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THQ Inc. PC and Online Software License Agreement
1. READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE INSTALLING THIS SOFTWARE ON YOUR PERSONAL COMPUTER OR CONSOLE GAME FOR ONLINE USE. THIS SOFTWARE LICENSE AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU (AN INDIVIDUAL OR A SINGLE ENTITY "YOU") ON THE ONE HAND, AND THQ INC. AND ITS SUBSIDIARIES AND AFFILIATES (COLLECTIVELY REFERRED TO AS "THQ") ON THE OTHER HAND, FOR THE SOFTWARE PRODUCT ENTITLED "THE HAUNTED: HELL’S REACH," WHICH INCLUDES COMPUTER SOFTWARE AND ANY ASSOCIATED MEDIA, PRINTED MATERIALS, AND/OR "ONLINE" OR ELECTRONIC DOCUMENTATION (TOGETHER CALLED THE “GAME” OR THE "SOFTWARE"). BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE (OR, IN THE EVENT YOU HAVE PURCHASED THE SOFTWARE AS CONTAINED ON A DVD-ROM, 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 DELETE ALL COPIES IN YOUR POSSESSION.
2. Subject to the terms of this Agreement, THQ grants You a non-exclusive, non-transferable license to use one copy of the Software and/or to use the Software for play online in the country in which You acquired the Software for Your own personal, non-commercial use, but retains all property rights in the Software and all copies thereof. All other rights are expressly reserved by THQ or its Licensors. There is no license to download game content other than what is necessary to facilitate game play. You may: (i) use the Software on any supported computer configuration and/or console platform, 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 Product or documentation, or any portions thereof.
3. You acknowledge that the Software in source code form remains a confidential trade secret of THQ. 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 contains functions for collecting and tracking information related to Your use of the Software. THQ reserves the right to compile, save and use such information within the scope of THQ’s business activities, and analyze any and all of Your data (online registration data, stats, etc.). THQ intends to use such data for internal purposes only.
4. OWNERSHIP: All right, title and 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, dialog, 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 THQ 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 THQ.
5. This Agreement is effective upon Your installation of the Software and shall continue until revoked by THQ or until You breach any term hereof; upon termination You agree to destroy and/or delete all copies of the Software in Your possession.
6. You shall not modify the Software or merge the Software into another computer 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 derivative works based upon the Software.
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. 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. THQ 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. THQ 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 THQ, ITS LICENSORS, LICENSEE AND/OR SUBCONTRACTORS, OR BY YOUR OR ANY OTHER PARTICIPANT'S OWN ERRORS AND/OR OMISSIONS. THQ and its licensors make no warranty with respect to any related software or hardware used or provided by THQ in connection with the Software except as may be expressly set forth above. THQ expressly disclaims any and all technical support obligations with respect to any tools, editors or similar software programs included with the game software.
9. LIMITED DVD-ROM WARRANTY: Notwithstanding anything to the contrary contained herein, and solely with respect to Software distributed on DVD-ROM, THQ warrants to the original consumer purchaser of this Software on DVD-ROM that the recording medium on which the Software is recorded will be free from defects in material and workmanship for 90 days from the date of purchase. If the recording medium is found defective within 90 days of original purchase, THQ agrees to replace, free of charge, any product discovered to be defective within such period upon its receipt of the product, postage paid, with proof of the date of purchase, as long as the Software is still being manufactured by THQ. In the event that the Software is no longer available, THQ retains the right to substitute a similar Software of equal or greater value. This warranty is limited to the recording medium containing the Software as originally provided by THQ and is not applicable to normal wear and tear. This warranty shall not be applicable and shall be void if the defect has arisen through abuse, mistreatment, or neglect. Any implied warranties prescribed by statute are expressly limited to the 90-day period described above. To receive warranty service in the United States: Notify the THQ Customer Service Department of the problem requiring warranty service by calling (818) 880-0456 or on the web at http://www.thq.com. If the THQ service technician is unable to solve the problem by phone or on the web via e-mail, the technician will authorize You to return the Product, at Your risk of damage, freight and insurance prepaid by You, together with Your dated sales slip or similar proof-of-purchase within the ninety (90) day warranty period to: THQ Inc., Customer Service Department, 29903 Agoura Road, Agoura Hills, CA 91301. To receive warranty service in the United Kingdom: Notify the THQ (UK) Limited. Customer Service Department of the problem requiring warranty service by calling +44 (0) 870 608 0047 (national/international call rates apply) or on the web at http://www.thq.co.uk and click on Help. If the THQ International Ltd. service technician is unable to solve the problem by phone or on the web via e-mail, the technician will authorize You to return the Product, at Your risk of damage, freight and insurance prepaid by You, together with Your dated sales slip or similar proof-of-purchase within the ninety (90) day warranty period to: THQ (UK) Limited, Customer Service Department, Duke’s Court, Duke Street, Woking, Surrey GU21 5BH UK. THQ is not responsible for unauthorized returns of the Software and reserves the right to send such unauthorized returns back to customers. This warranty shall not be applicable and shall be void if: (a) the defect in the Software has arisen through abuse, unreasonable use, mistreatment or neglect; (b) the Software is used with computer software and hardware not meeting the minimum systems requirements for the Software; (c) the Software is used for commercial purposes (including rental); (d) the Software is modified or tampered with; or (e) the Software's serial number has been altered, defaced or removed. THQ will replace defective media at no charge subject to the conditions set forth above. This is Your sole and exclusive remedy for any breach of warranty.
10. LIMITATION OF LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THQ AND ITS LICENSORS SHALL NOT ASSUME OR HAVE ANY LIABILITY FOR ANY ACTION BY THQ OR ITS CONTENT PROVIDERS, OTHER PARTICIPANTS OR OTHER LICENSORS WITH RESPECT TO CONDUCT, COMMUNICATION OR CONTENT OF THE SOFTWARE. THQ 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, THQ'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 THQ'S AND ITS LICENSORS’ LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.
11. USER GENERATED CONTENT. This Software includes tools that may give you the ability to communicate with other players and 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 THQ 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. You agree that you will not create, transfer, share, send, submit or upload any User Generated Content that:
(a) 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);
(b) contains fraudulent statements or misrepresentations that could damage THQ or any third party;
(c) contains any statements or materials that disparage, ridicule or scorn THQ or any third party;
(d) is obscene, defamatory, threatening, harassing, predatory, pornographic, hateful, racially or ethnically offensive, or encourages conduct that would violate any law or is otherwise inappropriate;
(e) is an advertisement or solicitation of business;
(f) is an impersonation of another person; or
(g) violates the “Online” section or any other terms of this Agreement, or any other terms related to this game.
You agree that THQ and its Licensors are not responsible or liable for User Generated Content submitted or posted by you or by others. THQ and its Licensors do not claim ownership of any User Generated Content that you submit or make available as part of the game, and THQ and its Licensors expressly disclaim any and all liability in connection with any User Generated Content. THQ has no duty to pre-screen User Generated Content.
THQ 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 THQ as your attorney-in-fact to request from third parties removal under the Digital Millennium Copyright Act or other applicable law or basis, in THQ's discretion, of any of your User Generated Content posted on a third party network or Internet site. You agree to not contest THQ'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 THQ, to effect such removal.
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. THQ 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 THQ and we have no control over and assume no responsibility for the content, safety, privacy policies or practices of these websites. You expressly release THQ of any and all liability arising from your use of any third party websites used to share your User Generated Content.
12. THQ'S LICENSE OF USER GENERATED CONTENT
(a) By posting, transferring, sharing or sending User Generated Content in any manner, you hereby grant THQ, 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 THQ, you hereby grant THQ, 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 THQ's business; and
(c) You hereby: (i) Acknowledge that you have received good and valuable consideration from THQ 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 THQ, its affiliates, licensors or distributors; (iii) Agree that THQ, 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.
13. INJUNCTION. Because THQ would be irreparably damaged if the terms of this License Agreement were not specifically enforced, You agree that THQ 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 THQ may otherwise have under applicable laws.
14. INDEMNITY. At THQ's request, You agree to defend, indemnify and hold harmless THQ, its subsidiaries, affiliates, contractors, officers, directors, employees, agents, licensors, licensees, distributors, developers, content providers, and other users of the Software, 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. THQ 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.
15. 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 THQ Inc., 29903 Agoura Road, Agoura Hills, CA 91301.
16. TERMINATION. Without prejudice to any other rights of THQ, this License Agreement and Your right to use the Software may automatically terminate without notice from THQ 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.
17. ONLINE. THQ 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. 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 THQ has no liability for any violation of this Agreement by You or by any other player. 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:
(a) 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;
(b) 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;
(c) Using a player name that is the real name of any other person;
(d) Violating any local, state or national law including but not limited to laws related to copyright, trademark, defamation, invasion of privacy and identity theft.
18. 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, except that You may transfer Your Software to another person provided that person accepts the terms of this License Agreement. 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. THQ'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 THQ 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 THQ 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 THQ. 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 License Agreement between You and THQ.
1. READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE INSTALLING THIS SOFTWARE ON YOUR PERSONAL COMPUTER OR CONSOLE GAME FOR ONLINE USE. THIS SOFTWARE LICENSE AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU (AN INDIVIDUAL OR A SINGLE ENTITY "YOU") ON THE ONE HAND, AND THQ INC. AND ITS SUBSIDIARIES AND AFFILIATES (COLLECTIVELY REFERRED TO AS "THQ") ON THE OTHER HAND, FOR THE SOFTWARE PRODUCT ENTITLED "THE HAUNTED: HELL’S REACH," WHICH INCLUDES COMPUTER SOFTWARE AND ANY ASSOCIATED MEDIA, PRINTED MATERIALS, AND/OR "ONLINE" OR ELECTRONIC DOCUMENTATION (TOGETHER CALLED THE “GAME” OR THE "SOFTWARE"). BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE (OR, IN THE EVENT YOU HAVE PURCHASED THE SOFTWARE AS CONTAINED ON A DVD-ROM, 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 DELETE ALL COPIES IN YOUR POSSESSION.
2. Subject to the terms of this Agreement, THQ grants You a non-exclusive, non-transferable license to use one copy of the Software and/or to use the Software for play online in the country in which You acquired the Software for Your own personal, non-commercial use, but retains all property rights in the Software and all copies thereof. All other rights are expressly reserved by THQ or its Licensors. There is no license to download game content other than what is necessary to facilitate game play. You may: (i) use the Software on any supported computer configuration and/or console platform, 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 Product or documentation, or any portions thereof.
3. You acknowledge that the Software in source code form remains a confidential trade secret of THQ. 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 contains functions for collecting and tracking information related to Your use of the Software. THQ reserves the right to compile, save and use such information within the scope of THQ’s business activities, and analyze any and all of Your data (online registration data, stats, etc.). THQ intends to use such data for internal purposes only.
4. OWNERSHIP: All right, title and 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, dialog, 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 THQ 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 THQ.
5. This Agreement is effective upon Your installation of the Software and shall continue until revoked by THQ or until You breach any term hereof; upon termination You agree to destroy and/or delete all copies of the Software in Your possession.
6. You shall not modify the Software or merge the Software into another computer 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 derivative works based upon the Software.
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. 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. THQ 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. THQ 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 THQ, ITS LICENSORS, LICENSEE AND/OR SUBCONTRACTORS, OR BY YOUR OR ANY OTHER PARTICIPANT'S OWN ERRORS AND/OR OMISSIONS. THQ and its licensors make no warranty with respect to any related software or hardware used or provided by THQ in connection with the Software except as may be expressly set forth above. THQ expressly disclaims any and all technical support obligations with respect to any tools, editors or similar software programs included with the game software.
9. LIMITED DVD-ROM WARRANTY: Notwithstanding anything to the contrary contained herein, and solely with respect to Software distributed on DVD-ROM, THQ warrants to the original consumer purchaser of this Software on DVD-ROM that the recording medium on which the Software is recorded will be free from defects in material and workmanship for 90 days from the date of purchase. If the recording medium is found defective within 90 days of original purchase, THQ agrees to replace, free of charge, any product discovered to be defective within such period upon its receipt of the product, postage paid, with proof of the date of purchase, as long as the Software is still being manufactured by THQ. In the event that the Software is no longer available, THQ retains the right to substitute a similar Software of equal or greater value. This warranty is limited to the recording medium containing the Software as originally provided by THQ and is not applicable to normal wear and tear. This warranty shall not be applicable and shall be void if the defect has arisen through abuse, mistreatment, or neglect. Any implied warranties prescribed by statute are expressly limited to the 90-day period described above. To receive warranty service in the United States: Notify the THQ Customer Service Department of the problem requiring warranty service by calling (818) 880-0456 or on the web at http://www.thq.com. If the THQ service technician is unable to solve the problem by phone or on the web via e-mail, the technician will authorize You to return the Product, at Your risk of damage, freight and insurance prepaid by You, together with Your dated sales slip or similar proof-of-purchase within the ninety (90) day warranty period to: THQ Inc., Customer Service Department, 29903 Agoura Road, Agoura Hills, CA 91301. To receive warranty service in the United Kingdom: Notify the THQ (UK) Limited. Customer Service Department of the problem requiring warranty service by calling +44 (0) 870 608 0047 (national/international call rates apply) or on the web at http://www.thq.co.uk and click on Help. If the THQ International Ltd. service technician is unable to solve the problem by phone or on the web via e-mail, the technician will authorize You to return the Product, at Your risk of damage, freight and insurance prepaid by You, together with Your dated sales slip or similar proof-of-purchase within the ninety (90) day warranty period to: THQ (UK) Limited, Customer Service Department, Duke’s Court, Duke Street, Woking, Surrey GU21 5BH UK. THQ is not responsible for unauthorized returns of the Software and reserves the right to send such unauthorized returns back to customers. This warranty shall not be applicable and shall be void if: (a) the defect in the Software has arisen through abuse, unreasonable use, mistreatment or neglect; (b) the Software is used with computer software and hardware not meeting the minimum systems requirements for the Software; (c) the Software is used for commercial purposes (including rental); (d) the Software is modified or tampered with; or (e) the Software's serial number has been altered, defaced or removed. THQ will replace defective media at no charge subject to the conditions set forth above. This is Your sole and exclusive remedy for any breach of warranty.
10. LIMITATION OF LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THQ AND ITS LICENSORS SHALL NOT ASSUME OR HAVE ANY LIABILITY FOR ANY ACTION BY THQ OR ITS CONTENT PROVIDERS, OTHER PARTICIPANTS OR OTHER LICENSORS WITH RESPECT TO CONDUCT, COMMUNICATION OR CONTENT OF THE SOFTWARE. THQ 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, THQ'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 THQ'S AND ITS LICENSORS’ LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.
11. USER GENERATED CONTENT. This Software includes tools that may give you the ability to communicate with other players and 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 THQ 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. You agree that you will not create, transfer, share, send, submit or upload any User Generated Content that:
(a) 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);
(b) contains fraudulent statements or misrepresentations that could damage THQ or any third party;
(c) contains any statements or materials that disparage, ridicule or scorn THQ or any third party;
(d) is obscene, defamatory, threatening, harassing, predatory, pornographic, hateful, racially or ethnically offensive, or encourages conduct that would violate any law or is otherwise inappropriate;
(e) is an advertisement or solicitation of business;
(f) is an impersonation of another person; or
(g) violates the “Online” section or any other terms of this Agreement, or any other terms related to this game.
You agree that THQ and its Licensors are not responsible or liable for User Generated Content submitted or posted by you or by others. THQ and its Licensors do not claim ownership of any User Generated Content that you submit or make available as part of the game, and THQ and its Licensors expressly disclaim any and all liability in connection with any User Generated Content. THQ has no duty to pre-screen User Generated Content.
THQ 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 THQ as your attorney-in-fact to request from third parties removal under the Digital Millennium Copyright Act or other applicable law or basis, in THQ's discretion, of any of your User Generated Content posted on a third party network or Internet site. You agree to not contest THQ'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 THQ, to effect such removal.
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. THQ 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 THQ and we have no control over and assume no responsibility for the content, safety, privacy policies or practices of these websites. You expressly release THQ of any and all liability arising from your use of any third party websites used to share your User Generated Content.
12. THQ'S LICENSE OF USER GENERATED CONTENT
(a) By posting, transferring, sharing or sending User Generated Content in any manner, you hereby grant THQ, 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 THQ, you hereby grant THQ, 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 THQ's business; and
(c) You hereby: (i) Acknowledge that you have received good and valuable consideration from THQ 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 THQ, its affiliates, licensors or distributors; (iii) Agree that THQ, 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.
13. INJUNCTION. Because THQ would be irreparably damaged if the terms of this License Agreement were not specifically enforced, You agree that THQ 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 THQ may otherwise have under applicable laws.
14. INDEMNITY. At THQ's request, You agree to defend, indemnify and hold harmless THQ, its subsidiaries, affiliates, contractors, officers, directors, employees, agents, licensors, licensees, distributors, developers, content providers, and other users of the Software, 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. THQ 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.
15. 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 THQ Inc., 29903 Agoura Road, Agoura Hills, CA 91301.
16. TERMINATION. Without prejudice to any other rights of THQ, this License Agreement and Your right to use the Software may automatically terminate without notice from THQ 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.
17. ONLINE. THQ 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. 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 THQ has no liability for any violation of this Agreement by You or by any other player. 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:
(a) 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;
(b) 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;
(c) Using a player name that is the real name of any other person;
(d) Violating any local, state or national law including but not limited to laws related to copyright, trademark, defamation, invasion of privacy and identity theft.
18. 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, except that You may transfer Your Software to another person provided that person accepts the terms of this License Agreement. 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. THQ'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 THQ 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 THQ 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 THQ. 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 License Agreement between You and THQ.