Revised: 19 November 2021
These Terms of Service contain an arbitration provision and a waiver of class action rights. Please review the Arbitration section below for details.
These Terms of Service (“Terms”) govern your use of any of our websites on which these Terms are posted (collectively, the “Site”), your download, access and use of our games, whether on your computer, on a mobile device or platform (each a “Game” and together the “Games”), and other related services offered by our Company (collectively with the Games, the “Services”). Devolver Digital Inc. (“Devolver,” “Company,” “we,” or “us”) provides the Site and Services.“You” refers to you as a user of the Site or Services.
BY USING THE SITE OR SERVICES, YOU ARE AGREEING TO THESE TERMS. PLEASE READ THEM CAREFULLY.
You must be at least 13 years old to use the Site or the Services. However, certain Services have additional age restrictions (“Age Restricted Services”). By purchasing, downloading, accessing or using any Age Restricted Services, you represent and warrant that you are at least the minimum age indicated for such Services. Additionally, if you are under the age of majority in your state of residence, a minor, your parent or legal guardian must agree to these Terms on your behalf and you may only access and use the Site and Services with permission from your parent or legal guardian.
2. Terms of Sale
You may purchase various products and services for purchase on the Site and through the Services (an “Order”).
Fees: For purchases of physical products, you will be required to pay any applicable shipping and processing charges and fees (“Fees”). Fees are intended to compensate us for any relevant costs of processing your Order; costs of handling and packing any products; and costs of delivering or providing the purchased products and services to you.
Inaccuracy Disclaimer: From time to time, there may be information on the Site that contains typographical errors, inaccuracies, or omissions that may relate to product descriptions, pricing, and availability. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update information at any time without prior notice (including after you have submitted your Order). If you do not wish to continue with your Order after pricing or other information has been corrected, please contact us right away and we will work with you to cancel or return your Order.
Order Warranties, Returns and Refunds: Each Order is subject to our Warranty, Return and Refund policies.
Special Offers: Occasionally we will offer special promotions to our customers that we refer to as “special offers.” This can include a gift with purchase, free shipping, or other promotional activity associated with a product purchase. These offers may be for a limited time only.
3. Additional Terms
Some of our Services have additional terms and conditions (“Additional Terms”). Where Additional Terms apply to a Service, we will make them available for you to read through your use of that Service. By using that Service, you agree to the Additional Terms.
4. Acceptable Use of the Site and Services
You are responsible for your use of the Site and Services, and for any use of the Site or Services made using your account. Our goal is to create a positive, useful, and safe user experience. To promote this goal, we prohibit certain kinds of conduct that may be harmful to other users or to us. When you use the Site or Services, you may not:
- violate any law or regulation;
- violate, infringe, or misappropriate other people’s intellectual property, privacy, publicity, or other legal rights;
- post or share anything that is illegal, abusive, harassing, harmful to reputation, pornographic, indecent, profane, obscene, hateful, racist, or otherwise objectionable;
- send unsolicited or unauthorized advertising or commercial communications, such as spam;
- engage in spidering or harvesting, or participate in the use of software, including spyware, designed to collect data from the Site or Services;
- transmit any viruses or other computer instructions or technological means whose purpose is to disrupt, damage, or interfere with the use of computers or related systems;
- stalk, harass, or harm another individual;
- impersonate any person or entity or perform any other similar fraudulent activity, such as phishing;
- use any means to scrape or crawl any Web pages contained in the Site;
- attempt to circumvent any technological measure implemented by us or any of our providers or any other third party (including another user) to protect the Site or Services;
- attempt to decipher, decompile, disassemble, or reverse engineer any of the software or other underlying code used to provide the Site or Services; or
- advocate, encourage, or assist any third party in doing any of the foregoing.
5. Access to Games (applicable only to the extent that you download a Game)
- If you download a Game from the Apple Store or Google Play App Store, subject to your compliance with these Terms and the Apple Store or Google Play App Store terms, Devolver hereby grants you a non-exclusive, non-transferable, worldwide, royalty-free, limited-term right to access the Game solely for personal, non-commercial use on a single mobile device owned or otherwise controlled by you, strictly in accordance with the Game’s documentation and these Terms.
- As between the parties, Devolver owns all right, title and interest in and to the Game, and any intellectual property rights associated with it. Devolver reserves all rights in and to the Game not expressly granted to you in these Terms. Except as expressly permitted by these Terms, by law, or by applicable third party license, you must not and must not allow any third party to: (i) sublicense, sell, rent, lease, transfer, assign, or redistribute the Game; (ii) host the Game for the benefit of third parties; (iii) disclose or permit any third party to access the Game, except as expressly permitted in these Terms; (iv) modify or create derivative works of the Game, or merge the Game with other software; (v) disassemble, decompile, bypass any code obfuscation, or otherwise reverse engineer the Game or attempt to derive any of its source code, in whole or in part; (vi) modify, obscure, or delete any proprietary rights notices included in or on the Game; (vii) otherwise use or copy the Game in a manner not expressly permitted by these Terms; or (viii) use the Game beyond its applicable term.
- By using the Game, you acknowledge that this section of the Terms is entered into by and between Devolver and not with Apple, Inc. or Google, Inc. Notwithstanding the foregoing, you acknowledge that Apple, Inc. and its subsidiaries are third-party beneficiaries of this section and that Apple, Inc. and Google, Inc. have the right (and is deemed to have accepted the right) to enforce this section. Devolver is solely responsible for the Game and any content contained therein. You acknowledge that Apple, Inc. and Google, Inc. have no obligation whatsoever to furnish any maintenance and support services with respect to the Game. You represent and warrant that (i) You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) You are not listed on any U.S. Government “watch list” of prohibited or restricted parties, including the Specially Designated Nationals list published by the Office of Foreign Assets Control of the U.S. Treasury or the Denied Persons List published by the U.S. Department of Commerce.
- In the event of any third party claim that the Game or your possession and use of the Game infringes that third party’s intellectual property rights, Devolver, not Apple, Inc. or Google, Inc., will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
- This section 5 only applies to the extent that you have access to the Game. Upon deletion of the Game from your mobile device, all rights granted to you in this section will also terminate, and you must cease use of the Game and delete all copies of the Game from your mobile device and account. Termination will not limit any of Devolver’s rights or remedies at law or in equity.
6. User Content
The Site and some of our Services may allow you to upload, submit, store, send, or receive content and data (“User Content”). You retain ownership of any intellectual property rights that you hold in that User Content.
When you upload, submit, store, send, or receive User Content to or through the Site or Services, you give us permission to reproduce and use your User Content as follows: you grant to us and those we work with a license to use, host, store, reproduce, modify, create derivative works (such as translations, adaptations, or other changes we make so that User Content works better with the Site and Services), publicly perform, publicly display, and distribute your User Content. This license is for the limited purpose of operating, promoting, and improving the Site and Services, and to develop new Services. Our license to your User Content is non-exclusive, meaning you may use the User Content for your own purposes or let others use your User Content for their purposes. This license is fully-paid and royalty free, meaning we do not owe you anything else in connection with our use of your User Content. We may exercise our rights under this license anywhere in the world and in any media. Lastly, this license is perpetual, meaning that our rights under this license continue even after you stop using the Site and Services. In general, however, we will only need to use your User Content for as long as you choose to store it with us using the Site or Services.
You promise that:
- you own all rights to your User Content or, alternatively, that you have the right to give us the rights described above; and
- your User Content does not infringe the intellectual property rights, privacy rights, publicity rights, or other legal rights of any third party.
We may refuse to accept or transmit User Content for any reason. We may remove User Content from the Site or Services for any reason.
8. Copyright and Intellectual Property Policy
We respond to notices of alleged copyright infringement and terminate accounts of repeat infringers according to the process set out in the U.S. Digital Millennium Copyright Act. If you believe that your work has been copied in a way that constitutes copyright infringement, please forward the following information to the Copyright Agent named below:
- Your address, telephone number, and email address.
- A description of the copyrighted work that you claim has been infringed.
- A description of where the alleged infringing material is located.
- A statement by you that you have a good faith belief that the disputed use is not authorized by you, the copyright owner, its agent, or the law.
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest.
- A statement by you, made under penalty of perjury, that the above information is accurate and that you are the copyright owner or authorized to act on behalf of the copyright owner.
For clarity, only copyright infringement notices should go to our Copyright Agent. You acknowledge that if you fail to comply with all of the requirements of this section your notice may not be valid.
If you believe the content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use such content, you may submit a counter-notice to the address listed above containing the following information:
- Your physical or electronic signature;
- Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
- A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
- Your name, physical address, telephone number, and e-mail address, a statement that you will accept service of process from the person who provided notification of the alleged infringement, and a statement that you consent to the jurisdiction of the federal court in either: (i) the judicial district in which your physical address is located; or (ii) if such physical address is outside of the United States, Austin, Texas.
After we receive your counter-notification, we will forward it to the party who submitted the original claim of copyright infringement. Please note that when we forward the counter-notification, it includes your personal information. By submitting a counter-notification, you consent to having your information revealed in this way. We will not forward the counter-notification to any party other than the original claimant.
After we send out the counter-notification, the claimant must then notify us within 10 days that he or she has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the content that was removed or disabled. If we receive such notification we will be unable to restore the material. If we do not receive such notification, we may reinstate the material.
11. Changes to the Site or Services
We enhance and update the Site and Services often. We may change or discontinue the Site or Services at any time, with or without notice to you.
We reserve the right to not provide the Site or Services to any person. We also reserve the right to terminate any user’s right to access the Site or Services at any time, in our discretion. If you violate any of these Terms, your permission to use the Site and Services automatically terminates.
13. Disclaimer and Limitations on Our Liability
YOU USE THE SITE AND SERVICES AT YOUR OWN RISK. THE SITE AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR COMPANY AND ITS OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, AND LICENSORS (“AFFILIATES”) DISCLAIMS ALL WARRANTIES, CONDITIONS, AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING THOSE RELATED TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT AND THOSE ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
IN PARTICULAR, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR COMPANY AND ITS AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY OR COMPLETENESS OF CONTENT AVAILABLE ON OR THROUGH THE SITE OR SERVICES, OR THE CONTENT OF ANY WEBSITES OR ONLINE SERVICES LINKED TO OR INTEGRATED WITH THE SITE OR SERVICES. OUR COMPANY AND ITS AFFILIATES WILL HAVE NO LIABILITY FOR ANY: (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (b) PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM YOUR ACCESS TO OR USE OF THE SITE OR SERVICES; (c) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS OR OF ANY PERSONAL INFORMATION OR USER DATA; (d) ANY INTERRUPTION OF TRANSMISSION TO OR FROM THE SITE OR SERVICES; (e) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED ON OR THROUGH THE SITE OR SERVICES BY ANY THIRD PARTY; OR (f) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED OR SHARED THROUGH THE SITE OR SERVICES.
YOU UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY MATERIAL OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE OR SERVICES IS DONE AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE ARISING FROM DOING SO. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SITE OR SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING FOR LOSS OF PROFITS, REVENUE, OR DATA) OR FOR THE COST OF OBTAINING SUBSTITUTE PRODUCTS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, HOWEVER CAUSED, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT WE’VE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR TOTAL CUMULATIVE LIABILITY TO YOU OR ANY THIRD PARTY UNDER THESE TERMS, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE FEES YOU HAVE ACTUALLY PAID US DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM GIVING RISE TO SUCH LIABILITY.
You understand and agree that we have set our prices and entered into these Terms with you in reliance upon the limitations of liability set forth in these Terms, which allocate risk between us and form the basis of a bargain between the parties.
To the maximum extent permitted by applicable law, you agree to indemnify and hold harmless our company and its Affiliates from and against any and all claims, costs, proceedings, demands, losses, damages, and expenses (including, without limitation, reasonable attorney’s fees and legal costs) of any kind or nature, relating to, any actual or alleged breach of these Terms by you or anyone using your account. If we assume the defense of such a matter, you will reasonably cooperate with us in such defense.
15. Arbitration Agreement & Waiver of Certain Rights
Except as set forth below, you and we agree that we will resolve any disputes between us (including any disputes between you and a third-party agent of ours) through binding and final arbitration instead of through court proceedings. You and we hereby waive any right to a jury trial of any Claim (defined below). All controversies, claims, counterclaims, or other disputes between you and us or you and a third-party agent of ours (each a “Claim”) shall be submitted for binding arbitration in accordance with the Rules of the American Arbitration Association (“AAA Rules”). The arbitration will be heard and determined by a single arbitrator. The arbitrator’s decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. You and we agree that the arbitration proceedings will be kept confidential and that the existence of the proceeding and any element of it (including, without limitation, any pleadings, briefs or other documents submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration, by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies, or as specifically permitted by state law. The Federal Arbitration Act and federal arbitration law apply to this agreement. However, the Arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement including, but not limited to, a claim that all or any part of this Agreement is void or voidable.
If you demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of the administrative costs and arbitrator’s fees required for the arbitration as the arbitrator deems necessary to prevent the cost of the arbitration from being prohibitive. In the final award, the arbitrator may apportion the costs of arbitration and the compensation of the arbitrator among the parties in such amounts as the arbitrator deems appropriate.
This arbitration agreement does not preclude either party from seeking action by federal, state, or local government agencies. You and we also have the right to bring qualifying claims in small claims court. In addition, you and we retain the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments or preliminary injunctions, and any such request shall not be deemed incompatible with these Terms, nor a waiver of the right to have disputes submitted to arbitration as provided in these Terms.
Neither you nor we may act as a class representative or private attorney general, nor participate as a member of a class of claimants, with respect to any Claim. Claims may not be arbitrated on a class or representative basis. The arbitrator can decide only your and/or our individual Claims. The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated. The arbitrator may award in the arbitration the same damages or other relief available under applicable law, including injunctive and declaratory relief, as if the action were brought in court on an individual basis. Notwithstanding anything to the contrary in the foregoing or herein, the arbitrator may not issue a “public injunction” and any such “public injunction” may be awarded only by a federal or state court. If either party seeks a “public injunction,” all other claims and prayers for relief must be adjudicated in arbitration first and any prayer or claim for a “public injunction” in federal or state court stayed until the arbitration is completed, after which the federal or state court can adjudicate the party’s claim or prayer for “public injunctive relief.” In doing so, the federal or state court is bound under principles of claim or issue preclusion by the decision of the arbitrator.
If any provision of this Section is found to be invalid or unenforceable, then that specific provision shall be of no force and effect and shall be severed, but the remainder of this Section shall continue in full force and effect. No waiver of any provision of this Section of the Terms will be effective or enforceable unless recorded in a writing signed by the party waiving such a right or requirement. Such a waiver shall not waive or affect any other portion of these Terms. This Section of the Terms will survive the termination of your relationship with us.
THIS SECTION LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM, THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN AAA RULES, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF. OTHER RIGHTS THAT YOU OR WE WOULD HAVE IN COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION.
16. Other Provisions
Under no circumstances will we be held liable for any delay or failure in performance due in whole or in part to any acts of nature or other causes beyond our reasonable control.
These Terms will be governed by and construed in accordance with the laws of the State of Texas, without giving effect to any conflict of laws rules or provisions.
You agree that any action of whatever nature relating to these Terms, the Site, or Services will be filed only in the state or federal courts located in Austin, Texas. You consent and submit to the personal jurisdiction of such courts for the purposes of any such action.
If any provision of these Terms is found to be unlawful or unenforceable, then that provision will be deemed severable from these Terms and will not affect the enforceability of any other provisions.
The failure by us to enforce any right or provision of these Terms will not prevent us from enforcing such right or provision in the future.
We may assign our rights and obligations under these Terms, including in connection with a merger, acquisition, sale of assets or equity, or by operation of law.
17. Changes to these Terms
From time to time, we may change these Terms. If we change these Terms, we will give you notice by posting the revised Terms on the Site. Those changes will go into effect on the Revision Date shown in the revised Terms. By continuing to use the Site or Services, you are agreeing to the revised Terms.
Please print a copy of these Terms for you records and PLEASE check the Site frequently for any changes to these Terms.