User Terms Of Service
These Terms of Service (“User Terms”)
govern your use and access of the
website at www.indieboost.com along with any mobile or web applications that
link to or reference these User
Terms (collectively, the “Site”). These User Terms are a binding legal agreement between you or the entity you
represent (“you”) and Indie Group, Inc. (“we”,“us”,
or “Company”), a Delaware corporation with its offices at
655 Montgomery Street
San Francisco, California 94111. Our “Services” consist of any features, products, and/or services provided or otherwise made available on or through our Site, including without limitation our game marketplace, user dashboard, bidding platform, game pages, player portals, and other user features. In these User Terms, “You” and “your” refer to you, a User of the Site and/or Services. A “User” is you or anyone who accesses, browses, crawls, scrapes, or in any way uses the Site.
Please be aware that these User Terms include, among other things, a binding arbitration provision that requires you to submit to binding and final arbitration on an individual basis to resolve disputes, rather than jury trials or class actions. Please see Section 12, below.
Please read these User Terms carefully, as they may have changed. Though your access and use of the Site and Services is governed by the User Terms effective at the time, please note that we may revise and update these User Terms from time to time in our sole discretion. If we make material changes to these User Terms, we will notify you by email or by posting a notice on the Site prior to the effective date of the changes. We will also indicate at the top of this page the date that revisions were last made.
These User Terms are to ensure that you will use the Site and Services only in the ways in which Company intends it to be used, and to make clear what uses Company will not permit, will not be responsible for, or both.
By accessing or using the Site and/or Services:
- You acknowledge that you’ve read, understood, and accept these User Terms and any additional documents or policies referred to in or incorporated into these User Terms, whether you are participating as a guest or as a registered User;
- If these User Terms have materially changed since you last access or used the Site and/or Services, you acknowledge and agree that your continued access or use of the Site and/or Services constitutes your acceptance of the changed User Terms;
- You represent and warrant that you are at least eighteen (18) years of age and have the right, authority, and capacity to enter into these User Terms, either on behalf of yourself or the entity that you represent; and
- You consent to receive communications from us electronically, and you agree that such electronic communications, notices, and postings satisfy any legal requirements that such communications be in writing.
1. Accessing the Site
We grant you permission to access and use the Site and/or Services subject to the restrictions set out in these User Terms. It is a condition of your use of the Site and/or Services that the information you provide is correct, current, and complete. Your use of the Site and/or Services is at your own risk, including the risk that you may be exposed to content that is offensive, indecent, inaccurate, objectionable, or otherwise inappropriate. You are responsible for making all arrangements necessary for you to have access to the Site and/or Services.
Electronic Signatures. Your use of the Site and/or Services includes the ability to enter into agreements and/or to make purchases electronically. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE LEGALLY BOUND BY SUCH AGREEMENTS AND TO PAY FOR SUCH PURCHASES. YOUR AGREEMENT AND INTENT TO BE LEGALLY BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO ON THE SITE and/OR SERVICEs, INCLUDING, WITHOUT LIMITATION, NOTICES OF CANCELLATION, POLICIES, CONTRACTS AND APPLICATIONS. To access and retain your electronic records, you may be required to have certain hardware and software, which are your sole responsibility.
2. Account Registration and Account Security
Some or all of the Site, and certain features or functionalities, may
require you to register an account with us. When you do, we may ask you to provide certain registration
details or other information about yourself, such as your email address, profile name, password and company
here. You can register also an account for our Site and
Services through your account with certain third-party
social network services, such as YouTube and Twitch.
Once you have an account on the Site, you are a “Member” of our Site. As a Member, you are responsible for all activities that occur in connection with your account. You will treat as confidential your account access credentials and will not to disclose it to any third-party. You agree to immediately notify Company if you have any reason to believe that your account credentials have been compromised or if there is any unauthorized use of your account or password, or any other breach of security. We ask that you use particular caution when accessing your profile from a public or shared computer, or when using your account in a public space, such as a park or cafe or public library, so that others are not able to view or record your access credentials or other personal information.
You may not impersonate someone else (e.g., adopt the identity of a celebrity or your next-door neighbor) to create an account, create or use an account for anyone other than yourself, permit anyone else to use your account, or provide personal information for purposes of account registration other than your own.
In order to ensure we can protect and properly administer the Site and/or Services and our community of users, we have the right to disable or close any user account at any time and for any reason or for no reason.
3. Member Specific Terms
a. Terms applicable to Publishers and Developers
The following terms apply to Members who use our Site and/or Services for the purposes of (1) promoting,
distributing, or publishing games or other content on the Site and/or Services (“Publishers
Publishers and Developers hereby represent and warrant that they will comply with our Publisher and Developer
Rules (which can be found at: https://www.indieboost.com/rules.html),
which is hereby incorporated by reference
into these User Terms.
In order for Publishers and Developers to use our Site and/or Services, you must register and create an account. When registering we may ask you to pay fees (as described below) and to provide additional information related to your background and games you own or have created. We will review the information that you provided
to us during the registration process and any other information that is publicly available. We reserve the right, in our sole discretion, to accept or reject your registration to use our Site and/or Service. If your registration is accepted, you will be allowed to make certain Content available to Media and Influencers and other Users, such as your profile, any game pages or video trailers promoting your games, and game password keys that will unlock your games to be played on various gaming platforms (“Game Keys”).
Publishers and Developers may purchase, through the Site, the premium
Services set forth at https://dashboard.indieboost.com/?page=premium
and the subscription packages set forth
(collectively, the “Paid Services”). We reserve the
right to modify our billing rates at any time upon thirty (30) days written notice by posting such fee
changes to the Site or through email notification to you. You will be liable to pay such modified billing
If you purchase any Paid Service, you agree that our third party payment processors, such as Stripe and PayPal, may store your credit or charge card or other payment information. You expressly agree that we are authorized to charge you (i) a fee for any applicable Paid Service for which you have subscribed to, billed on a basis of any applicable subscription period, (ii) any other fees for the Paid Services you may purchase, (iii) any charges for use of the Paid Services in excess of the usage or other limits placed on your use of the Paid Services (and you hereby consent to such charges and agree we are not required to notify you of any such charge in advance) and (iv) any applicable taxes in connection with your use of the Paid Services to the credit or charge card you provide and to reimburse us for all collection costs and interest for any overdue amounts. If the credit or charge card you provide expires and you do not provide new credit or charge card information or cancel your account, you authorize us to continue billing you and you agree to remain responsible for any uncollected fees.
You take full responsibility for all taxes and fees of any nature associated with the Paid Services, including any sales tax related to any purchase or sale of services or goods under the User Terms. When purchasing or selling services or goods under the User Terms, it is your responsibility to determine whether or not sales taxes apply to a transaction and to collect, report and remit the correct amounts to the appropriate authority.
ii. Cancellation Policy
Unless otherwise set out at the time of purchase or as agreed to by Company, fees for a Paid Services will be billed in advance for each month and are non-refundable. There will be no refunds or credits for partial months of service or for periods in which your Paid Services remains open but you do not use such services.
b. Terms applicable to Media and Influencers
The following terms apply to Members who use our Site and/or Services
for the purposes of viewing, accessing, playing or otherwise interacting with games or other content on the
Site and/or Services for the purposes of reviewing or promoting such games to their networks (“Media
Influencers”). Media and Influencers hereby represent and warrant that they will comply with our Media
Influencer Rules (which can be found at: https://www.indieboost.com/rules.html),
which is hereby incorporated
by reference into these User Terms.
In order for Media and Influencers to use our Site and/or Services, you must register and create an account. When registering we may ask you to provide additional information related to your background and preferences, such as the types of games you are looking for. We will review the information that you provided to us during the registration process and any other information that is publicly available. We reserve the right, in our sole discretion, to accept or reject your registration to use our Site and/or Service. If your registration is accepted, you will be allowed to access content made available by Publishers and Developers, Company and other Users on or through the Site and/or Services and request Game Keys from Publishers and Developers on the Site. YOU HEREBY AGREE THAT YOU MAY ONLY USE GAME KEYS YOU RECEIVE FROM PUBLISHERS OR THROUGH OUR SITE AND/OR SERVICES,
FOR THE SOLE AND LIMITED PURPOSE OF EVALUATING GAMES IN THE MANNER SPECIFIED BY THE PUBLISHER AND DEVELOPER FOR SUCH GAME.
c. Terms applicable to Players
The following terms apply to Members who use our Site and/or Services for the purposes of viewing, accessing,
discovering, or otherwise interacting with games or other content on the Site and/or Services for
non-promotional and noncommercial purposes (each, a “Player”). Players hereby
represent and warrant that they
will comply with our [Player Rules] (which can be found at: https://www.indieboost.com/rules.html),
hereby incorporated by reference into these User Terms.
In order for Players to use our Site and/or Services, you must register and create an account. When registering we may ask you to provide additional information related to your background and preferences, such as the types of games you are looking for. We will review the information that you provided to us during the registration process and any other information that is publicly available. We reserve the right, in our sole discretion, to accept or reject your registration to use our Site and/or Service. If your registration is accepted, you will be allowed to access content made available by Publishers and Developers, Company and other Users on or through the Site and/or Services. YOU AGREE THAT YOU MAY ONLY USE GAME KEYS YOU RECEIVE FROM PUBLISHERS OR THROUGH OUR SITE AND/OR SERVICES, FOR THE SOLE AND LIMITED PURPOSE OF IDENTIFYING BUGS AND OTHER SOURCE CODE ERRORS IN THE MANNER SPECIFIED BY THE PUBLISHER AND DEVELOPER FOR SUCH GAME.
d. Interview Requests
Media and Influencers may request interviews with a Developer and Publisher by visiting https://dashboard.indieboost.com/influencer/discoverGames and requesting an interview from one of the game pages. If such request is approved by the Developer and Publisher, we will send an introductory email to both the Media and Influencer requesting the interview and the Developer and Publisher with whom the interview is requested (“Interview Email”). You hereby acknowledge and agree that (i) you are responsible for all of your communications with other Members and such communications will not violate these User Terms (ii) Company has no obligation to send an Interview Email or take any other action with respect to interview requests, and (iii) the Interview Email and any related actions by the Company shall not in any way be construed as an endorsement or sponsorship.
e. Bidding Platform
Developers and Publishers may publish requests for services, such as
game reviews or testimonials, (each, a “Request”) through the bidding
platform available on the Site (“Bidding
Platform”). Journalists and Influencers may propose a fee for performing any available Requests as
consideration for performing such Request (a “Bid”). Bids will be aggregated
through our Bidding Platform, and
Developers and Publishers may choose a winning Bid for their Request. If chosen, (i) Developer and Publisher
shall remit to Company the fee for the winning Bid (“Payment”) to be held in
escrow pending completion of the
Request, and (2) the Journalist and Influencer that placed the Bid will create all deliverable(s) required to
perform the Request (“Deliverables”) to the specifications set forth by the
Developer and Publisher in such
Company will have sole discretion in determining whether Deliverable(s) are accepted or rejected. Prior to any acceptance of Deliverables, Developer and Publisher will have the opportunity to review such Deliverables. In order to reject any Deliverables, Developer and Publisher must provide and communicate to Company via the feedback function provided reason(s) as to why the Deliverables did not meet the specifications in their Request (“Objections”). If Developer and Publisher does not communicate their Objections to Company within five (5) days of receiving such Deliverables, then the Deliverables will be deemed accepted. Upon acceptance, the Payment will be released by Company to the Journalist and Influencer who performed such Request. You hereby acknowledge
and agree that any Requests performed shall be deemed Paid Services (as defined above), and will be subject to the payment terms set forth in Section 3 of these User Terms.
4. Prohibited Uses
You may use the Site and/or Services only for lawful purposes and in
accordance with these User Terms. We are under no obligation to enforce the User Terms on your behalf against
another user. We encourage you to let us know if you believe another User has violated the User Terms or
otherwise engaged in prohibited or illegal conduct.
You agree not to, and will not assist, encourage, or enable others to use the Site and/or our Services:
- For any commercial purpose, except as expressly permitted under these User Terms.
- To use or distribute any cheat utility, software or macro programs or applications that allow you or other Users to cheat on online games made available on or through the Site and/or Services or elsewhere.
- To violate any applicable national, regional, federal, state, local, or international law or regulation.
- To transmit, or procure the sending of, any advertising or promotional material.
- To threaten, stalk, harm, or harass others, or to promote bigotry or discrimination.
- To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Site and/or Services, or which, as determined by us, may harm Company or Users of the Site and/or Services or expose them to liability.
- To create, send, knowingly receive, display, transmit, upload, download, use, or reuse any material or Content (defined below) which:
- Contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable;
- Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
- Infringe any patent, trademark, trade secret, copyright, or other intellectual property rights of any other person;
- Be likely to deceive or confuse any person; or
- Promotes or assists in any illegal activity.
Additionally, you agree not to, and will not assist, encourage, or enable others to:
- Violate these User Terms.
- To use robots, spiders or other means to cheat in online games made available on or through the Site and/or Services or otherwise engage in fraudulent activity such as "click fraud."
- Modify, adapt, appropriate, reproduce, distribute, translate, create derivative works or adaptations of, publicly display, sell, trade, or in any way exploit the Site, Services or Site Content (other than Your Content), except as expressly authorized by Company.
- Remove or modify any copyright, trademark, or other proprietary rights notice that appears on any portion of the Site and/or Services or on any materials printed or copied from the Site and/or Services.
- Record, process, harvest, collect, or mine information about other users.
- Access, retrieve, or index any portion of the Site and/or Services for purposes of constructing or populating a searchable database.
- Reformat or frame any portion of the Site and/or Services.
- Use the Site and/or Services in any manner that could, in Company’s sole discretion, disable, overburden, damage, or impair the site or interfere with any other party’s use of the Site and/or Services, including their ability to engage in real time activities through the Site and/or Services.
- Use any robot, spider, or other automatic device, process, or means to access the Site and/or Services for any purpose, including to monitor or copy any of the Site Content.
- Use any manual process to monitor or copy any of the material on the Site and/or Services, or for any other unauthorized purpose without Company’s prior written consent.
- Use any device, software, or routine that interferes with the proper working of the Site and/or Services
- Use the Site and/or Services or any Site Content to transmit any computer viruses, worms, defects, Trojan horses, or other items of a destructive nature (collectively, “Viruses”).
- Use the Site and/or Services to violate the security of any computer network, crack passwords or security encryption codes, disrupt or interfere with the security of, or otherwise cause harm to, the Site and/or Services or Site Content.
- Remove, circumvent, disable, damage, or otherwise interfere with any security-related features of the Site and/or Services, features that prevent or restrict the use or copying of Site Content, or features that enforce limitations on the use of the Site and/or Services.
- Reverse engineer any portion of the Site and/or Services.
- Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Site and/or Services, the server on which the Site and/or Services is stored, or any server, computer, or database connected to the Site and/or Services.
- Attack the Site and/or Services via a denial-of-service attack or a distributed denial-of-service attack.
- Otherwise attempt to interfere with the proper working of the Site and/or Services.
The restrictions above only apply to the extent permissible under applicable law. Nevertheless, you agree not to act contrary to them (even if permissible under applicable law) without providing thirty (30) days’ prior written notice to us here, together with any information that we may reasonably require to give us an opportunity to provide alternative remedies or otherwise accommodate you at our sole discretion.
- “Content” means text, images, photos, audio, video, location data, and all other forms of data or communication.
- “Your Content” means Content that you submit or transmit to, through, or in connection with the Site and/or Services that you publicly display or displayed in your account profile.
- “User Content” means Content that users submit or transmit to, through, or in connection with the Site and/or Services.
- “Company Content” means Content that we create and make available in connection with the Site and/or Services.
- “Third-Party Content” means Content that originates from parties other than Company or its users, which is made available in connection with the Site and/or Services.
- “Site Content” means all of the Content that is made available in connection with the Site and/or Services, including Your Content, User Content, Third-Party Content, and Company Content.
a. Responsibility for Your Content and User Content
We are not responsible or liable to any
the content or accuracy of any materials posted by you or any other User of the Site and/or
Services. You understand that when using the Site and/or the Service, you will be exposed
to Content from a variety of sources, and that Company is not responsible for the accuracy,
usefulness, safety, or intellectual property rights of or relating to such Content, and
that such Content is not the responsibility of Company. You understand and acknowledge that
you alone are responsible for Your Content, and you, not Company, assume all risks
associated with Your Content, including anyone’s reliance on its quality, accuracy,
reliability, appropriateness, or any disclosure by you of information in Your Content that
makes you or anyone else personally identifiable. You may not imply that Your Content is in
any way sponsored or endorsed by Company.
You represent, and warrant that: (1) you are the creator and owner of the Your Content or otherwise have sufficient rights and authority to grant the rights granted herein; (2) Your Content does not and will not (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right or (b) defame any other person; (3) Your Content does not contain any viruses, adware, spyware, worms, or other harmful or malicious code; and (4) unless you have received prior written authorization, Your Content specifically does not contain any pre-release or non-public beta software or game content or any confidential information of Company or third parties; and (5) Your Content does not in any way violate the restrictions set forth in Section 4 of these User Terms. We reserve all rights and remedies against any Users who breach these representations and warranties.
You agree that Your Content, including without limitation any reviews, trials, and testimonials, will comply with the FTC’s Guidelines Concerning the Use of Testimonials and Endorsements in Advertising, the FTC’s .com Disclosures Guide , the FTC’s Native Advertising Guidelines, and any other guidelines issued by the FTC from time to time (“FTC Guidelines”), as well as any other advertising guidelines required under applicable law. For example, if you have been paid or provided with free products in exchange for discussing or promoting a product or service through the Site and/or Services, or if you are an employee of a company and you decide to discuss or promote .
that company’s products or services through the Site and/or Services,
you agree to comply with the FTC Guidelines’ requirements for disclosing such relationships. You, and not
Company, are solely responsible for any endorsements or testimonials you make regarding any product or
service through the Site and/or Services.
We cannot review everything that is posted to the Site and/or Services in advance, any content and/or opinions uploaded, expressed, or submitted to the Site and/or Services, and all Site Content other than the Content officially provided by Company, are solely the opinions and the responsibility of the person or entity submitting them and do not necessarily reflect the opinion of Company. We do not endorse any Content submitted to the Site or Services by any user or other licensor, or any opinion, recommendation, or advice expressed therein, and we expressly disclaims any and all liability in connection with such Content.
i. Copyright Infringement and Digital Millennium Copyright Act.
We respect the intellectual property rights of others, and we ask our users to do the same. We do not permit copyright infringing activities and infringement of intellectual property rights on the Site or Services, and we will remove any Content if properly notified that such Content infringes on another's intellectual property rights. We reserve the right to remove Content without prior notice. We will terminate a User's access to the Site and/or Services if, under appropriate circumstances, the User is determined to be a repeat infringer. In accordance with the Digital Millennium Copyright Act (DMCA) and other applicable law, if you believe that your work has been copied in a way that constitutes copyright infringement, or if you are aware of someone so infringing on your rights, please provide the following information to the “Copyright Agent”:
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest.
- A description 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 and/or Services.
- Your address, telephone number, and email address.
- A statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, and/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 the copyright owner’s behalf.
All notices of copyright infringement claims should go to our Copyright Agent:
- Nemanja Kostic
- [email protected]
- 655 Montgomery Street, San Francisco, CA, 94111
b. Our Right to Use Your Content
You hereby irrevocably grant us world-wide, perpetual, non-exclusive, royalty-free, assignable, sublicensable, transferable rights to use Your Content for any purpose. Pursuant to this grant, you agree that we may use Your Content in a number of different ways, including by publicly displaying it, reformatting it, incorporating it into advertisements and other works, creating derivative works from it, promoting it, and distributing it. Please note that you also irrevocably grant the users of the Site and/or Services the right to access Your Content in connection with their use of the Site and/or Services. Finally, you irrevocably waive, and cause to be waived, against Company and its users any claims and assertions of moral right or attribution with respect to
Your Content. By “use” we mean use, make, have made, sell, offer for sale, import, practice, copy, publicly perform and display, reproduce, perform, distribute, modify, translate, remove, analyze, commercialize, and prepare derivative works of Your Content. We are not and shall not be under any obligation, except as otherwise expressly set forth in these User Terms or our other policies, (1) to maintain Your Content or any User Content in confidence; (2) to pay you any compensation for any User Content; (3) to credit or acknowledge you for Your Content; (4) to respond to Your Content or any User Content; or (5) to exercise any of the rights granted herein with respect to Your Content.
As between you and Company, you own Your Content, subject to the licenses granted in these User Terms. We own Company Content, including proprietary rights of every kind and nature however denominated throughout the world, registered or unregistered, associated with such Company Content and the Site and/or Services, such as patents, patent applications, copyrights, copyrightable works of expression, trademarks, service marks, trade names, rights of publicity and privacy, moral rights, know-how, trade secrets, software and database rights (“IP Rights”), any and all applications, registrations, renewals, or derivatives in connection with the foregoing IP rights, all rights to obtain, register, perfect and enforce these IP rights throughout the world, and any and all actions and rights to sue at law or in equity for any past or future infringement or other impairment of the foregoing IP rights. As such, you may not use, practice, sell, make, offer for sale, have made, import, modify, reproduce, distribute, perform, create derivative works or adaptations of, publicly display, or in any way exploit any of Company Content in whole or in part except as expressly authorized by us. Except as expressly and unambiguously provided herein, we do not grant you any express or implied rights, and all rights in and to the Site and/or Services and Company Content are retained by us.
Company name, Company logo and all related names, logos, taglines, product and service names, designs, and slogans are trademarks of Company or its affiliates or licensors. You may not use these names without the prior written consent of Company. All other names, brands, and marks that may appear on the Site and/or Services remain the property of their respective owners and appear here for identification purposes only.
6. Links to other Sites
As is typical online, this Site and/or Services and User posts may contain hyperlinks to other sites. If there are other websites and resources linked to on this Site and/or Services, either by Company or by you, these links are provided only for the convenience of our Users. We have no control over the contents of those websites or resources, and therefore cannot accept responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to the Site and/or Services, you do so entirely at your own risk and subject to the User Terms and conditions of use for such websites.
7. No Guarantee of Service
Although we hope to make the Site and/or Services available at all times in the future, there may be times when we need to disable the Site either temporarily or permanently. The Site and/or Services may be modified, updated, interrupted, suspended, or discontinued at any time without notice or liability. Keep this in mind as Company will not be liable if all or any part of the Site and/or Services is unavailable at any time, for any period of time. Also, from time to time, we may restrict access to some parts of the Site and/or Services, or the entire Site and/or Services, to users, including registered users. We cannot and do not make any representations or warranties with respect to the devices you use to access or use the Site and/or Services, including with respect to device compatibility.
8. Disclaimer of Warranties
COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR
IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY,
NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE. THE SITE, SITE CONTENT, AND ANY SERVICES OR ITEMS
OBTAINED THROUGH THE SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. NEITHER COMPANY NOR ANY PERSON
ASSOCIATED WITH COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY,
RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SITE AND/OR SERVICES. WITHOUT LIMITING THE FOREGOING,
NEITHER COMPANY NOR ANYONE ASSOCIATED WITH COMPANY REPRESENTS OR WARRANTS THAT THE SITE AND/OR SERVICES, ITS
CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE AND/OR SERVICES WILL BE ACCURATE, RELIABLE,
ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE AND/OR SERVICES OR THE SERVER THAT
MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SITE OR ANY SERVICES OR ITEMS
OBTAINED THROUGH THE SITE AND/OR SERVICES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS, CONTENT AND INTERACTIONS WITH OTHER USERS OF THE SITE AND/OR SERVICES. YOU FURTHER WAIVE AND HOLD HARMLESS COMPANY FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY COMPANY DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER COMPANY OR LAW ENFORCEMENT AUTHORITIES.
IF YOU ARE A RESIDENT OF A JURISDICTION THAT REQUIRES A SPECIFIC STATEMENT REGARDING RELEASE, THEN THE FOLLOWING APPLIES. FOR EXAMPLE, (1) CALIFORNIA RESIDENTS MUST, AS A CONDITION OF THIS AGREEMENT, WAIVE THE APPLICABILITY OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR" AND (2) NEW JERSEY RESIDENTS MUST, AS A CONDITION OF THIS AGREEMENT, WAIVE THE APPLICABILITY OF THE TRUTH IN CONSUMER CONTRACT, WARRANTY, AND NOTICE ACT (X) SECTIONS 15, WHICH STATES, AMONG OTHER THINGS, THAT “NO SELLERS…SHALL IN THE COURSE OF HIS BUSINESS OFFER TO ANY CONSUMER OR PROSPECTIVE CONSUMER OR ENTER INTO ANY WRITTEN CONSUMER CONTRACT OR GIVE OR DISPLAY ANY WRITTEN CONSUMER WARRANTY, NOTICE OR SIGN…WHICH INCLUDES ANY PROVISION THAT VIOLATES ANY CLEARLY ESTABLISHED LEGAL RIGHT OF A CONSUMER OR RESPONSIBILITY OF A SELLER…” AND (X) SECTION 16, WHICH STATES, AMONG OTHER THINGS, THAT “…NO CONSUMER CONTRACT, NOTICE OR SIGN SHALL STATE THAT ANY OF ITS PROVISIONS IS OR MAY BE VOID, UNENFORCEABLE OR INAPPLICABLE IN SOME JURISDICTIONS WITHOUT SPECIFYING WHICH PROVISIONS ARE OR ARE NOT VOID, UNENFORCEABLE OR INAPPLICABLE WITHIN THE STATE OF NEW JERSEY…”. YOU HEREBY WAIVE, AS APPLICABLE, THESE SECTIONS OF THE CALIFORNIA CIVIL CODE AND NEW JERSEY TRUTH IN CONSUMER CONTRACT, WARRANTY, AND NOTICE ACT. YOU HEREBY WAIVE ANY SIMILAR PROVISION IN LAW, REGULATION, OR CODE THAT HAS THE SAME INTENT OR EFFECT AS THE AFOREMENTIONED PROVISIONS.
9. Limit of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL (1) COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SITE AND/OR SERVICES, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SITE OR SERVICES, ON ANY THEORY OF LIABILITY (INCLUDING CONTRACT, TORT INCLUDING NEGLIGENCE, OR HOWSOEVER OTHERWISE) ARISING OUT OF, IN CONNECTION WITH, OR RESULTING FROM THE SITE AND/OR SERVICES AND (2) THE AGGREGATE LIABILITY OF COMPANY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SITE AND/OR SERVICES EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE SITE AND/OR SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR ONE HUNDRED DOLLARS ($100),
WHICHEVER IS GREATER. THE LIMITATIONS OF THIS SECTION WILL NOT APPLY TO ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW.
As a necessary condition of your use of the Site and Services, you agree to be responsible for the consequences flowing from your use of the Site and/or Services and any violation of these User Terms. Therefore, you hereby agree to defend, indemnify, and hold harmless Company, its affiliates and licensors and their respective officers, directors, employees, contractors, agents, licensors and suppliers from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) resulting from your violation of these User Terms or your use of the Site and/or Services, including, without limitation, (i) any use of the Site, Site Content, Services, and any related products, services, or materials other than as expressly authorized in these User Terms or your use of any information obtained from the Site and/or Services, (ii) your violation of any term of these User Terms, (iii) your violation of any third party rights, including without limitation intellectual property or privacy rights, (iv) your or your users’ violation of applicable law, (v) your use of any services provided by third party service providers, (vi) any breach of any of your representations and warranties and (viii) any unauthorized distribution of Game Keys.
11. Governing Law
You agree that: (i) the Site and Services shall be deemed solely based in California; and (ii) the Site and Services shall be deemed a passive one that does not give rise to personal jurisdiction over us, 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. You agree to submit to the personal jurisdiction of the federal and state courts located in [San Francisco County, California] for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that [San Francisco County, California] is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
12. Arbitration and Class Action Waiver
- Arbitration. READ THIS SECTION
CAREFULLY BECAUSE IT REQUIRES THE
PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM COMPANY. For any
dispute with Company, you agree to first contact us at [email protected] and attempt to resolve the dispute
with us informally. In the unlikely event that Company has not been able to resolve a dispute it has with you
after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for
injunctive or other equitable relief as provided below) arising out of or in connection with or relating to
this Agreement, or the breach or alleged breach thereof (collectively, “Claims”),
by binding arbitration by
JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein.
JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in San Francisco County,
California, unless you and Company agree otherwise. If you are using the Site and/or Services for commercial
purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in
accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration,
reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using
the Site and/or Services for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation
of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by
the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable
costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction
without first engaging in arbitration, but this does not absolve you of your commitment to engage
in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Company from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, intellectual property rights or other proprietary rights.
- Class Action/Jury Trial Waiver. WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SITE AND/OR SERVICES FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND
- (b) We may close your account, suspend your ability to use certain portions of the Site and/or Services, and/or ban you altogether from the Site and/or Services for any or no reason, and without notice or liability of any kind. Any such action could prevent you from accessing your account, the Site and/or Services, Your Content, Site Content, or any other related information.
- (c) These User Terms will survive any termination pursuant to this Section 13, whether by you or us, including without limitation our right to use Your Content as detailed in Section 5.
14. General Terms
These User Terms constitute the sole and entire agreement
between you and Company with respect to the Site and/or Services and supersede all prior and
contemporaneous understandings, agreements, representations and warranties, both written and
oral, with respect to the Site and/or Services.
No waiver of these User Terms by Company shall be deemed a further or continuing waiver of such term or condition or any other term or condition, and any failure of Company to assert a right or provision under these User Terms shall not constitute a waiver of such right or provision.
If any provision of these User Terms is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be modified to reflect the parties’ intention or eliminated to the minimum extent such that the remaining provisions of the User Terms will continue in full force and effect.
The User Terms, and any rights or obligations hereunder, are not assignable, transferable, or sublicensable by you except with Company’s prior written consent, but may be assigned or transferred by us without restriction. Any attempted assignment by you shall violate these User Terms and be void.
The section titles in the User Terms are for convenience only and have no legal or contractual effect.
All feedback, comments, requests for technical support, and other communications relating to the Site and/or Services should be directed to: [email protected] By sending us any ideas, suggestions, documents or proposals (“Feedback”), you agree that (i) your Feedback does not contain the confidential or proprietary information of third-parties, (ii) we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (iii) we may have something similar to the Feedback already under consideration or in development, and (iv) you grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works, publish, distribute and sublicense the Feedback, and you irrevocably waive, and cause to be waived, against Company and its users any claims and assertions of any moral rights contained in such Feedback.