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End User License Agreement
This End User License Agreement ("Agreement") is an agreement between Spinfoam Games, LLC, an Oregon limited liability company ("Spinfoam Games", "we", or "our"), and you ("you" or "your"), individually a "Party" and collectively the "Parties".
This Agreement governs your access to or use of our service or software ("Software"). By accessing, downloading, or using the Software, you agree to be bound by this Agreement. This Agreement affects your legal rights and obligations. If you do not agree to be bound by this Agreement, do not access, download, or use the Software.
Please note that this Agreement contains an arbitration clause and class action waiver. By agreeing to this Agreement, you agree to resolve all disputes through binding individual arbitration, which means that you waive any right to have those disputes decided by a judge or jury, and that you waive your right to participate in class actions, class arbitrations, or representative actions.
1. Updates.
We reserve the right to update or modify this Agreement at any time, and will notify you of any update or modification. Your use of the Software following any update or modification constitutes your agreement to follow and be bound by the new terms of the Agreement. For this reason, we encourage you to review this Agreement whenever you use the Software.
2. The Software.
The Software is provided to you for entertainment purposes only. We reserve the right, in our sole discretion and without prior notice or liability to you, to modify or stop providing the Software or any part of the Software to you or to users generally.
3. Use of the Software.
You may use the Software only if you can form a binding contract with Spinfoam Games and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction. If you are accepting this Agreement and using the Software on behalf of a company, organization, government, or other legal entity, you represent and warrant that you are authorized to do so. You may use the Software only in compliance with this Agreement and all applicable local, state, national, and international laws, rules, and regulations.
4. License.
The Software is licensed to you for use by a single user. You may store the Software on any of your computers, but the Software cannot be shared with others. We grant you a personal, worldwide, royalty free, nonassignable, nonsublicensable, revocable, and nonexclusive license to use the Software ("License"), provided that you: (i) shall not transfer, give access to, copy, or distribute any part of the Software without our prior written consent; (ii) shall not attempt to reverse engineer, alter, disrupt, or modify any part of the Software; and (iii) comply with this Agreement. Spinfoam Games retains all rights in its Software, and you acknowledge that you have no rights in the Software outside of this License.
4.1. Streaming.
We grant you a worldwide, royalty free, nonassignable, nonsublicensable, revocable, and nonexclusive license to stream or otherwise upload and display your gameplay of the Software to video platforms such as Twitch or YouTube. You acknowledge and agree that you are solely responsible for such use and any related consequences, including third-party claims against Spinfoam Games resulting from or arising in connection with your use, and represent and warrant that your use will not infringe any intellectual property right or other right of any third-party.
5. Ownership and Intellectual Property.
The Software is subject to trademark, service mark, trade dress, copyright, or other intellectual property rights or licenses held by Spinfoam Games. No right, title, or interest in the Software is transferred to you as a result of your use of the Software.
6. New Versions and Content.
During the term of your License, we may give you access to future versions of the Software or new content. We do not have any obligation to make new versions or content available, or to continue to make available for access or download any versions of the Software.
7. Privacy.
We currently do not collect, store, or have access to any of your personal data or identifiable information. We will notify you if this policy changes and will provide you with the new terms.
8. Payment.
We may charge for the Software. The grant of the License is conditioned upon our receipt of your full payment for the Software if payment is required. We do not process payments for the Software. Payments are processed by the third-party service that you use to access, download, or use the Software. The processor's terms of service, privacy policy, or other terms govern your relationship with them and their use of your personal information. You agree that we are not liable for any loss or claim that you may have against the processor, and release us from any claims or liability related to your agreement with the processor.
9. Unreal Engine.
The Software uses the Unreal® Engine. You acknowledge and agree to the following:
9.1. Credit.
The Software uses the Unreal® Engine. Unreal® is a trademark or registered trademark of Epic Games, Inc. in the United States of America and elsewhere. Unreal® Engine, Copyright 1998 – present, Epic Games, Inc. All rights reserved.
9.2. Hardware and Usage Data.
You acknowledge and agree that the Unreal® Engine code will collect and send to Epic Games, Inc. anonymous hardware and usage data from your use of the Software. This functionality is used by Epic Games, Inc. to improve the Unreal® Engine code.
9.3. Disclaimers and Limitation of Liability.
The Software includes the Unreal® Engine code and other code, materials, and information (the "Epic Materials") from Epic Games, Inc. ("Epic"). All Epic Materials are provided on an "as is" and "as available" basis, "with all faults" and without warranty of any kind. Spinfoam Games, Epic, and Epic's affiliates disclaim all warranties, conditions, common law duties, and representations (express, implied, oral, and written) with respect to the Epic Materials, including without limitation all express, implied, and statutory warranties and conditions of any kind, such as title, non-interference with your enjoyment, authority, non-infringement, merchantability, fitness or suitability for any purpose (whether or not Epic knows or has reason to know of any such purpose), system integration, accuracy or completeness, results, reasonable care, workmanlike effort, lack of negligence, and lack of viruses, whether alleged to arise under law, by reason of custom or usage in the trade, or by course of dealing. Without limiting the generality of the foregoing, Spinfoam Games, Epic, and Epic's affiliates make no warranty that (1) any of the Epic Materials will operate properly, including as integrated in the Software, (2) that the Epic Materials will meet your requirements, (3) that the operation of the Epic Materials will be uninterrupted, bug free, or error free in any or all circumstances, (4) that any defects in the Epic Materials can or will be corrected, (5) that the Epic Materials are or will be in compliance with a platform manufacturer's rules or requirements, or (6) that a platform manufacturer has approved or will approve this Software, or will not revoke approval of this Software for any or no reason. 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 by Spinfoam Games and Epic. Spinfoam Games, Epic, and Epic's affiliates do not guarantee continuous, error-free, virus-free, or secure operation of or access to the Epic Materials. This paragraph will apply to the maximum extent permitted by applicable law.
To the maximum extent permitted by applicable law, neither Spinfoam Games, Epic, Epic's licensors, nor its or their affiliates, nor any of Spinfoam Games' or Epic's service providers, shall be liable in any way for loss or damage of any kind resulting from the use or inability to use the Epic Materials or otherwise in connection with this Agreement, including but not limited to loss of goodwill, work stoppage, computer failure, or malfunction, or any and all other commercial damages or losses. In no event will Spinfoam Games, Epic, Epic's licensors, nor its or their affiliates, nor any of Spinfoam Games' or Epic's service providers be liable for any loss of profits or any indirect, incidental, consequential, special, punitive, or exemplary damages, or any other damages arising out of or in connection with this Agreement or the Epic Materials, or the delay or inability to use or lack of functionality of the Epic Materials, even in the event of Spinfoam Games', Epic's, or Epic's affiliates' fault, tort (including negligence), strict liability, indemnity, product liability, breach of contract, breach of warranty, or otherwise and even if Spinfoam Games, Epic or Epic's affiliates have been advised of the possibility of such damages. These limitations and exclusions regarding damages apply even if any remedy fails to provide adequate compensation.
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of Spinfoam Games, Epic, Epic's licensors, its and their affiliates, and any of Spinfoam Games' or Epic's service providers shall be limited to the full extent permitted by law.
10. LIMITED LIABILITY.
Neither Party will be liable for any indirect, special, incidental, or consequential damages, or lost profits, that may arise in connection with this Agreement. Spinfoam Games' liability arising out of this Agreement will not exceed the amount actually paid or payable to it under this Agreement. In the event of breach, your rights are limited to the right to seek damages at law, if any, and you have no right to rescind this Agreement or to enjoin Spinfoam Games' exploitation of the Software.
11. EXCLUSION OF IMPLIED AND OTHER WARRANTIES.
The Software is provided "AS IS". Spinfoam Games makes no warranties, express or implied, and disclaims all implied warranties, including any warranty of merchantability or warranty of fitness for a particular purpose.
12. Indemnification.
You shall indemnify Spinfoam Games and its owners, agents, and representatives (each an "Indemnified Party") against any claims, actions, damages, liabilities, losses, or costs, including attorneys’ fees and costs incurred in the settlement or avoidance of any such claim, incurred by or asserted against any Indemnified Party resulting from or arising in connection with any breach or alleged breach by you of any of its representations, warranties, covenants, or obligations under this Agreement.
13. Transferability.
You shall not transfer or assign this Agreement or any right or obligation of this Agreement, by operation of law or otherwise, without the prior written consent of Spinfoam Games.
14. Class Action Waiver.
You agree not to bring or participate in a class or representative action, private attorney general action, or collective arbitration related to the Software or this Agreement. You also agree not to seek to combine any action or arbitration related to the Software or this Agreement with any other action or arbitration without the consent of the Parties and all other actions or arbitrations.
15. Arbitration.
You and Spinfoam Games agree that any dispute or claim arising from or relating to the Software or this Agreement will be settled by final and binding arbitration using the English language and administered by the American Arbitration Association ("AAA") under its Commercial Arbitration Rules then in effect. Arbitration will be handled by a sole arbitrator in accordance with those rules. Judgment on the arbitration award may be entered in any court that has jurisdiction. Any arbitration under this Agreement will take place on an individual basis. Class arbitrations and class actions are not permitted. You understand that by agreeing to the Agreement, you and Spinfoam Games are each waiving the right to trial by jury or to participate in a class action or class arbitration. Notwithstanding the foregoing, each party shall have the right to bring an action in a court of proper jurisdiction for injunctive or other equitable or conservatory relief, pending a final decision by the arbitrator. You may instead assert your claim in "small claims" court, but only if your claim qualifies, your claim remains in such court, and your claim remains on an individual, non-representative, and non-class basis. Payment for any reasonable AAA filing, administrative, and arbitrator fees will be in accordance with the Consumer Arbitration Rules.
16. No Agency.
Nothing in this Agreement will be deemed to create any association, partnership, employment, joint venture, or agency relationship between the Parties. The Parties will not have the right or authority to create any obligations of any kind, make any representation or warranty on behalf of the other Party, or to bind the other Party in any respect, unless approved in writing by both Parties.
17. Miscellaneous.
This Agreement constitutes the entire agreement between the Parties and supersedes all prior understanding, whether written or oral. Except as provided in this Agreement, no term or condition of this Agreement may be amended or deemed waived, except by a writing signed by the Parties that refers to this Agreement. If any term or part of a term of this Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effect. This Agreement will be governed by and construed in accordance with the laws of the state of Oregon, without regard to conflict of laws principles. Any claim arising out of this Agreement, including tort claims, must be resolved in Multnomah County, Oregon.
This End User License Agreement ("Agreement") is an agreement between Spinfoam Games, LLC, an Oregon limited liability company ("Spinfoam Games", "we", or "our"), and you ("you" or "your"), individually a "Party" and collectively the "Parties".
This Agreement governs your access to or use of our service or software ("Software"). By accessing, downloading, or using the Software, you agree to be bound by this Agreement. This Agreement affects your legal rights and obligations. If you do not agree to be bound by this Agreement, do not access, download, or use the Software.
Please note that this Agreement contains an arbitration clause and class action waiver. By agreeing to this Agreement, you agree to resolve all disputes through binding individual arbitration, which means that you waive any right to have those disputes decided by a judge or jury, and that you waive your right to participate in class actions, class arbitrations, or representative actions.
1. Updates.
We reserve the right to update or modify this Agreement at any time, and will notify you of any update or modification. Your use of the Software following any update or modification constitutes your agreement to follow and be bound by the new terms of the Agreement. For this reason, we encourage you to review this Agreement whenever you use the Software.
2. The Software.
The Software is provided to you for entertainment purposes only. We reserve the right, in our sole discretion and without prior notice or liability to you, to modify or stop providing the Software or any part of the Software to you or to users generally.
3. Use of the Software.
You may use the Software only if you can form a binding contract with Spinfoam Games and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction. If you are accepting this Agreement and using the Software on behalf of a company, organization, government, or other legal entity, you represent and warrant that you are authorized to do so. You may use the Software only in compliance with this Agreement and all applicable local, state, national, and international laws, rules, and regulations.
4. License.
The Software is licensed to you for use by a single user. You may store the Software on any of your computers, but the Software cannot be shared with others. We grant you a personal, worldwide, royalty free, nonassignable, nonsublicensable, revocable, and nonexclusive license to use the Software ("License"), provided that you: (i) shall not transfer, give access to, copy, or distribute any part of the Software without our prior written consent; (ii) shall not attempt to reverse engineer, alter, disrupt, or modify any part of the Software; and (iii) comply with this Agreement. Spinfoam Games retains all rights in its Software, and you acknowledge that you have no rights in the Software outside of this License.
4.1. Streaming.
We grant you a worldwide, royalty free, nonassignable, nonsublicensable, revocable, and nonexclusive license to stream or otherwise upload and display your gameplay of the Software to video platforms such as Twitch or YouTube. You acknowledge and agree that you are solely responsible for such use and any related consequences, including third-party claims against Spinfoam Games resulting from or arising in connection with your use, and represent and warrant that your use will not infringe any intellectual property right or other right of any third-party.
5. Ownership and Intellectual Property.
The Software is subject to trademark, service mark, trade dress, copyright, or other intellectual property rights or licenses held by Spinfoam Games. No right, title, or interest in the Software is transferred to you as a result of your use of the Software.
6. New Versions and Content.
During the term of your License, we may give you access to future versions of the Software or new content. We do not have any obligation to make new versions or content available, or to continue to make available for access or download any versions of the Software.
7. Privacy.
We currently do not collect, store, or have access to any of your personal data or identifiable information. We will notify you if this policy changes and will provide you with the new terms.
8. Payment.
We may charge for the Software. The grant of the License is conditioned upon our receipt of your full payment for the Software if payment is required. We do not process payments for the Software. Payments are processed by the third-party service that you use to access, download, or use the Software. The processor's terms of service, privacy policy, or other terms govern your relationship with them and their use of your personal information. You agree that we are not liable for any loss or claim that you may have against the processor, and release us from any claims or liability related to your agreement with the processor.
9. Unreal Engine.
The Software uses the Unreal® Engine. You acknowledge and agree to the following:
9.1. Credit.
The Software uses the Unreal® Engine. Unreal® is a trademark or registered trademark of Epic Games, Inc. in the United States of America and elsewhere. Unreal® Engine, Copyright 1998 – present, Epic Games, Inc. All rights reserved.
9.2. Hardware and Usage Data.
You acknowledge and agree that the Unreal® Engine code will collect and send to Epic Games, Inc. anonymous hardware and usage data from your use of the Software. This functionality is used by Epic Games, Inc. to improve the Unreal® Engine code.
9.3. Disclaimers and Limitation of Liability.
The Software includes the Unreal® Engine code and other code, materials, and information (the "Epic Materials") from Epic Games, Inc. ("Epic"). All Epic Materials are provided on an "as is" and "as available" basis, "with all faults" and without warranty of any kind. Spinfoam Games, Epic, and Epic's affiliates disclaim all warranties, conditions, common law duties, and representations (express, implied, oral, and written) with respect to the Epic Materials, including without limitation all express, implied, and statutory warranties and conditions of any kind, such as title, non-interference with your enjoyment, authority, non-infringement, merchantability, fitness or suitability for any purpose (whether or not Epic knows or has reason to know of any such purpose), system integration, accuracy or completeness, results, reasonable care, workmanlike effort, lack of negligence, and lack of viruses, whether alleged to arise under law, by reason of custom or usage in the trade, or by course of dealing. Without limiting the generality of the foregoing, Spinfoam Games, Epic, and Epic's affiliates make no warranty that (1) any of the Epic Materials will operate properly, including as integrated in the Software, (2) that the Epic Materials will meet your requirements, (3) that the operation of the Epic Materials will be uninterrupted, bug free, or error free in any or all circumstances, (4) that any defects in the Epic Materials can or will be corrected, (5) that the Epic Materials are or will be in compliance with a platform manufacturer's rules or requirements, or (6) that a platform manufacturer has approved or will approve this Software, or will not revoke approval of this Software for any or no reason. 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 by Spinfoam Games and Epic. Spinfoam Games, Epic, and Epic's affiliates do not guarantee continuous, error-free, virus-free, or secure operation of or access to the Epic Materials. This paragraph will apply to the maximum extent permitted by applicable law.
To the maximum extent permitted by applicable law, neither Spinfoam Games, Epic, Epic's licensors, nor its or their affiliates, nor any of Spinfoam Games' or Epic's service providers, shall be liable in any way for loss or damage of any kind resulting from the use or inability to use the Epic Materials or otherwise in connection with this Agreement, including but not limited to loss of goodwill, work stoppage, computer failure, or malfunction, or any and all other commercial damages or losses. In no event will Spinfoam Games, Epic, Epic's licensors, nor its or their affiliates, nor any of Spinfoam Games' or Epic's service providers be liable for any loss of profits or any indirect, incidental, consequential, special, punitive, or exemplary damages, or any other damages arising out of or in connection with this Agreement or the Epic Materials, or the delay or inability to use or lack of functionality of the Epic Materials, even in the event of Spinfoam Games', Epic's, or Epic's affiliates' fault, tort (including negligence), strict liability, indemnity, product liability, breach of contract, breach of warranty, or otherwise and even if Spinfoam Games, Epic or Epic's affiliates have been advised of the possibility of such damages. These limitations and exclusions regarding damages apply even if any remedy fails to provide adequate compensation.
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of Spinfoam Games, Epic, Epic's licensors, its and their affiliates, and any of Spinfoam Games' or Epic's service providers shall be limited to the full extent permitted by law.
10. LIMITED LIABILITY.
Neither Party will be liable for any indirect, special, incidental, or consequential damages, or lost profits, that may arise in connection with this Agreement. Spinfoam Games' liability arising out of this Agreement will not exceed the amount actually paid or payable to it under this Agreement. In the event of breach, your rights are limited to the right to seek damages at law, if any, and you have no right to rescind this Agreement or to enjoin Spinfoam Games' exploitation of the Software.
11. EXCLUSION OF IMPLIED AND OTHER WARRANTIES.
The Software is provided "AS IS". Spinfoam Games makes no warranties, express or implied, and disclaims all implied warranties, including any warranty of merchantability or warranty of fitness for a particular purpose.
12. Indemnification.
You shall indemnify Spinfoam Games and its owners, agents, and representatives (each an "Indemnified Party") against any claims, actions, damages, liabilities, losses, or costs, including attorneys’ fees and costs incurred in the settlement or avoidance of any such claim, incurred by or asserted against any Indemnified Party resulting from or arising in connection with any breach or alleged breach by you of any of its representations, warranties, covenants, or obligations under this Agreement.
13. Transferability.
You shall not transfer or assign this Agreement or any right or obligation of this Agreement, by operation of law or otherwise, without the prior written consent of Spinfoam Games.
14. Class Action Waiver.
You agree not to bring or participate in a class or representative action, private attorney general action, or collective arbitration related to the Software or this Agreement. You also agree not to seek to combine any action or arbitration related to the Software or this Agreement with any other action or arbitration without the consent of the Parties and all other actions or arbitrations.
15. Arbitration.
You and Spinfoam Games agree that any dispute or claim arising from or relating to the Software or this Agreement will be settled by final and binding arbitration using the English language and administered by the American Arbitration Association ("AAA") under its Commercial Arbitration Rules then in effect. Arbitration will be handled by a sole arbitrator in accordance with those rules. Judgment on the arbitration award may be entered in any court that has jurisdiction. Any arbitration under this Agreement will take place on an individual basis. Class arbitrations and class actions are not permitted. You understand that by agreeing to the Agreement, you and Spinfoam Games are each waiving the right to trial by jury or to participate in a class action or class arbitration. Notwithstanding the foregoing, each party shall have the right to bring an action in a court of proper jurisdiction for injunctive or other equitable or conservatory relief, pending a final decision by the arbitrator. You may instead assert your claim in "small claims" court, but only if your claim qualifies, your claim remains in such court, and your claim remains on an individual, non-representative, and non-class basis. Payment for any reasonable AAA filing, administrative, and arbitrator fees will be in accordance with the Consumer Arbitration Rules.
16. No Agency.
Nothing in this Agreement will be deemed to create any association, partnership, employment, joint venture, or agency relationship between the Parties. The Parties will not have the right or authority to create any obligations of any kind, make any representation or warranty on behalf of the other Party, or to bind the other Party in any respect, unless approved in writing by both Parties.
17. Miscellaneous.
This Agreement constitutes the entire agreement between the Parties and supersedes all prior understanding, whether written or oral. Except as provided in this Agreement, no term or condition of this Agreement may be amended or deemed waived, except by a writing signed by the Parties that refers to this Agreement. If any term or part of a term of this Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effect. This Agreement will be governed by and construed in accordance with the laws of the state of Oregon, without regard to conflict of laws principles. Any claim arising out of this Agreement, including tort claims, must be resolved in Multnomah County, Oregon.