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Last Modified: May 1st, 2018
Two Inns at Miller’s Hollow® (the “Game”) is a multi-player game developed and operated by enBask Studios, LLC (“enBask”). For purposes of this Agreement (defined below), “you” and “your” mean the user of the computer on which the Game is being played.
PLEASE READ THIS TERMS OF USE AGREEMENT (THIS “TERMS OF USE” OR "AGREEMENT") CAREFULLY. BY REGISTERED AND USING THE GAME, YOU AGREE TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE GAME.
I. LIMITED USE LICENSE
The Game is available for use only by authorized end users in accordance with the terms and conditions set forth in this Agreement. Your rights to use the Game software (the “Software”) are defined in and subject to the terms and conditions of the Game End User License Agreement (the “EULA”) which is in to this Agreement. The Game, and the Software are provided for your individual, non-commercial, entertainment purposes only. Except as may be expressly permitted by enBask, you may not sell, copy, exchange, transfer, publish, assign or otherwise distribute anything you copy or derive from the Properties.
II. REQUIREMENTS
In using the Game, and/or by clicking “accept” when you install the Software, you acknowledge that you have read, understand and agree with the terms of this Agreement. In order to participate in the Game, you must also: (i) read, understand and agree to the EULA; (ii) register for an account in the Game (an “Account”); and (iii) meet the hardware and connection requirements published. These requirements may change as the Game evolves. You are wholly responsible for the cost of all internet connection fees, along with all equipment, servicing, or repair costs necessary to allow you access to the Game.
III. ACCOUNT INFORMATION
1.By enBask. enBask RESERVES THE RIGHT TO SUSPEND,
TERMINATE, MODIFY OR DELETE YOUR ACCOUNT AT ANY TIME FOR ANY REASON
OR NO REASON, WITH OR WITHOUT NOTICE TO YOU, AND WITH NO LIABILITY OF
ANY KIND TO YOU. Additionally, enBask may stop offering and/or supporting the Game at any time. For purposes of explanation and not limitation, most Account suspensions, terminations and/or deletions are the result of violation of this Agreement, or the EULA. Accounts terminated by enBask shall not be reinstated under any conditions whatsoever.
2.By You. You may terminate your Account at any time, for any reason or no reason, by contacting enBask at support@enbask.com.
IV. OWNERSHIP
Additionally, except as otherwise set forth in this Section IV.A, enBask does not authorize you to make any use whatsoever of any enBask trademarks, service marks, trade names, logos, domain names, taglines, and/or trade dress (collectively, the "enBask Marks") under any circumstances without a written license agreement. Any reproduction, redistribution, or modification of the Properties, or use of the Properties not in accordance with the EULA or this Agreement, is expressly prohibited by law and may result in severe civil and criminal penalties.
Notwithstanding the above, enBask may make a "fan kit" available to you that includes a limited license to use certain enBask Marks and other proprietary material. Except for the license expressly granted with the "fan kit," enBask reserves all rights, title, and interest in enBask Marks and all other intellectual property and does not authorize you to display or use such in any manner, including but not limited to use on websites, on blogs, in forums, in signatures, on products, or in printed or electronic publications.
B. Unsolicited Idea Submissions. If you do submit your Unsolicited Ideas to enBask or to any of its employees and/or contractors despite this policy, then you hereby acknowledge and agree that, from the time of transmission or dispatch, you grant enBask and its designees a worldwide, perpetual, irrevocable, sublicenseable, transferable, assignable, non-exclusive and royalty-free right and license to use, reproduce, distribute, adapt, modify, translate, create derivative works of, publicly perform, publicly display, digitally perform, make, have made, sell, offer for sale and import your Unsolicited Ideas, including, without limitation, all copyrights, trademarks, trade secrets, patents, industrial rights and all other intellectual and proprietary rights related thereto, in any media now known or hereafter developed, for any purpose whatsoever, commercial or otherwise, including, without limitation, giving the Unsolicited Ideas to others, without any compensation to you. To the extent necessary, you agree that you undertake to execute and deliver any and all documents and perform any and all actions necessary or desirable to ensure that the rights to use the Unsolicited Ideas granted to enBask as specified above are valid, effective and enforceable. You also give up any claim that any use by enBask and/or its licensees of your Unsolicited Ideas violates any of your rights, including but not limited to moral rights, privacy rights, rights to publicity, proprietary or other rights, and/or rights to credit for the material or ideas set for therein.
V. CODE OF CONDUCT
While using any of the Properties, you agree to comply with all applicable laws, rules and regulations. You also agree to comply with certain additional rules that govern your use of the Properties (the "Code of Conduct"). The Code of Conduct is not meant to be exhaustive, and enBask reserves the right to modify this Code of Conduct at any time, as well as take appropriate disciplinary measures including Account termination and deletion to protect the integrity and spirit of the Properties, regardless of whether a specific behavior is listed here as prohibited. The following are examples of behavior that warrant disciplinary measures:
enBask, is deemed offensive, including, but not limited to, language that is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, sexually explicit, or racially, ethnically, or otherwise objectionable;
VI. USER CONTENT
You hereby acknowledge and agree that you remain fully responsible for and are the owner of any and all Content. However, you grant enBask from the time of uploading or transmission of the Content, non-exclusively, all now known or hereafter existing copyrights and all other intellectual property rights to all Content of every kind and nature, in perpetuity (or for the maximum duration of protection afforded by applicable law), throughout the universe and you hereby grant enBask as a present nonexclusive license of future rights all such intellectual property rights to the extent owned by you. In the event that any of the Content is not licensable, you hereby grant to enBask and its licensors, including, without limitation, its respective successors and assigns, a perpetual, irrevocable, sublicensable, transferable, worldwide, paid-up right to reproduce, fix, adapt, modify, translate, reformat, transmit, or provide access to electronically, broadcast, communicate to the public by telecommunication, display, perform, enter into computer memory, and use and practice such Content as well as all modified and derivative works thereof, without compensation to you. To the extent necessary, you agree that you will undertake to execute and deliver any and all documents and perform any and all actions necessary or desirable to ensure that the rights to use the Content granted to enBask as specified above are valid, effective and enforceable. You also hereby waive any moral rights you may have in such Content under the laws of any jurisdiction to the maximum extent permitted by the laws of your jurisdiction. You represent, warrant and agree that none of the Content will be subject to any obligation, whether of confidentiality, attribution or otherwise, on the part of enBask and enBask will not be liable for any use or disclosure of any Content. You further acknowledge and agree that you shall not upload or otherwise transmit on or through the Game any Content that is subject to any thirdparty rights.
However, its representatives may monitor and/or record your communications (including, without limitation, Chat) when you are playing the Game, and you hereby provide your irrevocable consent to such monitoring and recording. You acknowledge and agree that you have no expectation of privacy concerning the submission of any Content, and you further acknowledge and agree that your Chat may be used as part of any code of conduct investigations. enBask does not assume any responsibility or liability for Content that is generated by users of the Game. enBask has the right but not the obligation, in its sole discretion, to edit, refuse to post, or remove any Content. Furthermore, enBask also reserves the right, at all times and in its sole discretion, to disclose any Content for any reason, including, without limitation (i) to satisfy any applicable law, regulation, legal process or governmental request; (ii) to enforce the terms of this Agreement or any other agreement; (iii) to protect the legal rights and remedies of enBask; (iv) where someone’s health or safety may be threatened; (v) to report a crime or other offensive behavior; or (vi) as part of The Trial proceedings. Please take care to not provide any personally identifiable information in the Chat or the Forums and to abide by the Code of Conduct, understanding that you do not have an expectation of privacy in the Content you provide in the Chat or Forums, and that members of enBask and the Community, outside of those you play directly with or against in the Game, might have access to the information in the Chat or the Forums at any time.
VII. UPDATES AND MODIFICATIONS
VIII. WARRANTY DISCLAIMER
THE PROPERTIES ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS
WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED. TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, enBask DISCLAIMS ALL
WARRANTIES, EXPRESS OR IMPLIED, WHICH MIGHT APPLY TO THE PROPERTIES,
INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTIES THAT MAY
ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, AND
ANY WARRANTIES AS TO THE ACCURACY, RELIABILITY OR QUALITY OF ANY CONTENT OR
INFORMATION CONTAINED WITHIN THE PROPERTIES. enBask DOES NOT
WARRANT THAT THE PROPERTIES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT
DEFECTS WILL BE CORRECTED, OR THAT THE PROPERTIES ARE FREE OF VIRUSES OR
OTHER HARMFUL COMPONENTS. YOU ASSUME ALL RESPONSIBILITY FOR SELECTING THE PROPERTIES TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE PROPERTIES.
Because some states or jurisdictions do not allow the disclaimer of implied warranties, the forgoing disclaimer may, in whole or in part, not apply to you.
IX. INDEMNIFICATION
YOU HEREBY AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS enBask
FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, DAMAGES, LOSSES, LIABILITIES
AND COSTS (INCLUDING ATTORNEYS’ FEES) THAT DIRECTLY OR INDIRECTLY ARISE OR RESULT FROM YOUR USE OR MISUSE OF THE PROPERTIES, OR ANY VIOLATION BY YOU OF ANY OF THE PROVISIONS OF THIS AGREEMENT, THE EULA OR THE PRIVACY POLICY.
enBask reserves the right, at its own expense and in its sole and absolute discretion, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with enBask in asserting any available defenses.
X. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY, WHETHER IN CONTRACT,
TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, SHALL enBask BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY
KIND (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF
DATA, LOSS OF GOOD WILL, OR LOST PROFITS), OR ANY DAMAGES FOR GROSS
NEGLIGENCE OF ANY KIND (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR WORK
STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER COMMERCIAL
DAMAGES OR LOSSES) ARISING FROM YOUR USE OR MISUSE OF THE PROPERTIES, EVEN IF
enBask KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH
DAMAGES. IN NO EVENT SHALL enBask BE LIABLE FOR ANY DAMAGES IN
EXCESS OF ANY AMOUNT YOU HAVE PAID TO enBask FOR GAME-RELATED TRANSACTIONS, IF ANY, DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO THE TIME YOUR CAUSE OF ACTION AROSE.
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 enBask shall be limited to the fullest extent permitted by applicable law.
XI. EQUITABLE REMEDIES
You hereby acknowledge and agree that enBask would suffer irreparable harm if this Agreement were not specifically enforced. Consequently, in addition to such monetary and other relief as may be recoverable at law, you agree that enBask shall be entitled to specific performance or other injunctive relief, without bond, other security, or proof of damages, as remedy for any breach or threatened breach of this Agreement. Additionally, in the event any legal or administrative action or proceeding is brought by either party in connection with this Agreement and consistent with Section XII below, the prevailing party in such action or proceeding shall be entitled to recover from the other party all the costs, attorneys’ fees and other expenses incurred by such prevailing party as the result of the action or proceeding.
XII. NEGOTIATIONS, BINDING ARBITRATION AND GOVERNING LAW
day period, either you or enBask may elect to have the Claim (except as otherwise provided in Section XV.F) finally and exclusively resolved by binding arbitration by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Commercial Arbitration Rules of the American Arbitration
Association (“AAA Rules”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”) that are in effect at the time the arbitration is initiated and under the terms set forth in this Agreement. Both the AAA Rules and the AAA Consumer Rules can be found at the AAA website, www.adr.org. In the event of a conflict between the terms set forth in this Section XV.B and either the AAA Rules or the AAA Consumer Rules, the terms in this Section XV.B will control and prevail.
Except as otherwise set forth in Section XII.F, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and enBask will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in this Agreement, (i) you and enBask may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (ii) the arbitrator’s decision is final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND enBask ARE WAIVING THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (B) THERE IS NO RIGHT OR AUTHORITY
FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (C) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER.
XIII. TERMINATION
This Agreement (and all subsequent modifications, if any) shall remain effective until terminated. Both you and enBask may terminate this Agreement at any time for any reason or for no reason. Termination by enBask will be effective upon notice to you, termination or deletion of your Account, or its decision to permanently discontinue offering and/or supporting the Game, which it may do at any time in its sole discretion. You may terminate this Agreement at any time simply by not using the Game. If, however, you wish to terminate your Account, you must affirmatively do so by notifying enBask at contact@enbask.com as stated above. Upon termination of this Agreement, your right to use the Properties shall immediately cease.
XIV. MISCELLANEOUS
enBask concerning the Game, and the subject matter of the Agreement, and supersedes any prior or contemporaneous agreements between you and enBask; provided however that this Agreement shall coexist with, and shall not supersede, the EULA.
YOU HEREBY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THE FOREGOING
TERMS OF USE AGREEMENT AND AGREE THAT YOUR USE OF ANY OF THE PROPERTIES IS AN ACKNOWLEDGMENT OF YOUR AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
Two Inns at Miller’s Hollow® (the “Game”) is a multi-player game developed and operated by enBask Studios, LLC (“enBask”). For purposes of this Agreement (defined below), “you” and “your” mean the user of the computer on which the Game is being played.
PLEASE READ THIS TERMS OF USE AGREEMENT (THIS “TERMS OF USE” OR "AGREEMENT") CAREFULLY. BY REGISTERED AND USING THE GAME, YOU AGREE TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE GAME.
I. LIMITED USE LICENSE
The Game is available for use only by authorized end users in accordance with the terms and conditions set forth in this Agreement. Your rights to use the Game software (the “Software”) are defined in and subject to the terms and conditions of the Game End User License Agreement (the “EULA”) which is in to this Agreement. The Game, and the Software are provided for your individual, non-commercial, entertainment purposes only. Except as may be expressly permitted by enBask, you may not sell, copy, exchange, transfer, publish, assign or otherwise distribute anything you copy or derive from the Properties.
II. REQUIREMENTS
In using the Game, and/or by clicking “accept” when you install the Software, you acknowledge that you have read, understand and agree with the terms of this Agreement. In order to participate in the Game, you must also: (i) read, understand and agree to the EULA; (ii) register for an account in the Game (an “Account”); and (iii) meet the hardware and connection requirements published. These requirements may change as the Game evolves. You are wholly responsible for the cost of all internet connection fees, along with all equipment, servicing, or repair costs necessary to allow you access to the Game.
III. ACCOUNT INFORMATION
- Suspension/Termination.
1.By enBask. enBask RESERVES THE RIGHT TO SUSPEND,
TERMINATE, MODIFY OR DELETE YOUR ACCOUNT AT ANY TIME FOR ANY REASON
OR NO REASON, WITH OR WITHOUT NOTICE TO YOU, AND WITH NO LIABILITY OF
ANY KIND TO YOU. Additionally, enBask may stop offering and/or supporting the Game at any time. For purposes of explanation and not limitation, most Account suspensions, terminations and/or deletions are the result of violation of this Agreement, or the EULA. Accounts terminated by enBask shall not be reinstated under any conditions whatsoever.
2.By You. You may terminate your Account at any time, for any reason or no reason, by contacting enBask at support@enbask.com.
IV. OWNERSHIP
- Intellectual Property. All rights and title in and to the Properties, and all content included therein (including, without limitation, user Accounts, computer code, titles, objects, artifacts, characters, character names, locations, location names, artwork, graphics, structural or landscape designs, animations, sounds, musical compositions and recordings, audio-visual effects, character likenesses, and methods of operation) are owned by enBask or its licensors. The Properties, and all content therein are protected by United States and other international intellectual property laws. enBask and its licensors reserve all rights in connection with the Properties, including, without limitation, the exclusive right to create derivative works therefrom. You agree that you will not create any work of authorship based on the Properties except as expressly permitted by enBask.
Additionally, except as otherwise set forth in this Section IV.A, enBask does not authorize you to make any use whatsoever of any enBask trademarks, service marks, trade names, logos, domain names, taglines, and/or trade dress (collectively, the "enBask Marks") under any circumstances without a written license agreement. Any reproduction, redistribution, or modification of the Properties, or use of the Properties not in accordance with the EULA or this Agreement, is expressly prohibited by law and may result in severe civil and criminal penalties.
Notwithstanding the above, enBask may make a "fan kit" available to you that includes a limited license to use certain enBask Marks and other proprietary material. Except for the license expressly granted with the "fan kit," enBask reserves all rights, title, and interest in enBask Marks and all other intellectual property and does not authorize you to display or use such in any manner, including but not limited to use on websites, on blogs, in forums, in signatures, on products, or in printed or electronic publications.
B. Unsolicited Idea Submissions. If you do submit your Unsolicited Ideas to enBask or to any of its employees and/or contractors despite this policy, then you hereby acknowledge and agree that, from the time of transmission or dispatch, you grant enBask and its designees a worldwide, perpetual, irrevocable, sublicenseable, transferable, assignable, non-exclusive and royalty-free right and license to use, reproduce, distribute, adapt, modify, translate, create derivative works of, publicly perform, publicly display, digitally perform, make, have made, sell, offer for sale and import your Unsolicited Ideas, including, without limitation, all copyrights, trademarks, trade secrets, patents, industrial rights and all other intellectual and proprietary rights related thereto, in any media now known or hereafter developed, for any purpose whatsoever, commercial or otherwise, including, without limitation, giving the Unsolicited Ideas to others, without any compensation to you. To the extent necessary, you agree that you undertake to execute and deliver any and all documents and perform any and all actions necessary or desirable to ensure that the rights to use the Unsolicited Ideas granted to enBask as specified above are valid, effective and enforceable. You also give up any claim that any use by enBask and/or its licensees of your Unsolicited Ideas violates any of your rights, including but not limited to moral rights, privacy rights, rights to publicity, proprietary or other rights, and/or rights to credit for the material or ideas set for therein.
V. CODE OF CONDUCT
While using any of the Properties, you agree to comply with all applicable laws, rules and regulations. You also agree to comply with certain additional rules that govern your use of the Properties (the "Code of Conduct"). The Code of Conduct is not meant to be exhaustive, and enBask reserves the right to modify this Code of Conduct at any time, as well as take appropriate disciplinary measures including Account termination and deletion to protect the integrity and spirit of the Properties, regardless of whether a specific behavior is listed here as prohibited. The following are examples of behavior that warrant disciplinary measures:
- Impersonating any person, business, or entity, including an employee of enBask, or communicating in any way that makes it appear that the communication originates from enBask;
- Posting identifying information about yourself, or any other user, within the Game;
- Harassing, stalking, or threatening any other users in the Game;
- Removing, altering or concealing any copyright, trademark, patent or other proprietary rights notices of enBask contained in the Game and/or the Software. You also may not transmit content that violates or infringes the rights of others, including without limitation, patent, trademark, trade secret, copyright, publicity, personal rights or other proprietary or non-proprietary rights;
- Transmitting or communicating any content which, in the sole and exclusive discretion of
enBask, is deemed offensive, including, but not limited to, language that is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, sexually explicit, or racially, ethnically, or otherwise objectionable;
- Transmitting or facilitating the transmission of any content that contains a virus, corrupted data, trojan horse, bot keystroke logger, worm, time bomb, cancelbot or other computer programming routines that are intended to and/or actually damage, detrimentally interfere with, surreptitiously intercept or mine, scrape or expropriate any system, data or personal information;
- Spamming chat, whether for personal or commercial purposes, by disrupting the flow of conversation with repeated postings of a similar nature;
- Participating in any action which, in the sole and exclusive judgment of enBask, "exploits" an undocumented aspect of the Game in order to secure an unfair advantage over other users;
- Participating in any action which, in the sole and exclusive judgment of enBask, defrauds any other user of the Game, including, but not limited to, by "scamming" or "social engineering;”
- Using any unauthorized third party programs, including but not limited to "mods," "hacks," "cheats," "scripts," "bots," "trainers," and automation programs, that interact with the Software in any way, for any purpose, including, without limitation, any unauthorized third party programs that intercept, emulate, or redirect any communication between the Software and enBask and any unauthorized third party programs that collect information about the Game by reading areas of memory used by the Software to store information;
- Accessing or attempting to access areas of the Game or Game servers that have not been made available to the public;
VI. USER CONTENT
- Ownership. “Content” means any communications, images, sounds, and all the material and information that you upload or transmit through the Game, or that other users upload or transmit, including, without limitation, any Forum (defined below) postings and/or the in-Game real-time interactive chat text (“Chat”).
You hereby acknowledge and agree that you remain fully responsible for and are the owner of any and all Content. However, you grant enBask from the time of uploading or transmission of the Content, non-exclusively, all now known or hereafter existing copyrights and all other intellectual property rights to all Content of every kind and nature, in perpetuity (or for the maximum duration of protection afforded by applicable law), throughout the universe and you hereby grant enBask as a present nonexclusive license of future rights all such intellectual property rights to the extent owned by you. In the event that any of the Content is not licensable, you hereby grant to enBask and its licensors, including, without limitation, its respective successors and assigns, a perpetual, irrevocable, sublicensable, transferable, worldwide, paid-up right to reproduce, fix, adapt, modify, translate, reformat, transmit, or provide access to electronically, broadcast, communicate to the public by telecommunication, display, perform, enter into computer memory, and use and practice such Content as well as all modified and derivative works thereof, without compensation to you. To the extent necessary, you agree that you will undertake to execute and deliver any and all documents and perform any and all actions necessary or desirable to ensure that the rights to use the Content granted to enBask as specified above are valid, effective and enforceable. You also hereby waive any moral rights you may have in such Content under the laws of any jurisdiction to the maximum extent permitted by the laws of your jurisdiction. You represent, warrant and agree that none of the Content will be subject to any obligation, whether of confidentiality, attribution or otherwise, on the part of enBask and enBask will not be liable for any use or disclosure of any Content. You further acknowledge and agree that you shall not upload or otherwise transmit on or through the Game any Content that is subject to any thirdparty rights.
- Consent to Monitoring. enBask does not, and cannot, pre-screen or monitor all Content.
However, its representatives may monitor and/or record your communications (including, without limitation, Chat) when you are playing the Game, and you hereby provide your irrevocable consent to such monitoring and recording. You acknowledge and agree that you have no expectation of privacy concerning the submission of any Content, and you further acknowledge and agree that your Chat may be used as part of any code of conduct investigations. enBask does not assume any responsibility or liability for Content that is generated by users of the Game. enBask has the right but not the obligation, in its sole discretion, to edit, refuse to post, or remove any Content. Furthermore, enBask also reserves the right, at all times and in its sole discretion, to disclose any Content for any reason, including, without limitation (i) to satisfy any applicable law, regulation, legal process or governmental request; (ii) to enforce the terms of this Agreement or any other agreement; (iii) to protect the legal rights and remedies of enBask; (iv) where someone’s health or safety may be threatened; (v) to report a crime or other offensive behavior; or (vi) as part of The Trial proceedings. Please take care to not provide any personally identifiable information in the Chat or the Forums and to abide by the Code of Conduct, understanding that you do not have an expectation of privacy in the Content you provide in the Chat or Forums, and that members of enBask and the Community, outside of those you play directly with or against in the Game, might have access to the information in the Chat or the Forums at any time.
VII. UPDATES AND MODIFICATIONS
- Agreement. enBask reserves the right, in its sole and absolute discretion, to revise, update, change, modify, add to, supplement, or delete certain terms of this Agreement as the Properties evolve; provided, however, that material changes to this Agreement will not be applied retroactively. Such changes will be effective with or without prior notice to you. You are responsible for checking this Agreement periodically for changes. If any future changes to this Agreement are unacceptable to you or cause you to no longer be in agreement or compliance with this Agreement, you must terminate this Agreement and immediately stop using the Properties. Your continued use of any of the Properties following any revision to this Agreement constitutes your complete and irrevocable acceptance of any and all such changes. Please note that enBask may also revise other policies, including the EULA and Privacy Policy, at any time, and the new versions will be available. If at any time you do not agree with any portion of the then-current version of a particular enBask policy, including but not limited to this Agreement, you must immediately stop using the Properties.
- The Properties. In an effort to improve the Properties, you agree that enBask may change, modify, update, suspend, “nerf,” or restrict your access to any features or parts of the Properties, and may require that you download and install updates to the Software, at any time without notice or liability to you. You also understand and agree that any such changes or updates to the Properties might change the system specifications necessary to play the Game, and in such a case, you, and not enBask, are responsible for purchasing any necessary additional software and/or hardware in order to access and play the Game.
VIII. WARRANTY DISCLAIMER
THE PROPERTIES ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS
WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED. TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, enBask DISCLAIMS ALL
WARRANTIES, EXPRESS OR IMPLIED, WHICH MIGHT APPLY TO THE PROPERTIES,
INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTIES THAT MAY
ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, AND
ANY WARRANTIES AS TO THE ACCURACY, RELIABILITY OR QUALITY OF ANY CONTENT OR
INFORMATION CONTAINED WITHIN THE PROPERTIES. enBask DOES NOT
WARRANT THAT THE PROPERTIES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT
DEFECTS WILL BE CORRECTED, OR THAT THE PROPERTIES ARE FREE OF VIRUSES OR
OTHER HARMFUL COMPONENTS. YOU ASSUME ALL RESPONSIBILITY FOR SELECTING THE PROPERTIES TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE PROPERTIES.
Because some states or jurisdictions do not allow the disclaimer of implied warranties, the forgoing disclaimer may, in whole or in part, not apply to you.
IX. INDEMNIFICATION
YOU HEREBY AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS enBask
FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, DAMAGES, LOSSES, LIABILITIES
AND COSTS (INCLUDING ATTORNEYS’ FEES) THAT DIRECTLY OR INDIRECTLY ARISE OR RESULT FROM YOUR USE OR MISUSE OF THE PROPERTIES, OR ANY VIOLATION BY YOU OF ANY OF THE PROVISIONS OF THIS AGREEMENT, THE EULA OR THE PRIVACY POLICY.
enBask reserves the right, at its own expense and in its sole and absolute discretion, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with enBask in asserting any available defenses.
X. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY, WHETHER IN CONTRACT,
TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, SHALL enBask BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY
KIND (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF
DATA, LOSS OF GOOD WILL, OR LOST PROFITS), OR ANY DAMAGES FOR GROSS
NEGLIGENCE OF ANY KIND (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR WORK
STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER COMMERCIAL
DAMAGES OR LOSSES) ARISING FROM YOUR USE OR MISUSE OF THE PROPERTIES, EVEN IF
enBask KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH
DAMAGES. IN NO EVENT SHALL enBask BE LIABLE FOR ANY DAMAGES IN
EXCESS OF ANY AMOUNT YOU HAVE PAID TO enBask FOR GAME-RELATED TRANSACTIONS, IF ANY, DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO THE TIME YOUR CAUSE OF ACTION AROSE.
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 enBask shall be limited to the fullest extent permitted by applicable law.
XI. EQUITABLE REMEDIES
You hereby acknowledge and agree that enBask would suffer irreparable harm if this Agreement were not specifically enforced. Consequently, in addition to such monetary and other relief as may be recoverable at law, you agree that enBask shall be entitled to specific performance or other injunctive relief, without bond, other security, or proof of damages, as remedy for any breach or threatened breach of this Agreement. Additionally, in the event any legal or administrative action or proceeding is brought by either party in connection with this Agreement and consistent with Section XII below, the prevailing party in such action or proceeding shall be entitled to recover from the other party all the costs, attorneys’ fees and other expenses incurred by such prevailing party as the result of the action or proceeding.
XII. NEGOTIATIONS, BINDING ARBITRATION AND GOVERNING LAW
- Negotiations. Disputes can be expensive and time consuming for both parties. In an effort to accelerate resolution and reduce the cost of any dispute or claim related to this Agreement (“Claim”), you and enBask agree to first attempt to informally negotiate any Claim for at least thirty (30) days (except those Claims expressly excluded in Section XII.F below). enBask will send its notice to the address it has on file to the extent that you have provided additional contact information to enBask (e.g. by participating in a promotion or survey, or contacting a customer services representative). Otherwise, enBask will send its notice to the email address associated with your Account. You will send your notice to enBask Studios LLC, 700 Smith St #61070, SMB 1974 Houston, TX 77002. Please note that this informal resolution procedure does not suspend any statutory limitation periods applicable to the bringing of a Claim.
- Binding Arbitration. If the parties fail to resolve a Claim through negotiations, within such thirty (30)-
day period, either you or enBask may elect to have the Claim (except as otherwise provided in Section XV.F) finally and exclusively resolved by binding arbitration by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Commercial Arbitration Rules of the American Arbitration
Association (“AAA Rules”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”) that are in effect at the time the arbitration is initiated and under the terms set forth in this Agreement. Both the AAA Rules and the AAA Consumer Rules can be found at the AAA website, www.adr.org. In the event of a conflict between the terms set forth in this Section XV.B and either the AAA Rules or the AAA Consumer Rules, the terms in this Section XV.B will control and prevail.
Except as otherwise set forth in Section XII.F, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and enBask will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in this Agreement, (i) you and enBask may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (ii) the arbitrator’s decision is final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND enBask ARE WAIVING THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
- Arbitration Fees. If we are initiating arbitration for a Claim, we will pay all costs charged by the AAA Rules for initiating the arbitration. Your share of all other fees and costs of the arbitration, including your share of arbitrator compensation, will be charged pursuant to the AAA Rules, and where appropriate, limited by the AAA Consumer Rules. Where your share of the costs is deemed to be excessive by the arbitrator, enBask will pay all arbitration fees and expenses.
- Location. The arbitration will take place in your hometown area if you so notify enBask in your notice of arbitration or within ten (10) days following receipt of enBask arbitration notice. In the absence of a notice to conduct the arbitration in your hometown area, the arbitration will be conducted in Dallas, Texas, unless the parties agree to video, phone and/or internet connection appearances. Any Claim not subject to arbitration (other than claims proceeding in any small claims court), or where no election to arbitrate has been made, shall be decided exclusively by a court of competent jurisdiction in Dallas, Texas, United States of America, and you and enBask agree to submit to the personal jurisdiction of that court.
- Limitations. You and enBask agree that any arbitration shall be limited to the Claim between enBask and you individually. YOU AND enBask AGREE THAT (A) THERE IS
NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (B) THERE IS NO RIGHT OR AUTHORITY
FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (C) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER.
- Exceptions to Negotiations and Arbitration. You and enBask agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (i) any Claims seeking to enforce or protect, or concerning the validity of, any of your or enBask intellectual property rights; (ii) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (iii) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such courts’ jurisdiction in lieu of arbitration.
- Governing Law. Except as otherwise provided in this Agreement, this Agreement shall be governed by, and will be construed under, the laws of the United States of America and the law of the State of Texas, without regard to conflict of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Other laws may apply if you choose to access the Game from outside of the United States. In such an event, those local laws shall affect this Agreement only to the extent necessary in that jurisdiction, and this Agreement shall be interpreted to give maximum effect to the terms and conditions in this Agreement. You are responsible for compliance with all local laws if and to the extent local laws are applicable. The New Zealand Consumer Guarantees Act of 1993 (the “Act”) may apply to the Game if you access the Game from, and are a resident of, New Zealand. Notwithstanding anything to the contrary in this Agreement, if the Act applies then you may have other rights or remedies as set out in the Act which may apply in addition to or instead of those set out in this Agreement.
- Severability. You and enBask agree that if any portion this Section XII is found illegal or unenforceable (except any portion of Section XII.F), that portion shall be severed and the remainder of the Section shall be given full force and effect. If Section XII.F is found to be illegal or unenforceable then neither you nor enBask will elect to arbitrate any Claim falling within that portion of Section XII.F found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within Dallas, State of Texas, United States of America, and you and enBask agree to submit to the personal jurisdiction of that court.
XIII. TERMINATION
This Agreement (and all subsequent modifications, if any) shall remain effective until terminated. Both you and enBask may terminate this Agreement at any time for any reason or for no reason. Termination by enBask will be effective upon notice to you, termination or deletion of your Account, or its decision to permanently discontinue offering and/or supporting the Game, which it may do at any time in its sole discretion. You may terminate this Agreement at any time simply by not using the Game. If, however, you wish to terminate your Account, you must affirmatively do so by notifying enBask at contact@enbask.com as stated above. Upon termination of this Agreement, your right to use the Properties shall immediately cease.
XIV. MISCELLANEOUS
- Assignment. enBask may assign this Agreement, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the Agreement without enBask prior written consent, and any unauthorized assignment by you shall be null and void.
- Customer Contact. If you have any questions concerning these terms and conditions, or if you would like to contact enBask for any other reason, please contact enBask support at contact@enbask.com
- Entire Agreement. This Agreement represents the complete agreement between you and
enBask concerning the Game, and the subject matter of the Agreement, and supersedes any prior or contemporaneous agreements between you and enBask; provided however that this Agreement shall coexist with, and shall not supersede, the EULA.
- Force Majeure. enBask shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of enBask, including, without limitation, any failure to perform hereunder due to unforeseen circumstances or cause beyond enBask control such as acts of god, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.
- Location. The Game are operated by enBask in the United States. Those who choose to access the Site and/or the Game from locations outside the United States do so on their own initiative and are responsible for compliance with applicable local laws. The Software is subject to United States export controls as set forth in the EULA.
- No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and enBask as a result of this Agreement or your use of the Game.
- No Waiver. enBasks’ failure to enforce any provision of this Agreement shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by enBask of any provision, condition or requirement of this Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
- Notices. Except as otherwise expressly provided herein, all notices given by you or required under this Agreement shall be in writing and addressed to: enBask Stduis LLC, 700 Smith St #61070, SMB 1974 Houston, TX 77002.
- Reform and Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect. If, however, it is determined that such provision cannot be reformed, then that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of any remaining provisions.
- Section Headings. The section headings used herein are for convenience only and shall not affect the interpretation of this Agreement or have any other legal effect.
- Survival. The provisions of Sections IV, VI.A, IX, XI-XIV shall survive any termination of this Agreement.
YOU HEREBY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THE FOREGOING
TERMS OF USE AGREEMENT AND AGREE THAT YOUR USE OF ANY OF THE PROPERTIES IS AN ACKNOWLEDGMENT OF YOUR AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.