Flu Game LLC Customer Terms and Conditions

These Customer Terms and Conditions (this “Agreement”) are between Flu Game LLC, a Delaware limited liability company (“Flu Game”, “we”, or “us”) and the person or entity agreeing to these terms (“Customer”, “you”, or “your”).  This Agreement governs your use of Flu Game’s competitive video game service platform (the “Platform”).

UPON YOUR: (A) EXECUTION AND DELIVERY OF A SERVICES AGREEMENT THAT INCORPORATES THESE TERMS BY REFERENCE (A “SERVICES AGREEMENT”); AND/OR (B) USE OF THE PLATFORM, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS REVIEWED AND ACCEPTS THIS AGREEMENT.  IF YOU ARE AGREEING TO THIS AGREEMENT AS AN INDIVIDUAL, “CUSTOMER” REFERS TO YOU INDIVIDUALLY.

1. Orders. Subject to the terms and conditions of this Agreement and any Services Agreement, Customer may purchase access to sessions of use of the Platform (collectively, “Sessions”) pursuant to ordering documents signed by us and you (collectively, “Order Forms”).  Customer may increase or decrease the number of Sessions in accordance with the terms of the applicable Order Form.  Customer agrees that its purchases of Sessions under this Agreement or any Order Form are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by us regarding any future functionality or features.  If there is any inconsistency between an Order Form and this Agreement, the Order Form shall govern and control.

2. Fees & Payment.

• You agree to pay Flu Game the then applicable fees for Sessions described in a particular Order Form (collectively, the “Fees”). You hereby authorize Flu Game to charge your designated payment method for all Fees.  We may choose to bill through an invoice, in which case, unless otherwise specified in the Order Form, full payment for invoices issued in any given calendar month must be received by us no later than thirty (30) days following the mailing date of the invoice.  Unpaid amounts are subject to a finance charge of the lower of: (i) one and one-half percent (1.5%) per month on any outstanding balance; or (ii) the maximum rate permitted by law; plus all expenses of collection.  Fees are non-refundable except and to the extent required by law.  You are responsible for providing complete and accurate billing and contact information to Flu Game.  We may suspend or terminate your account and/or your access to the Platform if any Fees are past due.

• Flu Game may change the amount of Fees from time to time upon notice to you.

• You are responsible for all taxes associated with any and all Sessions and/or your use of the Platform other than U.S. taxes based on Flu Game’s net income. We will charge sales or any other required tax.  If you are required to withhold any taxes, you must provide us with appropriate documentation.

• The processing of all Fees is handled by a third-party service provider and is subject to that provider’s terms and conditions. Any information you provide to such third party will be maintained in accordance with its policies, and not ours.  We will not have access to, or store, your personal payment information.

3. Use of Platform and Customer Obligations.

• Subject to the terms of this Agreement, we will use our commercially reasonable efforts to provide to you the access to the Platform.

• You agree to: (i) use the Platform in compliance with this Agreement, any Services Agreement, Flu Game’s standard conduct policies then in effect, and all applicable laws and regulations; and (ii) maintain the confidentiality of all usernames and passwords associated with your account. You further agree to promptly notify Flu Game of any unauthorized use of or access to the Platform.

• You may not, directly or indirectly: (i) rent, lease, distribute, sell, resell, assign, or otherwise transfer your rights to use the Platform; (ii) use the Platform for timesharing purposes or otherwise for the benefit of any person or entity other than for the benefit of Customer; (iii) remove any proprietary notices from any documentation; (iv) publish or disclose to third parties any evaluation of the Platform without our prior written consent; (v) use the Platform for any purpose other than its intended purpose; (vi) interfere with or disrupt the integrity or performance of the Platform; (vii) use the Platform for illegal or dangerous activities; (viii) use the Platform with data that you do not have authority to access; (ix) transmit or disseminate in any manner, including without limitation whether written, oral or electronic, any inappropriate or offensive speech, images or other material, such as pornographic material, material that includes racial, religious, gender, or other slurs, or other material that is offensive or criminal/illegal.

• You are responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Platform, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers, and the like (collectively, “Equipment”). You are responsible for maintaining the security of your Equipment, account, passwords (including, but not limited to, administrative and user passwords), and files, and for all use of your account or Equipment with or without your knowledge or consent.  You agree to promptly update any account or payment information that may change.

4. Account Suspension or Termination; Amendments of Agreement; Modification or Discontinuance of Platform.

• We may suspend or terminate your account if you violate the terms and conditions of this Agreement, any Services Agreement, Flu Game’s standard conduct policies then in effect, all applicable laws and regulations, or use the Platform in a manner that we reasonably believe will cause Flu Game to incur or be subject to any liability whatsoever. We will notify you of the reason for the suspension and if there are obligations you must perform before your access to the Platform is reinstated.

• We may also suspend your use of the Platform in the event of a security emergency (g., use that causes disruption to the Platform or infrastructure, unauthorized third-party use or interference, etc.) or technical problem that interferes with your use of the Platform. We will use commercially reasonable efforts to notify you of any such incidents and efforts to resolve the interruption in access to the Platform.

• In addition to any other remedies it may have, either party may also terminate this Agreement effective immediately upon written notice (or without notice in the case of nonpayment by Customer of any Fees), if the other party materially breaches any of the terms or conditions of this Agreement or any Services Agreement, including, without limitation, the provisions of Section 3(c) You will pay in full for Sessions ordered pursuant to any Order Form up to and including the final day on which access to the Platform is provided to you, and you shall not be entitled to any refund of any Fees paid on or prior to such termination.  All of the provisions of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

• We may, from time to time and without notice to you, update, amend, revise, or modify the provisions of this Agreement. By purchasing any Sessions and/or using the Platform, you agree to be bound by this Agreement, as so updated, amended, revised, or modified at the time of each such purchase and/or use.  If you do not agree to any such updates, amendments, revisions, or modifications, this Agreement will terminate upon your notice to Flu Game.

• We may modify or discontinue the Platform at any time. You acknowledge and understand that there is no guarantee that the Platform or any portion of it will continue to operate or be available for any period of time.  Except as a result of a termination under Section 4(c) above, if we discontinue the Platform, you will receive a prorated refund of any prepaid Fees.

5. Representations and Warranties; Indemnification. You represent, covenant, and warrant that you will use the Platform only in compliance with this Agreement, any Services Agreement, Flu Game’s standard conduct policies then in effect, and all applicable laws and regulations.  You hereby agree to indemnify, defend, and hold harmless Flu Game, its officers, directors, employees, managers, members, partners, agents, contractors, and suppliers, and their respective affiliates, officers, directors, employees, managers, members, shareholders, partners, contractors, and agents, from any and all claims and expenses, including reasonable attorneys’ fees, arising out of your use of the Platform, including, but not limited to, your breach of this Agreement or any Services Agreement.  We may, in our sole discretion, assume the exclusive defense and control of any matter subject to indemnification by you.  The assumption of such defense or control by Flu Game, however, does not excuse any of your indemnity obligations.

6. Disclaimers and Limitation of Liability.

• Disclaimer of Warranties. The Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Flu Game or by third-party providers, or because of other causes beyond Flu Game’s reasonable control, but Flu Game shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled disruption in access to the Platform.  However, Flu Game does not warrant that the Platform will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Platform.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 6(a), THE PLATFORM IS PROVIDED “AS IS” AND FLU GAME DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

• Limitation on Indirect Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT OR ANY SERVICES AGREEMENT, EXCEPT FOR BODILY INJURY OF A PERSON, Flu Game AND ITS AFFILIATES, AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, MANAGERS, MEMBERS, EMPLOYEES, AGENTS, AND CONTRACTORS (INCLUDING, BUT NOT LIMITED TO, ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS) SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY THEORY OF CONTRACT, NEGLIGENCE, OR STRICT LIABILITY FOR: (A) ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY OR LOSS OF BUSINESS; (B) ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) ANY MATTER BEYOND Flu Game’S REASONABLE CONTROL; OR (D) ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO Flu Game DURING THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT Flu Game HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

7. Miscellaneous.

• Any claim arising out of your use of the Platform must be brought in the courts located within the County, City, and State of New York. You herby submit to the personal and exclusive jurisdiction of those courts.

• This Agreement and any Services Agreement comprise the complete and exclusive statement of the mutual understanding of the parties and supersede and cancel all previous written and oral agreements, communications, and other understandings relating to the subject matter hereof. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement, and neither party has any authority of any kind to bind the other party in any respect whatsoever.  If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

• The agreement is governed by the internal laws of the State of New York, without giving effect to principles of conflicts of laws.

• Notices to Flu Game must be sent via first-class mail or overnight delivery to: 5995 E. Grant Road, Suite 200, Tucson, Arizona 85712, and are deemed given when received. Notices to Customer may be sent to the e-mail address associated with Customer’s account and are deemed given when sent.

• A waiver of any breach is not a waiver of any subsequent breach. A waiver is not effective unless pursuant to a writing signed by Flu Game expressly waiving compliance.

• You may not transfer this Agreement, voluntarily or by operation of law, without the written consent of Flu Game. Flu Game may not assign this Agreement without providing notice to Customer.  Any other attempt to transfer or assign is void.

• Except for payment obligations, neither Flu Game nor Customer will be liable for inadequate performance to the extent caused by a condition that was beyond the party’s reasonable control (for example, natural disasters, acts of war or terrorism, riots, labor conditions, governmental actions, and internet disruptions).

• There are no third party beneficiaries to this Agreement.