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END USER LICENSE AGREEMENT AND TERMS OF SERVICE
THIS SOFTWARE IS LICENSED, NOT SOLD. Madcow LLC d/b/a GameMill Entertainment and its affiliated companies (collectively, “GameMill” or “We”) reserves all rights not expressly granted to you. The product that is subject to this license is referred to in this license as the “Game Software.”
This is a legal agreement between you and GameMill. Please review this End User License Agreement (“Agreement”) carefully before installing, accessing or utilizing the game you have just purchased. If you are not eighteen (18) years of age, have your parents review this Agreement. By installing, copying and/or otherwise using the Game Software you are signifying your acknowledgement, acceptance and agreement to this Agreement.
IMPORTANT – READ CAREFULLY: BY INSTALLING, COPYING AND/OR OTHERWISE USING THIS GAME, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND THE TERMS SET FORTH BELOW. THE “GAME SOFTWARE” INCLUDES ALL SOFTWARE INCLUDED WITH THE GAME, THE ASSOCIATED MEDIA, ANY UPDATES AND UPGRADES, ANY PRINTED MATERIALS, ANY ONLINE OR ELECTRONIC DOCUMENTATION, AND ANY AND ALL COPIES OF SUCH SOFTWARE AND MATERIALS. THE AGREEMENT INCORPORATES THE GAMEMILL PRIVACY POLICY BELOW AND AS PUBLISHED AT www.GameMill.com/privacy.
1. LICENSE
Subject to your compliance with the terms and conditions of the Agreement, GameMill hereby grants you a non-exclusive, non-transferable, limited right and license to install and use the Game Software solely and exclusively for your personal and non-commercial use. This Agreement shall also apply to any patches, updates or related services we may provide you related to the Game Software.
Except as expressly licensed to you herein, all right, title, and interest in and to the Game Software and any and all associated copyrights, trademarks and intellectual properties therein and/or related thereto and all copies thereof (including, but not limited to, any patches, updates, copies, derivative works, titles, computer code, themes, objects, characters, character names, stories, dialogs, catch phrases, locations, concepts, artwork, images, animation, sounds, musical compositions, audio-visual effects, text, methods of operation, moral rights, and any related documentation) are owned by GameMill or GameMill’s licensors.
The Game Software is protected by the copyright laws of the United States, international copyright treaties and conventions, and other laws. All rights are reserved. The Game Software contains certain licensed materials, and GameMill and GameMill’s licensors may protect their rights in the event of any violation of this Agreement. GameMill does not recognize the transfer of the Game Software. Therefore, you may not give, purchase, sell, bargain, barter, market, trade, offer for sale, sell, license, assign or otherwise divest your rights, responsibilities or obligations under the Agreement, either in whole or in part, without the prior written consent of GameMill. Any attempt to do so shall be void and of no effect.
You agree to only use the Game Software, or any part of it, in a manner that is consistent with this Agreement, and you SHALL NOT:
(a) sell, rent, lease, license, distribute or otherwise transfer the Game Software or any copies thereof;
(b) reverse engineer, derive source code, modify, decompile, disassemble, copy, or create derivative works of the Game Software, in whole or in part (except as the applicable law expressly permits, in which case all and any modifications, adaptations, copies, improvements, etc. shall belong to, vest in and be the exclusive property of GameMill and/or its licensors on creation, in any event);
(c) remove, disable or circumvent any security protections, proprietary notices or labels contained on or within the Game Software; or
(d) export or re-export the Game Software or any copy or adaptation in violation of any applicable laws or regulations;
Furthermore, you agree that you shall abide by the safety information, maintenance instructions or other relevant notices contained in the manual or other documentation accompanying the Game Software.
2. TERMS OF SERVICE
You are also agreeing to other GameMill rules and policies that are related to your use of the Game Software and any other GameMill services and websites (“collectively, “Services”) which are set forth herein. Please read them carefully: We may update these Terms from time to time; you should check our website regularly to take notice of any changes. Your continued use of the Services following the posting of revised Terms means that you accept and agree to the changes.
You and GameMill agree to resolve disputes between us in individual arbitration (not in court). We believe the alternative dispute-resolution process of arbitration will resolve any dispute fairly and more quickly and efficiently than formal court litigation. We explain the process in detail below, but we’ve put this up front (and in caps) because it’s important:
THESE TERMS CONTAINS A BINDING, INDIVIDUAL ARBITRATION AND CLASS-ACTION WAIVER PROVISION. IF YOU ACCEPT THESE TERMS, YOU AND GAMEMILLAGREE TO RESOLVE DISPUTES IN BINDING, INDIVIDUAL ARBITRATION AND GIVE UP THE RIGHT TO GO TO COURT INDIVIDUALLY OR AS PART OF A CLASS ACTION, AND GAMEMILLAGREES TO PAY YOUR ARBITRATION COSTS FOR ALL DISPUTES OF UP TO $10,000 THAT ARE MADE IN GOOD FAITH (SEE BELOW).
TO ENTER INTO THE CONTRACT CREATED BY THESE TERMS, YOU MUST BE AN ADULT OF THE LEGAL AGE OF MAJORITY IN YOUR COUNTRY OF RESIDENCE. YOU ARE LEGALLY AND FINANCIALLY RESPONSIBLE FOR ALL ACTIONS USING OR ACCESSING OUR SOFTWARE, INCLUDING THE ACTIONS OF ANYONE YOU ALLOW TO ACCESS TO YOUR ACCOUNT. YOU AFFIRM THAT YOU HAVE REACHED THE LEGAL AGE OF MAJORITY, UNDERSTAND AND ACCEPT THESE TERMS (INCLUDING ITS DISPUTE RESOLUTION TERMS). IF YOU ARE UNDER THE LEGAL AGE OF MAJORITY, YOUR PARENT OR LEGAL GUARDIAN MUST CONSENT TO THESE TERMS.
THE FOLLOWING TERMS AND CONDITIONS (“TERMS”) APPLY TO YOUR USE OF THE PRODUCTS AND WEBSITES OF MADCOW LLC, d/b/a GAMEMILL ENTERTAINMENT. AND ITS AFFILIATES (“GAMEMILL”, “WE” “US” OR “OUR”), INCLUDING ANY CONTENT, FUNCTIONALITY, PRODUCTS, AND SERVICES OFFERED ON OR THROUGH SUCH WEBSITES (COLLECTIVELY, THE “WEBSITE”), WHETHER AS A GUEST OR A REGISTERED USER. THESE TERMS ALSO APPLY TO YOUR USE OF OTHER GAMEMILLSERVICES THAT DISPLAY OR INCLUDE THESE TERMS (“ADDITIONAL SERVICES”). IN THESE TERMS, THE WEBSITE AND ADDITIONAL SERVICES ARE COLLECTIVELY REFERRED TO AS THE “SERVICES.”
3. PRIVACY POLICY
Safeguarding the privacy of our customers is of the highest priority for us, and this Privacy Policy explains how we treat your personal information. By using our website, you are agreeing to this Privacy Policy and consent to our use of cookies in accordance with its terms. We reserve the right to modify this Privacy Policy from time to time.
A. COLLECTION OF PERSONAL INFORMATION We may collect, store, and use the following kinds of personal information: a) Information about your computer and about your visits to and use of this website (including your IP address, geographical location, browser type and version, operating system, referral source, length of visit, page views and website navigation paths); b) Information contained in or relating to any communication that you send to us or send through our website (including the communication content and metadata associated with the communication, your name, and email address); c) Information that you post to our website for publication on the Internet (including your username, your profile pictures, your social media profile, and the content of your posts); d) Any other personal information that you choose to share with us. Before you disclose to us the personal information of another person, you must obtain that person’s consent to both the disclosure and the processing of that personal information in accordance with this Privacy Policy.
B. USES OF PERSONAL INFORMATION Personal information submitted to us through our website will be used for the purposes specified in this Privacy Policy or on the relevant pages of the website. We may use your personal information to: a) Administer our website and business; b) Personalize our website for you; c) Enable your use of the services available on our website; d) Send you non-marketing commercial communications; e) Provide third parties with statistical information about our users (but those third parties will not be able to identify any individual user from that information); f) Deal with enquiries and complaints made by or about you relating to our website; g) Keep our website secure and prevent fraud; h) Verify compliance with the terms and conditions governing the use of our website. If you submit personal information for publication on our website, we will publish and otherwise use that information in accordance with the license you grant to us. We will not, without your express consent, supply your personal information to any third party for the purpose of their or any other third party’s direct marketing.
C. DISCLOSURE OF PERSONAL INFORMATION We may disclose your personal information to any of our employees, officers, insurers, professional advisers, agents, suppliers or subcontractors insofar as reasonably necessary for the purposes set out in this Privacy Policy. We may disclose your personal information: a) To the extent that we are required to do so by law; b) In connection with any on-going or prospective legal proceedings; c) In order to establish, exercise or defend our legal rights (including providing information to others for the purposes of fraud prevention and reducing credit risk); d) To the purchaser (or prospective purchaser) of any business or asset that we are (or are contemplating) selling; e) To any person who we reasonably believe may apply to a court or other competent authority for disclosure of that personal information where, in our reasonable opinion, such court or authority would be reasonably likely to order disclosure of that personal information. Except as provided in this Privacy Policy, we will not provide your personal information to third parties.
D. INTERNATIONAL DATA TRANSFERS Information that we collect may be stored and processed in and transferred between any of the countries in which we operate in order to enable us to use the information in accordance with this Privacy Policy. Information that we collect may be transferred to the following countries which do not have data protection laws equivalent to those in force in the European Economic Area: (including) the United States of America, Russia, Japan, China, and India). Personal information that you publish on our website or submit for publication on our website may be available, via the Internet, around the world. We cannot prevent the use or misuse of such information by others. You expressly agree to the transfers of personal information described in this Section 4.
E. RETAINING PERSONAL INFORMATION Our data retention policies and procedures are designed to help ensure that we comply with our legal obligations in relation to the retention and deletion of personal information. Personal information that we process for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes. Notwithstanding the other provisions of this Section, we will retain documents (including electronic documents) containing personal data: a) To the extent that we are required to do so by law; b) If we believe that the documents may be relevant to any on-going or prospective legal proceedings;c) In order to establish, exercise or defend our legal rights (including providing information to others for the purposes of fraud prevention and reducing credit risk).
F. SECURITY OF PERSONAL INFORMATION We will take reasonable technical and organizational precautions to prevent the loss, misuse or alteration of your personal information. We will store all the personal information you provide on our secure (password- and firewall-protected) servers. You acknowledge that the transmission of information over the Internet is inherently insecure, and we cannot guarantee the security of data sent over the Internet.
G. AMENDMENTS We may update this Privacy Policy from time to time by publishing a new version on our website. You should check this page occasionally to ensure you are happy with any changes to this Privacy Policy. We may notify you of changes to this Privacy Policy by email or through the private messaging system on our website, or on our social channels.
H. YOUR RIGHTS You may instruct us to provide you with any personal information we hold about you; provision of such information will be subject to the supply of appropriate evidence of your identity (for this purpose, we will usually accept a photocopy of your passport certified by a solicitor or bank, plus an original copy of a utility bill showing your current address). We may withhold personal information that you request to the extent permitted by law. You may instruct us at any time not to process your personal information for marketing purposes. In practice, you will usually either expressly agree in advance to our use of your personal information for marketing purposes, or we will provide you with an opportunity to opt out of the use of your personal information for marketing purposes.
I. THIRD PARTY WEBSITES Our services may include hyperlinks to, and details of, third party websites and services. You agree that we have no control over, and are not responsible for, the privacy policies and practices of third parties.
J. UPDATING INFORMATION Please let us know if the personal information that we hold about you needs to be corrected or updated.
K. COOKIES Our website uses cookies. A cookie is a file containing an identifier (a string of letters and numbers) that is sent by a web server to a web browser and is stored by the browser. The identifier is then sent back to the server each time the browser requests a page from the server. Cookies may be either “persistent” cookies or “session” cookies: a persistent cookie will be stored by a web browser and will remain valid until its set expiry date, unless deleted by the user before the expiry date; a session cookie, on the other hand, will expire at the end of the user session, when the web browser is closed. We may use both session and persistent cookies on our website. Cookies do not typically contain any information that personally identifies a user, but personal information that we store about you may be linked to the information stored in and obtained from cookies. Most browsers allow you to refuse to accept cookies. If you block cookies, you will may not be able to use all the features on our website. You can delete cookies already stored on your computer. Deleting cookies will have a negative impact on the usability of many websites.
4. ACCESSING THE SERVICES AND ACCOUNT SECURITY
To access certain Services, you will be asked to provide registration details or other information, and in order to use such resources, all the information you provide must be correct, current, and complete. From time to time, in order to access the Services or certain games, services, or functionality, GameMill may require some or all users to download updated or additional software. The terms of use of such software may be subject to separate agreement between you and GameMill.
If you choose, or are provided with, a user name, password, or any other piece of information as part of our security procedures, you must treat such information as confidential (other than user name), and you must not disclose it to others. You must immediately notify GameMill of any unauthorized use of your user name or password or any other breach of security. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information. You may only access the Services through your own account. Users do not own their accounts, and gifting or otherwise transferring of accounts or access keys is prohibited.
We reserve the right to change your display name if we deem it offensive, misleading, potentially infringing the rights of third parties or if you have been inactive for more than a year.
Photosensitivity: Certain people may react to certain visual images or patterns, including flashing lights (regardless of whether they have a diagnosed condition or history). Reactions may be reduced by playing in a well-lit room, avoiding playing while drowsy, viewing the game from some distance or on a smaller screen, and limiting duration of use.
5. PROHIBITED USES
You may use the Services only for lawful purposes and in accordance with these Terms of Service. You agree not to access or use the Services for any purpose that is illegal or beyond the scope of the Services’ intended use (in GameMill’s sole judgment).
6. USER CONTRIBUTIONS
The Services may contain various forums, networks, and other interactive features that allow you to post, submit, publish, display, or transmit to GameMill and other users (“Post”) content or materials (“User Contributions”) on or through the Services.
All User Contributions must comply with the following content standards: User Contributions must not be illegal, fraudulent, deceptive, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties or objectionable, and must not consist of or contain software viruses, commercial solicitation, chain letters, mass mailings, or any form of “spam.”
Any User Contribution that you Post will be considered non-confidential and non-proprietary, and you grant GameMill a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, copy, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such User Contribution throughout the world in any media; however, GameMill will only share personal information that you provide in accordance with GameMill’s Privacy Policy.
You represent and warrant that you own or otherwise control all of the rights to the User Contributions that you Post at the time of Posting; that the User Contributions are accurate and not fraudulent or deceptive; and that the User Contributions do not violate these Terms or the rights (intellectual property rights or otherwise) of any third party, and will not cause injury to any person or entity. You understand that your User Contributions may be copied by other Services users and discussed on and outside of the Services, and if you do not have the right to submit User Contributions for such use, it may subject you to liability. GameMill takes no responsibility and assumes no liability for any content Posted by you or any third party.
GameMill has the right but not the obligation to monitor and edit or remove any User Contributions. GameMill also has the right to terminate your access to all or part of the Services for any or no reason, including without limitation, any violation of these Terms. GameMill may exercise these rights at any time, without notice or liability to you or any third party.
7. INDEMNIFICATION
This section only applies to the extent permitted by applicable law. If you are prohibited by law from entering into the indemnification obligation below, then you assume, to the extent permitted by law, all liability for all claims, demands, actions, losses, liabilities, and expenses (including attorneys’ fees, costs and expert witnesses’ fees) that are the stated subject matter of the indemnification obligation below.
You agree to defend, indemnify, and hold harmless GameMill, its affiliates, and licensors, and their respective officers, directors, employees, contractors, agents, licensors, and suppliers from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) resulting from your User Contributions or violation of these Terms.
8. GOVERNING LAW AND JURISDICTION
Any dispute or claim by you arising out of or related to these Terms shall be governed by Minnesota law, exclusive of its choice of law rules. For any disputes deemed not subject to binding individual arbitration, as provided in the section immediately below, you and GameMill agree to submit to the exclusive jurisdiction of the state or federal courts in Hennepin County, MN. You and GameMill agree to waive any jurisdictional, venue, or inconvenient forum objections to such courts (without affecting either party’s rights to remove a case to federal court if permissible), as well as any right to a jury trial. The Convention on Contracts for the International Sale of Goods will not apply. Any law or regulation which provides that the language of a contract shall be construed against the drafter will not apply to these Terms. This paragraph will be interpreted as broadly as applicable law permits.
9. BINDING INDIVIDUAL ARBITRATION; NO CLASS ACTIONS
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
Most issues can be resolved quickly and amicably by contacting GameMill, but we understand that sometimes disputes can’t be easily resolved by customer support. This Section explains how You and GameMill agree to resolve those disputes, including (where applicable) by binding, individual arbitration.
Arbitration is an alternative dispute-resolution procedure that allows us to resolve issues without the formality of going to court. Any dispute between You and GameMillis submitted to a neutral arbitrator (not a judge or jury) for fair and fast resolution. Arbitration is more efficient for both you and GameMill.
1. Informal Resolution:
If you have an issue that our customer support can’t resolve, prior to starting arbitration You and GameMill agree to attempt to resolve the dispute informally to help get us to a resolution and control costs for both parties. You and GameMill agree to make a good-faith effort to negotiate any dispute between us for at least 30 days (“Informal Resolution”). Those informal negotiations will start on the day You or GameMill receive a written Notice of a Dispute in accordance with these Terms.
You will send your Notice of Dispute to Madcow, LLC, ATTN: NOTICE OF DISPUTE, 6600 France Avenue South, Suite 680, Edina, MN 55345. Include your name, any relevant account name you use, address, how to contact you, what the problem is, and what you want GameMill to do. If GameMill has a dispute with You, GameMill will send our Notice of Dispute to your registered email address and any billing address You have provided us.
If you reside in the European Union (“EU”), You may also be entitled to submit Your complaint to the European Commission’s Online Dispute Resolution (ODR) Platform. ODR allows EU consumers to resolve disputes related to the online purchases of goods and services without going to court.
If the dispute isn’t resolved within by Informal Resolution or small-claims court (below), You or GameMill may start an arbitration in accordance with these Terms.
2. Small Claims Court:
Instead of using Informal Resolution, You and GameMill agree that You may sue us in small-claims court in your choice of the county where you live or Hennepin County, Minnesota (if you meet the requirements of small-claims court). We hope you’ll try Informal Resolution first, but you don’t have to before going to small-claims court.
3. Binding Individual Arbitration:
THE ARBITRATION PROCEEDINGS IN THIS SECTION WILL BE CONDUCTED ON AN INDIVIDUAL BASIS ONLY.
You and GameMill agree that Disputes will be settled by binding individual arbitration conducted by the Judicial Arbitration Mediation Services, Inc. (“JAMS”) subject to the U.S. Federal Arbitration Act and federal arbitration law and according to the JAMS Streamlined Arbitration Rules and Procedures effective July 1, 2014 (the “JAMS Rules”) as modified by these Terms.
This means that You and GameMill agree to a dispute-resolution process where we submit any Dispute to a neutral arbitrator (not a judge or jury) that makes the final decision to resolve the Dispute. JAMS uses experienced professionals to arbitrate disputes, which helps You and GameMill resolve any disputes fairly, but more quickly and efficiently than going to court. The arbitrator may award the same remedies to you individually as a court could, but only to the extent required to satisfy your individual claim.
The arbitrator’s decision is final, except for a limited review by courts under the U.S. Federal Arbitration Act, and can enforced like any other court order or judgment.
3.1 Disputes We Agree to Arbitrate:
You and GameMill agree to submit all Disputes between You and GameMill to individual binding arbitration. “Dispute” means any dispute, claim, or controversy (except those specifically exempted below) between You and GameMill that relates to your use or attempted use of GameMill’s products or services and GameMill’s products and services generally, including without limitation the validity, enforceability, or scope of this Binding Individual Arbitration section.
You and GameMill agree to arbitrate all Disputes regardless of whether the Dispute is based in contract, statute, regulation, ordinance, tort (including fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory.
The Informal Resolution and Arbitration sections do not apply to (1) individual actions in small-claims court; (2) pursuit of enforcement actions through a government agency if the law allows; (3) a complaint or remedy under the EU General Data Protection Regulation; (4) an action to compel or uphold any prior arbitration decision; (5) GameMill’s right to seek injunctive relief against You in a court of law to preserve the status quo while an arbitration proceeds; (6) claims of piracy, creation, distribution, or promotion of Cheats, and intellectual-property infringement, and (7) the enforceability of the Class Action Waiver clause below.
You and GameMill agree that whether a dispute is subject to arbitration under these Terms will be determined by the arbitrator rather than a court.
3.2 Arbitration Procedure:
To start an arbitration, review the JAMS Rules and follow the instructions for initiating an arbitration on the JAMS website. The party starting an arbitration must send JAMS a “Demand for Arbitration” (available on its website), pay a filing fee, and mail a copy of the Demand for Arbitration to the opposing party. You will send a copy to Madcow, LLC, ATTN: NOTICE OF DISPUTE, 6600 France Avenue South, Suite 680, Edina, MN 55345. GameMill will send our copy to your registered email address and any billing address You have provided us.
The arbitration will be conducted by a single JAMS arbitrator selected with substantial experience in resolving intellectual-property and commercial-contract disputes. You and GameMill both agree that the arbitration will be conducted in the English language and that the arbitrator will be bound by these Terms.
If an in-person hearing is required, the hearing will take place either in Hennepin County, MN, or where You reside; you choose.
The arbitrator (not a judge or jury) will resolve the Dispute. Unless You and GameMill agree otherwise, any decision or award will include a written statement stating the decision of each claim and the basis for the award, including the arbitrator’s essential factual and legal findings and conclusions.
The arbitrator may only award legal or equitable remedies that are requested by You or GameMill to satisfy one of our individual claims (that the arbitrator determines are supported by credible relevant evidence). The arbitrator may not award relief against GameMill respecting any person other than You.
Any decision or award may be enforced as a final judgment by any court of competent jurisdiction or, if applicable, application may be made to such court for judicial acceptance of any award and an order of enforcement.
3.3 Arbitration Fees and Location:
If You start the arbitration, you must pay the JAMS filing fee required for consumer arbitrations.
In some situations, GameMill will help with your fees to (hopefully) get us to a resolution quickly and fairly:
If the Dispute involves $10,000 or less, GameMill will pay all of the JAMS costs, including the fees you otherwise would have been required to pay.
If the above doesn’t apply to You, but You demonstrate that arbitration costs will be prohibitive compared to litigation costs, GameMill will pay as much of your JAMS costs as the arbitrator finds is necessary to prevent arbitration from being cost-prohibitive (as compared to the cost of litigation).
Even if GameMill wins the arbitration and the applicable law or the JAMS Rules allow GameMill to seek our portion of the JAMS fees from you, we won’t.
The fee assistance offered above is contingent upon You bringing the arbitration claim in “good faith”. If the arbitrator finds You brought an arbitration claim against GameMill for an improper purpose, frivolously, or without a sufficient pre-claim investigation into the facts or applicable law, then the payment of all fees will be governed by the JAMS rules.
JAMS costs do not include your Attorneys’ fees and costs and Attorneys’ fees and JAMS costs are not counted when determining how much a dispute involves.
GameMill won’t seek our attorneys’ fees or expenses from you in any arbitration, even if the law or the JAMS rules entitle us to do so. If you choose to be represented by an attorney, you will pay your own attorneys’ fees and costs unless the applicable law provides otherwise.
3.4 Notice and Filing:
If a Dispute must be arbitrated, You or GameMill must start arbitration of the Dispute within two (2) years from when the Dispute first arose. If applicable law requires you to bring a claim for a Dispute sooner than two years after the Dispute first arose, you must start arbitration in that earlier time period. GameMill encourages You to tell us about a Dispute as soon as possible so we can work to resolve it. The failure to provide timely notice shall bar all claims.
3.5 Continuation in Effect:
This Binding Individual Arbitration section survives any termination of these Terms or GameMill’s provision of services to You.
3.6 Future Terms Changes:
Although GameMill may revise these Terms in its discretion, GameMill does not have the right to alter these Terms to arbitrate or the rules specified herein with respect to any Dispute once that Dispute has commenced.
4. Class Action Waiver:
To the maximum extent permitted by applicable law, You and GameMill agree to only bring Disputes in an individual capacity and shall not:
seek to bring, join, or participate in any class or representative action, collective or class-wide arbitration, or any other action where another individual or entity acts in a representative capacity (e.g., private attorney general actions); or
consolidate or combine individual proceedings or permit an arbitrator to do so without the express consent of all parties to these Terms and all other actions or arbitrations.
5. Severability:
If all or any provision of this Binding Individual Arbitration agreement is found invalid, unenforceable, or illegal, then You and GameMill agree that the provision will be severed and the rest of these Terms shall remain in effect and be construed as if any severed provision had not been included. The sole exception is that if the Class Action Waiver is found invalid, unenforceable, or illegal, You and GameMill agree that it will not be severable; this entire Binding Individual Arbitration section will be void and unenforceable and any dispute will be resolved in court subject to the venue and choice of clauses specified in these Terms. Under no circumstances shall arbitration be conducted on a class basis without GameMill’s express consent.
10. LANGUAGE
To the fullest extent permitted by law, the controlling language for these Terms is English. It is the express wish of the parties that these Terms and all related documents have been drawn up in English. Les parties déclarent qu’elles ont demandé et par les présentes confirment leur desir exprés que cette convention soit rédigee en anglais. Any translation has been provided for your convenience.
11. WAIVER AND SEVERABILITY
No waiver of these Terms by GameMill shall be deemed a further or continuing waiver of such term or condition or any other term or condition, and any failure of GameMill to assert a right or provision under these Terms shall not constitute a waiver of such right or provision.
If any provision of these Terms is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of these Terms will continue in full force and effect.
12. NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT
In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable law, GameMill has adopted a policy of terminating, in appropriate circumstances as determined by GameMill, users or account holders who are deemed to be repeat infringers of the copyrights of others. GameMill may also at its sole discretion limit access to the Services and/or update, transfer, suspend, or terminate the accounts of any users who infringe the intellectual property rights of others, whether or not there is any repeat infringement.
If you believe that your work has been used on the Website or in any other Services in a way that constitutes copyright infringement, please submit a Notice of Alleged Infringement (“DMCA Notice”) to our Designated Copyright Agent as follows:
Legal Department
GameMill Entertainment
6600 France Avenue South
Suite 680
Edina, MN
Please include all of the following in your DMCA Notice:
• Identify the copyrighted work that you claim has been infringed. If your DMCA Notice covers multiple works, you may provide a representative list of such works.
• Identify the material that you claim is infringing, including a description of where the material is located. Your description must be reasonably sufficient to enable us to locate the material. Where possible, please include the URL of the webpage where the material is located.
• Provide your full legal name, mailing address, telephone number, and (if available) e-mail address.
• Include the following statement in the body of the DMCA Notice:
• I have a good-faith belief that the use of the material is not authorized by the copyright owner, its agent, or the law. I represent that the information in this DMCA Notice is accurate and, under penalty of perjury, that I am the owner of the copyright or authorized to act on the copyright owner’s behalf.
• Provide your electronic or physical signature.
• Please note that under 17 U.S.C. 512(f), if you knowingly misrepresent that material or activity is infringing, you may be liable for damages, including costs and attorneys’ fees, incurred by us or our users. If you are unsure whether the material or activity you are reporting is infringing, you may wish to contact an attorney before filing a notification with us.
13. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
Nothing in these Terms will prejudice the statutory rights that you may have as a consumer of the Services. Some countries, states, provinces or other jurisdictions do not allow the exclusion of certain warranties or the limitation of liability as stated in this section, so the below terms may not fully apply to you. Instead, in such jurisdictions, the exclusions and limitations below shall apply only to the extent permitted by the laws of such jurisdictions.
The Services and all information, content, materials, products (including software), and other services included on or otherwise made available to you through the Services are provided by GameMill on an “as is” and “as available” basis. GameMill makes no representations or warranties of any kind, express or implied, as to the operation of the Services, or the information, content, materials, products (including software), or other services included on or otherwise made available to you through the Services. You expressly agree that your use of the Services is at your sole risk. To the full extent permissible by law, GameMill disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose. GameMill does not warrant that the Services, information, content, materials, products (including software) or other services included on or otherwise made available to you through the Services, GameMill’s servers, or electronic communications sent from GameMill are free of viruses or other harmful components.
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, YOU EXPRESSLY AGREE THAT THE USE OF THE GAME SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL MATERIALS AND GAME SOFTWARE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND GAMEMILL HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE GAME SOFTWARE, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY THAT (A) THE GAME SOFTWARE WILL MEET YOUR REQUIREMENTS, (B) THE GAME SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) THE GAME SOFTWARE WILL BE INTERAOPERABLE OR COMPATABILE WITH OTHER SOFTWARE, OR (D) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE GAME SOFTWARE WILL BE EFFECTIVE, ACCURATE OR RELIABLE. AT SOME POINT IN THE FUTURE THE GAME SOFTWARE MAY GO OUT OF DATE, AND GAMEMILL MAKES NO COMMITMENT TO UPDATE SUCH GAME SOFTWARE.
YOU ACKNOWLEDGE AND AGREE THAT YOUR EXCLUSIVE REMEDY FOR ANY DISPUTE WITH GAMEMILL IS TO STOP USING THE GAME SOFTWARE. IN NO CASE SHALL ANY LIABILITY OF GAMEMILL TO YOU EXCEED THE AMOUNT THAT YOU PAID TO GAMEMILL OR ITS AFFILIATES AND/OR DESIGNEES FOR THE APPLICABLE GAME SOFTWARE GIVING RISE TO ANY SUCH LIABILITY. IN NO EVENT SHALL GAMEMILL OR ITS AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND. 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 GAMEMILL AND THE GAMEMILL PARTIES SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
Residents of California are entitled to the following specific consumer rights information: you may contact the Complaint Assistance Unit of the Division of Consumer Software of the Department of Consumer Affairs by mail at 400 R St., Suite 1080, Sacramento, California, 95814, or by telephone at 916.445.1254. California residents expressly agree to waive California Civil Code Sec. 1542, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
14. MISCELLANEOUS
This Agreement represents the complete agreement between you and GameMill concerning the Game Software and Services generally, and supersedes all prior agreements and representations, warranties or understandings between you and GameMill (whether negligently or innocently made but excluding those made fraudulently), regarding the same subject matter. GameMill reserves the right to amend this Agreement at any time, at its sole discretion. If any part of the Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement shall continue in effect. Any failure by us to enforce or exercise any provision of the Agreement or related rights shall not constitute a waiver of that right or provision.
GameMill may assign this Agreement, in whole or in part, at any time. Notwithstanding, you may not assign, transfer or sublicense any or all of your rights or obligations under the Agreement without GameMill’s express prior written consent. GameMill’s performance of the Agreement is subject to existing laws and legal process, and nothing contained in the Agreement is in derogation of GameMill’s right to comply with governmental, court, and law enforcement requests or requirements relating to your use of the Game Software or information provided to or gathered by GameMill with respect to such use. In addition to any excuse provided by applicable law, we shall be excused from liability for non-delivery or delay in delivery of the Game Software arising from any event beyond our reasonable control, whether or not foreseeable by either party, including but not limited to, labor disturbance, war, terrorism, fire, denial of service attack, internet outages, accident, adverse weather, inability to secure transportation, governmental act or regulation, and other causes or events beyond our reasonable control, whether or not similar to those which are enumerated above. The parties agree that all correspondence relating to this Agreement shall be written in the English language.
This Agreement shall be construed under Minnesota law as such law is applied to agreements between Minnesota residents entered into and to be performed within Minnesota, except as governed by federal law, and you consent to the exclusive jurisdiction of the state and federal courts in Hennepin County, Minnesota.
You may contact GameMill at the following address:
GameMill Entertainment
6600 France Avenue South
Suite 680
Edina, Minnesota 55435
I HEREBY ACKNOWLEDGE THAT I HAVE READ AND UNDERSTAND THE FOREGOING END USER LICENSE AGREEMENT AND AGREE THAT MY USE OF THE GAME SOFTWARE IS AN ACKNOWLEDGMENT OF MY AGREEMENT TO BE BOUND BY THE END USER LICENSE AGREEMENT.
THIS SOFTWARE IS LICENSED, NOT SOLD. Madcow LLC d/b/a GameMill Entertainment and its affiliated companies (collectively, “GameMill” or “We”) reserves all rights not expressly granted to you. The product that is subject to this license is referred to in this license as the “Game Software.”
This is a legal agreement between you and GameMill. Please review this End User License Agreement (“Agreement”) carefully before installing, accessing or utilizing the game you have just purchased. If you are not eighteen (18) years of age, have your parents review this Agreement. By installing, copying and/or otherwise using the Game Software you are signifying your acknowledgement, acceptance and agreement to this Agreement.
IMPORTANT – READ CAREFULLY: BY INSTALLING, COPYING AND/OR OTHERWISE USING THIS GAME, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND THE TERMS SET FORTH BELOW. THE “GAME SOFTWARE” INCLUDES ALL SOFTWARE INCLUDED WITH THE GAME, THE ASSOCIATED MEDIA, ANY UPDATES AND UPGRADES, ANY PRINTED MATERIALS, ANY ONLINE OR ELECTRONIC DOCUMENTATION, AND ANY AND ALL COPIES OF SUCH SOFTWARE AND MATERIALS. THE AGREEMENT INCORPORATES THE GAMEMILL PRIVACY POLICY BELOW AND AS PUBLISHED AT www.GameMill.com/privacy.
1. LICENSE
Subject to your compliance with the terms and conditions of the Agreement, GameMill hereby grants you a non-exclusive, non-transferable, limited right and license to install and use the Game Software solely and exclusively for your personal and non-commercial use. This Agreement shall also apply to any patches, updates or related services we may provide you related to the Game Software.
Except as expressly licensed to you herein, all right, title, and interest in and to the Game Software and any and all associated copyrights, trademarks and intellectual properties therein and/or related thereto and all copies thereof (including, but not limited to, any patches, updates, copies, derivative works, titles, computer code, themes, objects, characters, character names, stories, dialogs, catch phrases, locations, concepts, artwork, images, animation, sounds, musical compositions, audio-visual effects, text, methods of operation, moral rights, and any related documentation) are owned by GameMill or GameMill’s licensors.
The Game Software is protected by the copyright laws of the United States, international copyright treaties and conventions, and other laws. All rights are reserved. The Game Software contains certain licensed materials, and GameMill and GameMill’s licensors may protect their rights in the event of any violation of this Agreement. GameMill does not recognize the transfer of the Game Software. Therefore, you may not give, purchase, sell, bargain, barter, market, trade, offer for sale, sell, license, assign or otherwise divest your rights, responsibilities or obligations under the Agreement, either in whole or in part, without the prior written consent of GameMill. Any attempt to do so shall be void and of no effect.
You agree to only use the Game Software, or any part of it, in a manner that is consistent with this Agreement, and you SHALL NOT:
(a) sell, rent, lease, license, distribute or otherwise transfer the Game Software or any copies thereof;
(b) reverse engineer, derive source code, modify, decompile, disassemble, copy, or create derivative works of the Game Software, in whole or in part (except as the applicable law expressly permits, in which case all and any modifications, adaptations, copies, improvements, etc. shall belong to, vest in and be the exclusive property of GameMill and/or its licensors on creation, in any event);
(c) remove, disable or circumvent any security protections, proprietary notices or labels contained on or within the Game Software; or
(d) export or re-export the Game Software or any copy or adaptation in violation of any applicable laws or regulations;
Furthermore, you agree that you shall abide by the safety information, maintenance instructions or other relevant notices contained in the manual or other documentation accompanying the Game Software.
2. TERMS OF SERVICE
You are also agreeing to other GameMill rules and policies that are related to your use of the Game Software and any other GameMill services and websites (“collectively, “Services”) which are set forth herein. Please read them carefully: We may update these Terms from time to time; you should check our website regularly to take notice of any changes. Your continued use of the Services following the posting of revised Terms means that you accept and agree to the changes.
You and GameMill agree to resolve disputes between us in individual arbitration (not in court). We believe the alternative dispute-resolution process of arbitration will resolve any dispute fairly and more quickly and efficiently than formal court litigation. We explain the process in detail below, but we’ve put this up front (and in caps) because it’s important:
THESE TERMS CONTAINS A BINDING, INDIVIDUAL ARBITRATION AND CLASS-ACTION WAIVER PROVISION. IF YOU ACCEPT THESE TERMS, YOU AND GAMEMILLAGREE TO RESOLVE DISPUTES IN BINDING, INDIVIDUAL ARBITRATION AND GIVE UP THE RIGHT TO GO TO COURT INDIVIDUALLY OR AS PART OF A CLASS ACTION, AND GAMEMILLAGREES TO PAY YOUR ARBITRATION COSTS FOR ALL DISPUTES OF UP TO $10,000 THAT ARE MADE IN GOOD FAITH (SEE BELOW).
TO ENTER INTO THE CONTRACT CREATED BY THESE TERMS, YOU MUST BE AN ADULT OF THE LEGAL AGE OF MAJORITY IN YOUR COUNTRY OF RESIDENCE. YOU ARE LEGALLY AND FINANCIALLY RESPONSIBLE FOR ALL ACTIONS USING OR ACCESSING OUR SOFTWARE, INCLUDING THE ACTIONS OF ANYONE YOU ALLOW TO ACCESS TO YOUR ACCOUNT. YOU AFFIRM THAT YOU HAVE REACHED THE LEGAL AGE OF MAJORITY, UNDERSTAND AND ACCEPT THESE TERMS (INCLUDING ITS DISPUTE RESOLUTION TERMS). IF YOU ARE UNDER THE LEGAL AGE OF MAJORITY, YOUR PARENT OR LEGAL GUARDIAN MUST CONSENT TO THESE TERMS.
THE FOLLOWING TERMS AND CONDITIONS (“TERMS”) APPLY TO YOUR USE OF THE PRODUCTS AND WEBSITES OF MADCOW LLC, d/b/a GAMEMILL ENTERTAINMENT. AND ITS AFFILIATES (“GAMEMILL”, “WE” “US” OR “OUR”), INCLUDING ANY CONTENT, FUNCTIONALITY, PRODUCTS, AND SERVICES OFFERED ON OR THROUGH SUCH WEBSITES (COLLECTIVELY, THE “WEBSITE”), WHETHER AS A GUEST OR A REGISTERED USER. THESE TERMS ALSO APPLY TO YOUR USE OF OTHER GAMEMILLSERVICES THAT DISPLAY OR INCLUDE THESE TERMS (“ADDITIONAL SERVICES”). IN THESE TERMS, THE WEBSITE AND ADDITIONAL SERVICES ARE COLLECTIVELY REFERRED TO AS THE “SERVICES.”
3. PRIVACY POLICY
Safeguarding the privacy of our customers is of the highest priority for us, and this Privacy Policy explains how we treat your personal information. By using our website, you are agreeing to this Privacy Policy and consent to our use of cookies in accordance with its terms. We reserve the right to modify this Privacy Policy from time to time.
A. COLLECTION OF PERSONAL INFORMATION We may collect, store, and use the following kinds of personal information: a) Information about your computer and about your visits to and use of this website (including your IP address, geographical location, browser type and version, operating system, referral source, length of visit, page views and website navigation paths); b) Information contained in or relating to any communication that you send to us or send through our website (including the communication content and metadata associated with the communication, your name, and email address); c) Information that you post to our website for publication on the Internet (including your username, your profile pictures, your social media profile, and the content of your posts); d) Any other personal information that you choose to share with us. Before you disclose to us the personal information of another person, you must obtain that person’s consent to both the disclosure and the processing of that personal information in accordance with this Privacy Policy.
B. USES OF PERSONAL INFORMATION Personal information submitted to us through our website will be used for the purposes specified in this Privacy Policy or on the relevant pages of the website. We may use your personal information to: a) Administer our website and business; b) Personalize our website for you; c) Enable your use of the services available on our website; d) Send you non-marketing commercial communications; e) Provide third parties with statistical information about our users (but those third parties will not be able to identify any individual user from that information); f) Deal with enquiries and complaints made by or about you relating to our website; g) Keep our website secure and prevent fraud; h) Verify compliance with the terms and conditions governing the use of our website. If you submit personal information for publication on our website, we will publish and otherwise use that information in accordance with the license you grant to us. We will not, without your express consent, supply your personal information to any third party for the purpose of their or any other third party’s direct marketing.
C. DISCLOSURE OF PERSONAL INFORMATION We may disclose your personal information to any of our employees, officers, insurers, professional advisers, agents, suppliers or subcontractors insofar as reasonably necessary for the purposes set out in this Privacy Policy. We may disclose your personal information: a) To the extent that we are required to do so by law; b) In connection with any on-going or prospective legal proceedings; c) In order to establish, exercise or defend our legal rights (including providing information to others for the purposes of fraud prevention and reducing credit risk); d) To the purchaser (or prospective purchaser) of any business or asset that we are (or are contemplating) selling; e) To any person who we reasonably believe may apply to a court or other competent authority for disclosure of that personal information where, in our reasonable opinion, such court or authority would be reasonably likely to order disclosure of that personal information. Except as provided in this Privacy Policy, we will not provide your personal information to third parties.
D. INTERNATIONAL DATA TRANSFERS Information that we collect may be stored and processed in and transferred between any of the countries in which we operate in order to enable us to use the information in accordance with this Privacy Policy. Information that we collect may be transferred to the following countries which do not have data protection laws equivalent to those in force in the European Economic Area: (including) the United States of America, Russia, Japan, China, and India). Personal information that you publish on our website or submit for publication on our website may be available, via the Internet, around the world. We cannot prevent the use or misuse of such information by others. You expressly agree to the transfers of personal information described in this Section 4.
E. RETAINING PERSONAL INFORMATION Our data retention policies and procedures are designed to help ensure that we comply with our legal obligations in relation to the retention and deletion of personal information. Personal information that we process for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes. Notwithstanding the other provisions of this Section, we will retain documents (including electronic documents) containing personal data: a) To the extent that we are required to do so by law; b) If we believe that the documents may be relevant to any on-going or prospective legal proceedings;c) In order to establish, exercise or defend our legal rights (including providing information to others for the purposes of fraud prevention and reducing credit risk).
F. SECURITY OF PERSONAL INFORMATION We will take reasonable technical and organizational precautions to prevent the loss, misuse or alteration of your personal information. We will store all the personal information you provide on our secure (password- and firewall-protected) servers. You acknowledge that the transmission of information over the Internet is inherently insecure, and we cannot guarantee the security of data sent over the Internet.
G. AMENDMENTS We may update this Privacy Policy from time to time by publishing a new version on our website. You should check this page occasionally to ensure you are happy with any changes to this Privacy Policy. We may notify you of changes to this Privacy Policy by email or through the private messaging system on our website, or on our social channels.
H. YOUR RIGHTS You may instruct us to provide you with any personal information we hold about you; provision of such information will be subject to the supply of appropriate evidence of your identity (for this purpose, we will usually accept a photocopy of your passport certified by a solicitor or bank, plus an original copy of a utility bill showing your current address). We may withhold personal information that you request to the extent permitted by law. You may instruct us at any time not to process your personal information for marketing purposes. In practice, you will usually either expressly agree in advance to our use of your personal information for marketing purposes, or we will provide you with an opportunity to opt out of the use of your personal information for marketing purposes.
I. THIRD PARTY WEBSITES Our services may include hyperlinks to, and details of, third party websites and services. You agree that we have no control over, and are not responsible for, the privacy policies and practices of third parties.
J. UPDATING INFORMATION Please let us know if the personal information that we hold about you needs to be corrected or updated.
K. COOKIES Our website uses cookies. A cookie is a file containing an identifier (a string of letters and numbers) that is sent by a web server to a web browser and is stored by the browser. The identifier is then sent back to the server each time the browser requests a page from the server. Cookies may be either “persistent” cookies or “session” cookies: a persistent cookie will be stored by a web browser and will remain valid until its set expiry date, unless deleted by the user before the expiry date; a session cookie, on the other hand, will expire at the end of the user session, when the web browser is closed. We may use both session and persistent cookies on our website. Cookies do not typically contain any information that personally identifies a user, but personal information that we store about you may be linked to the information stored in and obtained from cookies. Most browsers allow you to refuse to accept cookies. If you block cookies, you will may not be able to use all the features on our website. You can delete cookies already stored on your computer. Deleting cookies will have a negative impact on the usability of many websites.
4. ACCESSING THE SERVICES AND ACCOUNT SECURITY
To access certain Services, you will be asked to provide registration details or other information, and in order to use such resources, all the information you provide must be correct, current, and complete. From time to time, in order to access the Services or certain games, services, or functionality, GameMill may require some or all users to download updated or additional software. The terms of use of such software may be subject to separate agreement between you and GameMill.
If you choose, or are provided with, a user name, password, or any other piece of information as part of our security procedures, you must treat such information as confidential (other than user name), and you must not disclose it to others. You must immediately notify GameMill of any unauthorized use of your user name or password or any other breach of security. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information. You may only access the Services through your own account. Users do not own their accounts, and gifting or otherwise transferring of accounts or access keys is prohibited.
We reserve the right to change your display name if we deem it offensive, misleading, potentially infringing the rights of third parties or if you have been inactive for more than a year.
Photosensitivity: Certain people may react to certain visual images or patterns, including flashing lights (regardless of whether they have a diagnosed condition or history). Reactions may be reduced by playing in a well-lit room, avoiding playing while drowsy, viewing the game from some distance or on a smaller screen, and limiting duration of use.
5. PROHIBITED USES
You may use the Services only for lawful purposes and in accordance with these Terms of Service. You agree not to access or use the Services for any purpose that is illegal or beyond the scope of the Services’ intended use (in GameMill’s sole judgment).
6. USER CONTRIBUTIONS
The Services may contain various forums, networks, and other interactive features that allow you to post, submit, publish, display, or transmit to GameMill and other users (“Post”) content or materials (“User Contributions”) on or through the Services.
All User Contributions must comply with the following content standards: User Contributions must not be illegal, fraudulent, deceptive, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties or objectionable, and must not consist of or contain software viruses, commercial solicitation, chain letters, mass mailings, or any form of “spam.”
Any User Contribution that you Post will be considered non-confidential and non-proprietary, and you grant GameMill a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, copy, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such User Contribution throughout the world in any media; however, GameMill will only share personal information that you provide in accordance with GameMill’s Privacy Policy.
You represent and warrant that you own or otherwise control all of the rights to the User Contributions that you Post at the time of Posting; that the User Contributions are accurate and not fraudulent or deceptive; and that the User Contributions do not violate these Terms or the rights (intellectual property rights or otherwise) of any third party, and will not cause injury to any person or entity. You understand that your User Contributions may be copied by other Services users and discussed on and outside of the Services, and if you do not have the right to submit User Contributions for such use, it may subject you to liability. GameMill takes no responsibility and assumes no liability for any content Posted by you or any third party.
GameMill has the right but not the obligation to monitor and edit or remove any User Contributions. GameMill also has the right to terminate your access to all or part of the Services for any or no reason, including without limitation, any violation of these Terms. GameMill may exercise these rights at any time, without notice or liability to you or any third party.
7. INDEMNIFICATION
This section only applies to the extent permitted by applicable law. If you are prohibited by law from entering into the indemnification obligation below, then you assume, to the extent permitted by law, all liability for all claims, demands, actions, losses, liabilities, and expenses (including attorneys’ fees, costs and expert witnesses’ fees) that are the stated subject matter of the indemnification obligation below.
You agree to defend, indemnify, and hold harmless GameMill, its affiliates, and licensors, and their respective officers, directors, employees, contractors, agents, licensors, and suppliers from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) resulting from your User Contributions or violation of these Terms.
8. GOVERNING LAW AND JURISDICTION
Any dispute or claim by you arising out of or related to these Terms shall be governed by Minnesota law, exclusive of its choice of law rules. For any disputes deemed not subject to binding individual arbitration, as provided in the section immediately below, you and GameMill agree to submit to the exclusive jurisdiction of the state or federal courts in Hennepin County, MN. You and GameMill agree to waive any jurisdictional, venue, or inconvenient forum objections to such courts (without affecting either party’s rights to remove a case to federal court if permissible), as well as any right to a jury trial. The Convention on Contracts for the International Sale of Goods will not apply. Any law or regulation which provides that the language of a contract shall be construed against the drafter will not apply to these Terms. This paragraph will be interpreted as broadly as applicable law permits.
9. BINDING INDIVIDUAL ARBITRATION; NO CLASS ACTIONS
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
Most issues can be resolved quickly and amicably by contacting GameMill, but we understand that sometimes disputes can’t be easily resolved by customer support. This Section explains how You and GameMill agree to resolve those disputes, including (where applicable) by binding, individual arbitration.
Arbitration is an alternative dispute-resolution procedure that allows us to resolve issues without the formality of going to court. Any dispute between You and GameMillis submitted to a neutral arbitrator (not a judge or jury) for fair and fast resolution. Arbitration is more efficient for both you and GameMill.
1. Informal Resolution:
If you have an issue that our customer support can’t resolve, prior to starting arbitration You and GameMill agree to attempt to resolve the dispute informally to help get us to a resolution and control costs for both parties. You and GameMill agree to make a good-faith effort to negotiate any dispute between us for at least 30 days (“Informal Resolution”). Those informal negotiations will start on the day You or GameMill receive a written Notice of a Dispute in accordance with these Terms.
You will send your Notice of Dispute to Madcow, LLC, ATTN: NOTICE OF DISPUTE, 6600 France Avenue South, Suite 680, Edina, MN 55345. Include your name, any relevant account name you use, address, how to contact you, what the problem is, and what you want GameMill to do. If GameMill has a dispute with You, GameMill will send our Notice of Dispute to your registered email address and any billing address You have provided us.
If you reside in the European Union (“EU”), You may also be entitled to submit Your complaint to the European Commission’s Online Dispute Resolution (ODR) Platform. ODR allows EU consumers to resolve disputes related to the online purchases of goods and services without going to court.
If the dispute isn’t resolved within by Informal Resolution or small-claims court (below), You or GameMill may start an arbitration in accordance with these Terms.
2. Small Claims Court:
Instead of using Informal Resolution, You and GameMill agree that You may sue us in small-claims court in your choice of the county where you live or Hennepin County, Minnesota (if you meet the requirements of small-claims court). We hope you’ll try Informal Resolution first, but you don’t have to before going to small-claims court.
3. Binding Individual Arbitration:
THE ARBITRATION PROCEEDINGS IN THIS SECTION WILL BE CONDUCTED ON AN INDIVIDUAL BASIS ONLY.
You and GameMill agree that Disputes will be settled by binding individual arbitration conducted by the Judicial Arbitration Mediation Services, Inc. (“JAMS”) subject to the U.S. Federal Arbitration Act and federal arbitration law and according to the JAMS Streamlined Arbitration Rules and Procedures effective July 1, 2014 (the “JAMS Rules”) as modified by these Terms.
This means that You and GameMill agree to a dispute-resolution process where we submit any Dispute to a neutral arbitrator (not a judge or jury) that makes the final decision to resolve the Dispute. JAMS uses experienced professionals to arbitrate disputes, which helps You and GameMill resolve any disputes fairly, but more quickly and efficiently than going to court. The arbitrator may award the same remedies to you individually as a court could, but only to the extent required to satisfy your individual claim.
The arbitrator’s decision is final, except for a limited review by courts under the U.S. Federal Arbitration Act, and can enforced like any other court order or judgment.
3.1 Disputes We Agree to Arbitrate:
You and GameMill agree to submit all Disputes between You and GameMill to individual binding arbitration. “Dispute” means any dispute, claim, or controversy (except those specifically exempted below) between You and GameMill that relates to your use or attempted use of GameMill’s products or services and GameMill’s products and services generally, including without limitation the validity, enforceability, or scope of this Binding Individual Arbitration section.
You and GameMill agree to arbitrate all Disputes regardless of whether the Dispute is based in contract, statute, regulation, ordinance, tort (including fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory.
The Informal Resolution and Arbitration sections do not apply to (1) individual actions in small-claims court; (2) pursuit of enforcement actions through a government agency if the law allows; (3) a complaint or remedy under the EU General Data Protection Regulation; (4) an action to compel or uphold any prior arbitration decision; (5) GameMill’s right to seek injunctive relief against You in a court of law to preserve the status quo while an arbitration proceeds; (6) claims of piracy, creation, distribution, or promotion of Cheats, and intellectual-property infringement, and (7) the enforceability of the Class Action Waiver clause below.
You and GameMill agree that whether a dispute is subject to arbitration under these Terms will be determined by the arbitrator rather than a court.
3.2 Arbitration Procedure:
To start an arbitration, review the JAMS Rules and follow the instructions for initiating an arbitration on the JAMS website. The party starting an arbitration must send JAMS a “Demand for Arbitration” (available on its website), pay a filing fee, and mail a copy of the Demand for Arbitration to the opposing party. You will send a copy to Madcow, LLC, ATTN: NOTICE OF DISPUTE, 6600 France Avenue South, Suite 680, Edina, MN 55345. GameMill will send our copy to your registered email address and any billing address You have provided us.
The arbitration will be conducted by a single JAMS arbitrator selected with substantial experience in resolving intellectual-property and commercial-contract disputes. You and GameMill both agree that the arbitration will be conducted in the English language and that the arbitrator will be bound by these Terms.
If an in-person hearing is required, the hearing will take place either in Hennepin County, MN, or where You reside; you choose.
The arbitrator (not a judge or jury) will resolve the Dispute. Unless You and GameMill agree otherwise, any decision or award will include a written statement stating the decision of each claim and the basis for the award, including the arbitrator’s essential factual and legal findings and conclusions.
The arbitrator may only award legal or equitable remedies that are requested by You or GameMill to satisfy one of our individual claims (that the arbitrator determines are supported by credible relevant evidence). The arbitrator may not award relief against GameMill respecting any person other than You.
Any decision or award may be enforced as a final judgment by any court of competent jurisdiction or, if applicable, application may be made to such court for judicial acceptance of any award and an order of enforcement.
3.3 Arbitration Fees and Location:
If You start the arbitration, you must pay the JAMS filing fee required for consumer arbitrations.
In some situations, GameMill will help with your fees to (hopefully) get us to a resolution quickly and fairly:
If the Dispute involves $10,000 or less, GameMill will pay all of the JAMS costs, including the fees you otherwise would have been required to pay.
If the above doesn’t apply to You, but You demonstrate that arbitration costs will be prohibitive compared to litigation costs, GameMill will pay as much of your JAMS costs as the arbitrator finds is necessary to prevent arbitration from being cost-prohibitive (as compared to the cost of litigation).
Even if GameMill wins the arbitration and the applicable law or the JAMS Rules allow GameMill to seek our portion of the JAMS fees from you, we won’t.
The fee assistance offered above is contingent upon You bringing the arbitration claim in “good faith”. If the arbitrator finds You brought an arbitration claim against GameMill for an improper purpose, frivolously, or without a sufficient pre-claim investigation into the facts or applicable law, then the payment of all fees will be governed by the JAMS rules.
JAMS costs do not include your Attorneys’ fees and costs and Attorneys’ fees and JAMS costs are not counted when determining how much a dispute involves.
GameMill won’t seek our attorneys’ fees or expenses from you in any arbitration, even if the law or the JAMS rules entitle us to do so. If you choose to be represented by an attorney, you will pay your own attorneys’ fees and costs unless the applicable law provides otherwise.
3.4 Notice and Filing:
If a Dispute must be arbitrated, You or GameMill must start arbitration of the Dispute within two (2) years from when the Dispute first arose. If applicable law requires you to bring a claim for a Dispute sooner than two years after the Dispute first arose, you must start arbitration in that earlier time period. GameMill encourages You to tell us about a Dispute as soon as possible so we can work to resolve it. The failure to provide timely notice shall bar all claims.
3.5 Continuation in Effect:
This Binding Individual Arbitration section survives any termination of these Terms or GameMill’s provision of services to You.
3.6 Future Terms Changes:
Although GameMill may revise these Terms in its discretion, GameMill does not have the right to alter these Terms to arbitrate or the rules specified herein with respect to any Dispute once that Dispute has commenced.
4. Class Action Waiver:
To the maximum extent permitted by applicable law, You and GameMill agree to only bring Disputes in an individual capacity and shall not:
seek to bring, join, or participate in any class or representative action, collective or class-wide arbitration, or any other action where another individual or entity acts in a representative capacity (e.g., private attorney general actions); or
consolidate or combine individual proceedings or permit an arbitrator to do so without the express consent of all parties to these Terms and all other actions or arbitrations.
5. Severability:
If all or any provision of this Binding Individual Arbitration agreement is found invalid, unenforceable, or illegal, then You and GameMill agree that the provision will be severed and the rest of these Terms shall remain in effect and be construed as if any severed provision had not been included. The sole exception is that if the Class Action Waiver is found invalid, unenforceable, or illegal, You and GameMill agree that it will not be severable; this entire Binding Individual Arbitration section will be void and unenforceable and any dispute will be resolved in court subject to the venue and choice of clauses specified in these Terms. Under no circumstances shall arbitration be conducted on a class basis without GameMill’s express consent.
10. LANGUAGE
To the fullest extent permitted by law, the controlling language for these Terms is English. It is the express wish of the parties that these Terms and all related documents have been drawn up in English. Les parties déclarent qu’elles ont demandé et par les présentes confirment leur desir exprés que cette convention soit rédigee en anglais. Any translation has been provided for your convenience.
11. WAIVER AND SEVERABILITY
No waiver of these Terms by GameMill shall be deemed a further or continuing waiver of such term or condition or any other term or condition, and any failure of GameMill to assert a right or provision under these Terms shall not constitute a waiver of such right or provision.
If any provision of these Terms is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of these Terms will continue in full force and effect.
12. NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT
In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable law, GameMill has adopted a policy of terminating, in appropriate circumstances as determined by GameMill, users or account holders who are deemed to be repeat infringers of the copyrights of others. GameMill may also at its sole discretion limit access to the Services and/or update, transfer, suspend, or terminate the accounts of any users who infringe the intellectual property rights of others, whether or not there is any repeat infringement.
If you believe that your work has been used on the Website or in any other Services in a way that constitutes copyright infringement, please submit a Notice of Alleged Infringement (“DMCA Notice”) to our Designated Copyright Agent as follows:
Legal Department
GameMill Entertainment
6600 France Avenue South
Suite 680
Edina, MN
Please include all of the following in your DMCA Notice:
• Identify the copyrighted work that you claim has been infringed. If your DMCA Notice covers multiple works, you may provide a representative list of such works.
• Identify the material that you claim is infringing, including a description of where the material is located. Your description must be reasonably sufficient to enable us to locate the material. Where possible, please include the URL of the webpage where the material is located.
• Provide your full legal name, mailing address, telephone number, and (if available) e-mail address.
• Include the following statement in the body of the DMCA Notice:
• I have a good-faith belief that the use of the material is not authorized by the copyright owner, its agent, or the law. I represent that the information in this DMCA Notice is accurate and, under penalty of perjury, that I am the owner of the copyright or authorized to act on the copyright owner’s behalf.
• Provide your electronic or physical signature.
• Please note that under 17 U.S.C. 512(f), if you knowingly misrepresent that material or activity is infringing, you may be liable for damages, including costs and attorneys’ fees, incurred by us or our users. If you are unsure whether the material or activity you are reporting is infringing, you may wish to contact an attorney before filing a notification with us.
13. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
Nothing in these Terms will prejudice the statutory rights that you may have as a consumer of the Services. Some countries, states, provinces or other jurisdictions do not allow the exclusion of certain warranties or the limitation of liability as stated in this section, so the below terms may not fully apply to you. Instead, in such jurisdictions, the exclusions and limitations below shall apply only to the extent permitted by the laws of such jurisdictions.
The Services and all information, content, materials, products (including software), and other services included on or otherwise made available to you through the Services are provided by GameMill on an “as is” and “as available” basis. GameMill makes no representations or warranties of any kind, express or implied, as to the operation of the Services, or the information, content, materials, products (including software), or other services included on or otherwise made available to you through the Services. You expressly agree that your use of the Services is at your sole risk. To the full extent permissible by law, GameMill disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose. GameMill does not warrant that the Services, information, content, materials, products (including software) or other services included on or otherwise made available to you through the Services, GameMill’s servers, or electronic communications sent from GameMill are free of viruses or other harmful components.
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, YOU EXPRESSLY AGREE THAT THE USE OF THE GAME SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL MATERIALS AND GAME SOFTWARE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND GAMEMILL HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE GAME SOFTWARE, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY THAT (A) THE GAME SOFTWARE WILL MEET YOUR REQUIREMENTS, (B) THE GAME SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) THE GAME SOFTWARE WILL BE INTERAOPERABLE OR COMPATABILE WITH OTHER SOFTWARE, OR (D) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE GAME SOFTWARE WILL BE EFFECTIVE, ACCURATE OR RELIABLE. AT SOME POINT IN THE FUTURE THE GAME SOFTWARE MAY GO OUT OF DATE, AND GAMEMILL MAKES NO COMMITMENT TO UPDATE SUCH GAME SOFTWARE.
YOU ACKNOWLEDGE AND AGREE THAT YOUR EXCLUSIVE REMEDY FOR ANY DISPUTE WITH GAMEMILL IS TO STOP USING THE GAME SOFTWARE. IN NO CASE SHALL ANY LIABILITY OF GAMEMILL TO YOU EXCEED THE AMOUNT THAT YOU PAID TO GAMEMILL OR ITS AFFILIATES AND/OR DESIGNEES FOR THE APPLICABLE GAME SOFTWARE GIVING RISE TO ANY SUCH LIABILITY. IN NO EVENT SHALL GAMEMILL OR ITS AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND. 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 GAMEMILL AND THE GAMEMILL PARTIES SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
Residents of California are entitled to the following specific consumer rights information: you may contact the Complaint Assistance Unit of the Division of Consumer Software of the Department of Consumer Affairs by mail at 400 R St., Suite 1080, Sacramento, California, 95814, or by telephone at 916.445.1254. California residents expressly agree to waive California Civil Code Sec. 1542, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
14. MISCELLANEOUS
This Agreement represents the complete agreement between you and GameMill concerning the Game Software and Services generally, and supersedes all prior agreements and representations, warranties or understandings between you and GameMill (whether negligently or innocently made but excluding those made fraudulently), regarding the same subject matter. GameMill reserves the right to amend this Agreement at any time, at its sole discretion. If any part of the Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement shall continue in effect. Any failure by us to enforce or exercise any provision of the Agreement or related rights shall not constitute a waiver of that right or provision.
GameMill may assign this Agreement, in whole or in part, at any time. Notwithstanding, you may not assign, transfer or sublicense any or all of your rights or obligations under the Agreement without GameMill’s express prior written consent. GameMill’s performance of the Agreement is subject to existing laws and legal process, and nothing contained in the Agreement is in derogation of GameMill’s right to comply with governmental, court, and law enforcement requests or requirements relating to your use of the Game Software or information provided to or gathered by GameMill with respect to such use. In addition to any excuse provided by applicable law, we shall be excused from liability for non-delivery or delay in delivery of the Game Software arising from any event beyond our reasonable control, whether or not foreseeable by either party, including but not limited to, labor disturbance, war, terrorism, fire, denial of service attack, internet outages, accident, adverse weather, inability to secure transportation, governmental act or regulation, and other causes or events beyond our reasonable control, whether or not similar to those which are enumerated above. The parties agree that all correspondence relating to this Agreement shall be written in the English language.
This Agreement shall be construed under Minnesota law as such law is applied to agreements between Minnesota residents entered into and to be performed within Minnesota, except as governed by federal law, and you consent to the exclusive jurisdiction of the state and federal courts in Hennepin County, Minnesota.
You may contact GameMill at the following address:
GameMill Entertainment
6600 France Avenue South
Suite 680
Edina, Minnesota 55435
I HEREBY ACKNOWLEDGE THAT I HAVE READ AND UNDERSTAND THE FOREGOING END USER LICENSE AGREEMENT AND AGREE THAT MY USE OF THE GAME SOFTWARE IS AN ACKNOWLEDGMENT OF MY AGREEMENT TO BE BOUND BY THE END USER LICENSE AGREEMENT.