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Terms & Conditions of Use

THESE TERMS AND CONDITIONS, AS AMENDED FROM TIME TO TIME, ARE A LEGAL AGREEMENT BETWEEN DIGITAL CHOCOLATE INC. (“DIGITAL CHOCOLATE” OR “WE”) AND YOU (“YOU”). PLEASE READ THESE TERMS AND CONDITIONS INCLUDING PRIVACY POLICY CAREFULLY BEFORE USING DIGITAL CHOCOLATE’S WEBPAGE, BLOGS, PRODUCTS, GAMES, SERVICES AND ANY APPLICATIONS OWNED, OPERATED, LICENSED OR CONTROLLED BY DIGITAL CHOCOLATE. APPLICATIONS CREATED BY DIGITAL CHOCOLATE MAY ALSO BE AVAILABLE THROUGH SOCIAL NETWORKING SITES (COLLECTIVELY THE “SERVICES”). BY USING THE SERVICES YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS INCLUDING, WITHOUT LIMITATION, DISCLAIMERS OF WARRANTIES, LIMITATIONS OF LIABILITY AND A REQUIREMENT THAT YOU MEET SPECIFIED AGE REQUIREMENTS. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT ACCESS OR USE THE SERVICES.

Scope
Digital Chocolate makes the Services available to you subject to these terms and conditions (“Terms and Conditions”).

Changes to These Terms of Use
Digital Chocolate reserves the right to change or modify any of the Terms and Conditions at any time, in its sole discretion, by posting changes on Digital Chocolate’s web site. Your continued use of the Services following the posting of such changes or modifications will constitute Your acceptance of such changes or modifications. If You do not agree to these Terms and Conditions or any changes or updates Your only remedy is not to use Digital Chocolate’s Services and to cancel any Service you have signed up for.

Digital Chocolate reserves the right to discontinue the Services or change the content of the Services with or without prior notice for any reason. You agree that Digital Chocolate will not be liable for any discontinuation of or changes to the Services, and You understand that You shall not be entitled to any refund of fees for discontinuation of or changes to the Services.

Account

You agree to provide, maintain and update true, accurate, current and complete information about yourself as prompted by our registration processes (the “Registration Data”). You agree to promptly notify Digital Chocolate of any unauthorized use of Your username, password, other account information, or any other breach of security that You become aware of involving or relating to the Services. In addition, You agree to exit from Your account at the end of each session. Furthermore, You are entirely responsible for any and all activities that occur under Your account. We will not be liable for any loss that you may incur as a result of someone else using Your password or account, either with or without your knowledge.

Where the Services utilize the account management of a social networking website (such as Facebook or MySpace), You are responsible for maintaining the confidentiality of Your applicable social networking website password and account, and are fully responsible for all activities that occur under Your account.

Fees and Payment

The Services may include games and/or applications where You will have the opportunity to use ‘coins’ or other online currency (“Virtual Currency”) to license a variety of virtual in-game items (“Virtual Goods”) that can be used while playing such games and/or applications. Virtual Goods may include also virtual in-game items such as Nanostars™ characters that may be used in different games and/ or application. Such Virtual Goods may have different functions in different games and/or applications.


Virtual Goods such as Nanostars™ characters may be licensed individually or in different packages.  The Nanostars™ characters shall be drawn randomly, and Digital Chocolate does not guarantee that You will receive certain  Nanostars™ character.

Digital Chocolate may change the functions, generality or discontinue of Virtual Goods at its sole discretion. If any such change is not acceptable to you, you may stop using the game and/or application. Your continued use of the game and/or application will indicate acceptance of such changes.

You may be required to pay a fee in order to obtain Virtual Currency. Digital Chocolate reserves the right in its sole discretion to change the number of Virtual Currency You will be entitled to purchase for a given fee.

Digital Chocolate shall have no liability for hacking or loss of Virtual Goods from your Digital Chocolate account, provided Digital Chocolate will use reasonable efforts to replace such items under certain circumstances in our reasonable discretion. Digital Chocolate has no obligation or responsibility to and will not reimburse You for any Virtual Goods lost due to Your violations of these Terms and Conditions. Digital Chocolate reserves the right, without prior notification, to limit the order quantity on any Virtual Goods and/or to refuse to provide You with any Virtual Good. Verification of certain information applicable to a transaction involving a Virtual Good may be required prior to our acceptance thereof. Price and availability of the Virtual Goods are subject to change without notice.

YOUR PURCHASE OF VIRTUAL CURRENCY IS FINAL AND SHALL UNDER NO CIRCUMSTANCES BE REFUNDABLE, TRANSFERABLE OR EXCHANGEABLE (EXCEPT WHERE EXPLICITLY AUTHORIZED WITHIN THE SERVICE) INCLUDING, WITHOUT LIMITATION, UPON TERMINATION OF YOUR DIGITAL CHOCOLATE ACCOUNT FOR ANY REASON, TERMINATION OF THIS AGREEMENT, AND/OR THE DISCONTINUATION OF THE SERVICES. REGARDLESS OF THE CONSIDERATION OFFERED OR PAID IN EXCHANGE FOR VIRTUAL CURRENCY OR VIRTUAL GOODS, YOU DO NOT HAVE ANY OWNERSHIP RIGHTS IN THE VIRTUAL CURRENCY OR VIRTUAL GOODS. YOU RECEIVE LIMITED RIGHT TO USE THE VIRTUAL CURRENCY AND VIRTUAL GOODS.  ALL VIRTUAL GOODS AND CURRENCIES ARE FORTFEITED IF YOUR ACCOUNT IS TERMINATED OR SUSPENDED FOR ANY REASON, IN DIGITAL CHOCOLATE’S SOLE AND ABSOLUTE DISCRETION, OR IF DIGITAL CHOCOLATE DISCONTINUES PROVIDING THE SERVICE.

Age Requirement
The Services is not intended for use by, or to collect personally identifiable information from, children under 13 years of age. If you use the Services, You hereby represent, warrant and covenant that You are at least 13 years of age. Furthermore, if You are between the ages of 13 and 18, You represent and warrant that Your legal guardian has reviewed and agrees to these Terms and Conditions.

Privacy
You understand and agree that Digital Chocolate may collect personally identifiable information in connection with the Services. Please review Digital Chocolate’s Privacy Policy to learn how Digital Chocolate collects and uses personal information. You agree that we may communicate with You regarding the Services, Digital Chocolate, and its partners by SMS, text message or other electronic means to Your mobile device or Your personal computer. If You do not agree to each and every part of Digital Chocolate’s Privacy Policy, then You should not use the Services or submit any personally identifiable information through the Services.

Ownership
All right, title and interest in and to the Services and all content and other materials contained therein, including without limitation all copyright, trademark, patent and other intellectual property rights therein, shall be and remain solely with Digital Chocolate or its licensors. Digital Chocolate, the Digital Chocolate logos, and all game names are trademarks of Digital Chocolate and may not be used without express written permission of Digital Chocolate.

Nanostars™ characters and their distinctive likenesses or look and feel are trademarks owned by Digital Chocolate.

You do not acquire any ownership rights by using the Service, downloading material from or uploading material to the Service, or by purchasing any Virtual Goods.

You agree not to copy, redistribute, publish or otherwise exploit material from the Services, except as expressly permitted herein.

All comments, feedback, suggestions, ideas, and other submissions (”Ideas”) disclosed, submitted, or offered to Digital Chocolate in connection with the use of the Services shall be the exclusive property of Digital Chocolate. Digital Chocolate may use, sell, exploit and disclose the Ideas in any manner, without restriction and without compensation to You.

Access to Services, Limited License
You are granted a nonexclusive, revocable, limited, non-transferable and non-sublicensable license to use the Services for personal, non-commercial use. Such license does not include: (a) any resale or commercial use of the Services; (b) the distribution, public performance or public display of the Services, (c) modification, revision, creation of derivative works from or otherwise making any derivative uses of the Services or any information or content therein; (d) decompilation, reverse engineering or otherwise attempting to derive the source code for the Services (except to the extent applicable laws specifically prohibit restriction of such activities); or (e) any use of the Services other than for its intended purpose.

Any use of the Services other than as specifically authorized herein, without the prior written permission of Digital Chocolate, is strictly prohibited and will terminate the license granted herein. Unless explicitly stated herein, nothing in these Terms and Conditions shall be construed as conferring any license to intellectual property or other proprietary rights, whether by estoppel, implication or otherwise.

Your use of and access to the Services is subject to all applicable local, state, national and international laws and regulations, and You agree not to violate such laws and regulations in Your use of and access to the Services. In addition, You agree that: (a) You will not interfere with another user’s use and enjoyment of the Services; (b) You will not interfere with or disrupt Digital Chocolates’ security measures; (c) You will not interfere with or disrupt networks connected to Digital Chocolate and will comply with all regulations, policies and procedures of such networks; and (d) You will comply with United States law regarding the transmission of technical data exported from the United States with respect to or relating to any of Your dealings with Digital Chocolate. You also agree to defend, indemnify and hold harmless Digital Chocolate, as well as its parents, subsidiaries, affiliates, officers, shareholders, employees and independent contractors from any loss, liability, damages and expenses (including without limitation reasonable attorneys’ fees) resulting from any claim or demand made by any third party arising out of or in connection with Your use of the Services , any User Content, Your violation of these Terms and Conditions, or Your violation of the rights of any third party.

Conduct Requirements
The Services may include features or functionality that may be used to communicate with other users of the Service or to otherwise post or transmit information or content (the “User Content”). For example, the Service may allow You to send email messages or other communications to other users, or to post information to the sites of the Services. You agree to use the Services in accordance with the following conduct requirements:

  • You may not transmit or post User Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent, or racially or ethnically or otherwise objectionable.
  • You may not transmit or post User Content that would constitute, encourage or provide instructions for a criminal offense, violate any party’s rights, or that would otherwise create liability or violate any law or regulation in any jurisdiction worldwide.
  • You may not transmit or post User Content that may breach any contractual or fiduciary relationship or that may infringe any patent, trademark, trade secret, copyright or other intellectual property or proprietary right of any party.

You may not impersonate any person or entity or otherwise misrepresent your affiliation with any person or entity.

You will comply with all applicable laws regarding the transmission of technical data exported from, or imported into, the United States or the country in which you reside.

  • You may not forge message headers or otherwise disguise, or attempt to disguise, the existence, source or destination of any User Content that you transmit or post.
  • You may not engage in unsolicited promotions, political campaigning, advertising or solicitations.
  • You may not transmit or post private information of any third party, including, without limitation, addresses, telephone numbers, credit card numbers, email addresses and any unique identifier such as a Social Security number.
  • You may not transmit or post any viruses, corrupted data or other files.
  • You may not transmit or post any User Content that, in the sole judgment of Digital Chocolate, is objectionable or which restricts or inhibits any other person from using or enjoying the Services or any related features or services.
  • You may not transmit, post or otherwise cause, instigate or assist in the distribution of spam.

Digital Chocolate takes no responsibility and assumes no liability for any User Content transmitted or posted by You or any third party, or for any loss thereof or damage thereto. Digital Chocolate is not liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity You may encounter. Your use of the Services and the web sites and any related features or services is at Your own risk. As a provider of interactive services, Digital Chocolate is not liable for any statements, representations, information or content provided by its users in any public forum, personal home page or other location.

Although Digital Chocolate has no obligation to screen, edit or monitor any information or content transmitted or posted by Service or web site users, Digital Chocolate reserves the right, and has absolute discretion, to remove, screen or edit any information or content transmitted or posted on or through the Service and its web sites and any related features or services at any time and for any reason without notice.

You are solely responsible for creating backup copies of and replacing any information or content that You post or store on or through the Service or any related features or services at Your sole cost and expense. You represent and warrant that (a) you own and control all of the rights to, or otherwise have the right to transmit or post, the information and content that You transmit or post on or through the Service, the web sites and any related features or services; (b) such information and content is accurate and not misleading; and (c) use and posting of the information and content you supply does not violate these Terms and Conditions and will not violate any rights of or cause injury to any person or entity.

If You have a dispute with other users, you release Digital Chocolate and hereby agree to indemnify Digital Chocolate from any and all claims, demands, and damages including direct, consequential and indirect of every kind and nature, known and unknown, arising out of or in any way connected with such dispute.

Disclaimer

DIGITAL CHOCOLATE DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY REGARDING THE SERVICES OR THE USE THEREOF BY YOU TO THE FULL EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE SERVICES PROVIDED BY DIGITAL CHOCOLATE ARE PROVIDED “AS-IS” AND WITHOUT WARRANTIES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF PERFORMANCE OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. FURTHER, DIGITAL CHOCOLATE DOES NOT MAKE, AND HAS NOT MADE, ANY REPRESENTATION OR WARRANTY THAT THE SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, ERROR-FREE, FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS OR NOT INTERFERE WITH OTHER FUNCTIONS, FEATURES OR SERVICES ON YOUR PERSONAL COMPUTER.

YOU ACKNOWLEDGES AND AGREES THAT ADVERTISEMENTS MAY INCLUDE LINKS TO OTHER WEBSITES OR RESOURCES AND THAT DIGITAL CHOCOLATE HAS NO CONTROL OVER (AND IS MERELY A PASSIVE CONDUIT WITH RESPECT TO) ANY ADVERTISEMENT OR SUCH LINKS TO WEBSITES OR OTHER RESOURCES THAT MAY BE SUBMITTED OR PUBLISHED BY ANY ADVERTISER OR OTHER THIRD PARTY. DIGITAL CHOCOLATE IS NOT RESPONSIBLE FOR THE AVAILABILITY OF SUCH THIRD PARTY WEBSITES OR RESOURCES AND DOES NOT ENDORSE AND IS NOT RESPONSIBLE OR LIABLE FOR ANY CONTENT, ADVERTISING, PRODUCTS, OR OTHER MATERIALS ON OR AVAILABLE FROM SUCH THIRD PARTY WEBSITES OR RESOURCES. YOU ACKNOWLEDGE AND AGREE THAT DIGITAL CHOCOLATE SHALL HAVE NO RESPONSIBILITY OR LIABILITY WHATSOEVER FOR ANY DAMAGE OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH USE OF OR RELIANCE ON ANY CONTENT, GOODS OR SERVICES AVAILABLE ON OR THROUGH ANY SUCH THIRD PARTY WEBSITE OR RESOURCE. ALL CORRESPONDENCE OR BUSINESS DEALINGS WITH, OR PARTICIPATION IN PROMOTIONS OF, ADVERTISERS FOUND ON OR THROUGH ANY ADVERTISEMENT, INCLUDING PAYMENT AND DELIVERY OF RELATED GOODS OR SERVICES AND ANY OTHER TERMS, CONDITIONS, WARRANTIES OR REPRESENTATIONS ASSOCIATED WITH SUCH DEALINGS, ARE SOLELY BETWEEN YOU AND SUCH ADVERTISER.

Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW DIGITAL CHOCOLATE IS NOT LIABLE FOR ANY ACT OR FAILURE TO ACT BY IT OR ANY OTHER PERSON REGARDING CONDUCT, COMMUNICATION OR CONTENT ON THE SERVICES OR USE OF THE DIGITAL CHOCOLATE SERVICES. YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH DIGITAL CHOCOLATE IS TO STOP USING THE SERVICE, AND TO CANCEL YOUR ACCOUNT(S).

IN NO EVENT SHALL DIGITAL CHOCOLATE, ITS SUBSIDIARIES, AFFILIATES, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY, UNDER ANY THEORY, INCLUDING WITHOUT LIMITATION NEGLIGENCE, FOR DAMAGES OF ANY KIND ARISING FROM OR RELATED TO THE SERVICES, OR ANY INFORMATION, CONTENT OR MATERIALS IN OR ACCESSIBLE THROUGH THE SERVICES, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, ACTUAL, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, LOST INCOME, REVENUE OR PROFITS, LOST OR DAMAGED DATA, OR OTHER COMMERCIAL OR ECONOMIC LOSS, THAT RESULT FROM YOUR USE OF, OR INABILITY TO USE, THE SERVICES EVEN IF ANY OF THOSE PERSONS OR ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE.

IN NO EVENT WILL THE TOTAL LIABILITY OF DIGITAL CHOCOLATE OR ANY OF THE ABOVE-REFERENCED PERSONS OR ENTITIES, UNDER ANY THEORY, ARISING OUT OF OR RELATING TO THE SERVICES EXCEED THE COMPENSATION YOU HAVE PAID TO DIGITAL CHOCOLATE DURING THE PRIOR ONE (1) MONTH PERIOD FOR THE APPLICABLE SERVICES GIVING RISE TO ANY SUCH LIABILITY. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, THE LIABILITY OF DIGITAL CHOCOLATE SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.

Miscellaneous
The formation, construction and interpretation of these Terms and Conditions, and Your use of the Services, shall be controlled by the laws of the State of California regarding agreements between California residents entered into and to be performed within California, giving no effect to choice of law provisions. The U.N. Convention of Contracts for the International Sale of Goods is expressly excluded from any interpretation of these Terms and Conditions. Any dispute relating to these Terms and Conditions shall be subject to the exclusive jurisdiction of the state and federal courts in San Francisco, California, U.S.A. You hereby irrevocably and unconditionally submit to the personal jurisdiction and exclusive venue of these courts.

If you violate these Terms and Conditions or if You engage in any conduct that we, in our sole discretion, believe is in violation of any applicable law or is otherwise harmful to the interests of Digital Chocolate or any third party, We may issue you a warning about the violation, or We may choose to immediately terminate or suspend any and all accounts that You have established. You acknowledge that Digital Chocolate is not required to provide You notice before terminating or suspending Your access to Service(s), but it may choose to do so.

If Your account is terminated, We may, but are not required to, remove some or all of Your content from our servers. Further, You understand that You shall not be entitled to any refund of fees for such termination of your Digital Chocolate account or suspension of Your access to all or part of the Services.

If any provision of these Terms and Conditions is held to be unlawful, void or for any reason unenforceable, that provision shall be deemed severable from this agreement and shall not affect the validity and enforceability of the remaining provisions. These Terms and Conditions constitute Your entire agreement with Digital Chocolate with respect to their subject matter, and supersede any other previous written terms and any oral or promotional statements regarding such subject matter. Any waiver of enforcement of any Terms and Condition of this Agreement or any breach thereof, in any one instance, shall not constitute a waiver of such term or condition or any subsequent breach thereof. If any dispute arises under these Terms and Conditions, the prevailing party shall be reimbursed by the other party for any and all legal fees and costs associated therewith.

Reference or linking to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or affiliation therewith, by Digital Chocolate.

Questions/Contact Information.
If you have any questions about these Terms of Use, please feel free to give us your feedback online at or at Digital Chocolate, Inc., 1855 South Grant Street, San Mateo, CA 94402 USA.

(updated 3/19/2010)