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END USER LICENSE AGREEMENT
IMPORTANT, PLEASE READ CAREFULLY
BY EITHER REMOVING THE SHRINK WRAP AND/OR JEWEL CASE SEAL OR DOWNLOADING, INSTALLING, COPYING, OR OTHERWISE USING THIS SOFTWARE PRODUCT, YOU AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS:
1. END USER LICENSE AGREEMENT.
A. This end-user license agreement (“EULA”) is a legal agreement between you (hereinafter sometimes referred to as “you,” “End User” or “Licensee”) and Torn Banner Studios, Inc. (“Torn Banner”) for the Torn Banner software product accompanying this EULA, which includes video game-related software and may include associated media, printed media, and on-line or electronic documentation (collectively, “Software Product”). Without limiting the foregoing, the term “Software Product” also includes: (i) any and all contents, components, attachments, software, media, and code with which this EULA is provided and delivered, whether via a Website (as defined below), tangible media or any other delivery method; (ii) any and all game design, characters, images, graphics, photographs, art, art work, clip art, text, fonts, music, sounds, voices or other sensory content (the “Game Content”); (iii) any and all related explanatory written materials and instructions, and any other possible documentation related thereto (“Documentation”); and (iv) and any and all upgrades, modified versions, patches, corrections, updates, additions, extensions, expansion packs, add-ons, DLC and copies of the Software Product (the “Upgrades”) provided to you by Torn Banner, or authorized licensees of Torn Banner.
B. If you do not agree to the terms of this EULA, you should not install, copy, download or use the Software Product and in which case you should contact your vendor regarding its return policy. If you are purchasing this Software Product from a Torn Banner or third party distributor website (a “Website”) and do not agree, please press “disagree/decline.” You agree that your use of the Software Product acknowledges that you have read this EULA, understand it, and agree to be bound by its terms and conditions, and that you represent and warrant that you are an adult and are either accepting this EULA on behalf of yourself or on behalf of your child or ward, as the case may be. If you have not attained the age of majority, you must obtain the necessary permission in the form required by law from your parents or other legal representatives. No child under the age of 13 is allowed to play the Software Product.
2. OWNERSHIP.
It is hereby understood and agreed that, as between you and Torn Banner, Torn Banner is the owner of all right title and interest to the Software Product, regardless of the media or form of the original download, whether online, by disk or otherwise. You, as licensee, through your downloading, installing, copying or use of this Software Product do not acquire any ownership rights to the Software Product.
3. GENERAL.
A. The Software Product is licensed, not sold, to you by Torn Banner for use only under the terms and conditions of this EULA. The Software Product is protected by copyright and trademark laws and international copyright treaties, as well as other intellectual property laws and treaties. The rights granted herein are limited to Torn Banner’s and its licensors’ intellectual property rights in the Software Product and do not include any other patents or intellectual property rights. The Software Product may contain license management software (also known as digital rights management software) that restricts your use of the Software Product.
B. In the event Torn Banner, in its sole discretion, elects to provide any Software Product-related services or in-game features to you directly in the future, such services and features may be subject to further terms and conditions set forth in an updated or separate EULA.
C. The Software Product requires an Internet connection to play the Software Product, access Internet-based features, authenticate the Software Product, and perform other functions.
4. EULA FOR UPGRADES.
The terms of this EULA will govern any Upgrades provided by Torn Banner that replace and/or supplement the original Software Product, unless such Upgrade is accompanied by a separate license in which case the terms of that license will govern.
5. GRANT OF LICENSE AND RESTRICTIONS.
A. Subject to your agreement to and continuing compliance with this EULA, Torn Banner hereby grants, and you hereby accept, a limited, non-exclusive, non-transferable end user license to: (i) install the Software Product on the local hard disk(s) or other permanent storage media of one (1) computer or other game play device solely owned by you or under your legitimate control (such computer/game play device sometimes referred to herein as a “Unit”); and (ii) use the Software Product for your non-commercial entertainment purposes only.
B. Unless provided otherwise in the Documentation, you shall not display, modify, reproduce or distribute any Game Content, or portion(s) thereof, included with or relating to the Software Product, if any. Any such authorized display, modification, reproduction and distribution shall be in full accord with this EULA and Documentation. Under no circumstances will your use, display, modification, reproduction and distribution of the Game Content or Software Product give you any intellectual property or proprietary rights in the Game Content or Software Product or in any logos and/or trade or service marks of Torn Banner. All right, title, and interest in and to the Software Product belong solely to Torn Banner and its licensors.
C. You shall not:
C.i. Copy or reproduce, auction, loan, lease, rent, sublicense, gift or transfer the Software Product;
C.ii. Electronically transfer the Software Product through a LAN (local area network) or file sharing network; or
C.iii. Modify, adapt, translate, or create derivative works based on the Software Product or any accompanying materials.
Any use of the Software Product in violation of these limitations shall be regarded as an infringement of Torn Banner’s copyrights and/or other rights in and to the Software Product.
D. By accepting the terms of this EULA, you further agree that you shall not, under any circumstances:
D.i. Use, develop, distribute or sell cheats, automation software (bots), hacks or any other unauthorized third-party software designed to modify the Software Product;
D.ii. Exploit the Software Product or any of its parts for any commercial purpose, including without limitation: (a) use at a cyber café, computer gaming center or any other location-based site; or (b) performing in-game services in exchange for payment outside the Software Product, e.g., power-leveling;
D.iii. Remove, disable or circumvent any security protections such as digital rights management, proprietary notices or labels contained on or within the Software Product; or
D.iv. Use any obscene, pornographic, provocative or racist language or material in the Software Product or on the Forums (as defined below) relating to the Software Product.
Any use of the Software Product in violation of these limitations will be regarded as a breach this EULA and will be pursued to the fullest extent permissible under applicable law.
6. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS.
A. From time to time, at Torn Banner’s sole discretion, Torn Banner may provide you with support services related to the Software Product (“Support Services”). Torn Banner reserves the right to alter, suspend, and terminate the Support Services at any time and for any reason. You can contact Torn Banner for Support Services at: contact@tornbanner.com.
B. Any supplemental software, code, content, or media provided to you in the course of Support Services shall be considered part of the Software Product and subject to the terms and conditions of this EULA.
C. You shall not modify, sublicense, assign, or transfer the Software Product or any rights under this EULA, except as expressly provided in this EULA. Any attempt to otherwise sublicense, assign, or transfer any of the rights, duties, or obligations shall be void.
D. Torn Banner shall have the right, at any time, without notice to you to: (i) unilaterally suspend or modify the Software Product process and the Software Product conditions; (ii) modify or delete any information, including statements and declarations, posted by you on chats relating to the Software Product or on forums through which you can communicate with other users of the Software Products (such chats and forums, collectively, the “Forums”); (iii) improve or modify the Software Product, or any of its parts; and (iv) modify the hardware or system requirements to run the Software Product. Torn Banner shall never be liable if the hardware or software performance of your Unit prevents the Software Product from working, even if your Unit meets the minimum hardware or system requirements for the Software Product.
E. You agree to take appropriate measures to ensure the safety of your Platform Account and passwords and to prevent unauthorized use of these by a third party.
F. The Unit on which you play the Software Product must meet minimum system requirements. You acknowledge that the Software Product may contain additional software and/or middleware (“Required Software”) that are necessary to play the Game, and that said Required Software may be installed on your Unit when you install the Software Product.
7. COLLECTION AND USE OF INFORMATION.
By installing and using the Software Product, you consent to the information collection and usage terms set forth in this section and Torn Banner's Privacy Policy http://tornbanner.com/privacy-policy/. Torn Banner may collect information from or about you when you use the Software Product, such as online ID, hardware configuration, gameplay behavior, progress and other data, scores, rankings, achievements, communications between players, browser type, platform type, Internet service provider (ISP) and software usage, which are gathered periodically to facilitate the provision of software updates, product support and other services related to the Software Product. Torn Banner may use any collected information to improve its products, administer the Software Product, analyze trends, or to provide services or technologies to you. In addition, Torn Banner may use your software usage information for the purpose of research, development, administration, support and marketing of Torn Banner products and services. If you do not want your information used or shared in this manner, then you should not use the Software Product
For more information about which information and data Torn Banner may collect from you and how Torn Banner uses it, please read Torn Banner’s Privacy Policy.
8. TERM.
A. This EULA is effective until terminated. Licensee may terminate it at any time by destroying the Software Product, including without limitation all copies, full or partial, and removing all of its component parts. Torn Banner may terminate this EULA at any time for any reason. The term of this EULA runs concurrently with the period during which Licensee uses and retains the Software Product. If the Software Product is transferred (to the extent allowed under this EULA), the EULA is transferred with it.
B. Your rights under this EULA will terminate automatically without notice from Torn Banner if you fail to comply with any term(s) or condition(s) of this EULA. In such event, no notice shall be required by Torn Banner to effect such termination.
C. Upon termination of this EULA for any reason, you shall cease all use of the Software Product and destroy all copies, full or partial, together with all modifications, printed or written materials, and merged portions in any form and remove all component parts of the Software Product which have been downloaded onto your Unit.
9. INTELLECTUAL PROPERTY RIGHTS.
A. As between you and Torn Banner, Torn Banner shall retain and own all right, title, and interest, including without limitation any and all copyrights, trademarks and other intellectual property rights of any kind, in the Software Product and all elements thereof and any modifications or improvements made thereto, including without limitation any Game Content, Upgrades, updates and Documentation.
B. You acknowledge Torn Banner’s exclusive rights in the Software Product and that the Software Product is unique and original to Torn Banner and that Torn Banner is owner thereof. Unless otherwise permitted by law, you shall not, at any time during or after the effective Term of the EULA, dispute or contest, directly or indirectly, Torn Banner’s exclusive right and title to the Software Product or the validity thereof.
C. You shall not attempt to develop any software product that contains the “look and feel” of the Software Product.
D. You hereby expressly agree not to extract information, reverse engineer, disassemble, decompile, or translate the Software Product, or otherwise attempt to derive the source code of the Software Product, except to the extent allowed under any applicable law. In the event that such activities are permitted by applicable law, any information you, or your authorized agent, discover shall be promptly disclosed to Torn Banner and shall be deemed the confidential information of Torn Banner.
E. This section shall expressly survive the termination or expiration of this EULA.
10. USER GENERATED CONTENT
The Software Product may allow you to create certain content (“User Generated Content”), including without limitation maps, levels, screenshots, weapons, armor and other content. In consideration of your use of the Software Product, and to the extent that your User Generated Content gives rise to any copyright interest, you hereby grant Torn Banner an exclusive, perpetual, irrevocable, royalty-free, fully transferable, and sub-licensable worldwide right and license to use your User Generated Content in any way and for any purpose in connection with the Software Product and related goods and services, including without limitation, the rights to reproduce, copy, adapt, modify, perform, display, publish, broadcast, transmit, or otherwise communicate to the public by any means whether now known or unknown and distribute your User Generated Content without any further notice or compensation to you of any kind. You hereby waive and agree never to assert any moral rights of paternity, publication, reputation, or attribution with respect to Torn Banner's and other players’ use and enjoyment of such User Generated Content in connection with the Software Product and related goods and services under applicable law. Torn Banner is under no obligation to use, distribute or continue to distribute User Generated Content, and you understand that Torn Banner may restrict, or remove, your User Generated Content for any reason. You represent and warrant that the User Generated Content, and your grant of rights in such User Generated Content, does not violate any applicable contract, law or regulation, and that the User Generated Content is your original work and does not infringe any third party’s intellectual property rights or any other rights. Torn Banner specifically disclaims any liability with regard to User Generated Content. This provision shall survive any termination of this EULA.
Anyone who believes that their original work has been reproduced as User Generated Content through one of our Software Products in a way that constitutes copyright infringement may notify us by sending an email to contact@tornbanner.com.
11. EXPORT LAW ASSURANCES.
Any download, installation or use of the Software Product involves products and/or technical data
that may be subject to Canadian export or import regulations and may be subject to export or import regulations in other countries. By downloading, installing or otherwise using any Software Product, you are agreeing to comply strictly with all such regulations. You may not export or import the Software Product except as authorized by Canadian law and the laws of the jurisdiction in which the Software Product was obtained.
12. DISCLAIMER OF WARRANTIES.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SOFTWARE PRODUCT IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, AND ACCURACY IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE PRODUCT IS PROVIDED “AS IS,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND TORN BANNER AND TORN BANNER’S AFFILIATES (COLLECTIVELY REFERRED TO AS “TORN BANNER” FOR THE PURPOSES OF SECTIONS 12 AND 13) HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE PRODUCT, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. TORN BANNER DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE PRODUCT, THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE PRODUCT WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE PRODUCT WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TORN BANNER OR A TORN BANNER AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE SOFTWARE PRODUCT PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
13. LIMITATION OF LIABILITY.
A. Torn Banner does not accept liability for: (i) any possible criminal actions committed by End User; (ii) statements of End User, made or published in the Software Product or on the Forums relating to the Software Product, or End User’s behavior in the Software Product, including the conduct, manner and ideology of the in-game characters managed by End User, any actions of in-game characters in the Software Product, and/or any disrespect for other end users and their in-game characters; (iii) End User’s inability to access his/her platform Account (e.g., as the result of End User’s loss of login, password and other information required for participation in the Software Product); or (iv) the loss of End User’s in-game services, including in-game currencies and virtual items.
B. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL TORN BANNER, ITS AFFILIATES OR LICENSEES, BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE PRODUCT OR DEFECT IN OR CAUSED BY THE SOFTWARE PRODUCT, INCLUDING BUT NOT LIMITED TO COMPROMISING THE SECURITY OF YOUR UNIT, OPERATING SYSTEM OR FILES, OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF TORN BANNER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, TORN BANNER’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS EULA SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE PRODUCT OR REPLACEMENT OF THE SOFTWARE PRODUCT WITH PRODUCT OF COMPARABLE RETAIL VALUE, AS TORN BANNER MAY ELECT IN ITS SOLE DISCRETION. BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU IN PART OR WHOLE.
14. DEFECTS AND SECURITY WARNING.
A. WITHOUT LIMITING THE FOREGOING, TORN BANNER DOES NOT ENSURE CONTINUOUS, ERROR-FREE, SECURE OR VIRUS-FREE OPERATION OF THE SOFTWARE PRODUCT.
B. WARNING: BY INSTALLATION AND/OR USE OF THE SOFTWARE PRODUCT, YOU MAY BE INSTALLING INTO YOUR UNIT SOFTWARE THAT IS ALLEGED OR MAY BE ALLEGED TO COMPROMISE THE SECURITY OF YOUR UNIT, ITS OPERATING SYSTEM AND FILES. IF AT ANY TIME YOU WISH TO DE-INSTALL THE SOFTWARE PRODUCT BECAUSE YOU BELIEVE THE SECURITY OF YOUR UNIT, OPERATING SYSTEM OR FILES MAY BE OR HAS BEEN COMPROMISED, YOU MAY NEED TO EXECUTE A SEPARATE ROUTINE TO DE-INSTALL THE FEATURE THAT MAY BE COMPROMISING YOUR SECURITY. DAMAGES YOU MAY RECOVER FOR ANY SUCH ALLEGED SECURITY BREACHES ARE SUBJECT TO THE LIMITATION OF LIABILITY AS SET FORTH HEREIN.
15. INDEMNIFICATION
You hereby agree to indemnify, defend and hold harmless Torn Banner and its affiliates and their respective officers, employees, directors, agents, licensees (excluding you), sublicensees (excluding you), successors and assigns from and against any and all liability, costs, losses, damages, and expenses (including reasonable attorneys’ fees and expenses) arising out of any claim, suit, or cause of action relating to and/or arising from: (A) your breach of any term of this EULA; (B) your violation of any rights of any third party; or (C) your use or misuse of the Software Product or any component thereof. Your indemnification obligations set forth in the immediately preceding sentence shall expressly survive the termination or expiration of this EULA.
16. EQUITABLE REMEDIES
You agree that Torn Banner would be irreparably damaged if the terms of this EULA were not specifically enforced, and therefore you agree that Torn Banner shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this EULA, in addition to such other remedies Torn Banner may otherwise have available to it under applicable laws. This section shall expressly survive the termination or expiration of this EULA.
17. GOVERNING LAW.
This EULA will be governed by and construed in accordance with the laws of the Province of Ontario and of Canada. This EULA shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. By agreeing to these terms and conditions, in the event of any claim you may have arising from or related to the Software Product or this EULA you agree to the exclusive personal and subject matter jurisdiction of the courts located within Toronto, Canada for making and resolving any such claims. Torn Banner reserves the right to make any claim against you and seek and be granted any legal or equitable remedy against you in any court anywhere in the world.
18. WAIVER & SEVERABILITY.
A failure on the part of Torn Banner to act with respect to a breach by you or others of this EULA does not waive Torn Banner’s right to act with respect to subsequent or similar breaches. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this EULA shall continue in full force and effect.
19. ALL RIGHTS NOT EXPRESSLY GRANTED HEREIN ARE RESERVED BY TORN BANNER.
IMPORTANT, PLEASE READ CAREFULLY
BY EITHER REMOVING THE SHRINK WRAP AND/OR JEWEL CASE SEAL OR DOWNLOADING, INSTALLING, COPYING, OR OTHERWISE USING THIS SOFTWARE PRODUCT, YOU AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS:
1. END USER LICENSE AGREEMENT.
A. This end-user license agreement (“EULA”) is a legal agreement between you (hereinafter sometimes referred to as “you,” “End User” or “Licensee”) and Torn Banner Studios, Inc. (“Torn Banner”) for the Torn Banner software product accompanying this EULA, which includes video game-related software and may include associated media, printed media, and on-line or electronic documentation (collectively, “Software Product”). Without limiting the foregoing, the term “Software Product” also includes: (i) any and all contents, components, attachments, software, media, and code with which this EULA is provided and delivered, whether via a Website (as defined below), tangible media or any other delivery method; (ii) any and all game design, characters, images, graphics, photographs, art, art work, clip art, text, fonts, music, sounds, voices or other sensory content (the “Game Content”); (iii) any and all related explanatory written materials and instructions, and any other possible documentation related thereto (“Documentation”); and (iv) and any and all upgrades, modified versions, patches, corrections, updates, additions, extensions, expansion packs, add-ons, DLC and copies of the Software Product (the “Upgrades”) provided to you by Torn Banner, or authorized licensees of Torn Banner.
B. If you do not agree to the terms of this EULA, you should not install, copy, download or use the Software Product and in which case you should contact your vendor regarding its return policy. If you are purchasing this Software Product from a Torn Banner or third party distributor website (a “Website”) and do not agree, please press “disagree/decline.” You agree that your use of the Software Product acknowledges that you have read this EULA, understand it, and agree to be bound by its terms and conditions, and that you represent and warrant that you are an adult and are either accepting this EULA on behalf of yourself or on behalf of your child or ward, as the case may be. If you have not attained the age of majority, you must obtain the necessary permission in the form required by law from your parents or other legal representatives. No child under the age of 13 is allowed to play the Software Product.
2. OWNERSHIP.
It is hereby understood and agreed that, as between you and Torn Banner, Torn Banner is the owner of all right title and interest to the Software Product, regardless of the media or form of the original download, whether online, by disk or otherwise. You, as licensee, through your downloading, installing, copying or use of this Software Product do not acquire any ownership rights to the Software Product.
3. GENERAL.
A. The Software Product is licensed, not sold, to you by Torn Banner for use only under the terms and conditions of this EULA. The Software Product is protected by copyright and trademark laws and international copyright treaties, as well as other intellectual property laws and treaties. The rights granted herein are limited to Torn Banner’s and its licensors’ intellectual property rights in the Software Product and do not include any other patents or intellectual property rights. The Software Product may contain license management software (also known as digital rights management software) that restricts your use of the Software Product.
B. In the event Torn Banner, in its sole discretion, elects to provide any Software Product-related services or in-game features to you directly in the future, such services and features may be subject to further terms and conditions set forth in an updated or separate EULA.
C. The Software Product requires an Internet connection to play the Software Product, access Internet-based features, authenticate the Software Product, and perform other functions.
4. EULA FOR UPGRADES.
The terms of this EULA will govern any Upgrades provided by Torn Banner that replace and/or supplement the original Software Product, unless such Upgrade is accompanied by a separate license in which case the terms of that license will govern.
5. GRANT OF LICENSE AND RESTRICTIONS.
A. Subject to your agreement to and continuing compliance with this EULA, Torn Banner hereby grants, and you hereby accept, a limited, non-exclusive, non-transferable end user license to: (i) install the Software Product on the local hard disk(s) or other permanent storage media of one (1) computer or other game play device solely owned by you or under your legitimate control (such computer/game play device sometimes referred to herein as a “Unit”); and (ii) use the Software Product for your non-commercial entertainment purposes only.
B. Unless provided otherwise in the Documentation, you shall not display, modify, reproduce or distribute any Game Content, or portion(s) thereof, included with or relating to the Software Product, if any. Any such authorized display, modification, reproduction and distribution shall be in full accord with this EULA and Documentation. Under no circumstances will your use, display, modification, reproduction and distribution of the Game Content or Software Product give you any intellectual property or proprietary rights in the Game Content or Software Product or in any logos and/or trade or service marks of Torn Banner. All right, title, and interest in and to the Software Product belong solely to Torn Banner and its licensors.
C. You shall not:
C.i. Copy or reproduce, auction, loan, lease, rent, sublicense, gift or transfer the Software Product;
C.ii. Electronically transfer the Software Product through a LAN (local area network) or file sharing network; or
C.iii. Modify, adapt, translate, or create derivative works based on the Software Product or any accompanying materials.
Any use of the Software Product in violation of these limitations shall be regarded as an infringement of Torn Banner’s copyrights and/or other rights in and to the Software Product.
D. By accepting the terms of this EULA, you further agree that you shall not, under any circumstances:
D.i. Use, develop, distribute or sell cheats, automation software (bots), hacks or any other unauthorized third-party software designed to modify the Software Product;
D.ii. Exploit the Software Product or any of its parts for any commercial purpose, including without limitation: (a) use at a cyber café, computer gaming center or any other location-based site; or (b) performing in-game services in exchange for payment outside the Software Product, e.g., power-leveling;
D.iii. Remove, disable or circumvent any security protections such as digital rights management, proprietary notices or labels contained on or within the Software Product; or
D.iv. Use any obscene, pornographic, provocative or racist language or material in the Software Product or on the Forums (as defined below) relating to the Software Product.
Any use of the Software Product in violation of these limitations will be regarded as a breach this EULA and will be pursued to the fullest extent permissible under applicable law.
6. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS.
A. From time to time, at Torn Banner’s sole discretion, Torn Banner may provide you with support services related to the Software Product (“Support Services”). Torn Banner reserves the right to alter, suspend, and terminate the Support Services at any time and for any reason. You can contact Torn Banner for Support Services at: contact@tornbanner.com.
B. Any supplemental software, code, content, or media provided to you in the course of Support Services shall be considered part of the Software Product and subject to the terms and conditions of this EULA.
C. You shall not modify, sublicense, assign, or transfer the Software Product or any rights under this EULA, except as expressly provided in this EULA. Any attempt to otherwise sublicense, assign, or transfer any of the rights, duties, or obligations shall be void.
D. Torn Banner shall have the right, at any time, without notice to you to: (i) unilaterally suspend or modify the Software Product process and the Software Product conditions; (ii) modify or delete any information, including statements and declarations, posted by you on chats relating to the Software Product or on forums through which you can communicate with other users of the Software Products (such chats and forums, collectively, the “Forums”); (iii) improve or modify the Software Product, or any of its parts; and (iv) modify the hardware or system requirements to run the Software Product. Torn Banner shall never be liable if the hardware or software performance of your Unit prevents the Software Product from working, even if your Unit meets the minimum hardware or system requirements for the Software Product.
E. You agree to take appropriate measures to ensure the safety of your Platform Account and passwords and to prevent unauthorized use of these by a third party.
F. The Unit on which you play the Software Product must meet minimum system requirements. You acknowledge that the Software Product may contain additional software and/or middleware (“Required Software”) that are necessary to play the Game, and that said Required Software may be installed on your Unit when you install the Software Product.
7. COLLECTION AND USE OF INFORMATION.
By installing and using the Software Product, you consent to the information collection and usage terms set forth in this section and Torn Banner's Privacy Policy http://tornbanner.com/privacy-policy/. Torn Banner may collect information from or about you when you use the Software Product, such as online ID, hardware configuration, gameplay behavior, progress and other data, scores, rankings, achievements, communications between players, browser type, platform type, Internet service provider (ISP) and software usage, which are gathered periodically to facilitate the provision of software updates, product support and other services related to the Software Product. Torn Banner may use any collected information to improve its products, administer the Software Product, analyze trends, or to provide services or technologies to you. In addition, Torn Banner may use your software usage information for the purpose of research, development, administration, support and marketing of Torn Banner products and services. If you do not want your information used or shared in this manner, then you should not use the Software Product
For more information about which information and data Torn Banner may collect from you and how Torn Banner uses it, please read Torn Banner’s Privacy Policy.
8. TERM.
A. This EULA is effective until terminated. Licensee may terminate it at any time by destroying the Software Product, including without limitation all copies, full or partial, and removing all of its component parts. Torn Banner may terminate this EULA at any time for any reason. The term of this EULA runs concurrently with the period during which Licensee uses and retains the Software Product. If the Software Product is transferred (to the extent allowed under this EULA), the EULA is transferred with it.
B. Your rights under this EULA will terminate automatically without notice from Torn Banner if you fail to comply with any term(s) or condition(s) of this EULA. In such event, no notice shall be required by Torn Banner to effect such termination.
C. Upon termination of this EULA for any reason, you shall cease all use of the Software Product and destroy all copies, full or partial, together with all modifications, printed or written materials, and merged portions in any form and remove all component parts of the Software Product which have been downloaded onto your Unit.
9. INTELLECTUAL PROPERTY RIGHTS.
A. As between you and Torn Banner, Torn Banner shall retain and own all right, title, and interest, including without limitation any and all copyrights, trademarks and other intellectual property rights of any kind, in the Software Product and all elements thereof and any modifications or improvements made thereto, including without limitation any Game Content, Upgrades, updates and Documentation.
B. You acknowledge Torn Banner’s exclusive rights in the Software Product and that the Software Product is unique and original to Torn Banner and that Torn Banner is owner thereof. Unless otherwise permitted by law, you shall not, at any time during or after the effective Term of the EULA, dispute or contest, directly or indirectly, Torn Banner’s exclusive right and title to the Software Product or the validity thereof.
C. You shall not attempt to develop any software product that contains the “look and feel” of the Software Product.
D. You hereby expressly agree not to extract information, reverse engineer, disassemble, decompile, or translate the Software Product, or otherwise attempt to derive the source code of the Software Product, except to the extent allowed under any applicable law. In the event that such activities are permitted by applicable law, any information you, or your authorized agent, discover shall be promptly disclosed to Torn Banner and shall be deemed the confidential information of Torn Banner.
E. This section shall expressly survive the termination or expiration of this EULA.
10. USER GENERATED CONTENT
The Software Product may allow you to create certain content (“User Generated Content”), including without limitation maps, levels, screenshots, weapons, armor and other content. In consideration of your use of the Software Product, and to the extent that your User Generated Content gives rise to any copyright interest, you hereby grant Torn Banner an exclusive, perpetual, irrevocable, royalty-free, fully transferable, and sub-licensable worldwide right and license to use your User Generated Content in any way and for any purpose in connection with the Software Product and related goods and services, including without limitation, the rights to reproduce, copy, adapt, modify, perform, display, publish, broadcast, transmit, or otherwise communicate to the public by any means whether now known or unknown and distribute your User Generated Content without any further notice or compensation to you of any kind. You hereby waive and agree never to assert any moral rights of paternity, publication, reputation, or attribution with respect to Torn Banner's and other players’ use and enjoyment of such User Generated Content in connection with the Software Product and related goods and services under applicable law. Torn Banner is under no obligation to use, distribute or continue to distribute User Generated Content, and you understand that Torn Banner may restrict, or remove, your User Generated Content for any reason. You represent and warrant that the User Generated Content, and your grant of rights in such User Generated Content, does not violate any applicable contract, law or regulation, and that the User Generated Content is your original work and does not infringe any third party’s intellectual property rights or any other rights. Torn Banner specifically disclaims any liability with regard to User Generated Content. This provision shall survive any termination of this EULA.
Anyone who believes that their original work has been reproduced as User Generated Content through one of our Software Products in a way that constitutes copyright infringement may notify us by sending an email to contact@tornbanner.com.
11. EXPORT LAW ASSURANCES.
Any download, installation or use of the Software Product involves products and/or technical data
that may be subject to Canadian export or import regulations and may be subject to export or import regulations in other countries. By downloading, installing or otherwise using any Software Product, you are agreeing to comply strictly with all such regulations. You may not export or import the Software Product except as authorized by Canadian law and the laws of the jurisdiction in which the Software Product was obtained.
12. DISCLAIMER OF WARRANTIES.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SOFTWARE PRODUCT IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, AND ACCURACY IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE PRODUCT IS PROVIDED “AS IS,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND TORN BANNER AND TORN BANNER’S AFFILIATES (COLLECTIVELY REFERRED TO AS “TORN BANNER” FOR THE PURPOSES OF SECTIONS 12 AND 13) HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE PRODUCT, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. TORN BANNER DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE PRODUCT, THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE PRODUCT WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE PRODUCT WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TORN BANNER OR A TORN BANNER AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE SOFTWARE PRODUCT PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
13. LIMITATION OF LIABILITY.
A. Torn Banner does not accept liability for: (i) any possible criminal actions committed by End User; (ii) statements of End User, made or published in the Software Product or on the Forums relating to the Software Product, or End User’s behavior in the Software Product, including the conduct, manner and ideology of the in-game characters managed by End User, any actions of in-game characters in the Software Product, and/or any disrespect for other end users and their in-game characters; (iii) End User’s inability to access his/her platform Account (e.g., as the result of End User’s loss of login, password and other information required for participation in the Software Product); or (iv) the loss of End User’s in-game services, including in-game currencies and virtual items.
B. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL TORN BANNER, ITS AFFILIATES OR LICENSEES, BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE PRODUCT OR DEFECT IN OR CAUSED BY THE SOFTWARE PRODUCT, INCLUDING BUT NOT LIMITED TO COMPROMISING THE SECURITY OF YOUR UNIT, OPERATING SYSTEM OR FILES, OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF TORN BANNER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, TORN BANNER’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS EULA SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE PRODUCT OR REPLACEMENT OF THE SOFTWARE PRODUCT WITH PRODUCT OF COMPARABLE RETAIL VALUE, AS TORN BANNER MAY ELECT IN ITS SOLE DISCRETION. BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU IN PART OR WHOLE.
14. DEFECTS AND SECURITY WARNING.
A. WITHOUT LIMITING THE FOREGOING, TORN BANNER DOES NOT ENSURE CONTINUOUS, ERROR-FREE, SECURE OR VIRUS-FREE OPERATION OF THE SOFTWARE PRODUCT.
B. WARNING: BY INSTALLATION AND/OR USE OF THE SOFTWARE PRODUCT, YOU MAY BE INSTALLING INTO YOUR UNIT SOFTWARE THAT IS ALLEGED OR MAY BE ALLEGED TO COMPROMISE THE SECURITY OF YOUR UNIT, ITS OPERATING SYSTEM AND FILES. IF AT ANY TIME YOU WISH TO DE-INSTALL THE SOFTWARE PRODUCT BECAUSE YOU BELIEVE THE SECURITY OF YOUR UNIT, OPERATING SYSTEM OR FILES MAY BE OR HAS BEEN COMPROMISED, YOU MAY NEED TO EXECUTE A SEPARATE ROUTINE TO DE-INSTALL THE FEATURE THAT MAY BE COMPROMISING YOUR SECURITY. DAMAGES YOU MAY RECOVER FOR ANY SUCH ALLEGED SECURITY BREACHES ARE SUBJECT TO THE LIMITATION OF LIABILITY AS SET FORTH HEREIN.
15. INDEMNIFICATION
You hereby agree to indemnify, defend and hold harmless Torn Banner and its affiliates and their respective officers, employees, directors, agents, licensees (excluding you), sublicensees (excluding you), successors and assigns from and against any and all liability, costs, losses, damages, and expenses (including reasonable attorneys’ fees and expenses) arising out of any claim, suit, or cause of action relating to and/or arising from: (A) your breach of any term of this EULA; (B) your violation of any rights of any third party; or (C) your use or misuse of the Software Product or any component thereof. Your indemnification obligations set forth in the immediately preceding sentence shall expressly survive the termination or expiration of this EULA.
16. EQUITABLE REMEDIES
You agree that Torn Banner would be irreparably damaged if the terms of this EULA were not specifically enforced, and therefore you agree that Torn Banner shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this EULA, in addition to such other remedies Torn Banner may otherwise have available to it under applicable laws. This section shall expressly survive the termination or expiration of this EULA.
17. GOVERNING LAW.
This EULA will be governed by and construed in accordance with the laws of the Province of Ontario and of Canada. This EULA shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. By agreeing to these terms and conditions, in the event of any claim you may have arising from or related to the Software Product or this EULA you agree to the exclusive personal and subject matter jurisdiction of the courts located within Toronto, Canada for making and resolving any such claims. Torn Banner reserves the right to make any claim against you and seek and be granted any legal or equitable remedy against you in any court anywhere in the world.
18. WAIVER & SEVERABILITY.
A failure on the part of Torn Banner to act with respect to a breach by you or others of this EULA does not waive Torn Banner’s right to act with respect to subsequent or similar breaches. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this EULA shall continue in full force and effect.
19. ALL RIGHTS NOT EXPRESSLY GRANTED HEREIN ARE RESERVED BY TORN BANNER.