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BOSS KEY PRODUCTIONS, INC. - END USER LICENSE AGREEMENT
Effective Date: April 7, 2018
This end user license agreement (this “Agreement”) is entered into between Boss Key Productions, Inc. (“Company”) and you (“You” or “Your”). You should read this agreement carefully and ensure you understand it. By downloading or using the Software, or by otherwise indicating your acceptance of this Agreement, you are agreeing to be bound by the terms of this Agreement. If you do not or cannot agree to the terms of this Agreement, please do not download or use this Software.
Certain words and phrases are defined to have specific meanings under this Agreement. Those definitions are below in Section 20.
Ownership; License Grant.
As between Company and you, Company owns and will 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 Company to evidence, maintain, enforce or defend the foregoing rights. You will not take any action to jeopardize, encumber, limit or interfere in any manner with Company's ownership of and rights with respect to the Software, or any Derivative Work or Update of or to the Software. You have only those rights in and to the Software and any Derivative Work or Update as are expressly granted to you under this Agreement.
Subject to the terms and conditions of this Agreement, Company hereby grants you a non-exclusive, nontransferable, nonsublicensable, limited right and license, during the Term, to: (i) Install a copy of the Software on one or more computers under your legitimate control; (ii) Access and use the Software, solely in accordance with this Agreement, the Documentation and solely for your own personal, non-commercial, entertainment purposes.
Except as set forth in this Section, Company grants you no other right or license of any kind to you under this Agreement with respect to the Software. Title to the Software is not transferred to you. You may own the medium on which the Software is recorded, but Company retains all right, title and interest in and to the Software, and all Intellectual Property Rights therein.
License Conditions
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.
You may not do any of the following with respect to the Software or any of its parts: (a) use it commercially or for a promotional purpose; (b) use it on more than one device at a time; (c) copy, reproduce, distribute, display, or use it in a way that is not expressly authorized in this Agreement; (d) sell, rent, lease, license, distribute, or otherwise transfer it; (e) reverse engineer, derive source code from, modify, adapt, translate, decompile, or disassemble it or make derivative works based on it; (f) remove, disable, circumvent, or modify any proprietary notice or label or security technology included in it; (g) create, develop, distribute, or use any unauthorized software programs to gain advantage in any online or other game modes; (h) use it to infringe or violate the rights of any third party, including but not limited to any intellectual property, publicity, or privacy rights; (i) use, export, or re-export it in violation of any applicable law or regulation; or (j) behave in a manner which is detrimental to the enjoyment of the Software by other users as intended by Company, in Company’s sole judgment, including but not limited to the following – harassment, use of abusive or offensive language, game abandonment, game sabotage, spamming, social engineering, or scamming.
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, if prompted to install anti-cheat software during your installation or use of the Software, you agree to install such anti-cheat software (if you do not agree to install the anti-cheat software or at anytime remove, disable or circumvent the anti-cheat software, the license granted to you under this agreement automatically terminates) and agree that the anti-cheat software may collect and transmit details about your account, gameplay and other programs and services on your computer to third parties for the purposes of ensuring fair play within the Software; and
You will comply with all requirements and obligations of the Terms of Service, which is specifically incorporated into this Agreement and is made a part hereof.
Game Accounts; Use of the Service.
To play the Game(s), you may be required to create and maintain an account, and, in some cases, a platform specific account (e.g., an account with Valve Corporation if the Game is distributed through Steam).
Creation and use of Company IDs, and subsequent use of are subject to the following terms and conditions: (a) When you create or update a Company ID, you must provide Company with accurate and up to date information that is personal to you, such as your name, address, phone number, and email address. Company’s retention of your personal information is subject to Company’s Privacy Policy, located at http://bosskey.com/privacy-policy/. (b) Your use of the Games to interact with Company and other players is governed by Company’s Terms of Service. The Terms of Service are not meant to be exhaustive. (c) You agree to pay all fees and applicable taxes incurred by you or anyone using your Company ID. Company may revise the pricing for the goods and services offered in connection with the Games at any time.
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.
Updates.
During the Term, Company may provide you with Updates as they are made generally available by Company. You acknowledge and agree that Company 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 Company will be deemed part of the Software and subject to the terms and conditions of this Agreement. Some updates may be required in order for you to continue to use the Software. You acknowledge that your use of the Software or Services does not confer on you any interest, monetary or otherwise, in any aspect or feature of the Software or Services, including but not limited to any in-game rewards, achievements, character levels, Game Currency, or Content. You also acknowledge that any character data, game progress, game customization or other data related to your use of the Software or Services may cease to be available to you at any time without notice from Company, including without limitation after a patch, Update, or upgrade is applied by Company.
Game Currency and Content
Company may offer licenses to in-game currency (“Game Currency,” which may be referred to as currency, gems, Rad Gems, points or any other name) or Content, such as by: (a) a limited license to use Game Currency, (b) earning a limited license to use Game Currency by performing or accomplishing specific tasks, objectives or achievements in the Software (which may be tracked by Company), or (c) purchasing for a fee, exchanging Game Currency for, or earning a limited license to use Content. Game Currency may be exchangeable solely inside the Game for other Content. Company may facilitate the exchange of certain Content through the Software, in some cases for a fee. You may only use Game Currency or Content if you pay the associated fee (if any). When you earn or pay the fee to obtain Game Currency or Content, you are obtaining or purchasing from Company the right to have your license to the Software include that Game Currency or Content. Regardless of any references Company may make outside this Agreement to purchasing or selling Game Currency or Content, both Game Currency and Content are licensed, not sold, to you under the License. Use of your account to purchase Game Currency or Content is subject to the Terms of Service.
Neither Game Currency nor Content are redeemable for money or monetary value unless otherwise required by applicable law. Game Currency and Content do not have an equivalent value in real currency and do not act as a substitute for real currency. Neither Company nor any other person or entity has any obligation to exchange Game Currency or Content for anything of value, including, but not limited to, real currency. You agree that Company may engage in actions that may impact the perceived value or purchase price, if applicable, of Game Currency and Content at any time, except as prohibited by applicable law.
All purchases of Game Currency and Content are final and are not refundable, transferable, or exchangeable under any circumstances, except as otherwise required by applicable law. Company, in its sole discretion, may impose limits on the amount of Game Currency or Content that may be purchased, earned, accumulated, redeemed or otherwise used.
Except as otherwise prohibited by applicable law, Company, in its sole discretion, has the absolute right to manage, modify, substitute, replace, suspend, cancel or eliminate Game Currency or Content, including your ability to access or use Game Currency or Content, without notice or liability to you. You may not transfer, sell, gift, exchange, trade, lease, sublicense, or rent Game Currency or Content except within the Software and as expressly permitted by Company. Except as otherwise prohibited by applicable law, Company reserves and retains all rights, title, and interest in and to the Game Currency and Content. The license to Game Currency and Content under the License will terminate upon termination of the License and as otherwise provided in this Agreement.
When you provide payment information to Company’s authorized processor, you represent that you are an authorized user of the payment card, PIN, key, account or other payment method specified by you, and you authorize Company to charge such payment method for the full amount of the transaction.
Monitoring of the Service.
Company has 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. Company has 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 Company policy; (c) to protect Company’s legal rights and remedies; (d) to protect the health or safety of anyone that Company believes may be threatened; or (e) to report a crime or other offensive behavior.
When running, the Software may monitor your computer’s random access memory for unauthorized third party programs running concurrently with the Game. An “unauthorized third party program” is any third party software prohibited by section 2, above. In the event that the Software or any third party add on to the Software required by the Company detects an unauthorized third party program, (a) the Software may communicate information back to the Company, including, without limitation, your account information, details about the program detected, and the time and date and/or (b) Company may exercise any or all of its rights under this Agreement, with or without notice to you. Certain Games may include a tool that will allow your computer system to forward information to Company in the event that the Game crashes, including system and driver data, and consent to Company being able to receive this data.
User Generated Content.
“UGC” means any content that you create, generate, or make available through the Software or the Services, including chat posts, character data, game customization, in-game creations, and screenshots. You hereby grant to Company a non-exclusive, fully-paid, royalty-free, irrevocable, perpetual, transferable, and sublicensable license to use, copy, modify, adapt, distribute, and publicly display your UGC. You may not create, generate, or make available through the Software of the Services any UGC to which you do not have the right to grant Company such license. In addition, you may not create, generate, or make available through the Software of the Services any UGC that is illegal or violates or infringes another’s rights, including intellectual property rights or privacy, publicity or moral rights. Company reserves the right to remove or delete any UGC in its discretion.
Feedback.
If you provide Company with any Feedback, you hereby grant Company a non-exclusive, fully-paid, royalty-free, irrevocable, perpetual, transferable, sublicensable license to reproduce, distribute, modify, prepare derivative works based on, publicly perform, publicly display, make, have made, use, sell, offer to sell, import, and otherwise exploit that Feedback for any purposes, for all current and future methods and forms of exploitation in any country. If any such rights may not be licensed under applicable law (such as moral and other personal rights), you hereby waive and agree not to assert all such rights. You understand and agree that Company is not required to make any use of any Feedback that you provide. You agree that if Company makes use of your Feedback, Company is not required to credit or compensate you for your contribution. You represent and warrant that you have sufficient rights in any Feedback that you provide to Company to grant Company and other affected parties the rights described above. This includes but is not limited to intellectual property rights and other proprietary or personal rights.
Disclaimers and Limitation of Liability
The Software (including any Game Currency and Content) 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, Company 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. Any warranty against infringement that may be provided in Section 2-312 of the Uniform Commercial Code or in any other comparable statute is expressly disclaimed. Company 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, internet, 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 Company or its affiliates, licensors, suppliers, advertisers, sponsors, partners, agents or third party users, whether made in or on the Software or otherwise, creates any warranty. Your use of the Software is entirely at your own risk.
Company and its licensors make no promise or warranty that the game or software will work properly. You acknowledge and agree that Company 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.
Company 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.
Company is not liable for any delay or failure to perform resulting from any causes beyond our reasonable control. Further, Company 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.
Neither Company nor any of its parents, subsidiaries, affiliates, licensors, suppliers, advertisers, sponsors or partners, nor Company'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 (including any Game Currency of Content), even if company (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 company for all damages, losses and causes of action, whether in contract, tort (including, without limitation, negligence), strict liability or otherwise, will not exceed the total amounts you have paid (if any) to Company for the Software (including any Game Currency of Content) during the 12 months immediately preceding the events giving rise to such liability.
Without limiting the foregoing, Company will have no obligations, responsibilities and/or liabilities if any nonconformance or failure of, or error in, the Software (including any Game Currency of Content) is caused by: (a) use of any attachment, feature, hardware, software or device in connection with the Software not supplied by Company; (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 Company; 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.
Indemnification.
As a condition of your access to and use of the Software, you hereby agree to indemnify, defend, and hold Company, 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-Company 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 Company has notified you that Company believes such activities may result in infringement or otherwise violate the rights of Company or any third party; (d) any modifications to the Software made by you; (e) your breach or alleged breach of this Agreement; (f) your violation of any applicable law or the rights of any other person or (g) any act or omission by you in using the Software (including any Game Currency of Content).
Changes.
Company 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.
Company 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. Company may also impose limits on certain features or restrict your access to parts or all of the Software without notice or liability.
Term and Termination.
This Agreement commences on the date you indicate your acceptance of this EULA and will continue until termination in accordance with this Section.
This Agreement will 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 Company’s customer support department a request to permanently delete all account information linked to you. Company may terminate this Agreement in the event that you fail to comply with the terms and conditions contained in this Agreement or the terms and conditions contained in the Terms of Service. Without limiting the foregoing, Company 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.
Upon the expiration or termination of this Agreement, all rights and licenses granted to you under this Agreement will immediately terminate. Upon termination or expiration of this Agreement, you will, at your sole expense, return to Company (or destroy, at Company'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 will not act as a waiver of any breach of this Agreement and will not act as a release of your liability for breach of your obligations under this Agreement. Company will not be liable to you for damages of any kind solely as a result of terminating this Agreement in accordance with its terms. Company's termination of this Agreement will be without prejudice to any other right or remedy that it may have at law or in equity, and will not relieve you of breaches occurring prior to the effective date of such termination. The provisions of Sections 2, 5-16, 18 and 19 will survive the expiration or any termination of this Agreement.
Dispute Resolution
Any Dispute not resolved informally must be submitted to binding arbitration (except for those specifically excepted below). Arbitration of a Dispute shall be a final and binding determination on you and Company. You should review this provision carefully. This arbitration provision limits your and Company’s ability to litigate claims in court and you and Company each agree to waive our respective rights to a jury trial. 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. 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 that you and company are giving up the right to sue in court and to have a trial before a judge or jury.
You and Company agree that any arbitration shall be limited to the Dispute between Company and you individually. You acknowledge and agree that: (a) 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 Company; (b) There is no right or authority for any dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) 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.
You and Company agree that the following Disputes are not subject to the above provisions concerning negotiations and binding arbitration: any Disputes in countries that prohibit by law submission of Disputes to binding arbitration; any Disputes seeking to enforce or protect, or concerning the validity of, any of your or Company’s intellectual property rights; any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use; any claim for injunctive relief; any claim within the jurisdictional limits of the small claims courts; and 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.
Any arbitration shall be initiated in Wake County, North Carolina, United States of America. Any Dispute not subject to arbitration shall be decided by a court of competent jurisdiction within Wake County, North Carolina, United States of America, and you and Company agree to submit to the personal jurisdiction of that court.
You agree that this Agreement shall be deemed to have been made and executed in the North Carolina, U.S.A., and any Dispute arising under this Agreement shall be resolved in accordance with the law of North Carolina. You agree that any claim not subject to arbitration asserted in any legal proceeding by you against Company shall be commenced and maintained exclusively in any state or federal court located in Wake County, North Carolina, 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
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.
If any portion of this Section 13 is found illegal or unenforceable, such portion shall be severed and the remainder of this Section 13 shall be given full force and effect. Any Dispute subject to any such portion of this Section 13 shall be decided by the arbitrator.
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 Company. Company may assign, license, delegate or otherwise transfer its rights or obligations under this Agreement 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.
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 under this Agreement operate as a waiver of any right or remedy.
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.
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.
Government Matters.
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. 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.
Entire Agreement.
This Agreement (together with the Terms of Service) 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.
Definitions.
For purposes of this Agreement, the following terms have the following meanings (terms capitalized but not defined in this Agreement have the meaning given to them in our Terms of Service):
“Documentation” means the online, electronic or printed user guides and other documentation which Company 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.
“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.
“Game” means the game provided or serviced by Company, including the one to which this Agreement is appended.
“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.
“Service” means the web sites provided by Company, its agents, designees, vendors or service providers and all related services and products, including, without limitation, Games(including Game Currency and Content) hosted on servers controlled by Company, its agents, designees, vendors or service providers that are made available through the Internet for remote use by third parties.
“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. Software specifically includes all Game Currency and Content for which you have paid the associated fee or otherwise acquired a license.
“Term” has the meaning set forth in Section 12.
“Terms of Service” means Company's Terms of Service for the Service located at http://bosskey.com/terms-of-use/, as may be amended by Company from time to time.
“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 under this Agreement by Company to you during the Term.
© 2018 Boss Key Productions Inc. - All Rights Reserved
Effective Date: April 7, 2018
This end user license agreement (this “Agreement”) is entered into between Boss Key Productions, Inc. (“Company”) and you (“You” or “Your”). You should read this agreement carefully and ensure you understand it. By downloading or using the Software, or by otherwise indicating your acceptance of this Agreement, you are agreeing to be bound by the terms of this Agreement. If you do not or cannot agree to the terms of this Agreement, please do not download or use this Software.
Certain words and phrases are defined to have specific meanings under this Agreement. Those definitions are below in Section 20.
Ownership; License Grant.
As between Company and you, Company owns and will 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 Company to evidence, maintain, enforce or defend the foregoing rights. You will not take any action to jeopardize, encumber, limit or interfere in any manner with Company's ownership of and rights with respect to the Software, or any Derivative Work or Update of or to the Software. You have only those rights in and to the Software and any Derivative Work or Update as are expressly granted to you under this Agreement.
Subject to the terms and conditions of this Agreement, Company hereby grants you a non-exclusive, nontransferable, nonsublicensable, limited right and license, during the Term, to: (i) Install a copy of the Software on one or more computers under your legitimate control; (ii) Access and use the Software, solely in accordance with this Agreement, the Documentation and solely for your own personal, non-commercial, entertainment purposes.
Except as set forth in this Section, Company grants you no other right or license of any kind to you under this Agreement with respect to the Software. Title to the Software is not transferred to you. You may own the medium on which the Software is recorded, but Company retains all right, title and interest in and to the Software, and all Intellectual Property Rights therein.
License Conditions
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.
You may not do any of the following with respect to the Software or any of its parts: (a) use it commercially or for a promotional purpose; (b) use it on more than one device at a time; (c) copy, reproduce, distribute, display, or use it in a way that is not expressly authorized in this Agreement; (d) sell, rent, lease, license, distribute, or otherwise transfer it; (e) reverse engineer, derive source code from, modify, adapt, translate, decompile, or disassemble it or make derivative works based on it; (f) remove, disable, circumvent, or modify any proprietary notice or label or security technology included in it; (g) create, develop, distribute, or use any unauthorized software programs to gain advantage in any online or other game modes; (h) use it to infringe or violate the rights of any third party, including but not limited to any intellectual property, publicity, or privacy rights; (i) use, export, or re-export it in violation of any applicable law or regulation; or (j) behave in a manner which is detrimental to the enjoyment of the Software by other users as intended by Company, in Company’s sole judgment, including but not limited to the following – harassment, use of abusive or offensive language, game abandonment, game sabotage, spamming, social engineering, or scamming.
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, if prompted to install anti-cheat software during your installation or use of the Software, you agree to install such anti-cheat software (if you do not agree to install the anti-cheat software or at anytime remove, disable or circumvent the anti-cheat software, the license granted to you under this agreement automatically terminates) and agree that the anti-cheat software may collect and transmit details about your account, gameplay and other programs and services on your computer to third parties for the purposes of ensuring fair play within the Software; and
You will comply with all requirements and obligations of the Terms of Service, which is specifically incorporated into this Agreement and is made a part hereof.
Game Accounts; Use of the Service.
To play the Game(s), you may be required to create and maintain an account, and, in some cases, a platform specific account (e.g., an account with Valve Corporation if the Game is distributed through Steam).
Creation and use of Company IDs, and subsequent use of are subject to the following terms and conditions: (a) When you create or update a Company ID, you must provide Company with accurate and up to date information that is personal to you, such as your name, address, phone number, and email address. Company’s retention of your personal information is subject to Company’s Privacy Policy, located at http://bosskey.com/privacy-policy/. (b) Your use of the Games to interact with Company and other players is governed by Company’s Terms of Service. The Terms of Service are not meant to be exhaustive. (c) You agree to pay all fees and applicable taxes incurred by you or anyone using your Company ID. Company may revise the pricing for the goods and services offered in connection with the Games at any time.
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.
Updates.
During the Term, Company may provide you with Updates as they are made generally available by Company. You acknowledge and agree that Company 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 Company will be deemed part of the Software and subject to the terms and conditions of this Agreement. Some updates may be required in order for you to continue to use the Software. You acknowledge that your use of the Software or Services does not confer on you any interest, monetary or otherwise, in any aspect or feature of the Software or Services, including but not limited to any in-game rewards, achievements, character levels, Game Currency, or Content. You also acknowledge that any character data, game progress, game customization or other data related to your use of the Software or Services may cease to be available to you at any time without notice from Company, including without limitation after a patch, Update, or upgrade is applied by Company.
Game Currency and Content
Company may offer licenses to in-game currency (“Game Currency,” which may be referred to as currency, gems, Rad Gems, points or any other name) or Content, such as by: (a) a limited license to use Game Currency, (b) earning a limited license to use Game Currency by performing or accomplishing specific tasks, objectives or achievements in the Software (which may be tracked by Company), or (c) purchasing for a fee, exchanging Game Currency for, or earning a limited license to use Content. Game Currency may be exchangeable solely inside the Game for other Content. Company may facilitate the exchange of certain Content through the Software, in some cases for a fee. You may only use Game Currency or Content if you pay the associated fee (if any). When you earn or pay the fee to obtain Game Currency or Content, you are obtaining or purchasing from Company the right to have your license to the Software include that Game Currency or Content. Regardless of any references Company may make outside this Agreement to purchasing or selling Game Currency or Content, both Game Currency and Content are licensed, not sold, to you under the License. Use of your account to purchase Game Currency or Content is subject to the Terms of Service.
Neither Game Currency nor Content are redeemable for money or monetary value unless otherwise required by applicable law. Game Currency and Content do not have an equivalent value in real currency and do not act as a substitute for real currency. Neither Company nor any other person or entity has any obligation to exchange Game Currency or Content for anything of value, including, but not limited to, real currency. You agree that Company may engage in actions that may impact the perceived value or purchase price, if applicable, of Game Currency and Content at any time, except as prohibited by applicable law.
All purchases of Game Currency and Content are final and are not refundable, transferable, or exchangeable under any circumstances, except as otherwise required by applicable law. Company, in its sole discretion, may impose limits on the amount of Game Currency or Content that may be purchased, earned, accumulated, redeemed or otherwise used.
Except as otherwise prohibited by applicable law, Company, in its sole discretion, has the absolute right to manage, modify, substitute, replace, suspend, cancel or eliminate Game Currency or Content, including your ability to access or use Game Currency or Content, without notice or liability to you. You may not transfer, sell, gift, exchange, trade, lease, sublicense, or rent Game Currency or Content except within the Software and as expressly permitted by Company. Except as otherwise prohibited by applicable law, Company reserves and retains all rights, title, and interest in and to the Game Currency and Content. The license to Game Currency and Content under the License will terminate upon termination of the License and as otherwise provided in this Agreement.
When you provide payment information to Company’s authorized processor, you represent that you are an authorized user of the payment card, PIN, key, account or other payment method specified by you, and you authorize Company to charge such payment method for the full amount of the transaction.
Monitoring of the Service.
Company has 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. Company has 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 Company policy; (c) to protect Company’s legal rights and remedies; (d) to protect the health or safety of anyone that Company believes may be threatened; or (e) to report a crime or other offensive behavior.
When running, the Software may monitor your computer’s random access memory for unauthorized third party programs running concurrently with the Game. An “unauthorized third party program” is any third party software prohibited by section 2, above. In the event that the Software or any third party add on to the Software required by the Company detects an unauthorized third party program, (a) the Software may communicate information back to the Company, including, without limitation, your account information, details about the program detected, and the time and date and/or (b) Company may exercise any or all of its rights under this Agreement, with or without notice to you. Certain Games may include a tool that will allow your computer system to forward information to Company in the event that the Game crashes, including system and driver data, and consent to Company being able to receive this data.
User Generated Content.
“UGC” means any content that you create, generate, or make available through the Software or the Services, including chat posts, character data, game customization, in-game creations, and screenshots. You hereby grant to Company a non-exclusive, fully-paid, royalty-free, irrevocable, perpetual, transferable, and sublicensable license to use, copy, modify, adapt, distribute, and publicly display your UGC. You may not create, generate, or make available through the Software of the Services any UGC to which you do not have the right to grant Company such license. In addition, you may not create, generate, or make available through the Software of the Services any UGC that is illegal or violates or infringes another’s rights, including intellectual property rights or privacy, publicity or moral rights. Company reserves the right to remove or delete any UGC in its discretion.
Feedback.
If you provide Company with any Feedback, you hereby grant Company a non-exclusive, fully-paid, royalty-free, irrevocable, perpetual, transferable, sublicensable license to reproduce, distribute, modify, prepare derivative works based on, publicly perform, publicly display, make, have made, use, sell, offer to sell, import, and otherwise exploit that Feedback for any purposes, for all current and future methods and forms of exploitation in any country. If any such rights may not be licensed under applicable law (such as moral and other personal rights), you hereby waive and agree not to assert all such rights. You understand and agree that Company is not required to make any use of any Feedback that you provide. You agree that if Company makes use of your Feedback, Company is not required to credit or compensate you for your contribution. You represent and warrant that you have sufficient rights in any Feedback that you provide to Company to grant Company and other affected parties the rights described above. This includes but is not limited to intellectual property rights and other proprietary or personal rights.
Disclaimers and Limitation of Liability
The Software (including any Game Currency and Content) 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, Company 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. Any warranty against infringement that may be provided in Section 2-312 of the Uniform Commercial Code or in any other comparable statute is expressly disclaimed. Company 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, internet, 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 Company or its affiliates, licensors, suppliers, advertisers, sponsors, partners, agents or third party users, whether made in or on the Software or otherwise, creates any warranty. Your use of the Software is entirely at your own risk.
Company and its licensors make no promise or warranty that the game or software will work properly. You acknowledge and agree that Company 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.
Company 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.
Company is not liable for any delay or failure to perform resulting from any causes beyond our reasonable control. Further, Company 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.
Neither Company nor any of its parents, subsidiaries, affiliates, licensors, suppliers, advertisers, sponsors or partners, nor Company'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 (including any Game Currency of Content), even if company (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 company for all damages, losses and causes of action, whether in contract, tort (including, without limitation, negligence), strict liability or otherwise, will not exceed the total amounts you have paid (if any) to Company for the Software (including any Game Currency of Content) during the 12 months immediately preceding the events giving rise to such liability.
Without limiting the foregoing, Company will have no obligations, responsibilities and/or liabilities if any nonconformance or failure of, or error in, the Software (including any Game Currency of Content) is caused by: (a) use of any attachment, feature, hardware, software or device in connection with the Software not supplied by Company; (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 Company; 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.
Indemnification.
As a condition of your access to and use of the Software, you hereby agree to indemnify, defend, and hold Company, 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-Company 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 Company has notified you that Company believes such activities may result in infringement or otherwise violate the rights of Company or any third party; (d) any modifications to the Software made by you; (e) your breach or alleged breach of this Agreement; (f) your violation of any applicable law or the rights of any other person or (g) any act or omission by you in using the Software (including any Game Currency of Content).
Changes.
Company 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.
Company 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. Company may also impose limits on certain features or restrict your access to parts or all of the Software without notice or liability.
Term and Termination.
This Agreement commences on the date you indicate your acceptance of this EULA and will continue until termination in accordance with this Section.
This Agreement will 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 Company’s customer support department a request to permanently delete all account information linked to you. Company may terminate this Agreement in the event that you fail to comply with the terms and conditions contained in this Agreement or the terms and conditions contained in the Terms of Service. Without limiting the foregoing, Company 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.
Upon the expiration or termination of this Agreement, all rights and licenses granted to you under this Agreement will immediately terminate. Upon termination or expiration of this Agreement, you will, at your sole expense, return to Company (or destroy, at Company'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 will not act as a waiver of any breach of this Agreement and will not act as a release of your liability for breach of your obligations under this Agreement. Company will not be liable to you for damages of any kind solely as a result of terminating this Agreement in accordance with its terms. Company's termination of this Agreement will be without prejudice to any other right or remedy that it may have at law or in equity, and will not relieve you of breaches occurring prior to the effective date of such termination. The provisions of Sections 2, 5-16, 18 and 19 will survive the expiration or any termination of this Agreement.
Dispute Resolution
Any Dispute not resolved informally must be submitted to binding arbitration (except for those specifically excepted below). Arbitration of a Dispute shall be a final and binding determination on you and Company. You should review this provision carefully. This arbitration provision limits your and Company’s ability to litigate claims in court and you and Company each agree to waive our respective rights to a jury trial. 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. 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 that you and company are giving up the right to sue in court and to have a trial before a judge or jury.
You and Company agree that any arbitration shall be limited to the Dispute between Company and you individually. You acknowledge and agree that: (a) 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 Company; (b) There is no right or authority for any dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) 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.
You and Company agree that the following Disputes are not subject to the above provisions concerning negotiations and binding arbitration: any Disputes in countries that prohibit by law submission of Disputes to binding arbitration; any Disputes seeking to enforce or protect, or concerning the validity of, any of your or Company’s intellectual property rights; any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use; any claim for injunctive relief; any claim within the jurisdictional limits of the small claims courts; and 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.
Any arbitration shall be initiated in Wake County, North Carolina, United States of America. Any Dispute not subject to arbitration shall be decided by a court of competent jurisdiction within Wake County, North Carolina, United States of America, and you and Company agree to submit to the personal jurisdiction of that court.
You agree that this Agreement shall be deemed to have been made and executed in the North Carolina, U.S.A., and any Dispute arising under this Agreement shall be resolved in accordance with the law of North Carolina. You agree that any claim not subject to arbitration asserted in any legal proceeding by you against Company shall be commenced and maintained exclusively in any state or federal court located in Wake County, North Carolina, 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
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.
If any portion of this Section 13 is found illegal or unenforceable, such portion shall be severed and the remainder of this Section 13 shall be given full force and effect. Any Dispute subject to any such portion of this Section 13 shall be decided by the arbitrator.
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 Company. Company may assign, license, delegate or otherwise transfer its rights or obligations under this Agreement 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.
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 under this Agreement operate as a waiver of any right or remedy.
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.
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.
Government Matters.
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. 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.
Entire Agreement.
This Agreement (together with the Terms of Service) 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.
Definitions.
For purposes of this Agreement, the following terms have the following meanings (terms capitalized but not defined in this Agreement have the meaning given to them in our Terms of Service):
“Documentation” means the online, electronic or printed user guides and other documentation which Company 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.
“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.
“Game” means the game provided or serviced by Company, including the one to which this Agreement is appended.
“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.
“Service” means the web sites provided by Company, its agents, designees, vendors or service providers and all related services and products, including, without limitation, Games(including Game Currency and Content) hosted on servers controlled by Company, its agents, designees, vendors or service providers that are made available through the Internet for remote use by third parties.
“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. Software specifically includes all Game Currency and Content for which you have paid the associated fee or otherwise acquired a license.
“Term” has the meaning set forth in Section 12.
“Terms of Service” means Company's Terms of Service for the Service located at http://bosskey.com/terms-of-use/, as may be amended by Company from time to time.
“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 under this Agreement by Company to you during the Term.
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