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First Contact Entertainment End User License Agreement
This End User License Agreement (the “Agreement”), along with our Terms of Use, located at [www.firstcontactent.com/terms], describe the terms by which First Contact Entertainment, Inc. (“First Contact”) offers you: (i) the right to download and install and/or use the software included with this agreement, the accompanying content, and related documentation, including any mobile application offered by First Contact (the “Software”), (ii) the right to use the Software in conjunction with your registered Play Station account or an account provided by a partner game site (“Account”) to access and play any online version of the Software, including any and all features, assets or services associated therewith; and (iii) the right to make purchases of Virtual Goods (defined below), if applicable, in the Software using your Account. This Agreement may be periodically updated and the current version will be posted at www.firstcontactent.com/eula. Your continued use of the Software after a revised Agreement has been posted constitutes your acceptance of its terms.
PLEASE READ THIS AGREEMENT CAREFULLY. IF YOU DO NOT AGREE TO ALL THE TERMS OF THIS AGREEMENT, YOU ARE NOT PERMITTED TO OPEN, DOWNLOAD, INSTALL, COPY, OR USE THE SOFTWARE.
By checking the Agreement acceptance box or opening, downloading, installing, copying, or otherwise using the Software, you represent that you are of legal age in your jurisdiction and are accepting this Agreement in its entirety as well as our Terms of Use. If you do not affirmatively accept this Agreement, you decline our offer and you are not permitted to download, use, or access the Software. If, by technical or other means, you bypass or disable the Agreement acceptance box, then by installing, playing, copying, downloading, accessing or otherwise using the Software, you agree to be bound by the terms of the then-current Agreement and the Terms of Use.
[While using this Software, we may require you to provide personal information. We retain and use such information according to the terms of our Privacy Policy set forth at www.firstcontactent.com/privacy (the “Privacy Policy”).]
LICENSE
Subject to your agreement to and continuing compliance with this Agreement and the Terms of Use, First Contact hereby grants you a nonexclusive, non-transferable, limited, and revocable right and License to install and use one copy of the Software for your personal, non-commercial use for gameplay on the software platform specified in the Software documentation (e.g. computer, mobile device, or gaming console), unless otherwise expressly permitted as specified by First Contact in the Software documentation.
The Software is licensed, not sold, to you, and you hereby acknowledge that no title or ownership in the Software is being transferred or assigned and this Agreement should not be construed as a sale of any rights in the Software. First Contact retains all right, title, and interest to the Software, including, but not limited to, all copyrights, trademarks, trade secrets, trade names, proprietary rights, patents, titles, computer codes, audiovisual effects, themes, characters, character names, stories, dialog, settings, artwork, sound effects, musical works, and moral rights.
Beta Software License
First Contact may from time to time make software accessible to you prior to the general commercial release of such software (“Beta Software”). You are not required to use Beta Software, but if First Contact offers it, you may elect to use it under the following terms.
Your right to use the Beta Software may be limited in time, and may be subject to additional terms and conditions. First Contact may request or require that you provide suggestions, feedback, or data regarding your use of the Beta Software, which will be deemed User Content under Section 3 below.
Any attempt to circumvent or interfere with First Contact’s authorized process for distribution of pre-release software may result in termination of this License.
In addition to the waivers and limitations of liability for all Software under this Agreement below, you specifically acknowledge that Beta Software contains errors, is not final and may create incompatibilities or damage to your computer, data, and/or software. If you decide to install and/or use Beta Software, you shall only use it in compliance with its purposes, i.e. for testing and improvement purposes and in any case not on a system or for purposes where the malfunction of the Beta Software can cause any kind of damage. In particular, maintain full backups of any system that you choose to install Beta Software on.
If First Contact announces that Beta Software is confidential, the Beta Software invitation you receive will include a notice that states that the Beta Software is confidential. During a confidential Beta Software release, the existence of the Beta Software and all elements thereof is to be kept confidential, and you agree to keep everything related to the Beta Software secret from everyone who is not participating in the Beta Software release until First Contact informs you that the Beta Software is no longer confidential.
LICENSE AND USE CONDITIONS
You agree not to:
distribute, lease, license, sub-license, sell, rent, convert into convertible currency, or otherwise transfer or assign the Software, or any copies of the Software, including but not limited to Virtual Goods (defined below) without the express prior written consent of First Contact or as expressly set forth in this Agreement;
make a copy of or reproduce the Software or any part thereof (other than as expressly permitted herein);
make a copy of the Software available on a network for use or download by multiple users;
except as otherwise specifically provided by the Software or this Agreement, use or install the Software (or permit others to do same) on a network, for online use, or on more than one computer or gaming unit at the same time;
use the Software for commercial purposes, by means including but not limited to (i) participating in the Software in exchange for payment (e.g. “leveling” services); or (ii) selling in-Software items outside of the Software, or selling Software Accounts, except such transactions as may be authorized by First Contact and conducted via services provided by First Contact;
use or copy the Software at a computer gaming center or any other location-based site; provided that First Contact may offer you a separate license agreement to make the Software available for commercial use;
use third party software that intercepts, collects, reads, mines, or stores user information gathered by First Contact or generated by First Contact software;
reverse engineer, decompile, disassemble, display, perform, translate, derive source code from, prepare derivative works based on, or otherwise modify the Software, in whole or in part;
remove or modify any proprietary notices, marks, or labels contained on or within the Software;
restrict or inhibit any other user from using and enjoying access to any online features of the Software;
cheat or utilize any unauthorized robot, spider, or other program in connection with any online features of the Software;
use methods not expressly authorized by First Contact to influence and/or facilitate game play, including exploits of any in-game bugs, to grant yourself or any other user an advantage over other players not using such methods;
decrypt or modify any data transmitted between a client and the First Contact server in a manner not expressly authorized by First Contact;
use, post, host or distribute macros, “bots” or other programs which would allow unattended game play or which otherwise impact game play, including without limitation any program which enables or facilitates automated character skill or level increases;
disrupt or assist in the disruption of (i) any computer used to support First Contact software, or (ii) any other player’s game experience;
violate any terms, licenses, or code of conduct for any online features of the Software;
use First Contact software to violate or attempt to violate any applicable law or regulation; or
transport, export, or re-export (directly or indirectly) into any country forbidden to receive the Software by any U.S. export laws or regulations or U.S. economic sanctions, or otherwise violate any laws or regulations, or the laws of the country in which the Software was obtained, which may be amended from time to time.
The Software is protected by U.S. copyright and trademark law and applicable laws and treaties throughout the world.
Any persons copying, reproducing, or distributing all or any portion of the Software in any manner or medium not expressly permitted by this Agreement, will be willfully violating the copyright laws and may be subject to civil and criminal penalties in the U.S. or their local country. The Software contains certain licensed materials and First Contact’s licensors may also protect their rights in the event of any violation of this Agreement. All rights not expressly granted under this Agreement are reserved by First Contact and, as applicable, its licensors.
You may not transfer, sell, lease, license, rent, or convert into convertible virtual currency any Virtual Goods except as expressly set forth in this Agreement or with First Contact’s prior written consent. Certain features, including content otherwise unavailable without a single-use serial code, are not transferrable to another person under any circumstances, and certain features may cease functioning if the original installation copy of the Software is deleted or the pre-recorded copy is unavailable to the user. The Software is intended for private use only.
USER CONTENT
In connection with the Software and its related services, you may be permitted to create, upload or transmit User Content (as defined in Section 5 of the Terms of Use) to our servers in various forms. You agree that your User Content shall not: (a) infringe any third party intellectual property or other proprietary or publicity/privacy rights; (b) violate any law or regulation; (c) be defamatory, profane, obscene, child pornographic or harmful to minors; or (d) contain any viruses, trojan horses, worms, time bombs, cancelbots or other computer programming intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information. We may take any action with respect to your User Content if we believe it may create liability for us or may cause us to lose (in whole or in part) the services of our suppliers, or otherwise cause harm.
First Contact does not copy, store, or modify User Content prior to publication (except to the extent necessary to execute automated publication processes); rather User Content is transmitted and published through an automated technical process.
You acknowledge and agree that if you submit any User Content in connection with the Software, you hereby grant us and our licensees, distributors, agents, representatives and other authorized users, a worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable (through multiple tiers) and transferable (in whole or part) license under all copyrights, trademarks, patents, trade secrets, privacy and publicity rights and other intellectual property rights you own or control to use, reproduce, transmit, display, exhibit, distribute, index, comment on, modify, create derivative works based upon, perform and otherwise exploit such User Content, in whole or in part, in all languages and in all media formats and channels now known or hereafter devised for any and all purposes including entertainment, news, advertising, promotional, marketing, publicity, trade or commercial purposes, all without further notice to you, with or without attribution, and without the requirement of any permission from or payment to you or to any other person or entity.
Internet Connectivity and User Accounts
Internet Activity
The Software may require an internet connection to authenticate the Software, access certain features, or perform other functions.
Certain functions of the Software are “online” and must be played over the internet. You acknowledge that First Contact or its partners reserve the right to interrupt, modify (including adding or removing servers), suspend, cancel or terminate the Software with or without prior notice for any reason or no reason. You agree that First Contact will not be liable for any interruption, delay or failure of the Software to perform, and you understand that you shall not be entitled to any refund of fees or compensation for interruption to your use of the Software or any failure of the Software to perform. First Contact and its partners have the right at any time, for any reason or no reason, to change and/or terminate any aspect(s) of the Software as First Contact sees fit in its sole discretion.
User Accounts
In order to use the Software or a software feature, or for certain features of the Software to operate properly, you may be required to have and maintain a valid and active user account with an online service, such as a third-party gaming platform or social network account (“Third-Party Account”), or an account with First Contact or a First Contact affiliate, as set forth in the Software documentation. If you do not maintain such accounts, then certain features of the Software may not operate or may cease to function properly, either in whole or in part. The Software may also require you to create a Software-specific user account with First Contact or a First Contact affiliate (“User Account”) in order to access the Software and its functionality and features. Your User Account log-in may be associated with a Third-Party Account. You are responsible for all use and the security of your User Accounts and any Third-Party Accounts that you use to access and use the Software. You cannot sell, transfer or allow any other person to access your User Account or login credentials, or offer to do so. You are entirely responsible for maintaining the confidentiality of your User Account’s login credentials.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN ANY USER ACCOUNT STORED OR HOSTED ON A FIRST CONTACT SYSTEM, AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT ALL RIGHTS IN AND TO SUCH USER ACCOUNTS ARE AND SHALL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF FIRST CONTACT.
FIRST CONTACT MAY SUSPEND, TERMINATE, MODIFY, OR DELETE ANY USER ACCOUNT FOR ANY REASON OR FOR NO REASON AT ANY TIME, WITH OR WITHOUT NOTICE TO YOU.
Paid Content AND VIRTUAL GOODS
While you may register for and you may, in some cases, be able to use some features of the Software for free, certain aspects of the Software, including fictional currency, items, abilities and other content (“Virtual Goods”) may be provided or purchased for a fee or other charge (“Paid Content”). In the event you elect to use such Paid Content, you agree to abide by the pricing, payment and billing policies applicable to such fees and charges, available at the point of purchase or otherwise posted on the Terms of Use, including any applicable sub-site thereto. First Contact may add new Paid Content and/or services for additional fees and charges, or amend fees and charges for existing services and/or Paid Content, at any time and in its sole discretion. All fees are stated in U.S. Dollars unless otherwise specified. All fees are prepaid and, unless otherwise expressly stated, non-refundable in whole or in part. You are fully liable for all charges incurred in connection with your Account, including any unauthorized charges. In addition to any fees described herein, you are responsible for paying all applicable taxes (including those that we are not required to collect) and for all hardware, software, service fees and other costs you incur to access your Account and to use the Software. Neither this Agreement nor your Account entitles you to any Paid Content, Virtual Goods or similar ancillary products, without paying applicable charges.
If the Software allows you to purchase and/or earn though play a license to use Virtual Goods, the following additional terms and conditions apply:
Use of Virtual Goods
Virtual Goods are part of the Software and are owned by First Contact and/or its licensors. Subject to the terms of and compliance with this Agreement, First Contact hereby grants you the nonexclusive, non-transferable, non-sublicensable, limited right and license to use Virtual Goods obtained by you for your personal non-commercial gameplay exclusively within the Software. Except as otherwise prohibited by applicable law, Virtual Goods obtained by you are licensed to you, and you hereby acknowledge that no title or ownership in or to Virtual Goods is being transferred or assigned hereunder. This Agreement should not be construed as a sale of any rights in Virtual Goods.
Virtual Goods do not have an equivalent real world value in real currency and do not act as a substitute for real currency. You acknowledge and agree that First Contact may at any time revise or take action that impacts the perceived value of, or purchase price for, any Virtual Goods except as prohibited by applicable law. Virtual Goods do not incur fees for non-use; provided, however, that the license granted hereunder to Virtual Goods will terminate in accordance with the terms and conditions of this Agreement and the Software documentation, when First Contact ceases providing the Software, or this Agreement is otherwise terminated. First Contact, in its sole discretion, reserves the right to charge fees for the right to access or use Virtual Goods and/or may distribute Virtual Goods with or without charge.
No Transferring of Virtual Goods
Any transferring, trading, selling, or exchanging of any Virtual Goods to anyone, other than in game play using the Software as expressly authorized by First Contact (“Prohibited Transactions”), including, but not limited to, among other users of the Software, is not sanctioned by First Contact and is strictly forbidden. First Contact reserves the right, in its sole discretion, to terminate, suspend, or modify your User Account and your Virtual Goods and terminate this Agreement if you engage in, assist in, or request any Prohibited Transactions. All users who participate in such activities do so at their own risk and hereby agree to indemnify and hold harmless First Contact, its partners, licensors, affiliates, contractors, officers, directors, employees, and agents from all damages, losses and expenses arising directly or indirectly from such actions. You acknowledge that First Contact may request that the applicable application store stop, suspend, terminate, discontinue, or reverse any Prohibited Transaction, regardless of when such Prohibited Transaction occurred (or has yet to occur) when it suspects or has evidence of fraud, violations of this Agreement, violations of any applicable law or regulation, or any intentional act designed to interfere or that otherwise has the effect of or may have the effect of intervening in any way with the operation of the Software. If we believe or have any reason to suspect that you have engaged in a Prohibited Transaction, you further agree that First Contact may, in its sole discretion, restrict your access to your available Virtual Goods in your User Account or terminate or suspend your User Account and your rights to any Virtual Goods and other items associated with your User Account.
No Refund
All purchases of Paid Content and Virtual Goods are final and under no circumstances will such purchases be refundable, transferable, or exchangeable whether in part or in whole. Except as prohibited by applicable law, First Contact has the absolute right to manage, regulate, control, modify, suspend, and/or eliminate such Paid Content and Virtual Goods as it sees fit in its sole discretion, and First Contact shall have no liability to you or anyone else for the exercise of such rights.
INFORMATION COLLECTION & USAGE
By installing and using the Software, you consent to the information collection and usage terms set forth in this section and First Contact’s Privacy Policy, including (where applicable) (i) the transfer of any personal information and other information to First Contact, its affiliates, vendors, and business partners, and to certain other third parties, such as governmental authorities, in the U.S. and other countries, including countries that may have lower standards of privacy protection; (ii) the public display of your data, such as identification of your user-created content or displaying your scores, ranking, achievements, and other gameplay data on websites and other platforms; (iii) the sharing of your gameplay data with hardware manufacturers, platform hosts, and First Contact’s marketing partners; and (iv) other uses and disclosures of your personal information or other information as specified in the above-referenced Privacy Policy, and as amended from time to time. If you do not want your information used or shared in this manner, then you should not use the Software.
Disclaimer of Warranties
THE SOFTWARE IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AND SUBJECT TO APPLICABLE LAW, FIRST CONTACT DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WHICH MIGHT APPLY TO THE SOFTWARE, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE, AND ANY WARRANTIES AS TO THE ACCURACY, RELIABILITY OR QUALITY OF ANY CONTENT OR INFORMATION CONTAINED WITHIN THE SOFTWARE AND/OR THE SOFTWARE ITSELF. SUBJECT TO ANY REMEDIES WHICH YOU MAY BE ENTITLED TO UNDER APPLICABLE LAW, FIRST CONTACT DOES NOT WARRANT THAT THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SOFTWARE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ASSUME ALL RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE SOFTWARE.
FOR THE AVOIDANCE OF DOUBT, FIRST CONTACT DOES NOT DISCLAIM WARRANTIES FOR INTENTIONAL BREACH OF DUTY. THE WARRANTY DISCLAIMER DOES NOT AFFECT THE LIMITATION OF LIABILITY AS SET OUT BELOW.
Because some states or jurisdictions do not allow the disclaimer of implied warranties, the forgoing disclaimer may, in whole or in part, not apply to you.
WE DO NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM OUR NETWORK AND OTHER PORTIONS OF THE INTERNET, WIRELESS NETWORKS, OR OTHER THIRD-PARTY NETWORKS. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF THE INTERNET AND WIRELESS SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES MAY IMPAIR OR DISRUPT YOUR CONNECTIONS TO THE INTERNET, WIRELESS SERVICES, OR PORTIONS THEREOF. WE CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY, WE DISCLAIM ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO THIRD-PARTY ACTIONS OR INACTIONS THAT IMPAIR OR DISRUPT YOUR CONNECTIONS TO THE INTERNET, WIRELESS SERVICES, OR PORTIONS THEREOF OR THE USE OF THE SOFTWARE AND RELATED SERVICES AND PRODUCTS.
INDEMNITY
YOU HEREBY AGREE TO INDEMNIFY AND HOLD HARMLESS FIRST CONTACT, ITS SUBSIDIARIES, AFFILIATES, OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, LICENSORS, SUPPLIERS OR ANY OTHER PERSON INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING ANY CONTENT OR SERVICES CONTAINED ON THE SERVICE (THE “FIRST CONTACT PARTIES”), FROM AND AGAINST ANY AND ALL CLAIMS, CAUSES OF ACTION, DEMANDS, LIABILITIES, TAXES, OBLIGATIONS, DAMAGES, LOSSES, FINES OR PENALTIES IMPOSED BY A COURT OF COMPETENT JURISDICTION OR EXPENSE (INCLUDING REASONABLE ATTORNEYS’ FEES) AND ALL AMOUNTS PAID IN INVESTIGATION, DEFENSE OR SETTLEMENT OF ANY OF THE FOREGOING ASSERTED BY ANY THIRD-PARTY RESULTING FROM OR ARISING OUT OF YOUR USE OF, OR ANY ACT OF FRAUD OR DISHONESTY BY YOU IN CONNECTION WITH, THE SOFTWARE, FIRST CONTACT’S USE OF YOUR USER CONTENT, OR ANY BREACH BY YOU OF THE AGREEMENTS OR ANY APPLICABLE LAWS OR ANY UNAUTHORIZED USE OF THE SERVICE.
Limitation of Liability
THE FIRST CONTACT PARTIES ARE NOT RESPONSIBLE FOR DAMAGES ARISING OUT OF YOUR USE OF THE SERVICE OR YOUR INABILITY TO USE THE SERVICE. IN NO EVENT SHALL THE FIRST CONTACT PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, LIQUIDATED, OR OTHER CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA, PROFIT OR GOODWILL, OR DUE TO BUSINESS INTERRUPTION, UNAUTHORIZED ACCESS OR OTHER INTANGIBLE LOSSES), IN CONNECTION WITH THE TERMS OF USE, THE SERVICE OR USE OF THE SERVICE OR THE DELAY OR INABILITY TO USE THE SERVICE, REGARDLESS OF LEGAL THEORY (INCLUDING NEGLIGENCE), EVEN IF ONE OR MORE FIRST CONTACT PARTIES KNEW OR WAS NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES.
YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH FIRST CONTACT IS TO STOP USING THE SERVICE.
IN NO EVENT SHALL ANY OF THE FIRST CONTACT PARTIES BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR AN AMOUNT OF DAMAGES IN EXCESS OF THE GREATER OF (i) THE AMOUNT YOU PAID FOR THE SOFTWARE, OR (ii) US $100.
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of First Contact shall be limited to the fullest extent permitted by law. THEREFORE, THE FOREGOING LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
TERMINATION
Termination by First Contact
First Contact may terminate this Agreement (including your Software license and your account) and/or suspend your account immediately and without notice if: (i) you violate any provision of this Agreement; (ii) you infringe any third party intellectual property rights through your use of the Software; (iii) we are unable to verify or authenticate any information you provide to us; and/or (iv) upon game play, chat or any player activity whatsoever which we, in our sole discretion, determine is inappropriate and/or in violation of the spirit of this Agreement. If we terminate this Agreement or suspend your account under these circumstances, you will lose access to your account for the duration of the suspension and/or the balance of any prepaid period without any refund. We may also terminate this Agreement if we decide, in our sole discretion, to discontinue offering the Software.
Termination by You
You may terminate this Agreement (including your Software license), the Software and/or your account at any time (i) in accordance with the termination section of the Terms of Use; (ii) by permanently destroying all copies of the Software in your possession or control; and (iii) by deleting all copies of the Software from the your console, personal computer, mobile phone and other devices, as applicable.
U.S. GOVERNMENT RESTRICTED RIGHTS
The Software and documentation have been developed entirely at private expense and are provided as “Commercial Computer Software” or “restricted computer software.” Use, duplication, or disclosure by the U.S. Government or a U.S. Government subcontractor is subject to the restrictions set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clauses in DFARS 252.227-7013 or as set forth in subparagraph (c)(1) and (2) of the Commercial Computer Software Restricted Rights clauses at FAR 52.227-19, as applicable. The Contractor/Manufacturer is First Contact.
EQUITABLE REMEDIES
You hereby agree that First Contact would be irreparably damaged if the terms of this Agreement were not specifically enforced, and therefore you agree that First Contact shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as First Contact may otherwise have available to it under applicable laws.
You agree that a breach of this License adversely affecting First Contact’s proprietary rights in the software may cause irreparable injury to First Contact for which monetary damages would not be an adequate remedy and First Contact shall be entitled to seek equitable relief in addition to any remedies it may have hereunder or at law.
TAXES AND EXPENSES
You shall be responsible for and shall pay and shall indemnify and hold harmless First Contact and any and all of its affiliates, officers, directors, and employees against all taxes, duties, and levies of any kind imposed by any governmental entity with respect to the transactions contemplated under the this Agreement, including interest and penalties thereon (exclusive of taxes on First Contact’s net income), irrespective of whether included in any invoice sent to you at any time by First Contact. You shall provide copies of any and all exemption certificates to First Contact if you are entitled to any exemption. All expenses and costs incurred by you in connection with your activities hereunder, if any, are your sole responsibility. You are not entitled to reimbursement from First Contact for any expenses, and will hold First Contact harmless therefrom.
TERMS AND CONDITIONS
All access to and use of the Software is subject to this Agreement, the applicable Software documentation, First Contact’s Terms of Use, and First Contact’s Privacy Policy, and all terms and conditions of the Terms of Use are hereby incorporated into this Agreement by this reference. These agreements represent the complete agreement between you and First Contact relating to use of the Software and related services and products and supersede and replace any prior agreements between you and First Contact, whether written or oral. To the extent there is a conflict between this Agreement and the Terms of Use, the Terms of Use shall control.
severability and survival
If any provision of this Agreement is held to be illegal or unenforceable under applicable law, the remainder of the provision shall be amended to achieve as closely as possible the effect of the original term and all other provisions shall continue in full force and effect.
DISPUTE RESOLUTION AND GOVERNING LAW
THIS SECTION APPLIES TO ALL USERS TO THE FULLEST EXTENT ALLOWABLE BY LAW. BY ACCEPTING THESE TERMS YOU EXPLICITLY WAIVE THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AGAINST FIRST CONTACT.
Binding Arbitration. Any dispute, controversy or claim arising out of or relating to this contract, including the formation, interpretation, breach or termination thereof, and including whether the claims asserted are arbitrable, will be referred to and finally determined by arbitration in accordance with the JAMS International Arbitration Rules in Los Angeles, California, United States. The language to be used in the arbitral proceedings will be English. Judgment upon the award rendered by the arbitrator(s) may be entered by any court having jurisdiction thereof.
For non-commercial consumer disputes (where a “consumer” is any user who has not generated any income or profit in association with his or her activities involving the First Contact Service), the following additional standards apply:
This arbitration agreement is reciprocally binding on all parties;
This Section 16 of the Agreement constitutes your notice of the arbitration clause;
Remedies that would otherwise be available under applicable federal, state or local laws remain available under the arbitration clause;
The arbitrator(s) will be neutral and you will have a reasonable opportunity to participate in the process of choosing the arbitrator(s);
If you are a resident of the United States, any arbitration brought against you will take place at any reasonable location within the United States convenient for you;
For residents outside the United States, any arbitration shall be initiated in the County of Los Angeles, State of California, United States of America;
Any arbitration brought by you against First Contact shall be initiated in Los Angeles, California;
In the event of arbitration, you are encouraged to retain counsel;
With respect to the cost of the arbitration, when a consumer initiates arbitration against First Contact, the only fee required to be paid by the consumer is $250. All other costs must be borne by First Contact, including any remaining JAMS Case Management Fee and all professional fees for the arbitrator’s services. When First Contact is the claiming party initiating an arbitration against the consumer, First Contact will be required to pay all costs associated with the arbitration;
A consumer is not required to pay the fees and costs incurred by First Contact if the consumer does not prevail;
This arbitration provision allows for the discovery or exchange of non-privileged information relevant to the dispute;
The Arbitrator’s Award will consist of a written statement stating the disposition of each claim. The award will also provide a concise written statement of the essential findings and conclusions on which the award is based.
Restrictions. You and First Contact agree that any arbitration shall be limited to the dispute between First Contact and you individually. To the full extent permitted by law, (1) no arbitration shall be joined with any other; (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 (3) there is no right or authority for any dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
Exceptions to Informal Negotiations and Arbitration. You and First Contact agree that the following disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (1) any disputes seeking to enforce or protect, or concerning the validity of, any of your or First Contact’s intellectual property rights; (2) any dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (3) any claim for injunctive relief. Any Dispute not subject to arbitration (other than claims proceeding in any small claims court), shall be decided by a court of competent jurisdiction within the County of Los Angeles, State of California, United States of America, and you and First Contact agree to submit to the personal jurisdiction of that court.
Location. The Service is controlled and operated by First Contact from its offices within the State of California, United States of America. First Contact makes no representation that materials on the Service are appropriate or available for use in other locations. Those who choose to access the Service from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.
Governing Law. Except as expressly stated otherwise, the Terms of Use shall be governed by, and will be construed under, the laws of the United States of America and the laws of the State of California, without regard to choice of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
Contact us
IF YOU HAVE ANY QUESTIONS CONCERNING THIS AGREEMENT, YOU MAY CONTACT US VIA EMAIL AT: [support@firstcontactent.com].
This End User License Agreement (the “Agreement”), along with our Terms of Use, located at [www.firstcontactent.com/terms], describe the terms by which First Contact Entertainment, Inc. (“First Contact”) offers you: (i) the right to download and install and/or use the software included with this agreement, the accompanying content, and related documentation, including any mobile application offered by First Contact (the “Software”), (ii) the right to use the Software in conjunction with your registered Play Station account or an account provided by a partner game site (“Account”) to access and play any online version of the Software, including any and all features, assets or services associated therewith; and (iii) the right to make purchases of Virtual Goods (defined below), if applicable, in the Software using your Account. This Agreement may be periodically updated and the current version will be posted at www.firstcontactent.com/eula. Your continued use of the Software after a revised Agreement has been posted constitutes your acceptance of its terms.
PLEASE READ THIS AGREEMENT CAREFULLY. IF YOU DO NOT AGREE TO ALL THE TERMS OF THIS AGREEMENT, YOU ARE NOT PERMITTED TO OPEN, DOWNLOAD, INSTALL, COPY, OR USE THE SOFTWARE.
By checking the Agreement acceptance box or opening, downloading, installing, copying, or otherwise using the Software, you represent that you are of legal age in your jurisdiction and are accepting this Agreement in its entirety as well as our Terms of Use. If you do not affirmatively accept this Agreement, you decline our offer and you are not permitted to download, use, or access the Software. If, by technical or other means, you bypass or disable the Agreement acceptance box, then by installing, playing, copying, downloading, accessing or otherwise using the Software, you agree to be bound by the terms of the then-current Agreement and the Terms of Use.
[While using this Software, we may require you to provide personal information. We retain and use such information according to the terms of our Privacy Policy set forth at www.firstcontactent.com/privacy (the “Privacy Policy”).]
LICENSE
Subject to your agreement to and continuing compliance with this Agreement and the Terms of Use, First Contact hereby grants you a nonexclusive, non-transferable, limited, and revocable right and License to install and use one copy of the Software for your personal, non-commercial use for gameplay on the software platform specified in the Software documentation (e.g. computer, mobile device, or gaming console), unless otherwise expressly permitted as specified by First Contact in the Software documentation.
The Software is licensed, not sold, to you, and you hereby acknowledge that no title or ownership in the Software is being transferred or assigned and this Agreement should not be construed as a sale of any rights in the Software. First Contact retains all right, title, and interest to the Software, including, but not limited to, all copyrights, trademarks, trade secrets, trade names, proprietary rights, patents, titles, computer codes, audiovisual effects, themes, characters, character names, stories, dialog, settings, artwork, sound effects, musical works, and moral rights.
Beta Software License
First Contact may from time to time make software accessible to you prior to the general commercial release of such software (“Beta Software”). You are not required to use Beta Software, but if First Contact offers it, you may elect to use it under the following terms.
Your right to use the Beta Software may be limited in time, and may be subject to additional terms and conditions. First Contact may request or require that you provide suggestions, feedback, or data regarding your use of the Beta Software, which will be deemed User Content under Section 3 below.
Any attempt to circumvent or interfere with First Contact’s authorized process for distribution of pre-release software may result in termination of this License.
In addition to the waivers and limitations of liability for all Software under this Agreement below, you specifically acknowledge that Beta Software contains errors, is not final and may create incompatibilities or damage to your computer, data, and/or software. If you decide to install and/or use Beta Software, you shall only use it in compliance with its purposes, i.e. for testing and improvement purposes and in any case not on a system or for purposes where the malfunction of the Beta Software can cause any kind of damage. In particular, maintain full backups of any system that you choose to install Beta Software on.
If First Contact announces that Beta Software is confidential, the Beta Software invitation you receive will include a notice that states that the Beta Software is confidential. During a confidential Beta Software release, the existence of the Beta Software and all elements thereof is to be kept confidential, and you agree to keep everything related to the Beta Software secret from everyone who is not participating in the Beta Software release until First Contact informs you that the Beta Software is no longer confidential.
LICENSE AND USE CONDITIONS
You agree not to:
distribute, lease, license, sub-license, sell, rent, convert into convertible currency, or otherwise transfer or assign the Software, or any copies of the Software, including but not limited to Virtual Goods (defined below) without the express prior written consent of First Contact or as expressly set forth in this Agreement;
make a copy of or reproduce the Software or any part thereof (other than as expressly permitted herein);
make a copy of the Software available on a network for use or download by multiple users;
except as otherwise specifically provided by the Software or this Agreement, use or install the Software (or permit others to do same) on a network, for online use, or on more than one computer or gaming unit at the same time;
use the Software for commercial purposes, by means including but not limited to (i) participating in the Software in exchange for payment (e.g. “leveling” services); or (ii) selling in-Software items outside of the Software, or selling Software Accounts, except such transactions as may be authorized by First Contact and conducted via services provided by First Contact;
use or copy the Software at a computer gaming center or any other location-based site; provided that First Contact may offer you a separate license agreement to make the Software available for commercial use;
use third party software that intercepts, collects, reads, mines, or stores user information gathered by First Contact or generated by First Contact software;
reverse engineer, decompile, disassemble, display, perform, translate, derive source code from, prepare derivative works based on, or otherwise modify the Software, in whole or in part;
remove or modify any proprietary notices, marks, or labels contained on or within the Software;
restrict or inhibit any other user from using and enjoying access to any online features of the Software;
cheat or utilize any unauthorized robot, spider, or other program in connection with any online features of the Software;
use methods not expressly authorized by First Contact to influence and/or facilitate game play, including exploits of any in-game bugs, to grant yourself or any other user an advantage over other players not using such methods;
decrypt or modify any data transmitted between a client and the First Contact server in a manner not expressly authorized by First Contact;
use, post, host or distribute macros, “bots” or other programs which would allow unattended game play or which otherwise impact game play, including without limitation any program which enables or facilitates automated character skill or level increases;
disrupt or assist in the disruption of (i) any computer used to support First Contact software, or (ii) any other player’s game experience;
violate any terms, licenses, or code of conduct for any online features of the Software;
use First Contact software to violate or attempt to violate any applicable law or regulation; or
transport, export, or re-export (directly or indirectly) into any country forbidden to receive the Software by any U.S. export laws or regulations or U.S. economic sanctions, or otherwise violate any laws or regulations, or the laws of the country in which the Software was obtained, which may be amended from time to time.
The Software is protected by U.S. copyright and trademark law and applicable laws and treaties throughout the world.
Any persons copying, reproducing, or distributing all or any portion of the Software in any manner or medium not expressly permitted by this Agreement, will be willfully violating the copyright laws and may be subject to civil and criminal penalties in the U.S. or their local country. The Software contains certain licensed materials and First Contact’s licensors may also protect their rights in the event of any violation of this Agreement. All rights not expressly granted under this Agreement are reserved by First Contact and, as applicable, its licensors.
You may not transfer, sell, lease, license, rent, or convert into convertible virtual currency any Virtual Goods except as expressly set forth in this Agreement or with First Contact’s prior written consent. Certain features, including content otherwise unavailable without a single-use serial code, are not transferrable to another person under any circumstances, and certain features may cease functioning if the original installation copy of the Software is deleted or the pre-recorded copy is unavailable to the user. The Software is intended for private use only.
USER CONTENT
In connection with the Software and its related services, you may be permitted to create, upload or transmit User Content (as defined in Section 5 of the Terms of Use) to our servers in various forms. You agree that your User Content shall not: (a) infringe any third party intellectual property or other proprietary or publicity/privacy rights; (b) violate any law or regulation; (c) be defamatory, profane, obscene, child pornographic or harmful to minors; or (d) contain any viruses, trojan horses, worms, time bombs, cancelbots or other computer programming intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information. We may take any action with respect to your User Content if we believe it may create liability for us or may cause us to lose (in whole or in part) the services of our suppliers, or otherwise cause harm.
First Contact does not copy, store, or modify User Content prior to publication (except to the extent necessary to execute automated publication processes); rather User Content is transmitted and published through an automated technical process.
You acknowledge and agree that if you submit any User Content in connection with the Software, you hereby grant us and our licensees, distributors, agents, representatives and other authorized users, a worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable (through multiple tiers) and transferable (in whole or part) license under all copyrights, trademarks, patents, trade secrets, privacy and publicity rights and other intellectual property rights you own or control to use, reproduce, transmit, display, exhibit, distribute, index, comment on, modify, create derivative works based upon, perform and otherwise exploit such User Content, in whole or in part, in all languages and in all media formats and channels now known or hereafter devised for any and all purposes including entertainment, news, advertising, promotional, marketing, publicity, trade or commercial purposes, all without further notice to you, with or without attribution, and without the requirement of any permission from or payment to you or to any other person or entity.
Internet Connectivity and User Accounts
Internet Activity
The Software may require an internet connection to authenticate the Software, access certain features, or perform other functions.
Certain functions of the Software are “online” and must be played over the internet. You acknowledge that First Contact or its partners reserve the right to interrupt, modify (including adding or removing servers), suspend, cancel or terminate the Software with or without prior notice for any reason or no reason. You agree that First Contact will not be liable for any interruption, delay or failure of the Software to perform, and you understand that you shall not be entitled to any refund of fees or compensation for interruption to your use of the Software or any failure of the Software to perform. First Contact and its partners have the right at any time, for any reason or no reason, to change and/or terminate any aspect(s) of the Software as First Contact sees fit in its sole discretion.
User Accounts
In order to use the Software or a software feature, or for certain features of the Software to operate properly, you may be required to have and maintain a valid and active user account with an online service, such as a third-party gaming platform or social network account (“Third-Party Account”), or an account with First Contact or a First Contact affiliate, as set forth in the Software documentation. If you do not maintain such accounts, then certain features of the Software may not operate or may cease to function properly, either in whole or in part. The Software may also require you to create a Software-specific user account with First Contact or a First Contact affiliate (“User Account”) in order to access the Software and its functionality and features. Your User Account log-in may be associated with a Third-Party Account. You are responsible for all use and the security of your User Accounts and any Third-Party Accounts that you use to access and use the Software. You cannot sell, transfer or allow any other person to access your User Account or login credentials, or offer to do so. You are entirely responsible for maintaining the confidentiality of your User Account’s login credentials.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN ANY USER ACCOUNT STORED OR HOSTED ON A FIRST CONTACT SYSTEM, AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT ALL RIGHTS IN AND TO SUCH USER ACCOUNTS ARE AND SHALL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF FIRST CONTACT.
FIRST CONTACT MAY SUSPEND, TERMINATE, MODIFY, OR DELETE ANY USER ACCOUNT FOR ANY REASON OR FOR NO REASON AT ANY TIME, WITH OR WITHOUT NOTICE TO YOU.
Paid Content AND VIRTUAL GOODS
While you may register for and you may, in some cases, be able to use some features of the Software for free, certain aspects of the Software, including fictional currency, items, abilities and other content (“Virtual Goods”) may be provided or purchased for a fee or other charge (“Paid Content”). In the event you elect to use such Paid Content, you agree to abide by the pricing, payment and billing policies applicable to such fees and charges, available at the point of purchase or otherwise posted on the Terms of Use, including any applicable sub-site thereto. First Contact may add new Paid Content and/or services for additional fees and charges, or amend fees and charges for existing services and/or Paid Content, at any time and in its sole discretion. All fees are stated in U.S. Dollars unless otherwise specified. All fees are prepaid and, unless otherwise expressly stated, non-refundable in whole or in part. You are fully liable for all charges incurred in connection with your Account, including any unauthorized charges. In addition to any fees described herein, you are responsible for paying all applicable taxes (including those that we are not required to collect) and for all hardware, software, service fees and other costs you incur to access your Account and to use the Software. Neither this Agreement nor your Account entitles you to any Paid Content, Virtual Goods or similar ancillary products, without paying applicable charges.
If the Software allows you to purchase and/or earn though play a license to use Virtual Goods, the following additional terms and conditions apply:
Use of Virtual Goods
Virtual Goods are part of the Software and are owned by First Contact and/or its licensors. Subject to the terms of and compliance with this Agreement, First Contact hereby grants you the nonexclusive, non-transferable, non-sublicensable, limited right and license to use Virtual Goods obtained by you for your personal non-commercial gameplay exclusively within the Software. Except as otherwise prohibited by applicable law, Virtual Goods obtained by you are licensed to you, and you hereby acknowledge that no title or ownership in or to Virtual Goods is being transferred or assigned hereunder. This Agreement should not be construed as a sale of any rights in Virtual Goods.
Virtual Goods do not have an equivalent real world value in real currency and do not act as a substitute for real currency. You acknowledge and agree that First Contact may at any time revise or take action that impacts the perceived value of, or purchase price for, any Virtual Goods except as prohibited by applicable law. Virtual Goods do not incur fees for non-use; provided, however, that the license granted hereunder to Virtual Goods will terminate in accordance with the terms and conditions of this Agreement and the Software documentation, when First Contact ceases providing the Software, or this Agreement is otherwise terminated. First Contact, in its sole discretion, reserves the right to charge fees for the right to access or use Virtual Goods and/or may distribute Virtual Goods with or without charge.
No Transferring of Virtual Goods
Any transferring, trading, selling, or exchanging of any Virtual Goods to anyone, other than in game play using the Software as expressly authorized by First Contact (“Prohibited Transactions”), including, but not limited to, among other users of the Software, is not sanctioned by First Contact and is strictly forbidden. First Contact reserves the right, in its sole discretion, to terminate, suspend, or modify your User Account and your Virtual Goods and terminate this Agreement if you engage in, assist in, or request any Prohibited Transactions. All users who participate in such activities do so at their own risk and hereby agree to indemnify and hold harmless First Contact, its partners, licensors, affiliates, contractors, officers, directors, employees, and agents from all damages, losses and expenses arising directly or indirectly from such actions. You acknowledge that First Contact may request that the applicable application store stop, suspend, terminate, discontinue, or reverse any Prohibited Transaction, regardless of when such Prohibited Transaction occurred (or has yet to occur) when it suspects or has evidence of fraud, violations of this Agreement, violations of any applicable law or regulation, or any intentional act designed to interfere or that otherwise has the effect of or may have the effect of intervening in any way with the operation of the Software. If we believe or have any reason to suspect that you have engaged in a Prohibited Transaction, you further agree that First Contact may, in its sole discretion, restrict your access to your available Virtual Goods in your User Account or terminate or suspend your User Account and your rights to any Virtual Goods and other items associated with your User Account.
No Refund
All purchases of Paid Content and Virtual Goods are final and under no circumstances will such purchases be refundable, transferable, or exchangeable whether in part or in whole. Except as prohibited by applicable law, First Contact has the absolute right to manage, regulate, control, modify, suspend, and/or eliminate such Paid Content and Virtual Goods as it sees fit in its sole discretion, and First Contact shall have no liability to you or anyone else for the exercise of such rights.
INFORMATION COLLECTION & USAGE
By installing and using the Software, you consent to the information collection and usage terms set forth in this section and First Contact’s Privacy Policy, including (where applicable) (i) the transfer of any personal information and other information to First Contact, its affiliates, vendors, and business partners, and to certain other third parties, such as governmental authorities, in the U.S. and other countries, including countries that may have lower standards of privacy protection; (ii) the public display of your data, such as identification of your user-created content or displaying your scores, ranking, achievements, and other gameplay data on websites and other platforms; (iii) the sharing of your gameplay data with hardware manufacturers, platform hosts, and First Contact’s marketing partners; and (iv) other uses and disclosures of your personal information or other information as specified in the above-referenced Privacy Policy, and as amended from time to time. If you do not want your information used or shared in this manner, then you should not use the Software.
Disclaimer of Warranties
THE SOFTWARE IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AND SUBJECT TO APPLICABLE LAW, FIRST CONTACT DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WHICH MIGHT APPLY TO THE SOFTWARE, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE, AND ANY WARRANTIES AS TO THE ACCURACY, RELIABILITY OR QUALITY OF ANY CONTENT OR INFORMATION CONTAINED WITHIN THE SOFTWARE AND/OR THE SOFTWARE ITSELF. SUBJECT TO ANY REMEDIES WHICH YOU MAY BE ENTITLED TO UNDER APPLICABLE LAW, FIRST CONTACT DOES NOT WARRANT THAT THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SOFTWARE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ASSUME ALL RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE SOFTWARE.
FOR THE AVOIDANCE OF DOUBT, FIRST CONTACT DOES NOT DISCLAIM WARRANTIES FOR INTENTIONAL BREACH OF DUTY. THE WARRANTY DISCLAIMER DOES NOT AFFECT THE LIMITATION OF LIABILITY AS SET OUT BELOW.
Because some states or jurisdictions do not allow the disclaimer of implied warranties, the forgoing disclaimer may, in whole or in part, not apply to you.
WE DO NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM OUR NETWORK AND OTHER PORTIONS OF THE INTERNET, WIRELESS NETWORKS, OR OTHER THIRD-PARTY NETWORKS. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF THE INTERNET AND WIRELESS SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES MAY IMPAIR OR DISRUPT YOUR CONNECTIONS TO THE INTERNET, WIRELESS SERVICES, OR PORTIONS THEREOF. WE CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY, WE DISCLAIM ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO THIRD-PARTY ACTIONS OR INACTIONS THAT IMPAIR OR DISRUPT YOUR CONNECTIONS TO THE INTERNET, WIRELESS SERVICES, OR PORTIONS THEREOF OR THE USE OF THE SOFTWARE AND RELATED SERVICES AND PRODUCTS.
INDEMNITY
YOU HEREBY AGREE TO INDEMNIFY AND HOLD HARMLESS FIRST CONTACT, ITS SUBSIDIARIES, AFFILIATES, OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, LICENSORS, SUPPLIERS OR ANY OTHER PERSON INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING ANY CONTENT OR SERVICES CONTAINED ON THE SERVICE (THE “FIRST CONTACT PARTIES”), FROM AND AGAINST ANY AND ALL CLAIMS, CAUSES OF ACTION, DEMANDS, LIABILITIES, TAXES, OBLIGATIONS, DAMAGES, LOSSES, FINES OR PENALTIES IMPOSED BY A COURT OF COMPETENT JURISDICTION OR EXPENSE (INCLUDING REASONABLE ATTORNEYS’ FEES) AND ALL AMOUNTS PAID IN INVESTIGATION, DEFENSE OR SETTLEMENT OF ANY OF THE FOREGOING ASSERTED BY ANY THIRD-PARTY RESULTING FROM OR ARISING OUT OF YOUR USE OF, OR ANY ACT OF FRAUD OR DISHONESTY BY YOU IN CONNECTION WITH, THE SOFTWARE, FIRST CONTACT’S USE OF YOUR USER CONTENT, OR ANY BREACH BY YOU OF THE AGREEMENTS OR ANY APPLICABLE LAWS OR ANY UNAUTHORIZED USE OF THE SERVICE.
Limitation of Liability
THE FIRST CONTACT PARTIES ARE NOT RESPONSIBLE FOR DAMAGES ARISING OUT OF YOUR USE OF THE SERVICE OR YOUR INABILITY TO USE THE SERVICE. IN NO EVENT SHALL THE FIRST CONTACT PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, LIQUIDATED, OR OTHER CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA, PROFIT OR GOODWILL, OR DUE TO BUSINESS INTERRUPTION, UNAUTHORIZED ACCESS OR OTHER INTANGIBLE LOSSES), IN CONNECTION WITH THE TERMS OF USE, THE SERVICE OR USE OF THE SERVICE OR THE DELAY OR INABILITY TO USE THE SERVICE, REGARDLESS OF LEGAL THEORY (INCLUDING NEGLIGENCE), EVEN IF ONE OR MORE FIRST CONTACT PARTIES KNEW OR WAS NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES.
YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH FIRST CONTACT IS TO STOP USING THE SERVICE.
IN NO EVENT SHALL ANY OF THE FIRST CONTACT PARTIES BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR AN AMOUNT OF DAMAGES IN EXCESS OF THE GREATER OF (i) THE AMOUNT YOU PAID FOR THE SOFTWARE, OR (ii) US $100.
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of First Contact shall be limited to the fullest extent permitted by law. THEREFORE, THE FOREGOING LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
TERMINATION
Termination by First Contact
First Contact may terminate this Agreement (including your Software license and your account) and/or suspend your account immediately and without notice if: (i) you violate any provision of this Agreement; (ii) you infringe any third party intellectual property rights through your use of the Software; (iii) we are unable to verify or authenticate any information you provide to us; and/or (iv) upon game play, chat or any player activity whatsoever which we, in our sole discretion, determine is inappropriate and/or in violation of the spirit of this Agreement. If we terminate this Agreement or suspend your account under these circumstances, you will lose access to your account for the duration of the suspension and/or the balance of any prepaid period without any refund. We may also terminate this Agreement if we decide, in our sole discretion, to discontinue offering the Software.
Termination by You
You may terminate this Agreement (including your Software license), the Software and/or your account at any time (i) in accordance with the termination section of the Terms of Use; (ii) by permanently destroying all copies of the Software in your possession or control; and (iii) by deleting all copies of the Software from the your console, personal computer, mobile phone and other devices, as applicable.
U.S. GOVERNMENT RESTRICTED RIGHTS
The Software and documentation have been developed entirely at private expense and are provided as “Commercial Computer Software” or “restricted computer software.” Use, duplication, or disclosure by the U.S. Government or a U.S. Government subcontractor is subject to the restrictions set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clauses in DFARS 252.227-7013 or as set forth in subparagraph (c)(1) and (2) of the Commercial Computer Software Restricted Rights clauses at FAR 52.227-19, as applicable. The Contractor/Manufacturer is First Contact.
EQUITABLE REMEDIES
You hereby agree that First Contact would be irreparably damaged if the terms of this Agreement were not specifically enforced, and therefore you agree that First Contact shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as First Contact may otherwise have available to it under applicable laws.
You agree that a breach of this License adversely affecting First Contact’s proprietary rights in the software may cause irreparable injury to First Contact for which monetary damages would not be an adequate remedy and First Contact shall be entitled to seek equitable relief in addition to any remedies it may have hereunder or at law.
TAXES AND EXPENSES
You shall be responsible for and shall pay and shall indemnify and hold harmless First Contact and any and all of its affiliates, officers, directors, and employees against all taxes, duties, and levies of any kind imposed by any governmental entity with respect to the transactions contemplated under the this Agreement, including interest and penalties thereon (exclusive of taxes on First Contact’s net income), irrespective of whether included in any invoice sent to you at any time by First Contact. You shall provide copies of any and all exemption certificates to First Contact if you are entitled to any exemption. All expenses and costs incurred by you in connection with your activities hereunder, if any, are your sole responsibility. You are not entitled to reimbursement from First Contact for any expenses, and will hold First Contact harmless therefrom.
TERMS AND CONDITIONS
All access to and use of the Software is subject to this Agreement, the applicable Software documentation, First Contact’s Terms of Use, and First Contact’s Privacy Policy, and all terms and conditions of the Terms of Use are hereby incorporated into this Agreement by this reference. These agreements represent the complete agreement between you and First Contact relating to use of the Software and related services and products and supersede and replace any prior agreements between you and First Contact, whether written or oral. To the extent there is a conflict between this Agreement and the Terms of Use, the Terms of Use shall control.
severability and survival
If any provision of this Agreement is held to be illegal or unenforceable under applicable law, the remainder of the provision shall be amended to achieve as closely as possible the effect of the original term and all other provisions shall continue in full force and effect.
DISPUTE RESOLUTION AND GOVERNING LAW
THIS SECTION APPLIES TO ALL USERS TO THE FULLEST EXTENT ALLOWABLE BY LAW. BY ACCEPTING THESE TERMS YOU EXPLICITLY WAIVE THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AGAINST FIRST CONTACT.
Binding Arbitration. Any dispute, controversy or claim arising out of or relating to this contract, including the formation, interpretation, breach or termination thereof, and including whether the claims asserted are arbitrable, will be referred to and finally determined by arbitration in accordance with the JAMS International Arbitration Rules in Los Angeles, California, United States. The language to be used in the arbitral proceedings will be English. Judgment upon the award rendered by the arbitrator(s) may be entered by any court having jurisdiction thereof.
For non-commercial consumer disputes (where a “consumer” is any user who has not generated any income or profit in association with his or her activities involving the First Contact Service), the following additional standards apply:
This arbitration agreement is reciprocally binding on all parties;
This Section 16 of the Agreement constitutes your notice of the arbitration clause;
Remedies that would otherwise be available under applicable federal, state or local laws remain available under the arbitration clause;
The arbitrator(s) will be neutral and you will have a reasonable opportunity to participate in the process of choosing the arbitrator(s);
If you are a resident of the United States, any arbitration brought against you will take place at any reasonable location within the United States convenient for you;
For residents outside the United States, any arbitration shall be initiated in the County of Los Angeles, State of California, United States of America;
Any arbitration brought by you against First Contact shall be initiated in Los Angeles, California;
In the event of arbitration, you are encouraged to retain counsel;
With respect to the cost of the arbitration, when a consumer initiates arbitration against First Contact, the only fee required to be paid by the consumer is $250. All other costs must be borne by First Contact, including any remaining JAMS Case Management Fee and all professional fees for the arbitrator’s services. When First Contact is the claiming party initiating an arbitration against the consumer, First Contact will be required to pay all costs associated with the arbitration;
A consumer is not required to pay the fees and costs incurred by First Contact if the consumer does not prevail;
This arbitration provision allows for the discovery or exchange of non-privileged information relevant to the dispute;
The Arbitrator’s Award will consist of a written statement stating the disposition of each claim. The award will also provide a concise written statement of the essential findings and conclusions on which the award is based.
Restrictions. You and First Contact agree that any arbitration shall be limited to the dispute between First Contact and you individually. To the full extent permitted by law, (1) no arbitration shall be joined with any other; (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 (3) there is no right or authority for any dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
Exceptions to Informal Negotiations and Arbitration. You and First Contact agree that the following disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (1) any disputes seeking to enforce or protect, or concerning the validity of, any of your or First Contact’s intellectual property rights; (2) any dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (3) any claim for injunctive relief. Any Dispute not subject to arbitration (other than claims proceeding in any small claims court), shall be decided by a court of competent jurisdiction within the County of Los Angeles, State of California, United States of America, and you and First Contact agree to submit to the personal jurisdiction of that court.
Location. The Service is controlled and operated by First Contact from its offices within the State of California, United States of America. First Contact makes no representation that materials on the Service are appropriate or available for use in other locations. Those who choose to access the Service from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.
Governing Law. Except as expressly stated otherwise, the Terms of Use shall be governed by, and will be construed under, the laws of the United States of America and the laws of the State of California, without regard to choice of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
Contact us
IF YOU HAVE ANY QUESTIONS CONCERNING THIS AGREEMENT, YOU MAY CONTACT US VIA EMAIL AT: [support@firstcontactent.com].