(Last Updated 2/20/11)
1.1 The terms of this agreement ("Terms of Service") govern the relationship between you and Popsy Interactive Incorporated (hereinafter "Popsy" or "Us" or "We") regarding your use of Popsy’s mobile games, social network and related services, which includes Popsy websites (the "Service"). In this agreement, "Popsy" means Popsy Interactive Incorporated located at 25 Newbridge Road, Suite 208; Hicksville, NY 11801.
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.
You are responsible for any fees, including internet connection or mobile fees that you incur when accessing the Service.
1.5 Subject to your agreement and continuing compliance with these Terms of Service and any other relevant Popsy policies, Popsy grants you a non-exclusive, non-transferable, revocable limited license subject to the limitations in these Terms of Service to access and use the Service using a Popsy supported web browser (such as Microsoft Internet Explorer or Mozilla Firefox) or mobile device solely for your own non-commercial entertainment purposes. You agree not to use the Service for any other purpose. The use for business or commercial purposes is strictly prohibited.
1.7 For various games and other services, you will have the opportunity to use the services of contractors of Popsy. In this case, a separate contract between you and the respective contractor of Popsy shall apply.
2.1 Registration is reserved only for natural persons. Only individuals are accepted as authorized users (no groups, families, life partners, etc.).
2.2 At registration, you will have to provide a player name and a registered e-mail address. You are not entitled to receive a particular player name. The player name may not infringe rights of third parties and may also not offend common decency. Moreover, no e-mail or Web address may be chosen as the player name. You shall ensure that the information provided to Popsy at registration is true and complete.
2.3 The registration is carried out personally. Registration through third parties, especially a third party that registers individual people (ex. registration services and/or entry services) is not permitted.
2.4 The acceptance of a registration request on the Service are confirmed via e-mail. In this e-mail you will receive an activation link. In this case Popsy activates your account through the clicking on such activation link. In some cases the registration process may deviate from this procedure, in which case you will be advised in an appropriate manner.
2.5 Without the explicit consent of Popsy, your user account is not transferable.
2.6 A right to claim registration or activation does not exist. You are only allowed to register once. If you have already registered once, you may not register again, for example, under entry of, changed personal data.
2.7 The following rules govern the security of your account information:
- You shall not share your account information, nor let anyone else access your account or do anything else that might jeopardize the security of your account;
- In the event you become aware of or reasonably suspect any breach of security, including without limitation any loss, theft, or unauthorized disclosure of your login or account information, you must immediately notify Popsy and modify your login information;
- You are solely responsible for maintaining the confidentiality of your login information, and you will be responsible for all uses of the login information, whether or not authorized by you; and
- You are responsible for anything that happens through your account.
2.8 You agree to provide Popsy with all future changes of your registration data, especially a change in your e-mail address, without delay.
2.9 Popsy reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to claims by a third party that a username violates the third party’s rights.
3. USE OF SERVICE
3.1 The following restrictions apply to the use of the Service:
• You shall not create an account or access the Service if you are under the age of thirteen (13) years old;
• You shall monitor your account to restrict use by minors, and you will deny access to children under the age of thirteen (13) years old. You accept full responsibility for any unauthorized use of the Service by minors;
• You shall not have more than one account at any given time, and shall not create an account using a false identity or information, or on behalf of someone other than yourself;
• You shall not create an account or use the Service if you are a convicted sex offender;
• You shall not have an account or use the Service if you have previously been removed by Popsy, or previously been banned from playing any Popsy game or from use of the Service;
• You shall use your account only for non-commercial purposes;
• You shall not use your account to advertise, or solicit, or transmit any commercial advertisements, including chain letters, junk e-mail or repetitive messages (spam or spim) to anyone;
• You shall not use your account to engage in any illegal conduct;
• You shall not rent, lease, sell, trade, gift, bequeath or otherwise transfer your account or any accumulated points, rewards and/or coupons associated with your account to anyone without Popsy’s written permission; and
• You shall not access or use an account which has been rented, leased, sold, traded, gifted, bequeathed, or otherwise transferred from the account creator without Popsy’s permission.
3.2 Any use of the Service in violation of this Section 3 is strictly prohibited, can result in the immediate revocation of your limited license granted by Popsy pursuant to Section 1.5, and may subject you to liability for violations of law. ANY ATTEMPT BY YOU TO DISRUPT OR INTERFERE WITH THE SERVICE INCLUDING UNDERMINING OR MANIPULATING THE LEGITIMATE OPERATION OF ANY POPSY GAME IS A VIOLATION OF POPSY POLICY AND MAY BE A VIOLATION OF CRIMINAL AND CIVIL LAWS.
You agree that you will not, under any circumstances:
• Use the Service in connection with any violation of any applicable law or regulation, or do anything that promotes the violation of any applicable law or regulation;
• Use cheats, exploits, automation software, bots, hacks, mods or any unauthorized third-party software designed to modify or interfere with the Service, or any Popsy game;
• 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 Popsy game;
• Without Popsy’s express written consent, modify or cause to be modified any files that are a part of the Service or any Popsy game;
• Disrupt, overburden, or aid or assist in the disruption or overburdening of (1) any computer or server used to offer or support the Service or any Popsy game environment; or (2) the enjoyment of the Service or any Popsy game by any other person;
• Institute, assist, or become involved in any type of attack, including without limitation distribution of a virus, denial of service attacks upon the Service, or other attempts to disrupt the Service or any other person’s use or enjoyment of the Service or any Popsy game;
• Attempt to gain unauthorized access to the Service, accounts registered to others or to the computers, mobile devices, servers, or networks connected to the Service by any means other than the user interface provided by Popsy, including but not limited to, by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device, or software that is part of the Service;
• Post any information that is abusive, threatening, obscene, defamatory, libelous, or racially, sexually, religiously, or otherwise objectionable or offensive;
• Post any information that contains nudity, excessive violence, or offensive subject matter or that contains a link to such content;
• Attempt to, or harass, abuse, or harm, or advocate or incite harassment, abuse, or harm of another person, group, including Popsy employees, or other users of the Service or Popsy games;
• 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 Popsy employee;
• Without Popsy’s express written consent, use the Service, any Popsy game, or any part thereof for any commercial purpose, including but not limited to, (1) permitting, authorizing, or offering use of the Service, any Popsy game, or any part thereof at any commercial establishment, (2) communicating or facilitating any commercial advertisement or solicitation, or (3) gathering in-game points, rewards, coupons, items or resources for sale or resale;
• Transmit unauthorized communications through the Service, including junk mail, chain letters, spam and any materials that promote malware, spyware and downloadable items;
• Interfere or attempt to interfere with the proper functioning of the Service or connect to or use the Service or any Popsy game in any way not expressly permitted by these Terms of Service;
• Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying software or other intellectual property used to provide the Service or any Popsy game, or to obtain any information from the Service or any Popsy game using any method not expressly permitted by Popsy;
• Copy, modify or distribute rights or content from the Service or any Popsy game, or Popsy’s copyrights or trademarks or use any method to copy or distribute the content of the Service except as specifically allowed in these Terms of Service;
• Solicit or attempt to solicit personal information from other users of the Service or any Popsy game; or
• 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.
4. SPECIFIC TERMS FOR POPSY GAMES
4.1 You are only allowed to have one account per game, unless the game rules explicitly state otherwise. The use of several user accounts is not permitted. Such multi-user accounts can be deleted or banned by Popsy at any time and in its sole discretion.
4.2 You are prohibited from any form of manipulative interference in the Popsy game. In particular, you are not entitled to use measures, mechanisms or software that could interfere with the function or the course of the Popsy game. You may not take measures that may cause an unreasonable or excessive burden on the technical capacity. You are not allowed to block, to rewrite or to modify contents generated by the game administration or to interfere in any other manner with the game.
4.3 The application of advertising suppressing measures is prohibited. It is immaterial whether advertising is deliberately suppressed or generally blocked e .g. by so-called pop-up blockers, or similar.
4.4 The rewards prizes or points for a particular Popsy game will be based on the number of players in the particular Popsy game, and the ad model that supports providing these prizes. There may be situations that arise that Popsy may not be able to facilitate fulfillment of prizes due to unknown circumstances outside of their immediate control.
5. SUSPENSION AND TERMINATION OF ACCOUNT AND SERVICE
WITHOUT LIMITING ANY OTHER REMEDIES, POPSY MAY LIMIT, SUSPEND, TERMINATE, MODIFY, OR DELETE ACCOUNTS OR ACCESS TO THE SERVICE OR ANY POPSY GAMES OR PORTIONS THEREOF IF YOU ARE, OR POPSY 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 OR ANY POPSY GAME, WITH OR WITHOUT NOTICE TO YOU. YOU CAN LOSE YOUR USER NAME AS A RESULT OF ACCOUNT TERMINATION OR LIMITATION, AS WELL AS ANY BENEFITS, PRIVILEGES, ACCUMULATED POINTS ASSOCIATED WITH YOUR USE OF THE SERVICE AND POPSY GAMES, AND POPSY IS UNDER NO OBLIGATION TO COMPENSATE YOU FOR ANY SUCH LOSSES OR RESULTS.
WITHOUT LIMITING POPSY'S OTHER REMEDIES, WE MAY LIMIT, SUSPEND OR TERMINATE THE SERVICE AND USER ACCOUNTS OR PORTIONS THEREOF, PROHIBIT ACCESS TO OUR POPSY GAMES, AND THEIR CONTENT, SERVICES AND TOOLS, DELAY OR REMOVE HOSTED CONTENT, AND TAKE TECHNICAL AND LEGAL STEPS TO PREVENT YOU FROM ACCESSING THE SERVICE IF WE BELIEVE THAT YOU 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 YOUR ACCOUNT IF WE BELIEVE YOU ARE A REPEAT INFRINGER OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
Popsy reserves the right to stop offering and/or supporting the Service or Popsy games or part of the Service at any time, at which point your license to use the Service or a part thereof will be automatically terminated. In such event, Popsy shall not be required to provide refunds, benefits or other compensation to you in connection with such discontinued Service.
Termination of your account can include disabling your access to the Service, any Popsy game, or any part thereof.
You may cancel any account registered to you at any time by following the instructions at www.Popsyinteractive.com.
6.1 Service and Games. The Service and the Popsy games are copyrighted works owned by Popsy. Popsy reserves all rights, including without limitation, all intellectual property rights or other proprietary rights, in connection with the Service and Popsy games.
6.2 Accounts. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN THE ACCOUNT, AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT ALL RIGHTS IN AND TO THE ACCOUNT ARE AND SHALL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF POPSY. POPSY RESERVES THE RIGHT TO TERMINATE ANY ACCOUNT THAT HAS BEEN INACTIVE FOR ONE (1) YEAR. Therefore, points, rewarDs, and/OR coupons accumulated at that time may also be lost. This right is reserved by Popsy.
6.3 Game Points and Other Items. Popsy owns, has licensed, or otherwise has rights to use all of the content that appears in the Service or the Popsy games. 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, the points, rewards and/or coupons appearing or originating as a result of any Popsy game. Popsy prohibits and does not recognize any purported transfers of points, rewards and/or coupons 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 Popsy in writing. Accordingly, you may not trade, sell or attempt to sell Popsy game points, rewards and/or coupons for "real" money, or exchange those items for value of any kind outside of a Popsy game or the Service, without Popsy’s written permission. Any such transfer or attempted transfer is prohibited and void, and will subject your account to termination. Any Popsy game points, rewards and/or coupons which have not been redeemed within three (3) years from the date of award, or during the time period required as set forth in a Popsy game, whichever is less, shall automatically expire (unless Popsy extends such expiration period, in its sole discretion).
6.4 User Content. "User Content" means any communications, images, sounds, and all the material, data, and information that you upload or transmit through a Popsy game or the Service (including through p-mail), or that other users upload or transmit, including without limitation any chat text. By transmitting or submitting any User Content while using the Service, you affirm, represent and warrant that such transmission or submission is (a) accurate and not confidential; (b) not in violation of any laws, contractual restrictions or other third party rights, and that you have permission from any third party whose personal information or intellectual property is comprised in the User Content; and (c) free of viruses, adware, spyware, worms or other malicious code. You hereby grant Popsy 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. To the extent permitted by applicable laws, you hereby waive any moral rights you may have in any User Content.
6.5 Answers to In-Game Questions. Any answers or responses that you submit in connection with any in-game questions shall be owned by Popsy, and Popsy shall have the right to use any such answers and responses as it sees fit, and for any purpose.
7. THIRD PARTY ADVERTISING
8.1 DISCLAIMER OF WARRANTIES. YOU EXPRESSLY AGREE THAT USE OF THE SERVICE AND THE POPSY GAMES ARE AT YOUR SOLE RISK AND ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
WITHOUT LIMITING THE FOREGOING, NEITHER POPSY NOR ITS AFFILIATES OR SUBSIDIARIES, POPSY GAME SPONSORS OR ANY OF THEIR DIRECTORS, EMPLOYEES, AGENTS, THIRD-PARTY CONTENT PROVIDERS, DISTRIBUTORS, LICENSEES OR LICENSORS (COLLECTIVELY, "POPSY PARTIES") WARRANT THAT THE SERVICE OR THE POPSY GAMES WILL BE UNINTERRUPTED OR ERROR-FREE.
8.2 LIMITATIONS; WAIVERS OF LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY ANY APPLICABLE LAW, THE DISCLAIMERS OF LIABILITY CONTAINED HEREIN APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OF, OR INABILITY TO USE, THE SERVICE OR POPSY GAMES UNDER ANY CAUSE OR ACTION WHATSOEVER OF ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION, ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE) AND THAT THE POPSY PARTIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE.
YOU FURTHER SPECIFICALLY ACKNOWLEDGE THAT THE POPSY PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE POPSY PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER USERS OF THE SERVICE OR ANY ADVERTISERS OF POPSY GAMES, AND THAT THE RISK OF THE SERVICE AND OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
UNDER NO CIRCUMSTANCES WILL THE POPSY PARTIES BE LIABLE TO YOU FOR MORE THAN $100.00 IN THE AGGREGATE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THE SECTION MAY NOT APPLY TO YOU.
8.3 Indemnification. You agree to indemnify, save, and hold the Popsy Parties, harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Service or any Popsy games, any violation by you of these Terms of Service, or any breach of the representations, warranties, and covenants made by you herein. Popsy reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Popsy, and you agree to cooperate with Popsy’s defense of these claims. Popsy 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 Section 8 will survive any termination of your Account(s) or of the Service.
9. GOVERNING LAW
9.1 This Agreement and any dispute arising out of or related to it or the Service shall be governed in all respects by the laws of the State of New York as they apply to agreements entered into and to be performed entirely within New York between New York residents, without regard to conflict of law provisions. You agree that any claim or dispute you may have against Popsy must be resolved exclusively by a state or federal court located in New York County, New York. You agree to submit to the personal jurisdiction of the courts located within New York County, New York for the purpose of litigating all such claims or disputes.
10. GENERAL PROVISIONS
10.2 Popsy may publish additional policies related to specific services such as forums, contests or loyalty programs. Your right to use such services is subject to those specific policies and these Terms of Service.
10.7 You acknowledge that the rights granted by Popsy and obligations made under these Terms of Service to Popsy are of a unique and irreplaceable nature, the loss of which shall irreparably harm Popsy and which cannot be replaced by monetary damages alone so that Popsy 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 Popsy games, 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.
10.8 Popsy shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of Popsy, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond Popsy’s control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.