BLUE FROG WEB SITE TERMS AND CONDITIONS OF USE
January 21st-, 2007Introduction; Your Agreement to these Terms of Use.
Welcome to the Blue Frog Gaming, Inc. (“Blue Frog”) web site – http://www.draftmix.com – and any other web sites or services owned or operated by Blue Frog (the “Draftmix Service”). The following Terms of Use for the Draftmix Service is a legal contract between you, either an individual customer, member or user, in each case meeting the requirements for eligibility in Section below (collectively or individually “Users”), and Blue Frog regarding your use of the Draftmix Service.
BEFORE USING THE DRAFTMIX SERVICE, PLEASE READ CAREFULLY THE FOLLOWING CONDITIONS AND TERMS OF USE.BY REGISTERING FOR AND/OR ACCESSING, BROWSING, AND USING THE DRAFTMIX SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS, INCLUDING ANY ADDITIONAL GUIDELINES, AND ANY FUTURE MODIFICATIONS (COLLECTIVELY, THE “TERMS”). IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, PLEASE IMMEDIATELY TERMINATE YOUR USE OF THE DRAFTMIX SERVICE. THE TERMS ARE VOID WHERE PROHIBITED BY APPLICABLE LAW.
NOTE TO CHILDREN UNDER 13 YEARS OF AGE: THE DRAFTMIX SERVICE IS NOT FOR PERSONS UNDER THE AGE OF 13. If you are under 13 years of age, then please do not use the Draftmix Service.
1. Eligibility. THE DRAFTMIX SERVICE IS NOT AVAILABLE TO INDIVIDUALS OR ENTITIES THAT CAN NOT REPRESENT AND WARRANT THE FOLLOWING. Blue Frog may require you to provide Blue Frog with proof that you are eligible to participate according to this Section prior to receiving a prize.
You hereby represent and warrant that:
i) you are a natural person (corporate entities and similar organizations are not eligible to use the Draftmix Service for any purpose) 18 years of age or older and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in these Terms and to abide by and comply with these Terms.In any case, you affirm that you are over the age of 13, as the Draftmix Service is not intended for children under 13;
ii) you are a citizen or lawful permanent resident of the United States of America and that you have an address in the United States of America;
iii) you are physically located in the United States of America and reside in a jurisdiction in which participation in any Tournament (as defined in Section 5 below) you choose to participate in is not prohibited by applicable law;
iv) YOU ARE NOT A RESIDENT OF ANY OF THE FOLLOWING STATES: ARIZONA, ARKANSAS, DELAWARE, FLORIDA, ILLINOIS, IOWA, LOUISIANA, MARYLAND, MONTANA, TENNESSEE, AND VERMONT;
v) you will abide at all times by these Terms and any Guidelines (as defined in Section 3 below);
vi)you are not an employee, officer, or director (or such person’s Immediate Family Member) of Blue Frog, its parent companies, subsidiaries, and affiliates; or any other person with access to non-public information regarding the operation of any Tournament offered on the Draftmix Service. For purposes of this Section 1 “Immediate Family Member” includes parents, siblings, spouses, children, or any other person permanently residing in the same household with such employee, officer, or director; and
IF YOU DO NOT MEET THE ELIGIBILITY REQUIREMENTS OF THIS SECTION 1, THEN DO NOT USE THE DRAFTMIX SERVICE. In addition to any other rights that Blue Frog may have in law or equity, Blue Frog reserves the right to suspend or terminate the account (and terminate, withhold or revoke any prizes associated with such account) of any purported User of the Draftmix Service that does not meet the foregoing requirements.
2. Privacy Policy. Your privacy is important to Blue Frog Gaming’s Privacy Policy is hereby incorporated into these Terms by reference. Please read this notice carefully for details relating to the collection, use, and disclosure of your personal information.
3. Individual Features and Services. When using the Draftmix Service, you will be subject to any additional posted guidelines or rules applicable to specific services, and features which may be posted from time to time (the “Guidelines”). All such Guidelines are hereby incorporated by reference into the Terms.
4. Modification of the Terms. Blue Frog reserves the right, at its discretion, to change, modify, add, or remove portions of these Terms at any time by posting the amended Terms to the Draftmix Service. Please check these Terms and any Guidelines periodically for changes. Your continued use of the Draftmix Service after the posting of changes constitutes your binding acceptance of such changes. Except as stated elsewhere, such amended Terms or fees will automatically be effective thirty (30) days after they are initially posted on the Draftmix Service.
Certain functions on the Draftmix Service have fees associated with them. When use a service that has a fee you have an opportunity to review and accept the fees that you will be charged based on our stated fees, which we may change from time to time. Draftmix may choose to temporarily change the fees for Draftmix's services for promotional events or new services, and such changes are immediately effective when Draftmix posts the temporary promotional event or new service on the Draftmix Service. Any changes to fees for Draftmix's services that are not temporary or promotional will be effective thirty (30) days after we provide you with notice by posting such changes on the Draftmix Service. Unless otherwise stated, all fees are quoted in U.S. Dollars.
5. Draftmix Service Access. Blue Frog grants you permission to use the Draftmix Service as set forth in these Terms, provided that (i) you use the Draftmix Service solely for your personal, private, noncommercial use; (ii) you do not copy, publicly display or distribute any part of the Draftmix Service in any medium without Blue Frog’s prior written authorization; (iii) you do not alter or modify any part of the Draftmix Service other than as may be reasonably necessary to use the Draftmix Service for its intended purposes; (iv) you do not engage in any of the prohibited uses described in these Terms (including Section 12, below); and (v) you will otherwise fully comply with these Terms.The Draftmix Service is controlled and offered by Blue Frog from its facilities in the United States of America.Blue Frog make no representations that the Draftmix Service is appropriate or available for use in all locations.You are solely responsible for compliance with local law. For clarity, if it is illegal for you to access or use the Draftmix Service in the jurisdiction where you are located, it is a material breach of these Terms for you to do so.
5.1 Definition.
The Draftmix Service allows Users (for clarity, those who meet the requirements in Section 1, above) to participate in online tournaments for prizes in which you draft players for a fantasy team and the performance of fantasy team over a certain period of time determines your score and/or eligibility for a prize (a “Tournament”).
5.2 Limitations on Participation.
YOU MAY ESTABLISH ONLY ONE ACCOUNT PER PERSON, AND ONLY UP TO TWO ACCOUNTS PER COMPUTER OR IP ADDRESS, TO PARTICIPATE IN THE ACTIVITIES OFFERED ON THE DRAFTMIX SERVICE. In the event Blue Frog discovers that you have opened more than one account per person or two accounts per computer or IP address, in addition to any other rights that Blue Frog may have in law or equity, Blue Frog reserves the right to suspend or terminate any or all of your accounts and terminate, withhold or revoke any prizes.
Your account (including but not limited to monies won) is not transferable to any other person. By using the Draftmix Service or registering and/or participating in any Tournament offered on the Draftmix Service, you agree to indemnify, defend, and hold Blue Frog harmless from or for any claims, liability, damages, and/or costs (including attorneys' fees) arising out of or relating to your participation in such Tournament.
Blue Frog may impose dollar amount limitations on the credit card transactions in which you engage to fund your activities on the Draftmix Service. Blue Frog may also impose limitations on the net dollar amount you may lose on the Draftmix Service in any calendar month; should your losses reach the designated limit, your play in the Tournaments offered on the Draftmix Service will be restricted until the beginning of the next play period, to be determined by Blue Frog in its sole discretion. Blue Frog reserves the right to change these dollar amount limitations at any time.
Users who have not yet established a real money account may be restricted in the number and type of Tournaments they may enter.
5.3 Withdrawal Requests.
You may request a withdrawal of funds from your available account balance to a credit card (only in the case if the deposit was made by the same credit card within 60 days prior to such withdrawal), to a PayPal account, or cut to a check mailed to you. The processing of requested funds back to a credit card or PayPal account may take up to 5 business days.
Users are required to actively claim any check produced by a request for withdrawal of funds from their account. Blue Frog reserves the right to assess a check request processing fee of $1.75 for any check request less than $10.00. Users may combine several checks that are less than $10.00 to produce a check greater than $10.00 for purposes of waiving the $1.75 check processing fee. Check requests are systematically processed by Blue Frog’s accounting department approximately twice per month, with checks generally mailed on the 5th and 20th of each month (or the next business day following those dates, if the 5th or 20th fall on a weekend or holiday), provided the withdrawal request was made with a reasonable amount of notice (with the check being deferred until the next processing cycle if sufficient notice was not given).
Any such checks not cashed within one hundred and eighty (180) days from the date of the check will become void. The amount of the check will then be credited back to your account on the Draftmix Service.
5.4 Odds and Prizes.
The results of all Tournaments offered on the Draftmix Service depend on the number of the Users participating in such Tournaments and the skill of the Users in such Tournaments. Prizes are generally cash amounts, which are deposited directly into winners' accounts. The cash value of prizes offered in Cash Competitions (as defined in Section 12, below) will be disclosed at the beginning of such Cash Competitions. In certain circumstances where a User's account is closed by Blue Frog for a violation of these Terms, that User's prizes may be voided and not returned to that User. In such an event, Blue Frog uses such voided prizes to defray the costs of administration and enforcement of these Terms.
5.5 Winners Lists.
Lists of winners will generally be posted on the Draftmix Service following each Tournament, except in the case of Tournaments with substantial (as determined by Blue Frog in its sole discretion) prizes, where lists may be delayed for at least five (5) business days while verification of the results takes place in order to help prevent potential abuse.
5.6 Determination of Winners.
The results and winners of each Tournament offered on the Draftmix Service will be determined by Blue Frog, and such determinations are final. By registering and/or participating in any Tournament, you agree to be bound by these determinations.
5.7 Game Rules. Rules for each specific Tournament offered on the Draftmix Service can be found by clicking on the following link: Game Rules. All Tournaments are subject to individual game rules.
6. Ownership; Proprietary Rights. The Draftmix Service is owned and operated by Blue Frog. The content, visual interfaces, interactive features, information, graphics, design, compilation, computer code, products, software, services, and all other elements of the Draftmix Service that are provided by Blue Frog (“Blue Frog Materials”) are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws.“Blue Frog Materials” do not include User Submissions (as defined in Section 7.1, below) or any other content owned by and submitted by Users to the Draftmix Service. All Blue Frog Materials contained on the Draftmix Service are the copyrighted property of Blue Frog or its subsidiaries or affiliated companies and/or third-party licensors.All trademarks, service marks, and trade names contained in the Blue Frog Materials or on the Draftmix Service are proprietary to Blue Frog or its affiliates and/or third-party licensors.Except as expressly authorized by Blue Frog, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Blue Frog Materials.Blue Frog reserves all rights not expressly granted in these Terms.You shall not acquire any right, title or interest to the Blue Frog Materials, except for the limited rights set forth in this Agreement.
7. User Submissions.
7.1 General. The Draftmix Service may now or in the future permit the submission and posting or linking of pictures, audio and video recordings, text, chat, commentary or any other content submitted by you and other users (“User Submissions”), and the hosting, sharing, and/or publishing of such User Submissions.User Submissions are displayed for entertainment and informational purposes only and are not controlled by Blue Frog.Blue Frog makes no representations that it will publish or use your User Submissions in any way and may or may not use your User Submissions in its sole discretion.You understand that whether or not such User Submissions are published, Blue Frog does not guarantee any confidentiality with respect to any User Submissions.
7.2 Grant of Rights. You shall retain all of your ownership rights in your User Submissions.However, by submitting User Submissions to Blue Frog, you hereby grant Blue Frog and its affiliates a worldwide, non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, sublicenseable, and transferable license to use, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit your User Submissions in connection with the Draftmix Service and Blue Frog’s (and its successor’s) business, including without limitation for promoting and redistributing part or all of the Draftmix Service (and derivative works thereof) in any media formats and through any media channels now known or hereafter discovered.You grant Blue Frog and its affiliates and sublicensees the right to use the name and/or likeness that you submit in connection with such User Submission if they choose.You also agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Submissions.You also hereby grant to each user of the Draftmix Service a non-exclusive license to access your User Submissions through the Draftmix Service, and to use, reproduce, distribute, prepare derivative works of, display, and perform such User Submissions as permitted by the functionality of the Draftmix Service and these Terms. By accepting any prize from Blue Frog, you hereby grant Blue Frog a nonexclusive, perpetual license to print, publish, broadcast and use, worldwide, in any media and at any time, your name, picture, voice, likeness, and/or biographical information for promotional or related purposes without any additional compensation.
7.3 User Submissions Representations and Warranties.You shall be solely responsible for your own User Submissions and the consequences of posting or publishing them.In connection with User Submissions, you affirm, represent, and/or warrant that: (i) you own, or have the necessary licenses, rights, consents, and permissions to use and authorize Blue Frog to use all patent, trademark, copyright, or other proprietary rights in and to any and all User Submissions to enable inclusion and use of User Submissions in the manner contemplated by Blue Frog and these Terms, and to grant the rights and license set forth above, and (ii) your User Submissions, Blue Frog’s use of such User Submissions pursuant to these Terms of Use, and Blue Frog’s exercise of the license rights set forth above, do not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (c) violate any applicable law or regulation.
7.4 User Submissions Prohibited Uses. In connection with your User Submissions, you further agree that you will not: (i) publish falsehoods or misrepresentations that could damage Blue Frog or any third party; (iii) submit material that is unlawful, defamatory, libelous, slanderous, threatening, pornographic, obscene, vulgar, harassing, harmful, hateful, abusive, racially or ethnically offensive or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or any right of privacy or publicity, or is otherwise inappropriate; (iv) post advertisements or solicitations of business; or (v) post User Submissions that would be harmful to minors in any manner.
8. Content Disclaimer. You understand that when using the Draftmix Service, you will be exposed to User Submissions and other content (such User Submissions and other content, collectively, “Content”) from a variety of sources, and that Blue Frog is not responsible for the accuracy, integrity, quality, legality, usefulness, safety, or intellectual property rights of or relating to such Content.You further understand and acknowledge that you may be exposed to Content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Blue Frog with respect thereto. Blue Frog does not endorse any User Submission or other Content or any opinion, recommendation, or advice expressed therein.Under no circumstances will Blue Frog be liable in any way for or in connection with any User Submissions or other Content, including, but not limited to, for any inaccuracies, errors or omissions in any Content, any intellectual property infringement with regard to any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed or otherwise displayed or transmitted via the Draftmix Service.
9. User Submissions: Monitoring Users and Content. You understand that all Content is the sole responsibility of the person from whom such Content originated.This means that you, and not Blue Frog, are entirely responsible for all User Submissions that you upload, post, e-mail, transmit or otherwise make available through via the Draftmix Service.Blue Frog does not control the Content posted by Users or otherwise made available by other persons and does not have any obligation to monitor such Content for any purpose.If at any time, Blue Frog chooses, in its sole discretion, to monitor the Content, Blue Frog nonetheless assumes no responsibility for the Content, no obligation to modify or remove any inappropriate Content, and no responsibility for the conduct of the User submitting any such Content.You acknowledge that Blue Frog may or may not pre-screen User Submissions, but that Blue Frog and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or remove any User Submission that is available via the Draftmix Service.Without limiting the foregoing, Blue Frog and its designees may, at any time and without prior notice, remove any User Submission that in the sole judgment of Blue Frog violates these Terms or is otherwise objectionable.You agree that you must evaluate, and bear all risks associated with the use of any User Submissions or other Content, including any reliance on the accuracy, completeness, usefulness or legality of such User Submission or other Content.
10. Removal of Content.Blue Frog and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is available on the Draftmix Service in whole or in part at any time for any reason or no reason, with or without notice and with no liability of any kind.
11. Prohibited Uses.
11.1 As a condition of your use of the Draftmix Service, you hereby represent and warrant that you will not use the Draftmix Service for any purpose that is unlawful or prohibited (including, without limitation, the prohibitions in this Section 11) by these Terms.Access to the Blue Frog Materials and the Draftmix Service from territories where their access or use thereof is illegal is strictly prohibited.Users are responsible for complying with all local rules, laws, and regulations including, without limitation, rules about intellectual property rights, gaming, the internet, technology, data, email, or privacy.
11.2 Any use by you of any of the Blue Frog Materials and Draftmix Service other than for private, non-commercial use is strictly prohibited.You agree not to reproduce, duplicate, copy, sell, trade, resell, distribute or exploit, any portion of the Draftmix Service, use of the Draftmix Service, access to the Draftmix Service, or Content obtained through the Draftmix Service, for any purpose other than for your personal, private, non-commercial purposes.
11.3You agree not to defame, harass, abuse, threaten, stalk or defraud Users of the Draftmix Service, or collect, or attempt to collect, personal information about Users or third parties without their consent.
11.4 You agree not to intentionally interfere with or damage, impair or disable the operation of the Draftmix Service or any User’s enjoyment of it, by any means, including uploading or otherwise disseminating viruses, worms, spyware, adware or other malicious code.
11.5 You agree not to remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Draftmix Service, features that prevent or restrict the use or copying of any part of the Draftmix Service, or features that enforce limitations on the use of the Draftmix Service.
11.6 You agree not to attempt to gain unauthorized access to the Draftmix Service, or any part of it, other accounts, computer systems or networks connected to the Draftmix Service, or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Draftmix Service or any activities conducted on the Draftmix Service.
11.7 You agree not to obtain or attempt to obtain any materials or information through any means not intentionally made available through the Draftmix Service.You agree neither to modify the Draftmix Service in any manner or form, nor to use modified versions of the Draftmix Service, including (without limitation) for the purpose of obtaining unauthorized access to the Draftmix Service.
11.8 You agree that you will not use any robot, spider, scraper, or other automated means to access the Draftmix Service for any purpose without our express written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Draftmix Service.
11.9 You agree not to utilize framing techniques to enclose any trademark, logo, or other Blue Frog Materials without our express written consent.You agree not to use any meta tags or any other “hidden text” utilizing Blue Frog’s name or trademarks without our express written consent.
11.10 You agree not to deep-link to the Draftmix Service and will promptly remove any links that Blue Frog finds objectionable in its sole discretion.You agree not to use any Blue Frog logos, graphics, or trademarks as part of the link without our express written consent.
11.11 You agree not to make unsolicited offers, advertisements, proposals, or send junk mail or spam to other Users of the Draftmix Service.This includes, but is not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures.
11.12 You agree not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Draftmix Service or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
11.13 You agree not to modify, adapt, translate or create derivative works based upon the Draftmix Service or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
11.14 You agree not to impersonate another person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity.
11.15 You agree not to use the Draftmix Service if you are under the age of eighteen (18) years old or otherwise do not meet the eligibility requirements of Section 1, above.
11.16 You agree not to take any action that may undermine any Tournament, content rating or comment systems (such as displaying, importing or exporting information off the Draftmix Service, using information on the Draftmix Service for purposes unrelated to the Draftmix Service, or improperly manipulating or using the Tournaments, ratings and comment systems)
11.17 You agree not to rent, lease, loan, sell, resell, sublicense, distribute or otherwise transfer any prizes, the licenses granted herein or any Blue Frog Materials.
11.18 You agree not to allow any third party to access your account, access the Draftmix Service through your account, accept any prizes, or participate in any Tournament using your account information.
11.19 You agree not to manipulate, abuse, or display behavior that may be interpreted as the use of unfair methods with respect to any Tournament or the Draftmix Service in any way, including, but not limited to, the opening and/or use of multiple accounts, the use of unauthorized or altered software or hardware to assist play, intentionally poor play in certain games in order to achieve a broader competitive advantage (i.e. “sandbagging”) or deliberately transfer money between accounts (i.e. “money laundering”).
11.20 You agree not to open more than one account per user or two accounts per computer/IP address.
12. Account Information. In order to access some features of the Draftmix Service, you will have to create an account.You hereby represent and warrant that the information you provide to Blue Frog upon registration and, at all other times, will be true, accurate, current, and complete.You also hereby represent and warrant that you will ensure that this information is kept accurate and up-to-date at all times. Knowingly submitting incomplete or inaccurate information may result in immediate termination of your account and forfeiture of any prizes to which you may have otherwise been entitled.You may not allow any other person to access your account, access the Draftmix Service, accept any prizes, or participate in any Tournament using your account information.
Whenever you participate in a Tournament involving money, including without limitation as a prize or a buy-in, (such Tournaments hereafter referred to as “Cash Competitions”) you will be required to submit at least the following information: your full name, permanent residential address, phone number and credit card or other payment information.
You acknowledge, consent and agree that Blue Frog may access, preserve and disclose your account information and User Submission if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to (a) comply with legal process; (b) enforce the Terms; (c) respond to claim that any User Submission violates the rights of third parties; (d) to respond to your requests for customer service; or (e) protect the rights, property or personal safety of Blue Frog, its users and the public.
13. Password When you register you will be asked to provide a password.As you will be responsible for all activities that occur under your password, you should keep your password confidential.You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password.If you have reason to believe that your account is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of your account ID or password), you will immediately notify Blue Frog.You may be liable for the losses incurred by Blue Frog or others due to any unauthorized use of your account.
14. Dealings with Advertisers. Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Draftmix Service are solely between you and such advertiser.YOU AGREE THAT BLUE FROG WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY SUCH DEALINGS OR AS THE RESULT OF THE PRESENCE OF SUCH ADVERTISERS ON THE DRAFTMIX SERVICE.
15. Links and Third Party Content. Blue Frog or third parties may provide links on the Draftmix Service to other sites or content (“Reference Sites”).Blue Frog has no control over such Reference Sites or content, and therefore makes no claim or representation regarding, and expressly disclaims responsibility for, the accuracy, quality, legality, nature, availability or reliability of Reference Sites or content linked to by the Draftmix Service.Blue Frog provides links to you only as a convenience, and the inclusion of any link on the Draftmix Service does not imply our affiliation, endorsement, or adoption of the linked site or any information therein.ACCESS AND USE OF REFERENCE SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON REFERENCE SITES OR AVAILABLE THROUGH REFERENCE SITES, IS SOLELY AT YOUR OWN RISK.When you leave the Draftmix Service, our terms and policies no longer govern.You should review applicable terms and policies, including the privacy and data gathering practices, of any Reference Sites.
16. Availability of Service. Blue Frog may make changes to or discontinue any of the media, web communities, products, or services available within the Draftmix Service at any time, and without notice.The media, products, or services on the Draftmix Service may be out of date, and Blue Frog makes no commitment to update these materials on the Draftmix Service.
17. User Disagreements. You are solely responsible for your involvement with other Users. If you have a dispute with one or more Users, you release Blue Frog (and Blue Frog's officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
18. Terms of Use Violations; Termination.
18.1 Blue Frog. You agree that Blue Frog, in its sole discretion and for any or no reason, may terminate any User or User account (or any part thereof) you may have on the Draftmix Service or your use of the Draftmix Service, and remove and discard all or any part of your account or any User Submission, at any time, with or without notice.Blue Frog may also in its sole discretion and at any time discontinue providing access to the Draftmix Service, or any part thereof, with or without notice. You agree that any termination of your access to the Draftmix Service or any account you may have or portion thereof may be effected without prior notice, and you agree that Blue Frog shall not be liable to you or any third-party for any such termination.Blue Frog does not permit unlawful, infringing, fraudulent or otherwise illegitimate activities on the Draftmix Service, and reserves the right to terminate access to the Draftmix Service, or halt, suspend, or terminate prizes (whether proposed, pending or past) in cases of actual or suspected fraud, violations of these Terms or other laws or regulations.Any suspected fraudulent, abusive, or illegal activity may be referred to appropriate law enforcement authorities.These remedies are in addition to any other remedies Blue Frog may have at law or in equity.
18.2 User. If you are dissatisfied with the Draftmix Service, please let us know.Your input is valuable to us. Your only remedy with respect to any dissatisfaction with (i) the Draftmix Service, (ii) any term of this Terms of Use, (iii) any policy or practice of Blue Frog in operating the Draftmix Service, or (iv) any content or information transmitted through the Draftmix Service, is to terminate this Terms of Use and your account. You may terminate this Terms of Use at any time by closing your account, discontinuing your use of any and all parts of the Draftmix Service, and providing Blue Frog notice of termination at support@draftmix.com.
19. Indemnification; Hold Harmless. You agree to indemnify and hold harmless Blue Frog, and its parent, subsidiaries, affiliates or any related companies (including those which share substantially common ownership), its suppliers, licensors and partners, and the officers, directors, employees, agents and representatives of any of them from any and all claims, losses, obligations, damages, liabilities, costs or debt and expenses (including attorney’s fees) arising out of (i) your use or misuse of the Draftmix Service; (ii) your User Submissions, including Blue Frog’s use, display or other exercise of its license rights granted herein with respect to your User Submissions; (iii) your breach or other violation of these Terms including any representations, warranties and covenants herein; (iv) your violation of the rights of any other person or entity, including claims that any User Submission infringes or violates any third party intellectual property rights.Blue Frog reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims.You agree not to settle any matter without the prior written consent of Blue Frog.Blue Frog will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
20. Disclaimers; No Warranties.
YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION 20, THE TERM BLUE FROG INCLUDES BLUE FROG'S OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, SUPPLIERS, LICENSORS, AFFILIATES AND SUBCONTRACTORS.
20.1 No warranties. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, BLUE FROG, AND ITS AFFILIATES, PARTNERS, AND SUPPLIERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM BLUE FROG OR THROUGH THE DRAFTMIX SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
20.2 “As is” and “As available” and “With All Faults.” YOU EXPRESSLY AGREE THAT THE USE OF THE DRAFTMIX SERVICE IS AT YOUR SOLE RISK.THE DRAFTMIX SERVICE (FOR CLARITY, INCLUDING WITHOUT LIMITATION ANY TOURNAMENTS, INFORMATION, STATISTICS AND OTHER CONTENT PROVIDED BY BLUE FROG THEREIN), USER SUBMISSIONS AND ANY THIRD-PARTY MEDIA, CONTENT, SOFTWARE, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE DRAFTMIX SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED.
20.3 Platform Operation and Content. BLUE FROG, ITS SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT WARRANT THAT THE BLUE FROG MATERIALS, USER SUBMISSIONS, DRAFTMIX SERVICE, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE DRAFTMIX SERVICE OR ANY REFERENCE SITES WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
BLUE FROG MAKES NO REPRESENTATIONS OR WARRANTIES, IMPLICIT OR EXPLICIT, AS TO YOUR LEGAL RIGHT TO PARTICIPATE IN ANY TOURNAMENT OFFERED ON THE DRAFTMIX SERVICE NOR SHALL ANY PERSON AFFILIATED, OR CLAIMING AFFILIATION, WITH BLUE FROG HAVE AUTHORITY TO MAKE ANY SUCH REPRESENTATIONS OR WARRANTIES.
20.4 Accuracy. BLUE FROG, ITS SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE DRAFTMIX SERVICE (FOR CLARITY, INCLUDING WITHOUT LIMITATION ANY TOURNAMENTS, INFORMATION, STATISTICS AND OTHER CONTENT PROVIDED BY BLUE FROG THEREIN) OR ANY REFERENCE SITES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
20.5 Harm to Your Computer. YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE DRAFTMIX SERVICE (INCLUDING RSS FEEDS) OR ANY REFERENCE SITES AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.
21. Limitation of Liability and Damages.
21.1 Limitation of Liability. UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL BLUE FROG OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS OR SUPPLIERS, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, DATA OR USE OR COST OF COVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OR THE INABILITY TO USE THE BLUE FROG MATERIALS AND USER SUBMISSIONS ON THE DRAFTMIX SERVICE OR ANY REFERENCE SITES, THE DRAFTMIX SERVICE ITSELF, OR ANY OTHER INTERACTIONS WITH BLUE FROG, EVEN IF BLUE FROG OR A BLUE FROG AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.IN SUCH CASES, BLUE FROG’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
21.2 Limitation of Damages. IN NO EVENT SHALL BLUE FROG OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS, LICENSORS OR SUPPLIERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE DRAFTMIX SERVICE (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, OR OTHERWISE) EXCEED THE GREATER OF THE AMOUNT OF (A) ONE HUNDRED DOLLARS OR (B) THE AMOUNT OF FEES YOU HAVE PAID BLUE FROG IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY.
21.3 Reference Sites.THESE LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY REFERENCE SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN BLUE FROG AND RECEIVED BY YOU THROUGH OR ADVERTISED ON THE DRAFTMIX SERVICE OR RECEIVED BY YOU THROUGH ANY REFERENCE SITES.
22. Limitations by Applicable Law; Basis of the Bargain.
22.1 Limitations by Applicable Law. CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES.IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THIS TERMS OF SERVICE APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION IN WHICH YOU ARE LOCATED.
22.2 Basis of the Bargain. YOU ACKNOWLEDGE AND AGREE THAT BLUE FROG HAS OFFERED ITS PRODUCTS AND SERVICES, SET IT PRICES AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND BLUE FROG, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND BLUE FROG.YOU ACKNOWLEDGE AND AGREE THAT BLUE FROG WOULD NOT BE ABLE TO PROVIDE THE DRAFTMIX SERVICE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
Any attempt to defraud Blue Frog through the use of credit cards or other methods of payment, regardless of the outcome, or any failure by you to honor legitimate charges or requests for payment will result in immediate termination of your account, forfeiture of any prizes to which you are otherwise entitled, and active pursuit of civil litigation and/or criminal prosecution.
23. Digital Millennium Copyright Act Compliance. It is Blue Frog’s policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act.For more information, please go to Blue Frog’s DMCA Notification Guidelines. Blue Frog will promptly terminate without notice any User’s access to the Draftmix Service if that User is determined by Blue Frog to be a “repeat infringer.”A repeat infringer is a User who has been notified by Blue Frog of infringing activity violations more than twice and/or who has had a User Submission or any other user-submitted content removed from the Draftmix Service more than twice.
You are solely responsible for paying any governmental taxes imposed on your use of the Draftmix Service, including, but not limited to, sales, use or value-added taxes. To the extent Blue Frog is obligated to collect such taxes or send forms to you, the applicable tax or withholding may be debited from your account and the applicable forms shall be sent to you. Blue Frog will request that you provide certain forms and additional information to Blue Frog in order to send you appropriate forms to comply with applicable laws and regulations (including without limitation, as required by Internal Review Service regulations). Failure to provide additional information may result in Blue Frog’s inability to credit your account for certain prizes won AND/or your inability to participate in Tournaments. Notwithstanding the foregoing, you are solely responsible for paying all taxes in accordance with the laws and regulations that apply in your jurisdiction (including without limitation state, province, and/or country of residence).
24. Miscellaneous.
24.1 Notice. Blue Frog may provide you with notices, including those regarding changes to Blue Frog’s Terms, by email, regular mail or postings on the Draftmix Service.Notice will be deemed given twenty-four hours after email is sent, unless Blue Frog is notified that the email address is invalid.Alternatively, we may give you legal notice by mail to a postal address, if provided by you through the Draftmix Service.In such case, notice will be deemed given three days after the date of mailing.
24.2 Governing Law.These Terms shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law.
24.3 Dispute Resolution. Generally. If a dispute arises between Blue Frog and you, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and Blue Frog agree that the parties will resolve any claim or controversy at law or equity that arises out of this Agreement or the Draftmix Service (a "Claim") in accordance with one of the subsections below or as we and you otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation. Choice of Law; Forum. These Terms shall be governed in all respects by the laws of the State of California as they apply to agreements entered into and to be performed entirely within California between California residents, without regard to conflict of law provisions. You agree that any claim or dispute you may have against Blue Frog must be resolved by a court located in Santa Clara County, California, except as otherwise agreed by the parties or as described in the Arbitration Option paragraph below. You agree to submit to the personal jurisdiction of the courts located within Santa Clara County, California for the purpose of litigating all such claims or disputes. Arbitration Option. For any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution ("ADR") provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Improperly Filed Claims. All claims you bring against Blue Frog must be resolved in accordance with this Section 24.3 (Dispute Resolution). All claims filed or brought contrary to this Section 24.3 (Dispute Resolution) shall be considered improperly filed. Should you file a claim contrary to this Section 24.3 (Dispute Resolution), Blue Frog may recover attorneys' fees and costs up to $1000, provided that Blue Frog has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
24.4 Waiver. A provision of these Terms may be waived only by a written instrument executed by the party entitled to the benefit of such provision.The failure of Blue Frog to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision.
24.5 Severability. If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
24.6 Assignment. The Terms and related Guidelines, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Blue Frog without restriction.Any assignment attempted to be made in violation of this Terms or Use shall be void.
24.7 No Agency. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Blue Frog as a result of these Terms or use of the Draftmix Service.You further acknowledge that by submitting User Submissions or other Content, no confidential, fiduciary, contractually implied or other relationship is created between you and Blue Frog other than pursuant to these Terms.
24.8 Survival. Upon termination of these Terms, any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, Sections 2, 3, 6.1, 6.2, 7, 8, 9, 18, 20 through 25, and 27 will survive any termination of these Terms.
24.9 Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and shall not be deemed to limit or affect any of the provisions hereof.
24.10 Entire Agreement. This is the entire agreement between you and Blue Frog relating to the subject matter herein and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter.The Agreement shall not be modified except in a writing, signed by both parties, or by a change to these Terms or Guidelines made by Blue Frog as set forth in Section above.
24.11 Claims. YOU AND BLUE FROG AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE DRAFTMIX SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES.OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
24.12 Disclosures. The services hereunder are offered by Blue Frog Gaming, Inc., located at:
2059 Camden Ave #118
Campbell, CA 95008
email: support@draftmix.com
telephone: (650) 262-0111
If you are a California resident, you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information.
