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WARCHEST LIMITED - END USER LICENSE AGREEMENT
Last Revision: 9th February 2017
Effective Date: 9th February 2017
THIS END USER LICENSE AGREEMENT (THIS “AGREEMENT”) IS ENTERED INTO BETWEEN WARCHEST LIMITED (“WARCHEST”) AND YOU (“YOU” OR “YOUR”). IT IS IMPORTANT THAT YOU READ AND CAREFULLY UNDERSTAND THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND DO NOT WISH TO BE BOUND, DO NOT INSTALL THE GAME TO WHICH THIS AGREEMENT APPLIES OR OTHERWISE USE THE SOFTWARE TO WHICH THIS AGREEMENT APPLIES. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU WILL NOT BE ABLE TO ACCESS, DOWNLOAD OR USE THE SOFTWARE AND/OR THE SERVICE. WARCHEST RESERVES THE RIGHT IN ITS SOLE DISCRETION AT ANY TIME TO CHANGE ANY OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. ANY CHANGES TO THIS AGREEMENT WILL BE EFFECTIVE UPON POSTING AT http://www.warchest.com.
1. DEFINITIONS
For purposes of this Agreement, the following terms shall have the following meanings (terms capitalized but not defined in this Agreement shall have the meaning given to them in our Terms of Use):
1.1. “Documentation” means the online, electronic or printed user guides and other documentation which Warchest makes generally available which describes the installation and use of the Software, regardless of how such documentation is accessed by you or delivered to you.
1.2. “Derivative Work” means a new or modified work that is based on or derived from a preexisting work, including, without limitation, a work that, in the absence of a license, would infringe the copyright in such preexisting work or that uses trade secrets or other proprietary information with respect to such preexisting work.
1.3. “Game” means the “first person shooter multiplayer video game” known as Dirty Bomb or other game provided by Warchest, including the one to which this Agreement is appended.
1.4. “Intellectual Property Rights” means worldwide statutory and common law rights, existing now or in the future, associated with (a) issued patents, reissued or reexamined patents, revivals of patents, divisions, continuations and continuations-in-part of patents, all renewals and extensions thereof, utility models, and certificates of invention, regardless of country or formal name, published or unpublished nonprovisional and provisional patent applications, including the right to file other or further applications, reexamination proceedings, invention disclosures and records of invention; (b) works of authorship and visual artworks, including copyrights, moral rights, semiconductor topography and mask work rights, and all applications for registration, registrations, renewals and extensions of registrations thereof, together with all other interests accruing by reason of international copyright, semiconductor topography and mask work conventions; (c) proprietary information and materials, whether or not patentable or copyrightable, and whether or not reduced to practice, including without limitation all trade secrets, confidential information, business methods, ideas, research and development, inventions, designs, manufacturing and operating specifications and processes, know-how, formulae, customer and supplier lists, shop rights, designs, drawings, patterns, technical data, databases, data compilations and collections, computer programs, hardware, software and processes; (d) the trademarks, trade names, and service marks used by a party, whether registered or unregistered, together with the goodwill of the business associated therewith, and all applications for registration and registrations thereof, renewals thereof, the right to bring opposition and cancellation proceedings and any and all rights under the laws of trade dress, the respective stylistic marks and distinctive logotypes for such trademarks, trade names, and service marks and such other marks and logotypes as either party may designate from time to time in writing; and (e) all claims, causes of action and rights to sue for past, present and future infringement or use without consent of any of the foregoing rights.
1.5. “Service” shall mean the web sites provided by Warchest, its agents, designees, vendors or service providers and all related services and products, including, without limitation, Games, or parts or functionality of any Games hosted on servers controlled by Warchest, its agents, designees, vendors or service providers that are made available through the Internet for remote use by third parties.
1.6. “Software” means the Game software, in object code form only, and the media, Documentation and Updates for which you are granted a license pursuant to this Agreement.
1.7. “Term” shall have the meaning set forth in Section 10.1.
1.8. “Terms of Use” means Warchest's terms of use for the Service located at http://www.warchest.com/terms, as may be amended by Warchest from time to time.
1.9. “Updates” means the object code forms of any modifications, error corrections, bug fixes, new versions, or other updates of or to the Software that may be provided or otherwise made available hereunder by Warchest to you during the Term.
2. PRECONDITIONS OF THE GRANT OF LICENSE
The grant of license as set forth in Section 3 below is specifically conditioned upon the following:
2.1. You have accepted all of the terms in this Agreement and indicated your acceptance by selecting “YES,” “I AGREE,” or similar form of assent, as appropriate;
2.2. You will comply with all of the terms in this Agreement until such time as you have deleted all aspects of the Software from your machine;
2.3. You will use the Software only on a computer, running validly licensed copies of operating systems which the Game was designed to operate;
2.4. You will refrain from using any hacks, cracks, bots, or third party software which may modify, temporarily or permanently, the Software or the user experience of the Game, whether on your local machine or on servers which enable use of any features of the Game; and
2.5. You will comply with all requirements and obligations of the Terms of Use, which is specifically incorporated into this Agreement and is made a part hereof.
3. OWNERSHIP; GRANT OF LICENSE; RESTRICTIONS
3.1. Ownership. As between Warchest and you, Warchest owns and shall retain all right, title and interest, including, without limitation, all Intellectual Property Rights, in and to the Software, and any portions thereof, including, without limitation, any copy or Derivative Work of the Software (or any portion thereof) and any Updates thereto. You agree to take any action reasonably requested by Warchest to evidence, maintain, enforce or defend the foregoing rights. You shall not take any action to jeopardize, encumber, limit or interfere in any manner with Warchest's ownership of and rights with respect to the Software, or any Derivative Work or Update thereof or thereto. You shall have only those rights in and to the Software and any Derivative Work or Update thereto as are expressly granted to you under this Agreement.
3.2. Limited Grant of License. Subject to the terms and conditions of this Agreement, Warchest hereby grants you a non-exclusive, nontransferable, nonsublicensable, limited right and license, during the Term, to:
3.2.1. Install a copy of the Software on one or more computers under your legitimate control;
3.2.2. Access and use the Software, solely in accordance with the Documentation and solely for your own personal, non-commercial, entertainment purposes.
3.2.3. Except as set forth in this Section, no other right or license of any kind is granted by Warchest to you hereunder with respect to the Software. Title to the Software is not transferred to you. You own the medium on which the Software is recorded, but we retain all right, title and interest in and to the Software, and all Intellectual Property Rights therein.
3.3. Restrictions. You hereby acknowledge and agree that you shall not use the Software for any purpose other than your personal, non-commercial entertainment purposes, and that you shall use the Software in accordance with all applicable laws, rules and regulations. Except as expressly provided herein, you shall not, and shall not permit any third party to:
3.3.1. Copy all or any portion of the Software, except as may be incidental to using the Software on your machine as permitted by this Agreement;
3.3.2. Exploit the Software, in its entirety or individual components, for any purpose not expressly authorized by Warchest Limited, including, without limitation (i) gathering in-game currency, items, or resources for sale outside of Warchest’s authorized systems and channels; (ii) performing in-game services that disrupt the normal gameplay experience (e.g., power-leveling); or (iii) communicating or facilitating (by text, live audio communications, or otherwise) any commercial advertisement, solicitation or offer through or within the Software.
3.3.3. Create, utilize or transact in any in-game item created or copied by exploiting a design flaw, undocumented problem, or program bug in the Software
3.3.4. Decompile, disassemble or otherwise reverse engineer the Software, or any portion thereof, or determine or attempt to determine any source code, algorithms, methods or techniques used or embodied in the Software or any portion thereof;
3.3.5. Modify, translate, or create any Derivative Works based upon the Software except as may be provided by the Software itself or under other permission from Warchest Limited;
3.3.6. Distribute, disclose, market, rent, lease, grant a security interest in, transfer, assign, sublicense, pledge or otherwise transfer the Software, in whole or in part, or any virtual currency, or digital, in-game items (as set out in the Terms of Use) to any third party whatsoever;
3.3.7. Host, provide or develop matchmaking services for the Software;
3.3.8. Intercept, emulate or redirect the communication protocols used by Warchest, or its designees, in any way, including, without limitation, through protocol emulation, tunneling, packet sniffing, modifying or adding components to the Software, use of a “data mining” utility program to intercept, colled, read or “mine” information generated by the Software, or in any other way utilize a technique now known or hereafter developed that would allow for or otherwise make available unauthorized play of the Game or other use of the Software;
3.3.9. Create, use or maintain any unauthorized connections to the Software;
3.3.10. Remove or alter any copyright, trademark, or other Intellectual Property Right notices, legends, symbols, or labels appearing on or in the Software;
3.3.11. Disrupt or assist in the disruption of (i) any computer used to support the Software or a Game environment; or (ii) any other player’s Game experience. ANY ATTEMPT BY YOU TO DISRUPT THE SOFTWARE OR UNDERMINE THE LEGITIMATE OPERATION OF ANY GAME MAY BE A VIOLATION OF CRIMINAL AND CIVIL LAWS; and
3.3.12. Use the Software for any purpose that (i) violates applicable law or regulation; or (ii) violates this Agreement.
4. SERVICE
4.1. Hosting of the Service. You acknowledge and agree that the Software is used to play the Game through the Service and that Warchest may, in its sole discretion, terminate or otherwise discontinue providing the Service at any time for any or no reason.
4.2. Updates. During the Term, Warchest may provide you with Updates as they are made generally available by Warchest. You acknowledge that, to the extent Warchest licenses some or all of the Software and/or other components of the Service from third party vendors (“Vendors”), such Vendors, and not Warchest, are responsible for creating Updates, if any, and making them available for installation or distribution. You acknowledge and agree that Warchest may, without your knowledge and/or consent, provide Updates to you remotely, including, without limitation, by accessing the computer in which you store the Software. You hereby grant Warchest your express consent to provide Updates to you by any and all means, with or without your knowledge and/or consent. Any Update provided or made available by Warchest hereunder shall be deemed part of the Software and shall be subject to the terms and conditions of this Agreement.
4.3. Game Policies. Your use of the Software to interact with Warchest and other players is governed by Warchest’s game policies from time to time (the “Game Policies”). The Game Policies are not meant to be exhaustive. The Game Policies are incorporated into this Agreement by this reference, and are available for your review at http://www.warchest.com/terms.
4.4. Your Further Obligations. You shall be solely responsible for any and all costs and fees in connection with accessing and using the Software and/or the Service, including, without limitation, Internet service provider fees, telecommunications fee and the costs of any and all equipment used by you in connection with the Software and/or the Service. You acknowledge that Warchest shall have no obligation to assist you in using or accessing the Software, except as expressly set forth in this Agreement. In addition, you agree to adhere at all times to the Terms of Use made available through the Service, as may be amended from time to time.
4.5. Monitoring of the Service.
4.5.1. Warchest shall have the right to monitor and/or record your communications when you use the Software, and you acknowledge and agree that when you use the Software, that you have no expectation that your communications will be private. Warchest shall have the right to disclose your communications for any reason, including : (a) to satisfy any applicable law, regulation, legal process or governmental request; (b) to enforce the terms of this Agreement or any other Warchest policy; (c) to protect Warchest’s legal rights and remedies; (d) to protect the health or safety of anyone that Warchest believes may be threatened; or (e) to report a crime or other offensive behavior.
4.5.2. WHEN RUNNING, THE SOFTWARE MAY MONITOR YOUR COMPUTER'S RANDOM ACCESS MEMORY (RAM) FOR UNAUTHORIZED THIRD PARTY PROGRAMS RUNNING CONCURRENTLY WITH THE GAME. AN "UNAUTHORIZED THIRD PARTY PROGRAM" AS USED HEREIN SHALL BE DEFINED AS ANY THIRD PARTY SOFTWARE PROHIBITED BY SECTION 3.3 ABOVE. IN THE EVENT THAT THE SOFTWARE DETECTS AN UNAUTHORIZED THIRD PARTY PROGRAM, (a) THE GAME MAY COMMUNICATE INFORMATION BACK TO WARCHEST, INCLUDING WITHOUT LIMITATION YOUR ACCOUNT NAME, DETAILS ABOUT THE UNAUTHORIZED THIRD PARTY PROGRAM DETECTED, AND THE TIME AND DATE; AND/OR (b) WARCHEST MAY EXERCISE ANY OR ALL OF ITS RIGHTS UNDER THIS AGREEMENT, WITH OR WITHOUT PRIOR NOTICE TO THE USER. Additionally, certain Games may include a tool that will allow your computer system to forward information to Warchest in the event that the Game crashes, including system and driver data, and consent to Warchest being able to receive this data.
5. PLAYER CONDUCT AND USER GENERATED CONTENT
5.1. Rules Regarding Online Conduct. You may not do, and will be in violation of this Agreement if you do, any of the following:
5.1.1. Post, transmit, promote, or distribute content that violates any law or regulation.
5.1.2. Harass, threaten, embarrass, or do anything else to another user that is unwanted.
5.1.3. Transmit or facilitate distribution of content that is harmful, abusive, racially or ethnically offensive, vulgar, sexually explicit, defamatory, infringing, invasive of personal privacy or publicity rights, or in a reasonable person's view, objectionable. Hate speech is not tolerated.
5.1.4. Promote or encourage any illegal activity including hacking.
5.1.5. Violate any applicable laws, regulations and rules wherever you are using the Game. This includes rules for use of third-party technology and content, rules of interactive service providers, and federal, state, local and foreign laws where applicable. Ignorance of the law is no excuse.
5.1.6. Do anything that interferes with the ability of other users to enjoy playing the Game in accordance with its rules, or that materially increases the expense or difficulty of Warchest, or the third party service provider (if applicable), in maintaining the Game for the enjoyment of all its users.
5.2. User Generated Content. Warchest does not pre-screen content that may be posted or made available through the Service by players, and as such Warchest does not assume any responsibility or liability for content that is generated by users in connection with the Game. Warchest does not assume any liability for any failure to remove, or any delay in removing, content. However, we reserve the right to remove or request that the third party service provider remove content that is objectionable to us for any reason. This determination is in our sole discretion and is final. If Warchest objects to content that you created, Warchest may in its sole discretion (either itself or if applicable by request to the third party service provider): (i) remove content; (ii) give warnings; (iii) restrict your access when you break the rules; or (iv) suspend or terminate your use without any notice to you. In addition, Warchest, may, in its sole discretion, terminate this Agreement, in part, immediately and without notice if your online conduct breaches this Agreement or infringes any third party intellectual property rights, or if we are unable to verify or authenticate any information you provide to us. If we terminate this Agreement under these circumstances, you will lose access to any online portions of the Game. You agree that you will be personally responsible for your use of the Game, and for all of your communication and activity in connection with Game, including any content you contribute, and that you will indemnify and hold harmless Warchest, its parent, affiliates, and their respective employees, officers, and directors from any liability or damages arising from your conduct in the connection with the Game.
5.3. License to User Generated Content. In exchange for use of the Software, and to the extent that your contributions through use of the Software give rise to any copyright interest, you hereby grant Warchest an exclusive, perpetual, irrevocable, fully transferable and sub-licensable worldwide right and license to use your contributions in any way and for any purpose in connection with the Software and related goods and services, including the rights to reproduce, copy, adapt, modify, perform, display, publish, broadcast, transmit, or otherwise communicate to the public by any means whether now known or unknown and distribute your contributions without any further notice or compensation to you of any kind for the whole duration of protection granted to intellectual property rights by applicable laws and international conventions. To the extent permitted by applicable law, you hereby waive any moral rights of paternity, publication, reputation, or attribution with respect to Warchest's and other players' use and enjoyment of such assets in connection with the Game and related goods and services under applicable law. The license grant to Warchest, and the above waiver of any applicable moral rights, survives any termination or revocation of this Agreement.
6. CONFIDENTIAL INFORMATION
6.1. Confidential Information. You acknowledge that, in the course of using the Software and exercising your rights under this Agreement, you may obtain confidential information relating to the Software, the Service or Warchest and its Vendors or other parties (“Confidential Information”). Such Confidential Information shall, as between you and Warchest, belong solely to Warchest and shall include, without limitation, the Software (including any and all Derivative Works and Updates), the existence of and terms of this Agreement, trade secrets, know-how, inventions (whether or not patentable), techniques, processes, programs, ideas, algorithms, formulas, schematics, testing procedures, software design and architecture, computer code, internal documentation, design and functional specifications, product requirements, problem reports, performance information, documents, and other technical, business, product, marketing, third party customers, and financial information, plans and data.
6.2. Use and Disclosure Restrictions. You hereby acknowledge and agree that the Confidential Information constitutes and contains valuable proprietary information and trade secrets of Warchest, and embodies substantial creative efforts and confidential information, ideas, and expressions. Accordingly, you agree: (a) to protect the Confidential Information from unauthorized dissemination and use; (b) to use the Confidential Information only for the performance of your obligations and in connection with the exercise of your rights hereunder; (c) not to disclose or otherwise provide to any third party, without the prior written consent of Warchest, any Confidential Information or any part or parts thereof; (d) to undertake whatever action is necessary to prevent or remedy (or authorize Warchest to do so in your name) any breach of your confidentiality obligations set forth herein; (e) not to remove or destroy any proprietary or confidential legends or markings placed upon or contained within the Software, or on any other Confidential Information provided to you by Warchest; and (f) not to develop any other materials, products, or services containing any of the concepts or ideas contained in the Software or Service or any other Confidential Information.
6.3. Exclusions. The foregoing restrictions pertaining to the Confidential Information shall not apply with respect to any Confidential Information that: (a) was or becomes publicly known through no fault of you; (b) was known by you before receipt from Warchest, as evidenced by your contemporaneous written records, (c) becomes known to you without confidential or proprietary restriction from a source other than Warchest that does not owe a duty of confidentiality to Warchest with respect to such Confidential Information; or (d) is independently developed by you without use of the Confidential Information. In addition, you may use or disclose Confidential Information to the extent (i) expressly approved by an authorized representative of Warchest in writing, and (ii) you are legally compelled to disclose such Confidential Information; provided, however, prior to any such compelled disclosure you shall cooperate fully with Warchest in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information.
7. NO WARRANTY/LIMITATION OF LIABILITY
7.1. Disclaimer of Warranties. THE SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WARCHEST AND ITS PARENTS, SUBSIDIARIES, AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, PARTNERS, SPONSORS AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. WARCHEST AND ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS, PARTNERS AND AGENTS DO NOT WARRANT THAT YOUR USE OF THE SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SOFTWARE, AND/OR THE SERVER(S), SYSTEM(S) AND NETWORK(S) ON WHICH THE SOFTWARE IS HOSTED AND/OR OPERATES, ARE OR WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE THAT YOU ARE RESPONSIBLE FOR OBTAINING AND MAINTAINING ALL TELEPHONE, COMPUTER HARDWARE AND OTHER EQUIPMENT NEEDED TO ACCESS AND USE THE SOFTWARE AND ALL CHARGES RELATED THERETO. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SOFTWARE AND YOUR RELIANCE THEREON. NO OPINION, ADVICE OR STATEMENT OF WARCHEST OR ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS, PARTNERS, AGENTS OR THIRD PARTY USERS, WHETHER MADE IN OR ON THE SOFTWARE OR OTHERWISE, SHALL CREATE ANY WARRANTY. YOUR USE OF THE SOFTWARE IS ENTIRELY AT YOUR OWN RISK.
7.2. Limitation of Liability.
7.2.1. WARCHEST AND ITS LICENSORS MAKE NO PROMISE OR WARRANTY THAT THE GAME OR SOFTWARE WILL WORK PROPERLY. YOU ACKNOWLEDGE AND AGREE THAT WARCHEST IS NOT RESPONSIBLE OR LIABLE FOR (1) ANY VIRUSES OR SOFTWARE DISABLING FEATURES THAT AFFECT YOUR ACCESS TO OR USE OF THE SOFTWARE,( 2) ANY INCOMPATIBILITY BETWEEN THE SOFTWARE, AND OTHER SERVICES, SOFTWARE AND HARDWARE, OR (3) ANY DELAYS OR FAILURES YOU MAY EXPERIENCE IN INITIATING, CONDUCTING OR COMPLETING ANY TRANSMISSIONS OR TRANSACTIONS IN CONNECTION WITH THE SOFTWARE IN AN ACCURATE OR TIMELY MANNER.
7.2.2. Warchest does not ensure continuous, error free, secure or virus-free operation of any online, multi-player or downloadable portions of the Software or continued operation or availability of any given server.
7.2.3. Warchest is not liable for any delay or failure to perform resulting from any causes beyond our reasonable control. Further, Warchest cannot and does not promise or ensure that you will be able to access the online, multi-player or downloadable portions of the Software whenever you want, and there may be extended periods of time when you cannot access such portions of the Software.
7.2.4. NEITHER WARCHEST NOR ANY OF ITS PARENTS, SUBSIDIARIES, AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS OR PARTNERS, NOR WARCHEST'S OR OTHER ENTITIES' DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AGENTS, ATTORNEYS OR OTHER REPRESENTATIVES, ARE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF DATA OR LOST PROFITS), UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THE SOFTWARE, EVEN IF WARCHEST (OR SUCH OTHER ENTITIES OR PERSONS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SOFTWARE, OR ANY PART THEREOF, IS TO STOP USING THE SOFTWARE. THE MAXIMUM AGGREGATE LIABILITY OF WARCHEST FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, SHALL BE TWENTY U.S. DOLLARS.
7.3. Other. Without limiting the foregoing, Warchest shall have no obligations, responsibilities and/or liabilities if any nonconformance or failure of, or error in, the Software is caused by: (a) use of any attachment, feature, hardware, software or device in connection with the Software not supplied by Warchest; (b) transportation, neglect or misuse of the Software or any use of the Software that is not in accordance with this Agreement and/or the Documentation; (c) alteration, modification, or enhancement of the Software other than by Warchest; or (d) failure to provide a suitable installation or use environment for all or any part of the Software.
7.4 Nothing in this Agreement limits the liability of any party for death or personal injury caused by negligence, fraud, fraudulent misrepresentation or misstatement, of for any statutory liability not capable of limitation.
8. INDEMNIFICATION
As a condition of your access to and use of the Software, you hereby agree to indemnify, defend, and hold Warchest, our parents, subsidiaries, affiliates, independent contractors, licensors, suppliers, advertisers, partners, sublicensees and sponsors, and our and their directors, officers, employees, consultants, agents, attorneys and other representatives, harmless from and against, any and all claims, damages, losses, liabilities, costs (including reasonable attorneys' fees) and other expenses that arise directly or indirectly out of or from: (a) your use, operation or combination of the Software with non-Warchest software, data, equipment or documentation if liability would have been avoided but for such use, operation, or combination; (b) your use of other than the then-current, unaltered version of the Software; (c) your activities after Warchest has notified you that Warchest believes such activities may result in infringement or otherwise violate the rights of Warchest or any third party; (d) any modifications to the Software made by you; (e) your breach or alleged breach of this Agreement; and (f) your violation of any applicable law or the rights of any other person.
9. CHANGES
9.1. Alterations to the Agreement. Warchest may create updated versions of this Agreement (each a “New Agreement”) as the Software, the Games, and the law evolve. This Agreement will terminate immediately upon the introduction of a New Agreement. New Agreements will not be applied retroactively. You will be given an opportunity to review the New Agreement before choosing to accept or reject its terms. If you accept the New Agreement, and if your Software-related account remains in good standing, you will be able to continue using the Software subject to the terms of the New Agreement. If you decline to accept the New Agreement, or if you cannot comply with the terms of the New Agreement, you will no longer be permitted to use the Software.
9.2. Changes to the Software. Warchest may change, modify, suspend, or discontinue any aspect of the Game(s) or Software at any time, including removing items, or revising the effectiveness of items in an effort to balance a Game. Warchest may also impose limits on certain features or restrict your access to parts or all of the Software without notice or liability.
10. TERM AND TERMINATION
10.1. Term. This Agreement shall commence on the date you click the “I Accept” button below and shall continue until termination in accordance with this Section 10.
10.2. Termination. This Agreement shall remain effective until terminated in accordance with its terms. You are entitled to terminate this agreement at any time by uninstalling all aspects of the Software to which you have access and by submitting to Warchest’s customer support department a request to permanently delete all account information linked to you. Warchest may terminate this Agreement in the event that you fail to comply with the terms and conditions contained herein or the terms and conditions contained in the Terms of Use. Without limiting the foregoing, Warchest reserves the right to immediately terminate this Agreement, and/or your use of the Software or any portion thereof, at any time and for any reason, with or without cause.
10.3. Effect of Termination. Upon the expiration or termination of this Agreement, all rights and licenses granted to you hereunder shall immediately terminate. Upon termination or expiration of this Agreement, you shall, at your sole expense, return to Warchest (or destroy, at Warchest's sole election) all Software and Confidential Information (and all copies and extracts thereof) then in your possession or under your control. Termination of this Agreement shall not act as a waiver of any breach of this Agreement and shall not act as a release of your liability for breach of your obligations under this Agreement. Warchest shall not be liable to you for damages of any kind solely as a result of terminating this Agreement in accordance with its terms. Warchest's termination of this Agreement shall be without prejudice to any other right or remedy that it may have at law or in equity, and shall not relieve you of breaches occurring prior to the effective date of such termination. The provisions of Sections 1 (“Definitions”), 3.1 (“Ownership”), 3.3 (“Restrictions”), 6 (“Confidential Information”), 7 (“No Warranty/Limitation of Liability”), 8 (“Indemnification”), 10.3 (“Effect of Termination”) and 12 (“General Provisions”), shall survive the expiration or any termination of this Agreement.
11. DISPUTE RESOLUTION
11.1. Disputes. In an effort to accelerate resolution and reduce the cost of any dispute, controversy or claim related to, or arising out of, this Agreement or any policy, document or agreement incorporated herein (“Dispute”), you and Warchest agree to first attempt to negotiate any dispute, controversy, or claim, whether based on contract, tort, fraudulent misrepresentation, statute, regulation, constitution, common law, equity, or any other legal basis, that arises out of or relates to the Dispute (except as set forth in Section 11.4 below) informally for at least thirty (30) days before initiating any arbitration or court proceeding.
11.1.1. Negotiations will begin upon receipt of written notice by the party bringing the Dispute. Warchest will send its notice to your billing address and/or email you a copy to the email address you have provided to us.
11.1.2. You will send your notice to Warchest at Warchest Limited, Royal Court, 81 Tweedy Road, Bromley, BR1 1TG.
11.2. Binding Arbitration.
11.2.1. If a Dispute cannot be resolved through negotiations, then the Dispute must be submitted to binding arbitration (except for the circumstances described in Section 11.4). Arbitration of a Dispute shall be a final and binding determination on you and Warchest. You should review this provision carefully. This arbitration provision limits your and Warchest’s ability to litigate claims in court and you and Warchest each agree to waive our respective rights to a jury trial.
11.2.2. The arbitration shall be commenced and conducted under the London Court of International Arbitration’s (LCIA) Arbitration Rules available at http://www.lcia.org/Dispute_Resolution_Services/lcia-arbitration-rules-2014.aspx. The arbitrator shall determine the scope and enforceability of this arbitration agreement, including whether a Dispute is subject to arbitration.
11.3. Restrictions. You and Warchest agree that any arbitration shall be limited to the Dispute between Warchest and you individually. YOU ACKNOWLEDGE AND AGREE THAT:
11.3.1. A CLAIM BY, OR ON BEHALF OF, OTHER PERSONS, WILL NOT BE CONSIDERED IN, JOINED WITH, OR CONSOLIDATED WITH, THE ARBITRATION PROCEEDINGS BETWEEN YOU AND WARCHEST;
11.3.2. THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; AND
11.3.3. YOU WILL NOT HAVE THE RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE, PRIVATE ATTORNEY GENERAL, OR AS A MEMBER OF ANY CLASS OF CLAIMANTS FOR ANY CLAIM SUBJECT TO ARBITRATION.
11.3.4. Any dispute regarding the prohibitions in the prior sections shall be resolved by the arbitrator in accordance with this Agreement.
11.4. Exceptions to Negotiations and Arbitration. You and Warchest agree that the following Disputes are not subject to the above provisions concerning negotiations and binding arbitration:
11.4.1. any Disputes seeking to enforce or protect, or concerning the validity of, any of your or Warchest’s intellectual property rights;
11.4.2. any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use;
11.4.3. any claim for injunctive relief; and
11.4.4. any claim within the jurisdictional limits of the small claims courts.
11.5. Location of Arbitration. Arbitration shall be initiated in London, England. Any Dispute not subject to this Section 11 shall be decided by a court of competent jurisdiction within courts of England and you and Warchest agree to submit to the personal jurisdiction of that court.
11.6. Governing Law.
11.6.1. Except as expressly provided otherwise, all Disputes shall be governed by and construed under the laws of England and Wales, without regard to choice of law principles.
11.6.2. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
11.7. Attorneys' Fees. If any legal action, including, without limitation, an action for arbitration or injunctive relief, is brought relating to this Agreement or the breach hereof, the prevailing party in any final judgment or arbitration award, or the non-dismissing party in the event of a dismissal without prejudice, shall be entitled to the full amount of all reasonable expenses, including all court costs, arbitration fees and actual attorney fees paid or incurred in good faith.
11.8. Severability. You and Warchest agree that if any portion of this Section 11 is found illegal or unenforceable, such portion shall be severed and the remainder of this Section 11 shall be given full force and effect. Any Dispute subject to any such portion of this Section 11 shall be decided by the arbitrator.
12. GENERAL PROVISIONS
12.1. Assignment. This Agreement may not be assigned, in whole or part, whether voluntarily, by operation of law, or otherwise, by you without the prior written consent of Warchest. Warchest may assign, license, delegate or otherwise transfer its rights or obligations hereunder to any third party without restriction. Subject to the preceding sentences, the rights and liabilities of the parties hereto are binding on, and shall inure to the benefit of, the parties and their respective successors and permitted assigns. Any attempted assignment other than in accordance with this Section 12.1 shall be null and void.
12.2. Waiver. The waiver by either party of a breach of or a default under any provision of this Agreement, shall be in writing and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.
12.3. Severability. If the application of any provision of this Agreement to any particular facts or circumstances shall be held to be invalid or unenforceable by an arbitration panel or a court of competent jurisdiction, then (a) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement shall not in any way be affected or impaired thereby, and (b) such provision shall be enforced to the maximum extent possible so as to effect the intent of the parties and reformed without further action by the parties to the extent necessary to make such provision valid and enforceable.
12.4. Relationship of the Parties. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture, partnership, agency, employment or fiduciary relationship between the parties. Neither party, nor either party's agents, have any authority of any kind to bind the other party in any respect whatsoever, and the relationship of the parties is, and at all times shall continue to be, that of independent contractors.
12.5. Force Majeure. Neither party shall be responsible or have any liability for any delay or failure to perform to the extent due to unforeseen circumstances or causes beyond its reasonable control, including, without limitation, acts of God, earthquake, fire, flood, embargoes, labor disputes and strikes, riots, war, acts of a public enemy, error in the coding of electronic files, Internet or other network “brownouts” or failures, power failures, novelty of product manufacture or other unanticipated product development problems, and acts of civil and military authorities.
12.6. U.S. Government Rights. If you are, or are entering into this Agreement on behalf of, any agency or instrumentality of the United States Government, the Software is “commercial computer software” and “commercial computer software documentation,” and pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable, use, reproduction and disclosure of the Software is governed by the terms of this Agreement.
12.7. Export Controls. You shall abide by all applicable export laws and regulations in its use of the Software. The Software, or any part thereof, may not be downloaded or otherwise exported or re-exported (a) into any country for which the United States or United Kingdom has a trade embargo, or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders of anyone on the HM Treasury’s Sanctions List. You represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
12.8. Captions and Section Headings. The captions and Section and paragraph headings used in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement.
12.9. Equitable Relief. You acknowledge and agree that due to the unique nature of this Agreement, there can be no adequate remedy at law to compensate Warchest for your breach or threatened breach hereof; that any such breach or threatened breach will allow you or third parties to compete unfairly with Warchest resulting in irreparable harm to Warchest that would be difficult to measure; and, therefore, that upon any such breach or threat thereof, Warchest shall be entitled to injunctive and other appropriate equitable relief (without the necessity of proving actual damages or of posting a bond), in addition to whatever remedies it may have at law, hereunder, or otherwise.
12.10. Entire Agreement; Amendment. This Agreement (together with the Terms of Use) constitute the entire agreement between the parties concerning the subject matter hereof, and supersedes (a) all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, agreements, and communications, whether oral or written, between the parties relating to the subject matter of this Agreement; and (b) all past courses of dealing and industry custom.
© 2014-2017 Warchest Limited. All Rights Reserved.
Last Revision: 9th February 2017
Effective Date: 9th February 2017
THIS END USER LICENSE AGREEMENT (THIS “AGREEMENT”) IS ENTERED INTO BETWEEN WARCHEST LIMITED (“WARCHEST”) AND YOU (“YOU” OR “YOUR”). IT IS IMPORTANT THAT YOU READ AND CAREFULLY UNDERSTAND THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND DO NOT WISH TO BE BOUND, DO NOT INSTALL THE GAME TO WHICH THIS AGREEMENT APPLIES OR OTHERWISE USE THE SOFTWARE TO WHICH THIS AGREEMENT APPLIES. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU WILL NOT BE ABLE TO ACCESS, DOWNLOAD OR USE THE SOFTWARE AND/OR THE SERVICE. WARCHEST RESERVES THE RIGHT IN ITS SOLE DISCRETION AT ANY TIME TO CHANGE ANY OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. ANY CHANGES TO THIS AGREEMENT WILL BE EFFECTIVE UPON POSTING AT http://www.warchest.com.
1. DEFINITIONS
For purposes of this Agreement, the following terms shall have the following meanings (terms capitalized but not defined in this Agreement shall have the meaning given to them in our Terms of Use):
1.1. “Documentation” means the online, electronic or printed user guides and other documentation which Warchest makes generally available which describes the installation and use of the Software, regardless of how such documentation is accessed by you or delivered to you.
1.2. “Derivative Work” means a new or modified work that is based on or derived from a preexisting work, including, without limitation, a work that, in the absence of a license, would infringe the copyright in such preexisting work or that uses trade secrets or other proprietary information with respect to such preexisting work.
1.3. “Game” means the “first person shooter multiplayer video game” known as Dirty Bomb or other game provided by Warchest, including the one to which this Agreement is appended.
1.4. “Intellectual Property Rights” means worldwide statutory and common law rights, existing now or in the future, associated with (a) issued patents, reissued or reexamined patents, revivals of patents, divisions, continuations and continuations-in-part of patents, all renewals and extensions thereof, utility models, and certificates of invention, regardless of country or formal name, published or unpublished nonprovisional and provisional patent applications, including the right to file other or further applications, reexamination proceedings, invention disclosures and records of invention; (b) works of authorship and visual artworks, including copyrights, moral rights, semiconductor topography and mask work rights, and all applications for registration, registrations, renewals and extensions of registrations thereof, together with all other interests accruing by reason of international copyright, semiconductor topography and mask work conventions; (c) proprietary information and materials, whether or not patentable or copyrightable, and whether or not reduced to practice, including without limitation all trade secrets, confidential information, business methods, ideas, research and development, inventions, designs, manufacturing and operating specifications and processes, know-how, formulae, customer and supplier lists, shop rights, designs, drawings, patterns, technical data, databases, data compilations and collections, computer programs, hardware, software and processes; (d) the trademarks, trade names, and service marks used by a party, whether registered or unregistered, together with the goodwill of the business associated therewith, and all applications for registration and registrations thereof, renewals thereof, the right to bring opposition and cancellation proceedings and any and all rights under the laws of trade dress, the respective stylistic marks and distinctive logotypes for such trademarks, trade names, and service marks and such other marks and logotypes as either party may designate from time to time in writing; and (e) all claims, causes of action and rights to sue for past, present and future infringement or use without consent of any of the foregoing rights.
1.5. “Service” shall mean the web sites provided by Warchest, its agents, designees, vendors or service providers and all related services and products, including, without limitation, Games, or parts or functionality of any Games hosted on servers controlled by Warchest, its agents, designees, vendors or service providers that are made available through the Internet for remote use by third parties.
1.6. “Software” means the Game software, in object code form only, and the media, Documentation and Updates for which you are granted a license pursuant to this Agreement.
1.7. “Term” shall have the meaning set forth in Section 10.1.
1.8. “Terms of Use” means Warchest's terms of use for the Service located at http://www.warchest.com/terms, as may be amended by Warchest from time to time.
1.9. “Updates” means the object code forms of any modifications, error corrections, bug fixes, new versions, or other updates of or to the Software that may be provided or otherwise made available hereunder by Warchest to you during the Term.
2. PRECONDITIONS OF THE GRANT OF LICENSE
The grant of license as set forth in Section 3 below is specifically conditioned upon the following:
2.1. You have accepted all of the terms in this Agreement and indicated your acceptance by selecting “YES,” “I AGREE,” or similar form of assent, as appropriate;
2.2. You will comply with all of the terms in this Agreement until such time as you have deleted all aspects of the Software from your machine;
2.3. You will use the Software only on a computer, running validly licensed copies of operating systems which the Game was designed to operate;
2.4. You will refrain from using any hacks, cracks, bots, or third party software which may modify, temporarily or permanently, the Software or the user experience of the Game, whether on your local machine or on servers which enable use of any features of the Game; and
2.5. You will comply with all requirements and obligations of the Terms of Use, which is specifically incorporated into this Agreement and is made a part hereof.
3. OWNERSHIP; GRANT OF LICENSE; RESTRICTIONS
3.1. Ownership. As between Warchest and you, Warchest owns and shall retain all right, title and interest, including, without limitation, all Intellectual Property Rights, in and to the Software, and any portions thereof, including, without limitation, any copy or Derivative Work of the Software (or any portion thereof) and any Updates thereto. You agree to take any action reasonably requested by Warchest to evidence, maintain, enforce or defend the foregoing rights. You shall not take any action to jeopardize, encumber, limit or interfere in any manner with Warchest's ownership of and rights with respect to the Software, or any Derivative Work or Update thereof or thereto. You shall have only those rights in and to the Software and any Derivative Work or Update thereto as are expressly granted to you under this Agreement.
3.2. Limited Grant of License. Subject to the terms and conditions of this Agreement, Warchest hereby grants you a non-exclusive, nontransferable, nonsublicensable, limited right and license, during the Term, to:
3.2.1. Install a copy of the Software on one or more computers under your legitimate control;
3.2.2. Access and use the Software, solely in accordance with the Documentation and solely for your own personal, non-commercial, entertainment purposes.
3.2.3. Except as set forth in this Section, no other right or license of any kind is granted by Warchest to you hereunder with respect to the Software. Title to the Software is not transferred to you. You own the medium on which the Software is recorded, but we retain all right, title and interest in and to the Software, and all Intellectual Property Rights therein.
3.3. Restrictions. You hereby acknowledge and agree that you shall not use the Software for any purpose other than your personal, non-commercial entertainment purposes, and that you shall use the Software in accordance with all applicable laws, rules and regulations. Except as expressly provided herein, you shall not, and shall not permit any third party to:
3.3.1. Copy all or any portion of the Software, except as may be incidental to using the Software on your machine as permitted by this Agreement;
3.3.2. Exploit the Software, in its entirety or individual components, for any purpose not expressly authorized by Warchest Limited, including, without limitation (i) gathering in-game currency, items, or resources for sale outside of Warchest’s authorized systems and channels; (ii) performing in-game services that disrupt the normal gameplay experience (e.g., power-leveling); or (iii) communicating or facilitating (by text, live audio communications, or otherwise) any commercial advertisement, solicitation or offer through or within the Software.
3.3.3. Create, utilize or transact in any in-game item created or copied by exploiting a design flaw, undocumented problem, or program bug in the Software
3.3.4. Decompile, disassemble or otherwise reverse engineer the Software, or any portion thereof, or determine or attempt to determine any source code, algorithms, methods or techniques used or embodied in the Software or any portion thereof;
3.3.5. Modify, translate, or create any Derivative Works based upon the Software except as may be provided by the Software itself or under other permission from Warchest Limited;
3.3.6. Distribute, disclose, market, rent, lease, grant a security interest in, transfer, assign, sublicense, pledge or otherwise transfer the Software, in whole or in part, or any virtual currency, or digital, in-game items (as set out in the Terms of Use) to any third party whatsoever;
3.3.7. Host, provide or develop matchmaking services for the Software;
3.3.8. Intercept, emulate or redirect the communication protocols used by Warchest, or its designees, in any way, including, without limitation, through protocol emulation, tunneling, packet sniffing, modifying or adding components to the Software, use of a “data mining” utility program to intercept, colled, read or “mine” information generated by the Software, or in any other way utilize a technique now known or hereafter developed that would allow for or otherwise make available unauthorized play of the Game or other use of the Software;
3.3.9. Create, use or maintain any unauthorized connections to the Software;
3.3.10. Remove or alter any copyright, trademark, or other Intellectual Property Right notices, legends, symbols, or labels appearing on or in the Software;
3.3.11. Disrupt or assist in the disruption of (i) any computer used to support the Software or a Game environment; or (ii) any other player’s Game experience. ANY ATTEMPT BY YOU TO DISRUPT THE SOFTWARE OR UNDERMINE THE LEGITIMATE OPERATION OF ANY GAME MAY BE A VIOLATION OF CRIMINAL AND CIVIL LAWS; and
3.3.12. Use the Software for any purpose that (i) violates applicable law or regulation; or (ii) violates this Agreement.
4. SERVICE
4.1. Hosting of the Service. You acknowledge and agree that the Software is used to play the Game through the Service and that Warchest may, in its sole discretion, terminate or otherwise discontinue providing the Service at any time for any or no reason.
4.2. Updates. During the Term, Warchest may provide you with Updates as they are made generally available by Warchest. You acknowledge that, to the extent Warchest licenses some or all of the Software and/or other components of the Service from third party vendors (“Vendors”), such Vendors, and not Warchest, are responsible for creating Updates, if any, and making them available for installation or distribution. You acknowledge and agree that Warchest may, without your knowledge and/or consent, provide Updates to you remotely, including, without limitation, by accessing the computer in which you store the Software. You hereby grant Warchest your express consent to provide Updates to you by any and all means, with or without your knowledge and/or consent. Any Update provided or made available by Warchest hereunder shall be deemed part of the Software and shall be subject to the terms and conditions of this Agreement.
4.3. Game Policies. Your use of the Software to interact with Warchest and other players is governed by Warchest’s game policies from time to time (the “Game Policies”). The Game Policies are not meant to be exhaustive. The Game Policies are incorporated into this Agreement by this reference, and are available for your review at http://www.warchest.com/terms.
4.4. Your Further Obligations. You shall be solely responsible for any and all costs and fees in connection with accessing and using the Software and/or the Service, including, without limitation, Internet service provider fees, telecommunications fee and the costs of any and all equipment used by you in connection with the Software and/or the Service. You acknowledge that Warchest shall have no obligation to assist you in using or accessing the Software, except as expressly set forth in this Agreement. In addition, you agree to adhere at all times to the Terms of Use made available through the Service, as may be amended from time to time.
4.5. Monitoring of the Service.
4.5.1. Warchest shall have the right to monitor and/or record your communications when you use the Software, and you acknowledge and agree that when you use the Software, that you have no expectation that your communications will be private. Warchest shall have the right to disclose your communications for any reason, including : (a) to satisfy any applicable law, regulation, legal process or governmental request; (b) to enforce the terms of this Agreement or any other Warchest policy; (c) to protect Warchest’s legal rights and remedies; (d) to protect the health or safety of anyone that Warchest believes may be threatened; or (e) to report a crime or other offensive behavior.
4.5.2. WHEN RUNNING, THE SOFTWARE MAY MONITOR YOUR COMPUTER'S RANDOM ACCESS MEMORY (RAM) FOR UNAUTHORIZED THIRD PARTY PROGRAMS RUNNING CONCURRENTLY WITH THE GAME. AN "UNAUTHORIZED THIRD PARTY PROGRAM" AS USED HEREIN SHALL BE DEFINED AS ANY THIRD PARTY SOFTWARE PROHIBITED BY SECTION 3.3 ABOVE. IN THE EVENT THAT THE SOFTWARE DETECTS AN UNAUTHORIZED THIRD PARTY PROGRAM, (a) THE GAME MAY COMMUNICATE INFORMATION BACK TO WARCHEST, INCLUDING WITHOUT LIMITATION YOUR ACCOUNT NAME, DETAILS ABOUT THE UNAUTHORIZED THIRD PARTY PROGRAM DETECTED, AND THE TIME AND DATE; AND/OR (b) WARCHEST MAY EXERCISE ANY OR ALL OF ITS RIGHTS UNDER THIS AGREEMENT, WITH OR WITHOUT PRIOR NOTICE TO THE USER. Additionally, certain Games may include a tool that will allow your computer system to forward information to Warchest in the event that the Game crashes, including system and driver data, and consent to Warchest being able to receive this data.
5. PLAYER CONDUCT AND USER GENERATED CONTENT
5.1. Rules Regarding Online Conduct. You may not do, and will be in violation of this Agreement if you do, any of the following:
5.1.1. Post, transmit, promote, or distribute content that violates any law or regulation.
5.1.2. Harass, threaten, embarrass, or do anything else to another user that is unwanted.
5.1.3. Transmit or facilitate distribution of content that is harmful, abusive, racially or ethnically offensive, vulgar, sexually explicit, defamatory, infringing, invasive of personal privacy or publicity rights, or in a reasonable person's view, objectionable. Hate speech is not tolerated.
5.1.4. Promote or encourage any illegal activity including hacking.
5.1.5. Violate any applicable laws, regulations and rules wherever you are using the Game. This includes rules for use of third-party technology and content, rules of interactive service providers, and federal, state, local and foreign laws where applicable. Ignorance of the law is no excuse.
5.1.6. Do anything that interferes with the ability of other users to enjoy playing the Game in accordance with its rules, or that materially increases the expense or difficulty of Warchest, or the third party service provider (if applicable), in maintaining the Game for the enjoyment of all its users.
5.2. User Generated Content. Warchest does not pre-screen content that may be posted or made available through the Service by players, and as such Warchest does not assume any responsibility or liability for content that is generated by users in connection with the Game. Warchest does not assume any liability for any failure to remove, or any delay in removing, content. However, we reserve the right to remove or request that the third party service provider remove content that is objectionable to us for any reason. This determination is in our sole discretion and is final. If Warchest objects to content that you created, Warchest may in its sole discretion (either itself or if applicable by request to the third party service provider): (i) remove content; (ii) give warnings; (iii) restrict your access when you break the rules; or (iv) suspend or terminate your use without any notice to you. In addition, Warchest, may, in its sole discretion, terminate this Agreement, in part, immediately and without notice if your online conduct breaches this Agreement or infringes any third party intellectual property rights, or if we are unable to verify or authenticate any information you provide to us. If we terminate this Agreement under these circumstances, you will lose access to any online portions of the Game. You agree that you will be personally responsible for your use of the Game, and for all of your communication and activity in connection with Game, including any content you contribute, and that you will indemnify and hold harmless Warchest, its parent, affiliates, and their respective employees, officers, and directors from any liability or damages arising from your conduct in the connection with the Game.
5.3. License to User Generated Content. In exchange for use of the Software, and to the extent that your contributions through use of the Software give rise to any copyright interest, you hereby grant Warchest an exclusive, perpetual, irrevocable, fully transferable and sub-licensable worldwide right and license to use your contributions in any way and for any purpose in connection with the Software and related goods and services, including the rights to reproduce, copy, adapt, modify, perform, display, publish, broadcast, transmit, or otherwise communicate to the public by any means whether now known or unknown and distribute your contributions without any further notice or compensation to you of any kind for the whole duration of protection granted to intellectual property rights by applicable laws and international conventions. To the extent permitted by applicable law, you hereby waive any moral rights of paternity, publication, reputation, or attribution with respect to Warchest's and other players' use and enjoyment of such assets in connection with the Game and related goods and services under applicable law. The license grant to Warchest, and the above waiver of any applicable moral rights, survives any termination or revocation of this Agreement.
6. CONFIDENTIAL INFORMATION
6.1. Confidential Information. You acknowledge that, in the course of using the Software and exercising your rights under this Agreement, you may obtain confidential information relating to the Software, the Service or Warchest and its Vendors or other parties (“Confidential Information”). Such Confidential Information shall, as between you and Warchest, belong solely to Warchest and shall include, without limitation, the Software (including any and all Derivative Works and Updates), the existence of and terms of this Agreement, trade secrets, know-how, inventions (whether or not patentable), techniques, processes, programs, ideas, algorithms, formulas, schematics, testing procedures, software design and architecture, computer code, internal documentation, design and functional specifications, product requirements, problem reports, performance information, documents, and other technical, business, product, marketing, third party customers, and financial information, plans and data.
6.2. Use and Disclosure Restrictions. You hereby acknowledge and agree that the Confidential Information constitutes and contains valuable proprietary information and trade secrets of Warchest, and embodies substantial creative efforts and confidential information, ideas, and expressions. Accordingly, you agree: (a) to protect the Confidential Information from unauthorized dissemination and use; (b) to use the Confidential Information only for the performance of your obligations and in connection with the exercise of your rights hereunder; (c) not to disclose or otherwise provide to any third party, without the prior written consent of Warchest, any Confidential Information or any part or parts thereof; (d) to undertake whatever action is necessary to prevent or remedy (or authorize Warchest to do so in your name) any breach of your confidentiality obligations set forth herein; (e) not to remove or destroy any proprietary or confidential legends or markings placed upon or contained within the Software, or on any other Confidential Information provided to you by Warchest; and (f) not to develop any other materials, products, or services containing any of the concepts or ideas contained in the Software or Service or any other Confidential Information.
6.3. Exclusions. The foregoing restrictions pertaining to the Confidential Information shall not apply with respect to any Confidential Information that: (a) was or becomes publicly known through no fault of you; (b) was known by you before receipt from Warchest, as evidenced by your contemporaneous written records, (c) becomes known to you without confidential or proprietary restriction from a source other than Warchest that does not owe a duty of confidentiality to Warchest with respect to such Confidential Information; or (d) is independently developed by you without use of the Confidential Information. In addition, you may use or disclose Confidential Information to the extent (i) expressly approved by an authorized representative of Warchest in writing, and (ii) you are legally compelled to disclose such Confidential Information; provided, however, prior to any such compelled disclosure you shall cooperate fully with Warchest in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information.
7. NO WARRANTY/LIMITATION OF LIABILITY
7.1. Disclaimer of Warranties. THE SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WARCHEST AND ITS PARENTS, SUBSIDIARIES, AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, PARTNERS, SPONSORS AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. WARCHEST AND ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS, PARTNERS AND AGENTS DO NOT WARRANT THAT YOUR USE OF THE SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SOFTWARE, AND/OR THE SERVER(S), SYSTEM(S) AND NETWORK(S) ON WHICH THE SOFTWARE IS HOSTED AND/OR OPERATES, ARE OR WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE THAT YOU ARE RESPONSIBLE FOR OBTAINING AND MAINTAINING ALL TELEPHONE, COMPUTER HARDWARE AND OTHER EQUIPMENT NEEDED TO ACCESS AND USE THE SOFTWARE AND ALL CHARGES RELATED THERETO. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SOFTWARE AND YOUR RELIANCE THEREON. NO OPINION, ADVICE OR STATEMENT OF WARCHEST OR ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS, PARTNERS, AGENTS OR THIRD PARTY USERS, WHETHER MADE IN OR ON THE SOFTWARE OR OTHERWISE, SHALL CREATE ANY WARRANTY. YOUR USE OF THE SOFTWARE IS ENTIRELY AT YOUR OWN RISK.
7.2. Limitation of Liability.
7.2.1. WARCHEST AND ITS LICENSORS MAKE NO PROMISE OR WARRANTY THAT THE GAME OR SOFTWARE WILL WORK PROPERLY. YOU ACKNOWLEDGE AND AGREE THAT WARCHEST IS NOT RESPONSIBLE OR LIABLE FOR (1) ANY VIRUSES OR SOFTWARE DISABLING FEATURES THAT AFFECT YOUR ACCESS TO OR USE OF THE SOFTWARE,( 2) ANY INCOMPATIBILITY BETWEEN THE SOFTWARE, AND OTHER SERVICES, SOFTWARE AND HARDWARE, OR (3) ANY DELAYS OR FAILURES YOU MAY EXPERIENCE IN INITIATING, CONDUCTING OR COMPLETING ANY TRANSMISSIONS OR TRANSACTIONS IN CONNECTION WITH THE SOFTWARE IN AN ACCURATE OR TIMELY MANNER.
7.2.2. Warchest does not ensure continuous, error free, secure or virus-free operation of any online, multi-player or downloadable portions of the Software or continued operation or availability of any given server.
7.2.3. Warchest is not liable for any delay or failure to perform resulting from any causes beyond our reasonable control. Further, Warchest cannot and does not promise or ensure that you will be able to access the online, multi-player or downloadable portions of the Software whenever you want, and there may be extended periods of time when you cannot access such portions of the Software.
7.2.4. NEITHER WARCHEST NOR ANY OF ITS PARENTS, SUBSIDIARIES, AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS OR PARTNERS, NOR WARCHEST'S OR OTHER ENTITIES' DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AGENTS, ATTORNEYS OR OTHER REPRESENTATIVES, ARE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF DATA OR LOST PROFITS), UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THE SOFTWARE, EVEN IF WARCHEST (OR SUCH OTHER ENTITIES OR PERSONS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SOFTWARE, OR ANY PART THEREOF, IS TO STOP USING THE SOFTWARE. THE MAXIMUM AGGREGATE LIABILITY OF WARCHEST FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, SHALL BE TWENTY U.S. DOLLARS.
7.3. Other. Without limiting the foregoing, Warchest shall have no obligations, responsibilities and/or liabilities if any nonconformance or failure of, or error in, the Software is caused by: (a) use of any attachment, feature, hardware, software or device in connection with the Software not supplied by Warchest; (b) transportation, neglect or misuse of the Software or any use of the Software that is not in accordance with this Agreement and/or the Documentation; (c) alteration, modification, or enhancement of the Software other than by Warchest; or (d) failure to provide a suitable installation or use environment for all or any part of the Software.
7.4 Nothing in this Agreement limits the liability of any party for death or personal injury caused by negligence, fraud, fraudulent misrepresentation or misstatement, of for any statutory liability not capable of limitation.
8. INDEMNIFICATION
As a condition of your access to and use of the Software, you hereby agree to indemnify, defend, and hold Warchest, our parents, subsidiaries, affiliates, independent contractors, licensors, suppliers, advertisers, partners, sublicensees and sponsors, and our and their directors, officers, employees, consultants, agents, attorneys and other representatives, harmless from and against, any and all claims, damages, losses, liabilities, costs (including reasonable attorneys' fees) and other expenses that arise directly or indirectly out of or from: (a) your use, operation or combination of the Software with non-Warchest software, data, equipment or documentation if liability would have been avoided but for such use, operation, or combination; (b) your use of other than the then-current, unaltered version of the Software; (c) your activities after Warchest has notified you that Warchest believes such activities may result in infringement or otherwise violate the rights of Warchest or any third party; (d) any modifications to the Software made by you; (e) your breach or alleged breach of this Agreement; and (f) your violation of any applicable law or the rights of any other person.
9. CHANGES
9.1. Alterations to the Agreement. Warchest may create updated versions of this Agreement (each a “New Agreement”) as the Software, the Games, and the law evolve. This Agreement will terminate immediately upon the introduction of a New Agreement. New Agreements will not be applied retroactively. You will be given an opportunity to review the New Agreement before choosing to accept or reject its terms. If you accept the New Agreement, and if your Software-related account remains in good standing, you will be able to continue using the Software subject to the terms of the New Agreement. If you decline to accept the New Agreement, or if you cannot comply with the terms of the New Agreement, you will no longer be permitted to use the Software.
9.2. Changes to the Software. Warchest may change, modify, suspend, or discontinue any aspect of the Game(s) or Software at any time, including removing items, or revising the effectiveness of items in an effort to balance a Game. Warchest may also impose limits on certain features or restrict your access to parts or all of the Software without notice or liability.
10. TERM AND TERMINATION
10.1. Term. This Agreement shall commence on the date you click the “I Accept” button below and shall continue until termination in accordance with this Section 10.
10.2. Termination. This Agreement shall remain effective until terminated in accordance with its terms. You are entitled to terminate this agreement at any time by uninstalling all aspects of the Software to which you have access and by submitting to Warchest’s customer support department a request to permanently delete all account information linked to you. Warchest may terminate this Agreement in the event that you fail to comply with the terms and conditions contained herein or the terms and conditions contained in the Terms of Use. Without limiting the foregoing, Warchest reserves the right to immediately terminate this Agreement, and/or your use of the Software or any portion thereof, at any time and for any reason, with or without cause.
10.3. Effect of Termination. Upon the expiration or termination of this Agreement, all rights and licenses granted to you hereunder shall immediately terminate. Upon termination or expiration of this Agreement, you shall, at your sole expense, return to Warchest (or destroy, at Warchest's sole election) all Software and Confidential Information (and all copies and extracts thereof) then in your possession or under your control. Termination of this Agreement shall not act as a waiver of any breach of this Agreement and shall not act as a release of your liability for breach of your obligations under this Agreement. Warchest shall not be liable to you for damages of any kind solely as a result of terminating this Agreement in accordance with its terms. Warchest's termination of this Agreement shall be without prejudice to any other right or remedy that it may have at law or in equity, and shall not relieve you of breaches occurring prior to the effective date of such termination. The provisions of Sections 1 (“Definitions”), 3.1 (“Ownership”), 3.3 (“Restrictions”), 6 (“Confidential Information”), 7 (“No Warranty/Limitation of Liability”), 8 (“Indemnification”), 10.3 (“Effect of Termination”) and 12 (“General Provisions”), shall survive the expiration or any termination of this Agreement.
11. DISPUTE RESOLUTION
11.1. Disputes. In an effort to accelerate resolution and reduce the cost of any dispute, controversy or claim related to, or arising out of, this Agreement or any policy, document or agreement incorporated herein (“Dispute”), you and Warchest agree to first attempt to negotiate any dispute, controversy, or claim, whether based on contract, tort, fraudulent misrepresentation, statute, regulation, constitution, common law, equity, or any other legal basis, that arises out of or relates to the Dispute (except as set forth in Section 11.4 below) informally for at least thirty (30) days before initiating any arbitration or court proceeding.
11.1.1. Negotiations will begin upon receipt of written notice by the party bringing the Dispute. Warchest will send its notice to your billing address and/or email you a copy to the email address you have provided to us.
11.1.2. You will send your notice to Warchest at Warchest Limited, Royal Court, 81 Tweedy Road, Bromley, BR1 1TG.
11.2. Binding Arbitration.
11.2.1. If a Dispute cannot be resolved through negotiations, then the Dispute must be submitted to binding arbitration (except for the circumstances described in Section 11.4). Arbitration of a Dispute shall be a final and binding determination on you and Warchest. You should review this provision carefully. This arbitration provision limits your and Warchest’s ability to litigate claims in court and you and Warchest each agree to waive our respective rights to a jury trial.
11.2.2. The arbitration shall be commenced and conducted under the London Court of International Arbitration’s (LCIA) Arbitration Rules available at http://www.lcia.org/Dispute_Resolution_Services/lcia-arbitration-rules-2014.aspx. The arbitrator shall determine the scope and enforceability of this arbitration agreement, including whether a Dispute is subject to arbitration.
11.3. Restrictions. You and Warchest agree that any arbitration shall be limited to the Dispute between Warchest and you individually. YOU ACKNOWLEDGE AND AGREE THAT:
11.3.1. A CLAIM BY, OR ON BEHALF OF, OTHER PERSONS, WILL NOT BE CONSIDERED IN, JOINED WITH, OR CONSOLIDATED WITH, THE ARBITRATION PROCEEDINGS BETWEEN YOU AND WARCHEST;
11.3.2. THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; AND
11.3.3. YOU WILL NOT HAVE THE RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE, PRIVATE ATTORNEY GENERAL, OR AS A MEMBER OF ANY CLASS OF CLAIMANTS FOR ANY CLAIM SUBJECT TO ARBITRATION.
11.3.4. Any dispute regarding the prohibitions in the prior sections shall be resolved by the arbitrator in accordance with this Agreement.
11.4. Exceptions to Negotiations and Arbitration. You and Warchest agree that the following Disputes are not subject to the above provisions concerning negotiations and binding arbitration:
11.4.1. any Disputes seeking to enforce or protect, or concerning the validity of, any of your or Warchest’s intellectual property rights;
11.4.2. any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use;
11.4.3. any claim for injunctive relief; and
11.4.4. any claim within the jurisdictional limits of the small claims courts.
11.5. Location of Arbitration. Arbitration shall be initiated in London, England. Any Dispute not subject to this Section 11 shall be decided by a court of competent jurisdiction within courts of England and you and Warchest agree to submit to the personal jurisdiction of that court.
11.6. Governing Law.
11.6.1. Except as expressly provided otherwise, all Disputes shall be governed by and construed under the laws of England and Wales, without regard to choice of law principles.
11.6.2. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
11.7. Attorneys' Fees. If any legal action, including, without limitation, an action for arbitration or injunctive relief, is brought relating to this Agreement or the breach hereof, the prevailing party in any final judgment or arbitration award, or the non-dismissing party in the event of a dismissal without prejudice, shall be entitled to the full amount of all reasonable expenses, including all court costs, arbitration fees and actual attorney fees paid or incurred in good faith.
11.8. Severability. You and Warchest agree that if any portion of this Section 11 is found illegal or unenforceable, such portion shall be severed and the remainder of this Section 11 shall be given full force and effect. Any Dispute subject to any such portion of this Section 11 shall be decided by the arbitrator.
12. GENERAL PROVISIONS
12.1. Assignment. This Agreement may not be assigned, in whole or part, whether voluntarily, by operation of law, or otherwise, by you without the prior written consent of Warchest. Warchest may assign, license, delegate or otherwise transfer its rights or obligations hereunder to any third party without restriction. Subject to the preceding sentences, the rights and liabilities of the parties hereto are binding on, and shall inure to the benefit of, the parties and their respective successors and permitted assigns. Any attempted assignment other than in accordance with this Section 12.1 shall be null and void.
12.2. Waiver. The waiver by either party of a breach of or a default under any provision of this Agreement, shall be in writing and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.
12.3. Severability. If the application of any provision of this Agreement to any particular facts or circumstances shall be held to be invalid or unenforceable by an arbitration panel or a court of competent jurisdiction, then (a) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement shall not in any way be affected or impaired thereby, and (b) such provision shall be enforced to the maximum extent possible so as to effect the intent of the parties and reformed without further action by the parties to the extent necessary to make such provision valid and enforceable.
12.4. Relationship of the Parties. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture, partnership, agency, employment or fiduciary relationship between the parties. Neither party, nor either party's agents, have any authority of any kind to bind the other party in any respect whatsoever, and the relationship of the parties is, and at all times shall continue to be, that of independent contractors.
12.5. Force Majeure. Neither party shall be responsible or have any liability for any delay or failure to perform to the extent due to unforeseen circumstances or causes beyond its reasonable control, including, without limitation, acts of God, earthquake, fire, flood, embargoes, labor disputes and strikes, riots, war, acts of a public enemy, error in the coding of electronic files, Internet or other network “brownouts” or failures, power failures, novelty of product manufacture or other unanticipated product development problems, and acts of civil and military authorities.
12.6. U.S. Government Rights. If you are, or are entering into this Agreement on behalf of, any agency or instrumentality of the United States Government, the Software is “commercial computer software” and “commercial computer software documentation,” and pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable, use, reproduction and disclosure of the Software is governed by the terms of this Agreement.
12.7. Export Controls. You shall abide by all applicable export laws and regulations in its use of the Software. The Software, or any part thereof, may not be downloaded or otherwise exported or re-exported (a) into any country for which the United States or United Kingdom has a trade embargo, or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders of anyone on the HM Treasury’s Sanctions List. You represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
12.8. Captions and Section Headings. The captions and Section and paragraph headings used in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement.
12.9. Equitable Relief. You acknowledge and agree that due to the unique nature of this Agreement, there can be no adequate remedy at law to compensate Warchest for your breach or threatened breach hereof; that any such breach or threatened breach will allow you or third parties to compete unfairly with Warchest resulting in irreparable harm to Warchest that would be difficult to measure; and, therefore, that upon any such breach or threat thereof, Warchest shall be entitled to injunctive and other appropriate equitable relief (without the necessity of proving actual damages or of posting a bond), in addition to whatever remedies it may have at law, hereunder, or otherwise.
12.10. Entire Agreement; Amendment. This Agreement (together with the Terms of Use) constitute the entire agreement between the parties concerning the subject matter hereof, and supersedes (a) all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, agreements, and communications, whether oral or written, between the parties relating to the subject matter of this Agreement; and (b) all past courses of dealing and industry custom.
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