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GameDev.net Service Agreement
This agreement is between You ("Customer") and GameDev.net, LLC ("Provider"), the owner and creator of the web services software ("Software") located at Gamedev.net.
This agreement applies to the various Provider services offered, including but not limited to the Message Board, Game Developer's Showcase, Developer Journals, Basic Web Hosting, and other services that may be added (collectively, the "Services").
a) "User" is defined as any person who visits GameDev.net and receives information or uses Provider Services.
1. Software and Services
a) In accordance with the terms and conditions contained in this Agreement, Provider will provide Customer access to a non-exclusive, non-transferable license to use Provider's Software.
b) Provider will provide to Customer a minimum amount of technical support services to assist Customer in utilizing the Software.
c) Subject to the limitations set forth in this Agreement, access to the Software shall be available 24 hours per day 365 days per year.
d) Customer shall only use the Software through Provider's Web Site, and the Software, including its source code, shall at all times remain in the possession of and be the exclusive property of Provider.
e) Provider shall not be responsible for any conversion expenses incurred by Customer or any other person or entity required for Customer to use Providers Software.
a) Customer certifies that he or she is at least 18 years of age. If the Customer is not at least 18 years of age, then he/she has been granted the permission by his/her legal guardian to act on that guardian's behalf. Under these circumstances, the underage Customer has been granted permission to use Provider's services and enter into this agreement on behalf of the legal guardian.
b) Provider's software and services are not directed to children under the age of 13. Provider's software and services will not knowingly collect personally identifiable information from anyone under 13.
3. Customer Obligations
a) Customer shall promptly pay to Provider, all applicable license fees, taxes and other charges, if any, when due as provided herein.
b) Customer shall use the Software in accordance with such standards and reasonable use practices established by Provider, in its sole discretion, from time to time.
c) Customer warrants to Provider that Customer has all necessary rights to store, reproduce, license access to, and otherwise use the data contained in each of the Customer posted content for which Customer utilizes Provider's Software and Services.
d) Customer acknowledges that Provider's software stores customer data, personalization settings, and other Customer posted content. Customer hereby grants to Provider a fully paid up, non-exclusive license to store and maintain such data for the limited purpose of providing a public forum.
e) Customer may not use the Software or Services for or in connection with the posting of content which contains pornography, obscenity, nudity, or any explicit sexual language or material, or which contains, advocates or supports illegal activity or harassing and harmful material or conduct (including, without limitation, unsolicited mass mailings), or is in any way defamatory or violates an individual's right to privacy. Any violation of this provision is a material breach of this agreement.
f) Customer shall acknowledge and agree that Provider does not endorse the content of any User and are not responsible or liable for any content, even though it may be unlawful, harassing, libelous, privacy invading, abusive, threatening, harmful, vulgar, obscene, or otherwise objectionable, or that it infringes or may infringe the intellectual property or other rights of another. Customer acknowledges that Provider, Software and Services do not pre-screen any User posted content, but that Provider and their designees will have the right (but not the obligation) in their sole discretion to refuse, edit, move or remove any content that is publicly available via the Software and Services.
g) Customer may not transfer or assign this agreement without the prior written approval of Provider and any attempt to do so shall be a violation of this agreement.
h) Customer shall not download, copy, modify, reverse engineer, translate, disassemble or de-compile, or otherwise attempt to create any source code which is derived from Provider's Software, nor shall Customer attempt to obtain unauthorized access to or activation of the Software.
i) Customer shall not distribute, create derivative works of or modify Provider's Software.
j) Customer shall promptly update its account information if there is a change in mailing address or e-mail address by entering the changed information on the account details page after logging into providers web site. Customer shall agree to provide true, accurate, current and complete information about Customer as prompted by the Service registration process. Customer is solely and entirely responsible for maintaining the confidentiality of Customer's password. Furthermore, Customer is solely and entirely responsible for any and all activities that occur under Customer's account. Customer must promptly inform Provider of any apparent breaches of security, such as loss, theft, or unauthorized disclosure or use of an ID or password. Until Provider is notified by e-mail of a breach in security, Customer will remain liable for any unauthorized use.
k) Customer having a Full License, as defined in paragraph 4(a) and 4(c), is granted access to 3rd party vendor product and service discounts ("Discounts") that are negotiated by Provider for Users having a Full License. Customer shall agree to not copy, publish, or in any way make available publicly any information that will allow Users without a Full License to utilize Discounts. Any attempt make such information publicly available shall result in the immediate termination of this Agreement without written notice in accordance to the provisions of paragraph 5(c).
4. Types of License - Payment
a) Provider offers both a full access license ("Full License") and a limited access license ("Limited License"). Customer may choose the License that best meets its needs. The type of license, and in the case of a Full License the Price Plan desired, are selected by Customer on the registration screens on Providers web site which are incorporated herein and form an integral part of this Agreement.
b) A Limited License, which is available without charge, provides Customer with limited Message Board capabilities. Such capabilities include posting of public and private messages, limited member database searches, viewing of Game Developer's Showcase postings, and viewing of Developer Journal postings. The capabilities provided with a Limited License are determined by Provider, from time to time, and are subject to change or reduction without notice. Provider may include its own advertising and commercial and non-commercial advertising of others on pages generated by Provider's Software. Any income from such advertising is the sole property of Provider.
c) A Full License permits the Customer to select the Price Plan desired and provides Customer access to premium Services. Premium Services may vary depending on Price Plan. Each Price Plan provides a set size limit on available web hosting space, where size is defined in megabytes. Each Price Plan also provides a set limit on the number of Developer Journals and Game Developer's Showcase postings. Game Developer's Showcase postings are further limited by the size of the associated downloadable file. Unless otherwise specified, Customer is limited to at most twenty-five (25) megabytes of web hosting space, one (1) Developer Journal, and fifteen (15) Game Developer's Showcase postings. Associated files for each Game Developer's Showcase posting are not to exceed fifty (50) megabytes in size. All Premium Services include a limited ability to change the color theme of Provider's site and the ability to associate a 50 pixel wide by 50 pixel high non-animated image ("avatar") with each Customer Message Board posting. Under a full License, Provider may include its own advertising or commercial or non-commercial advertising of others pages generated by Provider's Software without the advance written consent of Customer. Any income from such advertising is the sole property of Provider.
d) Unless otherwise authorized in advance by Provider, Customer shall make payment for all sums due to Provider with a payment method recognized by Paypal. A list of payment methods recognized by Paypal is contained on Paypal.com. Until this Agreement is terminated in accordance with the terms hereof, Customer irrevocably authorizes Paypal to charge Customer for all license and other fees due to Provider from Customer. All License fees are payable to Provider in advance. The failure of Paypal to honor Provider's charges shall not relieve Customer from liability for all amounts due Provider.
e) Customer shall pay all state, federal, or local taxes, other than taxes based upon Provider's income, arising out of or relating to the rights herein granted.
5. Term and Termination
a) This Agreement shall remain in full force and effect until terminated as provided in this section.
b) Customer may terminate their subscription at any time. Upon termination of subscription Customer's Full License will not be renewed and Customer will be granted a Limited License on the expiration date. Upon such termination, no fees paid to Provider by Customer (including without limitation any fees for unused periods under any Pricing Plan) shall be refunded or returned. Subscription termination can be accessed through the subscription management services provided by Paypal located at Paypal.com.
c) Customer acknowledges that Provider, in its sole discretion, may terminate Customer's ID, password, account (or any part thereof) or use of the Software or Services for any reason, including, without limitation, if Provider believes that Customer has violated or acted inconsistently with the letter or spirit of this Agreement or any Provider User Agreements. Provider may also, in its sole discretion, at any time discontinue providing the Services, or any part thereof, with or without notice. Customer agrees that any termination of Customer access to the Services under any provision of this Agreement may be effected without prior notice, and acknowledge and agree that Provider may immediately deactivate or delete Customer's account and/or bar any further access to the Services. Further, Customer agrees that Provider shall not be liable to Customer or any third-party for any termination of Customer's access to the Service. Upon such termination, no fees paid to Provider by Customer (including without limitation any fees for unused periods under any Pricing Plan) shall be refunded or returned.
d) Either party may terminate this Agreement upon fifteen (15) days written notice to the other party if the other party breaches any provision of this agreement and fails to cure such breach within said fifteen (15) day period, or, if such breach is not susceptible to cure within such period, fails to commence cure within such period and to continuously and diligently pursue such cure. Notwithstanding the preceding sentence, Provider may terminate this Agreement immediately without written notice in accordance to the provisions of paragraph 5(c) of this Agreement.
a) LIMITED LICENSE/NO WARRANTY - THE USE OF PROVIDER'S SOFTWARE AND ITS RELATED HARDWARE, EQUIPMENT AND INTERNET CONNECTION IS PROVIDED ON AN "AS IS, AS AVAILABLE" BASIS. THE PROVIDER MAKES NO WARRANTY, EXPRESSED OR IMPLIED, FOR THE SOFTWARE OR ITS RELATED HARDWARE, EQUIPMENT, WEB SITE AND INTERNET CONNECTION INCLUDING, WITHOUT LIMITATION, WARRANTY OF THE MERCHANTABILITY AND WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PROVIDER DOES NOT WARRANT 1) THAT THE SOFTWARE IS ERROR FREE, VIRUS FREE, OR THAT ITS OPERATION WILL BE UNINTERRUPTED, 2) THE STORAGE OF PERSONALIZATION SETTINGS OR CUSTOMER DATA, 3) THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION SERVICE OR MERCHANDISE CONTAINED IN OR PROVIDED THOUGH THE PROVIDER'S SOFTWARE AND SERVICES, or 4) THE AVAILABILITY OF PROVIDERS RELATED HARDWARE, EQUIPMENT, WEB SITE AND INTERNET CONNECTION.
b) FULL LICENSE/LIMITED WARRANTY - PROVIDER WARRANTS THAT DURING THE TERM OF THIS AGREEMENT AND THE RELATED LICENSE PROVIDER'S SOFTWARE SHALL PROVIDE SERVICES OF A QUALITY CONFORMING TO GENERALLY ACCEPTED INDUSTRY STANDARDS AND PRACTICES. IF THE SOFTWARE DOES NOT CONFORM TO THE FOREGOING WARRANTIES PROVIDER SHALL CORRECT ANY NONCONFORMITY WITHIN 30 DAYS OF BEING NOTIFIED IN WRITING BY CUSTOMER. OTHER THAN THE WARRANTY SET FORTH IN THE PRECEDING SENTENCE, PROVIDER MAKES NO WARRANTY, EXPRESSED OR IMPLIED, FOR THE SOFTWARE OR ITS RELATED HARDWARE, EQUIPMENT, WEB SITE AND INTERNET CONNECTION INCLUDING, WITHOUT LIMITATION, WARRANTY OF THE MERCHANTABILITY AND WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE PRECEDING SENTENCE, PROVIDER DOES NOT WARRANT 1) THAT THE SOFTWARE IS ERROR FREE, VIRUS FREE, OR THAT ITS OPERATION WILL BE UNINTERRUPTED, 2) THE STORAGE OF PERSONALIZATION SETTINGS OR CUSTOMER DATA, 3) THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION SERVICE OR MERCHANDISE CONTAINED IN OR PROVIDED THOUGH THE PROVIDER'S SOFTWARE AND SERVICES, or 4) THE AVAILABILITY OF PROVIDERS RELATED HARDWARE, EQUIPMENT, WEB SITE AND INTERNET CONNECTION. PROVIDER WARRANTS THAT DURING THE TERM OF THIS AGREEMENT THAT THE TECHNICAL SUPPORT SERVICES PROVIDED HEREUNDER BY PROVIDER SHALL BE OF A QUALITY CONFORMING TO GENERALLY ACCEPTED INDUSTRY STANDARDS AND PRACTICES. UPON WRITTEN NOTICE FROM CUSTOMER IDENTIFYING A BREACH OF THE FOREGOING WARRANTY, PROVIDER SHALL AT ITS OWN COST AND EXPENSE CURE SUCH BREACH BY RE-PERFORMING SUCH TECHNICAL SUPPORT SERVICES IN A MANNER CONFORMING TO SUCH GENERALLY ACCEPTED INDUSTRY STANDARDS AND PRACTICES. OTHER THAN THE WARRANTY SET FORTH IN THE PRECEDING SENTENCE, PROVIDER MAKES NO WARRANTY, EXPRESSED OR IMPLIED, WITH RESPECT TO THE TECHNICAL SUPPORT SERVICES INCLUDING, WITHOUT LIMITATION, WARRANTY OF THE MERCHANTABILITY AND WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
7. Limited Liability
a) IN NO EVENT SHALL PROVIDER, ITS DIRECTORS, OFFICERS, AGENTS, EMPLOYEES, CONTRACTORS OR SUBCONTRACTORS, BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES SUFFERED BY CUSTOMER OR SUCH THIRD PARTY CAUSED DIRECTLY OR INDIRECTLY BY ANY BREACH OF THIS AGREEMENT OR THE PROVISION OF THE SOFTWARE, MATERIALS OR SERVICES PURSUANT TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, BUSINESS INTERRUPTION, OR FOR ANY LOSS OF OR INJURY TO EARNINGS, PROFITS, REVENUE, OR GOODWILL, WHETHER LIABILITY IS ASSERTED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE OR STRICT PRODUCT LIABILITY). THIS LIMITATION SHALL APPLY EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
b) NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT AND REGARDLESS OF WHETHER A COURT DETERMINES THAT ANY REMEDY CONTAINED HEREIN FAILS OF ITS ESSENTIAL PURPOSE, CUSTOMER AGREES THAT IN NO EVENT SHALL THE AGGREGATE LIABILITY OF PROVIDER (INCLUDING ITS DIRECTORS, OFFICERS, AGENTS, EMPLOYEES, CONTRACTORS OR SUBCONTRACTORS) TO CUSTOMER OR ANY OTHER PARTY IN CONNECTION WITH ITS PERFORMANCE OR FAILURE TO PERFORM HEREUNDER EXCEED THE GREATER OF $100 OR THE TOTAL FEES PAID BY THE CUSTOMER WITHIN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EARLIEST DATE UPON WHICH THE CLAIM COULD FIRST BE MADE. CUSTOMER FURTHER ACKNOWLEDGES THAT THIS AGREEMENT ALLOCATES THE RISK BETWEEN PROVIDER AND CUSTOMER AND THAT PROVIDERS PRICING REFLECTS THE RISK ALLOCATION (INCLUDING THE LIMITATION OF LIABILITY) SET FORTH HEREIN.
c) THE FOLLOWING STATEMENT, TO THE EXTENT REQUIRED BY LAW, APPLIES TO EACH OF PARAGRAPHS A AND B OF THIS SECTION 7:
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
Customer agrees that it shall defend, indemnify, save and hold Provider,its directors, officers, agents, employees, contractors or subcontractors (each an "Indemnified Party"), harmless from any and all claims, demands, liabilities, losses, or costs arising out of injury to or death of any person or damage to property, including reasonable attorneys' fees (collectively "Claims"), asserted against an Indemnified Party, arising out of or in connection with or resulting from this agreement or the Software and related services. The foregoing indemnity shall include Claims that any data or material supplied by Customer to Provider infringes on a copyright or proprietary rights of a third party.
In furtherance of the foregoing indemnity, Customer hereby waives any rights it may have under applicable workers compensation laws.
This Agreement may not be assigned or transferred by Customer without the prior written consent of the Provider. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns.
10. Relationship of the Parties
Nothing contained in this Agreement shall be construed to place the parties in the relationship of partners or joint ventures or agents of one another, or to grant either party the right to obligate or bind the other party in any manner whatsoever. It is understood and agreed hereto that this Agreement does not create a fiduciary relationship between them.
11. Ownership of Software
Customer agrees that the Software is the sole and exclusive property of the Provider. The customer further agrees that: it has no power or right to, and shall not during the term of this Agreement or thereafter attack the title or any rights of Provider in and to the Software, or claim any right, title or interest in and to the Software.
Customer agrees to notify Provider promptly if it becomes aware of any unauthorized use of the Software or any component thereof.
If any provision of this Agreement is invalid or unenforceable under applicable law, such provision shall be interpreted so as to best accomplish the intent of the parties within the limits of applicable law. The remaining provisions will continue in full force and effect. Any notices related to this agreement need to be given in writing. This agreement is the entire understanding between Customer and Provider.
14. Choice of law/venue
This Agreement and its interpretation shall be governed by the laws of the State of California without regard to its choice of law provisions. Any action to enforce any rights herein shall be brought within the State of California.
15. Force majeure
Neither party shall be responsible for any failure to perform due to unforeseen, non-commercial circumstances beyond its reasonable control, including, without limitation, acts of God, war, riot, embargoes, acts of civil or military authorities, fire, floods, earthquakes, accidents, strikes, fuel or energy. In the event of any such delay, any applicable period of time for action by a party may be deferred for a period of time equal to the time of such delay, except that a party's failure to make any payment when due hereunder shall not be so deferred or excused.
16. Entire Understanding
This Agreement and the related Customer Registration screens sets out the entire agreement between the parties relative to the subject matter hereof and supersedes all prior or contemporaneous agreements or representations, oral or written.
17. CONSUMER DISCLOSURES UNDER THE ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT (E-SIGNATURE ACT)
If the transaction contemplated by this Agreement constitutes a transaction with a consumer under the E-Signature Act the following provisions apply:
a) CUSTOMER MAY OBTAIN A COPY OF THIS AGREEMENT OR ANY OTHER RECORD CONTEMPLATED BY THIS AGREEMENT BY DOWNLOADING AND PRINTING A COPY HEREOF FROM PROVIDERS WEB SITE OR REQUESTING A PAPER COPY IN WRITING VIA E-MAIL TO WEBMASTER AT GAMEDEV.NET (email@example.com) . A $10 SERVICE CHARGE WILL BE MADE FOR EACH PAPER COPY.
b) BY AGREEING TO THIS CONTRACT, CUSTOMER CONSENTS TO THE USE OF ELECTRONIC RECORDS IN CONNECTION WITH THIS AGREEMENT. ELECTRONIC RECORDS INCLUDE, WITHOUT LIMITATION, THIS AGREEMENT, COMMUNICATIONS RELATING TO THIS AGREEMENT, DATA TRANSFER, CUSTOMER INVOICING, AND REPORTS GENERATED ON THE CUSTOMER CONTROL PANEL. CUSTOMER MAY ONLY WITHDRAW ITS CONSENT TO THE USE OF ELECTRONIC RECORDS BY TERMINATING THIS AGREEMENT IN ACCORDANCE WITH SECTION 4 PARAGRAPH (c) HEREROF.
c) CUSTOMER SHALL PROMPTLY UPDATE ITS E-MAIL ADDRESS AND OTHER INFORMATION IN ACCORDANCE WITH SECTION 2 PARAGRAPH (h) HEREOF.
d) CUSTOMER MUST HAVE A COMPUTER WITH INTERNET ACCESS, AND A WEB BROWER, IN ORDER TO ACCESS AND RETAIN THE ELECTRONIC RECORDS CONTEMPLATED BY THIS AGREEMENT.
TrademarksAny and all trademarks found on the Gamedev.net site do not expressly represent an endorsement by the owners of Gamedev.net, will remain the property of their respective owners, and may not be copied or modified without their explicit permission.
Privacy StatementGamedev.net has created this privacy statement in order to demonstrate our firm commitment to privacy. The following discloses our information gathering and dissemination practices for the Gamedev.net website.
Our site's registration form asks users to give us contact information (like their name and email address), unique identifiers, and demographic information (like their zip code, or age). The customer's contact information is used to contact the visitor when necessary. Users may opt-out of receiving future mailings; see the choice/opt-out section below. Unique identifiers (such as email addresses) are collected to verify the user's identity and for use as account id's in our record system. Demographic and profile data is also collected at our site. We use this data to tailor the visitor's experience at our site, showing them content that we think they might be interested in, and displaying the content according to their preferences.
This site contains links to other sites. Gamedev.net is not responsible for the privacy practices or the content of such Web sites.
Third Party AdvertisingWe use FastClick, TribalFusion, BurstMedia, MaxOnline and other third-party advertising companies to serve ads when you visit our Web site. These companies may use information (not including your name, address, email address or telephone number) about your visits to this and other Web sites in order to provide advertisements on this site and other sites about goods and services that may be of interest to you. If you would like more information about this practice and to know your choices about not having this information used by these companies, please click on one of the following links: FastClick, TribalFusion, BurstMedia, MaxOnline,
Third Party CookiesIn the course of serving advertisements to this site, our third-party advertiser may place or recognize a unique "cookie" on your browser.
SecurityThis site has security measures in place to protect the loss, misuse and alteration of the information under our control.
Choice/Opt-OutOur site provides users the opportunity to opt-out of receiving communications from us and our partners at the point where we request information about the visitor.
This site gives users the following options for removing their information from our database to not receive future communications or to no longer receive our service.
1. You can write to any of the administrative contacts and we will remove your account.
Contacting the Web SiteIf you have any questions about this privacy statement, the practices of this site, or your dealings with this Web site, you can contact :
400 N. Main St., Suite 106
Grapevine, TX 76051