TERMS OF AGREEMENT
UPDATED: DECEMBER 21, 2011
PLEASE READ THIS AGREEMENT CAREFULLY. THIS IS A LEGALLY BINDING AGREEMENT BETWEEN YOU AND FEATURE CREEP STUDIOS INC. AND CONTAINS IMPORTANT TERMS, CONDITIONS AND LIMITATIONS RELATING TO LIABILITY, WARRANTY AND YOUR OBLIGATIONS IN RESPECT OF OUR WEBSITES. BY USING THE WEBSITE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO ALL OF THE TERMS, CONDITIONS AND LIMITATIONS SET FORTH IN THIS AGREEMENT.
1. Amendments to this Agreement. We reserve the right to amend this Agreement at any time upon reasonable notice to you, which we will publish on the Website. We will ensure that the latest, fully-amended version of this Agreement is published on the Website. You are responsible for regularly reviewing the Website to obtain timely notice of such amendments. If any amendment is unacceptable to you, you may terminate this Agreement as set out in this Agreement. If you continue to use the Website after the effective date of each amendment, you will be conclusively deemed to have accepted such amended version of this Agreement.
2. Content. We may, from time to time at our sole discretion and without notice or liability, create, amend, change, or delete any content on the Website.
3. License. Subject to all of the terms, conditions, restrictions and other provisions of this Agreement, we grant to you a personal, non-exclusive, non-transferable, limited license only to internally use the Website for non-commercial purposes. You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any information, software, products or services obtained from the Website without our prior, written consent. All rights not expressly granted to you are reserved by us and, if applicable, our licensors.
5. Your Account and Account Use. Your use of the Website may require an account identifying you as a user (an “Account”). In connection with such accounts,
1. Responsibility—you are solely responsible for
1. your Account and the maintenance, confidentiality and security of your Account and all passwords related to your Account, and
2. any and all activities that occur under your Account, including all activities of any persons who gain access to your Account with or without your permission
2. Notification—you agree to immediately notify us of
1. any unauthorized use of your Account, any service provided through your Account or any password related to your Account, or
2. any other breach of security with respect to your Account or any service provided through it, and
3. you agree to provide assistance to us, as requested, to stop or remedy any breach of security related to your Account, and
3. Accuracy—you agree to provide true, current, accurate and complete customer information as requested by us or our agents from time to time and you agree to promptly notify us of any changes to this information as required to keep such information held by us current, complete and accurate.]
6. Proprietary Rights.
1. Content—“Content” means all materials and content, including designs, editorial, text, graphics, audiovisual materials, multimedia elements, photographs, videos, music, sound recordings, reports, documents, software, information, formulae, patterns, data and any other work.
2. Third-Party Content—Content accessed or available through the Website or the Internet may be owned by parties other than you or us (collectively, “Third Party Content”) and may be protected by applicable copyrights, trade-marks, patents, trade secrets or other proprietary rights and laws. Nothing in your use of the Website or this Agreement grants you any right, title or interest in or to this Third Party Content except for the limited right to use the Website as set out in this Agreement.
3. Our Content—Except where expressly stated otherwise, all right, title and interest in and to the Website and all Content, source code, processes, designs, technologies, URLs, domain names, marks and logos forming any part of the Website (collectively, “Our Content”) is fully vested in us, our licensors or our suppliers and are protected by applicable copyrights, trade-marks, patents, trade secrets or other proprietary rights and laws. You agree that Our Content is licensed subject to the terms of this Agreement, including the disclaimers and limitations of liability herein. Nothing in your use of the Website or this Agreement grants you any right, title or interest in or to Our Content except the limited right to use the Website as set out in this Agreement. Unless otherwise expressly authorized by us in writing, you agree not to
1. copy, modify, rent, lease, loan, sell, assign, sublicense, grant a security interest in or otherwise transfer any right or interest in Our Content
2. distribute, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover the source code, of Our Content, to the maximum extent that such prohibition is permitted by applicable law
3. remove any proprietary notices or labels on or in Our Content, or
4. allow any other person or entity to engage in any of the foregoing.
4. Your Content—The Website may contain bulletin board, chat, forum, social media or other communication services. We do not claim ownership of any Content that you post, upload, input, provide, submit or otherwise transmit to us, or any third party, using the Website (collectively, “Your Content”); however, you agree that by posting, uploading, inputting, providing, submitting, entering or otherwise transmitting your Content to us or any third party using the Website,
1. License to Us—you have thereby granted us a royalty-free, non- exclusive, worldwide, fully paid-up limited license to use, copy, distribute, transmit, display, edit, delete, publish and translate Your Content to the extent reasonably required by us to provide the Website as it exists from time to time or to ensure adherence to, or enforce, the terms of this Agreement,
2. Your Warranty to Us—you will have thereby confirmed, represented and warranted to us that you have all rights, titles and interests, as well as the power and authority necessary, to grant the license to Your Content set out above, and
3. Indemnity of Us—you will indemnify and save us harmless from and against any liabilities, actions, proceedings, claims, causes of action, demands, debts, losses, damages, charges and costs, including reasonable legal costs, any amount paid to settle any action or to satisfy a judgment and expenses of any kind and character whatsoever incurred by us relating to or arising from Your Content, including instances where the Your Content (A) infringes any Third Party Content or other third-party intellectual property rights, or (B) is inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful.
6. Feedback—All right, title and interest in and to comments, ideas, suggestions and impressions of the Website and our products and services given by you to us (collectively, the “Feedback”) is and shall be deemed to be our property and, by submitting Feedback to us, you agree that you thereby assign to us all right, title and interest to such Feedback to us.
7. Data Protection—We will, and we have established commercially reasonable security measures to ensure that our personnel, only use Your Content in accordance with the license granted under this Agreement.
8. Responsibility for Content—You acknowledge and agree that you are exclusively responsible for determining the accuracy, suitability, harmfulness or legality of any content, information or material received, transmitted or sent by you using the Website.
9. Public Transmission and Caching—You acknowledge and agree that the technical processing and transmission of the Website, including Your Content and other Content, may involve transmissions over various networks and changes to conform and adapt to technical requirements of connecting networks or devices, and that such Content may be subject to “caching” or other technical processing or transmission policies and procedures by us or at intermediate locations on the Internet.
10. Deletion of Your Content—If you delete the account to which Your Content is connected, you acknowledge and agree that we may retain a copy or copies of Your Content for archival or compliance purposes or to otherwise provide the Website to you or others, subject always to your license to us set out above. If permitted by the functionality of the Website, you may delete Your Content from the communication facilities thereupon, though we may retain a copy internally thereof for compliance purposes.
11. Compliance and Complaints—We do not have any obligation to censor or review any of Your Content, to censor or review any Third-Party Content or to monitor use of the Website. However, you agree that we may, without notice or liability, disclose to third parties any of your information or Your Content, monitor use of the Website and monitor, review and retain Your Content if we believe in good faith that such activity is reasonably necessary to provide the Website to customers, ensure adherence to or enforce the terms of this Agreement, comply with any laws or regulations, respond to any allegation of illegal conduct or claimed violation of third party rights, or protect us or others. If we receive a complaint relating to use of the Website by you, you acknowledge and agree that we may, in our sole and absolute discretion and without notice or liability, investigate the complaint, restrict, suspend or terminate any Website involved, or remove Your Content from our servers.
7. COPYRIGHT, TRADEMARK AND OTHER NOTICES.
1. Copyright Notice. The Website and all Content is owned and copyrighted by Feature Creep Studios Inc. and/or its licensors, and is licensed to you in accordance with the terms of this Agreement only.
2. Trade-Mark Notice. The trademarks, logos, and service marks displayed on the Website are the property (whether registered or unregistered) of Feature Creep Studios Inc., its licensors or other third parties. You are not permitted to use trade-marks, logos and service marks for any purpose without our prior, written consent. Except as expressly indicated on the website, no endorsement, sponsorship, affiliation or other authorization is implied by any use of third party trade-marks. Without limiting the generality of the foregoing,
1. FEATURE CREEP STUDIOS, and its related logos, indicia and trade-marks, are registered or common law trade-marks of Feature Creep Studios Inc. in Canada, the United States and/or other countries.
2. BALL CRUSHES and BALL CRUSHERS:EXTREME DODGEBALL and related logos, indicia and trade-marks are registered or common law trade-marks of Feature Creep Studios Inc. and is used under license.
3. Infringement Concerns. We respect the intellectual property rights of third parties, and we expect all of our users to do the same. If you are the owner of any copyright, trade-mark or other intellectual property right that you feel is infringed by Content made available through the Website, we encourage you to contact ! by e-mail at email@example.com We will respond to such concerns as soon as practicable.
8. Internet-Based Limitations. Your use of the Website depends on the Internet, including networks, cabling, facilities and equipment that is not in our control; accordingly (a) all representations made by us (if any, see below) regarding access performance, speeds, reliability, availability, use or consistency of the Website are on a “commercially reasonable efforts” basis, (b) we cannot guarantee any minimum level regarding such performance, speed, reliability, availability, use or consistency, and (c) data, messages, information or materials sent over the Internet may not be completely private, and your anonymity is not guaranteed.
9. Acceptable Use and Prohibitions.
1. Lawful Use (Things You Must Do). You will ensure that
1. you only use the Website for lawful purposes, and
2. if at any time you become aware of any violation, by any person or entity under your control, of any part of this Agreement, you will immediately notify us and provide us with assistance, as requested, to stop or remedy such violation.
2. Prohibited Conduct (Things You Must Not Do). Without limiting the generality of any other restriction in this Agreement, you agree that you will not, in connection with the Website, directly or directly do or permit any of the following:
1. post, upload, reproduce, distribute or otherwise transmit any Content (defined below) that
1. is unauthorized or unsolicited commercial communications, junk or bulk communications or other “spam” (whether or not using e-mail services, including instant messaging, blog or comment spam) or is otherwise duplicative or unsolicited,
2. contains a virus, cancelbot, Trojan horse, worm or other harmful, disruptive or surreptitious component,
3. is defamatory, infringing, or unlawful,
4. is inappropriate, profane, obscene, indecent materials or information without suitable or lawfully-required access controls (which controls shall in no event be our responsibility),
5. gives rise to civil liability, or otherwise violates the rights or assists others to violate the rights of us or any third party, such violations including engaging in copyright infringement, invasion of privacy, trademark infringement or defamation,
6. constitutes a criminal offence, or otherwise engages in or assists others to engage in any criminal offence, including pyramid selling, unauthorized use of a computer, mischief in relation to data, fraud, obscenity and child pornography; or
7. incites discrimination, hate or violence towards one person or a group because of their belonging to a race, religion, nationality, sexuality, gender or other human rights-protected group of persons;
2. engage in threats, harassment, intimidation, stalking or abuse or any conduct that violates the legal rights of others, including the rights of minors and rights relating to privacy and publicity;
3. scan or probe another computer system, obstruct or bypass computer identification procedures or engage in unauthorized computer or network trespass without the express permission of the owners of such computer systems;
4. forge headers or otherwise manipulate any protocols or identifiers used in any system or protocol in such a manner to disguise the origin of any data transmitted using the Website;
5. impersonate or falsely represent your association with any person, including a representative of us;
6. disrupt or threaten the integrity, operation or security of any service, computer or any Internet system;
7. disable or circumvent any access control or related process or procedure established with respect to the Website;
8. sublicense, share, resell, reproduce, copy, distribute, redistribute, or exploit for any commercial purposes (except for your internal, personal, non-commercial purposes), any portion of, use of or access to, any Website, except where expressly authorized by us; or
9. extract, gather, collect, or store personal information about others without their express consent.
1. Termination by Us. We may, in our sole discretion, suspend, restrict or terminate your use of the Website, your Content or your Account, effective at any time, without notice to you, for any reason, including if the operation or efficiency of the Website or our or any third party’s equipment or network is impaired by your use of the Website, we have received a third party complaint which relates to your use or misuse of the Website, or you have been or are in breach of any term or condition of this Agreement.
2. Your Content. You acknowledge and agree that termination, curtailment, or suspension of this Agreement for any reason may result in restrictions of, disruptions to or cessation of your or third party access and your Account and Your Content, and you hereby agree to release us from any and all liability and claims of loss resulting from restrictions, disruptions or cessations. If your use of the Website is suspended or restricted, we will have no obligation to forward any of Your Content to you or any third party.
11. DISCLAIMERS, LIMITS OF LIABILITY AND INDEMNITIES.
1. CUSTOMER ACKNOWLEDGEMENT—YOU ACKNOWLEDGE AND AGREE THAT:
1. ALL USE OF THE WEBSITE PROVIDED BY US IS AT YOUR OWN RISK;
2. THE CONTENT THAT YOU MAY ACCESS WHILE USING THE WEBSITE MAY CONTAIN LINKS TO OTHER WEBSITES, WHICH ARE PROVIDED SOLELY AS A CONVENIENCE TO YOU AND THE INCLUSION OF ANY SUCH LINK DOES NOT IMPLY ENDORSEMENT, INVESTIGATION OR VERIFICATION BY US OF SUCH WEBSITES OR THE INFORMATION CONTAINED THEREIN; AND
3. ALL PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
2. DISCLAIMER OF WARRANTIES—WE MAKE NO CONDITIONS, WARRANTIES OR REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, USABILITY, SECURITY, QUALITY, CAPACITY, PERFORMANCE, AVAILABILITY, TIMELINESS OR ACCURACY OF THE WEBSITE. WE EXPRESSLY DISCLAIM ALL CONDITIONS,WARRANTIES AND REPRESENTATIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING IMPLIED CONDITIONS OR WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, TITLE AND NON-INFRINGEMENT, WHETHER ARISING BY USAGE OF TRADE, BY COURSE OF DEALING, BY COURSE OF PERFORMANCE, AT LAW, IN EQUITY, BY STATUTE OR OTHERWISE HOWSOEVER.
3. NO LIABILITY—NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT SHALL WE, OUR AFFILIATES, OR OUR CONTROLLING PARTIES, AGENTS, EMPLOYEES, SUPPLIERS, LICENSORS, RESELLERS AND DISTRIBUTORS (COLLECTIVELY, IN THESE CAPITALIZED SECTIONS, “WE” OR “US”) BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY OTHER DAMAGES OR LOSSES WHATSOEVER, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OPPORTUNITY, EARNINGS, USE OR DATA, ARISING DIRECTLY OR INDIRECTLY FROM OR RELATED TO THIS AGREEMENT OR THE USE, NON-USE, OR INSTALLATION OF THE WEBSITE OR ANY CONTENT OR SOFTWARE IN CONNECTION THERE WITH , REGARDLESS OF THE CAUSE OF ACTION AND EVEN IF ONE OR MORE OF US HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES, INCLUDING DAMAGES OR LOSSES ARISING FROM OR IN ANY WAY RELATED TO THE FOLLOWING:
1. SENDING, RECEIVING, NOT SENDING, NOT RECEIVING, LOSS, DELETION OR ALTERATION OF ANY TRANSMISSIONS, DATA, OR TRANSACTIONS ENTERED INTO THROUGH OR USING THE WEBSITE;
2. ANY SUSPENSION, CURTAILMENT, RESTRICTION, TERMINATION OR OTHER LIMITATION PLACED ON YOUR USE OF THE WEBSITE;
3. ANY ACT OR OMISSION OF YOU OR ANY THIRD PARTY, INCLUDING ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE OR ILLEGAL CONDUCT OR ANY INFRINGEMENT OF ANOTHER’S RIGHTS, INCLUDING INTELLECTUAL PROPERTY RIGHTS;
4. ANY LOSS OR DAMAGE TO YOUR CONTENT OR OTHER DATA ARISING DIRECTLY OR INDIRECTLY OUT OF USE OR NON-USE OF THE WEBSITE OR RELATED COMPONENTS;
5. THE PERFORMANCE OF THE INTERNET OR THE WEBSITE;
6. THE CONTENT OR ACCURACY OF ANY MATERIAL, INFORMATION OR DATA (INCLUDING ANY SOFTWARE) RELATED TO THIS AGREEMENT OR VIEWED, DOWNLOADED, ACCESSED OR TRANSMITTED USING, OVER OR THROUGH THE INTERNET OR THE WEBSITE, INCLUDING MATERIAL THAT INFRINGES THE RIGHTS OF OTHERS OR OTHERWISE VIOLATES LAWS OR REGULATIONS; AND
7. DELAYS, ERRORS, INTERRUPTIONS, MISTAKES, OMISSIONS, NON-DELIVERY, INCORRECT DELIVERY, VIRUSES, TROJAN HORSES, SPYWARE, SPAM OR DEFECTS IN THE TRANSMISSION OF ANY INFORMATION, MATERIAL OR DATA OVER OR THROUGH OUR SYSTEMS OR NETWORKS OR THE SYSTEMS OR NETWORKS OF THIRD PARTIES.
8. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE WEBSITE, OR WITH ANY OF THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE WEBSITE.
4. APPLICABILITY—SOME JURISDICTIONS PROHIBIT THE DISCLAIMER OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OF CERTAIN TYPES OF LIABILITY. IN SUCH CIRCUMSTANCES, TO THE EXTENT THAT SUCH PROHIBITIONS PROHIBIT ANY EXCLUSIONS AND LIMITATIONS IN THIS AGREEMENT, SUCH EXCLUSIONS AND LIMITATIONS WILL NOT APPLY TO YOU STRICTLY TO THE EXTENT NECESSARY TO MAKE THIS AGREEMENT CONSISTENT WITH SUCH PROHIBITIONS.
5. INDEMNITY BY YOU—YOU AGREE TO INDEMNIFY AND HOLD US HARMLESS FROM ALL LIABILITIES, ACTIONS, PROCEEDINGS, CLAIMS, CAUSES OF ACTION, DEMANDS, DEBTS, LOSSES, DAMAGES, CHARGES AND COSTS, INCLUDING REASONABLE LEGAL COSTS, ANY AMOUNT PAID TO SETTLE ANY ACTION OR TO SATISFY A JUDGMENT AND EXPENSES OF ANY KIND AND CHARACTER WHATSOEVER INCURRED BY US RELATING TO OR ARISING FROM (A) ACCESS TO OR USE, BY YOU OR PERMITTED BY YOU, OF THE WEBSITE OR YOUR ACCOUNT, OR (B) ANY OF YOUR ACTS OR OMISSIONS, INCLUDING BREACH OR NON-PERFORMANCE OF THIS AGREEMENT AND ANY VIOLATION OF THIRD PARTY RIGHTS.
1. Interpretation. In this Agreement, (i) the captions and headings are for convenience only and do not constitute substantive matter and are not to be construed as interpreting the contents of this Agreement, (ii) the word “including”, the word “includes” and the phrase “such as”, when following a general statement or term (whether or not non-limiting language such as “without limitation” or “but not limited to” or other words of similar import are used with reference thereto), is not to be construed as limiting, and the word “or” between two or more listed matters does not imply an exclusive relationship between the matters being connected, (iii) all references to website addresses or URLs shall also include any successor or replacement websites containing substantially similar information as the referenced website(s), and (iv) all monetary amounts expressed are in Canadian dollars.
2. Waiver of Rights and Remedies. Our failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between you and us nor trade practice shall act to modify any provision of this Agreement. Our rights, powers and remedies in this Agreement, including without limitation the right to suspend, restrict or terminate your access to any portion of the Website, are cumulative and in addition to and not in substitution for any right, power or remedy that may be available to us at law or in equity.
3. Severability. If any provision of this Agreement is determined to be invalid or unenforceable in whole or in part, such invalidity or unenforceability shall attach only to such provision or part thereof and the remaining part of such provision and all other provisions hereof shall continue in full force and effect.
4. Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the Province of British Columbia. You hereby irrevocably consent to the exclusive jurisdiction of the courts of the Province of British Columbia in connection with any matter arising under this Agreement.
5. Limitation Period. Any cause of action you may have with respect to this Agreement or the Website must be commenced within one year after the claim or cause of action arose, or it shall be barred.
6. Notices—Any notice, consent, waiver, approval, authorization or other communication to be delivered in connection with this Agreement
1. by us to you will be deemed to have been effectively and validly given if delivered or sent to any of the contact particulars then listed in your Account, or if prominently posted on the Website;
2. by you to us will only be deemed to have been effectively and validly given if in writing and properly submitted to us through in the user interface for such submissions on the support or contact section of the Website.
7. Assignment and Inurement. We may at any time assign our rights and obligations under this Agreement, in whole or in part, without notice to you. You may not assign this Agreement without our prior, written consent. This Agreement will inure to the benefit of and bind you and us and our respective personal and legal representatives, successors and permitted assigns.
8. Survival. All provisions that, by their meaning or nature, are intended to survive termination or expiry of this Agreement shall survive termination or expiration of this Agreement.
9. Relationship. You agree that no joint venture, partnership, employment or agency relationship exists between us and you as a result of this Agreement or use of the Website.
10. Force Majeure. Neither party shall be responsible for a failure to fulfil its obligations under this Agreement or for delay in doing so if such failure or delay is due to circumstances beyond its reasonable control, such as acts of God, acts of government, war, riots, strikes and accidents in transportation, but excluding a lack of financing, cash or credit.
11. Entire Agreement. This Agreement, as amended from time to time, including any and all documents, websites, rules, terms and policies referenced herein, constitutes the entire agreement between us and you with respect to the matters referred to in this Agreement and supersedes all prior and contemporaneous agreements and understandings, whether electronic, oral or written, between us and you with respect to such matters.
12. English Language. The parties have requested and agree that this Agreement and all documents relating thereto be drawn up in English / Les parties ont demandé que cette convention ainsi que tous les documents qui s’y rattachent soient rédigés en anglais.