GOTHAM CITY IMPOSTORS
END USER LICENSE AGREEMENT - AUSTRALIA
Last updated: September 2011
THIS AGREEMENT IS A LEGALLY BINDING CONTRACT; PLEASE READ IT CAREFULLY. Welcome to Gotham City Impostors. WB Games Inc. ("WB Games") is proud to provide you with Gotham City Impostors game software (together with any updates, the "Game Client") for use with the online component of Gotham City Impostors (a "Game Server"). Together, the Game Client and a Game Server make up the gameGotham City Impostors (the "Game"). This End User License Agreement (the "EULA" or "Agreement") governs your use of the Game Client, while Gotham City Impostors Terms of Service (the "TOS"), incorporated herein by this reference, governs your use of the Game Server. By installing or using the Game Client, you agree to be bound by the terms of this Agreement and the TOS.
1. Limited License. The Game Client is licensed, not sold. Subject to your agreement to and continued compliance with the terms and conditions of this EULA, WB Games hereby grants to you a limited, revocable, non-exclusive, nontransferable, personal license to (a) download and install the Game Client onto a Microsoft Xbox 360 video game and entertainment system (an "Entertainment System") owned by you, and (b) use the Game Client in conjunction with a Game Server for your non-commercial entertainment purposes only. The foregoing license does not permit you to do any of the following, and you agree that the violation of any of the following license limitations will - except to the extent permitted by the Copyright Act 1968 (Cth) - constitute an infringement of WB Games' copyrights:
a. You may not sell, license or transfer the Game Client, or any reproductions or modifications thereof, to any person or entity;
b. You may not develop, distribute or host any server or software designed to interact with the Game Client or to redirect or emulate the communications protocols used by WB Games;
c. You may not modify the Game Client or any portion thereof;
d. You may not, or allow or authorize others, to copy, translate, reverse engineer, derive source code from, modify, disassemble, decompile, reverse-engineer, or create derivative works based on the Game Client or any portion thereof;
e. You may not develop, distribute or use any third party program designed to impact the Game experience, including without limitation software bots, cheats, hacks or any other software designed to provide a player with an advantage;
f. You may not exploit the Game, or any portion thereof, for any commercial purpose;
g. You may not connect to a Game Server except by using an authorized, unmodified Game Client through the Microsoft Xbox LIVE service or other WB Games authorized third party computer service as set forth herein; or
h. You may not use the Game Client to connect to any server or service other than a Game Server through the Microsoft Xbox LIVE service or other WB Games authorized third party service.
The license granted herein confers no title or ownership in the Game (including without limitation the Game Client) and should not be construed as a sale of any rights to the Game. All rights, titles and interests in and to the Game and any and all copies thereof (including without limitation any and all titles, computer code, technology, themes, objects, characters, character names, stories, dialog, catch phrases, locations, concepts, artwork, music, etc.) are owned by WB Games or its licensors.
2. Term. This EULA is effective until terminated, and those provisions which by their nature should survive termination shall survive termination, including without limitation those provisions addressing license limitations, disclaimer of warranties, limitation of liability, indemnification and ownership. You may terminate this EULA at any time by permanently destroying all copies of the Game and related documentation in your possession, including without limitation any and all Game Clients under your custody or control. WB Games may terminate this Agreement at any time for any reason or no reason by providing notice to you, including without limitation email notice to the last email address or game service account provided by you. Upon termination of this Agreement, you must destroy all copies of the Game and related documentation in your possession, including without limitation any and all Game Clients under your custody or control.
3. Ownership. You agree that, between you and WB Games, WB Games owns and shall continue to own all rights, title and interest in and to the Game, all copies thereof, and all content therein. The Game is protected by the copyright laws of the United States, international treaties and other laws. The Game may contain materials licensed by third parties, and the licensors of those materials are third party beneficiaries of this Agreement with the right to enforce their rights against you if you violate this Agreement.
4. Consent to Monitor. When the Game is running, WB Games, its affiliates or its contractors may monitor your Entertainment System for uses that violate Section 1. You hereby grant WB Games, its affiliates and its contractors permission to monitor your Entertainment System for purposes of identifying such use and communicating potential violations to WB Games. WB Games, its affiliates and its contractors are under no obligation to monitor your system.
5. Your Consumer Rights. You may have rights under applicable consumer protection legislation, including the Australian Consumer Law, which cannot be excluded, restricted or modified by this Agreement, or which would render void any part of this Agreement which attempts to do so ("Consumer Rights"). You can find out more about your Consumer Rights from consumer organisations and bodies such as the Australian Competition and Consumer Commission and State/Territory fair trading authorities. Where Consumer Rights apply, nothing in this Agreement excludes or limits those Consumer Rights or liability for breach of them. This applies to all of the terms of this Agreement, including any terms in relation to disclaimer of warranties, limitation of liability, indemnification, changes to this Agreement, termination and dispute resolution.
6. DISCLAIMER OF WARRANTIES. THE GAME IS PROVIDED TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND AVAILABILITY.
7. LIMITATION OF LIABILITY. IN NO EVENT SHALL WB GAMES, ITS PARENT, SUBSIDIARIES, AFFILIATES OR CONTRACTORS BE LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND ARISING OUT OF OR RELATING TO THE GAME AND/OR THE GAME CLIENT OR ANY USE THEREOF, INCLUDING WITHOUT LIMITATION ANY LOSS OF DATA OR GOODWILL, DISRUPTION OF SERVICE OR CLAIMS OF THIRD PARTIES. IN NO EVENT SHALL WB GAMES, ITS PARENT, SUBSIDIARIES, AFFILIATES, OR CONTRACTORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, LIQUIDATED, OR OTHER CONSEQUENTIAL DAMAGES, WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY, ARISING FROM YOUR USE OF THE GAME (INCLUDING WITHOUT LIMITATION THE GAME CLIENT). THE FOREGOING LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. In no event shall WB Games' aggregate liability, whether arising in contract, tort, strict liability or otherwise, exceed the total fees paid by you for the Game.
8. INDEMNIFICATION. YOU HEREBY AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS WB GAMES, ITS PARENT, SUBSIDIARIES, AFFILIATES AND CONTRACTORS, FROM AND AGAINST ANY CLAIM, LIABILITY, INJURY, DAMAGE, LOSS OR EXPENSE (INCLUDING REASONABLE ATTORNEYS' FEES) INCURRED AS A RESULT OF, ARISING FROM, OR RELATING TO YOUR USE OF THE GAME AND/OR THE GAME CLIENT.
9. Changes to Agreement and Game. WB Games may update this Agreement at its sole discretion, and you will be asked to review and agree to the revised version of the EULA once it becomes effective. If you do not agree to a revised EULA, you will not be permitted to continue playing the Game. If at any time you are no longer able to comply with the terms of the then-current EULA, you must terminate this Agreement pursuant to Section 2 and immediately stop using the Game. WB Games may change, modify, suspend, or discontinue any aspect of the Game at any time. WB Games may also impose limits on certain features or restrict your access to parts or all of the Game without notice or liability. You have no interest, monetary or otherwise, in any feature or content contained in the Game.
10. Patches and Updates. WB Games may apply patches, updates and modifications (collectively, "Updates") to the Game at any time, including Updates to the Game Client installed on your Entertainment System. Updates are not optional. You agree that WB Games may deploy and install updates remotely, with or without your knowledge, and you hereby provide your consent for WB Games to download and apply such Updates.
11. Remedies. You acknowledge that WB Games may suffer irreparable damage if you breach any of the provisions governing license limitations or ownership. You therefore agree that if you do breach any of these provisions, in addition to provable damages and reasonable attorneys' fees, WB Games shall be entitled to enjoin such breach and to obtain specific performance of such provisions in any court of competent jurisdiction.
12. Seizure Warning. A very small percentage of people experience epileptic seizures when exposed to certain light patterns or flashing lights. Exposure to these patterns or backgrounds on a television, or while playing video games, may induce an epileptic seizure in these individuals. If you, or anyone in your family, have an epileptic condition, consult your physician prior to playing. If you experience dizziness, altered vision, eye or muscle twitches, loss of awareness, disorientation, any involuntary movement, or convulsions while playing the game, immediately discontinue use and consult your physician.
13. Dispute Resolution and Governing Law.
a. Binding Arbitration. Any dispute, controversy or claim related to this Agreement ("Dispute") (except those Disputes expressly excluded below) that cannot be resolved through informal negotiations shall be finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration shall be initiated and conducted according to either the JAMS Streamlined (for claims under $250,000) or the JAMS Comprehensive (for claims over $250,000) Arbitration Rules and Procedures, except as modified herein, including the Optional Appeal Procedure, at the Los Angeles office of JAMS, or its successor ("JAMS") in effect at the time the request for arbitration is made (the "Arbitration Rules"). The arbitration shall be conducted in Los Angeles County before a single neutral arbitrator appointed in accordance with the Arbitration Rules. WB Games will pay all arbitration fees and reasonable expenses as determined by the arbitrator. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator shall follow California law and the Federal Rules of Evidence in adjudicating the Dispute. The parties waive the right to seek punitive damages and the arbitrator shall have no authority to award such damages. The arbitrator shall provide a detailed written statement of decision, which shall be part of the arbitration award and admissible in any judicial proceeding to confirm, correct or vacate the award. Unless the parties agree otherwise, the neutral arbitrator and the members of any appeal panel shall be former or retired judges or justices of any California state or federal court with experience in matters involving the entertainment industry. If either party refuses to perform any or all of its obligations under the final arbitration award (following appeal, if applicable) within thirty (30) days of such award being rendered, then the other party may enforce the final award in any court of competent jurisdiction in Los Angeles County. The party seeking enforcement shall be entitled to an award of all costs, fees and expenses, including attorneys' fees, incurred in enforcing the award, to be paid by the party against whom enforcement is ordered. Except as otherwise provided in this Agreement, you and WB Games may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. Any Dispute 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 by a court of competent jurisdiction within the County of Los Angeles, State of California, United States of America, and you and WB Games agree to submit to the personal jurisdiction of that court.
b. Restrictions. You and WB Games agree that any arbitration shall be limited to the Dispute between WB Games and you individually. To the full extent permitted by law, (1) no arbitration shall be joined with any other; (2) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (3) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
c. Exceptions. You and WB Games agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (1) any Disputes seeking to enforce or protect, or concerning the validity of, any of WB Games' intellectual property rights; (2) any Dispute related to, or arising from, allegations of theft, piracy or unauthorized use; and (3) any claim for injunctive relief.
d. Governing Law. Except as expressly provided otherwise, 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 California, without regard to choice of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Those who choose to access a Game Server from locations outside of the United States do so on their own initiative and are responsible for compliance with local laws if and to the extent local laws are applicable.
e. Severability. You and WB Games agree that if any portion of Section 13 is found illegal or unenforceable (except any portion of 13(c)), that portion shall be severed and the remainder of the Section shall be given full force and effect. If Section 13(c) is found to be illegal or unenforceable then neither you nor WB Games will elect to arbitrate any Dispute falling within that portion of Section 13(c) found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the County of Los Angeles, State of California, United States of America, and you and WB Games agree to submit to the personal jurisdiction of that court.
14. Miscellaneous. The terms set forth in this Agreement, including the Disclaimer of Warranties, Limitation of Liability and Indemnification provisions are fundamental elements of the basis of the agreement between WB Games and you. WB Games would not be able to provide the Game (including without limitation the Game Client) on an economic basis without such limitations. Such Disclaimer of Warranties, Limitation of Liability and Indemnification provisions inure to the benefit of WB Games' licensors, successors and assigns. You agree that you are not considered, and shall not represent yourself as, an agent, employee, joint venturer, or partner of WB Games. You may not assign this Agreement, in whole or in part, without WB Games' prior written consent and any attempted assignment in violation of this provision shall be null and void. WB Games may assign this Agreement or any of its rights or obligations under this Agreement without your consent at any time. No waiver of any default, condition or breach of this Agreement shall constitute a waiver of any other default, condition or breach of this Agreement, whether of a similar nature or otherwise. Any provision found unlawful by a court or regulator having jurisdiction shall be deemed to be severed from the Agreement, but such severance shall have no effect on the enforceability of the remaining provisions of the Agreement. This Agreement, incorporating all the applicable documents referenced herein, represents the entire agreement between you and WB Games with respect to the Game Client and supersedes all prior agreements between you and WB Games pertaining to the Game Client. You agree that you will comply with all applicable laws in connection with the Game Client and this Agreement, including without limitation export control laws. You must supply all necessary facilities, utilities and equipment necessary to play the Game, including appropriate computer equipment and Internet connections, at your sole risk and expense. This Agreement may be amended only by a writing executed by both parties.