This End User License and Service Agreement (this "Agreement") concerns the Onward platform (the "Site") provided to you by Downpour Interactive, LLC ("Downpour"), as well as related console games, websites, mobile applications, products, and services we may offer to you (together, the "Services") (and any updates), any online services, or downloads associated herewith, the software (including firmware) for any related peripherals, and the associated media, printed materials, and documentation (collectively, "Program").
If you are either under the age of majority in your jurisdiction or under eighteen (18) years old, please ask your parent or guardian to read and accept this Agreement for you before you use the Program. By opening this package, downloading, installing, or using the Program or "clicking to accept," you accept the terms of this Agreement with Downpour. If you do not agree to these terms, you are not permitted to install, copy, or use the Program. To reject these terms, you must not "click to accept" these terms or install, copy, or use the Program.
This Agreement is subject to the Customer Content Agreement, available at [http://www.downpourinteractive.com/custom-content-agreement], which outlines Downpour's and your rights and obligations related to any user-generated content you and other users may share while using the Program ("UGC"). The terms and conditions of this Customer Content Agreement are incorporated herein by reference and deemed part of this Agreement. Additionally, Downpour's Privacy Policy, available at [http://www.downpourinteractive.com/privacy-policy], the terms of which are incorporated herein by reference, shall be deemed part of this Agreement.
This Agreement is subject and supplemental to those terms and conditions of any agreement between you and the platform provider you used to purchase your rights to the Program.
Except for Section 14 (regarding arbitration and class action waiver), Downpour reserves the right to modify this Agreement at any time by any means, including without limitation by (1) posting the modifications to [http://www.downpourinteractive.com/eula] and/or (2) requiring you to "click to accept" the Agreement. By continuing to use the Program, you accept any and all modifications to this Agreement. If modifications to the Agreement are unacceptable to you or cause you to no longer be in compliance with this Agreement, you must terminate, and immediately stop using, the Program. If any future modifications are implemented as a "click to accept" Agreement, you may not be able to continue using the Program unless you affirmatively accept the modified Agreement.
Applicability of Additional Terms.
The use of certain Program features, including online or multiplayer components, or updated features, may require assent to additional terms of service. You will be provided with these additional terms of service at the time the applicable features are made available to you. If you do not assent to the additional terms of service, you may not be able to access or use the additional features that are subject to the additional terms of service.
Limited Use License.
Subject to any system requirements, Downpour grants you the non-exclusive, non-transferable, limited right and license to install and use one copy of the software component(s) of the Program solely for your personal use. All rights not specifically granted are reserved by Downpour. The Program is licensed, not sold, for your use. Your license confers no title or ownership in the Program and should not be construed as a sale of any rights in the Program. This Agreement shall also apply to updates you may obtain for the Program, provided that such update may be accompanied by additional terms. You acknowledge and agree that, other than the license granted to you by this Agreement, you shall have no ownership or property interest in any product or service-provided content (as defined below), including, without limitation, online accounts, any virtual currency or goods, and you further acknowledge and agree that to the fullest extent permitted by applicable law all rights in and to such products and service-provided content are and shall forever be owned by and inure to the benefit of Downpour. For residents outside North America: for the avoidance of doubt, nothing in Section 2 shall limit your right to sell and transfer the physical media containing the Program which you have rightfully purchased.
License Conditions.
This license is subject to the limitations outlined in this Section. Any use of the Program in violation of these limitations will result in an immediate termination of your license and continued use of the Program will be an infringement of Downpour's copyrights and other rights in and to the Program.
You agree that you will not do, or allow, any of the following:
harass, threaten, embarrass or cause distress or discomfort upon another participant, user, or other individual or entity;
transmit any UGC that Downpour considers to be disruptive, unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, hateful, or racially, sexually, ethnically or otherwise objectionable;
impersonate any person or entity, including but not limited to Downpour;
disrupt normal Program functionality, or otherwise act in a manner that negatively affects other participants and/or the overall Program experience;
post or transmit any unsolicited advertising, promotional materials, or any other forms of solicitation;
intentionally or unintentionally violate any applicable law, regulation or treaty while using or accessing the Program;
post multiple posts of the same content (i.e., "spam"); or
invade the privacy or violate or infringe any right of any person or entity, including, without limitation, any intellectual property right.
Parents and guardians of children either under the age of majority in their jurisdiction or less than 18 years old are responsible for all uses of the Program by your child whether or not such uses were authorized by you.
Ownership
All title, ownership rights, and intellectual property rights in and to the Program are owned by Downpour, affiliates of Downpour, or Downpour's licensors. The Program is protected by the copyright laws of the United States of America, international copyright treaties, conventions, and other laws. The Program may contain certain licensed materials, and Downpour's licensors may protect their rights in the event of any violation of this Agreement. Notwithstanding anything to the contrary, you acknowledge and agree that you shall have no ownership or other property interest in any account stored or hosted on an Downpour system, and you further acknowledge and agree that all rights in and to these accounts are and shall forever be owned by and inure to the benefit of Downpour. Downpour may suspend, terminate, modify or delete any of these accounts at any time for any reason or no reason, with or without notice to you.
Patches and Updates
Downpour may deploy or provide mandatory patches, updates, and modifications to the Program that must be installed for you to continue to use the Program. Downpour may update the Program remotely without notifying you, and you hereby grant to Downpour consent to deploy and apply such patches, updates, and modifications. Broadband internet is required for such patches, updates, and modifications. You are responsible for any and all broadband access and usage fees.
Limitation of Damages.
Downpour shall not be liable for special, incidental, or consequential damages resulting from possession, use, or malfunction of the Program, including damages to property, computer failure or malfunction and, to the extent permitted by law, damages for personal injuries, even if Downpour has been advised of the possibility of these damages. Downpour's liability shall not exceed the actual price paid for the license to use the Program. Some states/countries do not allow limitations on how long an implied warranty lasts and/or the exclusion or limitation of damages, so the above limitations and/or exclusions may not apply to you. This warranty gives you specific legal rights, and you may have other rights which vary from jurisdiction to jurisdiction.
Residents Outside North America.
Nothing in this Agreement shall limit or exclude Downpour's liability to you:
Subject to the foregoing, in no event shall Downpour be liable to you for any business losses and any liability Downpour does have for losses you suffer is strictly limited to losses that were reasonably foreseeable and shall not, in aggregate, exceed the greater of the following: the total price paid by you for the Program (plus any paid-for service-provided content) over the previous 6 months from the date on which the liability arises; or the sum of U.S.$500 or an equivalent amount under the current foreign exchange rate.
Termination
Without prejudice to any other rights of Downpour, this Agreement will terminate automatically if you fail to comply with any of its terms and conditions. In the event of termination for this reason, you must destroy all copies of the Program and all of its component parts. You may also terminate the Agreement at any time by permanently deleting any installation of the Program and destroying all copies of the Program in your possession or control. The following provisions shall survive termination of this Agreement: license conditions (Section 3), ownership (Section 4), limitation of damages (Section 6), termination (Section 7), indemnity (Section 9), service-provided content (Section 10), availability (Section 11), access (Section 12), binding arbitration and class action waiver (Section 14), jurisdiction and applicable law (Section 15), and miscellaneous (Section 16).
Residents in North America - U.S. Government Restricted Rights
The Program has been developed entirely at private expense and are provided as "commercial computer software" or "restricted computer software." Use, duplication, or disclosure by the U.S. government or a U.S. government subcontractor is subject to the restrictions set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clauses in DFARS 252.227-7013 or as set forth in subparagraph (c)(1) and (2) of the Commercial Computer Software Restricted Rights clauses at FAR 52.227-19, as applicable. The contractor/manufacturer is Downpour Interactive, LLC.
Residents in North America - Indemnification
You agree to indemnify, defend, and hold Downpour, its partners, affiliates, licensors, contractors, officers, directors, employees, and agents harmless from all damages, losses, and expenses arising directly or indirectly from your breach of this Agreement and/or your acts and omissions in using the Program pursuant to the terms of this Agreement.
Service-Provided Content.
"Service-provided content" consists of all virtual materials, information, and content provided to you (e.g., unlockable content, accounts, stats, virtual assets, virtual currencies, codes, achievements, virtual rewards, credits, access, shows, tokens, coins, power-ups, and customizations) in connection with your use of the Program, including the online services, which you need to "earn", "grind", "buy" and/or "purchase" in order to obtain additional content.
While the Program may allow you to "earn," "grind," "buy," or "purchase" service-provided content within or in connection with gameplay, you do not in fact own or have any property interest in the service-provided content and the price of any service-provided content does not refer to any credit balance of real currency or its equivalent. Unless otherwise specified in writing, any service-provided content that you receive is licensed to you as set forth herein, and you shall have no ownership right thereto in any service-provided content. You may not, sell, lend, rent, trade, or otherwise transfer any service-provided content, except for other service-provided content where applicable. Any sale of service-provided content, including, but not limited to, virtual currency for "real" money or exchange of those items or virtual currency for value outside of the Program is prohibited. Service-provided content may be altered, removed, deleted, or discontinued by Downpour (e.g., upon termination of this Agreement and/or cessation of online support for the Program as set out herein) even if you have not "used" or "consumed" the service-provided content prior to alteration, removal, deletion, or discontinuation. Without limiting the above, service-provided content may include virtual coins, points, or other virtual currencies ("virtual currency").
By purchasing or otherwise acquiring virtual currency, you obtain a limited license (which is revocable by Downpour at any time unless otherwise required by applicable laws) to access and select from other service-provided content. Virtual currency has no monetary value and does not constitute currency or property of any type. Virtual currency may be redeemed for other service-provided content only, if at all. Subject to applicable local law, virtual currency is non-refundable. You are not entitled to a refund or any other compensation such as service-provided content for any unused virtual currency and unused virtual currency is non-exchangeable. Downpour may revise the pricing for the service-provided content and virtual currency offered through the Program at any time. Downpour may limit the total amount of service-provided content or virtual currency that may be purchased at any one time, and/or limit the total amount of service-provided content or virtual currency that may be held in your account in the aggregate. You are only allowed to purchase service-provided content or virtual currency from Downpour or our authorized partners through the Program, and not in any other way. Downpour reserves the right to refuse your request(s) to acquire service-provided content and/or virtual currency. You agree that you will be solely responsible for paying any applicable taxes related to the acquisition of, use of or access to service-provided content and/or virtual currency.
There may be service-provided content (should you choose to purchase it) which will require you to make a payment with real money, the amount of which will be set out in the Program. All service-provided content will be made available immediately when you purchase it with real money and you acknowledge that this is the case and that you will have no right to change your mind and cancel (sometimes known as a 'cooling off' right) once your purchase is complete. Depending on your platform, any service-provided content purchased, will be purchased from your platform provider and such purchase will be subject to their respective terms of service and user Agreement. Please check usage rights for each purchase as these may differ from item to item. Unless otherwise shown, content available in any in-game store has the same age rating as the game.
Availability
Residents in North America.
Downpour does not guarantee that any online services, play or features associated with the Program (collectively, "online services") or service-provided content will be available at all times or at any given time or that Downpour will continue to offer online services or service-provided content for any particular length of time. Downpour may change and update online services or service-provided content without notice to you. Downpour makes no warranty or representation regarding the availability of online services and reserves the right to modify or discontinue online services in its sole discretion without notice, including for example, ceasing an online service for economic reasons due to a limited number of users continuing to make use of the online service over time. Notwithstanding anything to the contrary, you acknowledge and agree that online services may be terminated in whole or in part at Downpour's sole discretion without notice to you, and in connection with online services termination, any and all service-provided content licensed to you may be terminated. You assume any and all risk of loss associated with the termination of online services and any loss of service-provided content otherwise.
For Residents Outside North America.
Subject to the next sentence, Downpour does not guarantee that any online services or service-provided content will be available or error-free at all times or at any given time. Downpour warrants that the Program, in addition to any service-provided content which has been paid-for with real money, will substantially comply with the description provided by it at the point of purchase and be of satisfactory quality (in addition any related services provided through them will be provided with reasonable care and skill). Downpour may change and update online services or service-provided content without notice to you (provided always that any such changes do not result in material degradation in the functionality of the Program or any service-provided content which has been paid-for with real money). Downpour makes no warranty or representation regarding the availability of online services and/or service-provided content which are free (i.e. not paid-for with real money) and reserves the right to modify or discontinue them in its sole discretion without notice to you, including for example, for economic reasons due to a limited number of users continuing to make use of them over time. Downpour is not liable or responsible for any failure to perform, or delay in performance of, any of its obligations that is caused by events outside its reasonable control. If such circumstances result in material degradation in the functionality of the Program or service-provided content then your obligation to make any payment to download, use or access them will be suspended for the duration of such period. Downpour is entitled to modify or discontinue online services and/or service-provided content which are paid-for with real money in its sole discretion upon reasonable notice to you. The warranty for such online services and/or service-provided content is provided in accordance with your statutory rights as a consumer which will always prevail. Please see Section 7 in respect of Downpour's limitation on damages, but nothing in this paragraph shall affect your statutory rights.
Access.
You are solely responsible for any third-party costs you incur to use the Program and Services. You acknowledge and agree that you will provide at your own cost and expense the equipment, internet, or other connection charges required to access and use the Program. Downpour makes no warranty that the Program can be accessed or used on all systems, controllers, or devices, by means of any specific internet or other connection provider, or in all territories. The Program may integrate, be integrated into, or be provided in connection with third-party services and content. Downpour does not control those third-party services and content. You should read the terms of use Agreements and privacy policies that apply to such third-party services and content.
Copyright Notice.
For residents in North America: if you believe that any UGC or any other content appearing in the Program and/or UGC has been copied in a way that constitutes copyright infringement, please forward the following information to the copyright agent named below. Your copyright infringement notification must comply with the digital millennium copyright act ("DMCA"). You are encouraged to review 17 U.S.C. § 512(c)(3) or consult with an attorney prior to sending a notice hereunder. To file a copyright infringement notice, you will need to send a written communication that includes the following to the address listed below: (a) your name, address, telephone number, and email address; (b) a description of the copyrighted work that you claim has been infringed; (c) the exact URL or a description of where the alleged infringing material is located; (d) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (e) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and (f) a statement by you, under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
Downpour Interactive, LLC
Attn: Downpour Business and Legal Affairs
PO Box 426799
San Francisco, CA 94142
E-mail: customcontent@downpourinteractive.com
Binding Arbitration and Class Action Waiver.
READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
These binding arbitration and class action waiver provisions apply to you if you are domiciled in and/or acquired and use the Program in the United States of America. These provisions may also apply to you if you are domiciled in and/or acquired and use the Program from outside the United States. See jurisdiction and applicable law below for details.
Initial Dispute Resolution
Downpour's customer support department is available at [Dante@downpourinteractive.com] to address any concerns you may have regarding the Program. Most concerns are quickly resolved in this manner to our customers' satisfaction. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.
Binding Arbitration
If the parties do not reach an agreed upon solution within a period of 30 days from the time informal dispute resolution is pursued pursuant to the paragraph above, then either party may initiate binding arbitration as the sole means to formally resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to this Agreement (including its interpretation, formation, performance and breach), the parties' relationship with each other, and/or your use of the Program shall be finally settled by binding arbitration administered by JAMS in accordance with the provisions of its comprehensive arbitration rules or streamlined arbitrations rules, as appropriate, excluding any rules or procedures governing or permitting class actions. This arbitration provision is made pursuant to a transaction involving interstate commerce, and the federal arbitration act (the "FAA") shall apply to the interpretation, applicability, enforceability and formation of this Agreement notwithstanding any other choice of law provision contained in this Agreement. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of this Agreement, including without limitation any claim that all or any part of this Agreement is void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator's award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
The JAMS rules governing the arbitration may be accessed at http://www.jamsadr.com/ or by calling JAMS at (800) 352-5267.
Your arbitration fees and your share of arbitrator compensation shall be governed by the JAMS comprehensive arbitration rules, but shall not incorporate the JAMS class action procedures, and, to the extent applicable, the consumer minimum standards, including the then-current limit on arbitration filing fees. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, Downpour will pay the additional cost. The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
Location
Arbitration shall be initiated in San Francisco, California, and you and Downpour agree to submit to the personal jurisdiction of any federal or state court in San Francisco County, California, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
Class Action Waiver
The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. You and Downpour agree that each may bring claims against the other only in your or its individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
Litigation of Intellectual Property and Small Claims Court Claims
Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may bring an action in state or federal court that only asserts claims for patent infringement or invalidity, copyright infringement, moral rights violations, trademark infringement, and/or trade secret misappropriation, but not, for clarity, claims related to the license granted to you for the Program under this Agreement. Either party may also seek relief in a small claims court for disputes or claims within the scope of that court's jurisdiction.
30-Day Right to Opt Out
You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in the "binding arbitration," "location," and "class action waiver" paragraphs above by sending written notice of your decision to opt-out to the following address:
Downpour Interactive, LLC
Attn: Downpour Business and Legal Affairs
PO Box 426799
San Francisco, CA 94142
The notice must be sent within 30 days of purchasing the Program (or if no purchase was made, then within 30 days of the date on which you first access or use the Program and agree to these terms); otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt-out of these arbitration provisions, Downpour also will not be bound by them.
Changes to this Section
Downpour will provide 60-days notice of any changes to this Section. Changes will become effective on the 60th day and will apply prospectively only to any claims arising after the 60th day.
Jurisdiction and Applicable Law
The Program is made available subject to the terms of this Agreement. The following terms govern the appropriate jurisdiction for legal disputes and applicable law.
Residents of the United States, Mexico, and Canada
Any claims arising out of this Agreement (including interpretation, claims for breach, and all other claims (including consumer protection, unfair competition, and tort claims)) will be subject to the laws of the state of Delaware, without reference to conflict of laws principles. If any court or arbitrator determines that the "class action waiver" paragraph set forth above is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then any and all claims arising out of this Agreement (including interpretation, claims for breach, and all other claims (including consumer protection, unfair competition, and tort claims)) shall be decided under the laws of the state where you were a citizen at the time you obtained or bought the Program that was subject to this Agreement. In addition, you and we irrevocably consent to the exclusive jurisdiction and venue of state or federal courts in San Francisco County, California, to resolve any claims that are subject to exceptions to the arbitration Agreement described in binding arbitration and class action waiver above, or otherwise determined not to be arbitrable.
Residents in the European Union
The laws of the state of Delaware in the United States govern the interpretation of this Agreement and apply to claims for breach of it, without reference to conflict of laws principles. All other claims, including claims regarding consumer protection laws, unfair competition laws, and in tort, will be subject to the laws of the European Union country in which you acquired and use the Program. In addition, with respect to jurisdiction, you may choose either the courts of the country in which you acquired and use the Program, or another court as applicable under the Brussels Regulation EC 44/2001.
Residents in Australia or Japan
The laws of the state of Delaware in the United States govern the interpretation of this Agreement and apply to claims for breach of it, without reference to conflict of laws principles. All other claims, including claims regarding consumer protection laws, unfair competition laws, and in tort, will be subject to the laws of the country in which you acquired and use the Program (being either Australia or Japan). To the extent permitted by applicable law, you agree to the jurisdiction of the courts of San Francisco County, California.
Residents in the Rest of the World.
If you acquired or use this Program from or in countries other than those listed in above, then you do so on your own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable, and you expressly indemnify and hold harmless Downpour from any and all claims, loss, injury, damage, or costs arising from your use of the Program to the fullest extent permitted by applicable law. No warranty or representation is made by Downpour that the Program or any use of the Program outside of the countries listed above complies with any applicable local law. Further your use of the Program and all claims arising out of or related to the Program or this Agreement will, to the extent permitted under applicable law, be subject to the laws of the state of Delaware in the United States, without reference to conflict of laws principles and you consent to the jurisdiction of the courts San Francisco County, California.
To the extent permitted by applicable law, if any user outside of the United States is entitled to commence and/or participate in legal proceedings within the United States, then that user agrees to be bound by the binding arbitration and class action waiver provisions above.
Miscellaneous
This Agreement is the complete Agreement concerning this license between the parties and supersedes any and all prior Agreements and representations between them. If any provision of this Agreement is held to be unenforceable, the applicable provision shall be reformed only to the extent necessary to make it enforceable and the remaining provisions of this Agreement shall not be affected, except as otherwise expressly provided herein.
Supplemental Terms Residents of Germany
The following Sections below supersede and replace the corresponding Sections above for residents in Germany.
Modification of Terms
From time to time, Downpour may need to amend this Agreement, for example to reflect or include new products or services, to enhance security for users or because of changes in the law. If Downpour makes such a change to this Agreement we will inform you of the particular changes in advance no later than thirty (30) calendar days before such changes come into force and you shall be deemed to have accepted these changes (i) unless you have notified us of your objection to such changes within thirty (30) calendar days from the moment of receipt of notification from us, or (ii) if you use the Program after the changes have entered into force. In the notification, we will inform you of your right to object, of the applicable notice period and the legal consequences of a failure to object. The latest version of this Agreement will always be available on our website, so we recommend that you check for updates to this Agreement each time you use the Program. Changes to the Agreement shall not affect your accrued rights, shall not substantially disrupt the contractual balance between you and us under this Agreement and shall not have retroactive effect.
