct and not engage in any act, or series of acts, either alone or in concert with others, that constitutes Prohibited Activity. “Prohibited Activity” means the following:
1. Breach of any terms or conditions set forth in this Agreement; other agreements between you and us; or any policy related to access to or use of the Game.
2. Breach of any terms or conditions in any agreement between you and one of the providers or operators of the platforms on which the Game is made available to you (each, a “Platform Provider”) or any of such Platform Provider’s policies.
3. Violation of the intellectual property rights, privacy rights, or other rights of us, a Platform Provider, or any third party.
4. Commission of any crime or violation of any applicable law in connection with your access to or use of the Game or any products or services offered by a Platform Provider.
5. Using, or attempting to use, any invalid or unauthorized credit card or other payment method in connection with your access to or use of the Game or any products or services offered by a Platform Provider.
6. Engaging in any commercial activities using the Game or the Proprietary Materials or using the Game or the Proprietary Materials for the purpose of profiting or for the purpose of preparing for profiting, unless we have separately granted you permission to do so and then only for the limited purpose expressly permitted thereby.
7. Using, developing, or distributing, or attempting to use, develop, or distribute, any cheat codes, devices, tools, automated systems, scripts, or processes (e.g., a “spider,” “bot", “cheat utility,” “scraper,” or “offline reader”), including any third-party code sets or utilities, or distributing, publishing, or otherwise making available or publicizing in any way any such cheat codes, devices, tools, or automated systems, scripts, or processes, whether in relation to the Game or any products or services offered by a Platform Provider.
8. Providing any false, misleading, or inaccurate information to us or a Platform Provider, or otherwise concealing any relevant information, in connection with your registration for access to or use of the Game or any products or services offered by a Platform Provider.
9. Use of or access to the Game or any products or services offered by a Platform Provider in any manner that involves fraud, misrepresentation, deception, or manipulation.
10. In the event that you are under 18 years of age (or the age of majority in the jurisdiction where you live, if it is older) or otherwise unable to form legally binding contracts in the jurisdiction where you live, accessing or using the Game without the express consent of your parent or legal guardian in each instance.
11. Accessing, or attempting to access, facilities, networks, equipment, or systems of us, a Platform Provider, another user, or any other third party without authorization.
12. Impersonating any person or entity in order to gain access to or use the Game or any of the products or services of a Platform Provider.
13. Taking any action that interferes, or attempts to interfere, in any manner whatsoever with the publication and operation of the Game or any products or services of a Platform Provider or bypassing, or attempting to bypass, methods we or Platform Providers may use to prevent or restrict access to the Game.
14. Accessing or using, or attempting to access or use, the Game despite the fact that we have previously suspended or revoked your privileges to do so.
15. Engaging in any other conduct that we have a reasonable, good-faith belief to be inappropriate or harmful, including any other false, misleading, manipulative, unfair, unlawful, or deceptive act or practice.
Engaging in Prohibited Activity will constitute a breach of this Agreement and may result in, among other things, suspension, cancellation, or termination of your permission to access and use the Game, at our sole discretion. Further, you agree that we have the right to take any other action we deem advisable, including the issuance of warnings; the suspension, cancellation, or termination of your access to or use of the Game, in whole or in part; and the reporting of any activity we suspect violates any law to law enforcement or other appropriate authorities.
Further, you understand that engaging in Prohibited Activity may constitute a breach of one or more applicable agreements between you and a Platform Provider and that, as a result, the applicable Platform Provider may have the right to exercise certain remedies, as set forth in your agreement with such Platform Provider. Those remedies are in addition to any remedies that we may have the right to exercise, and the right of each Platform Provider to take the steps that such Platform Provider deems necessary or advisable to enforce the terms of any applicable agreement between you and the Platform Provider shall not be limited in any way by this Agreement.
We expressly reserve the right to monitor any and all network traffic between you, the Game, and the platforms on which the Game is made available in order to help prevent Prohibited Activity.
5. USE OUTSIDE OF THE UNITED STATES
The Game is controlled and operated by us in the United States. We make no representations or warranties, either express or implied, that the Game, the Proprietary Materials, or any other materials made available to you through your access to and use of the Game are appropriate, legally permissible, or available for use in other locations. Those who choose to access and use the Game from other locations do so at their own risk and are responsible for compliance with all applicable laws.
Whether or not you access or use the Game inside the United States, you agree to abide by any applicable export control laws and not to transfer, by electronic transmission or otherwise, the Game, or any elements of the Game, to any person or entity if you know, or have reason to know, that such person intends to export or re-export the Game, or such elements of the Game, in violation of such laws nor will you download, export, or re-export the Game, or any elements of the Game, into (or to a national or resident of) any country to which the United States has embargoed goods or to any person on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Denied Person’s List. By accessing or using the Game, you represent and warrant that you are not located in, under the control of, or a national or resident of any such jurisdiction or on any such list.
6. LIMITATIONS OF LIABILITY
THE GAME IS PROVIDED BY US TO YOU “AS IS,” AND WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, IN CONNECTION WITH THIS AGREEMENT OR THE GAME. WITHOUT LIMITING THE FOREGOING, WE SPECIFICALLY DISCLAIM ANY WARRANTY THAT THE GAME WILL BE ERROR FREE OR THAT ALL ERRORS IN THE GAME WILL BE CORRECTED. WE ALSO SPECIFICALLY DISCLAIM THE IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, QUALITY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, RELIABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF WE ARE ADVISED OF THE PURPOSE), TITLE, AND NONINFRINGEMENT AND THOSE IMPLIED WARRANTIES, IF ANY, ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. ALL SUCH WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH IN THIS PARAGRAPH MAY NOT APPLY.
IN NO EVENT WILL WE BE LIABLE FOR ANY DAMAGES DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE GAME OR IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT IN EXCESS OF THE TOTAL AGGREGATE FEES RECEIVED BY US IN CONSIDERATION FOR YOUR ACCESS TO OR USE OF THE GAME, REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, WARRANTY, OR OTHERWISE. FURTHER, IN NO EVENT WILL WE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES OF ANY KIND WHATSOEVER, WHETHER OR NOT SUCH DAMAGES COULD REASONABLY BE FORESEEN AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
WHEN YOU USE SERVICES, HARDWARE, SOFTWARE, EQUIPMENT, AND DEVICES THAT ARE SUPPLIED TO YOU BY OTHERS, INCLUDING VIRTUAL REALITY HEADSETS AND CONTROLLERS, YOU DO SO AT YOUR OWN RISK. THESE SERVICES, PLATFORMS, HARDWARE, SOFTWARE, EQUIPMENT, DEVICES, AND RESOURCES ARE NOT UNDER OUR CONTROL, AND YOU ACKNOWLEDGE THAT WE ARE NOT RESPONSIBLE OR LIABLE FOR THE CONTENT, FUNCTIONS, OPERATION, PERFORMANCE, ACCURACY, LEGALITY, APPROPRIATENESS, OR ANY OTHER ASPECT OF SUCH SERVICES, PLATFORMS, HARDWARE, SOFTWARE, EQUIPMENT, DEVICES, OR RESOURCES, INCLUDING PERSONAL INJURY, DEATH, AND ANY LOSS OR CORRUPTION OF CONTENT OR OTHER INFORMATION OR DATA RESULTING FROM YOUR USE THEREOF.
EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY US TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN US AND YOU. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 6 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
To the maximum extent permitted by law, you agree to defend, indemnify, and hold harmless us, our directors, officers, employees, and agents, from and against all claims, damages, obligations, losses, liabilities, costs, and expenses (including attorney’s fees) arising out of or related to your conduct, acts, and omissions; your breach of this Agreement or violation of any policies related to your access to or use of the Game; your violation of any applicable laws; your violation of the rights of any third party, the rights of a Platform Provider; or your access to and use of, or inability to access and use, the Game, including in each case, any actual or threatened suit, demand, or claim made against us.
8. DISPUTE RESOLUTION
In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement or the breach of this Agreement, the Parties will use their best efforts to settle the dispute, claim, question, or disagreement. To that end, the parties will consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable resolution satisfactory to both parties. If the parties do not reach such a resolution within a period of 60 days, then, upon notice by either party to the other, all such disputes, claims, questions, or disagreements will be finally settled by arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules and its Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by the terms and conditions set forth in this paragraph, and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. The AAA Rules are available at adr.org/rules or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. We will reimburse those fees for small claims totaling less than $5,000, unless the arbitrator determines your claims are frivolous. Likewise, we will not seek attorneys’ fees and costs in arbitration, unless the arbitrator determines your claims are frivolous. Within 14 days after the commencement of arbitration, the parties will agree upon a single person to act as arbitrator. If the parties cannot agree on a single arbitrator within such 14-day period, then each party will select one person to act as arbitrator and the two arbitrators selected by the parties will select a third arbitrator within 10 days after the day on which the second of them is appointment. If the arbitrators selected by the parties are unable or fail to agree upon the third arbitrator, the third arbitrator will be selected by the American Arbitration Association. You may choose to have the arbitration conducted by telephone, based on written submissions, or in-person in the city or county where you live or at another mutually agreed-upon location. The language of the arbitration will be English. Either party, if it wishes to do so, may apply to the arbitrator(s) seeking injunctive relief until the arbitration award is rendered or the controversy is otherwise resolved. Either party, without waiving any remedy under this Agreement, also may seek from any court having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that party, pending the establishment of the arbitral tribunal (or pending the arbitral tribunal’s determination of the merits of the controversy). Except as may be required by law or as otherwise expressly permitted by this Section 8, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration conducted pursuant to this Section 8, including any determination made or award given, without the prior written consent of both parties. The Federal Arbitration Act will govern the interpretation and enforcement of this Section 8. IF ANY OF THE TERMS AND CONDITIONS SET FORTH IN THIS SECTION 8 ARE HELD UNENFORCEABLE, THEN THE ENTIRETY OF THIS SECTION 8 WILL BE DEEMED VOID. YOU ACKNOWLEDGE AND AGREE THAT WE AND YOU ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. FURTHER, UNLESS BOTH WE AND YOU OTHERWISE AGREE IN WRITING, THE ARBITRATOR(S) MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF ANY CLASS OR REPRESENTATIVE PROCEEDING.
Notwithstanding the terms and conditions set forth in the preceding paragraph, each party acknowledges and agrees that, due to the unique nature of intellectual property rights, licenses to intellectual property rights, and trade secrets and other confidential and proprietary information, there can be no adequate remedy at law for any breach or threatened breach of a party’s obligations related to such matters, that any such breach or threatened breach may allow the defaulting party or third parties to unfairly compete with the non-defaulting party resulting in irreparable harm to the non-defaulting party, that any such breach or threatened breach would cause irreparable harm to the non-defaulting party, and, therefore, that upon any such breach or threatened breach, in addition to any other remedies at law or in equity that the non-defaulting party may have, the non-defaulting party is entitled, without the requirement of posting a bond or other security, to equitable relief, including injunctive relief and specific performance. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal and state courts located in King County, Washington, U.S.A., in connection with any action seeking such conservatory or interim measures.
IF YOU DO NOT WISH TO BE BOUND BY THE BINDING ARBITRATION AND CLASS ACTION WAIVER DESCRIBED IN THIS SECTION 8, YOU MUST NOTIFY US IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU ACCEPT THIS AGREEMENT, UNLESS A LONGER PERIOD IS REQUIRED BY APPLICABLE LAW. YOUR WRITTEN NOTIFICATION MUST BE MAILED TO POLYARC, INC., 2014 E MADISON STREET, SUITE 200, SEATTLE, WASHINGTON 98122, USA, ATTN: LEGAL/ARBITRATION, AND MUST INCLUDE: (1) YOUR FULL LEGAL NAME, (2) BOTH YOUR STREET AND YOUR MAILING ADDRESSES, AND (3) A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH US THROUGH ARBITRATION.
9. GOVERNING LAW
This Agreement and all disputes, claims, or controversies arising out of or in connection with this Agreement, including any question regarding its formation, existence, validity, enforceability, performance, interpretation, breach, or termination will be governed by and construed in accordance with the substantive local laws of the State of Washington, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale
The relationship between us and you is that of independent contractors. Consistent with each party’s status as an independent contractor, each party will retain the sole and exclusive right to supervise, control, or direct the manner or means by which it performs its duties and exercises its rights under this Agreement. Nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between the parties. Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of the other party, whether express or implied, or to bind the other party in any respect whatsoever.
All notices and other communications required or permitted under this Agreement will be in writing, addressed to the applicable party at the address provided by such party to the other, and deemed effectively delivered only upon personal delivery, upon delivery by a courier service as confirmed by written delivery confirmation, upon delivery by facsimile as confirmed by transmission receipt, or five days after deposit in the mail, postage prepaid. IF YOU WISH TO COMMENCE THE DISPUTE RESOLUTION PROCESS DESCRIBED IN SECTION 8 ABOVE, YOU MUST SEND A LETTER DESCRIBING YOUR CLAIM(S) TO POLYARC, INC., 2014 E MADISON STREET, SUITE 200, SEATTLE, WASHINGTON 98122, USA, ATTN: LEGAL/ARBITRATION.
You may not assign or transfer this Agreement, in whole or in part, without our prior written consent. We may freely assign this Agreement. Any assignment in violation of this provision will be null and void. Subject to the foregoing, this Agreement will come to the benefit of the successors and permitted assigns of the parties.
These terms and conditions comprise the entire agreement between us and you with respect to the subject matter of this Agreement and supersede all previous communications, representations, understandings, and agreements, either oral or written, between us and you with respect to the Game. No terms, provisions, or conditions of any purchase order, acknowledgement, or other form that either party may use in connection with the transactions contemplated by this Agreement will have any effect on the rights, duties, or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of a receiving party to object to these terms, provisions, or conditions.
No term or provision of this Agreement will be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by either party to, or waiver of, a breach by either party, whether express or implied, will constitute a consent to, waiver of, or excuse of any other, different, or subsequent breach by either party. Except as otherwise set forth in Section 2 above, this Agreement may be amended or supplemented only by a writing that refers explicitly to this Agreement and that is signed by both parties.
You acknowledge and represent that, in accepting this Agreement, you have had the opportunity to seek advice as to your legal rights from legal counsel and that you have read and understood all of the terms and provisions of this Agreement. As such, no ambiguity will be construed against us based upon a claim that we drafted the ambiguous language. Also, this Agreement is in the English language, which language will be controlling, even if interpretations of this Agreement in other languages are made. The headings appearing at the beginning of sections contained in this Agreement have been inserted for convenience only and will not be used to construe or interpret this Agreement. Whenever required by context, a singular term will include the plural, the plural term will include the singular, and the gender of any pronoun will include all genders. References to us and you will include our respective successors and/or permitted assignees. Any references to recitals, articles, sections, paragraphs, schedules, exhibits, riders, addenda, and other attachments are to the recitals, articles, sections, paragraphs, schedules, exhibits, riders, addenda, and other attachments to this Agreement. A reference to days shall mean calendar days, unless otherwise stated in this Agreement. References to “include” and “including” will not be given a restrictive meaning and will be interpreted “without limitation.” Except as otherwise set forth in the paragraph concerning binding arbitration above, if any provision of this Agreement is determined to be unenforceable, that provision will be limited or eliminated to the minimum extent necessary for this Agreement to remain enforceable. The rights and recourse to remedies set forth in this Agreement, including rights of termination, will not, under any circumstances, be deemed to be exclusive. As such, each party reserves to it all rights and recourse to remedies afforded by the law.