Terms of Use

Acceptance of Terms

These terms were last updated on May 13, 2014.

Welcome to GameFly. The gamefly.com, digital.gamefly.com, digital.gamefly.co.uk and cheatfreak.com websites, including all subpages and successor pages thereto (collectively, the "Websites"), the GameFly mobile application and associated services (the "Mobile App"), the GameFly Downloader and the GameFly Subscription Rental Service and other services offered by GameFly (the "Service") are owned and operated by GameFly, Inc. and/or one of its subsidiaries including GameFly Digital, Inc. (hereinafter referred to as "GameFly", "we" or "us"). The Website, the Mobile App, the Downloader and the Service are collectively and individually referred to as the "GameFly Site and Services."

GameFly provides the GameFly Site and Services to you subject to the following Terms of Use (the "Agreement"), which may be updated occasionally, at our sole discretion.The most current version of these Terms of Use will always be on this page and will supersede all previous versions. There will always be a link to the most current Terms of Use on the www.gamefly.com homepage. By using, visiting, downloading, installing, or browsing any portion of the GameFly Site and Services, you accept and agree to be bound by these terms. Please read this Agreement carefully, as it requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions, and also limits the remedies available to you in the event of a dispute.

These Terms of Use:

  • Govern your use of the GameFly Site and Services, as applicable. By using, visiting, downloading, installing, or browsing the Website, Mobile App, Downloader or Service, you accept and agree to be bound by these Terms of Use to the exclusion of all other terms. If you do not agree to these Terms of Use, you must immediately discontinue use of the GameFly Site and Services.
  • Are an ongoing contract between you and GameFly and apply to your use of the GameFly Site and Services. These Terms of Use affect your rights and you should read them carefully.
  • Set forth the entire agreement regarding the subject matter discussed herein. If any provision of this Agreement is found to be unlawful, void, or unenforceable, it will not affect the validity and enforceability of any other provision.

Changes to Terms of Use

We reserve the right, in our sole and absolute discretion, to change, modify, add or remove portions of these Terms of Use from time to time (with or without notice). Your continued use of the GameFly Site and Services, or any portion thereof, after changes are posted means that you accept and agree to be bound by such changes. As such, it is your responsibility to review the Terms of Use periodically.

Privacy

Any information you submit to us, or any information we collect in connection with the GameFly Site and Services, is subject to GameFly’s Online Privacy Policy.

Your Account

If you use any portion of the GameFly Site and Services, you represent and warrant that all information you supply to GameFly is complete and accurate. You must have internet access to use the transactional portions of the GameFly Site and Services, as well as a valid major credit or debit card (“Card”) (accepted for all transactions on the Website) or a valid PayPal account (accepted for physical and digital game purchases on the Website). “Payment Method” shall mean payment by Card and/or PayPal account, as may be applicable in each instance. GameFly accepts most major Cards. To view a list of accepted Cards, please see the “Credit Cards and Billing Info” link in the “My Account” section of the Website.

You are solely responsible for maintaining the confidentiality of your account information, including your password, and for restricting access to your computer and mobile device. You also agree not to impersonate any other person while using the GameFly Site and Services. By using any part of the GameFly Site and Services, you agree to accept responsibility for all activities that occur under your account or password. You agree to notify GameFly immediately of any unauthorized use of your account or password, or any other breach of security of which you become aware. It is also your responsibility at all times to provide and maintain an accurate and working email address, delivery address, telephone number, current and valid Payment Method and billing information. We reserve the right to place any account on hold at any time (with or without notification to you) in order to protect us from what we believe to be fraudulent activity. You can find the specific details regarding your subscription with GameFly at any time by clicking on the "My Account" section of the Website.

You are responsible for providing all equipment and software necessary to access the GameFly Site and Services, including without limitation a mobile device that is suitable to connect with and use the mobile components of the GameFly Site and Services, as well as a computer that is suitable to use the Downloader and purchased digital games.

License and Limitations of Use

You must be 18 years of age or older and reside in one of the 50 United States or the District of Columbia to subscribe to the Service and must be 13 years of age or older to use the Mobile App. WHILE INDIVIDUALS UNDER THE AGE OF 18 MAY UTILIZE THE GAMEFLY SITE OR SERVICE, THEY MAY DO SO ONLY UNDER THE SUPERVISION AND WITH THE CONSENT OF A PARENT OR LEGAL GUARDIAN. By subscribing to the Service, you represent that you are at least 18 years of age and reside in one of the 50 United States or the District of Columbia, and by using the Service, you represent that you either (i) are 18 years of age or older, or (ii) have received consent from your parent or legal guardian to access his or her subscription to the Service. By registering for or using the Mobile App, you represent that you are at least 13 years of age. If you are under 18, you must review these Terms of Use with your parent or legal guardian to make sure that you and your parent or legal guardian understand and agree with them. Any registration with, use of or access to the Website or Service by anyone under the age of 13 is strictly prohibited and in violation of this Agreement. Note that the GameFly Site and Services are not directed at collecting information from children under the age of 13, nor are they intended to be used by children under the age of 13. If we receive notice that we have inadvertently collected information from a child under 13, we will take all reasonable steps to delete the information collected from that child.

The games and content we publish and/or distribute through the GameFly Site and Services are strictly for personal and non-commercial use. Subject to the terms and conditions of this Agreement, including your payment of all applicable fees, we agree to deliver games to you and grant you a limited, non-exclusive, non-transferable, revocable, non-sublicensable license to access the GameFly Site and Services for that limited purpose only. All rights not explicitly granted herein are reserved by GameFly or its licensors. Any unauthorized use of the GameFly Site and Services will automatically and immediately terminate your subscription and the license(s) granted by us.

To use the Mobile App you must have a compatible mobile device. GameFly does not warrant that the Mobile App will be compatible with your mobile device. Subject to the terms and conditions of this Agreement, GameFly hereby grants you a limited, non-exclusive, non-transferable, revocable, non-sublicensable license to use a compiled code copy of the Mobile App for one GameFly account on one mobile device owned or controlled by you, for your personal use.

GameFly may make the Downloader available to active subscribers to the Service. Subject to the terms and conditions of this Agreement, if you are an active subscriber to the Service, GameFly hereby grants you a limited, non-exclusive, non-transferable, revocable, non-sublicensable license to download and use a compiled code copy of the Downloader for one GameFly account on one computer owned or controlled by you, for your personal use and solely while you remain an active subscriber to the Service. The Downloader may allow you to download and install certain third party game software on your computer (the "Downloaded Games"). In addition to the terms and conditions of this Agreement, you acknowledge and agree that your use of each Downloaded Game shall be subject to a separate license agreement between you and the applicable licensor for such Downloaded Game (each, a "Downloaded Game EULA"). Unless otherwise set forth in an applicable Downloaded Game EULA, you are only licensed to use each Downloaded Game for so long as you maintain an active subscription to the Service. Without limiting the foregoing, you hereby acknowledge and agree that the Downloader and/or the Downloaded Games contain functionality which is designed to disable your access to the Downloader and/or such Downloaded Games in the event that (i) your subscription to the Service is terminated or expires, or (ii) GameFly decides, in its sole discretion, to generally remove a certain Downloaded Game from its library of available titles.

Except as expressly provided herein, you may not: (i) modify, disassemble, decompile or reverse engineer any part of the GameFly Site and Services, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the GameFly Site and Services, or any portion thereof, to any third party or use the GameFly Site and Services to provide time sharing or similar services for any third party; (iii) make any copies of the GameFly Site and Services; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the GameFly Site and Services, features that prevent or restrict use or copying of any content accessible through the GameFly Site and Services, or features that enforce limitations on use of the GameFly Site and Services; or (v) delete the copyright and other proprietary rights notices on the GameFly Site and Services.

You acknowledge and agree that GameFly may from time to time issue upgraded versions of the Mobile App or Downloader, and may automatically electronically upgrade the version of the Mobile App or Downloader that you are using on your mobile device or computer, respectively. You hereby consent to such automatic upgrading on your mobile device or computer, and agree that the terms and conditions of this Agreement will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile App or Downloader is subject to the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile App or the Downloader or any copy thereof, and GameFly or its third party licensors or suppliers retain all right, title, and interest in the Mobile App and the Downloader (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. GameFly reserves all rights not expressly granted under this Agreement. If the Mobile App or Downloader is being acquired on behalf of the United States Government, then the following provision applies. Use, duplication, or disclosure of the Mobile App or Downloader, as applicable, by the U.S. Government is subject to restrictions set forth in this Agreement and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14 (ALT III), as applicable. The Mobile App and the Downloader originate in the United States, and are subject to United States export laws and regulations. Neither the Mobile App nor the Downloader may be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile App and the Downloader may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the GameFly Site and Services.

The following applies to any Mobile App you acquire from the iTunes Store (“iTunes-Sourced Software”): You acknowledge and agree that this Agreement is solely between you and GameFly, not Apple, and that Apple has no responsibility for the iTunes-Sourced Software or content thereof. Your use of the iTunes-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iTunes-Sourced Software. In the event of any failure of the iTunes-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the iTunes-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iTunes-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to GameFly as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the iTunes-Sourced Software or your possession and/or use of the iTunes-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the iTunes-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to GameFly as provider of the software. You acknowledge that, in the event of any third party claim that the iTunes-Sourced Software or your possession and use of that iTunes-Sourced Software infringes that third party’s intellectual property rights, GameFly, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You and GameFly acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement as relates to your license of the iTunes-Sourced Software, 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 as relates to your license of the iTunes-Sourced Software against you as a third party beneficiary thereof.

The following applies to any Mobile App you acquire from the HP/Palm App Catalog (“Palm-Sourced Software”): You and GameFly acknowledge and agree that HP/Palm, and HP/Palm’s subsidiaries, are third party beneficiaries of this Agreement as relates to your license of the Palm-Sourced Software, and that, upon your acceptance of the terms and conditions of this Agreement, HP/Palm will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to your license of the Palm-Sourced Software against you as a third party beneficiary thereof.

Free Trials, Trial Memberships, and Discount Introductory Offers

We may offer free trials, trial memberships, and discount introductory offers of the Service to allow customers to become familiar with the many benefits of the subscription plans we offer. These trials and introductory offers are available to new (first-time) customers only, limited to one per household, and cannot be combined with any other offer. These limited trials and introductory offers are only valid in the 50 United States and the District of Columbia. A valid Card is required. WE AUTHORIZE THE CARD UP TO THE AMOUNT OF ONE MONTHLY FEE IN ORDER TO VERIFY THE ACCOUNT. We do not receive any payment from this transaction, even if your bank or credit card company temporarily holds the funds in your account.

We will begin charging your Card a monthly subscription fee at the then-current rate (plus any applicable taxes) on the first day following the end of your trial or introductory offer period. YOU MUST CANCEL YOUR SUBSCRIPTION PRIOR TO THE END OF YOUR TRIAL OR INTRODUCTORY OFFER PERIOD TO AVOID HAVING YOUR CARD CHARGED.

During a free trial or introductory offer period, customers will not be eligible to receive free shipping on used game purchases and will not accrue GameFly Rewards.

GameFly free trials, trial memberships, and discount introductory offers are non-transferrable and may not be resold. GameFly does not condone or permit the re-selling of free trials, trial memberships, or discount introductory offers privately or on auction/marketplace websites, and we are under no obligation to honor re-sold free trials, trial memberships, and discount introductory offer memberships. GameFly also does not offer and is not required to provide customer support for issues that may arise from transactions involving the resale of GameFly free trials, trial memberships, or discount introductory offers.

Credit Card Billing & Subscription Fees

Your Service will continue in effect unless and until you properly cancel your membership or we terminate it. By joining the Service, you expressly agree that we are permitted to charge your Card on a monthly basis the subscription fee at the then-current rate (plus any applicable taxes) and any other charges you may incur in connection with your use of the Service. The subscription fee will be billed in full on the first day of your paid subscription and on each monthly anniversary thereafter, unless and until you cancel your subscription. If your billing date lands on a day not contained in a given month, you will be billed on the last day of that month. For example, if your paid subscription began on August 31st, your next billing date would be September 30th.

As a courtesy to our customers, if your Card is within thirty (30) days of expiring, we may update your expiration date automatically by contacting your Card issuer directly. Notwithstanding the foregoing, it remains your responsibility to maintain a current and valid Card. Even if your Card has expired, you authorize us to continue billing that Card and acknowledge that you remain responsible for any uncollected amounts.

GameFly is not responsible for any additional bank fees, interest charges, finance charges, overdraft charges, or other fees resulting from charges made by us. Subscription fees are fully earned upon payment. PAYMENTS ARE NON-REFUNDABLE AND WE DO NOT GIVE PRO-RATED REFUNDS IF CANCELLATION IS INITIATED DURING THE MIDDLE OF A BILLING CYCLE. We also reserve the right to change our fees and prices at any time, or add new fees and charges from time to time, but we will notify you in advance if we do so.

Shipping Policies

Our goal is to ship you the game ranked highest in your queue and to ship it from the warehouse nearest you the same day we receive the prior game you returned to our warehouse or receive notification from the USPS that you placed a game in the mail. We use reasonable efforts to ship games within 1-2 business days after receiving your order. We currently ship six days per week (Monday through Saturday) using USPS first class mail. We do not ship on holidays observed by USPS or on any other days on which USPS doesn’t provide first class mail service. We will send you an email when we have received a returned game and another email when your new game has been shipped.

Notwithstanding the foregoing, we reserve the right to ship rental games among the members of our Service in any manner we determine. Depending on a variety of factors (including the amount and location of our inventory), we may not always send the top choices from your queue or ship your next game the same day we receive one from you. Please note that not all deliveries will be shipped from the warehouse closest to you. Other factors that may impact the delivery time are (i) the timing of changes to your game queue; (ii) the location of the warehouse; (iii) delivery issues within the USPS system; and/or (iv) technical problems within GameFly and/or the internet.

Right to Terminate

We reserve the right to terminate or restrict your subscription, or the use of any or all of the GameFly Site and Services, without notice, for any or no reason.

Lost, Unreturned and Damaged Games

As a member of the subscription service, you agree and authorize us to charge your Card for the current retail price or replacement price (whichever is higher) of a game (an “Unreturned Game”) under the following circumstances:

  • If we do not receive a game within seven (7) days of cancellation or other termination of your free trial or paid membership, unless you can document that the game has been received by GameFly by using shipping with a tracking method;
  • If you report to us within seven (7) days of receipt that you received an unplayable game, and you fail to return the unplayable game to us within seven (7) days of your reporting it as unplayable;
  • If you have lost a game and reported it to us as lost; or
  • If you have damaged a game (whether or not you reported it to us as damaged)

If we charge your Card for an Unreturned Game and you wish to return it to us and receive a full credit, the game must be received by GameFly in playable condition within thirty (30) days of the charge to your Card for such Unreturned Game. If GameFly receives the game in a playable condition within thirty-one (31) to sixty (60) days of the charge to your Card for such Unreturned Game, a credit equal to 80% of the charged amount will be applied to your Card. Unreturned Games received after sixty (60) days will not be eligible for credit.

If we are unable to charge your Card for an Unreturned Game, your account may be sent to a collections agency. If an overdue account is assigned for collection, you agree to pay all reasonable collection costs, attorney fees, and court costs incurred. You further agree that all overdue accounts shall bear interest at the maximum rate allowed by law.

If the number of lost and/or damaged games on your account become excessive, we may place your account on hold or terminate your membership.

Purchases and Pricing

The GameFly Site and Services may offer used, new, pre-purchase and pre-order items for sale. Prices and availability of products on the GameFly Site and Services are subject to change without notice. We reserve the right to limit purchase quantities. Dealer orders will not be accepted without prior written permission. Free shipping only applies to purchases of used games and is provided only to active paying members in good standing (not during a free trial period), unless stated otherwise in the course of a specific promotion.

GameFly reserves the right to cancel any order placed through any portion of the GameFly Site and Services.

Prices for used, new, pre-purchase and pre-order items are displayed on the GameFly Site and Services as these items become available.

With respect to items placed into or saved to your shopping cart, we will confirm the total price of your order before you complete the checkout process, and authorize your Payment Method for the total price before it enters the fulfillment process; however, we do NOT charge your Payment Method until after your order has entered the fulfillment process unless it is a pre-purchase including an unreleased title. Your Payment Method is charged in full for pre-purchases when the order is placed.

From time to time, a small number of items may be mispriced. Errors will be corrected where discovered and GameFly reserves the right to revoke any stated offer and to correct any errors, inaccuracies or omissions including after an order has been submitted.

If we discover a mispricing, we will do one of the following:

If an item's correct price is lower than our stated price, we will charge the lower amount and ship you the item.

If an item's correct price is higher than our stated price, we will (at our discretion) either contact you for instructions before shipping or cancel your order and notify you of such cancellation.

Sales Tax

GameFly will collect and remit sales tax on purchases as required by applicable law for transactions made through the GameFly Site and Services. Sales tax charged is based on the ZIP code included in your shipping address. For sales of digital goods or other instances where a shipping address is not applicable, the sales tax charged is based on the ZIP code included in the billing address. At checkout, we will display the estimated sales tax for your order. This is only an estimate; the final sales tax charged for any purchase will be determined by your ZIP code at the time your order enters the fulfillment process and your Payment Method is charged.

Keep Orders

Select items you currently have rented may be available to keep at a discounted rate (the “Keep Program”). The Keep Program allows you to elect to purchase the game disc that you currently have rented; once the purchase is complete, we will ship you the original case and manuals for the same product.

Pre-Orders and Pre-Purchases

Select products will be available to pre-order prior to their release dates (“Pre-Order”). Pre-ordering a product reserves your quantity of the product. Upon placing the order, your Card will be authorized for the total amount of the order. Your Card will be charged only after your order has entered the shipping process.

Other select products will be available to pre-purchase prior to their release dates (“Pre-Purchase”). Pre-Purchasing a product means your Card will be charged for the product upon placing the order.

The release date of a Pre-Order or a Pre-Purchase is subject to change, and we make no warranty that we will ship the item or have it available for download on the date of release stated at the time you place your order. Should the release date of a Pre-Order or Pre-Purchase change, we will notify you via email. You may also elect to cancel a Pre-Order at any time up until the time your Payment Method is charged through the Purchase History page under My Account. Pre-Purchases are non-cancellable and you may not cancel after you place the order.

Sometimes, the price of a Pre-Order may change. Should the price of an item change after you have placed a Pre-Order through any portion of the GameFly Site and Services, we will send you an email to notify you of the change and ask you to confirm that you still wish to pre-order the item. If you do not confirm your Pre-Order, it will be cancelled. For a Pre-Purchase item, we will not adjust your price after the order has been placed.

GameFly reserves the right to cancel a Pre-Order or a Pre-Purchase at any time. In the event a Pre-Order is cancelled by GameFly, any and all charges for that Pre-Order product will be voided. In the event a Pre-Purchase is cancelled by GameFly, we will refund the amount of the original charge for the product to your Payment Method.

GameFly Rewards Program

Joining the Service as a renting non-trial member automatically enrolls you in the GameFly rewards program (“Rewards Program”). Three months is defined as three (3) consecutive months of Service with uninterrupted billing. Cancellation or termination of your GameFly account will reset your Rewards Program level to level zero (0).

Coupons, GameFly Dollars, and Other Virtual Goods

GameFly may issue coupons, currency for use on the GameFly Site and Services (“GameFly Dollars”), and/or fictional property representing virtual achievements (for example, badges or trophies) (collectively “GameFly Property”) from time to time for reasons including but not limited to, special promotions, your participation in the Rewards Program (as described below), and your participation in a GameFly-issued survey.

Coupons issued are valid for a limited time only and may include restrictions on which products qualify for use of the coupon. Percent-off coupons are applicable towards the unit price of qualifying items (exclusive of tax and shipping charges) and may not be combined with other offers. Shipping coupons may discount the shipping cost of your purchase when applied during the checkout process. Shipping coupons may be valid only for a specific shipping method which must be selected during checkout in order to qualify for use of the coupon. The actual discount resulting from a shipping coupon is determined during checkout based on the quantity of qualifying items in your order. From time to time, GameFly may issue special-use coupons that are only available for limited-time use and expire less than 180 days from issuance. Coupons are not redeemable for cash, are non-transferable and may not be applied to past orders. Unused portions of redeemed coupons will be forfeited at the completion of the transaction.

GameFly Dollars issued through the Rewards Program (as defined above) are applicable toward purchases of used games or Keep Program orders on used games you currently have rented (inclusive of tax and shipping charges). GameFly Dollars are not redeemable for cash, are non-transferable and may not be applied to past orders. Unused portions of redeemed GameFly Dollars will be forfeited at the completion of the transaction. Rewards Programs benefits are not transferable between accounts. Unless otherwise stated, GameFly Dollars issued through the Rewards Program expire ninety (90) days after being issued. GameFly may implement a yearly maximum amount of GameFly Dollars that an account can be awarded. GameFly may modify or terminate this program at any time and may do so without notice or cause.

You understand and agree that GameFly Property represents a limited license right governed solely by the terms of this Agreement and is available for distribution at GameFly's sole discretion. GameFly Property is not redeemable for any sum of money or monetary value from GameFly at any time. You acknowledge that you do not have any ownership interest in the account(s) you use to access the GameFly Site and Services, nor do you possess any rights of access or rights to data stored by or on behalf of GameFly on GameFly servers, including without limitation any data representing or embodying any or all of your GameFly Property. You agree that GameFly has the absolute right to manage, regulate, control, modify and/or eliminate GameFly Property as it sees fit in its sole discretion, in any general or specific case, and that GameFly will have no liability to you based on its exercise of such right. All data on GameFly's servers are subject to deletion, alteration or transfer. NOTWITHSTANDING ANY VALUE ATTRIBUTED TO SUCH DATA BY YOU OR ANY THIRD PARTY, YOU UNDERSTAND AND AGREE THAT ANY DATA, ACCOUNT HISTORY AND ACCOUNT CONTENT RESIDING ON GAMEFLY'S SERVERS MAY BE DELETED, ALTERED, MOVED OR TRANSFERRED AT ANY TIME FOR ANY REASON IN GAMEFLY'S SOLE DISCRETION, WITH OR WITHOUT NOTICE AND WITHOUT LIABILITY OF ANY KIND. GAMEFLY DOES NOT PROVIDE OR GUARANTEE, AND EXPRESSLY DISCLAIMS, ANY VALUE, CASH OR OTHERWISE, ATTRIBUTED TO ANY DATA RESIDING ON GAMEFLY'S SERVERS. YOU ACKNOWLEDGE AND AGREE THAT GAMEFLY IS NOT REQUIRED TO PROVIDE A REFUND OR COMPENSATION FOR THE GAMEFLY PROPERTY FOR ANY REASON, AND THAT YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED GAMEFLY PROPERTY, INCLUDING WITHOUT LIMITATION GAMEFLY DOLLARS, WHEN AN ACCOUNT IS CLOSED, WHETHER SUCH CLOSURE IS VOLUNTARY OR INVOLUNTARY.

Shipping

Shipping prices are calculated as a single base price per shipment plus an incremental cost per each item included in the order. For Pre-Orders and Pre-Purchases, each pre-ordered and pre-purchased item is a separate shipment and will incur a separate base shipping price cost in addition to the incremental item shipping cost.

We offer several methods of shipping. Certain U.S. addresses and P.O. boxes are not serviceable by all shipping methods. If your address does not qualify for certain shipping methods, you will be notified during the checkout process.

Physical Games Returns Policy

If a physical item that you purchase from the GameFly Site and Services is not operational (and it has not been damaged by you) and you notify us within fourteen (14) days of the shipping date, we will, as your sole remedy, refund your money (excluding shipping costs) subject to the conditions below.

Purchases of physical items from the GameFly Site and Services may be returned for a refund provided all of the following conditions are met:

  • You've contacted GameFly customer service to inform us of your damaged or unplayable game within fourteen (14) days of the shipping date. You will then receive a return authorization number (RMA)
  • Returned items are received by GameFly with an RMA in their full, undamaged original packaging
  • Manuals and any other documentation are included with the disc in their original case

If the preceding conditions are met, a refund will be provided in accordance with the following:

  • If GameFly receives the returned item within thirty (30) days of original shipping date, you will receive a full refund of the purchase price paid, less any applicable shipping costs.
  • If GameFly receives the returned item within thirty-one (31) to sixty (60) days of original shipping date, you will receive a refund equal to 80% of the purchase price paid, less any applicable shipping costs.

Returns of new or used items will not be accepted more than sixty (60) days after the original shipping date.

Digital Games Returns Policy

All digital game sales are final and cannot be returned.

GameFly Referrals Program Terms

We may, from time to time, offer GameFly users the opportunity to earn rewards by referring friends to try the Service ("Referral Program"). Participation in the Referral Program may require users to submit personal information about themselves and their friends, such as name and email address. By participating in the Referral Program, users agree to receive communications from GameFly and/or our partners that operate and maintain the Referral Program, in connection with participation in the Referral Program. The following guidelines shall apply to a user's participation in any Referral Program:

  1. A valid referral is a new member who subscribes to and has properly paid for the Service for at least one (1) billing cycle, is actively using the rental service, and has not initiated any chargebacks.
  2. Users may earn one (1) reward for each valid referral. There is no limit to the number of overall rewards that a user may earn.
  3. User’s account must be in good standing to earn any referral rewards.
  4. Only one (1) new GameFly account per household will be eligible as a “new member”. If multiple referrals originate from the same household based off of originating IP address and/or Card billing or shipping address submitted by the referred users, they will be counted as a single referral for purposes of determining the referral reward earned.
  5. Referrals must remain GameFly members for a minimum of one (1) billing cycle in order for a user to receive credit for a referral's enrollment in the Referral Program.
  6. Users may not submit multiple e-mail addresses and/or multiple Card numbers to set up GameFly accounts in an attempt to earn a reward or an additional reward.
  7. Users may not participate in a Referral Program where doing so would be prohibited by any applicable law or regulations.
  8. A user's eligibility to earn a reward will be based on the ability to make referrals that result in new GameFly customers. Referrals to existing GameFly customers will not count towards eligibility to earn a reward.
  9. Credit for referrals will only be issued for those referrals who participate using their unique referral link.
  10. Users may not use “spam,” “bots,” or other similar methods to obtain referrals. Users may not acquire referrals through unsolicited e-mail to persons unknown to them, or through UseNet or message board postings, where the postings are unrelated to the topic of discussion or otherwise violate the terms of the site.
  11. GameFly does not guarantee delivery time on any rewards earned, nor does it guarantee receipt of any rewards.
  12. "One (1) Month of GameFly Service" Reward is limited to the 2-Game Plan, which allows up to two (2) games to be rented at any given time.

We reserve the right to modify or amend at any time these guidelines and the methods through which rewards are earned. We reserve the right to disqualify a user at any time from participation in the Referral Program if they do not comply with any of these guidelines or otherwise abuse the Referral Program. All information collected from a user in the Referral Program shall be subject to the GameFly’s Online Privacy Policy.

Personal Property

If we are able to identify a CD, DVD, game or other item inadvertently submitted to us as a rental return, we will make a reasonable attempt to return the item to the sender. You hereby release us from any liability arising from the receipt and attempted return of such items.

Gift Certificates

Gift certificates must be bought and redeemed directly through the Website, and may only be used toward the purchase of a Service subscription. Gift certificate recipients will need a valid Card to activate their gift subscription. The recipient's Card will only be authorized, it will not be charged. Unless the recipient cancels prior to the end of the gift subscription period, GameFly will begin to charge the recipient's Card for monthly subscription fees (plus applicable taxes) at the completion of the gift subscription period. WE DO NOT GIVE PRO-RATED REFUNDS IF CANCELLATION IS INITIATED DURING THE MIDDLE OF A BILLING CYCLE.

Gift certificates are not redeemable for purchases of non-subscription products from the Website or purchases from our partners. Except as otherwise required by applicable law, gift certificates cannot be used to purchase additional gift certificates, are not redeemable for cash and cannot be returned for a cash refund. GameFly is not responsible for lost or stolen gift certificates. We retain the right to close customer accounts and request alternative forms of payment if a fraudulently obtained gift certificate is redeemed.

Gift certificates are non-transferrable beyond the original gift recipient and may not be resold. GameFly does not condone the re-selling of gift certificates privately or on auction/marketplace websites, and we are under no obligation to honor re-sold gift certificate memberships. GameFly also does not offer and is not required to provide customer support for issues that may arise from transactions involving the resale of GameFly gift certificates.

Pre-Paid Subscriptions

Pre-paid subscriptions must be redeemed through the Website. Redemption requires a valid Card and shipping address. Unless you cancel prior to the end of the pre-paid period, GameFly will begin to charge your Card for monthly subscription fees plus applicable sales tax at the completion of the pre-paid period. WE DO NOT GIVE PRO-RATED REFUNDS IF CANCELLATION IS INITIATED DURING THE MIDDLE OF A BILLING CYCLE.

Pre-paid subscriptions cannot be used to purchase non-subscription products or gift certifications from the Website or our partners and cannot be returned for a cash refund. GameFly is not responsible for lost or stolen pre-paid subscriptions. We retain the right to close customer accounts and request alternative forms of payment if a fraudulently obtained pre-paid subscription is redeemed.

Pre-paid subscriptions are non-transferrable and may not be resold. GameFly does not condone the re-selling of pre-paid subscriptions privately or on auction/marketplace websites, and we are under no obligation to honor re-sold pre-paid subscriptions. GameFly also does not offer and is not required to provide customer support for issues that may arise from transactions involving the resale of GameFly pre-paid subscriptions.

Safe Shopping

Federal law limits your liability for unauthorized charges to your account. The Fair Credit Billing Act (FCBA) states that your credit card company (creditor) cannot hold you liable for more than $50 in the unlikely event a fraudulent charge occurs on your account. GameFly will pay up to $50 of your liability if your Card is used fraudulently at the Service.

We will assume the aforementioned $50 liability only if the unauthorized use of your Payment Method resulted through no fault of your own from purchases made at the Website while using our secure server. In the event of unauthorized use of your Payment Method, you must notify your Payment Method provider in accordance with the FCBA reporting rules and procedures.

In cases of unauthorized Card use within a household that result in purchases from the Website, the item(s) must be unopened (for new game sales) and received by GameFly in playable condition within thirty (30) days of the date of the sale to receive a full refund. If GameFly receives the purchased game in a playable condition within thirty-one (31) to sixty (60) days of the date of the sale, a credit equal to 80% of the purchase amount will be applied to your Card. Purchased games received more than sixty (60) days after the date of sale will not be eligible for credit. In cases of unauthorized Card use within a household that result in game rental subscriptions, we will credit up to one (1) month of service if all games are returned in playable condition within seven (7) days of the date you notify us of the unauthorized Card use (but in no event any later than forty-five (45) following the date of the unauthorized Card use).

All digital game sales are final and cannot be returned.

Intellectual Property

All content and data included on the Website, including but not limited to graphics, text, user interfaces, visual interfaces, photographs, trademarks, sounds, music, artwork, computer code, logos, button icons, and software, (collectively, “Content”) including but not limited to the design, structure, selection, expression, look and feel and arrangement of such Content, is the property of GameFly, and/or its suppliers or licensors, and is protected by trade dress, copyright, patent and trademark laws, and other intellectual property rights and unfair competition laws. No Content may be reproduced, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, distributed, accessed or otherwise used without express written permission from GameFly.

You agree not to interfere with, decompile, reverse engineer or disassemble any software, products or processes accessible through the GameFly Site and Services, not to insert any code or manipulate any content on the GameFly Site and Services, and not to use data mining, data gathering or any other extraction methods. GameFly does not condone the copying of video games or other infringing activities.

GameFly is a registered trademark of GameFly, Inc. GameFly's trademarks may not be used in connection with any product or service that is not expressly permitted by GameFly in writing, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits GameFly. All other trademarks not owned by GameFly that appear on the GameFly Site and Services or on games are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by GameFly. Any images of persons or personalities contained on the GameFly Site and Services or in games shall not be an indication of endorsement of any particular product or the GameFly Site and Services unless otherwise specifically indicated.

Website Content

GameFly may offer synopses, reviews, instruction manuals, user comments and other information pertaining to the games we distribute. Under no circumstances shall GameFly, or GameFly’s parent, subsidiaries, suppliers, licensors or other affiliated companies, or their respective shareholders, directors, officers, agents or employees (individually and collectively, the “GameFly Parties”) be held liable for any loss or damage caused by your reliance on information obtained through the Website. It is your responsibility to evaluate and make your own independent judgment about the information, opinion, advice and other content available through the GameFly Site and Services.

Some hyperlinks on the Website may lead to other websites that are not owned or controlled by GameFly. Such sites are provided solely as a convenience to our visitors. GameFly has not reviewed these sites and has no control over the content of such sites. Connecting to linked sites and/or downloading any information from linked sites is done entirely at your own risk. GameFly makes no representation or warranty that downloads from linked sites will meet any prescribed specification, nor do we make any representation or warranty that such linked sites will not contain viruses or otherwise impact your computer.

GAMEFLY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH OUR WEBSITE OR SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND GAMEFLY WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.

Electronic Communications

By using any portion of the GameFly Site and Services, you agree to receive notices and electronic communications from GameFly. These communications may include information about your account, such as shipping and confirmation e-mails, or information related to the GameFly Site and Services, and features. These communications are also part of your subscription to our Service. If you subscribe to or follow a user or product through any portion of the GameFly Site and Services, we may send you notifications about that user or product. You agree that any notice, agreements, disclosures, or other communications that we provide to you electronically satisfy any legal requirements that such communications be in writing.

Your Conduct on the GameFly Site and Services

By using any portion of the GameFly Site and Services, you agree (i) not to upload, post, email, or otherwise send or transmit any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software, hardware, equipment, or content associated with any portion of the GameFly Site and Services;(ii) not to interfere in any way with the servers or networks connected to any portion of the GameFly Site and Services; (iii) not to violate any of the procedures, policies, or regulations of networks connected to the GameFly Site and Services, the terms of which are incorporated herein; and (iv) not to conduct yourself in an offensive manner or impersonate any other person while using any portion of the GameFly Site and Services, or use any portion of the GameFly Site and Services for any unlawful purpose.

User Reviews and Other User-Submitted Content

Visitors may post, upload or submit reviews, comments, suggestions, ideas, questions, answers, or other content (collectively “User Content”) as provided for on the GameFly Site and Services. You retain ownership of your User Content. You agree not to post User Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you or to any other person; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we may deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) contains any information or content that you know is not correct and current. You agree that any User Content that you post does not and will not violate third-party rights of any kind, including without limitation any intellectual property rights or rights of privacy. To the extent that your User Content contains music, you hereby represent that you are the owner of all the copyright rights, including without limitation the performance, mechanical, and sound recordings rights, with respect to each and every musical composition (including lyrics) and sound recording contained in such User Content and have the power to grant the license granted herein. GameFly reserves the right, but is not obligated, to reject, modify and/or remove any User Content for any reason at any time. You understand that publishing your User Content on the Website is not a substitute for registering it with the U.S. Copyright Office, the Writer’s Guild of America, or any other rights organization. GameFly is free to use any comments, information, ideas, concepts, reviews or techniques or other material you may post, upload, submit, send or otherwise provide to us (without acknowledgement or compensation) for any purpose on an unrestricted basis.

If you do post, upload, submit, send or otherwise provide content or User Content, and unless we indicate otherwise, you grant GameFly and its affiliates and sublicensees a non-exclusive, royalty-free, perpetual, irrevocable, and fully sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such User Content throughout the world in any media. You grant GameFly and its affiliates and sub-licensees the right to use the name that you submit in connection with such User Content, if they choose. You understand and agree that GameFly may feature your posts or submissions and you hereby grant GameFly permission to do so without further consideration or compensation to you. You represent and warrant that (i) you own or otherwise control all of the rights to the User Content that you post; (ii) that the User Content is accurate; (iii) that the User Content does not violate the intellectual property rights, including without limitation rights of publicity or privacy, or any third party; (iv) you have the written consent of each and every identifiable natural person in the content to use such person’s name or likeness in the manner contemplated by the GameFly Site and Services and this Agreement, and each such person has released you from any liability that may arise in relation to such use; (v) that use of the User Content you supply does not violate this policy and will not cause injury to any person or entity; and (vi) that you will indemnify and hold harmless the GameFly Parties and the volunteer moderators (individually and collectively, the “Moderators”) for all claims arising from content you supply. GameFly takes no responsibility and assumes no liability for any content posted by you or any third party.

You understand and agree that GameFly grants you the limited right to “post” (i.e. disclose) certain User Content and/or information from the GameFly Site and Services to third-party social networking services, and that any User Content and/or information so posted or disclosed by you is subject to the policies and restrictions of the applicable social networking service, and not GameFly.

Copyright Complaints

If you believe that material on the Website is infringing your rights under U.S. copyright law, you may file a complaint of such claimed infringement with GameFly's designated copyright agent:

By Mail to:

President
GameFly, Inc.
PO Box 5326
Culver City, CA 90231-5326

By E-mail: copyright@gamefly.com

For your complaint to be valid under the Digital Millennium Copyright Act (DMCA), you must provide the following information when providing notice of the claimed copyright infringement:

  • An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
  • Identification of the copyrighted work that you claim has been infringed upon;
  • A description of where the material that you claim is infringing is located on the site;
  • Your address, telephone number, and e-mail address;
  • A statement by you that you have a good-faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
  • A statement by you made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on behalf of the copyright owner.

You should be aware that, under the DMCA, claimants who make misrepresentations concerning copyright infringement might be liable for damages incurred as a result of the removal or blocking of the material, court costs, and attorney's fees.

No Warranty; Disclaimers

THE CONTENT OF THE GAMEFLY SITE AND SERVICES, AND THE PRODUCTS WE DELIVER (INCLUDING, BUT NOT LIMITED TO, GAMES AND OTHER THIRD PARTY CONTENT) ARE PROVIDED ON AN "AS IS" AND “AS AVAILABLE” BASIS. ALL INFORMATION PROVIDED ON THE SITE IS SUBJECT TO CHANGE WITHOUT NOTICE.GAMEFLY, ITS SUPPLIERS AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, OF ANY KIND ABOUT THE GAMEFLY SITE AND SERVICES AND ANY CONTENT PROVIDED IN CONNECTION THEREWITH. GAMEFLY, ITS SUPPLIERS AND LICENSORS ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY ERRORS OR OMISSIONS IN THE CONTENT OF THE GAMEFLY SITE AND SERVICES, FOR ANY FAILURES, DELAYS, OR INTERRUPTIONS IN THE DELIVERY OF ANY CONTENT CONTAINED ON THE GAMEFLY SITE AND SERVICES, FOR ANY LOSSES OR DAMAGES ARISING FROM THE USE OF THE GAMEFLY SITE AND SERVICES, OR FOR ANY CONDUCT BY USERS OF THE GAMEFLY SITE AND SERVICES. TO THE FULL EXTENT PERMISSIBLE BY LAW, GAMEFLY, ITS SUPPLIERS AND LICENSORS DISCLAIM ALL REPRESENTATIONS AND WARRANTIES ABOUT THE GAMEFLY SITE AND SERVICES AND THE GAMES WE DELIVER, INCLUDINGWARRANTIES OF ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IN ADDITION, WE DO NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE VIA THE GAMEFLY SITE AND SERVICES IS ACCURATE, COMPLETE, OR CURRENT. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE GAMEFLY SITE AND SERVICES IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE GAMEFLY SITE AND SERVICES. YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE GAMEFLY SITE AND SERVICES AND ANY LINKED SITES. YOUR SOLE REMEDY AGAINST GAMEFLY, ITS SUPPLIERS AND LICENSORS, FOR DISSATISFACTION WITH THE GAMEFLY SITE OR SERVICES IS TO STOP USING THE GAMEFLY SITE AND SERVICES.

GameFly reserves the right to do any of the following, at any time, without notice: (1) to modify, suspend or terminate operation of or access to the GameFly Site and Services, or any portion thereof, for any reason; (2) to modify or change the GameFly Site and Services, or any portion thereof, and any applicable policies or terms; and (3) to interrupt the operation of the GameFly Site and Services, or any portion thereof, as necessary to perform routine or non-routine maintenance, error correction, or other changes.

Limitation of Liability

EXCEPT WHERE PROHIBITED BY LAW, IN NO EVENT SHALL THE GAMEFLY PARTIES, OR ANY OF THEM, BE LIABLE (JOINTLY OR SEVERALLY) TO YOU FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND AND HOWEVER CAUSED, OR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF DAMAGE, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH ANY OR ALL OF THE GAMEFLY SITE AND SERVICES OR ANY THIRD PARTY CONTENT PROVIDED IN CONNECTION THEREWITH, OR THE USE OR PERFORMANCE OF ANY PRODUCTS (INCLUDING, BUT NOT LIMITED TO, GAMES) OR THE INFORMATION ON OUR WEBSITE. IN NO EVENT SHALL THE GAMEFLY PARTIES, OR ANY OF THEM, BE LIABLE (JOINTLY OR SEVERALLY) TO YOU FOR ANY DAMAGE OF ANY KIND TO YOUR MOBILE DEVICE, GAME CONSOLE, OR OTHER EQUIPMENT ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF ANY GAMES. WHILE GAMEFLY WILL MAKE A REASONABLE EFFORT TO RETURN ANY CUSTOMER'S PROPERTY IT RECEIVES INADVERTENTLY, GAMEFLY WILL NOT BE LIABLE FOR ANY LOSSES OF OR DAMAGE TO SUCH PROPERTY. IF ANY APPLICABLE AUTHORITY HOLDS ANY PORTION OF THIS SECTION TO BE UNENFORCEABLE, THEN LIABILITY WILL BE LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY APPLICABLE LAW.

IF, NOTWITHSTANDING THE OTHER PROVISIONS OF THESE TERMS OF USE, GAMEFLY IS FOUND TO BE LIABLE TO YOU FOR ANY DAMAGE OR LOSS WHICH ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH YOUR USE OF THE GAMEFLY SITE AND SERVICES OR THIRD PARTY CONTENT PROVIDED IN CONNECTION THEREWITH, THE TOTAL LIABILITY OF GAMEFLY, ITS SUPPLIERS AND LICENSORS SHALL IN NO EVENT EXCEED THE GREATER OF (1) THE TOTAL AMOUNT OF ANY SUBSCRIPTION FEES PAID BY YOU IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO YOUR CLAIM, AND (2) ONE HUNDRED DOLLARS ($100). SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS OF LIABILITY, SO THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU.

You agree that the provisions contained in this section will survive any termination or expiration of this Agreement and/or your account, or of discontinuation of all or any portion of the GameFly Site and Services.

Indemnification

You agree to defend, indemnify and hold harmless the GameFly Parties and the Moderators from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from or related to: (i) your use of and access to the GameFly Site and Services and any third party content provided in connection therewith, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties contained herein; (iii) your violation of any third-party right, including without limitation any right of privacy or intellectual property rights; (iv) your violation of any applicable law, rule or regulation; (v) any claim or damages that arise as a result of any of your User Content or any content that is submitted via your account; or (vi) any other party’s access and use of any portion of the GameFly Site and Services with your unique username, password or other appropriate security code. You agree that the provisions contained in this section will survive any termination or expiration of this Agreement and/or your account, or of discontinuation of all or any portion of the GameFly Site and Services.

Arbitration Agreement

Any claim or dispute between you and GameFly that arises in whole or in part from all or any portion of the GameFly Site and Services or otherwise in connection with this Agreement (a "Dispute") shall be decided exclusively by binding arbitration as set forth in this section, and not by courts of general jurisdiction. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. You agree that, by agreeing to this Agreement, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision and that you and GameFly are each waiving the right to a trial by jury. YOU AND GAMEFLY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.

If you elect to seek arbitration in connection with a Dispute, you must first send to GameFly, by certified mail, a written notice of the claim (“Notice”) to the GameFly address set forth at the end of this Agreement. If GameFly elects to seek arbitration in connection with a Dispute, it will send, by certified mail, a written Notice to the address used for your GameFly account. A Notice, whether sent by you or by GameFly, must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought. If GameFly and you do not reach an agreement to resolve the claim within thirty (30) days after the Notice is received, you or GameFly may commence an arbitration proceeding or file a claim in small claims court. During the arbitration, the amount of any settlement offer made by GameFly or you shall not be disclosed to the arbitrator. You may download or copy a form Notice and a form to initiate arbitration at www.adr.org. If you are required to pay a filing fee, after GameFly receives Notice that you have commenced arbitration, it will promptly reimburse you for your payment of the filing fee, unless your claim is for greater than US$10,000. The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879 or by writing to GameFly at the address set forth at the end of this Agreement. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this arbitration provision. Unless GameFly and you agree otherwise, any arbitration hearings will take place in the county (or parish) of your billing address. (If you reside outside of the United States, any arbitration hearings will take place in your country of residence at a location reasonably convenient to you, but will remain subject to the AAA Rules including the AAA rules regarding the selection of an arbitrator). If your claim is for US$10,000 or less, GameFly agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds US$10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. If the arbitrator issues you an award that is greater than the value of GameFly’s last written settlement offer made before an arbitrator was selected (or if GameFly did not make a settlement offer before an arbitrator was selected), then GameFly will pay you the amount of the award or US$1,000, whichever is greater. Except as expressly set forth herein, the payment of all filing, administration and arbitrator fees will be governed by the AAA Rules.

Violation of These Terms of Use

GameFly may disclose any information we have about you (including your identity) if we determine that such disclosure is necessary in connection with any investigation or complaint regarding your use of the GameFly Site and Services, or to identify, contact or bring legal action against someone who may be causing injury to or interference with (either intentionally or unintentionally) GameFly’s rights or property, or the rights or property of visitors to or users of the GameFly Site and Services, including GameFly’s customers. GameFly reserves the right at all times to disclose any information that GameFly deems necessary to comply with any applicable law, regulation, legal process or governmental request. GameFly may also disclose your information when GameFly determines that applicable law requires or permits such disclosure, including exchanging information with other companies and organizations for fraud protection purposes.

You agree that GameFly may, in its sole discretion and without prior notice, terminate your access to the GameFly Site and Services and/or block your future access to the GameFly Site and Services if we determine that you have violated these Terms of Use or other agreements associated with your use of the GameFly Site and Services. You also agree that any violation by you of this Agreement will constitute an unlawful and unfair business practice, and will cause irreparable harm to GameFly, for which monetary damages would be inadequate, and you consent to GameFly obtaining any injunctive or equitable relief that GameFly deems necessary or appropriate in such circumstances. These remedies are in addition to any other remedies GameFly may have at law or in equity.

You agree that GameFly may, in its sole discretion and without prior notice, terminate your access to the GameFly Site and Services, for cause, which includes but is not limited to (1) requests by law enforcement or other government agencies, (2) a request by you (self-initiated account deletions), (3) discontinuance or material modification of the GameFly Site and Services or any portion thereof, or (4) unexpected technical issues or problems.

You agree that GameFly will not be liable to you or to any third party for termination of your access to the Site as a result of any violation of these Terms of Use.

Miscellaneous Provisions

You agree that: the GameFly Site and Services shall be deemed (i) solely based in California; and (ii) a passive service that does not give rise to personal jurisdiction over GameFly, either specific or general, in jurisdictions other than California. This Agreement shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.

This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by GameFly without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.

No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and GameFly's failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.

You may not export or re-export any content or any copy or adaptation of such content, or any product or service offered on the GameFly Site and Services, in violation of any applicable laws or regulations, including without limitation United States export laws and regulations.

If any provisions of this Agreement are held by a court or other tribunal of competent jurisdiction to be void or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary and replaced with a valid provision that best accomplishes the intent of the terms of this Agreement, so that the Agreement shall remain in full force and effect. This Agreement constitutes the entire agreement between you and GameFly with respect to your use of the GameFly Site and Services, and any and all other written or oral agreements or understandings previously existing between you and GameFly with respect to such use are hereby superseded and cancelled.

To Contact GameFly

If you have a question or concern about these Terms of Use, please contact GameFly Support online or by mail:

Attn: Vice President, Customer Service
GameFly, Inc.
PO Box 80924
Austin, Texas 78708

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