Big Fish Games Terms of Service

Last updated November 12, 2008

AGREEMENT AND SERVICES

Welcome to Big Fish Games!

Big Fish Games, Inc., referred to herein as BFG ("BFG"), is composed of the Big Fish Games Website, www.bigfishgames.com, and any other Website, product, or service owned or operated by Big Fish Games. By utilizing any of these properties, you agree to be bound by the terms and conditions detailed herein. The company offers games, activities, and services including, but not limited to, game downloads, online games, game purchases, e-greeting applications, browser toolbars, game management utilities, sweepstakes, contests, chat services, message boards, video streaming, affiliate programs, game review writing, affiliate email and newsletter tools, other assorted affiliate and social networking services, and general game content browsing.

Big Fish Games and its subsidiaries and affiliates own these sites and services. Your use of BFG is subject at al times to our Terms of Service, Privacy Policy and where applicable, an End User License Agreement. Your Accounts with the company and all of the company's games, activities, and other services, regardless of when they are added to BFG, are governed by these Terms of Service. Our Website and service offerings are always evolving, so it is important that you periodically check here, as well as the specific rules for any games or activities in which you choose to participate, for updates. If we revise the Terms of Service, you are hereby on notice that such revision will take effect immediately upon being posted on the Website. Each time you use or take part in any offering from the company, you agree to review the Terms of Service to become aware of such revisions. As with our Privacy Policy, if you do not agree to any of the Terms stated herein, you should discontinue using or participating in any of the company's Websites, products, and services.

VIOLATION

If you violate our Terms of Service, BFG may issue you a warning regarding the violation, or, in BFG's sole discretion, immediately terminate any and all Accounts that you have established with the company. You acknowledge that BFG is not required to provide you notice before terminating your account. See the ONLINE CONTENT and ONLINE CONDUCT sections of this document for further detailed information.

THESE TERMS IN CONJUNCTION WITH OTHER OFFERS

The Terms of Service and any posted rules or instructions regarding a particular game, activity, affiliation service, contest, or sweepstakes constitutes the entire agreement between you and BFG regarding your rights and obligations in your use of any BFG property. If there is a conflict between the Terms of Service and any other rules or instructions posted on or in a BFG property, the company will resolve the conflict within its sole discretion.

ACCOUNT REGISTRATION

Accounts ("Account" or "Accounts") as used herein is defined as the account that results from registering for any service with BFG. When you complete a registration process, you create an Account and you become a Member ("Member"). Your Account allows you to participate in specific services on BFG. To create an account, you must enter an email, username and password. Your email and/or username is your BFG identity. You may not select a username that is used by someone else, and your username cannot be indecent, or otherwise offensive, or be used in any way that violates the Terms of Service. You may not provide false information during the registration process. You must provide truthful and accurate information in creating your Accounts. BFG requires all users to be over the age of 18 and we require all users registering accounts to indicate that they are over 18.

BFG reserves the right to limit the number of accounts a user can establish. This limit may change over time at the company's discretion.

You are solely responsible for all activity on your account and for the security of your computer system. You should not reveal your password to other users. BFG will not ask you to reveal your password. If you forget your password, you can request to have a new password sent to your registered email address. You agree to indemnify and hold BFG harmless for any improper or illegal use of your account by you. This includes illegal or improper use by someone to whom you have given permission to use your account or whom you have negligently allowed to access your account. Your account is at risk if you let someone use it inappropriately and your account in any of our services is subject to termination if you or anyone using your account violates our Terms of Service. If your account is terminated, you may not join BFG again without our express permission.

ONLINE GAME COMMUNITY CHARGES, BILLING, FREE TRIALS

You may have a BFG account without paying BFG to participate in the Online Game Community games or other activities on the Online Game Community Website. However, if you register with BFG to use the Online Game Community without advertisements, BFG will charge subscription fees.

YOUR ONLINE GAME COMMUNITY SUBSCRIPTION FEES ARE PAYABLE IN ADVANCE AND ARE NOT REFUNDABLE IN WHOLE OR IN PART.

BFG reserves the right to change our fees or billing methods at any time and will provide notice of any such change at least 30 days prior to becoming effective. All changes will be posted on BFG and you are responsible for reviewing the billing section of BFG to obtain timely notice of such changes. Your continued use of the company's offerings after the posting of the changes on BFG means that you accept such changes. If any change is unacceptable to you, you may cancel your subscription at any time, but BFG will not refund any fees that may have accrued to your account before cancellation of your subscription, and we will not prorate fees for any subscription. If your use of our properties is subject to use or sales tax, then BFG may also charge you for any such taxes, in addition to the subscription or other fees published in the billing section of BFG.

Trial Subscriptions

For some games and activities, we may offer a free trial subscription. If you accept a free trial subscription, we will begin to bill your account for that game or activity when the free trial subscription expires, unless you cancel your subscription before that time; or if you agree to terms of any other promotion associated with that subscription. You are always responsible for any Internet service provider, telephone, and other connection fees that you may incur when using BFG, even when we offer a free trial subscription. Trial subscriptions may not be transferred at any time to any other user.

Fees Charged By Third-Party Sites And Vendors

We may provide links to other Websites. Some of these Websites may charge separate fees, which are not included in any subscription or other fees that you may pay to BFG. BFG may also provide access to third-party vendors, who provide content, goods and or services on BFG or the Internet. Any separate charges or obligations you incur in your dealings with these third parties are your sole responsibility.

ONLINE CONTENT

"Content" is defined herein as the software, communications, images, sounds, and all the material and information you encounter through BFG. BFG, our Members, our affiliates, and our independent content providers provide most of the Content on BFG. BFG does not pre-screen all Content. You bear the entire risk of the completeness, accuracy or usefulness of Content found on BFG.

Strong vulgar language, crude or explicit sexual references, discussions of illegal drugs, and hate speech are always inappropriate Content for BFG. Content standards may vary depending on where you are on BFG, the type of game you are playing and the expectations of the community. Some game play and chat rooms may involve use of stronger language than others, including mild expletives. Always use your best judgment in online conduct. If it is inappropriate in the workplace, don't post it on our message boards or chat rooms.

BFG representatives may monitor your communications on BFG. But we cannot monitor all of the Content on BFG, and we do not attempt to do so. If you encounter something you don't want to see, you can report it to the game support or complaint email address for the area in which the incident occurred. BFG does not endorse, approve, or prescreen any Content that you or other users communicate on the Service. BFG does not assume any responsibility or liability for Content that is generated by Members or other guests on BFG. We reserve the right to remove Content that is objectionable to us for any reason. This determination is in our sole discretion, and is final. BFG does not assume any liability for any failure to remove, or any delay in removing Content.

ONLINE CONDUCT

Online conduct should be guided by common sense and basic etiquette. The laws that apply in the offline world must be obeyed online as well. We have zero tolerance for illegal behavior on BFG. You must also obey rules for use of third party tools, and rules of interactive service providers, state, local, federal laws, or foreign or international law where appropriate. Ignorance of the law is no excuse. We terminate use of BFG and cooperate with law enforcement for illegal behavior.

You agree that you will be personally responsible for your use of BFG and for all of your communication and activity in using the Service, including any Content you contribute, and that you will indemnify and hold harmless BFG, its affiliates, employees, officers, and directors from any liability or damages arising from your conduct on BFG, including any Content that you contribute.

You will violate the Terms of Service if you (or others using your account) do any of the following:

Post, transmit, promote, or distribute Content that is illegal.
Harass, threaten, embarrass, or do anything else to another Member or guest that is unwanted. This means: do not say bad things about them, do not send them unwanted messages, do not attack their race, gender, sexual orientation, religion, heritage, disability, etc. If you disagree with someone, respond to the subject, not the person.
Transmit or facilitate distribution of Content that is harmful, abusive, racially or ethnically offensive, vulgar, sexually explicit, defamatory, infringing, invasive of personal privacy or publicity rights, or in a reasonable person's view, objectionable. Hate speech is not tolerated.
Disrupt the flow of chat in chat rooms with vulgar language, abusiveness, hitting the return key repeatedly or inputting large images so the screen goes by too fast to read, use of excessive shouting [all caps] in an attempt to disturb other users, "spamming" or flooding [posting repetitive text].
Impersonate another person (including celebrities), indicate that you are a BFG employee or a representative of BFG, or attempt to mislead users by indicating that you represent BFG or any of BFG'S partners or affiliates.
Attempt to get a password, other account information, or other private information from a Member or any other user on BFG. Remember: BFG employees will NEVER ask for your password. Do not give your password, reminder words, or billing information out to anyone.
Upload any software or Content that you do not own or have the legal right to freely distribute.
Promote or encourage any illegal activity including hacking, cracking or distribution of counterfeit software.
Upload files that contain a virus or corrupted data.
Post messages for any purpose other than personal communication, including without limitation advertising, promotional materials, chain letters, pyramid schemes, or make any commercial use of our Service.
Improperly use in game support or complaint buttons or make false reports to BFG staff members.
Use or distribute "auto" software programs, "macro" software programs or other "cheat utility" software program or applications.
You may not modify any part of the Service or any Service Website that BFG does not specifically authorize you to modify.
You must obey all applicable laws, regulations and rules wherever you are on the Service. This includes rules for use of third-party technology and content, rules of interactive service providers, and federal, state, local and foreign laws where applicable. Ignorance of the law is no excuse. The laws that apply in the offline world must be obeyed online as well. We have zero tolerance for illegal behavior on the Service. We will cooperate with law enforcement in such matters.
You may not post or communicate any player's real-world personal information within the Service or through any Service Website or any Service bulletin board.
You will not attempt to interfere with, hack into or decipher any transmissions to or from the servers running the Service.
You will not exploit any bug in the Service or in any BFG product to gain unfair advantage in the game and you will not communicate the existence of any such bug (either directly or through the public posting) to any other user of the Service.
You will not do anything that interferes with the ability of other Service users to enjoy playing a BFG game and using the Service, in accordance with its rules, or that materially increases the expense or difficulty of BFG in maintaining the Service for the enjoyment of all its users.

If you encounter another user of the Service who is violating any of the Rules of Conduct described above, please report them.

BFG does not recognize or condone any outside service that may be used for the exchange of points, assets or attributes that you may accumulate as a result of participating in the Service or playing your BFG game. This includes the exchange of points or virtual items on services including eBay^TM or Yahoo!^TM Auctions. We don't assume any responsibility for, and do not support, such transactions. ALWAYS USE CAUTION WHEN EXCHANGING ASSETS ON THESE SERVICES!

THESE RULES WILL APPLY TO ANYONE THAT YOU INTENTIONALLY OR NEGLIGENTLY ALLOW TO USE YOUR SERVICE ACCOUNT OR USER ID, AND THAT YOU ARE PERSONALLY RESPONSIBLE FOR THE CONSEQUENCES (INCLUDING TERMINATION OF YOUR ACCOUNT) THAT MAY RESULT IF ANY SUCH PERSON BREAKS THESE RULES. IN ORDER TO HELP MAKE THE SERVICE A GOOD EXPERIENCE FOR EVERYONE, BFG MAY OCCASIONALLY FIND IT NECESSARY TO MAKE CHANGES TO, OR RESET CERTAIN PARAMETERS OF, THE SERVICE IN ORDER TO BRING IT BACK INTO BALANCE. THESE CHANGES OR RESETS MAY AFFECT CHARACTERS OR TEAMS UNDER YOUR CONTROL AND MAY CAUSE YOU SETBACKS WITHIN THE GAME WORLD. THESE RULES MAY BE CHANGED, AND NEW RULES MAY BE ADDED, AT ANY TIME. YOU AGREE TO CHECK THE SERVICE WEBSITE FROM TIME TO TIME TO REVIEW ANY RULE CHANGES THAT BFG MAY HAVE MADE.

Public Nature of Communications

You acknowledge and agree that your communications with other users via chats, conferences, bulletin boards, and any other avenues of communication on this Service are public and not private communications, and that you have no expectation of privacy concerning your use of this Service. You acknowledge that personal information that you communicate on this Service may be seen and used by others and result in unsolicited communications, therefore we strongly encourage you not to disclose any personal information about yourself in your public communications on our Service. BFG is not liable for information that you choose to communicate to other users on the Service, or for the actions of other users.

By communicatiogn within the Service, i.e. by submitting a Posting, you represent and warrant that you have all necessary rights in and to all Postings you provide and all information they contain and that such Postings shall not infringe any proprietary or other rights of third parties or contain any libelous, tortuous, or otherwise unlawful information. If your Posting incorporates the name, voice, likeness and/or image of any individual, you represent and warrant that you have the right to grant BFG permission to use such name, voice, likeness and/or image of such individual appearing in the Posting in all media throughout the world in perpetuity. Once you post or send any Content to BFG, you expressly grant BFG the complete and irrevocable right to quote, re-post, use, reproduce, modify, distribute, transmit, broadcast, and otherwise communicate, and publicly display and perform the Content in any form, anywhere, with or without attribution to your screen name in BFG'S discretion, and without any notice or compensation to you of any kind.

By submitting a Posting, you agree to defend, indemnify and hold BFG, its parent, subsidiaries, affiliates and/or related entities and parties harmless from and against any breach or alleged breach of any of your representations, warranties or undertakings hereunder.

Commercial Activity and Unsolicited E-mail

You may not advertise any goods or services on BFG. Chain letters and pyramid schemes are expressly prohibited. You may not use any area of BFG to collect information, including login names, about BFG Members, and use of such information to send unsolicited email or for any other purpose is strictly prohibited. You may not exploit BFG, or any games or services offered on BFG for any commercial purpose. Any violation of these provisions can subject your BFG account(s) to immediate termination (or result in revocation of Guest status, if you are a guest) and to further legal action.

Use of Machines, Computers, Scripts

The use of machines, computers, scripts or any automated system on BFG is strictly prohibited and may result in criminal liability under the Computer Fraud and Abuse Act, Section 1030 of the United States Code. You may only play BFG games with one type, version or copy of browsing software application at any one time. BFG may terminate and permanently disqualify any Members who, in its sole discretion, determines as being in violation of these Terms of Service. All decisions by BFG are final.

Proprietary Rights; Copyrights and Trademarks

Much of the Content available on BFG is owned by BFG or our licensors, and is protected by copyrights, trademarks, and other intellectual property rights. You will not copy or download any Content from BFG unless we have expressly authorized you to do so in writing.

You must have the legal right to upload any Content to BFG before you do so in writing. You will not copy, transmit, modify, distribute, show in public or in private, modify or create any derivative works from the Content you find on BFG, unless BFG expressly authorizes you to do so in writing. Making unauthorized copies of any Content found on BFG can lead to the termination of your BFG account(s) (or revocation of Guest status, if you are a guest) and may subject you to further legal action. Similarly, other content owners may take criminal or civil action against you. In the event legal action is taken against you for your acts and/or omissions in participationg on BFG, you agree to indemnify and hold harmless BFG and its subsidiaries, affiliates, related companies, employees, officers, directors and agents.

Export Control Laws

You agree to abide by U.S. and other applicable export control laws and not to transfer, by electronic transmission or otherwise, any Content or BFG Software subject to restrictions under such laws to a national destination prohibited by such laws, without first obtaining, and then complying with, any requisite government authorization. You further agree not to upload to BFG any data or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software. The assurances and commitments in this Section shall survive termination of this Agreement.

User's Computer Information

When you connect to BFG, we may retrieve information from the computer used to log onto the Service about the computer's hardware system and any data related to the computer's operation of BFG Software. We will not collect any personal information about you, however, without your knowledge and consent as stated in our Privacy Policy.

Links to Third-Party Sites

BFG may include hyperlinks to Websites operated by parties other than BFG including advertisers and other content providers. Those sites may collect data or solicit personal information from you. BFG does not control such Websites, and is not responsible for their content, privacy policies, or for the collection, use or disclosure of any information those sites may collect.

Additional Terms and Conditions for Specific Games

When you subscribe to play certain games you may need to read and agree to a service or membership agreement that is specific to that game, and which may have terms that are slightly different from the ones that are found here. Your subscription to that game, and play of that game, is subject to those specific terms and this Terms of Service. If there are any inconsistencies between the game specific terms and these terms, BFG will be the final and sole arbiter of any such inconsistencies.

BFG Software

BFG may require that you download software from BFG or its licensors onto your computer ("BFG Software"). BFG grants to you a non-exclusive, non-transferable, revocable, limited license to use BFG Software to play games on our Service. You may not sub-license, or charge others to use or access BFG Software. You may not use BFG Software for any purpose other than that contained within the license granted to you. You may not translate, reverse-engineer, reverse-compile or decompile, disassemble or make derivative works from BFG Software. You may not modify BFG Software or use it in any way not expressly authorized in writing by BFG. You understand that BFG'S introduction of various technologies may not be consistent across all platforms and that the performance and some features offered by BFG may vary depending on your computer and other equipment.

NEITHER BFG NOR ITS LICENSORS ARE LIABLE IN CONNECTION WITH YOUR USE OF THE BFG SOFTWARE FOR ANY DAMAGES (INCLUDING LIABILITY FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES OR DAMAGE TO YOUR COMPUTER HARDWARE OR SOFTWARE), AND THE ENTIRE RISK OF USE (INCLUDING WITHOUT LIMITATION ANY DAMAGE TO YOUR COMPUTER HARDWARE OR SOFTWARE) RESIDES WITH YOU.

BFG Software may be subject to United States export controls. By downloading BFG Software from BFG, you warrant that you are not located in any country, or exporting BFG Software to any person or place, to which the United States has embargoed goods.

AFFILIATE PROGRAM

"Affiliate Program", formerly known as "My Big Fish Games", is defined as the game affiliate programs and social networking services offered by BFG as My Game Space and the Principal Network Partner program.

YOU AGREE THAT, BY USING THE AFFILIATE PROGRAM, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.

General Terms

The Affiliate Program is a program that rewards Affiliate Program Members for their referral of New Users to BFG (referred to herafter as a "Referral"). A "New User" means a consumer whose email is not in any of BFG'S databases, already contains a BFG or Affiliate Program Member cookie, or is already associated with another Affiliate Program Member at the time of referral. Affiliate Program Members are expected at all times to abide by the Online Conduct rules as outlined in this Terms of Serivce agreement.

Affiliate Program Member Game Spaces

A "Game Space" is provided to each Affiliate Program Member as a tool to allow the Affiliate Program Member to promote his or her participation in the Affiliate Program. Affiliate Program Members can modify and personalize parts of their Game Spaces, including the Welcome Messages, Page Titles, and reviews for their favorite games. When writing a Page Title, Welcome Message, or Game Review, you may not use language that is deemed by BFG to be vulgar or otherwise offensive (see Online Conduct). Affiliate Program Members and guests of My BFG are encouraged to use our online form to report any Game Spaces that they feel violates these Terms of Use.

Content Feeds

BFG provides Affiliate Progam Members access to game and Website assets to enable them to participate in the Affiliate Programs. Content Feeds include all text and graphics associates with the Advertisements, Game Image or other Game Assets, XML Feeds, Sattelite Gamesite System (hereafter referred to as "SGS"), or other game related content provide by the Affiliate Program.

Affiliate Codes and Cookies

Cookies containing Affiliate Program Member's affiliate code are used to track Referrals. Affiliate Program Members affiliate code cookie is placed on a potential New User's machine as a result of one of the following events: a) when a potential New User clicks on a text or graphical link back to any area of BFG with the affiliate code appended to the link; b) when a potential New User visits the Affiliate Program Member's Game Space; or c) when the potential New User uses the download and/or buy inline frame from the Affiliate Program's XML or SGS feeds.

Commissions

Affiliate Program Members earn commissions on successfully completed transactions by Referrals in their network through the BFG ecommerce system. Commissions are given to Affiliate Program Members on completed transactions that currently include game or subscription purchases. BFG reserves the right to update, remove or otherwise alter the mechanisms on which commissions are earned at its sole discretion.

Your Referrals are considered to be in your "Network". If your Referral joins the Affiliate Program, their Referrals are considered to be part of your "Network". You earn a share of all game or game service Gross Revenue that occur through BFG'S Ecommerce system. Gross Revenue is defined as the gross amount collected by BFG less refunds, returns, chargebacks, shipping and handling charges, and taxes. The share you earn depends on the degree of separation between you and the Referral in your Network:

You earn 25% of Gross Revenue generated by your direct Referrals.
You earn 6.25% [or 25% of 25%] of Gross Revenue generated by 2nd degree Referrals (your Referral's Referrals).
You earn 1.56% [or 25% of 25% of 25%] of Gross Revenue generated by 3rd degree Referrals (your Referral's Referral's Referrals).
This decreasing percentage continues to nth degree Referrals where n is the maximum degrees of separation in the Affiliate Partner Member's Network.

Exclusive Affiliate Program Members

To be considered an Exclusive Affiliate Program Member of BFG, your organization must be sourcing games content solely from BFG through the BFG XML or SGS and not use any other affiliate program. You must submit a request to BFG requesting exclusivity. This request must include the following information:

Company/organization name
All websites/webpages owned or operated by company/organization
User id (if already a Affiliate Program Member)
Full disclosure on any current agreements with other affiliate programs sourcing games

Once your request has been submitted to BFG, we will determine whether to grant you Exclusive Affiliate Program Member status. BFG reserves the right to revoke Exclusive Affiliate Program Member status of any Affiliate Program Member who sources games or game content from any other affiliate program.

Exclusive Affiliate Program Member is a partner with an exclusive relationship between BFG and your company/business or entity. To be considered an Exclusive Affiliate Program Member with BFG and be eligible for the exclusivity bonus, all websites or webpages associated with your entity must be sourcing game content through BFG Affiliate Program and no other game affiliate program on any other site owned or operated by the Affiliate Program Member.

BFG reserves the right to approve Exclusive Affiliate Program Member based on, but not limited to the criteria mentioned above. Once an Exclusive Affiliate Program Member relationship has been approved and established between BFG and a Affiliate Program Member, the Affiliate Program Member is eligible to earn additional commissions from certain transactions as follows:

If a transaction originates on a Affiliate Program Member's site the Affiliate Program Member receives an additional 15% of Gross Revenues.
If a transaction originates on BFG'S site or the BFG Game Manager but is the result of the same game download that originated from Affiliate Program Member's site, the Affiliate Program Member receives an additional 15% of Gross Revenues.

Payment

Affilaite Program Members are required to provide complete and accurate payment information before requesting payment from BFG. Failure to provide complete and accurate information may result in the Affilaite Program Member forfeiting payment. To request payment, a Affiliate Program Member must:

Have earned the minimum amount required before requesting payment
$20.00 minimum in earnings before requesting payment by check
$20.00 minimum in earnings before requesting payment through PayPal
$500.00 minimum in earnings before requesting a wire transfer
The member's account must be in good standing

All payments are made in US funds and are payed monthly.

IRS Tax Regulations

Payments to Affiliate Program Members in the United States in a calendar year over $600 will require Affiliate Program Members to complete the IRS form W-9 and international payments will require a W8 BEN for to be completed. Affiliate Program Members will be alerted when their commission earnings reach $600 and will need to download IRS Form W-9 or W8 BEN from our website and return this form BFG via one of the methods listed below before commission payments in excess of $600 can be sent:

Fax:
206.269.3800

US Mail:
BFG
Attention: Accounting
333 Elliott Avenue West, Suite 200
Seattle, WA 98119 USA

Content tools and content

Upon successful account activation, Affiliate Program Members will be given access to the BFG toolset that include, but are not limited to, RSS feeds, XML feeds and the Satellite Gamesite System. These tools contain confidential information and Affiliate Program Members are prohibited from using the tools or any other methods to:

Launch a game on their own or another Affiliate Program Member's site before the game is publicly available and promoted on BFG'S site.
Announce BFG'S Studios products that have not yet been officially announced by BFG
Offer a game on the Affiliate Program Member's site sourced through BFG that is not available as a part of the BFG XML feed as some game development partners specifically do not allow us to promote their games through affiliates. The affiliate may however link directly to the game on BFG site and add their affiliate code to the link to get credit for the referral.

BFG reserves the right to limit or prohibit access to any of the content tools if a partner is in violation of these Terms of Service or at BFG'S sole discretion for any reason.

Sending email and use of email tools

BFG has a Zero Tolerance Policy regarding bulk email and fraud. As a Affiliate Program Member, you agree to only send email invitations or reminders to people you personally know or who have opted-in to receive mailings from you. BFG tracks the volume of email that each Affiliate Program Member sends using our online email tools and flags any account that appears to have an unusually high number of outbound invitations compared with other accounts or has an unusually high unsubscribe or complaint rate. We take abuse reports very seriously and investigate each one.

When sending Affiliate Program-related email, either using the online email tools or their own personal mail client, Affiliate Program Members must comply with the requirements of the CAN-SPAM Act of 2003 (as amended) and any other applicable laws governing email communications or downloadable software applications, including without limitation, the following:

Affiliate Program Members may not use false or misleading header information. The "From," "To," and routing information in the email, including the originating domain name and email address, must be accurate and identify the person who initiated the email.
Affiliate Program Members may not use deceptive subject lines. The subject line cannot mislead the recipient about the contents or subject matter of the message.
When sending email from their own email clients, Affiliate Program Members must give email recipients an opt-out method. Affiliate Program Members must provide a return email address or an Internet-based response mechanism that allows a recipient to ask the Affiliate Program Member not to send future email messages to that email address, and Affiliate Program Member must honor the requests.
Affiliate Program Members may not use "spam," "blast-faxes" or recorded telephone messages to advertise the BFG Website or their participation in the My BFG Program.
Affiliate Program Members may not use the format, templates, design or any assets from the BFG newsletter or promotional email in creating their Program-related email including but not limited to artwork, layout, images and descriptions.
Affiliate Program Members may not send email using BFG email tools more than once per week to a given individual.

For more information on compliance with the CAN-SPAM Act of 2003 please visit the Federal Trade Commission Website at http://www.ftc.gov/spam/

If you are promoting BFG or the Affiliate Program on your own Website, your content may not include, without limitation:

Violence, racial intolerance, or advocacy against any individual, group, or organization
Hacking/cracking content
Illicit drugs and drug paraphernalia
Pornography, adult, or mature content
Any other content that promotes illegal activity or infringes on the legal rights of others
Pop-ups, pop-unders or exit windows that interfere with site navigation, change user preferences, or are for downloads
Sales or promotion of beer or hard alcohol
Sales or promotion of tobacco or tobacco-related products
Sales or promotion of prescription drugs
Sales or promotion of products that are replicas or imitations of designer goods
Any content that infers with the intellectual property or other rights of a third party

BFG Website Look and Feel

Personal Websites belonging to Affiliate Program Members of the Program may not in any way copy or resemble the "look and feel" of the BFG Website. Affiliate Program Members will not create the impression that their personal Website or Game Space is the BFG . Website. Affiliate Program Members' personal websites shall not contain any content from the BFG Website or other proprietary materials of BFG unless specifically provided to the Affiliate Program Member by BFG.

URLs, Keywords, Search Terms, and other Identifiers

Affiliate Program Members shall not use uniform resource locators (URLs), domain names or other website identifiers that contain any BFG trademarks or any derivative thereof. Affiliate Program Members shall not purchase, register, or bid on any keywords, search terms or other identifiers that include any trademark of BFG, for use in any search engine, portal, sponsored advertising service, or other search or referral service.

Meta Data

Affiliate Program Members shall not use the corporate BFG trademark "Big Fish Games" or any derivatives thereof in the Meta Data of any Affiliate Program Member owned or operated Website.

BFG Title Specific Trademarks

Affiliate Program Members shall not use any BFG trademarks or derivatives thereof including titles of published and BFG Studios-created games unless the terms are used to promote those titles referred to by the trademarks.

Advertising

Affiliate Program Members shall not use any BFG trademarks or derivatives thereof including titles, logos, artwork or any other assets of published and Big Fish Studios created games to create advertisements, banners or other promotional materials other than what is provided in the Content Feeds without the express written consent of BFG.

Only approved content located in the BFG XML feed is approved for use in promotion of BFG content offered within the XML feed. Affiliate Program Members shall not use BFG content, logos or assets to create 'hard goods' for physical distribution. These 'hard goods' include but are not limited to cd's, cards or any other physical media that promotes either BFG or the BFG Affiliate Program. Any promotional program using physical media in combination with the Affiliate Program must be approved by BFG in writing.

Affiliate Program Members may not under any circumstances use any method of "cookie stuffing,"which means as setting cookies for the BFG Affiliate Program without the user being referred to BFG, downloading a game from BFG, or buying a game from BFG. Examples of "cookie stuffing" include but are not limited to a) Using hidden inline frames or any other tools to place their affiliate code cookie on a user's machine without meeting one of the above criteria; or b) Changing any information contained within the BFG affiliate code cookie.

Affiliate Program Members may not change or obstruct the content of BFG inline frames contained within the Content Feeds. This includes but is not limited to the BFG logo, the BFG download services information and any other assets provided via the Content Feed inline frames.Affiliate Program Members (individuals or businesses) may not "Nest" multiple Affiliate Program Accounts in a hierarchical manner to get royalties more than once for a single customer transaction. Examples of account "Nesting" are a) adding themselves as a Referral from one of their own existing different Affiliate Program Accounts; or b) adding a Referral to themselves or to the same business's Affiliate Program Accounts or to another person or business legally associated with the Affiliate Program Member (i.e., spouse, second business owned by the same individual as the first).

BFG reserves the right to suspend a Affiliate Program Member's account if in its sole discretion any fraudulent or inappropriate activity or content is discovered on the Affiliate Program Member's site. Fraudulent activity is prohibited on My BFG. Fraud includes but is not limted to:

Knowingly providing any false information, including mailing address or social security number;
Participate in any activity that attempts to generate illegitimate, unearned revenue or registrations;
Use automated scripts that attempt to mimic the activity of legitimate, human visitors;
Harvest, mine, or collect email addresses for use with the Program. You may only send emails to people you personally know or those who have opted-in to receive your mailings.

Additionally, you may not use any software to advertise, market, or promote the Program, or your participation in the Program if the software does any of the following:

Surreptitiously gathers a user's personally identifiable information without the user's explicit consent
Restricts the user's ability to close and pop-ups, pop-unders, or other advertisements that cover otherwise viewable content
Displays an unreasonable number of pop-up or pop-under advertisements per day or per web browsing session
Markets to children under the age of 13
Sends unsolicited information or material to another computer
Diverts the user to another site not requested by the user
Initiates or terminates a user's connection to the Internet
Modifies the user's settings with respect to browser home page, Internet connections (including default access provider), bookmarks, or security levels
Keystroke logging
Automatically re-installs or re-activates itself or another application after being uninstalled or removed by the user
Removes or disables security, pop-up-blocking, anti-virus, anti-Adware, or anti-spyware programs on another user's computer
Violates the CAN-SPAM Act of 2003 (as amended)

Account Termination

Affiliate Program Members will adhere to the ONLINE CONDUCT as defined in this Terms of Service. BFG may change the rules, participation terms, or payment terms and may cancel user accounts and associated future earnings at its sole discretion at any time, with or without cause. No payment terms currently agreed to are perpetually binding and may be changed, effective upon being posted on this Terms of Service agreement. You are responsible for reviewing the Terms of Service and your continued use of the My Game Space and Principal Network Partner services will be your acceptance and contractual performance with respect to such changes.

BFG may terminate an Affiliate Program Member's account if: (a) these Affiliate Program Terms of Service are violated in any way by such Affiliate Program Member, as determined by BFG in its sole discretion, (b) such Affiliate Program Member substantially decreases or stops promoting BFG and/or the Affiliate Program, or substantially promotes one or more affiliate program(s) of any competitor of BFG more prominently than the BFG Affiliate Program, all as determined by BFG in its sole discretion, or (c) such Affiliate Program Member's account is deemed inactive by BFG, meaning that such account has not been logged into by such Affiliate Program Member in the immediately preceding six (6) month period. Upon any termination of an Affiliate Program Member's account, all Referrals will be deleted from such Affiliate Program account, and any referral amounts that have accrued in such account will be forfeited, except as may be determined by BFG in its sole discretion.

Network and membership statistics

BFG reserves the right without additional compensation to use Affiliate Program Member statistics including but not limited to:

Earnings
Referrals
Network growth
Content tool usage

BFG may use these statistics in reporting and communications, both internally and externally, during the duration of the relationship between Affiliate Program Member and BFG. These reports/information do not violate the BFG privacy policy and Affiliate Program Members will be referred to by their affiliate code or by the username created when the Affiliate Program Member signed up for the Affiliate Program.

TERMINATION OF ANY BFG ACCOUNT

BFG and you both have the right to terminate or cancel any Account at any time for any reason. You understand and agree that the cancellation of your account or a particular Account is your sole right and remedy with respect to any dispute with BFG. This includes, but is not limited to, any dispute related to, or arising out of: (1) any term of these Terms of Service or BFG'S enforcement or application of this Agreement; (2) the Content available through BFG or any change in Content provided through BFG; (3) your ability to access and/or use BFG; (4) the amount or type of fees, surcharges, applicable taxes, billing methods, or any change to the fees, applicable taxes, surcharges or billing methods; or (5) the amount ot timing of payments for Royalties regarding your participation in My Big Fish Games Service.

BFG reserves the right to collect fees, surcharges or costs incurred before you cancel your account or a particular subscription. In addition, you are responsible for any charges incurred to third-party vendors or content providers before your cancellation. In the event that your account or a particular subscription is terminated or cancelled, no refund will be granted; no online time or other credits (e.g., points in an online game) will be credited to you or converted to cash or other form of reimbursement, and you will have no further access to your account or anything within BFG associated with it (such as points, tokens or in-game items). Active BFG account holders may not allow former account holders whose account has been terminated by BFG to use their accounts. Any delinquent or unpaid accounts or accounts with unresolved issues with BFG must be settled before BFG may allow you to register again.

Notwithstanding any other statements by BFG on its website or marketing collateral, if your Account is terminated for My Big Fish Games Serivce, you will immediately upon termination cease to accrue or earn any future royalties, commissions, funds or credits of any type.

NEWSLETTERS

When you create a customer account with BFG, you will automatically be registered to receive one or more of our newsletters, even if you previously opted out of receiving newsletters at the time you downloaded any game for free trial play. At any time, you may opt-out of receiving these newsletters by selecting the "unsubscribe" link at the bottom of any newsletter or by contacting us at the address indicated in the newsletter

BETA TESTS

You may be given the opportunity to beta test new games and site features. Your participation as a beta tester is subject to the following terms and conditions.

Closed Beta Tests:

Closed beta tests are confidential. The beta games, including information about features and functionality to be offered as part of the games, are confidential. If you participate in a closed beta test, you will use all reasonable efforts to safeguard and to prevent unauthorized access to, copying, disclosure, and unauthorized use of the beta games. You will carry out the testing personally and not provide access to beta games to any other person. You agree that breach of the above confidentiality obligations will cause irreparable harm to BFG, and BFG is entitled to, in addition to any other remedies available to it, ex parte injunctive relief without bond to prevent the breach or threatened breach of your obligations. Your obligation to keep the beta games confidential will continue until BFG publicly distributes, or has otherwise disclosed to the public through no fault of yours, each of the games and the content that you are testing.

All Beta Tests (Closed And Open):

As a beta tester, you are invited to play beta games for the sole purpose of evaluating the games and identifying errors. Nothing in this Agreement, or on this site, shall be construed as granting you any rights or privileges of any kind with respect to the beta games or content that you find here. The beta games are provided for testing on an "as is" "as available" basis and we make no warranty to you of any kind, express or implied.
When playing some beta games, you may accumulate tokens, experience points, badges, or other value or status indicators. This data may be reset at any time during the testing process, and it may be reset when the particular game completes this testing phase. In this case, all player history and data will be erased and each player will return to novice status.
By selecting a "Play" button to start a beta game, you agree that: (i) playing beta games is at your own risk and that you know that the games may include known or unknown bugs, (ii) any value or status indicators that you achieve through game play may be erased at any time, (iii) BFG has no obligation to make these games available for play without charge for any period of time, nor to make them available at all, (iv) these games may be available only by subscription once the testing process is complete or at any time in the future; (v) BFG'S Terms of Service apply to your use of the games during the testing phase, and (vi) if it is a closed beta test, you will keep all information about the beta games confidential as stated above and not disclose such information to any other person.
Beta Test accounts are non-transferable under any circumstances.

CONTESTS AND SWEEPSTAKES

By subscribing to our newsletter(s), subscribers understand they may be automatically entered into future contests and sweepstakes for subscribers as long as they meet the applicable eligibility requirements, and also agree to all rules and conditions of those contests and sweepstakes. BFG provides rules of participation for certain activities on this site including, without limitation, contests, sweepstakes, and electronic postcards by BFG and in conjunction with third parties. This Agreement is incorporated by reference to the specific rules of participation which appear in connection with information about a particular activity. To the extent that any conflict exists between this Agreement and specific Rules of Participation, the Rules of Participation for the activity in which you choose to participate or are automatically entered into shall govern.

LIMITATIONS ON WARRANTY AND LIABILITY

YOU EXPRESSLY AGREE THAT THE USE OF BFG, BFG SOFTWARE, AND THE INTERNET IS AT YOUR SOLE RISK. BFG, BFG SOFTWARE, BFG'S PRODUCTS AND SERVICES, THIRD-PARTY SERVICES AND PRODUCTS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. BFG PROVIDES ITS SERVICES ON A COMMERCIALLY REASONABLE BASIS AND DOES NOT GUARANTEE THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICE AT TIMES OR LOCATIONS OF YOUR CHOOSING, OR THAT BFG WILL HAVE ADEQUATE CAPACITY FOR THE SERVICE AS A WHOLE OR IN ANY SPECIFIC GEOGRAPHIC AREA.

YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH BFG OR ITS LICENSORS IS TO STOP USING THE SERVICE, AND TO CANCEL YOUR ACCOUNT) YOU ACKNOWLEDGE AND AGREE THAT BFG, ITS SUBSIDIARIES, LICENSORS AND AFFILIATES ARE NOT LIABLE FOR ANY ACT OR FAILURE TO ACT BY THEM OR ANY OTHER PERSON REGARDING CONDUCT, COMMUNICATION OR CONTENT ON THE SERVICE OR USE OF BFG SOFTWARE. IN NO CASE SHALL BFG OR ITS SUBSIDIARIES', LICENSORS', AFFILIATES', EMPLOYEES', OFFICERS', OR DIRECTORS' (COLLECTIVELY, "BFG AFFILIATES") LIABILITY TO YOU EXCEED THE AMOUNT THAT YOU PAID TO BFG FOR THE SERVICE. IN NO CASE SHALL BFG OR BFG AFFILIATES BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF BFG, BFG SOFTWARE, THE INTERNET OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF OR MEMBERSHIP WITH BFG. 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, BFG'S AND BFG AFFILIATES' LIABILITY SHALL BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW. BFG DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY THIRD PARTY PRODUCT OR SERVICE OFFERED THROUGH BFG AND WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.

INDEMNIFICATION

Upon request by BFG, you agree to defend, indemnify and hold harmless BFG and its affiliates, subsidiaries, employees, contractors, officers, directors, vendors, and content providers from all liabilities, claims and expenses, including attorneys' fees, that arise from a breach of these Terms of Service for which you are responsible or in connection with your transmission of any Content on BFG. BFG reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. In that event, you shall have no further obligation to provide indemnification to BFG in that matter. This Section shall survive termination of this Agreement.

OTHER LEGAL TERMS

You agree that these Terms of Service, including the Game Club and Affiliate Programs, are not intended to confer and do not confer any rights or remedies upon any person other than the parties to this Agreement. You also understand and agree that the BFG Terms of Service and the BFG Privacy Policy and the End User License Agreement(s) and subsequent BFG'S enforcement of those policies, are not intended to confer, and do not confer, any rights or remedies upon any person. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. This Agreement contains the entire understanding and supersedes all prior understanding of the parties hereto relating to the subject matter hereof, and cannot be changed or terminated orally. If any provision of this Agreement is found to be illegal or unenforceable, the Agreement will be deemed curtailed to the extent necessary to make it legal and enforceable and will remain, as modified, in full force and effect.

JURISDICTION

The laws of the State of Washington, excluding its conflicts-of-law rules, govern this Agreement and your use of your Accounts, the Services and Memberships. You expressly agree that exclusive jurisdiction for any claim or dispute with BFG or relating in any way to your Accounts, the Services and Memberships or your use of BFG resides in the courts of Washington, county of King and you further agree and expressly consent to the exercise of personal jurisdiction in the courts of Washington in connection with any such dispute including any claim involving BFG or its affiliates, subsidiaries, employees, contractors, officers, directors, vendors and content providers.