Welcome to GameSpy Arcade. GameSpy ("GameSpy") provides the GameSpy Arcade game service ("GameSpy Arcade") to you ("you"), subject to the terms of this agreement. GameSpy Arcade provides free unlimited access to a wide variety of games and audio chat. As part of GameSpy Arcade, GameSpy maintains a World Wide Web site, www.gamespyarcade.com (the "Web Site"). The following are the terms and conditions for use of GameSpy Arcade and the Web Site, along with any amendments thereto, and any operating rules or policies that may be published from time to time by GameSpy (collectively, the "GameSpy Arcade Agreement" or "GAA"). Please read them carefully. The term "Member" in this GAA refers to any person or entity that has entered into this GAA with GameSpy.
You must be at least 13 years of age to accept this GAA. Minors should access GameSpy Arcade only by having their parent or legal guardian register for them and open an account that the parent or legal guardian authorizes the minor to use. GameSpy may require that the registrant provide sufficient information to indicate that the registrant is an adult. BY COMPLETING THE REGISTRATION PROCESS, DOWNLOADING THE SOFTWARE, AND CLICKING THE "I ACCEPT" BUTTON, YOU ARE STATING THAT YOU ARE AT LEAST 13 YEARS OF AGE OR A MINOR WITH PARENTAL CONSENT TO USE GAMESPY ARCADE, AND THAT YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS GAA.
GameSpy may elect at its sole discretion to monitor some, all or none of the areas of the Web Site and GameSpy Arcade for adherence to this GAA or for any other reason.
1. ACCOUNT INFORMATION.
(i) Member Account Creation. You agree to provide GameSpy with ongoing, accurate, complete, and updated account information. Failure to do so constitutes a breach of this GAA and unauthorized access to GameSpy Arcade, and may result in immediate termination of your account and subject you to civil and/or criminal liability. (ii) Member Account. When you create a Member Account online for GameSpy Arcade, you may receive a password and a member account ("Member Account"). You can have multiple, free Member Accounts. You are entirely responsible for any and all activities conducted through your Member Account. You may permit another individual to use your Member Account subject to your supervision and assumption of all resulting liabilities. You agree to notify GameSpy immediately of any unauthorized use of your password or any of your accounts, or of any other breach of security.
(ii) Passwords. Upon creating your account as a Member of GameSpy Arcade, you may be required to select a password. You are responsible for maintaining the confidentiality of your password and are liable for any harm resulting from disclosing or allowing disclosure of any password or from use by any person of your password to gain access to your Member Account(s). Therefore, for security purposes, GameSpy recommends that you change your password often. You acknowledge that although GameSpy Arcade may offer a feature(s) that allows you to bypass the password protection, this feature permits anyone who has access to your computer to easily access your Member Account. Use of this password bypass feature is at your own risk. YOU ARE FULLY LIABLE FOR ALL CHARGES UNDER YOUR MEMBER ACCOUNTS, INCLUDING ANY UNAUTHORIZED CHARGES TO THOSE ACCOUNTS.
(iii) Registration. You have the right to obtain from GameSpy or their agents a serial number to enable GameSpy Arcade to operate in Full Functionality Mode. This registration entitles the registered user to run GameSpy Arcade in Full Functionality Mode.
(iv) Member Names. Upon creation of your account as a Member of GameSpy Arcade, you may be required to choose one or more Member names to identify yourself to other Members and GameSpy Arcade staff. You may not select or use a Member name which violates any third party's trademark right, copyright, or other proprietary right, which is or may be illegal, which may cause confusion, or which GameSpy deems in its discretion to be vulgar or otherwise offensive. GameSpy reserves the right to delete any vulgar or otherwise offensive Member name, or to require deletion thereof.
(v) Former Members. Members whose accounts have been terminated by GameSpy may not access GameSpy Arcade in any manner or for any reason without the express written permission of GameSpy. Active Members may not knowingly allow former Members who have been terminated to use the active Members' accounts.
2. MEMBER PRIVACY
It is GameSpy's policy to respect the privacy of its Members. Please refer to GameSpy's PRIVACY POLICY for more information.
You agree that GameSpy may access and disclose any information about you, your accounts, or any content you provide on our site if GameSpy believes in good faith that such action is reasonably necessary to enforce this GAA or its copyright policy, to comply with the law, to comply with legal process, to operate its systems properly, to protect itself, its Members, or others, or as stated in the Privacy Policy.
3. PROPRIETARY RIGHTS TO CONTENT
You acknowledge that (a) GameSpy Arcade contains games, information, communications, software, text, photos, video, graphics, music, voices, sounds and other material and services (collectively, "Content"), and (b) such Content may be provided under license by independent content providers ("ICPs"), including, but not limited to, game publishers and other Members. You, and any user of your Member Account, must evaluate, and bear the risk associated with, the accuracy, completeness or usefulness of any Content. GameSpy does not pre-screen Content as a matter of policy, but GameSpy and ICPs shall have the right, but not the responsibility, to remove Content which is deemed in their discretion harmful, offensive, or otherwise in violation of this GAA. Such removal may be immediate and without notice.
You acknowledge that: (a) GameSpy Arcade permits access to Content that is protected by copyrights, trademarks, service marks, patents, rights of publicity, or other proprietary rights owned by GameSpy or third parties (collectively, "Rights"), (b) these Rights are valid and protected in all media existing now or later developed, and (c) except as is explicitly provided otherwise, your use of Content shall be governed by generally applicable copyright and other intellectual property laws. You may make a copy of non-audio and non-video Content for your personal, non-commercial use only, provided that you keep all copyright or other proprietary notices intact. State and/or federal laws may prohibit you from making a copy of audio or video content through GameSpy Arcade without the permission of all parties to the conversation or participants in the video. Other than as specified above, you may not modify, copy, reproduce, republish, upload, post, transmit, sell, publish, broadcast, create derivative works from, perform, or distribute in any way Content available through GameSpy Arcade, including code and software, without express prior written consent.
You agree that you may upload or otherwise transmit on or through GameSpy Arcade only Content (including games) that is not subject to any Rights, or Content in which any holder of Rights has given you express authorization for distribution. GameSpy, in its sole discretion, may remove Content that appears to infringe the intellectual property rights of others, and also may terminate the accounts of Members who have posted infringing material. Please refer to our Copyright Notice for more information. Unless specified otherwise in your upload or transmission, by submitting Content to any area of the GameSpy Arcade Web Site you automatically grant -- or warrant that the owner of such Content has expressly granted -- GameSpy, its successors and assigns a royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, display and sublicense such Content (in whole or part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed for the full term of any Rights that may exist in such Content. You also grant GameSpy the right to authorize the downloading, printing or broadcasting of such material or any portion thereof, by end users for their personal use. Without limiting the foregoing, if you participate in audio or video chat in GameSpy Arcade's chat rooms, you additionally give GameSpy your consent to record, reproduce or download your conversations or video images you have provided on the site, and to use, copy, modify, adapt, publish, translate, create derivative works from, distribute, perform, display and sublicense your audio or video content for promotional purposes, or if GameSpy believes in good faith that such action is reasonably necessary to enforce this GAA or its copyright policy, to comply with the law, to comply with legal process, to operate its systems properly, or to protect itself, its Members, or others.
4. END USER LICENSE
The Software License Agreement below states the rights you are granted in connection with all software provided by GameSpy. By using GameSpy Arcade you reaffirm on an ongoing basis that you agree to be bound by the terms and conditions of the then-current version of the Software License Agreement.
5. DISCLAIMER OF WARRANTY
To the maximum extent allowed by law, GameSpy, its licensors and subcontractors do not warrant any connection to, compatibility with, transmission over, nor results or use of, any network connection or facilities provided (or failed to be provided) through GameSpy Arcade. From time to time the porting of a particular game may not be feasible and GameSpy may remove any such game from its "Coming Soon" list without any liability to Member. Member is responsible for assessing its own computer and transmission network needs, and the results to be obtained therefrom.
YOU EXPRESSLY AGREE THAT USE OF GAMESPY ARCADE, ALL SOFTWARE DISTRIBUTED BY GAMESPY, AND THE INTERNET ARE AT YOUR SOLE RISK. GAMESPY ARCADE AND ALL SOFTWARE DISTRIBUTED BY GAMESPY AND ANY THIRD PARTY ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND EITHER EXPRESS OR IMPLIED.
YOU ACKNOWLEDGE THAT GAMESPY DOES NOT CONTROL IN ANY RESPECT ANY INFORMATION, PRODUCTS OR SERVICES OFFERED BY THIRD PARTIES THROUGH GAMESPY ARCADE. GAMESPY IS NOT RESPONSIBLE FOR CONTENT PROVIDED BY THIRD PARTIES, AND ASSUMES NO RESPONSIBILITY FOR AND MAKES NO WARRANTY OR REPRESENTATION AS TO THE ACCURACY, CURRENCY, COMPLETENESS, RELIABILITY OR USEFULNESS OF CONTENT DISTRIBUTED THROUGH GAMESPY ARCADE. GAMESPY DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY PRODUCT OR SERVICE OFFERED THROUGH GAMESPY ARCADE BY ANY THIRD PARTY, WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES, AND WILL NOT BEAR ANY RESPONSIBILITY FOR THEIR PRODUCTS, SERVICES, POLICIES OR ACTIONS. MEMBERS USING ANY SUCH PRODUCTS AND SERVICES MAY BE SUBJECT TO ADDITIONAL TERMS AND CONDITIONS RELATING TO THE USE OF SUCH THIRD PARTY CONTENT, SOFTWARE OR SERVICES AND FAILURE TO ABIDE BY THOSE ADDITIONAL TERMS AND CONDITIONS MAY RESULT IN TERMINATION OF MEMBERSHIP.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, GAMESPY EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, WITH RESPECT TO THE GAMESPY SERVICE, ALL SOFTWARE DISTRIBUTED BY GAMESPY, OR THE INTERNET.
GAMESPY MAKES NO WARRANTY THAT GAMESPY ARCADE WILL MEET YOUR REQUIREMENTS, NOR THAT THE GAMESPY ARCADE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. GAMESPY DOES NOT MAKE ANY WARRANTY OR REPRESENTATION AS TO THE USE OR THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF GAMESPY ARCADE. GAMESPY ASSUMES NO RESPONSIBILITY FOR ANY DAMAGES SUFFERED BY MEMBER, INCLUDING, BUT NOT LIMITED TO, FAILURE OF A GAME TO BE PORTED TO GAMESPY DESPITE ADVERTISING TO THE CONTRARY, LOSS OF DATA FROM DELAYS, NONDELIVERIES, ERRORS, SYSTEM DOWN TIME, MISDELIVERIES, NETWORK OR SYSTEM OUTAGES, FILE CORRUPTION, OR SERVICE INTERRUPTIONS CAUSED BY THE NEGLIGENCE OF GAMESPY, ITS LICENSORS AND SUBCONTRACTORS, OR MEMBER'S OWN ERRORS AND/OR OMISSIONS.
GAMESPY MAKES NO WARRANTY WITH RESPECT TO ANY RELATED SOFTWARE OR HARDWARE USED OR PROVIDED BY GAMESPY IN CONNECTION WITH THE SERVICE. ANY PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET OR WARRANTY INFRINGEMENTS, WHETHER ACTUAL OR ALLEGED, ARE THE DIRECT RESPONSIBILITY OF THE MANUFACTURER OF SAID HARDWARE OR SOFTWARE PRODUCT. GAMESPY ASSUMES NO RESPONSIBILITY FOR ANY ACTIONS OR LIABILITIES ARISING FROM THE POSSESSION OR USE OF THESE SOFTWARE OR HARDWARE PRODUCTS. GAMESPY MAKES NO WARRANTY THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED OR THAT THE WEB SITE OR THE SERVER THAT MAKES IT AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM GAMESPY OR THROUGH GAMESPY ARCADE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
6. LIMITATION OF LIABILITY
YOU ACKNOWLEDGE THAT GAMESPY SHALL NOT ASSUME OR HAVE ANY LIABILITY FOR ANY ACTION BY GAMESPY OR ITS ICPs OR OTHER LICENSORS WITH RESPECT TO CONDUCT, COMMUNICATION OR CONTENT ON GAMESPY ARCADE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL GAMESPY BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES OR LOSS OF BUSINESS, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS, EVEN IF GAMESPY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) IN CONNECTION WITH GAMESPY ARCADE OR WITH ANY OTHER PRODUCT OR SERVICE PROVIDED BY GAMESPY, OR RESULTING FROM THE USE OR THE INABILITY TO USE GAMESPY ARCADE, OR FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED OR TRANSACTION ENTERED INTO THROUGH OR FROM GAMESPY ARCADE, OR FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS, DATA, OR ACCOUNT.
YOU SPECIFICALLY AGREE THAT GAMESPY IS NOT RESPONSIBLE OR LIABLE TO YOU OR ANYONE ELSE FOR ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE OR ILLEGAL CONDUCT OR SPEECH OF ANY OTHER PARTY OR ANY INFRINGEMENT OR VIOLATION OF ANOTHER'S RIGHTS, INCLUDING INTELLECTUAL PROPERTY RIGHTS, RIGHTS OF PUBLICITY, OR RIGHTS OF PRIVACY.
GAMESPY'S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO USE OF GAMESPY ARCADE AND ALL SOFTWARE DISTRIBUTED BY GAMESPY SHALL BE THE REPLACEMENT OF ANY SOFTWARE DEVELOPED BY OR FOR GAMESPY WHICH IS FOUND TO BE DEFECTIVE, USING MEDIA CHOSEN BY GAMESPY. GAMESPY'S LIABILITY TO YOU FOR BREACH OF THIS AGREEMENT IS LIMITED SOLELY TO $15.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN DAMAGES; IN SUCH STATES GAMESPY'S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
7. INDEMNIFICATION
You agree to defend, indemnify and hold harmless GameSpy, its parents, subsidiaries, affiliated companies, officers, employees, licensees, distributors and ICPs from all losses, liabilities, claims, demands, damages or expenses, including reasonable attorney's fees, (i) arising from breach of this GAA by use of, or in connection with, the transmission by or through your Member Account of any Content on the Web Site or GameSpy Arcade, or (ii) asserted by any third party due to or arising from or in connection with your use of or conduct on GameSpy Arcade. GameSpy reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you hereunder, which shall not excuse your indemnity obligations.
8. TERMINATION
Either you or GameSpy may terminate your account with GameSpy Arcade at any time with or without cause. Your only right with respect to any dissatisfaction with any (i) GAA term, or policy or practice of GameSpy in operating GameSpy Arcade, or (ii) Content available through GameSpy Arcade or change therein. Your notice of termination will be effective upon receipt by GameSpy, or upon receipt of confirmation if confirmation is requested.
9. IMPERMISSIBLE CONDUCT
You may not engage in conduct or communication while using GameSpy Arcade which is unlawful or which restricts or inhibits any other user from using or enjoying GameSpy Arcade. You agree to use GameSpy Arcade only for lawful purposes. You agree to abide by all applicable local, state, national and international laws and regulations. Any conduct by you that in GameSpy's sole discretion restricts or inhibits any other Member, person or entity from using or enjoying GameSpy Arcade or another service will not be permitted and shall entitle GameSpy to immediately terminate your membership without notice.
GameSpy reserves the right to terminate your membership if it determines in its sole discretion that you have engaged in any impermissible conduct. GameSpy reserves the right to exercise whatever means it deems necessary to prevent unauthorized access to our service, including, but not limited to, technological barriers, IP mapping, and direct contact with your Internet Service Provider (ISP).
Set forth below by way of example, and not as a limitation, are some common examples of impermissible conduct, which may result in termination of your membership. This list is not exhaustive. GameSpy reserves the right, but does not assume the responsibility, to restrict conduct which GameSpy deems in its discretion to be harmful to individual Members, damaging to the communities which use GameSpy Arcade, or in violation of GameSpy's or any third party's rights. You acknowledge that audio, video and text communications over the Web Site and GameSpy Arcade often occur in real-time, or may be posted on one of the Web Site or GameSpy Arcade's message boards or libraries, and GameSpy cannot, and does not intend to, review, screen or edit communications.
You may not post material or use the Web Site and/or GameSpy Arcade to:
(1) harass, threaten, embarrass or cause distress, unwanted attention or discomfort upon another user of GameSpy Arcade or other person or entity, (2) post, broadcast or transmit sexually explicit images or other content which is deemed by GameSpy to be offensive or harmful to minors, (3) post, broadcast or transmit any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, hateful, or otherwise objectionable Content, including but not limited to material based on a person's race, national origin, ethnicity, religion, gender, sexual orientation, disablement or other such affiliation, even if masked by symbols or other characters, (4) cause the screen to "scroll" faster than other users are able to type to it, including but not limited to entering a set of random characters, repeatedly entering a carriage return or taking any action with a similar disruptive effect, (5) impersonate any person or the voice of any person, including but not limited to, an GameSpy official or employee, an ICP or ICP official or employee, or a moderator, forum leader, guide or host, or communicate under a false name or identity or a name that you are not entitled or authorized to use, in any form of online communication, including, but not limited to, Member names, Member profiles, audio, video, images, text or graphic chat and message postings, (6) disrupt the normal flow of dialogue, transmissions, or interactions in a chat room or otherwise act in a manner that negatively affects other users, individuals or entities, including but not limited to repeatedly interrupting conversations between Members, acting in such a way as to antagonize, harass or create hostility in a chat room or lobby, or making commercial postings, solicitations or advertisements, (7) post or transmit chain letters, pyramid schemes, junk mail, spam or any duplicative or unsolicited messages (commercial or otherwise), (8) post or transmit any unsolicited advertising, promotional materials, or other forms of solicitation to other Members, individuals or entities, except in those areas that are designated for such a purpose, (9) violate any operating rule, regulation, procedure, policy or guideline of any other interactive service, or interfere with or disrupt networks connected to GameSpy Arcade, (10) intentionally or unintentionally violate any applicable local, state, national or international law or regulation, (11) modify any files which GameSpy does not specifically authorize you to modify, (12) modify or deface any GameSpy Arcade web pages, (13) knowingly distribute a virus, worm, Trojan horse, time bomb, cancelbot, or other destructive program, (14) knowingly distribute software or content in violation of any license agreement, (15) violate any U.S. law regarding the transmission of technical data or software exported from the United States, (16) harvest or otherwise collect information about others, including e-mail addresses, without their consent, (17) transmit, post, broadcast, publicly display, perform, copy, distribute, download, alter, make a derivative work from, or use any material that may infringe the intellectual property rights or other rights of third parties, including trademark, copyright, trade secret, patent, right of publicity, or right of privacy, without the express permission of the Rights holder, (18) attempt to gain unauthorized access to GameSpy Arcade, other member accounts, computer systems or networks connected to GameSpy Arcade, through password mining or any other means, or (19) use the HTML capabilities of your profile to negatively affect another member's experience.
If you witness any conduct that violates GameSpy's terms of conduct, GameSpy encourages you to contact GameSpy Customer Service through any means described on the Web Site. If you believe that your copyright in any material has been infringed on the GameSpy Arcade site, please notify our Agent for Notice of copyright complaints. GameSpy will handle information you provide in its sole discretion, and does not guarantee any action based on such information.
Please direct any notices of claimed copyright infringement to our Agent for Notice of copyright complaints at the address or telephone number below:
Designated Agent
Darren L. Tabor
Director of Operations
GameSpy Industries
18002 Sky Park Circle
Irvine, California 92614-6429
Phone: (949) 798-4200 Fax: (949) 798-4299
darren@gamespy.com
10. USE OF PERSONAL PUBLISHING TOOLS
GameSpy may provide Members with personal publishing tools to enable Members to create personal home pages or other Content. Use of such publishing tools will be subject to this GAA. GameSpy reserves the right to require the removal of links or other content on or through Members' home pages or personal Internet sites if providing such content or links causes undue load or other problems on GameSpy Arcade, or constitutes impermissible member conduct.
11. ENTIRE AGREEMENT; MODIFICATION OF GAA
This Agreement and the Software License Agreement comprise the entire agreement between GameSpy and you, and supersede any prior agreements between you and GameSpy with respect to the subject matter hereof or thereof. However, you are subject to any additional terms and conditions of which you are notified and/or which may apply when using third-party content, software or services. GameSpy reserves the right, at its discretion, to revise this GAA at any time, and such revision shall be effective immediately upon the posting of the revised GAA at the Web Site on www.gamespyarcade.com. You agree to review the GAA periodically to become aware of such revisions. If any such revision is unacceptable to you, you may terminate your membership as provided in Section 8. Your continued use of GameSpy Arcade following posting of the revised GAA on the Web Site shall be conclusively deemed to be acceptance of all such revisions.
12. GENERAL PROVISIONS
You may not use, copy, modify, sublicense, rent, sell, assign or transfer the license granted pursuant to this GAA, or GameSpy Arcade, except as expressly provided in this GAA. Any assignment in violation of this GAA is void.
If any provision of this GAA is held to be unenforceable or contrary to law for any reason, such provision shall be reformed only to the extent necessary to make it enforceable, and such decision shall not affect the enforceability (i) of such provision under other circumstances, or (ii) of the remaining provisions hereof under all circumstances.
The paragraph headings contained in this GAA are for the purposes of convenience only and are not intended to define or limit the contents of said paragraphs, and have no legal or contractual significance.
GameSpy and you are independent contractors under this GAA. GameSpy's failure to enforce at any time any of the provisions of this GAA shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by GameSpy of any provision, condition or requirement of this GAA shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement. Notwithstanding anything else in this GAA, no default, delay or failure to perform on the part of GameSpy shall be considered a breach of this GAA if such default, delay or failure to perform is shown to be due to causes beyond the reasonable control of GameSpy.
This GAA is governed by and construed in accordance with the laws of the state of California and the United States of America, excluding their conflict of law provisions. The application to this Agreement of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly excluded. You and GameSpy agree to submit to the exclusive jurisdiction of the courts located in the county of Orange or Santa Clara in the state of California or the Federal Courts of the Central District of California, Southern Division or Northern District of California. If any litigation or proceeding is brought by either party against the other in connection with this Agreement, the prevailing party in such litigation or other proceeding shall be entitled to recover from the other party all costs, attorneys' fees and other expenses incurred by such prevailing party. You and GameSpy agree that any cause of action arising out of or related to your use of the Web Site or GameSpy Arcade must commence within one (1) year after the cause of action arose, notwithstanding any statute to the contrary; otherwise such cause of action is permanently barred.
You acknowledge that you have read this GAA, understand it, and agree to be bound by its terms and conditions. This GAA and the Software License Agreement below represent the complete and exclusive statement of the agreements concerning GameSpy Arcade between you and GameSpy and supersede all prior agreements between the parties regarding the Web Site and GameSpy Arcade.
GameSpy ⌐ 1998-2001
GameSpy Industries, Inc. All rights reserved.
GameSpyÖ, and the GameSpy stylized logo are registered trademarks of GameSpy Industries. GameSpy Ö is also a servicemark and tradestyle of GameSpy Industries. All other marks that appear throughout the Services belong to GameSpy Industries or their respective owners, and are protected by U.S. and international copyright and trademark laws. Any use of any of the marks appearing throughout the Services without the express written consent of GameSpy Industries or the owner of the mark, as appropriate, is strictly prohibited.
Software License Agreement ("SLA")
1. IMPORTANT.
Read carefully before installing or using this software. You must ACCEPT the terms of the SLA, and the GameSpy Arcade Agreement ("GAA") above, in order to download the software and/or connect to the GameSpy Arcade game service ("GameSpy Arcade").
2. ACCEPTANCE.
BY PLACING OR COPYING THE PROGRAM ONTO YOUR COMPUTER HARD DRIVE, COMPUTER RAM OR OTHER STORAGE OR BY INSTALLING AND/OR USING THE ACCOMPANYING GAMESPY ARCADE SOFTWARE OWNED BY, LICENSED TO, OR DISTRIBUTED BY GAMESPY ("GAMESPY"), AND ANY UPDATES THEREOF (COLLECTIVELY, SUCH SOFTWARE AND UPDATES SHALL BE REFERRED TO AS THE "SOFTWARE"), YOU INDICATE YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS STATED BELOW. You must be at least 13 to accept this SLA. Minors may access GameSpy Arcade only by having their parent or legal guardian register for them and open an account that the parent or legal guardian authorizes the minor to use. GameSpy may require that the registrant provide sufficient information to indicate that the registrant is an adult. If you do not agree to be bound by the terms of this SLA, you may not use the Software, and, unless you received the Software bundled with third party products on a single non-erasable CD or other medium, you must promptly return the unused Software and any accompanying materials, together with your proof of purchase, to the person or entity from whom you obtained the Software if you obtained the Software on media, or delete your copy of the Software if you received it electronically.
3. LICENSE.
GameSpy or the third party owners of the software which GameSpy is distributing grants you (an entity or person), subject to the terms and conditions set forth in this SLA or for the third party software which GameSpy is distributing the terms and conditions of their EULA and SLA which can be found at the links at the end of this section or at times on a pop-up screen upon the download of the Software, a non-exclusive, non-transferable license to install the Software and use the Software, including the program code and other files which make the Software compatible for play on GameSpy Arcade, and the written materials accompanying the Software relating to the use of the Software on GameSpy Arcade (collectively, the Software and accompanying written materials shall be referred to as the "GameSpy Technology"). Subject to the terms and conditions of this SLA, the Software may be installed and used on one or more computers, but only for the limited purpose of using GameSpy Arcade or, with respect to the written materials only, for the limited purpose of deciding whether to use GameSpy Arcade. Gator Software: www.gator.com; webHancer Software: www.webhancer.com; Yes Mail Software: www.yesmail.com.
4. COPYRIGHT / OWNERSHIP.
GameSpy and/or GameSpy's licensors shall retain all right, title and interest, including all intellectual property rights, in and to the Software. You acknowledge that the GameSpy Technology is protected by United States copyright laws and international treaty provisions and agree not to remove any copyright or other proprietary or product identification notices contained thereon. You agree that you are receiving a copy of the Software, including the GameSpy Images, and the GameSpy Technology by license only and not by sale and that the "first sale" doctrine of 17 U.S.C. º109 does not apply to your receipt or use of the Software, the GameSpy Technology or any GameSpy Images. You acknowledge and agree that the GameSpy Technology may have been developed by and may include software licensed by third party licensors named in the copyright notice(s) included with the Software, who shall be authorized to hold you responsible for any copyright infringement or violation of this SLA.
5. RESTRICTIONS.
You may not sublicense, rent or lease the GameSpy Technology. You may not translate, reverse engineer, reverse compile, reduce to human perceivable form, or disassemble the GameSpy Technology. You may not copy or modify the GameSpy Technology or the written documentation except as necessary to execute the Software. The Software may be installed on a noncommercial basis from the copy of the Software that you have been licensed, on additional computers by and for the use of end users who have read and who agree to be bound by the terms of this SLA, but only if (i) the copy of the Software that you have been licensed is not bundled with separately licensed products on a single medium, and (ii) such installation does not violate the terms of other applicable end user agreements or the intellectual property rights of third parties. You may not transmit the Software over a network.
6. SHAREWARE DISTRIBUTION.
Provided that you comply with the all the terms and conditions of this SLA, the above GAA and if you a Vender approved by the Association of Shareware Professionals you are hereby licensed to make unlimited copies and/or distribute via electronic means the Shareware Version of the Software. The Shareware Version of the Software is defined as a version, which is produced by GameSpy for the purpose of distribution by approved Venders of a non-full function mode version of the Software. However, you are prohibited from altering either the Shareware version of the Software or accompanying documentation. You are specifically prohibited from charging, or requesting donations, for any copies of the Software distributed. You are specifically prohibited from distributing the Software and/or documentation with other products, except that disk vendors approved by the Association of Shareware Professionals are permitted to redistribute the Software, subject to the conditions in this SLA and the above GAA, without prior written permission. Any and all other distribution of the Software, GameSpy Technology and Shareware Version that is not expressly granted is prohibited.
7. TERMINATION.
This SLA is effective from the date you receive the Software and remains in force until terminated. You may terminate the license pursuant to this SLA at any time by destroying all tangible embodiments or copies of the GameSpy Technology in your possession, including all backup copies and all related materials. Your license rights hereunder will automatically terminate without notice if you fail to comply with any provision herein. Upon termination, you must destroy all tangible embodiments or copies of the GameSpy Technology in your possession.
8. EXPORT LAW.
This SLA is expressly subject to any laws, regulations, orders or other restrictions on the export from the United States of America of the GameSpy Technology or of information about the GameSpy Technology that may be imposed from time to time by the government of the United States of America. Notwithstanding anything contained in this SLA to the contrary, you may not export or reexport, directly or indirectly, any GameSpy Technology or information pertaining thereto to any country for which an export license or other governmental approval is required at the time of export or reexport without first obtaining such license or approval.
9. FURTHER ACKNOWLEDGMENTS.
You understand and acknowledge that:
(i) in order to utilize many features of the GameSpy Technology, you will need to enter into an additional agreement in connection with GameSpy Arcade, and/or acquire additional game software, contract for Internet connections with your ISP and arrange for telephone services; and
(ii) GameSpy may, in its discretion or as required by its agreements with game suppliers, cease to support such games on GameSpy Arcade. Support that GameSpy may cease to provide may include server access, Web site support and the provision of enabling software.
10. DISCLAIMER OF WARRANTIES.
GAMESPY AND ITS LICENSORS DISCLAIM ALL WARRANTIES OR CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, WITH RESPECT TO THE GAMESPY TECHNOLOGY OR GAMESPY. IN PARTICULAR, GAMESPY DOES NOT WARRANT THAT USE OF THE GAMESPY TECHNOLOGY WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT YOU WILL HAVE UNINTERRUPTED, ERROR-FREE OR CONTINUED ACCESS TO GAMESPY.
11. LIMITATION OF LIABILITY.
IN NO EVENT IS GAMESPY OR ITS LICENSOR(S) LIABLE FOR ANY DAMAGES, INCLUDING ANY LOST PROFITS, LOST SAVINGS OR OTHER INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES OR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE GAMESPY TECHNOLOGY OR GAMESPY EVEN IF GAMESPY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. INDEMNIFICATION.
You agree to defend, indemnify and hold harmless GameSpy, its parents, subsidiaries, affiliated companies, officers, employees, licensees, distributors and ICPs from all losses, liabilities, claims, demands, damages or expenses, including reasonable attorney's fees and expenses associated with any claims, action or proceeding brought against GameSpy its parents, subsidiaries, affiliated companies, officers, employees, licensees, distributors and ICPs that may arise from your breach of this SLA and permit GameSpy to control, in a manner not adverse to you, the defense, settlement, adjustment or compromise of any such claim using counsel selected by GameSpy.
13. SPECIFIC PERFORMANCE.
Without limiting the rights of each party hereto to pursue all other legal and equitable rights available to such party for the other party's failure to perform its obligations under this SLA, you acknowledge and agree that the remedy at law for any failure to perform your obligations hereunder or for your breach of the terms of this SLA may be inadequate and you further agree that GameSpy shall be entitled to seek specific performance, injunctive relief or other equitable remedies in the event of any such failure or breach. The prevailing party in any action or proceeding to enforce or interpret this SLA is entitled to recover reasonable attorneys fees and disbursements.
14. U.S. GOVERNMENT RESTRICTED RIGHTS.
To the extent applicable, the United States Government shall only have those rights to use the Software, the Materials and GameSpy Images as expressly stated and expressly limited and restricted in this Agreement, as provided in 48. C.F.R. ºº 227.7202-1 through 227.7204. The Software and all accompanying written materials are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in Restricted Rights in Technical Data and Computer Clause at FAR 52.227-7013(c)(1)(ii) or FAR 52.227-19. Contractor/manufacturer is GameSpy, 18002 Sky Park Circle, Irvine, California, 92614.
15. GENERAL.
You may not use, copy, modify, sublicense, rent, sell, offer on a pay per play basis, assign or transfer the license granted pursuant to this SLA, or the GameSpy Technology, except as expressly provided in this SLA. Any assignment in violation of this SLA is void. If any provision of this SLA is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable, and such decision shall not affect the enforceability; (i) of such provision under other circumstances, or (ii) of the remaining provisions hereof under all circumstances. The paragraph headings contained in this SLA are for the purposes of convenience only and are not intended to define or limit the contents of said paragraphs. The SLA and the GAA are integrated agreements and the general provisions apply to both. GameSpy and you are independent contractors under this SLA. GameSpy's failure to enforce at any time any of the provisions of this SLA shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by GameSpy of any provision, condition or requirement of this SLA shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement. Notwithstanding anything else in this SLA, no default, delay or failure to perform on the part of GameSpy shall be considered a breach of this SLA if such default, delay or failure to perform is shown to be due to causes beyond the reasonable control of GameSpy.
