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EYEDENTITY Games Inc. - End User Licensing Agreement
Effective Date : 14, July, 2016
THIS END USER LICENSE AGREEMENT (THIS “AGREEMENT”) IS ENTERED INTO BETWEEN EYEDENTITY GAMES, INC. (“EYEDENTITY”) 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. EYEDENTITY RESERVES THE RIGHT IN ITS SOLE DISCRETION AT ANY TIME TO CHANGE ANY OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. IF WE CHANGE THE TERMS OF THIS END USER LICENSE AGREEMENT, WE WILL COMMUNICATE THE CHANGES TO YOU PRIOR TO THE CHANGES BEING MADE EFFECTIVE.
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. “Documentation” means the online, electronic or printed user guides and other documentation which Eyedentity 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.
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.
3. “Game” means the “Massively Multiplayer Online Role-Playing Game” or “Multiplayer Casual Online Game” or other game provided or serviced by Eyedentity, including the one to which this Agreement is appended.
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extensions thereof, utility models, and certificates of invention, regardless of country or formal name, published or unpublished nonprovisional and provisional patent applications, including the right to file other or further applications, reexamination proceedings, invention disclosures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.
5. “Service” shall mean the web sites provided by Eyedentity, its agents, designees, vendors or service providers and all related services and products, including, without limitation, Games hosted on servers controlled by Eyedentity, its agents, designees, vendors or service providers that are made available through the Internet for remote use by third parties.
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.
7. “Term” shall have the meaning set forth in Section 9.
8. “Terms of Use” means Eyedentity's Terms of Use for the Service located at http://www.dragonnest.com, as may be amended by Eyedentity from time to time.
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 Eyedentity to you during the Term.
1. PRECONDITIONS OF THE GRANT OF LICENSE
The grant of license as set forth in Section 4 below is specifically conditioned upon the following:
1.1 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;
1.2 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;
1.3 You will use the Software only on an authorized device, running validly licensed copies of operating systems which the Game was designed to operate;
1.4 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
1.5 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.
2. GAME ACCOUNTS
2.1 Game Accounts. To play the Game(s), you may be required to create and maintain a Eyedentity ID, a Game-specific account, and, in some cases, a platform specific account (e.g., an account with Valve Corporation if the Game is distributed through Steam). To use or create a Eyedentity ID, you must register, or have previously established, an account on dragonnest.com. To use or create an account with a specific platform, you must register, or have previously established, an account with that platform.
2.2 Use of Eyedentity IDs. Creation and use of Eyedentity IDs, and subsequent use of are subject to the following terms and conditions:
2.2.1 When you create or update a Eyedentity ID, you must provide Eyedentity with accurate and up to date information that is personal to you, such as your name, address, phone number, and email address. Eyedentity’s retention of your personal information is subject to Eyedentity’s Privacy Policy, located at www.dragonnest.com
2.2.2 Your use of the Games to interact with Eyedentity and other players is governed by Eydentity’s Terms of Use, which are available at www.dragonnest.com. The Terms of Use are not meant to be exhaustive. The Terms of Use are incorporated into this Agreement by this reference, and are available for your review here.
2.2.3 You agree to pay all fees and applicable taxes incurred by you or anyone using your Eydentity ID. Eyedentity may revise the pricing for the goods and services offered in connection with the Games at any time.
2.3 Use of Platform-Specific Accounts. Use of a platform-specific account, which may be required to play a specific Game or utilize certain features, will be subject to the terms and conditions of that Platform.
3. OWNERSHIP; GRANT OF LICENSE; RESTRICTIONS
3.1 Ownership. As between Eyedentity and you, Eyedentity 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 Eyedentity 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 Eyedentity'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, Eyedentity hereby grants you a non-exclusive, nontransferable, non-sublicensable, 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 Eyedentity 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 Eyedentity Games, Inc., including, without limitation (i) gathering in-game currency, items, or resources for sale outside of Eyedentity’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 Eyedentity;
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 Cash Item (as defined 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 Eyedentity, 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;
3.3.12 Violate Eyedentity’s Terms of Use (which are available at www.dragonnest.com); and
3.3.13 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 Eyedentity 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, Eyedentity may provide you with Updates as they are made generally available by Eyedentity. You acknowledge that, to the extent Eyedentity licenses some or all of the Software and/or other components of the Service from third party vendors (“Vendors”), such Vendors, and not Eyedentity, are responsible for creating Updates, if any, and making them available for installation or distribution. You acknowledge and agree that Eyedentity may, with your knowledge and prior consent, provide Updates to you remotely, including, without limitation, by accessing the computer in which you store the Software. Any Update provided or made available by Eyedentity 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 our Software and Service is conditioned on your acceptance of several different agreements. These agreements are:
4.3.1 This End User License Agreement;
4.3.2 The Privacy Policy;
4.3.3 The Terms of Use;
4.3.4 Additional terms that govern particular features or offers (for example, our Code of Conduct , our User Generated Content policy , etc.) (“Additional Terms”). A full list of Additional Terms can be found here ; and
4.3.5 Applicable third party terms that you may need to accept to utilize certain parts of the Service (e.g., payment processor terms; third party distribution platform terms, integration of social networking profiles, etc.).
The agreements are listed in terms of their priority and application to you. In the event of a conflict between provisions contained within any particular agreement, the agreement that is listed first shall control. For example, in the event of a conflict between these Terms of Use and the Privacy Policy, the Privacy Policy shall control. In the event of a conflict between the Additional Terms and this Agreement, this Agreement will control.
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 Eyedentity 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. Any changes to the Terms of Use will be communicated to you prior to the changes are made effective and your continued use of the Software, Game and/or Service after such notification of changes to the Terms of Use will constitute your acceptance of such changes.
4.5 Monitoring of the Service.
4.5.1 Eyedentity 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. Eyedentity shall have the right to utilize recorded communications: (a) to satisfy any applicable law, regulation, legal process or governmental request; (b) to enforce the terms of this Agreement or any other Eyedentity policy; (c) to protect Eyedentity’s legal rights and remedies; (d) to protect the health or safety of anyone that Eyedentity believes may be threatened; or (e) to report a crime or other offensive behavior.
4.5.2 WHEN RUNNING, THE SOFTWWARE 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 ABOVE. IN THE EVENT THAT THE SOFTWARE DETECTS AN UNAUTHORIZED THIRD PARTY PROGRAM, (a) THE SOFTWARE MAY COMMUNICATE INFORMATION BACK TO EYEDENTITY, INCLUDING WITHOUT LIMITATION YOUR ACCOUNT NAME, DETAILS ABOUT THE UNAUTHORIZED THIRD PARTY PROGRAM DETECTED, AND THE TIME AND DATE; AND/OR (b) EYEDENTITY 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 Eyedentity in the event that the Game crashes, including system and driver data, and consent to Eyedentity being able to receive this data.
5. CONFIDENTIAL INFORMATION
5.1 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 Eyedentity and its Vendors or other parties (“Confidential Information”). Such Confidential Information shall, as between you and Eyedentity, belong solely to Eyedentity 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.
5.2 Use and Disclosure Restrictions. You hereby acknowledge and agree that the Confidential Information constitutes and contains valuable proprietary information and trade secrets of Eyedentity, 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 Eyedentity, any Confidential Information or any part or parts thereof; (d) to undertake whatever action is necessary to prevent or remedy (or authorize Eyedentity 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 Eyedentity; 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.
5.3 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 Eyedentity, as evidenced by your contemporaneous written records, (c) becomes known to you without confidential or proprietary restriction from a source other than Eyedentity that does not owe a duty of confidentiality to Eyedentity 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 Eyedentity 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 Eyedentity 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.
6. NO WARRANTY/LIMITATION OF LIABILITY
6.1 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, EYEDENTITY 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. EYEDENTITY 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 EYEDENTITY 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.
6.2 Limitation of Liability.
6.2.1 EYEDENTITY AND ITS LICENSORS MAKE NO PROMISE OR WARRANTY THAT THE GAME OR SOFTWARE WILL WORK PROPERLY. YOU ACKNOWLEDGE AND AGREE THAT EYEDENTITY 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.
6.2.2 Eyedentity 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. Some states do not allow limitations as to how long an implied warranty lasts and/or exclusions or limitations of consequential damages, so the above limitations and/or exclusions of liability may not apply to you. This warranty gives you specific legal rights and you may also have other legal rights which vary from state to state.
6.2.3 Eyedentity is not liable for any delay or failure to perform resulting from any causes beyond our reasonable control. Further, Eyedentity 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.
6.2.4 NEITHER EYEDENTITY NOR ANY OF ITS PARENTS, SUBSIDIARIES, AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS OR PARTNERS, NOR EYEDENTITY'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 EYEDENTITY (OR SUCH OTHER ENTITIES OR PERSONS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. 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 EYEDENTITY 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.
6.3 Other. Without limiting the foregoing, Eyedentity 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 Eyedentity; (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 Eyedentity; or (d) failure to provide a suitable installation or use environment for all or any part of the Software. This clause shall be valid and enforceable to the fullest extent permitted by law.
7. INDEMNIFICATION
As a condition of your access to and use of the Software, you hereby agree to indemnify, defend, and hold Eyedentity, 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-Eyedentity 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 Eyedentity has notified you that Eyedentity believes such activities may result in infringement or otherwise violate the rights of Eyedentity 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.
8. CHANGES
8.1 Alterations to the Agreement. Eyedentity 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.
8.2 Changes to the Software. Eyedentity 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. Eyedentity may also impose limits on certain features or restrict your access to parts or all of the Software without notice or liability.
9. TERM AND TERMINATION
9.1 Term. This Agreement shall commence on the date you indicate your acceptance of this EULA and shall continue until termination in accordance with this Section.
9.2 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 Eyedentity a request to permanently delete all account information linked to you. Eyedentity 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, Eyedentity 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.
9.3 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 Eyedentity (or destroy, at Eyedentity'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. Eyedentity shall not be liable to you for damages of any kind solely as a result of terminating this Agreement in accordance with its terms. Eyedentity'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, 2, 4, 6, 7, 8 and 11 shall survive the expiration or any termination of this Agreement.
10. DISPUTE RESOLUTION
10.1 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 Eyedentity 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 10.4 below) informally for at least thirty (30) days before initiating any arbitration or court proceeding.
Negotiations will begin upon receipt of written notice by the party bringing the Dispute. Eyedentity will send its notice to your billing address and email you a copy to the email address you have provided to us.
10.2 Binding Arbitration.
10.2.1 If a Dispute cannot be resolved through negotiations, then the Dispute must be submitted to binding arbitration (except for the circumstances described in Section 10.4). Arbitration of a Dispute shall be a final and binding determination on you and Eyedentity. You should review this provision carefully. This arbitration provision limits your and Eyedentity’s ability to litigate claims in court and you and Eyedentity each agree to waive our respective rights to a jury trial.
10.2.2 The arbitration shall be commenced and conducted under the Streamlined Rules of the Judicial Arbitration and Mediation Service (the "JAMS") or, where appropriate, the JAMS International Rules, both of which are available at the JAMS website (www.jamsadr.com). This arbitration provision is made pursuant to a transaction involving interstate commerce, and the Federal Arbitration Act (the “FAA”) shall apply to the construction, interpretation, and enforceability of this Agreement notwithstanding any other choice of law provision contained in this Agreement. The arbitrator shall determine the scope and enforceability of this arbitration agreement, including whether a Dispute is subject to arbitration.
10.2.3 An arbitration is a proceeding before a neutral arbitrator, instead of before a judge or jury. Arbitration is less formal than a lawsuit in court, and provides more limited discovery. It follows different rules than court proceedings, and is subject to very limited review by courts. The arbitrator will issue a written decision and provide a statement of reasons if requested by either party. YOU UNDERSTAND AND AGREE THAT YOU AND EYEDENTITY ARE GIVING UP THE RIGHT TO SUE IN COURT AND TO HAVE A TRIAL BEFORE A JUDGE OR JURY.
10.3 Restrictions. You and Eyedentity agree that any arbitration shall be limited to the Dispute between Eyedentity and you individually. YOU ACKNOWLEDGE AND AGREE THAT:
10.3.1 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 EYEDENTITY;
10.3.2 THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; AND
10.3.3 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.
10.3.4 Any dispute regarding the prohibitions in the prior sections shall be resolved by the arbitrator in accordance with this Agreement.
10.4 Exceptions to Negotiations and Arbitration. You and Eyedentity agree that the following Disputes are not subject to the above provisions concerning negotiations and binding arbitration: 10.4.1 any Disputes in countries that prohibit by law submission of Disputes to binding arbitration;
10.4.2 any Disputes seeking to enforce or protect, or concerning the validity of, any of your or Eyedentity’s intellectual property rights;
10.4.3 any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use;
10.4.4 any claim for injunctive relief;
10.4.5 any claim within the jurisdictional limits of the small claims courts; and
10.4.6 any claim you are authorized to bring to the attention of any federal, state, or local government agencies that can, if the law allows, permit those authorities to seek relief from us on your behalf.
10.5 Location of Arbitration. If you are a resident of the United States, any arbitration will take place at any reasonable location within the United States convenient for you. For permanent residents of the EU, any arbitration shall be initiated in the Grand Duchy of Luxembourg. For all other users, any arbitration shall be initiated in the County of Santa Clara, State of California, United States of America. Any Dispute not subject to this Section shall be decided by a court of competent jurisdiction within the County of Santa Clara, State of California, United States of America, and you and Eyedentity agree to submit to the personal jurisdiction of that court.
10.6 Governing Law. You agree that this Agreement shall be deemed to have been made and executed in the State of California, U.S.A., and any Dispute arising hereunder shall be resolved in accordance with the law of California. You agree that any claim asserted in any legal proceeding by you against Eyedentity shall be commenced and maintained exclusively in any state or federal court located in Santa Clara County, California, having subject matter jurisdiction with respect to the dispute between the parties and you hereby consent to the exclusive jurisdiction of such courts. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded, regardless of your place of residence
10.7 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.
10.8 Severability of Dispute Resolve. You and Eyedentity agree that if any portion of this Section 10 is found illegal or unenforceable, such portion shall be severed and the remainder of this Section 10 shall be given full force and effect. Any Dispute subject to any such portion of this Section 10 shall be decided by the arbitrator.
11. GENERAL PROVISIONS
11.1 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 Eyedentity. Eyedentity 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 shall be null and void.
11.2 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.
11.3 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.
11.4 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.
11.5 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.
11.6 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.
11.7 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 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. 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.
11.8 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.
11.9 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 Eyedentity for your breach or threatened breach hereof; that any such breach or threatened breach will allow you or third parties to compete unfairly with Eyedentity resulting in irreparable harm to Eyedentity that would be difficult to measure; and, therefore, that upon any such breach or threat thereof, Eyedentity 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.
11.10 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.
© 2016 Eyedentity Games Inc. - All Rights Reserved
Effective Date : 14, July, 2016
THIS END USER LICENSE AGREEMENT (THIS “AGREEMENT”) IS ENTERED INTO BETWEEN EYEDENTITY GAMES, INC. (“EYEDENTITY”) 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. EYEDENTITY RESERVES THE RIGHT IN ITS SOLE DISCRETION AT ANY TIME TO CHANGE ANY OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. IF WE CHANGE THE TERMS OF THIS END USER LICENSE AGREEMENT, WE WILL COMMUNICATE THE CHANGES TO YOU PRIOR TO THE CHANGES BEING MADE EFFECTIVE.
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. “Documentation” means the online, electronic or printed user guides and other documentation which Eyedentity 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.
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.
3. “Game” means the “Massively Multiplayer Online Role-Playing Game” or “Multiplayer Casual Online Game” or other game provided or serviced by Eyedentity, including the one to which this Agreement is appended.
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.
5. “Service” shall mean the web sites provided by Eyedentity, its agents, designees, vendors or service providers and all related services and products, including, without limitation, Games hosted on servers controlled by Eyedentity, its agents, designees, vendors or service providers that are made available through the Internet for remote use by third parties.
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.
7. “Term” shall have the meaning set forth in Section 9.
8. “Terms of Use” means Eyedentity's Terms of Use for the Service located at http://www.dragonnest.com, as may be amended by Eyedentity from time to time.
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 Eyedentity to you during the Term.
1. PRECONDITIONS OF THE GRANT OF LICENSE
The grant of license as set forth in Section 4 below is specifically conditioned upon the following:
1.1 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;
1.2 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;
1.3 You will use the Software only on an authorized device, running validly licensed copies of operating systems which the Game was designed to operate;
1.4 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
1.5 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.
2. GAME ACCOUNTS
2.1 Game Accounts. To play the Game(s), you may be required to create and maintain a Eyedentity ID, a Game-specific account, and, in some cases, a platform specific account (e.g., an account with Valve Corporation if the Game is distributed through Steam). To use or create a Eyedentity ID, you must register, or have previously established, an account on dragonnest.com. To use or create an account with a specific platform, you must register, or have previously established, an account with that platform.
2.2 Use of Eyedentity IDs. Creation and use of Eyedentity IDs, and subsequent use of are subject to the following terms and conditions:
2.2.1 When you create or update a Eyedentity ID, you must provide Eyedentity with accurate and up to date information that is personal to you, such as your name, address, phone number, and email address. Eyedentity’s retention of your personal information is subject to Eyedentity’s Privacy Policy, located at www.dragonnest.com
2.2.2 Your use of the Games to interact with Eyedentity and other players is governed by Eydentity’s Terms of Use, which are available at www.dragonnest.com. The Terms of Use are not meant to be exhaustive. The Terms of Use are incorporated into this Agreement by this reference, and are available for your review here.
2.2.3 You agree to pay all fees and applicable taxes incurred by you or anyone using your Eydentity ID. Eyedentity may revise the pricing for the goods and services offered in connection with the Games at any time.
2.3 Use of Platform-Specific Accounts. Use of a platform-specific account, which may be required to play a specific Game or utilize certain features, will be subject to the terms and conditions of that Platform.
3. OWNERSHIP; GRANT OF LICENSE; RESTRICTIONS
3.1 Ownership. As between Eyedentity and you, Eyedentity 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 Eyedentity 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 Eyedentity'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, Eyedentity hereby grants you a non-exclusive, nontransferable, non-sublicensable, 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 Eyedentity 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 Eyedentity Games, Inc., including, without limitation (i) gathering in-game currency, items, or resources for sale outside of Eyedentity’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 Eyedentity;
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 Cash Item (as defined 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 Eyedentity, 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;
3.3.12 Violate Eyedentity’s Terms of Use (which are available at www.dragonnest.com); and
3.3.13 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 Eyedentity 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, Eyedentity may provide you with Updates as they are made generally available by Eyedentity. You acknowledge that, to the extent Eyedentity licenses some or all of the Software and/or other components of the Service from third party vendors (“Vendors”), such Vendors, and not Eyedentity, are responsible for creating Updates, if any, and making them available for installation or distribution. You acknowledge and agree that Eyedentity may, with your knowledge and prior consent, provide Updates to you remotely, including, without limitation, by accessing the computer in which you store the Software. Any Update provided or made available by Eyedentity 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 our Software and Service is conditioned on your acceptance of several different agreements. These agreements are:
4.3.1 This End User License Agreement;
4.3.2 The Privacy Policy;
4.3.3 The Terms of Use;
4.3.4 Additional terms that govern particular features or offers (for example, our Code of Conduct , our User Generated Content policy , etc.) (“Additional Terms”). A full list of Additional Terms can be found here ; and
4.3.5 Applicable third party terms that you may need to accept to utilize certain parts of the Service (e.g., payment processor terms; third party distribution platform terms, integration of social networking profiles, etc.).
The agreements are listed in terms of their priority and application to you. In the event of a conflict between provisions contained within any particular agreement, the agreement that is listed first shall control. For example, in the event of a conflict between these Terms of Use and the Privacy Policy, the Privacy Policy shall control. In the event of a conflict between the Additional Terms and this Agreement, this Agreement will control.
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 Eyedentity 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. Any changes to the Terms of Use will be communicated to you prior to the changes are made effective and your continued use of the Software, Game and/or Service after such notification of changes to the Terms of Use will constitute your acceptance of such changes.
4.5 Monitoring of the Service.
4.5.1 Eyedentity 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. Eyedentity shall have the right to utilize recorded communications: (a) to satisfy any applicable law, regulation, legal process or governmental request; (b) to enforce the terms of this Agreement or any other Eyedentity policy; (c) to protect Eyedentity’s legal rights and remedies; (d) to protect the health or safety of anyone that Eyedentity believes may be threatened; or (e) to report a crime or other offensive behavior.
4.5.2 WHEN RUNNING, THE SOFTWWARE 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 ABOVE. IN THE EVENT THAT THE SOFTWARE DETECTS AN UNAUTHORIZED THIRD PARTY PROGRAM, (a) THE SOFTWARE MAY COMMUNICATE INFORMATION BACK TO EYEDENTITY, INCLUDING WITHOUT LIMITATION YOUR ACCOUNT NAME, DETAILS ABOUT THE UNAUTHORIZED THIRD PARTY PROGRAM DETECTED, AND THE TIME AND DATE; AND/OR (b) EYEDENTITY 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 Eyedentity in the event that the Game crashes, including system and driver data, and consent to Eyedentity being able to receive this data.
5. CONFIDENTIAL INFORMATION
5.1 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 Eyedentity and its Vendors or other parties (“Confidential Information”). Such Confidential Information shall, as between you and Eyedentity, belong solely to Eyedentity 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.
5.2 Use and Disclosure Restrictions. You hereby acknowledge and agree that the Confidential Information constitutes and contains valuable proprietary information and trade secrets of Eyedentity, 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 Eyedentity, any Confidential Information or any part or parts thereof; (d) to undertake whatever action is necessary to prevent or remedy (or authorize Eyedentity 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 Eyedentity; 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.
5.3 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 Eyedentity, as evidenced by your contemporaneous written records, (c) becomes known to you without confidential or proprietary restriction from a source other than Eyedentity that does not owe a duty of confidentiality to Eyedentity 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 Eyedentity 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 Eyedentity 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.
6. NO WARRANTY/LIMITATION OF LIABILITY
6.1 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, EYEDENTITY 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. EYEDENTITY 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 EYEDENTITY 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.
6.2 Limitation of Liability.
6.2.1 EYEDENTITY AND ITS LICENSORS MAKE NO PROMISE OR WARRANTY THAT THE GAME OR SOFTWARE WILL WORK PROPERLY. YOU ACKNOWLEDGE AND AGREE THAT EYEDENTITY 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.
6.2.2 Eyedentity 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. Some states do not allow limitations as to how long an implied warranty lasts and/or exclusions or limitations of consequential damages, so the above limitations and/or exclusions of liability may not apply to you. This warranty gives you specific legal rights and you may also have other legal rights which vary from state to state.
6.2.3 Eyedentity is not liable for any delay or failure to perform resulting from any causes beyond our reasonable control. Further, Eyedentity 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.
6.2.4 NEITHER EYEDENTITY NOR ANY OF ITS PARENTS, SUBSIDIARIES, AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS OR PARTNERS, NOR EYEDENTITY'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 EYEDENTITY (OR SUCH OTHER ENTITIES OR PERSONS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. 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 EYEDENTITY 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.
6.3 Other. Without limiting the foregoing, Eyedentity 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 Eyedentity; (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 Eyedentity; or (d) failure to provide a suitable installation or use environment for all or any part of the Software. This clause shall be valid and enforceable to the fullest extent permitted by law.
7. INDEMNIFICATION
As a condition of your access to and use of the Software, you hereby agree to indemnify, defend, and hold Eyedentity, 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-Eyedentity 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 Eyedentity has notified you that Eyedentity believes such activities may result in infringement or otherwise violate the rights of Eyedentity 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.
8. CHANGES
8.1 Alterations to the Agreement. Eyedentity 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.
8.2 Changes to the Software. Eyedentity 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. Eyedentity may also impose limits on certain features or restrict your access to parts or all of the Software without notice or liability.
9. TERM AND TERMINATION
9.1 Term. This Agreement shall commence on the date you indicate your acceptance of this EULA and shall continue until termination in accordance with this Section.
9.2 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 Eyedentity a request to permanently delete all account information linked to you. Eyedentity 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, Eyedentity 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.
9.3 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 Eyedentity (or destroy, at Eyedentity'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. Eyedentity shall not be liable to you for damages of any kind solely as a result of terminating this Agreement in accordance with its terms. Eyedentity'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, 2, 4, 6, 7, 8 and 11 shall survive the expiration or any termination of this Agreement.
10. DISPUTE RESOLUTION
10.1 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 Eyedentity 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 10.4 below) informally for at least thirty (30) days before initiating any arbitration or court proceeding.
Negotiations will begin upon receipt of written notice by the party bringing the Dispute. Eyedentity will send its notice to your billing address and email you a copy to the email address you have provided to us.
10.2 Binding Arbitration.
10.2.1 If a Dispute cannot be resolved through negotiations, then the Dispute must be submitted to binding arbitration (except for the circumstances described in Section 10.4). Arbitration of a Dispute shall be a final and binding determination on you and Eyedentity. You should review this provision carefully. This arbitration provision limits your and Eyedentity’s ability to litigate claims in court and you and Eyedentity each agree to waive our respective rights to a jury trial.
10.2.2 The arbitration shall be commenced and conducted under the Streamlined Rules of the Judicial Arbitration and Mediation Service (the "JAMS") or, where appropriate, the JAMS International Rules, both of which are available at the JAMS website (www.jamsadr.com). This arbitration provision is made pursuant to a transaction involving interstate commerce, and the Federal Arbitration Act (the “FAA”) shall apply to the construction, interpretation, and enforceability of this Agreement notwithstanding any other choice of law provision contained in this Agreement. The arbitrator shall determine the scope and enforceability of this arbitration agreement, including whether a Dispute is subject to arbitration.
10.2.3 An arbitration is a proceeding before a neutral arbitrator, instead of before a judge or jury. Arbitration is less formal than a lawsuit in court, and provides more limited discovery. It follows different rules than court proceedings, and is subject to very limited review by courts. The arbitrator will issue a written decision and provide a statement of reasons if requested by either party. YOU UNDERSTAND AND AGREE THAT YOU AND EYEDENTITY ARE GIVING UP THE RIGHT TO SUE IN COURT AND TO HAVE A TRIAL BEFORE A JUDGE OR JURY.
10.3 Restrictions. You and Eyedentity agree that any arbitration shall be limited to the Dispute between Eyedentity and you individually. YOU ACKNOWLEDGE AND AGREE THAT:
10.3.1 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 EYEDENTITY;
10.3.2 THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; AND
10.3.3 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.
10.3.4 Any dispute regarding the prohibitions in the prior sections shall be resolved by the arbitrator in accordance with this Agreement.
10.4 Exceptions to Negotiations and Arbitration. You and Eyedentity agree that the following Disputes are not subject to the above provisions concerning negotiations and binding arbitration: 10.4.1 any Disputes in countries that prohibit by law submission of Disputes to binding arbitration;
10.4.2 any Disputes seeking to enforce or protect, or concerning the validity of, any of your or Eyedentity’s intellectual property rights;
10.4.3 any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use;
10.4.4 any claim for injunctive relief;
10.4.5 any claim within the jurisdictional limits of the small claims courts; and
10.4.6 any claim you are authorized to bring to the attention of any federal, state, or local government agencies that can, if the law allows, permit those authorities to seek relief from us on your behalf.
10.5 Location of Arbitration. If you are a resident of the United States, any arbitration will take place at any reasonable location within the United States convenient for you. For permanent residents of the EU, any arbitration shall be initiated in the Grand Duchy of Luxembourg. For all other users, any arbitration shall be initiated in the County of Santa Clara, State of California, United States of America. Any Dispute not subject to this Section shall be decided by a court of competent jurisdiction within the County of Santa Clara, State of California, United States of America, and you and Eyedentity agree to submit to the personal jurisdiction of that court.
10.6 Governing Law. You agree that this Agreement shall be deemed to have been made and executed in the State of California, U.S.A., and any Dispute arising hereunder shall be resolved in accordance with the law of California. You agree that any claim asserted in any legal proceeding by you against Eyedentity shall be commenced and maintained exclusively in any state or federal court located in Santa Clara County, California, having subject matter jurisdiction with respect to the dispute between the parties and you hereby consent to the exclusive jurisdiction of such courts. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded, regardless of your place of residence
10.7 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.
10.8 Severability of Dispute Resolve. You and Eyedentity agree that if any portion of this Section 10 is found illegal or unenforceable, such portion shall be severed and the remainder of this Section 10 shall be given full force and effect. Any Dispute subject to any such portion of this Section 10 shall be decided by the arbitrator.
11. GENERAL PROVISIONS
11.1 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 Eyedentity. Eyedentity 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 shall be null and void.
11.2 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.
11.3 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.
11.4 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.
11.5 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.
11.6 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.
11.7 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 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. 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.
11.8 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.
11.9 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 Eyedentity for your breach or threatened breach hereof; that any such breach or threatened breach will allow you or third parties to compete unfairly with Eyedentity resulting in irreparable harm to Eyedentity that would be difficult to measure; and, therefore, that upon any such breach or threat thereof, Eyedentity 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.
11.10 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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