a. Governing Agreement
The terms of this agreement ("Terms of Service" or “Terms” or “Agreement”) govern the relationship between you and Diamond Profile (hereinafter "Diamond Profile " or "Us" or "We") regarding your use of Diamond Profile’s mobile games and related services, which include applications for mobile devices and Diamond Profile’s websites (the "Service"). In this agreement, "Diamond Profile " means Diamond Profile LLC located at 519 Apalachee Dr. Maineville, Ohio 45039 USA.
c. License Grant
The Service is licensed, not sold, and Diamond Profile reserves all rights not expressly granted in this Agreement. Subject to the terms and conditions hereof, Diamond Profile grants You a personal, nonexclusive, nontransferable, non-sublicenseable, limited license to download and use the Application on a mobile device that You own or control.
You understand that while you may “earn”, "buy", or "purchase" virtual currency, including but not limited to virtual coins or virtual gold bars, all for use in the Service; or virtual items (together with virtual currency, "Virtual Goods"); You do not in fact "own" the Virtual Goods and the amounts of any Virtual good do not refer to any credit balance of real currency or its equivalent. Any virtual currency balance shown in your Account does not constitute a real-world balance.
d. LICENSE RESTRICTIONS AND LIMITATIONS
Except as specifically provided herein, You may not: (i) distribute or make the Service available over a network where it could be used by multiple devices at the same time; (ii) copy the Service; (iii) modify, adapt, translate, reverse engineer, make alterations, decompile, disassemble or make derivative works based on the Service, except as otherwise permitted by law; or (iv) use, rent, loan, sub-license, lease, distribute or attempt to grant other rights to the Service to third parties. ANY ATTEMPT BY YOU TO DISRUPT OR INTERFERE WITH THE SERVICE INCLUDING UNDERMINING OR MANIPULATING THE LEGITIMATE OPERATION OF ANY DIAMOND PROFILE GAME IS A VIOLATION OF DIAMOND PROFILE POLICY AND MAY BE A VIOLATION OF CRIMINAL AND CIVIL LAWS.
e. Apple Inc.
By accessing this App through a device made by Apple, Inc. ("Apple"), you specifically acknowledge and agree that: (i) this Agreement is between Service Provider and You; Apple is not a party to this Agreement; (ii) Apple and its subsidiaries are third party beneficiaries of this Agreement and upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you; (iii) the license granted to you hereunder is limited to a non-transferable right to use the App on the Apple device(s) authorized by Apple that you own or control and as permitted by the Usage Rules set forth in Apple's App Store Terms of Service; (iv) Apple has no obligation whatsoever in connection with the functionality or content of the App, or to furnish any maintenance or support services with respect to the App; (v) in the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the amount you paid for the App, if any (to the maximum amount permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App); (vi) Apple is not responsible for addressing any claims by you or a third party relating to the App or your possession and/or use of the App, including without limitation (a) product liability claims; (b) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation; (vii) in the event of any third party claim that the App or your possession and use of the App infringes such third party's intellectual property rights, Apple is not responsible for the investigation, defense, settlement and/or discharge of such claim; and (viii) you represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
You agree that you will not, under any circumstances:
i. Engage in any act that Diamond Profile deems to be in conflict with the spirit or intent of the Service;
ii. Make any use that Diamond Profile deems improper of Diamond Profile’s support services;
iii. Use the Service, intentionally or unintentionally, in connection with any violation of any applicable regulation or law, or do anything that promotes the violation of any applicable regulation or law;
iv. Post any information that is abusive, threatening, obscene, defamatory, libelous, or racially, sexually, religiously, or otherwise objectionable or offensive;
v. Post any information that contains nudity, excessive violence, or offensive subject matter or that contains a link to such content;
vi. Attempt to, or harass, abuse, or harm, or advocate or incite harassment, abuse or harm of another person, group, including Diamond Profile employees, including Diamond Profile’s customer service representatives;
vii. Make available through the Service any material or information that infringes any copyright, trademark, patent, trade secret, right of privacy, right of publicity, or other right of any person or entity or impersonates any other person, including without limitation a Diamond Profile employee;
viii. Use cheats, exploits, bots, hacks, mods or any unauthorized third party software designed to modify or interfere with the Service or any Diamond Profile game experience;
ix. Use the Service in order to design or assist in the design of cheats, automation software, bots, hacks, mods or any other unauthorized third party software designed to modify or interfere with the Service or any Diamond Profile game experience;
x. Without Diamond Profile’s written consent, modify or cause to be modified any files that are a part of the Service;
xi. Disrupt, overburden, or aid or assist in the disruption or overburdening of any computer or server used to offer or support the Service or any Diamond Profile game environment or the enjoyment of the Service or any Diamond Profile game by any other person;
xii. Institute, assist or become involved in any type of attack on Diamond Profile’s Infrastructure or the Service.
xiii. Attempt to gain unauthorized access to the Service, Accounts registered to others or to the computers, Servers, or networks connected to the Service by any means other than the user interface provided by Diamond Profile;
xiv. Without Diamond Profile’s written consent, use the Service or any part thereof for any commercial purpose;
xv. Use the Service or any part thereof for performing in-game services in exchange for payment outside the Service;
xvi. Transmit unauthorized communications through the Service;
xvii. Interfere or attempt to interfere with the proper functioning of the Service or connect to or use the Service in any way not expressly permitted by these Terms of Service;
xviii. Use any unauthorized third party software that accesses, intercepts, or collects information from or through the Service or that is in transit from or to the Service. Diamond Profile may allow the use of certain third party user interfaces;
xix. Intercept, examine or otherwise observe any proprietary communications protocol used by a client, a Server, or the Service;
xx. Make any automated use of the system or take any action that imposes or may impose an unreasonable or disproportionately large load on our infrastructure or the Service as deemed by Diamond Profile;
xxi. Bypass any measure We employ to restrict access to the service;
xxii. Use, facilitate, create, or maintain any unauthorized connection to the Service;
xxiii. Copy, modify or distribute rights or content from any Diamond Profile site or game or use any method to copy or distribute the content of the Service except as specifically allowed in these Terms of Service;
xxiv. Solicit or attempt to solicit personal information from other users of the Service; or
xxv. Collect, harvest or post anyone’s private information, including personally identifiable information (whether in text, image or video form), identification documents, or financial information through the Service; or
xxvi. Upload or transmit or attempt to upload or transmit, without Diamond Profile’s permission, any material that acts as a passive or active information collection or transmission mechanism;
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN AN ACCOUNT, AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT ALL RIGHTS IN AND TO AN ACCOUNT ARE AND SHALL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF DIAMOND PROFILE. GENERALLY, GAME OR OTHER ACCOUNTS CREATED WITH DIAMOND PROFILE WILL BE CONSIDERED ACTIVE UNTIL WE RECEIVE A USER REQUEST TO DEACTIVATE OR DELETE THEM; HOWEVER, WE RESERVE THE RIGHT TO TERMINATE ANY ACCOUNT THAT HAS BEEN INACTIVE FOR 30 DAYS.
ii. Game and Service
The Service (including without limitation any games, apps, titles, computer code, themes, objects, characters, character names, dialogue, catch phrases, concepts, artwork, animations, methods of operation, moral rights, documentation, in-game chat transcripts, recordings of games played using a Diamond Profile game client, and the Diamond Profile game clients and server software) are copyrighted works owned by Diamond Profile LLC. Diamond Profile reserves all rights, including but not limited to, all intellectual property rights or other proprietary rights, in connection with the Service.
iii. Virtual Items and Virtual Currency
Diamond Profile owns, has licensed, or otherwise has rights to use all of the content that appears in the Service. Notwithstanding any provision to the contrary herein, you agree that you have no right or title in or to any content that appears in the Service, including without limitation the Virtual Items appearing or originating in any Diamond Profile game, whether “earned” in a game or “purchased” from Diamond Profile, or any other attributes associated with an Account or stored on the Service.
Diamond Profile prohibits and does not recognize any purported transfers of Virtual Items effectuated outside of the Service, or the purported sale, gift or trade in the "real world" of anything that appears or originates in the Service, unless otherwise expressly authorized by Diamond Profile in writing. Accordingly, you may not sublicense, trade, sell or attempt to sell in-game Virtual Items for "real" money, or exchange Virtual Items for value of any kind outside of a game, without Diamond Profile’s written permission. Any such transfer or attempted transfer is prohibited and void, and will subject your Account to termination.
iv. User Content
"User Content" means any communications, images, sounds, and all the material, data, and information that you upload or transmit through a Diamond Profile game client or the Service, or that other users upload or transmit, including without limitation any chat text.
You own your User Content. You hereby grant Diamond Profile and its Affiliates a perpetual and irrevocable (other than as provided below), worldwide, fully paid-up and royalty free, non-exclusive, unlimited license, including the right to sublicense and assign to third parties, and right to copy, reproduce, fix, adapt, modify, improve, translate, reformat, create derivative works from, manufacture, introduce into circulation, commercialize, publish, distribute, sell, license, sublicense, transfer, rent, lease, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, communicate to the public by telecommunication, display, perform, enter into computer memory, and use and practice, in any way now known or in the future discovered, your User Content as well as all modified and derivative works thereof in connection with our provision of the Service, including marketing and promotions thereof. To the extent permitted by applicable laws, you hereby waive any moral rights you may have in any User Content. The license you grant Us to use user posted content (except any content you submit in response to Diamond Profile promotions and competitions or any other content specifically solicited by Diamond Profile) ends when you delete your User Content or you close your Account unless your User Content has been shared with others, and they have not deleted it. However, you understand and accept that removed content may persist in back-up copies for a reasonable period of time.
g. Account Information
h. Access and Usage of Service
You must provide all equipment and software necessary to connect to the Service, including, but not limited to, a mobile device that is suitable to connect with and use the Service, in cases where the Service offers a mobile component.
You are responsible for any fees, including internet connection or mobile fees that you incur when accessing the Service.
The following restrictions apply to the use of the Service:
a. You shall not create an Account or access the Service if you are under the age of 13;
b. You shall monitor your Account to restrict use by minors, and you will deny access to children under the age of 13. You accept full responsibility for any unauthorized use of the Service by minors in connection with your Account. You are responsible for any use of your credit card or other payment instrument (e.g. In-App Purchase) by minors;
c. You shall not have more than one Account, per platform or SNS, at any given time, and shall not create an account using a false identity or information, or on behalf of someone other than yourself;
d. You shall not create an Account or use the Service if you are a convicted sex offender;
e. You shall not have an Account or use the Service if you have previously been removed by Diamond Profile or previously been banned from playing any Diamond Profile game;
f. You shall not use the Service if you are located in a country embargoed by the United States or if you are on the U.S. Treasury Department's list of Specially Designated Nationals.
g. You shall use your Account only for non-commercial purposes;
h. You shall not use your Account to advertise, solicit, or transmit any commercial advertisements;
i. You shall not use your Account to engage in any illegal conduct;
j. You shall not sublicense, rent, lease, sell, trade, gift, bequeath or otherwise transfer your Account or any Virtual Items associated with your Account to anyone without Diamond Profile’s written permission;
k. You shall not access or use an Account or Virtual Items that have been sublicensed, rented, leased, sold, traded, gifted, bequeathed, or otherwise transferred from the original Account creator without Diamond Profile’s permission; and
l. If you access the Service from an SNS you shall comply with its terms of service/use as well as these Terms of Service.
i. Account Suspension and Termination
WITHOUT LIMITING ANY OTHER REMEDIES, DIAMOND PROFILE MAY LIMIT, SUSPEND, TERMINATE, MODIFY, OR DELETE ACCOUNTS OR ACCESS TO THE SERVICE OR PORTIONS THEREOF IF YOU ARE, OR DIAMOND PROFILE SUSPECTS THAT YOU ARE, FAILING TO COMPLY WITH ANY OF THESE TERMS OF SERVICE OR FOR ANY ACTUAL OR SUSPECTED ILLEGAL OR IMPROPER USE OF THE SERVICE, WITH OR WITHOUT NOTICE TO YOU. YOU CAN LOSE YOUR USER NAME AND PERSONA AS A RESULT OF ACCOUNT TERMINATION OR LIMITATION, AS WELL AS ANY BENEFITS, PRIVILEGES, EARNED ITEMS AND PURCHASED ITEMS ASSOCIATED WITH YOUR USE OF THE SERVICE, AND DIAMOND PROFILE IS UNDER NO OBLIGATION TO COMPENSATE YOU FOR ANY SUCH LOSSES OR RESULTS.
WITHOUT LIMITING OUR OTHER REMEDIES, WE MAY LIMIT, SUSPEND OR TERMINATE THE SERVICE AND USER ACCOUNTS OR PORTIONS THEREOF, PROHIBIT ACCESS TO OUR GAMES AND SITES, AND THEIR CONTENT, SERVICES AND TOOLS, DELAY OR REMOVE HOSTED CONTENT, AND TAKE TECHNICAL AND LEGAL STEPS TO PREVENT USERS FROM ACCESSING THE SERVICE IF WE BELIEVE THAT THEY ARE CREATING RISK OR POSSIBLE LEGAL LIABILITIES, INFRINGING THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, OR ACTING INCONSISTENTLY WITH THE LETTER OR SPIRIT OF OUR TERMS OR POLICIES. ADDITIONALLY, WE MAY, IN APPROPRIATE CIRCUMSTANCES AND AT OUR SOLE DISCRETION, SUSPEND OR TERMINATE ACCOUNTS OF USERS WHO MAY BE REPEAT INFRINGERS OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
Diamond Profile reserves the right to stop offering and/or supporting the Service or a particular game 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 event, Diamond Profile 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 including any content you submitted or others submitted.
You may cancel any Account registered to you at any time by contacting us at firstname.lastname@example.org.
This agreement may not be otherwise amended except in a writing hand signed by you and Us. For purposes of this provision, "writing" does not include an e-mail message and a signature does not include an electronic signature.
II. System and User Requirements
The Service has several system requirements in which it is the user’s responsibility to fulfill. These requirements include,
a. A valid account with the required SNS(Social Networking Service).
b. A functioning iOS device running iOS 7 with a valid network connection and GPS device.
c. Adequate storage on the device to download, install, and run the application.
III. User Content
a. Information Use by Other Users
i. Responsibility for your own content
You are solely responsible for the information that you post on, through or in connection with the Service and that you provide to others.
Information, materials, products or services provided by other users (for instance, in their profiles) may, in whole or in part, be unauthorized, impermissible or otherwise violate these Terms of Service, and Diamond Profile assumes no responsibility or liability for this material. If you become aware of misuse of the Service by any person, please use any "Report Abuse" link provided or contact us at http://frendbomber.uservoice.com/
Diamond Profile may reject, refuse to post or delete any User Content for any or no reason, including, but not limited to, User Content that in the sole judgment of Diamond Profile may violate these Terms of Service.
Diamond Profile reserves the right to limit the storage capacity of User Content that you post on, through or in connection with the Service.
Your information, and the contents of all of your online communications (including without limitation chat text, voice communications, IP addresses and your personal information) may be accessed and monitored as necessary to provide the Service and may be disclosed: (i) when We have a good faith belief that We are required to disclose the information in response to legal process (for example, a court order, search warrant or subpoena); (ii) to satisfy any applicable laws or regulations (iii) where We believe that the Service is being used in the commission of a crime, including to report such criminal activity or to exchange information with other companies and organizations for the purposes of fraud protection and credit risk reduction; (iv) when We have a good faith belief that there is an emergency that poses a threat to the health and/or safety of you, another person or the public generally; and (v) in order to protect the rights or property of Diamond Profile, including to enforce these Terms of Service. By entering into these Terms of Service, you hereby provide your irrevocable consent to such monitoring, access and disclosure.
b. User Interactions
i. User Disputes
You are solely responsible for your interactions with other users of the Service and any other parties with whom you interact through the Service and/or Diamond Profile games. Diamond Profile reserves the right, but has no obligation, to become involved in any way with these disputes.
If you have a dispute with one or more users, you release Us (and our officers, directors, agents, subsidiaries, joint ventures and employees) 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, including damages for loss of profits, goodwill, use or data.
c. Content Monitoring
You are entirely responsible for all User Content you post or otherwise transmit via the Service. Diamond Profile assumes no responsibility for the conduct of any user submitting any User Content, and assumes no responsibility for monitoring the Service for inappropriate or illegal content or conduct.
We have no obligation to monitor User Content. If We choose at any time, in our sole discretion, to monitor the Service, We have the right, in our sole discretion, to edit, refuse to post, or remove any User Content and We may monitor and/or record your interaction with the Service or communications (including without limitation chat text and voice communications) when you are using the Service. By entering into these Terms of Service, you hereby provide your irrevocable consent to such monitoring and recording.
IV. Services; Third Party Materials
The Service may enable access to Diamond Profile and third party services and web sites (collectively and individually, "Services"). Use of the Services may require Internet access and that You accept additional terms of service.
You understand that by using any of the Services, You may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. Nevertheless, You agree to use the Services at Your sole risk and that We shall not have any liability to You for content that may be found to be offensive, indecent, or objectionable.
Certain Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party web sites. By using the Services, You acknowledge and agree that We are not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or web sites. We do not warrant or endorse and does not assume and will not have any liability or responsibility to You or any other person for any third-party Services, Third Party Materials or web sites, or for any other materials, products, or services of third parties. Third Party Materials and links to other web sites are provided solely as a convenience to You. Financial information displayed by any Services is for general informational purposes only and is not intended to be relied upon as investment advice. Before executing any securities transaction based upon information obtained through the Services, You should consult with a financial professional. Location data provided by any Services is for basic navigational and game purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage. Neither We, nor any of our content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of stock information or location data displayed by any Services.
You agree that any Services contain proprietary content, information and material that is protected by applicable intellectual property and other laws, including but not limited to copyright, and that You will not use such proprietary content, information or materials in any way whatsoever except for permitted use of the Services. No portion of the Services may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services, in any manner, and You shall not exploit the Services in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity. You further agree not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that the We are not in any way responsible for any such use by You, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that You may receive as a result of using any of the Services.
In addition, third party Services and Third Party Materials that may be accessed from, displayed on or linked to from the iPhone, iPad, or iPod touch are not available in all languages or in all countries. We make no representation that such Services and Materials are appropriate or available for use in any particular location. To the extent You choose to access such Services or Materials, You do so at Your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws. We reserve the right to change, suspend, remove, or disable access to any Services at any time without notice. In no event will We be liable for the removal of or disabling of access to any such Services. We may also impose limits on the use of or access to certain Services, in any case and without notice or liability.
V. Fees and Payments
In the Service you may purchase, with "real world" money, a license to use Virtual Currency and or other goods or services. PURCHASES TO ACQUIRE A LICENSE TO USE VIRTUAL CURRENCY OR VIRTUAL GOODS ARE NON-REFUNDABLE.
You agree to pay all fees and applicable taxes incurred by you or anyone using an Account registered to you. Diamond Profile may revise the pricing for the goods and services it licenses to you through the Service at any time. YOU ACKNOWLEDGE THAT DIAMOND PROFILE IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON, AND THAT YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED VIRTUAL ITEMS WHEN AN ACCOUNT IS CLOSED, WHETHER SUCH CLOSURE WAS VOLUNTARY OR INVOLUNTARY.
VI. Copyright Complaints
It is Diamond Profile’s policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act (“DMCA”). Diamond Profile reserves the right to terminate without notice any User's access to the Service if that User is determined by Diamond Profile, in its sole discretion, to be a "repeat infringer." In addition, Diamond Profile accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials.
VII. Warranty, Limitations, Indemnification
a. Your Warranty to Diamond Profile
You represent and warrant that: (i) You have the authority to bind Yourself to this Agreement; (ii) Your use of the Service will be solely for purposes that are permitted by this Agreement; and (iii) Your use of the Service will comply with all local, state and federal laws, rules, and regulations (“Laws”).
b. Disclaimer of Warranties and Indemnification
Diamond Profile will not be liable for losses or damages arising from or in any way related to your access or use of the Service. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DIAMOND PROFILE IS LICENSING THE SERVICE “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS.” DIAMOND PROFILE MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, TIMELINESS, AND ACCURACY, FOR ANY PURPOSE, OF THE APPLICATION, THE OPERATION OF THE APPLICATION ALONE OR IN CONJUNCTION WITH ANY DEVICE, OR THE CONTENT CONTAINED HEREIN. DIAMOND PROFILE DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, REGARDING THE APPLICATION AND ITS OPERATION AND EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
c. Limitation of Liability
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL DIAMOND PROFILE BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR OTHER RELATED OR SIMILAR DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE CONNECTED WITH THE USE OF OR INABILITY TO USE THE SERVICE, AND FOR ANY CAUSE OF ACTION, INCLUDING CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF DIAMOND PROFILE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ANY DAMAGES ARISING UNDER THIS AGREEMENT OR THE USE OF THE SERVICE THAT DIAMOND PROFILE IS REQUIRED TO PAY FOR ANY PURPOSE WHATSOEVER, INCLUDING WITHOUT LIMITATION, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL BE LIMITED TO TWENTY FIVE DOLLARS ($25.00). SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU UNDER THE LAWS OF THOSE STATES. No action, regardless of form, whether in court or through arbitration, arising out of any transaction under this Agreement, may be brought by You more than one year after You have knowledge of the occurrence which gives rise to the cause of such action.
You agree to indemnify, save, and hold Diamond Profile, its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Service, any violation by you of these Terms of Service, or any breach of the representations, warranties, and covenants made by you herein. Diamond Profile reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Diamond Profile, and you agree to cooperate with Diamond Profile’s defense of these claims. Diamond Profile will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
You agree that the provisions in this paragraph will survive any termination of your Account(s) or of the Service.
If a dispute arises between you and Diamond Profile, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and Diamond Profile agree that We will resolve any claim or controversy at law or equity that arises out of this Agreement or the Service (a "Claim") in accordance with one of the subsections below or as We and you otherwise agree in writing. Before resorting to these alternatives, We strongly encourage you to first contact Us directly to seek a resolution by going to http://friendbomber.uservoice.com/. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation.
You understand that the Service is an evolving one. Diamond Profile may require that you accept updates to the Service and to Diamond Profile’s games you have installed on your mobile device. You acknowledge and agree that Diamond Profile may update the Service with or without notifying you. You may need to update third party software from time to time in order to receive the Service and play Diamond Profile’s Games.
The illegality, invalidity or unenforceability of any provision of the Agreement will not affect the legality, validity or enforceability of the remainder. If any such provision is found by any court or competent authority to be illegal, invalid or unenforceable, You and Diamond Profile agree that they will substitute provisions in a form as similar to the offending provisions as is possible without thereby rendering them illegal, invalid or unenforceable.
XI. General Provisions
a. Governing Law
The laws of the State of Ohio, excluding its conflicts of law rules, govern this license and your use of the Service. Your use of the Service may also be subject to other local, state, national, or international laws.
b. Assignment and Transfers
Diamond Profile may assign, transfer, sell, rent or lend this Agreement, in whole or in part, at any time without notice to You. You may not assign this Agreement or any part of it or any rights to use the Service, in whole or in part, either temporarily or permanently, to any other party. Any attempt to do so is void.
c. Acknowledgement of Understanding/Entire Agreement
You acknowledge that You have read this Agreement, understand it and agree to be bound by its terms and conditions. You also agree that this Agreement is the complete and exclusive statement of the Agreement between Diamond Profile and You and supersedes all proposals, representations or prior agreements, oral or written, and any other communications between Diamond Profile and You relating to the subject matter of this Agreement.
This Agreement is effective until terminated. Diamond Profile may immediately terminate this Agreement at any time at its sole discretion with or without notice to you. Generally, you will be notified via email or any other contact you provide Us. Additionally, Your rights under this Agreement will terminate automatically if you fail to comply with any term(s) of this Agreement. Upon termination, all legal rights and licenses granted to You hereunder shall terminate immediately and You shall cease all use any Diamond Profile games and destroy all copies of any Diamond Profile games. All sections that may be reasonably interpreted to or are intended to survive this Agreement will survive this Agreement.
f. Equitable Remedies
You acknowledge that the rights granted and obligations made under these Terms of Service to Diamond Profile are of a unique and irreplaceable nature, the loss of which shall irreparably harm Diamond Profile and which cannot be replaced by monetary damages alone. Accordingly, Diamond Profile shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety or proof of damages) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief, or to enjoin or restrain the operation of the Service or any Diamond Profile game, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Service or any content or other material used or displayed through the Service and agree to limit your claims to claims for monetary damages
g. Force Majeure
Diamond Profile shall not be liable for any delay or failure to perform resulting from causes outside the control of Diamond Profile, including but not limited to, any failure to perform due to unforeseen circumstances or cause beyond Diamond Profile’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, labor or materials.