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ILLFONIC LLC. PC and Online Software License Agreement
1. READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE INSTALLING AND USING THIS SOFTWARE ON YOUR PERSONAL COMPUTER. THIS SOFTWARE LICENSE AGREEMENT (“AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU (AN INDIVIDUAL OR A SINGLE ENTITY, "YOU") ON THE ONE HAND, AND ILLFONIC LLC. AND ITS SUBSIDIARIES AND AFFILIATES (COLLECTIVELY REFERRED TO AS "ILLFONIC") ON THE OTHER HAND, FOR THE SOFTWARE PRODUCT ACCOMPANIED BY THIS AGREEMENT, WHICH INCLUDES COMPUTER SOFTWARE, WHICH MAY INCLUDE USER GENERATED CONTENT CREATION TOOLS, AND ANY ASSOCIATED MEDIA, PRINTED MATERIALS, AND/OR "ONLINE" OR ELECTRONIC DOCUMENTATION (TOGETHER CALLED THE "SOFTWARE"). BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE (OR, IN THE EVENT YOU HAVE PURCHASED THE SOFTWARE AS CONTAINED ON A PHYSICAL MEDIA, BY OPENING THE PACKAGING MATERIALS THEREOF), YOU ACKNOWLEDGE THAT YOU HAVE READ THIS SOFTWARE LICENSE AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS. THE SOFTWARE IS LICENSED, NOT SOLD, TO YOU FOR USE ONLY UNDER THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS SOFTWARE LICENSE AGREEMENT, DO NOT INSTALL OR USE THE SOFTWARE AND DESTROY AND/OR DELETE ALL COPIES IN YOUR POSSESSION.
2. Subject to the terms of this Agreement, ILLFONIC grants You a non-exclusive, non-transferable license to use one copy of the Software and/or, if applicable, to use the Software for play online through an authorized online service in the country in which You acquired the Software for Your own personal, non-commercial use, but ILLFONIC retains all property rights in the Software and all copies thereof. All other rights are expressly reserved by ILLFONIC or its licensors. There is no license to download game content other than what is necessary to facilitate game play and create and share User Generated Content (as defined below). You may use the Software on any (i) supported computer configuration, provided the Software is used on only one (1) such computer; and (ii) permanently transfer the Software on any supported computer configuration only and its documentation to another user provided You retain no copies and the recipient agrees to the terms of this Agreement. You may not transfer, distribute, rent, sub-license, or lease the Software or documentation, except as provided herein; or alter, modify, or adapt the Software or documentation, or any portions thereof.
3. You acknowledge that the Software in source code form remains a confidential trade secret of ILLFONIC. You agree not to modify or attempt to reverse engineer, decompile, or disassemble the Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. You further acknowledge that the Software may contain functions for collecting and tracking information related to Your use of the Software. ILLFONIC reserves the right to compile, save and use such information within the scope of ILLFONIC’s business activities, and analyze any and all of Your data (online registration data, stats, etc.). All information collected by ILLFONIC is intended to be anonymous and to not include any identifying or personal information. However, if You include personal information (such as Your real name) in data collected by ILLFONIC (such as Your user ID), You hereby acknowledge that said personal information will be, and expressly permit such personal information to be, used as described herein. The data collected by ILLFONIC may be posted on websites accessible to the public; shared with console manufacturers, Software developers, and/or marketing partners; or used by ILLFONIC for any other lawful purpose. By using this Software You consent to ILLFONIC’s use of the data ILLFONIC collects, including the public display of information such as Your user ID, Your user created content or any other gameplay data. Do not use the Software if You do not want ILLFONIC to use Your user data in this manner.
4. OWNERSHIP: All right, title, interest and intellectual property rights in and to the Software (including but not limited to any titles, computer code, themes, objects, characters, character names, stories, dialogue, catch phrases, locations, concepts, artwork, images, photographs, animations, video, sounds, audio-visual effects, music, musical compositions, text and "applets" incorporated into the Software), the accompanying printed materials, and any copies of the Software, are owned by ILLFONIC or its licensors. This Agreement grants You no rights to use such content other than as part of the Software. All rights not expressly granted under this Agreement are reserved by ILLFONIC.
5. This Agreement is effective upon Your installation of the Software (or, in the case of a copy contained on a physical media, upon opening the packaging materials thereof) and shall continue until revoked by ILLFONIC or until You breach any term hereof. Upon revocation, breach, or termination You agree to destroy and/or delete all copies of the Software in Your possession.
6. You agree that You shall not:
(a) Modify, copy, reproduce or distribute, in whole or in part, by any means, the Software;
(b) Merge the Software into another program (except to the extent the Software is made to operate within a computer operating system and in connection with other computer program) or create;
(c) Create derivative works based upon the Software;
(d) Attempt to circumvent any technical protection measures used in connection with the Software;
(e) Make a copy of this Software or any part thereof, except as expressed in this Agreement;
(f) Make this Software available on any network for use or download by others;
(g) Display or use this Software in a public performance;
(h) Use or copy the Software on or to a console at a commercial location;
(i) Use the Software for a commercial purpose, except as expressly licensed in writing by ILLFONIC;
(j) Distribute, lease, license, sell, rent or otherwise transfer or assign this Software without the express prior written consent of ILLFONIC, or as expressed in this Agreement;
(k) Remove or modify any proprietary notices, marks or labels contained on or within the Software or on any packaging thereof; or
(l) Modify or attempt to reverse engineer, decompile, or disassemble the Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
7. The Software may not be downloaded or otherwise exported or re-exported into (or to a national or resident of) any country to which the U.S. has embargoed goods or to anyone on the U.S. Treasury Department list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. If You do not meet these criteria or are not sure, do not install the Software and destroy any copies in Your possession. If You live in such a country, no license is granted hereunder.
8. You are responsible for assessing Your own computer and the results to be obtained therefrom. EXCEPT AS SET FORTH IN ANY EXPRESS WARRANTY BY ILLFONIC, YOU EXPRESSLY AGREE THAT USE OF THE SOFTWARE IS AT YOUR SOLE RISK. THE SOFTWARE IS PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS, UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. ILLFONIC AND ITS LICENSORS DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, REGARDING THE SOFTWARE. ILLFONIC AND ITS LICENSORS ASSUME NO RESPONSIBILITY FOR ANY DAMAGES SUFFERED BY YOU, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, ITEMS OR OTHER MATERIALS FROM ERRORS OR OTHER MALFUNCTIONS CAUSED BY ILLFONIC, ITS LICENSORS, LICENSEE AND/OR SUBCONTRACTORS, OR BY YOUR OR ANY OTHER PARTICIPANT'S OWN ERRORS AND/OR OMISSIONS. ILLFONIC and its licensors make no warranty with respect to any related software or hardware used or provided by ILLFONIC in connection with the Software except as may be expressly set forth above.
9. LIMITATION OF LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT ILLFONIC AND ITS LICENSORS SHALL NOT ASSUME OR HAVE ANY LIABILITY FOR ANY ACTION BY ILLFONIC OR ITS CONTENT PROVIDERS, OTHER PARTICIPANTS OR OTHER LICENSORS WITH RESPECT TO CONDUCT, COMMUNICATION OR CONTENT OF THE SOFTWARE. ILLFONIC AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES RESULTING FROM POSSESSION, USE, OR MALFUNCTION OF THE SOFTWARE, INCLUDING DAMAGES TO PROPERTY, LOSS OF GOODWILL, COMPUTER FAILURE OR MALFUNCTION AND, TO THE EXTENT PERMITTED BY LAW, DAMAGES FOR PERSONAL INJURIES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS EXPRESSLY PROVIDED HEREIN, ILLFONIC'S AND ITS LICENSORS’ ENTIRE LIABILITY TO YOU AND YOUR EXCLUSIVE REMEDY FOR ANY BREACH OF THIS AGREEMENT IS LIMITED SOLELY TO THE TOTAL AMOUNT PAID BY YOU FOR THE SOFTWARE, IF ANY. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN DAMAGES, IN SUCH STATES ILLFONIC'S AND ITS LICENSORS’ LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.
10. USER GENERATED CONTENT. This Software may include tools that give you the ability to communicate with other players and may allow you to create, post, and distribute various forms of content for and in connection with the Software, including but not limited to pictures, game-related materials and other information (individually and collectively, “User Generated Content”). You acknowledge that ILLFONIC and the other creators of User Generated Content have rights in their respective content under copyright and other applicable laws, and that except as expressly described in this Agreement, such rights are not licensed or otherwise transferred to you. You accept full responsibility and liability for your use of any User Generated Content in violation of any such rights.
(a) You agree that you will not create, transfer, share, send, submit or upload any User Generated Content that:
(i) is protected by copyright, patent, trademark, or trade secret or otherwise subject to third-party proprietary rights, including but not limited to rights of privacy and publicity (unless you are or have permission from the rightful owner);
(ii) contains fraudulent statements or misrepresentations that could damage ILLFONIC or any third party;
(iii) contains any statements or materials that disparage, ridicule or scorn ILLFONIC or any third party;
(iv) is obscene, defamatory, threatening, harassing, predatory, pornographic, hateful, racially or ethnically offensive, or encourages conduct that would violate any law or is otherwise inappropriate;
(v) is an advertisement or solicitation of business;
(vi) is an impersonation of another person; or
(vii) violates the “Online” section or any other terms of this Agreement, or any other terms related to this game.
(b) You agree that ILLFONIC and its Licensors are not responsible or liable for User Generated Content submitted or posted by you or by others. ILLFONIC and its Licensors do not claim ownership of any User Generated Content that you submit or make available as part of the game, and ILLFONIC and its Licensors expressly disclaim any and all liability in connection with any User Generated Content. ILLFONIC has no duty to pre-screen User Generated Content.
(b) ILLFONIC has the right to edit, remove, block or refuse to post any submitted User Generated Content from any network or Internet site for any reason without prior notice, but assumes no obligation to do so and is not responsible for any failure or delay in doing so. You hereby appoint ILLFONIC as your attorney-in-fact to request from third parties removal under the Digital Millennium Copyright Act or other applicable law or basis, in ILLFONIC's discretion, of any of your User Generated Content posted on a third party network or Internet site. You agree to not contest ILLFONIC's request for removal of your User Generated content from such network or Internet site. You also agree to execute all documents, as requested by ILLFONIC, to effect such removal.
(c) The game and/or its associated website and/or web pages may permit you to share your User Generated Content with or through third party websites. ILLFONIC has not evaluated any third party websites through which you can share User Generated Content or their terms and conditions. Any third party websites through which you can share your User Generated Content are not owned by or affiliated with ILLFONIC and we have no control over and assume no responsibility for the content, safety, privacy policies or practices of these websites. You expressly release ILLFONIC of any and all liability arising from your use of any third party websites used to share your User Generated Content.
11. ILLFONIC'S LICENSE OF USER GENERATED CONTENT
(a) By posting, transferring, sharing or sending User Generated Content in any manner, you hereby grant ILLFONIC, its affiliates, licensors and distributors and other users of the game a non-exclusive, worldwide, fully paid-up, transferrable, irrevocable, royalty-free and perpetual license to modify, adapt, translate, create derivative works from, and perform and display your User Generated Content;
(b) By submitting or uploading User Generated Content in any manner to ILLFONIC, you hereby grant ILLFONIC, its affiliates, licensors and distributors a non-exclusive, worldwide, fully paid-up, transferable, irrevocable, royalty-free and perpetual license to publish and distribute your User Generated Content (for free or for profit) and to use your User Generated Content for marketing and promotional purposes in conjunction with the game or any other aspect of ILLFONIC's business; and
(c) You hereby: (i) Acknowledge that you have received good and valuable consideration from ILLFONIC for the license of the rights in your User Generated Content under this Agreement; (ii) Agree that your creation or distribution of User Generated Content is not in any way based upon any expectation of compensation from ILLFONIC, its affiliates, licensors or distributors; (iii) Agree that ILLFONIC, its affiliates, licensors and distributors may, but are not required to, use your name, username, or applicable trademarks in connection with the distribution of your User Generated Content; and (iv) Warrant and represent that: (A) you created your User Generated Content; (B) you have all necessary rights to your User Generated Content to fulfill your obligations under this Agreement; and (C) your User Generated Content does not infringe on the intellectual property or other rights of any third party and is not obscene, defamatory, offensive or an advertisement or solicitation of business.
12. INJUNCTION. Because ILLFONIC would be irreparably damaged if the terms of this License Agreement were not specifically enforced, You agree that ILLFONIC 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 ILLFONIC may otherwise have under applicable laws.
13. INDEMNITY. At ILLFONIC's request, You agree to defend, indemnify and hold harmless ILLFONIC, its subsidiaries, affiliates, contractors, officers, directors, employees, agents, licensors, licensees, distributors, developers, content providers, and other users of the Software or User Generated Content, from all damages, losses, liabilities, claims and expenses, including attorneys' fees, arising directly or indirectly from Your acts and omissions to act in using the Software pursuant to the terms of this License Agreement or any breach of this License Agreement by You. ILLFONIC reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You hereunder, and in such event, You shall have no further obligation to provide indemnification for such matter.
14. 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 ILLFONIC LLC, 29903 Agoura Road, Agoura Hills, CA 91301.
15. TERMINATION. Without prejudice to any other rights of ILLFONIC, this License Agreement and Your right to use the Software may automatically terminate without notice from ILLFONIC if You fail to comply with any provision of this Agreement or any terms and conditions associated with the Software. In such event, You must destroy all copies of this Software and all of its component parts.
16. ONLINE. ILLFONIC makes no guarantees regarding the availability of online play, and may modify or discontinue online service in its discretion without notice, including, for example, ceasing online service for economic reasons due to a limited number of players continuing to make use of the service over time. ILLFONIC may deny You access, at ILLFONIC’s discretion, to online services, updates, or patches to the Software, should You violate of any of the terms or provisions of this Agreement. You may not interfere with or attempt to disable or circumvent any online access control measures, security features, or technical protection measures put in place by ILLFONIC. Should You use the online version of this game we will not ask You for any personally identifying information. You should avoid saying anything personally identifying in chat. You agree that ILLFONIC has no liability for any violation of this Agreement by You or by any other player.
(a) When You play, You agree to be respectful of Your fellow players and never to engage in any behavior that would be abusive or offensive to other players, disruptive of the game experience, fraudulent or otherwise illegal. This includes but is not limited to:
(i) Harassing or intimidating other players while chatting or playing this game online or using information obtained while chatting or playing this game to harass or intimidate fellow players outside of the game;
(ii) Using language, selecting names or creating any other content that is racially, ethnically or religiously offensive, sexually abusive, obscene or defamatory, and any content that is commercial in nature such as advertisements, solicitations and promotions for goods or services;
(iii) Using a player name that is the real name of any other person;
(iv) Violating any local, state or national law including but not limited to laws related to copyright, trademark, defamation, invasion of privacy and identity theft.
(b) ILLFONIC may retrieve information about Your hardware and software for authentication, copy protection, account blocking, system monitoring/diagnostics rule enforcement, game management and other purposes.
(c) You acknowledge that you have no expectation of privacy or confidentiality in any personal or other information you may intentionally or unintentionally disclose as part of the interactions associated with the Software. You should avoid sharing any personally identifiable information when playing the Software or interacting online.
17. GENERAL PROVISIONS. You may not use, copy, modify, sublicense, rent, sell, assign or transfer the rights or obligations granted to You in this Agreement, except as expressly provided in this Agreement. Any assignment in violation of this Agreement is void. Any violation of any of the provisions or terms of this Agreement by You may subject You to civil and criminal penalties in the United States and/or Your local country, at the discretion of ILLFONIC, and per relevant local laws. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable, and such decision shall not affect the enforceability of: (i) such provision under other circumstances, or (ii) the remaining provisions hereof under all circumstances. ILLFONIC's failure to enforce at any time any of the provisions of this Agreement shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by ILLFONIC of any provision, condition or requirement of this Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement. Notwithstanding anything else in this Agreement, no default, delay or failure to perform on the part of ILLFONIC shall be considered a breach of this Agreement if such default, delay or failure to perform is shown to be due to causes beyond the reasonable control of ILLFONIC. This Agreement shall be governed by the laws of the State of California and the United States without regard to its conflicts of laws rules and You consent to the exclusive jurisdiction of the state and federal courts in Los Angeles County, California. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. This Agreement represents the complete agreement concerning this Software between You and ILLFONIC.
18. DOWNLOADABLE SOFTWARE ADDITIONAL LICENSE TERMS. If the Software or any related content is provided to You through a digital download or online store then those additional terms and conditions apply. This Agreement is solely between You and ILLFONIC, and not with any third party distributor. You must comply with the terms of use of any such third party program.
1. READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE INSTALLING AND USING THIS SOFTWARE ON YOUR PERSONAL COMPUTER. THIS SOFTWARE LICENSE AGREEMENT (“AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU (AN INDIVIDUAL OR A SINGLE ENTITY, "YOU") ON THE ONE HAND, AND ILLFONIC LLC. AND ITS SUBSIDIARIES AND AFFILIATES (COLLECTIVELY REFERRED TO AS "ILLFONIC") ON THE OTHER HAND, FOR THE SOFTWARE PRODUCT ACCOMPANIED BY THIS AGREEMENT, WHICH INCLUDES COMPUTER SOFTWARE, WHICH MAY INCLUDE USER GENERATED CONTENT CREATION TOOLS, AND ANY ASSOCIATED MEDIA, PRINTED MATERIALS, AND/OR "ONLINE" OR ELECTRONIC DOCUMENTATION (TOGETHER CALLED THE "SOFTWARE"). BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE (OR, IN THE EVENT YOU HAVE PURCHASED THE SOFTWARE AS CONTAINED ON A PHYSICAL MEDIA, BY OPENING THE PACKAGING MATERIALS THEREOF), YOU ACKNOWLEDGE THAT YOU HAVE READ THIS SOFTWARE LICENSE AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS. THE SOFTWARE IS LICENSED, NOT SOLD, TO YOU FOR USE ONLY UNDER THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS SOFTWARE LICENSE AGREEMENT, DO NOT INSTALL OR USE THE SOFTWARE AND DESTROY AND/OR DELETE ALL COPIES IN YOUR POSSESSION.
2. Subject to the terms of this Agreement, ILLFONIC grants You a non-exclusive, non-transferable license to use one copy of the Software and/or, if applicable, to use the Software for play online through an authorized online service in the country in which You acquired the Software for Your own personal, non-commercial use, but ILLFONIC retains all property rights in the Software and all copies thereof. All other rights are expressly reserved by ILLFONIC or its licensors. There is no license to download game content other than what is necessary to facilitate game play and create and share User Generated Content (as defined below). You may use the Software on any (i) supported computer configuration, provided the Software is used on only one (1) such computer; and (ii) permanently transfer the Software on any supported computer configuration only and its documentation to another user provided You retain no copies and the recipient agrees to the terms of this Agreement. You may not transfer, distribute, rent, sub-license, or lease the Software or documentation, except as provided herein; or alter, modify, or adapt the Software or documentation, or any portions thereof.
3. You acknowledge that the Software in source code form remains a confidential trade secret of ILLFONIC. You agree not to modify or attempt to reverse engineer, decompile, or disassemble the Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. You further acknowledge that the Software may contain functions for collecting and tracking information related to Your use of the Software. ILLFONIC reserves the right to compile, save and use such information within the scope of ILLFONIC’s business activities, and analyze any and all of Your data (online registration data, stats, etc.). All information collected by ILLFONIC is intended to be anonymous and to not include any identifying or personal information. However, if You include personal information (such as Your real name) in data collected by ILLFONIC (such as Your user ID), You hereby acknowledge that said personal information will be, and expressly permit such personal information to be, used as described herein. The data collected by ILLFONIC may be posted on websites accessible to the public; shared with console manufacturers, Software developers, and/or marketing partners; or used by ILLFONIC for any other lawful purpose. By using this Software You consent to ILLFONIC’s use of the data ILLFONIC collects, including the public display of information such as Your user ID, Your user created content or any other gameplay data. Do not use the Software if You do not want ILLFONIC to use Your user data in this manner.
4. OWNERSHIP: All right, title, interest and intellectual property rights in and to the Software (including but not limited to any titles, computer code, themes, objects, characters, character names, stories, dialogue, catch phrases, locations, concepts, artwork, images, photographs, animations, video, sounds, audio-visual effects, music, musical compositions, text and "applets" incorporated into the Software), the accompanying printed materials, and any copies of the Software, are owned by ILLFONIC or its licensors. This Agreement grants You no rights to use such content other than as part of the Software. All rights not expressly granted under this Agreement are reserved by ILLFONIC.
5. This Agreement is effective upon Your installation of the Software (or, in the case of a copy contained on a physical media, upon opening the packaging materials thereof) and shall continue until revoked by ILLFONIC or until You breach any term hereof. Upon revocation, breach, or termination You agree to destroy and/or delete all copies of the Software in Your possession.
6. You agree that You shall not:
(a) Modify, copy, reproduce or distribute, in whole or in part, by any means, the Software;
(b) Merge the Software into another program (except to the extent the Software is made to operate within a computer operating system and in connection with other computer program) or create;
(c) Create derivative works based upon the Software;
(d) Attempt to circumvent any technical protection measures used in connection with the Software;
(e) Make a copy of this Software or any part thereof, except as expressed in this Agreement;
(f) Make this Software available on any network for use or download by others;
(g) Display or use this Software in a public performance;
(h) Use or copy the Software on or to a console at a commercial location;
(i) Use the Software for a commercial purpose, except as expressly licensed in writing by ILLFONIC;
(j) Distribute, lease, license, sell, rent or otherwise transfer or assign this Software without the express prior written consent of ILLFONIC, or as expressed in this Agreement;
(k) Remove or modify any proprietary notices, marks or labels contained on or within the Software or on any packaging thereof; or
(l) Modify or attempt to reverse engineer, decompile, or disassemble the Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
7. The Software may not be downloaded or otherwise exported or re-exported into (or to a national or resident of) any country to which the U.S. has embargoed goods or to anyone on the U.S. Treasury Department list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. If You do not meet these criteria or are not sure, do not install the Software and destroy any copies in Your possession. If You live in such a country, no license is granted hereunder.
8. You are responsible for assessing Your own computer and the results to be obtained therefrom. EXCEPT AS SET FORTH IN ANY EXPRESS WARRANTY BY ILLFONIC, YOU EXPRESSLY AGREE THAT USE OF THE SOFTWARE IS AT YOUR SOLE RISK. THE SOFTWARE IS PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS, UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. ILLFONIC AND ITS LICENSORS DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, REGARDING THE SOFTWARE. ILLFONIC AND ITS LICENSORS ASSUME NO RESPONSIBILITY FOR ANY DAMAGES SUFFERED BY YOU, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, ITEMS OR OTHER MATERIALS FROM ERRORS OR OTHER MALFUNCTIONS CAUSED BY ILLFONIC, ITS LICENSORS, LICENSEE AND/OR SUBCONTRACTORS, OR BY YOUR OR ANY OTHER PARTICIPANT'S OWN ERRORS AND/OR OMISSIONS. ILLFONIC and its licensors make no warranty with respect to any related software or hardware used or provided by ILLFONIC in connection with the Software except as may be expressly set forth above.
9. LIMITATION OF LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT ILLFONIC AND ITS LICENSORS SHALL NOT ASSUME OR HAVE ANY LIABILITY FOR ANY ACTION BY ILLFONIC OR ITS CONTENT PROVIDERS, OTHER PARTICIPANTS OR OTHER LICENSORS WITH RESPECT TO CONDUCT, COMMUNICATION OR CONTENT OF THE SOFTWARE. ILLFONIC AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES RESULTING FROM POSSESSION, USE, OR MALFUNCTION OF THE SOFTWARE, INCLUDING DAMAGES TO PROPERTY, LOSS OF GOODWILL, COMPUTER FAILURE OR MALFUNCTION AND, TO THE EXTENT PERMITTED BY LAW, DAMAGES FOR PERSONAL INJURIES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS EXPRESSLY PROVIDED HEREIN, ILLFONIC'S AND ITS LICENSORS’ ENTIRE LIABILITY TO YOU AND YOUR EXCLUSIVE REMEDY FOR ANY BREACH OF THIS AGREEMENT IS LIMITED SOLELY TO THE TOTAL AMOUNT PAID BY YOU FOR THE SOFTWARE, IF ANY. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN DAMAGES, IN SUCH STATES ILLFONIC'S AND ITS LICENSORS’ LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.
10. USER GENERATED CONTENT. This Software may include tools that give you the ability to communicate with other players and may allow you to create, post, and distribute various forms of content for and in connection with the Software, including but not limited to pictures, game-related materials and other information (individually and collectively, “User Generated Content”). You acknowledge that ILLFONIC and the other creators of User Generated Content have rights in their respective content under copyright and other applicable laws, and that except as expressly described in this Agreement, such rights are not licensed or otherwise transferred to you. You accept full responsibility and liability for your use of any User Generated Content in violation of any such rights.
(a) You agree that you will not create, transfer, share, send, submit or upload any User Generated Content that:
(i) is protected by copyright, patent, trademark, or trade secret or otherwise subject to third-party proprietary rights, including but not limited to rights of privacy and publicity (unless you are or have permission from the rightful owner);
(ii) contains fraudulent statements or misrepresentations that could damage ILLFONIC or any third party;
(iii) contains any statements or materials that disparage, ridicule or scorn ILLFONIC or any third party;
(iv) is obscene, defamatory, threatening, harassing, predatory, pornographic, hateful, racially or ethnically offensive, or encourages conduct that would violate any law or is otherwise inappropriate;
(v) is an advertisement or solicitation of business;
(vi) is an impersonation of another person; or
(vii) violates the “Online” section or any other terms of this Agreement, or any other terms related to this game.
(b) You agree that ILLFONIC and its Licensors are not responsible or liable for User Generated Content submitted or posted by you or by others. ILLFONIC and its Licensors do not claim ownership of any User Generated Content that you submit or make available as part of the game, and ILLFONIC and its Licensors expressly disclaim any and all liability in connection with any User Generated Content. ILLFONIC has no duty to pre-screen User Generated Content.
(b) ILLFONIC has the right to edit, remove, block or refuse to post any submitted User Generated Content from any network or Internet site for any reason without prior notice, but assumes no obligation to do so and is not responsible for any failure or delay in doing so. You hereby appoint ILLFONIC as your attorney-in-fact to request from third parties removal under the Digital Millennium Copyright Act or other applicable law or basis, in ILLFONIC's discretion, of any of your User Generated Content posted on a third party network or Internet site. You agree to not contest ILLFONIC's request for removal of your User Generated content from such network or Internet site. You also agree to execute all documents, as requested by ILLFONIC, to effect such removal.
(c) The game and/or its associated website and/or web pages may permit you to share your User Generated Content with or through third party websites. ILLFONIC has not evaluated any third party websites through which you can share User Generated Content or their terms and conditions. Any third party websites through which you can share your User Generated Content are not owned by or affiliated with ILLFONIC and we have no control over and assume no responsibility for the content, safety, privacy policies or practices of these websites. You expressly release ILLFONIC of any and all liability arising from your use of any third party websites used to share your User Generated Content.
11. ILLFONIC'S LICENSE OF USER GENERATED CONTENT
(a) By posting, transferring, sharing or sending User Generated Content in any manner, you hereby grant ILLFONIC, its affiliates, licensors and distributors and other users of the game a non-exclusive, worldwide, fully paid-up, transferrable, irrevocable, royalty-free and perpetual license to modify, adapt, translate, create derivative works from, and perform and display your User Generated Content;
(b) By submitting or uploading User Generated Content in any manner to ILLFONIC, you hereby grant ILLFONIC, its affiliates, licensors and distributors a non-exclusive, worldwide, fully paid-up, transferable, irrevocable, royalty-free and perpetual license to publish and distribute your User Generated Content (for free or for profit) and to use your User Generated Content for marketing and promotional purposes in conjunction with the game or any other aspect of ILLFONIC's business; and
(c) You hereby: (i) Acknowledge that you have received good and valuable consideration from ILLFONIC for the license of the rights in your User Generated Content under this Agreement; (ii) Agree that your creation or distribution of User Generated Content is not in any way based upon any expectation of compensation from ILLFONIC, its affiliates, licensors or distributors; (iii) Agree that ILLFONIC, its affiliates, licensors and distributors may, but are not required to, use your name, username, or applicable trademarks in connection with the distribution of your User Generated Content; and (iv) Warrant and represent that: (A) you created your User Generated Content; (B) you have all necessary rights to your User Generated Content to fulfill your obligations under this Agreement; and (C) your User Generated Content does not infringe on the intellectual property or other rights of any third party and is not obscene, defamatory, offensive or an advertisement or solicitation of business.
12. INJUNCTION. Because ILLFONIC would be irreparably damaged if the terms of this License Agreement were not specifically enforced, You agree that ILLFONIC 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 ILLFONIC may otherwise have under applicable laws.
13. INDEMNITY. At ILLFONIC's request, You agree to defend, indemnify and hold harmless ILLFONIC, its subsidiaries, affiliates, contractors, officers, directors, employees, agents, licensors, licensees, distributors, developers, content providers, and other users of the Software or User Generated Content, from all damages, losses, liabilities, claims and expenses, including attorneys' fees, arising directly or indirectly from Your acts and omissions to act in using the Software pursuant to the terms of this License Agreement or any breach of this License Agreement by You. ILLFONIC reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You hereunder, and in such event, You shall have no further obligation to provide indemnification for such matter.
14. 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 ILLFONIC LLC, 29903 Agoura Road, Agoura Hills, CA 91301.
15. TERMINATION. Without prejudice to any other rights of ILLFONIC, this License Agreement and Your right to use the Software may automatically terminate without notice from ILLFONIC if You fail to comply with any provision of this Agreement or any terms and conditions associated with the Software. In such event, You must destroy all copies of this Software and all of its component parts.
16. ONLINE. ILLFONIC makes no guarantees regarding the availability of online play, and may modify or discontinue online service in its discretion without notice, including, for example, ceasing online service for economic reasons due to a limited number of players continuing to make use of the service over time. ILLFONIC may deny You access, at ILLFONIC’s discretion, to online services, updates, or patches to the Software, should You violate of any of the terms or provisions of this Agreement. You may not interfere with or attempt to disable or circumvent any online access control measures, security features, or technical protection measures put in place by ILLFONIC. Should You use the online version of this game we will not ask You for any personally identifying information. You should avoid saying anything personally identifying in chat. You agree that ILLFONIC has no liability for any violation of this Agreement by You or by any other player.
(a) When You play, You agree to be respectful of Your fellow players and never to engage in any behavior that would be abusive or offensive to other players, disruptive of the game experience, fraudulent or otherwise illegal. This includes but is not limited to:
(i) Harassing or intimidating other players while chatting or playing this game online or using information obtained while chatting or playing this game to harass or intimidate fellow players outside of the game;
(ii) Using language, selecting names or creating any other content that is racially, ethnically or religiously offensive, sexually abusive, obscene or defamatory, and any content that is commercial in nature such as advertisements, solicitations and promotions for goods or services;
(iii) Using a player name that is the real name of any other person;
(iv) Violating any local, state or national law including but not limited to laws related to copyright, trademark, defamation, invasion of privacy and identity theft.
(b) ILLFONIC may retrieve information about Your hardware and software for authentication, copy protection, account blocking, system monitoring/diagnostics rule enforcement, game management and other purposes.
(c) You acknowledge that you have no expectation of privacy or confidentiality in any personal or other information you may intentionally or unintentionally disclose as part of the interactions associated with the Software. You should avoid sharing any personally identifiable information when playing the Software or interacting online.
17. GENERAL PROVISIONS. You may not use, copy, modify, sublicense, rent, sell, assign or transfer the rights or obligations granted to You in this Agreement, except as expressly provided in this Agreement. Any assignment in violation of this Agreement is void. Any violation of any of the provisions or terms of this Agreement by You may subject You to civil and criminal penalties in the United States and/or Your local country, at the discretion of ILLFONIC, and per relevant local laws. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable, and such decision shall not affect the enforceability of: (i) such provision under other circumstances, or (ii) the remaining provisions hereof under all circumstances. ILLFONIC's failure to enforce at any time any of the provisions of this Agreement shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by ILLFONIC of any provision, condition or requirement of this Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement. Notwithstanding anything else in this Agreement, no default, delay or failure to perform on the part of ILLFONIC shall be considered a breach of this Agreement if such default, delay or failure to perform is shown to be due to causes beyond the reasonable control of ILLFONIC. This Agreement shall be governed by the laws of the State of California and the United States without regard to its conflicts of laws rules and You consent to the exclusive jurisdiction of the state and federal courts in Los Angeles County, California. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. This Agreement represents the complete agreement concerning this Software between You and ILLFONIC.
18. DOWNLOADABLE SOFTWARE ADDITIONAL LICENSE TERMS. If the Software or any related content is provided to You through a digital download or online store then those additional terms and conditions apply. This Agreement is solely between You and ILLFONIC, and not with any third party distributor. You must comply with the terms of use of any such third party program.