Terms of Use - One Duck Theory

ONE DUCK THEORY

Last Modified on September 7, 2021

Important: Please read these Terms of Use carefully before continuing to use this mobile software application or website.

Section 21 of this Terms of Use Agreement contains a binding arbitration clause and class action waiver. If you live in the United States, this Section affects your rights about how to resolve disputes that you may have with us.

Please read it carefully.

This Terms of Use (the “Agreement”) applies to the One Duck Theory game “Sudowords,” and the One Duck Theory website located at https://oneducktheory.com/ (together, the “Service”), provided by One Duck Theory LLC (“One Duck Theory”).

1. Acceptance of Terms

By continuing to use the Service, you agree as follows:

1.1 You understand and intend that this Agreement is a legally binding agreement and the equivalent of a signed, written contract;

1.2 You will use the Service in accordance with applicable laws and regulations and in accordance with the terms and conditions in this Agreement as it may be amended by One Duck Theory from time to time;

1.3 You understand, accept, and have received this Agreement and its terms and conditions, and acknowledge and demonstrate that you can access this Agreement; and

1.4 You must comply with any applicable third-party terms of agreement when using the Service.

If you do not agree with the terms and conditions in this Agreement, please discontinue all further use of the Service.

Additionally, you may only use the Service if you are at least 13 years old. If you are at least 13 years of age but still a minor in your jurisdiction, your parent or legal guardian must agree to this Agreement on your behalf in order for you to access and use the Service.

2. One Duck Theory’s License to You

One Duck Theory grants you a single, non-exclusive, non-transferable and limited personal license to access and use the Service. This license is conditioned on your continued compliance with the terms and conditions in this Agreement. You may not rent, lease, lend, sell, transfer, redistribute, or sublicense the Service and, if you sell or otherwise transfer a device on which any part of the Service is installed to a third party, you must remove the Service from such device before doing so. You may not copy, decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Service, any updates, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the Service).

Apple Users: For users who accessed the Service through the Apple App Store, permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions, the above license is limited to usage on any Apple-branded products that you own or control, and only as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions located at https://www.apple.com/legal/internet-services/itunes/us/terms.html. However, the Service may be accessed and used by other accounts associated with you via Family Sharing or volume purchasing.

3. Messages from One Duck Theory

You understand that you may receive business-related communications from One Duck Theory through the Service or through email, such as product and other announcements, and administrative notices. You agree that these communications are not “unsolicited commercial email advertisements” and you agree to receive them.

Promotional email messages will be accompanied by instructions for opting out.

4. Third-Party Platforms

Even though you may have purchased or licensed the Service through a third-party platform, such as the Apple App Store, the Google Play Store, and others (each, a “Third-Party Platform”), none of the Third-Party Platforms or their owners (including Apple, Google, and any other platform owner) are a party to this Agreement and they have no obligations to you in connection with the Service.

5. Your License to One Duck Theory; Your Conduct

5.1 Your Content. Any communications or material of any kind that you email, post, or otherwise transmit to One Duck Theory or the public on or using the Service, including photographs, chat, emails, comments, voice recordings, data, questions, comments, or suggestions are known as your “Content.”

One Duck Theory does not own your Content. By posting Content, you (i) represent that you are the owner of the Content or have all of the necessary rights to share them, and (ii) give One Duck Theory permission to use, re-use, copy, adapt, abridge, amend, distribute, modify, translate, publish, perform, display, develop, reproduce, communicate to the public and to make your Content otherwise available in any form and by any media (whether now known or hereafter devised), including through any on-demand or broadcast service, whether on a commercial or non-commercial basis anywhere in the world.

5.2 Conduct Policy. You are responsible for your conduct as a user of the Service. You agree that you will not engage in conduct (including the sharing of Content) which:

is threatening, bullying, defamatory, abusive, obscene, lewd, sexually provocative or suggestive, pornographic, or which in any manner could give rise to any civil or criminal liability under applicable law;
is or could be taken as slurs, hate speech, or attacks on individuals or groups on the basis of race, color, gender, age, religion, national origin, disability, sexual preferences, or gender identity;
constitutes spam (sending the same message multiple times or to multiple people, or sharing or sending the same content multiple times, will be treated as spam);
is a solicitation or advertisement for any lewd or inappropriate personal conduct, commercial product, or activity;
encourages or constitutes behavior that does not support a safe and comfortable environment for all users, which conduct may include but not be limited to bullying, vigilantism, engaging in any conduct or activity that is threatening, harmful, harassing, abusive, vulgar, hateful, defamatory, lewd, sexually provocative, suggestive, or explicit, inflammatory, profane, racially or ethnically objectionable or discriminatory, or in any manner encourages inappropriate, disrespectful, abusive, or unlawful conduct or otherwise makes the Service an uncomfortable experience for anyone;
restricts, inhibits, or discourages any other user from using the Service;
hacks, modifies or otherwise makes use of automation software (bots) or any other unauthorized third-party software designed to modify the Service experience;
violates any local, state, federal or international laws or gives rise to civil liability;
violates or infringes any rights of third parties (including but not limited to copyright, trademark, rights of privacy or publicity, defamation or any other proprietary right);
imposes an unreasonable or disproportionately large load on the Service or otherwise interferes with the Service;
is a “chain letter,” or constitutes “junk mail”;
specifies or claims that that you are affiliated with One Duck Theory when you are not, including without limitation an “Administrator,” “Moderator,” “Game Master,” or any other employee or agent of One Duck Theory;
requests login information from other users;
“spoofs” (use of any means to disguise your online identity or alter original attribute information, including, but not limited to duplicate accounts);
uses or possesses programs to “crack” the Service or other Internet security tools;
contains, or uploads files that contain viruses, Trojan horses, worms, corrupted files or data, or any other similar software or programs that may damage or inhibit the operation of the Service; or
is anything else that One Duck Theory, in its sole determination, deems offensive or harmful to the Service or to One Duck Theory’s integrity or business.

6. Virtual Items

Virtual goods, downloadable content, and virtual “tokens” or currency (collectively, “Virtual Items”) may be offered for purchase or otherwise earned through the Service, whether through gameplay, clicking on or watching advertisements, or taking surveys. Your election to make a purchase with real currency will be an offer to One Duck Theory to purchase at the prices and on the terms set forth on the Service.

You agree that you have no right or title in or to any Virtual Items. One Duck Theory does not recognize any purported transfers of Virtual Items outside of the Service, or the purported sale, gift, or trade in the “real world” of anything that appears or originates in the Service. Virtual Items that may be originally acquired by “farming” are subject to confiscation by One Duck Theory. You may not sell Virtual Items for “real” money, or exchange those Virtual Items for value outside of the Service. To be clear, Virtual Items have no real-world value and are licensed, not owned.

Under no circumstances will refunds be given for Virtual Items. All sales of Virtual Items are final when the transaction has been processed.

7. Support Services

One Duck Theory may, in its sole discretion, provide you with customer and technical support services related to the Service (“Support Services”). One Duck Theory is not required to provide Support Services unless otherwise required by applicable law. No failure to provide, or to continue to provide, Support Services will be a default of One Duck Theory under this Agreement. Any supplemental software code provided to you as part of the Support Services will be treated as part of the Service, and as between you and One Duck Theory will be and remain the sole property of One Duck Theory and will be subject to the terms and conditions of this Agreement.

One Duck Theory customer support may be reached by contacting us at [email protected]. None of the Third-Party Platforms or their owners have any obligation whatsoever, under any circumstances, to provide Support Services with respect to the Service. You agree that you will look solely to One Duck Theory in connection with Support Services.

8. Modification, Termination, and Monitoring of the Service

One Duck Theory reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part of the Service) with or without notice at any time. You agree that One Duck Theory will not be liable to you or any third party for any modification, suspension, or discontinuance of the Service.

One Duck Theory reserves the right to monitor use of the Service to determine compliance with this Agreement, as well as the right to edit, refuse to post, or remove any Content, information, or materials, in whole or in part, at our sole discretion. We reserve the right to refuse access to the Service to anyone, for any reason, at any time.

One Duck Theory may monitor your Content and other communications to evaluate the quality of service you receive, your compliance with the Agreement, the security of the Service, or for other reasons. You agree that such monitoring activities will not entitle you to any cause of action or other right with respect to the manner in which One Duck Theory or its affiliates or agents monitor your Content and other communications and enforces or fails to enforce the terms of the Agreement. In no event will One Duck Theory or any of its affiliates or agents be liable for any costs, damages, expenses, or any other liabilities incurred by you as a result of monitoring activities by One Duck Theory or its affiliates or agents.

9. Security of Data Transmission and Storage

Electronic communications using the Service may not always be encrypted. You acknowledge that there is a risk that data, including email, electronic communications, and personal data, may be accessed by unauthorized third parties when communicated between you and One Duck Theory or between you and other parties. Additionally, your communications and Content on the Service may be publicly available to other parties.

One Duck Theory and its affiliates and agents are permitted, but not obligated, to review or retain your Content and other communications.

10. Hyperlinks

The Service may contain links to other sites and software applications, including through display advertisements (the “Linked Services”). One Duck Theory does not control the Linked Services, and One Duck Theory and its affiliates and agents make no representations whatsoever concerning the content, accuracy, security or privacy of those Linked Services. The fact that One Duck Theory has provided a link to an external location is not an endorsement, authorization, sponsorship, or affiliation with respect to such Linked Services, its owners, or its providers. There are risks in using any information, software, or products found on the Internet, and One Duck Theory cautions you to make sure you understand these risks before retrieving, using, relying upon, or purchasing anything via the Internet. You agree that under no circumstances will you hold One Duck Theory or its affiliates or agents liable for any loss or damage caused by use of or reliance on any content, goods, or services available on Linked Services.

11. Trademarks and Copyrights

The Service is owned by One Duck Theory and is protected by United States copyright laws and international treaty provisions. All Service content, trademarks, services marks, trade names, logos, and icons are proprietary to One Duck Theory. Nothing contained in the Service should be seen as granting any license or right to use any trademark displayed in the Service without the written permission of One Duck Theory or such third party that may own the trademarks displayed in the Service. Your use of the trademarks displayed in the Service, or any other content in the Service, except as provided in this Agreement, is strictly prohibited.

Intellectual property displayed through the Service is either the property of, or used with permission by, One Duck Theory. You are prohibited from using or authorizing the use of this intellectual property unless specifically permitted under the Agreement. Any unauthorized use of this intellectual property may violate copyright laws, trademark laws, the laws of privacy and publicity, or other regulations and statutes.

Apple Users: In the event of any third-party claim that the Service or your possession and use of the Service infringes that third party’s intellectual property rights, One Duck Theory, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim.

12. Copyright Complaints

If you are a copyright owner or their agent, and believe that any content on the Service infringes on your copyrights, you may submit a DMCA notification in writing to our Copyright Agent with the following information described below. When we receive a notice alleging copyright infringement, we will take whatever action we deem appropriate, within our sole discretion, including removal of the allegedly infringing materials and termination of access for repeat infringers of copyright protected content.

A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are claimed, a list of those works on the Service;
Identification of the material that is claimed to be infringing and that is to be removed disabled, reasonably sufficient to permit us to locate the material;
Information reasonably sufficient to permit us to contact you, such as your email, address, or phone number;
A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Our Copyright Agent may be reached at the following physical or email address:

One Duck Theory LLC
6 Liberty Sq #94945
Boston, MA 02109

[email protected]

13. Disclaimer of Warranties

Your use of the Service is entirely at your own risk.

The Service is provided by One Duck Theory on an as-is basis. One Duck Theory expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement.

One Duck Theory makes no warranty that (i) the Service will meet your requirements, (ii) that operation of the Service will be uninterrupted, timely, secure, or error-free, or (iii) the results that may be obtained from the use of the Service will be accurate or reliable.

No advice or information, whether oral or written, obtained by you from One Duck Theory, or through the Service creates any warranty regarding the Service not expressly stated in this Agreement.

Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimer may not apply to you.

Apple Users: In the event of any failure of the Service to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Service to you. Additionally, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Service, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, if any, will be One Duck Theory’s sole responsibility.

14. Limitation of Liability

You expressly understand and agree that One Duck Theory is not liable for any direct, indirect, incidental, special, consequential, or exemplary damages, including damages for loss of profits, goods, goodwill, use, data, or other intangible losses (even if One Duck Theory has been advised of the possibility of such damages), resulting from the use or the inability to use the Service or any other matter relating to the Service.

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 One Duck Theory and its affiliates will be limited to the fullest extent permitted by law.

Apple Users: Both you and One Duck Theory acknowledge that One Duck Theory, not Apple, are responsible for addressing any user claims or any third party claims relating to the Service or your possession and/or use of the Service, including, but not limited to: (i) product liability claims; (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation, including in connection with the Service’s use of the HealthKit and HomeKit frameworks.

15. Indemnification

You agree to indemnify and hold One Duck Theory and its affiliates, officers, agents, and employees harmless from any claim, demand, loss, costs, or expense, including attorneys’ fees, made by any person or entity arising out of your violation of this Agreement, state or federal laws or regulations, or any other person’s rights, including infringement of any copyright or violation of any proprietary or privacy right. Under no circumstances, including any negligent act, will One Duck Theory or its affiliates or agents be liable for any damages of any kind that result from the use of, or the inability to use, the Service.

16. Your Personal Information

Certain personal and other information that we collect, process, and share is subject to our Privacy Policy. As a condition of using the Service you agree to the terms of the Privacy Policy, as it may be changed from time to time. Our Privacy Policy, which is incorporated here by reference, is located at https://oneducktheory.com/privacy/. You agree that your use of the Service is subject to the Privacy Policy.

17. Disclosures Required by Law

One Duck Theory reserves the right to disclose any information, including personally identifiable information about you, as necessary to satisfy any applicable law, regulation, legal process, or governmental request. One Duck Theory reserves the right to fully cooperate with any law enforcement authorities or court order requesting or directing One Duck Theory to disclose the identity of any user believed to be in violation of this Agreement.

By accepting this Agreement, you waive all rights and agree to hold One Duck Theory harmless from any claims resulting from any action taken by One Duck Theory during or as a result of its investigations or from any actions taken as a consequence of investigations by either One Duck Theory or law enforcement authorities.

18. Legal Compliance

By using the Service, 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 list of prohibited or restricted parties.

19. Third-Party Beneficiary

Apple Users: You and One Duck Theory acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof.

20. Governing Law; Mediation; Jurisdiction

The Agreement, and all future agreements you enter into with One Duck Theory, unless otherwise indicated on such other agreement, will be governed by the laws of the State of Massachusetts. This is the case regardless of whether you reside or transact business with One Duck Theory, or any of its affiliates or agents, in the State of Massachusetts or elsewhere. Unless a dispute would be governed by the terms of Section 21 below, you agree to submit to the personal and exclusive jurisdiction of the courts located within the city of Boston, Massachusetts, United States.

For EU users only: In the event of a dispute relating to the interpretation, performance, or validity of this Agreement, an amicable solution can be sought before any legal action. You can file your complaint with One Duck Theory by sending a message via email to [email protected]. In case of failure, you can, within one year of the failed request, have recourse to an Alternative Dispute Resolution procedure by filing an online complaint on the European Commission’s Online Dispute Resolution website: https://webgate.ec.europa.eu/odr/main/index.cfm?event=main.home.chooseLanguage. In the event that out-of-court dispute resolutions fail, the dispute may be brought before the competent courts.

21. Binding Arbitration

Any dispute or claim relating in any way to your use of the Service (each, a “Claim”) will be resolved by binding arbitration, rather than in court (except that you may assert claims in small-claims court if your claims qualify). You agree that each Claim must be brought individually.

YOU AND ONE DUCK THEORY AGREE THAT (i) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (ii) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (iii) NO ARBITRATION MAY BE JOINED WITH ANY OTHER ARBITRATION.

The Federal Arbitration Act and federal arbitration law apply to this Agreement and this binding arbitration clause.

Arbitration is a process with no judge or jury – an arbitrator will review the arguments in the dispute and award damages and other relief just like a court would. The arbitrator must follow this Agreement as a court otherwise would. Court review of the arbitration award is limited under the Federal Arbitration Act.

To start an arbitration, you must send an email to [email protected] describing your Claim and requesting arbitration, or we may do the same by sending a written notice requesting arbitration to your address. The proceedings will be conducted through JAMS, using their Streamlined Arbitration Rules and Procedures. You can view these rules at jamsadr.com or by calling 800-352-5267. The payment of the initial filing fees will be made by the party filing the Claim, and any other filing and other fees will be apportioned as directed by the JAMS rules. The arbitration will take place in Boston, Massachusetts, United States, unless the Parties agree to video, phone, or internet connection appearances.

Except as otherwise set forth below, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and One Duck Theory will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given (including any attorneys’ fees and costs awarded), and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based.

Notwithstanding the terms of this Section, either of us may bring a lawsuit in court for equitable relief, for any misuse or infringement of intellectual property rights, or for any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use of the Service.

BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND ONE DUCK THEORY WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.

You and One Duck Theory agree that if any portion of this Section is found illegal or unenforceable, that portion will be severed and the remainder of the Section will be given full force and effect.

22. Miscellaneous Terms

22.1 Agreement Revisions. This Agreement may only be revised in writing by One Duck Theory, or by One Duck Theory’s publication of a new version on the Service.

22.2 Force Majeure. One Duck Theory is not liable for any delay or failure to perform resulting from causes outside the reasonable control of One Duck Theory, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond One Duck Theory’s control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labor, or materials.

22.3 No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and One Duck Theory as a result of this Agreement or your use of the Service.

22.4 Assignment. One Duck Theory may assign this Agreement, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the Agreement without One Duck Theory’s prior written consent, and any unauthorized assignment by you will be null and void.

22.5 Severability. If any part of this Agreement is determined to be void, invalid or unenforceable, then that portion will be severed, and the remainder of the Agreement will be given full force and effect.

22.6 Attorneys’ Fees. In the event any litigation is brought by either party in connection with this Agreement, the prevailing party in such litigation will be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation.

22.7 No Waiver. Our failure to enforce any provision of this Agreement will in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce every such provision thereafter. The express waiver by us of any provision, condition or requirement of this Agreement will not constitute a waiver of any future obligation to comply with such provision, condition or requirement.

22.8 Equitable Remedies. You hereby agree that One Duck Theory would be irreparably damaged if the terms of this Agreement were not specifically enforced, and therefore you agree that we will be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as we may otherwise have available to us under applicable laws.

22.9 Entire Agreement. This Agreement, including the documents expressly incorporated by reference, constitutes the entire agreement between you and One Duck Theory with respect to the Service and supersedes all prior or contemporaneous communications, whether electronic, oral or written, between you and One Duck Theory with respect to the Service.