APPLICATION END USER LICENSE AGREEMENT
This End User License Agreement (“License”) is an agreement between you and Electronic Arts Inc., its subsidiaries and affiliates (“EA”). This License governs your use of this Kindle application and any and all related documentation, and updates and upgrades that replace or supplement the application in any respect and which are not distributed with a separate license, if any, (collectively, the "Application"). This Application is licensed to you, not sold.
BY INSTALLING OR USING THE APPLICATION ON YOUR DEVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ AND AGREE TO THE TERMS OF: (1) THIS LICENSE; AND (2) EA’S TERMS OF SERVICE (available at http://terms.ea.com) AND AGREE TO BE BOUND BY THEM.
We reserve the right to modify this License at any time, so please review it frequently either via the About section in your Application or by visiting http://www.ea.com/1/product-eulas. Your continued use of our online and mobile products and services will signify your acceptance of the changes to this License.
SECTION 11 PROVIDES THAT ALL DISPUTES BETWEEN US SHALL BE SUBMITTED TO BINDING ARBITRATION ON AN INDIVIDUAL BASIS. IF YOU DO NOT AGREE TO THESE OR ANY OTHER SECTIONS OF THIS LICENSE, DO NOT INSTALL OR USE THE APPLICATION.
B. Access to Online Features And/Or Services. An EA Account may be required to access online services and/or features.
C. Further Restrictions. Your right to use the Application is limited to the license grant above, and you may not otherwise copy, display, seek to disable, distribute, perform, publish, modify, transfer, create works from, or use the Application or any component of it, except as expressly authorized by EA. Unless expressly authorized by EA, you are prohibited from making a copy of the Application available on a network where it could be used by multiple users. You are prohibited from making the Application available over a network where it could be downloaded by multiple users. You may not remove or alter EA’s trademarks or logos, or legal notices included in the Application or related assets. Your right to use the Application is also predicated on your compliance with any applicable terms of agreements You have with third parties when using Your Application. For instance, if you have a VoIP application, then You must not be in violation of Your wireless data service agreement when using Your Application.
D. Reservation of Rights. You have obtained a license to the Application and your rights are subject to this License. Except as expressly licensed to you herein, EA reserves all right, title and interest in the Application (including all characters, storyline, images, photographs, animations, video, music, text), and all associated copyrights, trademarks, and other intellectual property rights therein. This License is limited to the intellectual property rights of EA and its licensors in the Application and does not include any rights to other patents or intellectual property. Except to the extent permitted under applicable law, you may not decompile, disassemble, or reverse engineer the Application, or any component thereof, by any means whatsoever. You may not remove, alter, or obscure any product identification, copyright, or other intellectual property notices in the Application. All rights not expressly granted herein are reserved by EA.
E. Your Contributions. In exchange for use of the Application, and to the extent that your contributions through use of the Application (if any) give rise to any copyright interest, you hereby grant EA an exclusive, perpetual, irrevocable, fully transferable and sub-licensable worldwide right and license to use your contributions in any way and for any purpose in connection with the Application and related goods and services including the rights to reproduce, copy, adapt, modify, perform, display, publish, broadcast, transmit, or otherwise communicate to the public by any means whether now known or unknown and distribute your contributions 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 EA’s and other players’ use and enjoyment of such assets in connection with the Application and related goods and services under applicable law. The license grant to EA, and the above waiver of any applicable moral rights, survives any termination of this License.
F. Access. You must provide at your own expense the equipment, Internet connections or wireless devices and/or service plans to access and use this Application. EA does not guarantee that this Application can be accessed on all authorized devices or that it will be available at all times. EA does not guarantee that this Application is available in all geographic locations. You acknowledge that when you use this Application, you may be charged fees for wireless access. Check with your carrier to see if there are any such fees that apply to you. YOU ARE SOLELY RESPONSIBLE FOR ANY COSTS YOU INCUR TO ACCESS THIS APPLICATION FROM YOUR DEVICE.
G. Application Updates. You agree that the Application may automatically download and install updates, upgrades and additional features that EA deems reasonable, beneficial to you and/or reasonably necessary. You acknowledge and agree that any obligation EA may have to support the previous version(s) may be ended upon the availability of the update, upgrade and/or implementation of additional features. This License shall apply to any updates, upgrades and/or additional features that are not distributed with a separate license or other agreement.
H. Digital Services. EA may offer, for purchase, virtual coins, points or other virtual currencies (each individually or collectively referred to in this License as “EA Virtual Currency”). By purchasing or otherwise acquiring EA Virtual Currency, you obtain a limited license to access and select from content that EA expressly makes available as part of this Application (the “Digital Content”).
EA Virtual Currency has no monetary value and does not constitute currency or property of any type. EA Virtual Currency may be redeemed for Digital Content only. EA Virtual Currency cannot be sold or transferred, and cannot be exchanged for cash or for any other goods and services, except for the Digital Content. EA Virtual Currency is non-refundable. You are not entitled to a refund for any unused EA Virtual Currency.
During the term of your EA Virtual Currency license, you have the right to redeem EA Virtual Currency for selected Digital Content. EA does not guarantee that any particular item offered as part of this Application will be available at all times or at any given time. EA does not guarantee that we will continue to offer particular items for any particular length of time. EA reserves the right to change and update our inventory of Digital Content without notice to you.
When you acquire Digital Content, you receive a limited license to use Digital Content for your personal non-commercial use with any specified permitted services that EA identifies from time to time. EA reserves all right, title and interest in Digital Content and all associated copyrights, trademarks, and other intellectual property rights therein. This Digital Content license is limited to the intellectual property rights of EA in the Digital Content and does not include any rights to other patents or intellectual property. You may not remove, alter, or obscure any identification, copyright, or other intellectual property notices in the Digital Content.
Once you have redeemed EA Virtual Currency for Digital Content, that content is not returnable, exchangeable, or refundable for EA Virtual Currency or for cash, or other goods or services.
The term of your EA Virtual Currency and Digital Content license starts when you acquire EA Virtual Currency and/or Digital Content, and subject to this License, ends the earlier of (1) the second anniversary of the date of purchase or award (as the context requires and applicable to each individual purchase or award) and (2) the day that your access to this Application is cancelled, suspended or terminated as set forth in this License. If you have not used your EA Virtual Currency for twenty four (24) months or more and your account has an EA Virtual Currency balance, your EA Virtual Currency shall expire and your account may be cancelled for non-use.
2. Termination. This License is effective until terminated. Your rights under this License will terminate immediately and automatically without any notice from EA if you fail to comply with any of the terms and conditions of this License. Promptly upon termination, you must cease all use of the Application and destroy all copies of the Application in your possession or control. Termination will not limit any of EA’s other rights or remedies at law or in equity. Sections 2 - 7 of this License shall survive termination or expiration of this License for any reason.
3. Disclaimer of Warranties. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE APPLICATION IS PROVIDED TO YOU “AS IS,” WITH ALL FAULTS, WITHOUT WARRANTY OF ANY KIND, WITHOUT PERFORMANCE ASSURANCES OR GUARANTEES OF ANY KIND, AND YOUR USE IS AT YOUR SOLE RISK. THE ENTIRE RISK OF SATISFACTORY QUALITY AND PERFORMANCE RESIDES WITH YOU. EA AND EA’S LICENSORS (COLLECTIVELY “EA” FOR PURPOSES OF THIS SECTION AND SECTION 4) DO NOT MAKE, AND HEREBY DISCLAIM, ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING IMPLIED WARRANTIES OF CONDITION, UNINTERRUPTED USE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, AND WARRANTIES (IF ANY) ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EA DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE APPLICATION; THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS; THAT OPERATION OF THE APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE; THAT THE APPLICATION WILL INTEROPERATE OR BE COMPATIBLE WITH ANY OTHER APPLICATION; THAT ANY ERRORS IN THE APPLICATION WILL BE CORRECTED; OR THAT THE APPLICATION WILL BE AVAILABLE FOR REINSTALLS TO THE SAME OR MULTIPLE DEVICES. NO ORAL OR WRITTEN ADVICE PROVIDED BY EA, APPLE OR ANY AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
4. Limitation of Liability. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL EA, ITS SUBSIDIARIES OR ITS AFFILIATES BE LIABLE TO YOU FOR ANY PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER FORM OF DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES FROM ANY CAUSES OF ACTION ARISING OUT OF OR RELATED TO THIS LICENSE OR THE APPLICATION, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY OR OTHERWISE, WHETHER OR NOT EA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. SOME JURISDICTIONS DO NOT ALLOW A LIMITATION OF LIABILITY FOR DEATH, PERSONAL INJURY, FRAUDULENT MISREPRESENTATIONS OR CERTAIN INTENTIONAL OR NEGLIGENT ACTS, OR VIOLATION OF SPECIFIC STATUTES, OR THE LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. In no event shall EA’s total liability to you for all damages (except as required by applicable law) exceed the amount actually paid by you for the Application.
5. Limitation of Liability and Disclaimer of Warranties are Material Terms of this License. You agree that the provisions in this License that limit liability are essential terms of this License.
6. Severability and Survival. If any provision of this License is illegal or unenforceable under applicable law, the remainder of the provision shall be amended to achieve as closely as possible the effect of the original term and all other provisions of this License shall continue in full force and effect.
7. U.S. Government Restricted Rights. If you are a government end user, then this provision applies to you. The Application provided in connection with this License has been developed entirely at private expense, as defined in FAR section 2.101, DFARS section 252.227-7014(a)(1) and DFARS section 252.227-7015 (or any equivalent or subsequent agency regulation thereof), and is provided as “commercial items,” “commercial computer Application” and/or “commercial computer Application documentation.” Consistent with DFARS section 227.7202 and FAR section 12.212, and to the extent required under U.S. federal law, the minimum restricted rights as set forth in FAR section 52.227-19 (or any equivalent or subsequent agency regulation thereof), any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by this License and shall be prohibited except to the extent expressly permitted by this License.
8. Injunctive Relief. You agree that a breach of this License will cause irreparable injury to EA for which monetary damages would not be an adequate remedy and EA shall be entitled to seek equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages.
9. Governing Law. If you reside in a Member State of the European Union: (i) the laws of England, excluding its conflicts-of-law rules, govern this Terms of Service and your Account(s); and (ii) you expressly agree that exclusive jurisdiction for any claim or action arising out of or relating to your Account(s) or your use of EA Services shall be the Courts of England, and you expressly consent to the exercise of personal jurisdiction of such courts. If you reside elsewhere: (i) the laws of the State of California, excluding its conflicts-of-law rules, govern this Terms of Service and your Account(s); and (ii) you expressly agree that, to the extent applicable pursuant to Section 11, below, jurisdiction for any claim or action arising out of or relating to your Account(s) or your use of EA Services shall be the federal or state courts that cover San Mateo County, California, and you expressly consent to the exercise of personal jurisdiction of such courts. Please note that your conduct may also be subject to other local, state, national, and international laws. The parties agree that the UN Convention on Contracts for the International Sale of Goods (Vienna, 1980) shall not apply to this License or to any dispute or transaction arising out of this License.
10. Export. You agree to abide by U.S. and other applicable export control laws and agree not to transfer the Application to a foreign national, or national destination, which is prohibited by such laws, without first obtaining, and then complying with, any requisite government authorization. You certify that you are not a person with whom EA is prohibited from transacting business under applicable law.
11. Dispute Resolution By Binding Arbitration.
PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.
A. Most of your concerns can be resolved quickly and to your satisfaction by logging into the EA customer support interface with your Account at https://help.ea.com. In the unlikely event that EA cannot resolve a concern to your satisfaction (or if EA cannot resolve a concern it has with you after attempting to do so informally), then you and EA agree to be bound by the following procedure to resolve any and all disputes between us. This provision applies to all consumers to the fullest extent allowable by law, but expressly excludes residents of Quebec, Russia and the Member States of the European Union. This agreement is intended to be interpreted broadly. It covers any and all disputes between us (“Disputes”), including without limitation:
(a) claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; The only disputes that are not covered by this Section are the following:
(b) claims that arose before this Agreement or any prior agreement (including, but not limited to, claims relating to advertising);
(c) claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and
(d) claims that may arise after the termination of this Agreement.
1) a claim to enforce or protect, or concerning the validity of, any of your or EA’s (or any of EA’s licensors’) intellectual property rights;
2) a claim related to, or arising from, allegations of theft, piracy, or unauthorized use;
3) In addition, nothing in this Agreement shall prevent either party from initiating a small claims court action.
By entering into this Agreement, you and EA expressly waive the right to a trial by jury or to participate in a class action. With respect to this Section 16, References to "EA," "you," and "us" include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or Software under this or prior agreements between us. This EULA evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this Section. This arbitration provision shall survive termination of this EULA.
B. Informal Negotiations/Notice of Dispute. You and EA agree to first attempt to resolve any Dispute informally before initiating arbitration. Such negotiations commence upon receipt of written notice from one person to the other (“Notice of Dispute”). Notices of Dispute must: (a) include the full name and contact information of the complaining party; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought ("Demand"). EA will send its Notice of Dispute to your billing address (if you provided it to us) or to the email address you provided to us. You will send your Notice of Dispute to: Electronic Arts Inc., 209 Redwood Shores Parkway, Redwood City CA 94065, ATTENTION: Legal Department.
C. Binding Arbitration. If you and EA are unable to resolve a Dispute through informal negotiations within 30 days after receipt of the Notice of Dispute, either you or EA may elect to have the Dispute finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Rules and, where appropriate, limited by the AAA Consumer Rules. If such costs are determined by the arbitrator to be excessive, or if you send EA a notice to the Notice of Dispute address above indicating that you are unable to pay the fees required to initiate an arbitration, then EA will promptly pay all arbitration fees and expenses. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator shall make a decision in writing, and shall provide a statement of reasons if requested by either party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. You and EA may litigate in court to compel arbitration, to stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
D. Restrictions. You and EA agree that any arbitration shall be limited to the Dispute between EA and you individually. To the full extent permitted by law: (a) no arbitration shall be joined with any other arbitration proceeding; (b) there is no right or authority for any Dispute to be arbitrated on a class action-basis or to utilize class action procedures; and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AND EA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and EA agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this dispute resolution/arbitration provision shall be null and void.
E. Location. If you are a resident of the United States, arbitration will take place at any reasonable location convenient for you. For residents outside the United States, arbitration shall be initiated in the County of San Mateo, State of California, United States of America, and you and EA agree to submit to the personal jurisdiction of that court, in order to compel arbitration, to stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
F. Recovery and Attorneys’ Fees. If the arbitrator rules in your favor on the merits of any claim you bring against EA and issues you an award that is greater in monetary value than EA's last written settlement offer made before final written submissions are made to the arbitrator, then EA will:
(a) Pay you 150% of your arbitration award, up to $5,000 over and above your arbitration award; and
(b) Pay your attorney, if any, the amount of attorneys' fees, and reimburse any expenses (including expert witness fees and costs) that you or your attorney reasonably accrues for investigating, preparing, and pursuing your claim in arbitration ("the attorney premium").
The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees, expenses, and the alternative payment and the attorney premium at any time during the proceeding and upon request from either party made within fourteen (14) days of the arbitrator's ruling on the merits.
The right to attorneys' fees and expenses discussed above supplements any right to attorneys' fees and expenses you may have under applicable law, although you may not recover duplicative awards of attorneys' fees or costs. EA waives any right it may have to seek an award of attorneys’ fees and expenses in connection with any arbitration between us.
G. Limitation on Arbitrator’s Authority. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim.
H. Changes to Agreement. Notwithstanding any provision in this Agreement to the contrary, we agree that if EA makes any future change to this arbitration provision (other than a change to the Notice of Dispute address), you may reject any such change by sending us written notice within thirty (30) days of the change to the Notice of Dispute address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this provision.
12. Entire Agreement. This License constitutes the entire agreement between you and EA with respect to the Application and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this License will be binding unless made in writing and signed by EA. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of any other right hereunder. In the event of a conflict between this License and any applicable purchase or other terms, the terms of this License shall govern.