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THIS SOFTWARE IS LICENSED, NOT SOLD. Blue Isle Studios Inc., an Ontario corporation, and its affiliated companies (collectively, “Blue Isle“) reserves all rights not expressly granted to you. The product that is subject to this license is referred to in this license as the “Software.” The Software includes all software included with this End User License Agreement (“Agreement”), and the accompanying manuals, packaging, and other written filers, electronic or online materials or documentation, and any and all copies of such Software and its materials. The Agreement, as may be amended from time to time, incorporates Blue Isle’s Terms of Use and Privacy Policy. In the event of any conflict between this Agreement and Blue Isle’s Terms of Use or Privacy Policy, the order of precedence shall be as follows: (i) the Privacy Policy, (ii) the Terms of Use and (iii) this Agreement. Any terms not defined herein will have the meaning set forth in the Terms of Use and/or Privacy Policy.
THIS IS A BINDING LEGAL CONTRACT BETWEEN YOU AND BLUE ISLE. PLEASE REVIEW THIS AGREEMENT CAREFULLY BEFORE INSTALLING, ACCESSING OR UTILIZING THE SOFTWARE YOU HAVE JUST PURCHASED. BY INSTALLING, COPYING AND/OR OTHERWISE USING THE SOFTWARE, AND EACH TIME YOU ACCESS THE SOFTWARE, YOU ARE SIGNIFYING YOUR ACKNOWLEDGEMENT AND ACCEPTANCE OF, AND COMPLIANCE WITH, THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU ARE NOT PERMITTED TO OPEN, DOWNLOAD, INSTALL, COPY, OR USE THE SOFTWARE. If you have any questions about this Agreement, you can reach Blue Isle at Blue Isle Studios Inc., 181 Bay Street, PO Box 30064, Brookfield P.O, Toronto, ON.
For clarity, this Agreement is between you and Blue Isle only, and not between you and any of Blue Isle’s licensors, including without limitation Microsoft, Sony, Valve or any of their affiliates.
If you are not eighteen (18) years of age or over, you must have your parents or legal guardian review and approve this Agreement on your behalf. Your consent to this Agreement and use of the Software signifies that you have received the specific permission of your parent or legal guardian.
(1) USER’S ACKNOWLEDGMENT AND ACCEPTANCE OF TERMS
The Software is offered subject to your compliance with all of the terms and conditions contained herein and all other operating rules, policies and procedures. In addition, some applications offered through or in connection with the Software may be subject to additional terms and conditions promulgated by Blue Isle from time to time. Any material modifications to the Agreement will also be brought to your attention by posting the modified Agreement at http://blueislestudios.com/end-user-license-agreement. Such material modifications will be effective immediately, and will apply to matters and events arising under the Agreement following the date of modification. Your continued use of the Software after a modification has been made to the Agreement constitutes your acceptance of such modification.
(2) LIMITED USE LICENSE
Subject to your compliance with the terms and conditions of the Agreement, Blue Isle hereby grants you a non-exclusive, non-transferable, limited and revocable right and license to install and use one (1) copy of the Software solely and exclusively for your personal and non-commercial use for gameplay on a single game platform (e.g., computer, mobile device, or gaming console) that you own or control. For clarity, the foregoing does not prohibit you from installing and using an additional copy of each Game on a different game system. This Agreement shall also apply to any patches or updates you may obtain for the Software. DUPLICATION, COPYING OR ANY FORM OF REPRODUCTION OF THE SOFTWARE OR RELATED INFORMATION, MATERIALS OR OTHER CONTENT TO ANY OTHER SERVER OR LOCATION FOR THE PURPOSES OF DUPLICATION, COPYING OR ANY OTHER FORM OF REPRODUCTION IS EXPRESSLY AND EXPLICITLY PROHIBITED.
(3) BLUE ISLE’S OWNERSHIP OF THE SOFTWARE AND PROPRIETARY MATERIALS
The Software contains copyrighted material, technology, trademarks, service marks, trade secrets and other proprietary information, which may include computer code, text, data, video, images, illustrations, animations, sounds, musical compositions and recordings, audiovisual effects, color schemes, business methods and methods of operation, concepts, ideas, know-how, moral rights, and any related documentation (collectively the “Proprietary Material”). All intellectual property rights to the Proprietary Material, including without limitation patent, copyright, trademark and trade secret rights, are owned or licensed by Blue Isle. You: (a) agree not to copy, download, reproduce, republish, upload, post, transmit, perform, display, distribute or sell, or in any other way exploit the Proprietary Material, or to participate with or to encourage others to engage in such acts, without the prior written consent of Blue Isle; and (b) may not reverse engineer, disassemble, decompile, or translate any computer software programs that comprise Proprietary Material, or otherwise attempt to derive the source code of such programs, except that the foregoing restrictions on copying or reverse engineering does not apply to the extent prohibited by applicable law. No Proprietary Material, or any portion thereof, may be modified or used for any purpose other than as expressly authorized in these Terms. The Proprietary Material may include materials licensed by Blue Isle from third parties, and the licensors of those materials may enforce their rights in the event of any violation of this Agreement. ALL RIGHTS NOT EXPRESSLY GRANTED TO YOU IN THIS AGREEMENT ARE RESERVED BY BLUE ISLE AND ITS LICENSORS OR SUPPLIERS.
(4) NO SALE OR ASSIGNMENT
Blue Isle does not recognize the transfer of the Software, with the exception of Virtual Currency and Virtual Goods as defined in (and in accordance with) Section 6 below. Other than as set forth in Section 6, 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 Blue Isle. Any attempt to do so shall be void and of no effect. Blue Isle allows you the limited ability to trade Virtual Currency and Virtual Goods with other users who lawfully possess the Software under conditions provided with the Virtual Currency and Virtual Goods.
(5) LICENSE RESTRICTIONS
(1) You agree to only use the Software, or any part of it, in a manner that is consistent with this Agreement (including our Terms of Use), and you SHALL NOT:
• (a) exploit the Software or any of its parts, including, but not limited to, for-profit exploitation at a cyber (Internet) café, computer gaming center, or any other location-based site, but excluding purely not-for-profit use in which no compensation in the form of payment or benefit is received;
• (b) use the Software or permit the use of the Software, on more than one computer, game console, mobile device, handheld device or PDA at the same time by the same user account;
• (c) use the Software, or permit use of the Software, or make the Software available for use in a network, multi-user arrangement, remote access arrangement, including where it could be downloaded by multiple users;
• (d) sell, rent, lease, license, distribute or otherwise transfer this Software or any copies;
• (e) reverse engineer, derive source code, modify, decompile, disassemble, copy, or create derivative works of the 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 Blue Isle and/or its licensors on creation, in any event);
• (f) remove, disable or circumvent any security protections, proprietary notices or labels contained on or within the Software;
• (g) export or re-export the Software or any copy or adaptation in violation of any applicable laws or regulations;
• (h) create data or executable programs which mimic data or functionality in the Software; or
• (i) use the part of the Software which allows you to construct new variations (“Editor”) (1) to create new levels which can be used otherwise in connection with the Software; (2) to modify any executable file; (3) to product any libelous, defamatory or other illegal material or material that is scandalous or invades the rights of privacy or publicity of a third party; (4) to use the trademarks, copyright or intellectual property rights of any third party; or (5) to create content which is then commercially exploited by you (through pay-per-play or timesharing services or otherwise). For the avoidance of doubt you are solely liable and responsible for any claims by a third party resulting from your use of the Editor.
(2) The Software may include measures to control access to the Software, control access to certain features or content, prevent unauthorized copies, or otherwise attempt to prevent anyone from exceeding the limited rights and licenses granted under this Agreement. Such measures may include incorporating license management, product activation, and other security technology in the Software and monitoring usage, including, but not limited to, time, date, access, or other controls, counters, serial numbers, and/or other security devices designed to prevent the unauthorized access, use, and copying of the Software, or any portions or components thereof, including any violations of this Agreement. Blue Isle reserves the right to monitor use of the Software at any time. You may not interfere with such access control measures or attempt to disable or circumvent such security features, and if you do, the Software may not function properly. Additional terms and registration may be required to access online services and to download Software updates and patches. Only Software subject to a valid license can be used to access online services, including downloading updates and patches. Except as otherwise prohibited by applicable law, Blue Isle may limit, suspend, or terminate the license granted hereunder and access to the Software, including, but not limited to, any related services and products, at any time without notice for any reason whatsoever.
(3) 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 Software.
(6) VIRTUAL CURRENCY AND VIRTUAL GOODS
If the Software allows you to purchase and/or earn through play a license to use Virtual Currency and Virtual Goods, the following additional terms and conditions apply.
(A) The Software may enable users to (i) use fictional virtual currency as a medium of exchange exclusively within the Software (“Virtual Currency” or “VC”); (ii) gain access to (and certain limited rights to use) virtual goods within the Software (“Virtual Goods” or “VG”); and (iii) barter or exchange VC and VG with other users of the Software. Regardless of the terminology used, VC and VG represent a limited license right governed by this Agreement. Subject to the terms of and compliance with this Agreement, Blue Isle hereby grants you the nonexclusive, non-transferable, non-sublicensable, limited and revocable right and license to use VC and VG obtained by you for your personal non-commercial gameplay exclusively within the Software. Except as otherwise prohibited by applicable law, VC and VG obtained by you are licensed to you, and you hereby acknowledge that no title or ownership in or to VC and VG is being transferred or assigned hereunder. This Agreement should not be construed as a sale of any rights in VC and VG.
VC and VG do not have an equivalent value in real currency and do not act as a substitute for real currency. You are prohibited from converting VC and VG into a unit of value outside of the Software, such as actual currency or actual goods. You acknowledge and agree that Blue Isle may revise or take action that impacts the perceived value of or purchase price for any VC and/or VG at any time except as prohibited by applicable law. VC and VG do not incur fees for non-use; provided, however, that the license granted hereunder to VC and VG will terminate in accordance with the terms and conditions of this Agreement and the Software documentation, when Blue Isle ceases providing the Software, or this Agreement is otherwise terminated. Blue Isle, in its sole discretion, reserves the right to charge fees for the right to access or use VC or VG and/or may distribute VC or VG with or without charge.
(B) You may have the ability to purchase VC or to earn VC from Blue Isle for the completion of certain activities or accomplishments in the Software. For example, Blue Isle may provide VC or VG upon the completion of an in-game activity, such as attaining a new level, completing a task, or creating user content. Once obtained, VC and/or VG will be credited to your user account (“User Account”). You may purchase VC and VG only within the Software, or through a platform, participating third-party online store, application store, or other store authorized by Blue Isle (all referred to herein as “Software Store”). Purchase and use of in-game items or currency through a Software Store are subject to the Software Store’s governing documents, including but not limited to, the Terms of Service and User Agreement. This online service has been sublicensed to you by the Software Store. Blue Isle may offer discounts or promotions on the purchase of VC, and such discounts and promotions may be modified or discontinued by Blue Isle at any time without notice to you. Upon completing an authorized purchase of VC from a Software Store, the amount of purchased VC will be credited to your User Account. Blue Isle shall establish a maximum amount you may spend to purchase VC per transaction and/or per day, which may vary depending on the associated Software. Blue Isle, in its sole discretion, may impose additional limits on the amount of VC you may purchase or use, how you may use VC, and the maximum balance of VC that may be credited to your User Account. You are solely responsible for all VC purchases made through your User Account regardless of whether or not authorized by you.
(C) You can access and view your available VC and VG in your User Account when logged into your User Account. Blue Isle reserves the right, in its sole discretion, to make all calculations regarding the available VC and VG in your User Account. Blue Isle further reserves the right, in its sole discretion, to determine the amount of and manner in which VC is credited and debited from your User Account in connection with your purchase of VG or for other purposes. While Blue Isle strives to make all such calculations on a consistent and reasonable basis, you hereby acknowledge and agree that Blue Isle’s determination of the available VC and VG in your User Account is final, unless you can provide documentation to Blue Isle that such calculation was or is intentionally incorrect.
(D) All purchased in-game Virtual Currency and/or Virtual Goods may be consumed or lost by players in the course of gameplay according to the game’s rules applicable to currency and goods, which may vary depending on the associated Software. VC and VG may only be used within the Software, and Blue Isle, in its sole discretion, may limit use of VC and/or VG to a single game. The authorized uses and purposes of VC and VG may change at any time. Your available VC and/or VG as shown in your User Account will be reduced each time you use VC and/or VG within the Software. The use of any VC and/or VG constitutes a demand against and withdrawal from your available VC and/or VG in your User Account. You must have sufficient available VC and/or VG in your User Account in order to complete a transaction within the Software. VC and/or VG in your User Account may be reduced without notice upon the occurrence of certain events related to your use of the Software. You are responsible for all uses of VC and/or VG made through your User Account, regardless of whether or not authorized by you. You must notify Blue Isle immediately upon discovering the unauthorized use of any VC and/or VG made through your User Account by sending an email to support@blueislestudios.com.
(E) VC and VG may only be redeemed for in-game goods and services. You may not sell, lease, license, or rent VC or VG. VC and VG may only be redeemed for in-game goods or services and are not redeemable for any sum of money or monetary value or other goods from Blue Isle or any other person or entity at any time, except as expressly provided herein or otherwise required by applicable law. VC and VG have no cash value, and neither Blue Isle nor any other person or entity has any obligation to exchange your VC or VG for anything of value, including, but not limited to, real currency.
(F) All purchases of VC and VG are final and under no circumstances will such purchases be refundable, transferable, or exchangeable. Except as prohibited by applicable law, Blue Isle has the absolute right to manage, regulate, control, modify, suspend, and/or eliminate such VC and/or VG as it sees fit in its sole discretion, and Blue Isle shall have no liability to you or anyone else for the exercise of such rights.
(G) Any transferring, trading, selling, or exchanging of any VC or VG to anyone, other than in gameplay using the Software as expressly authorized by Blue Isle (“Unauthorized Transactions”), including, but not limited to, among other users of the Software, is not sanctioned by Blue Isle and is strictly forbidden. Blue Isle reserves the right, in its sole discretion, to terminate, suspend, or modify your User Account and your VC and VG and terminate this Agreement if you engage in, assist in, or request any Unauthorized Transactions. All users who participate in such activities do so at their own risk and hereby agree to indemnify and hold harmless Blue Isle, its partners, licensors, affiliates, contractors, officers, directors, employees, and agents from all damages, losses and expenses arising directly or indirectly from such actions. You acknowledge that Blue Isle may request that the applicable Software Store stop, suspend, terminate, discontinue, or reverse any Unauthorized Transaction, regardless of when such Unauthorized Transaction occurred (or has yet to occur) when it suspects or has evidence of fraud, violations of this Agreement, violations of any applicable law or regulation, or any intentional act designed to interfere or that otherwise has the effect of or may have the effect of intervening in any way with the operation of the Software. If Blue Isle believes or has any reason to suspect that you have engaged in an Unauthorized Transaction, you further agree that Blue Isle may, in its sole discretion, restrict your access to your available VC and VG in your User Account or terminate or suspend your User Account and your rights to any VC, VG, and other items associated with your User Account.
(H) VC is only available to customers in certain locations. You may not purchase or use VC if you are not in an approved location.
(7) DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
(a) TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, THE SOFTWARE AND ANY ACCOMPANYING DOCUMENTATION AND MATERIAL ARE BEING PROVIDED TO YOU “AS IS” WITHOUT WARRANTY OF ANY KIND WHATSOEVER. WITHOUT LIMITING THE INTENDED GENERALITY OF THE PRECEDING SENTENCE, NEITHER BLUE ISLE, NOR ITS LICENSORS OR SUPPLIERS, WARRANTS THAT THE SOFTWARE OR ANY PORTION THEREOF (i) WILL BE UNINTERRUPTED, SECURE OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED; (ii) IS COMPATIBLE WITH ANY SOFTWARE, INCLUDING WITHOUT LIMITATION INTERNET BROWSER SOFTWARE; (iii) IS FREE OF INFECTION BY VIRUSES, WORMS, TROJAN HORSES OR ANYTHING ELSE MANIFESTING CONTAMINATING OR DESTRUCTIVE PROPERTIES; OR (iv) IS FREE OF DEFAMATORY, DEROGATORY OR ADULT-ORIENTED MATERIAL, OR MATERIAL THAT SOME INDIVIDUALS MAY DEEM OFFENSIVE OR OBJECTIONABLE. TO THE FULLEST EXTENT ALLOWED BY LAW, BLUE ISLE DISCLAIMS ALL REPRESENTATIONS, TERMS, WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE.
(b) NEITHER BLUE ISLE, NOR ITS LICENSORS OR SUPPLIERS, IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SOFTWARE. UNDER NO CIRCUMSTANCES WILL BLUE ISLE OR ITS LICENSORS OR SUPPLIERS BE RESPONSIBLE FOR ANY LOSS OR DAMAGE RESULTING FROM YOUR USE OF THE SOFTWARE, ANY USER-GENERATED CONTENT POSTED ON THE SOFTWARE, OR TRANSMITTED TO ANOTHER USER, OR ANY TRANSACTIONS BETWEEN OR AMONG YOU AND OTHER USERS, WHETHER ONLINE OR OFFLINE.
(c) THE SOFTWARE IS CONTROLLED AND PROVIDED BY BLUE ISLE FROM ITS FACILITIES IN CANADA. TO THE EXTENT PERMISSIBLE BY APPLICABLE LOCAL LAW AND EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, BLUE ISLE MAKES NO REPRESENTATION THAT THE SOFTWARE IS APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS.
(d) BECAUSE SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU TO THE EXTENT THAT SUCH EXCLUSIONS OR LIMITATIONS ARE NOT PERMITTED UNDER LOCAL LAW.
(e) TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, BLUE ISLE (AND ITS LICENSORS, SUPPLIERS, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS) SHALL NOT BE LIABLE TO YOU OR ANY OTHER PERSON, WHETHER UNDER CONTRACT OR OTHERWISE, FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, AND/OR (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) $1,000 OR (II) THE AMOUNTS PAID AND/OR PAYABLE BY YOU TO BLUE ISLE (OR TO A THIRD-PARTY PLATFORM THAT PROVIDED YOU WITH ANY GAMES) IN CONNECTION WITH THE SOFTWARE IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM, OR (C) ANY MATTER BEYOND BLUE ISLE’S REASONABLE CONTROL. BLUE ISLE CANNOT AND WILL NOT BE RESPONSIBLE FOR ANY LOSS OF YOUR USER-GENERATED CONTENT OR ANY INTERRUPTIONS OF THE SOFTWARE, INCLUDING BUT NOT LIMITED TO ISP DISRUPTIONS, SOFTWARE OR HARDWARE FAILURES, OR ANY OTHER EVENT WHICH MAY RESULT IN A LOSS OF DATA OR A DISRUPTION OF THE SOFTWARE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, NOTHING IN THESE TERMS SHALL EXCLUDE OR LIMIT ANYTHING WHICH MAY NOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW, INCLUDING WITHOUT LIMITATION, DEATH OR PERSONAL INJURY ARISING THROUGH NEGLIGENCE OR FOR FRAUD.
(8) INDEMNIFICATION
To the maximum extent permitted by law, you agree to defend, indemnify and hold harmless Blue Isle, its officers, directors, employees and agents, from and against all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney fees) arising from your use of the Software, your violation of any of the terms of this Agreement, your violation of any third-party right, including without limitation any copyright, trade secret, privacy or property right, or any claim that your User-Generated Content caused damage to a third-party.
(9) INTERNATIONAL USE
Except as expressly set forth in this Agreement (including in our Terms of Use and Privacy Policy), Blue Isle makes no representation that the Software or related materials are appropriate or available for use in locations outside Canada, and accessing them from territories where the content is illegal is prohibited. Any offer and/or information made in connection with the Software is void where prohibited. Without limiting the foregoing, you may not export or re-export the Software into (or to a national resident of any Canada embargoed countries.
(10) TERMINATION
This Agreement is effective until terminated by you or by Blue Isle. This Agreement automatically terminates when Blue Isle ceases to operate the Software servers (for games exclusively operated online), if Blue Isle determines or believes your use of the Software involves or may involve fraud or money laundering or any other illicit activity, or upon your failure to comply with terms and conditions of this Agreement, including, but not limited to, the License Restrictions in Section 5 above. You may terminate this Agreement at any time by (i) requesting Blue Isle to terminate and delete your User Account that is used to access or use the Software using the method set forth in the Terms of Service, or (ii) destroying and/or deleting any and all copies of all Software in your possession, custody, or control. If this Agreement terminates due to your violation of this Agreement (including our Terms of Use), Blue Isle may prohibit you from re-registering or re-accessing the Software. Upon any termination of this Agreement, you must destroy or return the physical copy of Software, as well as permanently destroy all copies of the Software, accompanying documentation, associated materials, and all of its component parts in your possession or control, including from any client server, computer, gaming unit, or mobile device on which it has been installed. Upon termination of this Agreement, your rights to use the Software, including any VC or VG associated with your User Account, will terminate immediately, and you must cease all use of the Software. The termination of this Agreement will not affect our rights or your obligations arising under this Agreement.
The provisions of Sections 1, 2, 3, 4, 7, 8, 10, 11 and 12 survive any termination of this Agreement.
(11) INJUNCTION
You hereby agree that if the terms of this Agreement are not specifically enforced, Blue Isle will be irreparably damaged, and therefore you agree that Blue Isle shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect any of this Agreement, including temporary and permanent injunctive relief, in addition to any other available remedies.
(12) MISCELLANEOUS
This Agreement, Blue Isle’s Terms of Use, and Blue Isle’s Privacy Policy represent the complete agreement between you and Blue Isle relating to use of the Software and related services and products and supersede and replace any prior agreements between you and Blue Isle, whether written or oral. 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 Blue Isle to enforce or exercise any provision of the Agreement or related rights shall not constitute a waiver of that right or provision.
Blue Isle may assign this Agreement, in whole or in part, at any time. You may not assign, transfer or sublicense any or all of your rights or obligations under the Agreement without Blue Isle’s express prior written consent. Blue Isle’s performance of the Agreement is subject to existing laws and legal process, and nothing contained in the Agreement is in derogation of Blue Isle’s right to comply with governmental, court, and law enforcement requests or requirements relating to your use of the Software or information provided to or gathered by Blue Isle with respect to such use. In addition to any excuse provided by applicable law, Blue Isle shall be excused from liability for non-delivery or delay in delivery of the 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.
Any dispute arising out of these Terms shall be resolved in accordance with the laws of the Province of Ontario, Canada without reference to its conflict of law provisions or the United Nations Convention on Contracts for the International Sale of Goods. Subject to any binding-arbitration provisions set forth in our Terms of Use, you agree that any claim asserted in any legal proceeding by you or Blue Isle in connection with this Agreement shall be commenced and maintained in any provincial or federal court located in Toronto, Ontario, Canada having subject matter jurisdiction with respect to such dispute. You and Blue Isle each agree to submit to the personal jurisdiction of such court. The prevailing party in any such proceeding shall be entitled to reimbursement of court costs, including reasonable attorneys’ fees, in addition to any other remedy awarded.
I HEREBY ACKNOWLEDGE THAT I HAVE READ AND UNDERSTAND THE FOREGOING END USER LICENSE AGREEMENT AND AGREE THAT MY USE OF THE SOFTWARE IS AN ACKNOWLEDGMENT OF MY AGREEMENT TO BE BOUND BY THE END USER LICENSE AGREEMENT.
THIS IS A BINDING LEGAL CONTRACT BETWEEN YOU AND BLUE ISLE. PLEASE REVIEW THIS AGREEMENT CAREFULLY BEFORE INSTALLING, ACCESSING OR UTILIZING THE SOFTWARE YOU HAVE JUST PURCHASED. BY INSTALLING, COPYING AND/OR OTHERWISE USING THE SOFTWARE, AND EACH TIME YOU ACCESS THE SOFTWARE, YOU ARE SIGNIFYING YOUR ACKNOWLEDGEMENT AND ACCEPTANCE OF, AND COMPLIANCE WITH, THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU ARE NOT PERMITTED TO OPEN, DOWNLOAD, INSTALL, COPY, OR USE THE SOFTWARE. If you have any questions about this Agreement, you can reach Blue Isle at Blue Isle Studios Inc., 181 Bay Street, PO Box 30064, Brookfield P.O, Toronto, ON.
For clarity, this Agreement is between you and Blue Isle only, and not between you and any of Blue Isle’s licensors, including without limitation Microsoft, Sony, Valve or any of their affiliates.
If you are not eighteen (18) years of age or over, you must have your parents or legal guardian review and approve this Agreement on your behalf. Your consent to this Agreement and use of the Software signifies that you have received the specific permission of your parent or legal guardian.
(1) USER’S ACKNOWLEDGMENT AND ACCEPTANCE OF TERMS
The Software is offered subject to your compliance with all of the terms and conditions contained herein and all other operating rules, policies and procedures. In addition, some applications offered through or in connection with the Software may be subject to additional terms and conditions promulgated by Blue Isle from time to time. Any material modifications to the Agreement will also be brought to your attention by posting the modified Agreement at http://blueislestudios.com/end-user-license-agreement. Such material modifications will be effective immediately, and will apply to matters and events arising under the Agreement following the date of modification. Your continued use of the Software after a modification has been made to the Agreement constitutes your acceptance of such modification.
(2) LIMITED USE LICENSE
Subject to your compliance with the terms and conditions of the Agreement, Blue Isle hereby grants you a non-exclusive, non-transferable, limited and revocable right and license to install and use one (1) copy of the Software solely and exclusively for your personal and non-commercial use for gameplay on a single game platform (e.g., computer, mobile device, or gaming console) that you own or control. For clarity, the foregoing does not prohibit you from installing and using an additional copy of each Game on a different game system. This Agreement shall also apply to any patches or updates you may obtain for the Software. DUPLICATION, COPYING OR ANY FORM OF REPRODUCTION OF THE SOFTWARE OR RELATED INFORMATION, MATERIALS OR OTHER CONTENT TO ANY OTHER SERVER OR LOCATION FOR THE PURPOSES OF DUPLICATION, COPYING OR ANY OTHER FORM OF REPRODUCTION IS EXPRESSLY AND EXPLICITLY PROHIBITED.
(3) BLUE ISLE’S OWNERSHIP OF THE SOFTWARE AND PROPRIETARY MATERIALS
The Software contains copyrighted material, technology, trademarks, service marks, trade secrets and other proprietary information, which may include computer code, text, data, video, images, illustrations, animations, sounds, musical compositions and recordings, audiovisual effects, color schemes, business methods and methods of operation, concepts, ideas, know-how, moral rights, and any related documentation (collectively the “Proprietary Material”). All intellectual property rights to the Proprietary Material, including without limitation patent, copyright, trademark and trade secret rights, are owned or licensed by Blue Isle. You: (a) agree not to copy, download, reproduce, republish, upload, post, transmit, perform, display, distribute or sell, or in any other way exploit the Proprietary Material, or to participate with or to encourage others to engage in such acts, without the prior written consent of Blue Isle; and (b) may not reverse engineer, disassemble, decompile, or translate any computer software programs that comprise Proprietary Material, or otherwise attempt to derive the source code of such programs, except that the foregoing restrictions on copying or reverse engineering does not apply to the extent prohibited by applicable law. No Proprietary Material, or any portion thereof, may be modified or used for any purpose other than as expressly authorized in these Terms. The Proprietary Material may include materials licensed by Blue Isle from third parties, and the licensors of those materials may enforce their rights in the event of any violation of this Agreement. ALL RIGHTS NOT EXPRESSLY GRANTED TO YOU IN THIS AGREEMENT ARE RESERVED BY BLUE ISLE AND ITS LICENSORS OR SUPPLIERS.
(4) NO SALE OR ASSIGNMENT
Blue Isle does not recognize the transfer of the Software, with the exception of Virtual Currency and Virtual Goods as defined in (and in accordance with) Section 6 below. Other than as set forth in Section 6, 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 Blue Isle. Any attempt to do so shall be void and of no effect. Blue Isle allows you the limited ability to trade Virtual Currency and Virtual Goods with other users who lawfully possess the Software under conditions provided with the Virtual Currency and Virtual Goods.
(5) LICENSE RESTRICTIONS
(1) You agree to only use the Software, or any part of it, in a manner that is consistent with this Agreement (including our Terms of Use), and you SHALL NOT:
• (a) exploit the Software or any of its parts, including, but not limited to, for-profit exploitation at a cyber (Internet) café, computer gaming center, or any other location-based site, but excluding purely not-for-profit use in which no compensation in the form of payment or benefit is received;
• (b) use the Software or permit the use of the Software, on more than one computer, game console, mobile device, handheld device or PDA at the same time by the same user account;
• (c) use the Software, or permit use of the Software, or make the Software available for use in a network, multi-user arrangement, remote access arrangement, including where it could be downloaded by multiple users;
• (d) sell, rent, lease, license, distribute or otherwise transfer this Software or any copies;
• (e) reverse engineer, derive source code, modify, decompile, disassemble, copy, or create derivative works of the 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 Blue Isle and/or its licensors on creation, in any event);
• (f) remove, disable or circumvent any security protections, proprietary notices or labels contained on or within the Software;
• (g) export or re-export the Software or any copy or adaptation in violation of any applicable laws or regulations;
• (h) create data or executable programs which mimic data or functionality in the Software; or
• (i) use the part of the Software which allows you to construct new variations (“Editor”) (1) to create new levels which can be used otherwise in connection with the Software; (2) to modify any executable file; (3) to product any libelous, defamatory or other illegal material or material that is scandalous or invades the rights of privacy or publicity of a third party; (4) to use the trademarks, copyright or intellectual property rights of any third party; or (5) to create content which is then commercially exploited by you (through pay-per-play or timesharing services or otherwise). For the avoidance of doubt you are solely liable and responsible for any claims by a third party resulting from your use of the Editor.
(2) The Software may include measures to control access to the Software, control access to certain features or content, prevent unauthorized copies, or otherwise attempt to prevent anyone from exceeding the limited rights and licenses granted under this Agreement. Such measures may include incorporating license management, product activation, and other security technology in the Software and monitoring usage, including, but not limited to, time, date, access, or other controls, counters, serial numbers, and/or other security devices designed to prevent the unauthorized access, use, and copying of the Software, or any portions or components thereof, including any violations of this Agreement. Blue Isle reserves the right to monitor use of the Software at any time. You may not interfere with such access control measures or attempt to disable or circumvent such security features, and if you do, the Software may not function properly. Additional terms and registration may be required to access online services and to download Software updates and patches. Only Software subject to a valid license can be used to access online services, including downloading updates and patches. Except as otherwise prohibited by applicable law, Blue Isle may limit, suspend, or terminate the license granted hereunder and access to the Software, including, but not limited to, any related services and products, at any time without notice for any reason whatsoever.
(3) 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 Software.
(6) VIRTUAL CURRENCY AND VIRTUAL GOODS
If the Software allows you to purchase and/or earn through play a license to use Virtual Currency and Virtual Goods, the following additional terms and conditions apply.
(A) The Software may enable users to (i) use fictional virtual currency as a medium of exchange exclusively within the Software (“Virtual Currency” or “VC”); (ii) gain access to (and certain limited rights to use) virtual goods within the Software (“Virtual Goods” or “VG”); and (iii) barter or exchange VC and VG with other users of the Software. Regardless of the terminology used, VC and VG represent a limited license right governed by this Agreement. Subject to the terms of and compliance with this Agreement, Blue Isle hereby grants you the nonexclusive, non-transferable, non-sublicensable, limited and revocable right and license to use VC and VG obtained by you for your personal non-commercial gameplay exclusively within the Software. Except as otherwise prohibited by applicable law, VC and VG obtained by you are licensed to you, and you hereby acknowledge that no title or ownership in or to VC and VG is being transferred or assigned hereunder. This Agreement should not be construed as a sale of any rights in VC and VG.
VC and VG do not have an equivalent value in real currency and do not act as a substitute for real currency. You are prohibited from converting VC and VG into a unit of value outside of the Software, such as actual currency or actual goods. You acknowledge and agree that Blue Isle may revise or take action that impacts the perceived value of or purchase price for any VC and/or VG at any time except as prohibited by applicable law. VC and VG do not incur fees for non-use; provided, however, that the license granted hereunder to VC and VG will terminate in accordance with the terms and conditions of this Agreement and the Software documentation, when Blue Isle ceases providing the Software, or this Agreement is otherwise terminated. Blue Isle, in its sole discretion, reserves the right to charge fees for the right to access or use VC or VG and/or may distribute VC or VG with or without charge.
(B) You may have the ability to purchase VC or to earn VC from Blue Isle for the completion of certain activities or accomplishments in the Software. For example, Blue Isle may provide VC or VG upon the completion of an in-game activity, such as attaining a new level, completing a task, or creating user content. Once obtained, VC and/or VG will be credited to your user account (“User Account”). You may purchase VC and VG only within the Software, or through a platform, participating third-party online store, application store, or other store authorized by Blue Isle (all referred to herein as “Software Store”). Purchase and use of in-game items or currency through a Software Store are subject to the Software Store’s governing documents, including but not limited to, the Terms of Service and User Agreement. This online service has been sublicensed to you by the Software Store. Blue Isle may offer discounts or promotions on the purchase of VC, and such discounts and promotions may be modified or discontinued by Blue Isle at any time without notice to you. Upon completing an authorized purchase of VC from a Software Store, the amount of purchased VC will be credited to your User Account. Blue Isle shall establish a maximum amount you may spend to purchase VC per transaction and/or per day, which may vary depending on the associated Software. Blue Isle, in its sole discretion, may impose additional limits on the amount of VC you may purchase or use, how you may use VC, and the maximum balance of VC that may be credited to your User Account. You are solely responsible for all VC purchases made through your User Account regardless of whether or not authorized by you.
(C) You can access and view your available VC and VG in your User Account when logged into your User Account. Blue Isle reserves the right, in its sole discretion, to make all calculations regarding the available VC and VG in your User Account. Blue Isle further reserves the right, in its sole discretion, to determine the amount of and manner in which VC is credited and debited from your User Account in connection with your purchase of VG or for other purposes. While Blue Isle strives to make all such calculations on a consistent and reasonable basis, you hereby acknowledge and agree that Blue Isle’s determination of the available VC and VG in your User Account is final, unless you can provide documentation to Blue Isle that such calculation was or is intentionally incorrect.
(D) All purchased in-game Virtual Currency and/or Virtual Goods may be consumed or lost by players in the course of gameplay according to the game’s rules applicable to currency and goods, which may vary depending on the associated Software. VC and VG may only be used within the Software, and Blue Isle, in its sole discretion, may limit use of VC and/or VG to a single game. The authorized uses and purposes of VC and VG may change at any time. Your available VC and/or VG as shown in your User Account will be reduced each time you use VC and/or VG within the Software. The use of any VC and/or VG constitutes a demand against and withdrawal from your available VC and/or VG in your User Account. You must have sufficient available VC and/or VG in your User Account in order to complete a transaction within the Software. VC and/or VG in your User Account may be reduced without notice upon the occurrence of certain events related to your use of the Software. You are responsible for all uses of VC and/or VG made through your User Account, regardless of whether or not authorized by you. You must notify Blue Isle immediately upon discovering the unauthorized use of any VC and/or VG made through your User Account by sending an email to support@blueislestudios.com.
(E) VC and VG may only be redeemed for in-game goods and services. You may not sell, lease, license, or rent VC or VG. VC and VG may only be redeemed for in-game goods or services and are not redeemable for any sum of money or monetary value or other goods from Blue Isle or any other person or entity at any time, except as expressly provided herein or otherwise required by applicable law. VC and VG have no cash value, and neither Blue Isle nor any other person or entity has any obligation to exchange your VC or VG for anything of value, including, but not limited to, real currency.
(F) All purchases of VC and VG are final and under no circumstances will such purchases be refundable, transferable, or exchangeable. Except as prohibited by applicable law, Blue Isle has the absolute right to manage, regulate, control, modify, suspend, and/or eliminate such VC and/or VG as it sees fit in its sole discretion, and Blue Isle shall have no liability to you or anyone else for the exercise of such rights.
(G) Any transferring, trading, selling, or exchanging of any VC or VG to anyone, other than in gameplay using the Software as expressly authorized by Blue Isle (“Unauthorized Transactions”), including, but not limited to, among other users of the Software, is not sanctioned by Blue Isle and is strictly forbidden. Blue Isle reserves the right, in its sole discretion, to terminate, suspend, or modify your User Account and your VC and VG and terminate this Agreement if you engage in, assist in, or request any Unauthorized Transactions. All users who participate in such activities do so at their own risk and hereby agree to indemnify and hold harmless Blue Isle, its partners, licensors, affiliates, contractors, officers, directors, employees, and agents from all damages, losses and expenses arising directly or indirectly from such actions. You acknowledge that Blue Isle may request that the applicable Software Store stop, suspend, terminate, discontinue, or reverse any Unauthorized Transaction, regardless of when such Unauthorized Transaction occurred (or has yet to occur) when it suspects or has evidence of fraud, violations of this Agreement, violations of any applicable law or regulation, or any intentional act designed to interfere or that otherwise has the effect of or may have the effect of intervening in any way with the operation of the Software. If Blue Isle believes or has any reason to suspect that you have engaged in an Unauthorized Transaction, you further agree that Blue Isle may, in its sole discretion, restrict your access to your available VC and VG in your User Account or terminate or suspend your User Account and your rights to any VC, VG, and other items associated with your User Account.
(H) VC is only available to customers in certain locations. You may not purchase or use VC if you are not in an approved location.
(7) DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
(a) TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, THE SOFTWARE AND ANY ACCOMPANYING DOCUMENTATION AND MATERIAL ARE BEING PROVIDED TO YOU “AS IS” WITHOUT WARRANTY OF ANY KIND WHATSOEVER. WITHOUT LIMITING THE INTENDED GENERALITY OF THE PRECEDING SENTENCE, NEITHER BLUE ISLE, NOR ITS LICENSORS OR SUPPLIERS, WARRANTS THAT THE SOFTWARE OR ANY PORTION THEREOF (i) WILL BE UNINTERRUPTED, SECURE OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED; (ii) IS COMPATIBLE WITH ANY SOFTWARE, INCLUDING WITHOUT LIMITATION INTERNET BROWSER SOFTWARE; (iii) IS FREE OF INFECTION BY VIRUSES, WORMS, TROJAN HORSES OR ANYTHING ELSE MANIFESTING CONTAMINATING OR DESTRUCTIVE PROPERTIES; OR (iv) IS FREE OF DEFAMATORY, DEROGATORY OR ADULT-ORIENTED MATERIAL, OR MATERIAL THAT SOME INDIVIDUALS MAY DEEM OFFENSIVE OR OBJECTIONABLE. TO THE FULLEST EXTENT ALLOWED BY LAW, BLUE ISLE DISCLAIMS ALL REPRESENTATIONS, TERMS, WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE.
(b) NEITHER BLUE ISLE, NOR ITS LICENSORS OR SUPPLIERS, IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SOFTWARE. UNDER NO CIRCUMSTANCES WILL BLUE ISLE OR ITS LICENSORS OR SUPPLIERS BE RESPONSIBLE FOR ANY LOSS OR DAMAGE RESULTING FROM YOUR USE OF THE SOFTWARE, ANY USER-GENERATED CONTENT POSTED ON THE SOFTWARE, OR TRANSMITTED TO ANOTHER USER, OR ANY TRANSACTIONS BETWEEN OR AMONG YOU AND OTHER USERS, WHETHER ONLINE OR OFFLINE.
(c) THE SOFTWARE IS CONTROLLED AND PROVIDED BY BLUE ISLE FROM ITS FACILITIES IN CANADA. TO THE EXTENT PERMISSIBLE BY APPLICABLE LOCAL LAW AND EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, BLUE ISLE MAKES NO REPRESENTATION THAT THE SOFTWARE IS APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS.
(d) BECAUSE SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU TO THE EXTENT THAT SUCH EXCLUSIONS OR LIMITATIONS ARE NOT PERMITTED UNDER LOCAL LAW.
(e) TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, BLUE ISLE (AND ITS LICENSORS, SUPPLIERS, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS) SHALL NOT BE LIABLE TO YOU OR ANY OTHER PERSON, WHETHER UNDER CONTRACT OR OTHERWISE, FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, AND/OR (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) $1,000 OR (II) THE AMOUNTS PAID AND/OR PAYABLE BY YOU TO BLUE ISLE (OR TO A THIRD-PARTY PLATFORM THAT PROVIDED YOU WITH ANY GAMES) IN CONNECTION WITH THE SOFTWARE IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM, OR (C) ANY MATTER BEYOND BLUE ISLE’S REASONABLE CONTROL. BLUE ISLE CANNOT AND WILL NOT BE RESPONSIBLE FOR ANY LOSS OF YOUR USER-GENERATED CONTENT OR ANY INTERRUPTIONS OF THE SOFTWARE, INCLUDING BUT NOT LIMITED TO ISP DISRUPTIONS, SOFTWARE OR HARDWARE FAILURES, OR ANY OTHER EVENT WHICH MAY RESULT IN A LOSS OF DATA OR A DISRUPTION OF THE SOFTWARE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, NOTHING IN THESE TERMS SHALL EXCLUDE OR LIMIT ANYTHING WHICH MAY NOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW, INCLUDING WITHOUT LIMITATION, DEATH OR PERSONAL INJURY ARISING THROUGH NEGLIGENCE OR FOR FRAUD.
(8) INDEMNIFICATION
To the maximum extent permitted by law, you agree to defend, indemnify and hold harmless Blue Isle, its officers, directors, employees and agents, from and against all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney fees) arising from your use of the Software, your violation of any of the terms of this Agreement, your violation of any third-party right, including without limitation any copyright, trade secret, privacy or property right, or any claim that your User-Generated Content caused damage to a third-party.
(9) INTERNATIONAL USE
Except as expressly set forth in this Agreement (including in our Terms of Use and Privacy Policy), Blue Isle makes no representation that the Software or related materials are appropriate or available for use in locations outside Canada, and accessing them from territories where the content is illegal is prohibited. Any offer and/or information made in connection with the Software is void where prohibited. Without limiting the foregoing, you may not export or re-export the Software into (or to a national resident of any Canada embargoed countries.
(10) TERMINATION
This Agreement is effective until terminated by you or by Blue Isle. This Agreement automatically terminates when Blue Isle ceases to operate the Software servers (for games exclusively operated online), if Blue Isle determines or believes your use of the Software involves or may involve fraud or money laundering or any other illicit activity, or upon your failure to comply with terms and conditions of this Agreement, including, but not limited to, the License Restrictions in Section 5 above. You may terminate this Agreement at any time by (i) requesting Blue Isle to terminate and delete your User Account that is used to access or use the Software using the method set forth in the Terms of Service, or (ii) destroying and/or deleting any and all copies of all Software in your possession, custody, or control. If this Agreement terminates due to your violation of this Agreement (including our Terms of Use), Blue Isle may prohibit you from re-registering or re-accessing the Software. Upon any termination of this Agreement, you must destroy or return the physical copy of Software, as well as permanently destroy all copies of the Software, accompanying documentation, associated materials, and all of its component parts in your possession or control, including from any client server, computer, gaming unit, or mobile device on which it has been installed. Upon termination of this Agreement, your rights to use the Software, including any VC or VG associated with your User Account, will terminate immediately, and you must cease all use of the Software. The termination of this Agreement will not affect our rights or your obligations arising under this Agreement.
The provisions of Sections 1, 2, 3, 4, 7, 8, 10, 11 and 12 survive any termination of this Agreement.
(11) INJUNCTION
You hereby agree that if the terms of this Agreement are not specifically enforced, Blue Isle will be irreparably damaged, and therefore you agree that Blue Isle shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect any of this Agreement, including temporary and permanent injunctive relief, in addition to any other available remedies.
(12) MISCELLANEOUS
This Agreement, Blue Isle’s Terms of Use, and Blue Isle’s Privacy Policy represent the complete agreement between you and Blue Isle relating to use of the Software and related services and products and supersede and replace any prior agreements between you and Blue Isle, whether written or oral. 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 Blue Isle to enforce or exercise any provision of the Agreement or related rights shall not constitute a waiver of that right or provision.
Blue Isle may assign this Agreement, in whole or in part, at any time. You may not assign, transfer or sublicense any or all of your rights or obligations under the Agreement without Blue Isle’s express prior written consent. Blue Isle’s performance of the Agreement is subject to existing laws and legal process, and nothing contained in the Agreement is in derogation of Blue Isle’s right to comply with governmental, court, and law enforcement requests or requirements relating to your use of the Software or information provided to or gathered by Blue Isle with respect to such use. In addition to any excuse provided by applicable law, Blue Isle shall be excused from liability for non-delivery or delay in delivery of the 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.
Any dispute arising out of these Terms shall be resolved in accordance with the laws of the Province of Ontario, Canada without reference to its conflict of law provisions or the United Nations Convention on Contracts for the International Sale of Goods. Subject to any binding-arbitration provisions set forth in our Terms of Use, you agree that any claim asserted in any legal proceeding by you or Blue Isle in connection with this Agreement shall be commenced and maintained in any provincial or federal court located in Toronto, Ontario, Canada having subject matter jurisdiction with respect to such dispute. You and Blue Isle each agree to submit to the personal jurisdiction of such court. The prevailing party in any such proceeding shall be entitled to reimbursement of court costs, including reasonable attorneys’ fees, in addition to any other remedy awarded.
I HEREBY ACKNOWLEDGE THAT I HAVE READ AND UNDERSTAND THE FOREGOING END USER LICENSE AGREEMENT AND AGREE THAT MY USE OF THE SOFTWARE IS AN ACKNOWLEDGMENT OF MY AGREEMENT TO BE BOUND BY THE END USER LICENSE AGREEMENT.