These Foozle LLC Terms and Conditions of Use (“Terms of Use”) comprise a legal agreement between Foozle LLC (“Foozle”, “Company”, “we”, or “our”) and you, the person, who has legal capacity to enter contracts (“you”), accessing and/or using the Foozle LLC software (“Software”). These Terms of Use set forth the legally binding terms and conditions for the use of the Software that is owned, operated and maintained, directly or indirectly, by Foozle LLC, and all other sites owned and operated by Foozle LLC that redirect to the Software, all subdomains provided through such other sites or the Software, and all downloadable applications, features, functionality, content or information that is made available or provided on this Software.

BY USING THE SOFTWARE, YOU ARE DEEMED TO HAVE READ AND ARE INDICATING YOUR ACCEPTANCE OF, YOUR AGREEMENT TO BE BOUND BY, AND YOUR LEGAL CAPACITY TO BE BOUND BY, THE TERMS AND CONDITIONS OF THESE TERMS OF USE WHICH SHALL GOVERN YOUR ACCESS AND USE OF THE SOFTWARE.

IF YOU DO NOT AGREE WITH ONE OR MORE OF THESE TERMS OF USE YOU MAY NOT ACCESS OR USE THE SOFTWARE AND MUST EXIT THE SOFTWARE.

In consideration of the mutual promises and agreements contained in these Terms of Use and other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), you and Foozle LLC agree as follows:

1.     Purpose and Software Services

The Software is made available to you for the purpose of providing you with information and temporary access to gaming software for your entertainment. From time to time, the Software may provide certain services (each a “Service”), which Services may be subject to the acceptance of the terms and conditions of use specific to that Service (“Service Terms”) and all other operating rules, policies, and procedures that may be published on the Software by Foozle LLC from time to time and which will be made known to you prior to your use of any such Services. You understand and agree that any and all Service Terms apply in addition to, and do not replace, these Terms of Use. In the event of any inconsistency between these Terms of Use and any applicable Service Terms, these Terms of Use shall prevail, but only to the extent of such inconsistency and only when governing the use of the applicable Service. Foozle LLC reserves the right to change the Software or change, eliminate or interrupt any of the Services for any reasons whatsoever.

2.     Acceptance and Modification of Terms

The Software and Services are offered subject to acceptance of all of the terms and conditions contained in these Terms of Use. Foozle LLC reserves the right to modify or replace the Terms of Use, including sections 1 to 30. Should Foozle LLC wish to modify or replace these Terms of Use, it may provide you with notice of such changes by posting an icon on the Software indicating the change and timing of changes coming into force. If you use the Software after any such modification or replacement, you are deemed to have read and are indicating your acceptance of, and you agree to be bound by, the modified or replaced terms of use, which modified or replaced terms of use shall be the Terms of Use.

3.     Minors

The Software and Services are not marketed or directed toward children or any person under the greater of: the age of 18 or the age of majority in the jurisdiction where you reside (the “Majority Age”). Children or any person under the Majority Age may use the Software and Services only with the involvement and consent of a parent or guardian. Such parent or guardian shall be the person deemed to be accessing and using the Software and Services and the proper contracting party under these Terms of Use. Such parent or guardian is deemed to have read, and agrees to be bound by, these Terms of Use.

4.     Registering for the Software Account

If you enroll in Foozle LLC’s Services and consent to use the Software, you may have the option to create a profile on the Software that saves your Personal Information (as defined herein) (“Software Account”), which will be managed in accordance with Foozle LLC’s information management policies and procedures including those pertaining to the collection, use and disclosure of Personal Information (as defined herein). Features and functions of the Software and Foozle LLC’s policies and procedures for information handling may change without notice and it is your responsibility to ensure that you understand how to use the Software in accordance with these updated policies and procedures.

Your Software Account will be password protected and only you will have access to the Software using this account. Your Software Account consists of an online Email address (“Email”), Username (“Username”, “Display Name“) and a password (“Password”). In order to receive a Software Account, you agree (i) to provide, true, accurate, current and complete information as prompted by a registration form about you and/or the individual for whom you are creating the Software Account; and (ii) to maintain and promptly update such information to ensure it remains true, accurate, current and complete. If Foozle LLC has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Foozle LLC has the right to suspend or terminate your Software Account and your access to all or part of the Software.

To access and use certain features of the Software, you will need to provide Foozle LLC with certain current, complete, and accurate information, your email address, and any other data or information that has been requested by Foozle LLC and provided by you to Foozle LLC.

In these Terms of Use, “Personal Information” means any information about an identifiable individual, such as your first name, last name, and other names that identify you, your email address, any data about you that you elect to provide electronically through the Software, and any other information that identifies who you are. Personal Information will be used by Foozle LLC solely in accordance with these Terms of Use and Foozle LLC’s Privacy Policy (the “Privacy Policy”).

You are responsible for maintaining the confidentiality of the Password you use in association with your Software Account and are responsible for all activities that occur under your Username and Password. You agree to notify Foozle LLC immediately of any unauthorized use of your Username and/or Password or any other breach of security, and to ensure that you log out from your Software Account at the end of each session. Foozle LLC will not be liable for any loss or damage arising from your failure to protect your Username or Password from loss or inappropriate use.

5.     Content

The Software may include images, text, works, visual files, audio files, sounds and other content, data, and services that are owned by third parties (“Third Party Content”). You agree that all of the terms and conditions of these Terms of Use relating to the Software apply to your access to and use of any Third Party Content and you further agree to comply with any terms and conditions that are specific to the Third Party Content, including the terms and conditions specified under these Terms of Use. Foozle LLC is not responsible, and assumes no liability, for any Third Party Content. Without limiting the generality of the foregoing, Foozle LLC uses the following Third Party Content on the Software:

• Xsolla, a payment services company, providing game developers and publishers with payment, billing, distribution, and marketing tools, owned by Xsolla (USA), Inc., whose terms can be found here or at https://xsolla.com/terms-of-service;

• Discord, a Voice over Internet Protocol (VoIP), instant messaging, and digital distribution platform, owned by Discord Inc., whose terms can be found here or at https://discord.com/terms;

• Playfab, is a LiveOps back-end platform for building and operating live games which is owned by Microsoft Corporation, whose terms can be found at https://playfab.com/terms/;

All content and data made available by Foozle LLC through the Software, including any Third Party Content, (the “Foozle LLC Content”) is protected by copyright law and owned solely and exclusively by Foozle LLC and/or third parties. You may not: (a) publish, publicly perform or display, or communicate to the public or otherwise distribute to any third party any of the Foozle LLC Content; (b) market, sell, re-sell or make commercial use of the Software or any Foozle LLC Content; (c) systematically collect from the Software and use any Foozle LLC Content, including the use of any data mining, robots, or similar data gathering and extraction methods; or (d) make derivative uses of the Software or the Foozle LLC Content.

If you make any information, data or content available to Foozle LLC, including by contacting Foozle LLC, or providing comments or ideas about Foozle LLC’s Services or the Software (“User Content”), you are deemed to grant Foozle LLC a non-exclusive, transferable, sub-licensable, irrevocable, royalty-free, perpetual, worldwide license to store, use, copy reproduce, modify, adapt, edit, translate, publish, perform and display any such User Content that you make available on, through, or in connection with the Software without any payment or restriction. You are solely responsible and liable for any User Content you make available on or through the Software or that is made available using your Software account. If you make User Content available, you represent that you have the right to do so. You may not post violent, nude, partially nude, obscene, discriminatory, unlawful, infringing, hateful, pornographic, or sexually suggestive User Content on or through the Software. Foozle LLC may remove any User Content that the Foozle LLC deems objectionable. You understand and agree that Foozle LLC cannot and will not be responsible for the User Content and you use the Software at your own risk.

6.     Copyright and Limited License

Foozle LLC hereby grants you a limited, non-transferable, non-exclusive, non-sub-licensable and revocable right and license to (a) access the Software and the Foozle LLC Content for the purpose of receiving the Services in accordance with these Terms of Use and (b) access, view and print any information and documentation made available on the Software and the Foozle LLC Content, only to assist you in the access and use of the Software and the Services. Except for the limited licenses and rights expressly granted to you in the Terms of Use, these Terms of Use do not grant you any other right or license, including modification, transmission, presentation, distribution, republication, or other exploitation of the Software or of its Content, whether in whole or in part, whether express or implied, by estoppel, or otherwise in or under any patent, trademark, copyright, or other intellectual property or proprietary right of Foozle LLC or any third party. Foozle LLC may terminate this license at any time for any reason whatsoever. You must also abide by any additional requirements governing the use of any special Content that may be set out in the Software.

7.     Suspension, Termination of Access, and Closing of Accounts

Access to and participation in the Software is entirely voluntary. You may discontinue your participation in the Software at any time by notifying Foozle LLC. Should you discontinue your participation in the Software, or if your access to the Software is discontinued or terminated for any reason, your Software Account Username and Password will be deactivated. Where a Software Account holder decides to discontinue participation in the Software, access by all Software Users linked under that Software Account will be terminated and their Usernames and Passwords deactivated.

Foozle LLC may suspend or terminate your access to the Software immediately without prior notice and without further obligation or liability to you if, in Foozle LLC’s sole, absolute, and unfettered discretion, we determine you have breached these Terms of Use. Foozle LLC may also suspend your access to the Software or terminate these Terms of Use at any time without written notice to you for any reason whatsoever. If the Terms of Use are terminated for any reason, you are still bound by the Terms of Use as set out herein. Foozle LLC has no liability of any kind or any nature whatsoever to you solely by reason of any change, modification, suspension or discontinuance of the Software or any or all of the Services in accordance with its terms. You agree that you shall not make any claim against Foozle LLC, including with respect to any lost revenue, profits or opportunities as a result of such change, modification, suspension or discontinuance or on account of any expenditures made or actions taken in reliance on the expected continuation of the Software, the Services or these Terms of Use.

The disclaimers, limitations on liability, termination, interpretative provisions, and your warranties and indemnities contained in these Terms of Use apply to the maximum extent permitted by law. You may have other statutory rights. However, the duration of statutorily required warranties, if any, will be limited to the maximum extent permitted by law. Furthermore, nothing herein shall be construed as Foozle LLC’s agreement to the application of any such statutes conferring any such rights.

To the extent permitted by applicable law, the disclaimers, limitations on liability, termination, interpretative provisions, and your warranties and indemnities shall survive any termination of these Terms of Use. Foozle LLC shall not be required to refund to you any amounts prepaid, if any, for use of the Software or any Services if Foozle LLC has terminated your account or your use of, or access to, the Software and/or any of the Services for breach of these Terms of Use. Foozle LLC may also terminate your access to the Software without notice at any time for any reason whatsoever, and any fees or charges paid by you in advance, if any, shall be refunded on a pro rata basis.

8.     Use Restrictions

You agree that when using the Software you will not: (a) transmit any files which contain viruses, worms, Trojan horses or other code that manifests contaminating or destructive properties; (b) transmit data or content which violates or infringes any third party rights, is false, misleading or inaccurate or is injurious to a third party or defames, libels or disparages any third party; (c) to the maximum extent permitted by applicable law, interfere with or circumvent any copyright or other technical protection mechanism or reverse engineer, decompile, disassemble, or otherwise in any manner deconstruct all or any part of the Software or any software or technology or content forming part thereof; (d) transmit data which constitutes unsolicited or unauthorized advertising or promotional material or any junk mail, spam, or chain letters; (e) transmit data or content which would be considered a criminal offence, give rise to civil liability, or would otherwise violate the law; (f) use the Software or Services to harvest addresses, send spam or otherwise breach these Terms of Use or the Privacy Policy; (g) use any spider, robot or other automated or electronic agent to monitor or copy web pages or any content from the Software or for any other purpose in connection with your access to and use of the Software; (h) take any action or use any program or device that may result in or is intended to interfere with the operation and functioning of the Software or to shut down, overload or overwhelm the Software; (i) copy, republish or redistribute any part of the Software, including by caching, framing or similar means, without the prior written consent of Foozle LLC; or (j) transmit any data or content that could be considered personally-identifiable information or personal health information.

9.     Electronic Notices

Foozle LLC will send you notifications, alerts and other communications by email (at the email address provided on your Software Account) and/or through the Software, including:

• Alerts and requests for information in relation to identity theft and other fraud or security-related activities;

• Requests for information that may be required in connection with Foozle LLC’s legal obligations;

• Notifications containing legal disclosures;

• Communications arising from all manner of legal actions, causes of action, complaints, claims, applications to administrative tribunals, legal demands or otherwise;

• Notifications of corporate actions that require your attention;

• Alerts providing you with reminders or Account-related instructions; and

• Other Account-related alerts requested by you.

You agree that receipt of these notifications, alerts and other communications by email as determined by Foozle LLC is a mandatory and integral part of your Account.

10.   Risks of Using Email

The security of email messages is not guaranteed. Messages sent to, or from, Foozle LLC may be seen by others using the Internet. Email is easy to forge, may be accidentally forwarded, and may exist indefinitely. For this reason, it is recommended that you do not use email to discuss information you think is sensitive. If you decide to use email, please inform Foozle LLC if there are certain types of information that you do not want to discuss by email and an alternative communication method will be provided.

11.   Rules Governing Postings Made to the Software

The Software may provide features which allow you to participate in discussion groups, to communicate with Foozle LLC, its agents and other third party users and to otherwise post/upload/communicate information, files, documents, or other materials (“Postings”). Foozle LLC does not control the content of any Posting and has no obligation to monitor any Posting. While Foozle LLC may attempt to delete insulting, offensive or inaccurate Postings, it cannot prevent them from being uploaded and is not responsible for their content or any damages resulting therefrom. However, Foozle LLC reserves the right at all times to disclose any information necessary to satisfy any law, regulation, or governmental or law enforcement request, or to edit, refuse to upload or to remove any Posting, in whole or in part, that, in Foozle LLC’s sole, absolute, and unfettered discretion, are objectionable, inaccurate, misleading or in violation of these Terms of Use. For greater certainty, Foozle LLC will fully cooperate with any legal obligation to disclose the identity of anyone posting threatening, libelous, obscene, pornographic, profane or otherwise offensive or illegal materials. You acknowledge that you alone are responsible for the content of Postings to the Software and the consequences thereof.

The Software is used by multiple users and we ask each that each user respect the rights of each other user of the Software. It is a condition of your use of the Software that you do not:

• Restrict or inhibit another user from using and enjoying the Software, interfere or attempt to interfere with the proper workings of the Software or do anything which, in the sole, absolute, and unfettered discretion of Foozle LLC, imposes an unreasonable or disproportionately large burden on the Software infrastructure;

• Post or transmit any unlawful, abusive, defamatory or obscene information of any kind, including, without limitation, any information constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any applicable law;

• Post or transmit any information, including, without limitation, articles, images, stories, software, or other material, which violates or infringes upon the rights of others, including material which is an invasion of privacy or publicity rights, or which is protected by any intellectual property rights, including, without limitation, copyright, patent, trade secret, trademark, or other proprietary rights herein or derivative works with respect thereto, without first obtaining permission from Foozle LLC or rights holder;

• Post or transmit any information or material which contains a virus or another harmful component;

• Post or transmit “junk mail”, “chain letters”, unsolicited mass mailing or “spam”;

• “Mine” or otherwise use the Software for commercial purposes, including, without limitation, posting, or transmitting any information or material which contains advertising, which engages in commercial activities, solicitations or sales, or which involves contests, sweepstakes, advertising and pyramid schemes; or

• Engage in any other behavior in connection with the Software which Foozle LLC in its sole, absolute, and unfettered discretion determines is objectionable.

Subject to any applicable law, any Postings made using this Software or otherwise made to Foozle LLC are made on a non-confidential basis. Any data contained in the Postings in which all personal identifiers have been removed, such that the information could not reasonably be used to identify the individual, is non-confidential information. Foozle LLC is under no obligation to refrain from reproducing, publishing or otherwise using them, and may use them, in any way or for any purpose. You agree to not assert any ownership right of any kind in such communications (including, without limitation, copyright, trademark, patent, unfair competition, moral rights, or implied contract) and you hereby grant a royalty-free, perpetual, non-exclusive, irrevocable, unrestricted, worldwide license to Foozle LLC to use, copy and display all Postings, and waive the right to receive any financial or other consideration in connection with such Postings including, without limitation, acknowledgement of yourself as the source of such Postings.

12.   Privacy of Personal Information

At the time of Software Account registration on the Software, by accepting these Terms of Use you provide Foozle LLC with your express consent to collect, use and dispose of Personal Information that you provide to Foozle LLC in accordance with our Privacy Policy, for the purpose of providing you, and any person you authorize, with consolidated online access to the Software.

You can permanently remove Personal Information from your Software Account at any time. In case you want to recover the deleted information, Foozle LLC may be able, at its sole, absolute, and unfettered discretion, to retrieve a back-up copy of the Personal Information which was stored on the Software for up to 30-days after you instruct the Software to delete this information. Otherwise, Personal Information, including any that was paid for through the use of the Software, are permanently removed from the Software and must be recreated on the Software or repurchased.

In the event that you save, print, fax, or transmit copies of your Personal Information from the Software (“Downloaded Information”), you are responsible for maintaining the privacy and security of this information. Foozle LLC will not be liable for loss, theft, or any consequences arising from misuse of Downloaded Information.

Any Personal Information placed on the Software or otherwise provided to Foozle LLC, in which all personal identifiers have been removed, such that the information could not reasonably be used to identify the individual, is not considered confidential information (“De-Identified Information”). You agree that in the event you delete Personal Information from the Software, Foozle LLC may maintain a copy in the form of De-Identified Information. Foozle LLC is under no obligation to refrain from reproducing, publishing or otherwise using this De-Identified Information, and may use them, in any way or for any purpose. You agree to not assert any ownership right of any kind on such information (including, without limitation, copyright, trademark, patent, unfair competition, moral rights, or implied contract) and you hereby grant a royalty-free, perpetual, non-exclusive, irrevocable, unrestricted, worldwide licence to Foozle LLC to use, copy and display all De-Identified Information, and waive the right to receive any financial or other consideration in connection with such De-Identified Information.

13.   Cookies and Computer Data

You agree that Foozle LLC has the right to monitor and review your use of the Software and Services from time to time, and to access, collect, store, and use your Internet Protocol address (IP address), type of device, device specifications (including but not limited to operating system (OS), central processing unit (CPU), graphics processing unit (GPU) models, display resolution, and current battery level), and log files for the purpose of your access to and participation in the Software, in accordance with the Privacy Policy.

14.   Support

Foozle LLC may in its discretion, without any obligation to do so and subject to the limitations of these Terms of Use (or as may be posted on the Software from time to time), provide you with troubleshooting support concerning your use of the Software and any Services.

15.   Fees and Refund Policy

Any fees payable to Foozle LLC for services are in American dollars and considered final payments. If and where Foozle LLC invoices you for the Software or any Services, any additional payment terms are stated: at the point of sale, including via a third-party; in your agreement with Foozle LLC; on the invoice; or in any other place or medium or media in connection with the provision of any such Services. You agree that you are bound to pay to Foozle LLC all of the foregoing fees immediately upon receipt of any such invoice. No refunds will be given on fees paid except at the sole, absolute, and unfettered discretion of Foozle LLC.

You agree that no refunds will be given on fees paid except at the sole, absolute, and unfettered discretion of Foozle LLC. Accordingly, you agree that it is a breach of these Terms of Use if you file for, request, or obtain a chargeback from any third party, including but not limited to from any credit card provider, payment gateway, or financial institution, of any fees payable or paid to Foozle LLC (“Chargeback Event”).

In the event of a Chargeback Event, you agree to pay to Foozle LLC as liquidated damages for this breach of these Terms of Use the sum of: i.) the greater of the original purchase price and any amount that you recover; and ii.) our actual costs paid to any third party, including but not limited to from any credit card provider, payment gateway, or financial institution, in connection with the Chargeback Event; and iii.) the value of the time that our owners, directors, officers, employees, and agents spent in connection with the Chargeback Event as determined in our sole, absolute, and unfettered discretion; and iv.) our actual costs paid to a collections agency in connection with the Chargeback Event; and v.) our reasonable lawyers’/attorneys’ fees, including associated costs, expenses, and disbursements, in connection with the Chargeback Event (the sum being the “Liquidated Damages for a Chargeback Event”).

In the event of a Chargeback Event, Foozle LLC also reserves the right to suspend your Software Accounts. It is at the sole, absolute, and unfettered discretion of Foozle LLC to reverse a Software Account suspension after Liquidated Damages for Chargeback Event has been paid by you to Foozle LLC.

Foozle LLC’s rights and remedies provided in this section 15 in the event of a Chargeback Event are in addition to all other rights and remedies available to Foozle LLC. For greater certainty, and without limiting the generality of the foregoing, Foozle LLC may also rely on sections 7, 17, and 18 in the event of a Chargeback Event.

16.   Software and Services Provided “AS IS”

YOU UNDERSTAND AND AGREE THAT THE SOFTWARE AND THE SERVICES, ANY COMPANY CONTENT AND OTHER INFORMATION, DATA AND MATERIALS AVAILABLE ON THE SOFTWARE OR PROVIDED AS PART OF THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND, EXCEPT TO THE EXTENT EXPRESSLY PROVIDED FOR HEREIN AND PERMITTED UNDER APPLICABLE LAW, COMPANY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES OR CONDITIONS OF ANY KIND OR NATURE WHATSOEVER, WHETHER EXPRESS OR IMPLIED, AND WHETHER ARISING BY STATUTE OR OTHERWISE IN LAW, FROM A COURSE OF DEALING OR USAGE OF TRADE, AND INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS, ANY CONDITION OR WARRANTY OF MERCHANTABILITY, TITLE OR NON-INFRINGEMENT OF THIRD PARTIES RIGHTS AND ANY CONDITION OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.

COMPANY DOES NOT OFFER ADVICE OR RECOMMENDATIONS CONCERNING INFORMATION OR DATA CONTAINED IN ANY SERVICES OR COMPANY CONTENT AND ANY ACTIONS TAKEN, OR FAILURES TO ACT, IN RELIANCE ON ANY COMPANY CONTENT (OR OTHERWISE ON THE SERVICES) BY YOU OR ANY OTHER PERSON IS YOUR SOLE RESPONSIBILITY AND LIABILITY. COMPANY SPECIFICALLY MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SOFTWARE OR ANY OF THE SERVICES (INCLUDING THE PROVISION OF ANY COMPANY CONTENT) WILL BE ACCURATE, RELIABLE, COMPATIBLE WITH YOUR COMPUTER, OR COMPLETE OR WILL BE PROVIDED ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS OR THAT ANY ERRORS CAN OR WILL BE CORRECTED OR THAT ANY SERVICES, COMPANY CONTENT, DATA OR THE RESULTS DERIVED THEREFROM WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS OR THAT THE SOFTWARE AND ITS SERVER ARE FREE OF COMPUTER VIRUSES AND OTHER HARMFUL ELEMENTS.

YOU ACKNOWLEDGE THAT COMPANY DOES NOT CONTROL IN ANY RESPECT ANY INFORMATION, PRODUCTS, OR SERVICES OFFERED BY THIRD PARTIES ON OR THROUGH THE SOFTWARE. EXCEPT AS OTHERWISE AGREED IN WRITING, COMPANY AND ITS AFFILIATES ASSUME NO RESPONSIBILITY FOR AND MAKE NO WARRANTY OR REPRESENTATION AS TO THE ACCURACY, CURRENCY, COMPLETENESS, RELIABILITY OR USEFULNESS OF CONTENT OR PRODUCTS DISTRIBUTED OR MADE AVAILABLE BY THIRD PARTIES THROUGH THE SOFTWARE.

IF YOU ARE DISSATISFIED WITH THE SOFTWARE, THE SERVICES OR WITH ANY OF THE TERMS, CONDITIONS, GUIDELINES, PRACTICES OR POLICIES OF COMPANY IN OPERATING THE SOFTWARE AND IN PROVIDING THE SERVICES YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY SHALL BE TO DISCONTINUE USING THE SOFTWARE AND SERVICES.

17.   Limitation of Liability

UNDER NO CIRCUMSTANCES SHALL ANY OF THE COMPANY, ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, AGENTS AND THIRD PARTY CONTRACTORS, SUPPLIERS AND LICENSORS (COLLECTIVELY THE “COMPANY PARTIES”), BE LIABLE TO YOU, OR TO ANY OTHER PARTY, FOR ANY LOSSES, COSTS OR DAMAGES OF ANY KIND OR NATURE WHATSOEVER THAT ARE SUFFERED OR INCURRED IN ANY CONNECTION WITH THE USE OF (OR THE INABILITY TO USE) THE SOFTWARE, SERVICES, OR ANY COMPANY CONTENT OR THIRD PARTY CONTENT (REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY, INCLUDING FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, EQUITY, STRICT LIABILITY, BY STATUTE OR OTHERWISE AND REGARDLESS OF THE OCCURRENCE OF A FUNDAMENTAL BREACH OR FAILURE OF ESSENTIAL PURPOSE) THAT EXCEEDS, IN THE AGGREGATE, THE AMOUNTS THAT YOU HAVE PAID COMPANY IN RESPECT OF THE SERVICES IN THE 30 DAY PERIOD THAT IMMEDIATELY PRECEDED THE DATE OF YOUR CLAIM OR IF YOU HAVE MADE NO SUCH PAYMENTS TO COMPANY, ONE HUNDRED AMERICAN DOLLARS (USD $100).

IN NO EVENT WHATSOEVER SHALL THE COMPANY PARTIES BE LIABLE FOR ANY SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES OF ANY KIND OR NATURE WHATSOEVER THAT ARE SUFFERED OR INCURRED IN ANY CONNECTION WITH THE USE OF SOFTWARE OR THE PROVISION OF THE SERVICES (INCLUDING IN ANY CONNECTION WITH THE TRANSMISSION OR DOWNLOADING OR STORAGE OF ANY DATA OR SUBMISSIONS TO OR FROM THE SOFTWARE OR THE USE OF, OR RELIANCE ON, ANY COMPANY CONTENT OR OTHER INFORMATION OR DATA CONTAINED ON OR PROVIDED THROUGH THE SOFTWARE OR SERVICES, OR LOSS OF OR DAMAGE TO FILES OR DATA OR ANY COSTS OF RECOVERING OR REPRODUCING ANY FILES OR DATA OR LOSS OF USE OR LACK OF AVAILABILITY OF SERVICES OR ANY BUSINESS INTERRUPTION OR LOSS OF REVENUE OR PROFIT OR ANY OTHER ECONOMIC LOSS WHATSOEVER) HOWEVER CAUSED AND REGARDLESS OF THE FORM OR CAUSE OF ACTION AND WHETHER OR NOT FORESEEABLE, EVEN IF THE COMPANY PARTIES OR ANY OF THEM HAS BEEN INFORMED IN ADVANCE OR OUGHT REASONABLY TO HAVE KNOWN OF THE POTENTIAL FOR SUCH DAMAGES.

THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE AND USE OF THE SOFTWARE, SERVICES AND ANY PROVIDED SUPPORT IS ASSUMED BY YOU.

FOOZLE LLC SHALL NOT BE LIABLE FOR ANY FAILURE TO PERFORM ITS OBLIGATIONS HEREUNDER WHERE THE FAILURE RESULTS FROM ANY CAUSE BEYOND FOOZLE LLC’S REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, MECHANICAL, ELECTRONIC, OR COMMUNICATIONS FAILURE OR DEGRADATION.

NOTHING IN THESE TERMS OF USE IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY WILLFUL ACTS, NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THOSE LIABILITY AND OTHER LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION (IF ANY) WILL APPLY TO YOU AND OUR LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

THE TERMS AND CONDITIONS OF THESE TERMS OF USE THAT LIMIT LIABILITY REFLECT AN INFORMED VOLUNTARY ALLOCATION OF RISK; SUCH ALLOCATION REPRESENTS A MATERIAL PART OF THESE TERMS OF USE. YOU AGREE THAT THE LIMITATIONS OF LIABILITIES SET OUT IN THESE TERMS OF USE ARE FAIR AND REASONABLE IN THE CIRCUMSTANCES AND THAT YOU AND FOOZLE LLC WOULD NOT HAVE ENTERED INTO THESE TERMS OF USE BUT FOR THE APPLICATION OF THE PROVISIONS OF THESE TERMS OF USE THAT LIMIT LIABILITY.

18.   Indemnity

You agree to defend, indemnify, and hold harmless the Company Parties from and against any and all damages (whether direct, indirect, incidental, consequential, punitive, or otherwise), losses, liabilities, and costs and expenses (including, without limitation, legal and accounting fees) alleging or resulting from any and all claims, actions, demands, suits, and proceedings (whether before an arbitrator, court, mediator or otherwise) or investigation made by any third party) relating to or arising out of your: (a) breach of these Terms of Use; (b) access to the Software or use of the Services; and (c) provision of User Content or other disclosure to Foozle LLC of any other information or data and the use of same by Foozle LLC or other Company Party as contemplated hereunder, except to the extent caused by Foozle LLC’s willful misconduct or gross negligence.

19.   Trademarks

All product, brand and company names and logos and trademarks displayed on the Software or used in connection with the Services are the trademarks of Foozle LLC (or its suppliers, partner businesses or third party licensors). Any use of any of the marks appearing on the Software or in connection with the Services without the express written consent of Foozle LLC or the owner of the mark, as appropriate, is strictly prohibited.

20.   Links

Foozle LLC provides links on the Software to other websites or resources, including those operated by parties other than Foozle LLC. These links are provided for your convenience and Foozle LLC is not responsible for the availability of such websites or resources and does not endorse or accept responsibility for the content of such external websites or resources and has no responsibility for or control over the terms of use or privacy policy (if any) of the operators of the external websites or resources. Your access and viewing of any third party websites or resources is conducted at your own risk. You are strongly advised to check the terms of use and the privacy policies of these external websites or resources before making use of them. You acknowledge that Foozle LLC may remove any link to an external website or to resources at any time for any reason whatsoever.

21.   Jurisdiction and Choice of Law

The Software is administered by Foozle LLC from a site that is located in Wisconsin, United States. You acknowledge and agree that your use of the Software and all of the communications, transmissions and transactions associated with the Software and the provision of the Services shall be deemed to have occurred in the State of Wisconsin, United States. You agree that these Terms of Use shall be exclusively governed by, construed and interpreted in accordance with the laws of the State of Wisconsin, United States and the federal laws of the United States applicable therein, and that the law of the State of Wisconsin is the proper law, without regard to conflict of laws rules or to private international law principles. The laws of any other jurisdiction shall not apply to these Terms of Use. You irrevocably attorn to the exclusive jurisdiction of the Courts of the State of Wisconsin in respect of all matters and disputes arising hereunder and you agree that any proceeding, including any motion, hearing, or otherwise, in respect thereof will only be brought before such Court sitting in Milwaukee, Wisconsin and you agree that any proceeding, including any motion, hearing, or otherwise, in respect thereof will only be brought before such Court sitting in Milwaukee, Wisconsin.

If you live outside of the State of Wisconsin, you may also be entitled to the protection of the mandatory consumer protection provisions of your local consumer protection law. However, nothing herein shall be construed as Foozle LLC’s agreement to the application of any such consumer protection laws.

You expressly agree that, in the event that there is a dispute under these Terms of Use and such dispute is to be resolved in a court of law, such dispute shall not be resolved by jury trial and you hereby waive any right to trial by jury.

22.   Entire Agreement

These Terms of Use, together with any applicable Service Terms any documents incorporated by reference herein, constitute the entire agreement between you and Foozle LLC as it relates to the access to, and use of, the Software and Services and the subject matter of these Terms of Use and supersede all prior or contemporaneous agreements, proposals, proof of concepts, understandings, letters of intent, representations, negotiations and discussions, whether written or oral, between Foozle LLC and you. Unless superseded by subsequent written agreement, these Terms of Use will continue to govern the relationship between you and Foozle LLC in respect of the matters contained herein.

23.   Electronic Documents

This electronic document, and all other electronic documents referred to or incorporated herein, will be: (a) deemed for all purposes to be a “writing” or “in writing”, and to comply with all statutory, contractual, and other legal requirements for a writing; and (b) legally enforceable as a signed agreement. A printed version of these Terms of Use and any notice given in electronic form shall be admissible in judicial proceedings or administrative proceedings based upon or relating to these Terms of Use to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You agree to waive any right to object to the introduction of any copy of electronic communications in evidence.

24.   Conformance with Law

In addition to complying with these Terms of Use, you agree to use the Software and Services for lawful purposes only and in a manner consistent with all applicable local, national or international laws and regulations, including all privacy and laws related to Personal Information. The Software and any Services shall not be used where, and to any extent, such use is prohibited by law. Your use of the Software from any location is subject to your compliance with all applicable laws and regulations that may be applicable to you. You agree, and confirm, that your use of the Software is in full compliance with the laws of the jurisdiction(s) to which you are subject, and that you are not prohibited from using the Software due to any restriction whatsoever and that you have obtained all necessary consents and approvals required or reasonably necessary.

25.   Contact/Notices

If you have any questions about the Terms of Use, or need to provide notice to, or communicate with, Foozle LLC under the Terms of Use, please contact Foozle LLC in writing via email address specified below:

E-mail: support@foozle.io

 

Foozle LLC may provide notices or communications to you on the Software and you agree that such notices shall constitute notice to you whether or not you actually access the notice.

26.   Language

It is the express wish of the parties hereto that the Terms of Use and all related documents, including notices and other communications, be drawn up only in English. La volonté expresse des parties aux présentes est que les présentes modalités / ces “Terms of Use” et tous les documents s’y rattachant, y compris les avis et les autres communications, ne soient rédigés qu’en anglais.

27.   Waiver

No delay or omission by Foozle LLC to exercise any right or power it has under these Terms of Use or to object to the failure of any covenant of you to be performed in a timely and complete manner, shall impair any such right or power or be construed as a waiver of any succeeding breach or any other covenant. Any waivers by Foozle LLC must be in writing and signed by an authorized representative of Foozle LLC.

28.   Severability

If any provision of these Terms of Use is held by a court of competent jurisdiction to be invalid or unenforceable in any respect, then the remaining provisions of these Terms of Use, or the application of such provisions to persons or circumstances other than those as to which it is invalid or unenforceable shall not be affected thereby, and each such provision of these Terms of Use shall be valid and enforceable to the extent permitted by law. You agree to negotiate in good faith to replace the invalid or unenforceable provision with a valid and enforceable provision that has the effect nearest to that of the provision being replaced.

29.   Assignment

These Terms of Use are personal to you, and are not assignable, transferable, or sublicensable by you except with Foozle LLC’s prior written consent. Foozle LLC may assign, transfer, or delegate any of its rights and obligations hereunder without your consent.

30.   Interpretation

In these Terms of Use: (a) words denoting the singular include the plural and vice versa; (b) all usage of the word “including” means “including, without limitation,” throughout these Terms of Use; (c) all dollar amounts, if any, are expressed in United States currency unless expressly provided otherwise; (d) the division of these Terms of Use into separate sections, subsections and the insertion of headings is for convenience only and shall not affect the construction or interpretation of these Terms of Use; (e) words or abbreviations which have well-known or trade meanings are used herein in accordance with their recognized meanings; and (f) you and Foozle LLC agree that these Terms of Use shall not be construed in favour of or against any party by reason of the extent to which any party or its professional advisors participated in the preparation of these Terms of Use.

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Posted: October 12, 2022

Last Updated: October 12, 2022

Effective Date: October 12, 2022 (Initial revision)