Last Updated: August 6th, 2009
PLEASE READ THIS LICENSE AGREEMENT CAREFULLY AS IT PROVIDES FOR YOUR OBLIGATIONS AND RESTRICTIONS WITH RESPECT TO YOUR USE OF HERO MAGES.
THIS END USER LICENSE AGREEMENT ("AGREEMENT") DESCRIBES THE TERMS AND CONDITIONS ON WHICH D20STUDIOS, LLC OFFERS YOU ACCESS AS AN END USER OF HERO MAGES. PLEASE READ THE FOLLOWING INFORMATION CAREFULLY. BY SELECTING THE "I AGREE" BOX AND CLICKING THE "SUBMIT" BUTTON, YOU ACCEPT AND ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND THAT YOU AGREE TO BE BOUND BY ITS TERMS IN WHICH EVENT YOU WILL BE GRANTED ACCESS TO PLAY HERO MAGES. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, PLEASE EXIT THIS PAGE PROMPTLY.
Please note that this Agreement limits the Company's liability and the Company does not provide warranties for Hero Mages or the Company's Service (as defined below). This Agreement also limits your remedies. These terms and conditions are set forth in Paragraphs 12 and 13 below and the Company urges you to read them carefully.
1. TERMS OF AGREEMENT
2. DESCRIPTION OF SERVICE
3. LICENSE TO USE
Subject to the terms of this Agreement, the Company grants to you a non-exclusive, revocable license to use the Service to play the Game for your non-commercial entertainment purpose only. All use of the Service is subject to this Agreement which you must accept before you can use your Account (as described below) to play the Game.
(a) Elibility. If you are less than 18 years of age and wish to use the Service, your parent(s) or guardian(s) must complete the registration process, open an Account in their name(s), and accept full responsibility for all obligations under this Agreement. Those who have completed these steps and who maintain their Account in good standing are sometimes referred to in this Agreement as "Member(s)", "User(s), or "Player(s)". By clicking the "I have read and agree to above Terms of Service" button you represent that you are an adult 18 years of age or older and fully understand the English language, including, without limitation, the terms and conditions set forth in this Agreement. Only one person may use an Account. The registered User of an Account may use the Account or may choose instead to permit a minor child of the registered User to use the Account. You are liable for all activities conducted through your Account, and parents or guardians are liable for all activities of their minor child conducted through the Account.
(b) Account ID. At the time your Account is opened, you must choose a log in or user ID to identify yourself to the Company staff (your "Account ID"). You may not select as your Account ID the name of another person, or a name which violates any third party's trademark right, copyright, or other proprietary right, or which may mislead other Members to believe you to be an employee of the Company, or which the Company deems in its discretion to be vulgar or otherwise offensive. The Company reserves the right to delete, or to change, any vulgar or otherwise offensive Account ID. You have sole liability for all activities conducted through your Account or under your Account ID.
(c) Account. You agree that you do not own the Account you use to access the Service, the characters the Company stores on the Company servers, the map designs saved in the Account, or any other data which the servers and accounts are comprised of. The Account, characters, maps and any other data of which the servers and accounts are comprised are properties of the Company.
(d) Passwords. At the time your Account is opened, you must select a password. You are responsible for maintaining the confidentiality of your password and you are responsible for any harm resulting from your disclosure or allowing the disclosure of your password or from use by any person of your password to gain access to your Account and Account ID. At no time should you respond to an online request for a password. The Company will never ask for your password offline or online, except that you will be required to enter your password as part of the log-on process, or when you are requesting the Company to perform service that requires your password authentication, in which case you will only send your password to a designated Company email address or Company web site.
(e) Registration Obligations. You agree to provide true, accurate, current and complete information about yourself as prompted by the Service's registration form ("Registration Data"), and maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or the Company has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, the Company has the right to suspend or terminate your Account and refuse any and all current or future use of the Service.
(f) Former Members. Members whose Accounts have been terminated by the Company may not access the Service in any manner or for any reason, including through any other Account, without the express written permission of the Company.
(g) Multiple Accounts. Accounts are limited to (1) account per person. Simultaneous logins with multiple accounts and/or a member account and guest account are prohibited and are grounds for account termination.
(h) Related Accounts. If the Company terminates an Account, the Company may terminate any other Accounts that share the same member name, email address, or Internet Protocol address, with the terminated Account.
(i) Right to Monitor and Remove Unacceptable Contents. The Company has the right, but not the duty, to review and monitor all content submitted for or included on the Service, and in its sole discretion to remove any content that the Company finds objectionable for any reason, without any prior notice to the Member.
5. SERVICE FEE
The Game is free to play. However, the Company is not responsible for any other fees or costs you paid or may have to pay in order to play the Game, including, but not limited to: (i) fees to access the internet; (ii) fees charged by a location such as a cyber café, arcade, or other location; or (iii) costs of computer hardware or software.
6. CHARACTER PACKS AND MAP EDITOR SAVE SLOTS
(a) Purchase of Character Packs and Map Editor Save Slots. The Company will offer to sell to you in the Game and on the Web Site virtual characters (the "Character Packs") and the ability to create virtual maps ("Map Editor Save Slots") that are used to enhance the game play of Hero Mages. If you select to purchase Character Packs or Map Editor Save Slots, you agree that you have understood how the Character Packs and Map Editor Save Slots are used in the Game and are fully responsible for all the consequences related to the use of such Character Packs and Map Editor Save Slots. You agree that any out-of-game transfer of Character Packs and Map Editor Save Slots is not permitted. THE CHARACTER PACKS AND MAP EDITOR SAVE SLOTS YOU HAVE PURCHASED ARE NOT REFUNDABLE UNDER ANY CIRCUMSTANCES OR REASONS WHATSOEVER. You also agree that the Character Packs and Map Editor Save Slots you have purchased are properties of the Company, and what you obtain through the purchase is merely the non-exclusive, non-transferable right to use the Characters from the Character Packs and the map creation ability of the Map Editor, subject to the terms and conditions of this Agreement. The Company also reserves the right to not sell Character Packs and Map Editor Save Slots to certain players.
(b) Redeemable Codes. In addition to the Company's offer to sell to you Character Packs and Map Editor Save Slots, the Company may from time to time, in connection with its promotional and marketing activities, offer at no charge, limited redeemable codes with which you may redeem Character Packs and Map Editor Save Slots. You understand and agree that all of the rights and obligations under this Section 6 shall apply if you have acquired Character Packs or Map Editor Save Slots with a Redeemable Code.
7. CONTENT AND MEMBER CONDUCT
(a) Content. You acknowledge that: (i) by using the Service you will have access to, among other things, titles, computer code, graphics, themes, objects, characters, character names, stories, dialog, catch phrases, locations, concepts, artwork, character inventories, structural or landscape designs, animations, sounds, musical compositions and recordings, audio-visual effects, storylines, character likenesses, methods of operations and moral rights (collectively, the "Content"); and (ii) the Content may be provided under license by independent content providers (all such independent content providers shall hereinafter be referred to as "Content Providers"). The Company does not pre-screen Content as a matter of policy. The Company has the right, but not the obligation, to remove Content at any time which it deems to be harmful, offensive or otherwise in violation of this Agreement.
(b) Rights in Content. You acknowledge that the Company and Content Providers have ownership and intellectual property rights in their respective Content under the copyright and patent laws of the United States and other applicable laws, international treaties and conventions and that you accept full responsibility and liability for your use of any Content in violation of any such rights. You agree that you will not use any Content other than in connection with playing Hero Mages.
(c) Member Content. Members can upload Content to our servers in various forms, such as in selections you make for Hero Mages and in bulletin boards, forums, chat rooms and similar user-to-user areas. Unless specified otherwise in your transmission, by submitting your Content to any area on the Service, you automatically grant (or you warrant that the owner of such Content has expressly granted) to the Company the royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such Content worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed.
(d) Member Conduct. You agree not to use the Service to: (i) upload, post, e-mail or otherwise transmit Content that infringes any third party rights; (ii) impersonate any person or entity, including, but not limited to, the Company's employee, or falsely state or otherwise misrepresent your affiliation with a person or entity; (iii) upload, post, e-mail or otherwise transmit Content that violates any law or regulation; (iv) upload, post, e-mail or otherwise transmit Content as determined by the Company at its sole discretion that is harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; or contains any viruses, Trojan horses, worms, time bombs, cancelbot or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (v) upload, post, email or otherwise transmit any Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements); (vi) upload, post, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation; (vii) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; or (viii) "stalk" or otherwise harass another Member. If you engage in any of the foregoing wrongdoing, you may suffer severe consequences including, but not limited to, the following: (i) the Company may suspend your Account for an indefinite period time; (ii) the Company may terminate your Account; and (iii) the Company reserves the right to seek further legal remedies against you.
(e) Cheating Program. To ensure fair play, the Company does not allow the use of any cheating to play Hero Mages, including the use of unauthorized third party programs such as "Addon," "Hack," "Trainer," or "Cheat," that in the Company's sole determination: (i) enables or facilitates cheating of any type; (ii) allows Users to modify or hack the Game interface, environment, and/or experience in any way not expressly authorized by the Company; or (iii) intercepts "mines" or otherwise collects information from or through the Game. The Company will monitor your use of these unauthorized third party programs. If you use any of these programs, you may suffer severe consequences including, but not limited to, the following: (i) the Company may suspend your Account for an indefinite period time; (ii) the Company may terminate your Account; and (iii) the Company reserves the right to seek further legal remedies against you.
(f) Exploitation of Program Bug. Members are prohibited from exploiting any programming bugs in the Game, on the Web Site, and/or within the Company's system. Any violations may result in the termination of Account.
8. OFFICIAL SERVICE
The Company has designed Hero Mages for play only as offered by the Company at the Web Site. You agree to play Hero Mages only as offered by the Company at the Web Site and not through any other means. You further agree not to create or provide any other means through which Hero Mages may be played by others, as through server emulators. You acknowledge that you do not have the right to create, publish, distribute, reverse engineer, create derivative works from or use any software programs, utilities, applications, emulators or tools derived from or created for Hero Mages. You may not take any action which imposes an unreasonable or disproportionately large load on our infrastructure. You may not sell or auction any of the Content or any of the rights relating to such Content. Failure to comply with the restrictions and limitations contained in this Paragraph shall result in the immediate, automatic termination of the license granted hereunder and may subject you to civil and/or criminal liability.
9. PARENTAL GUIDANCE
While the Company may choose to monitor and take action upon inappropriate Game play, chat or links to the Service, it is possible that at any time there may be language or other material accessible on or through the Service that may be inappropriate for children or offensive to some users of any age. The Company cannot ensure that other players will not provide content or access to content that parents or guardians may find inappropriate or that any User may find objectionable. The Company does not as a matter of policy pre-screen the Content of the materials or communications transmitted by each player.
10. INTERRUPTION OF SERVICE
(a) The Company reserves the right to interrupt the Service from time to time on a regularly scheduled basis or otherwise with or without prior notice in order to perform maintenance.
(b) You acknowledge that the Service may be interrupted for reasons beyond the control of the Company, and the Company cannot guarantee that you will be able to access the Service or your Account whenever you may wish to do so. The Company shall not be liable for any interruption of the Service, delay or failure to perform resulting from any causes beyond its reasonable control.
(c) The Company shall not be obligated to refund any and all portion of any Character Pack and/or Map Editor Save Slots purchases or Account fees (if any) by reason of any interruption of the Service and by reason of any of the circumstances described in paragraph (a) or (b) of this provision.
(d) This game is an "online" game that must be played over the Internet through the Service as provided by the Company. You understand and agree that the Service is provided by the Company at its discretion and may be terminated or otherwise discontinued at the sole discretion of the Company pursuant to this Agreement.
11. EXPORT CONTROLS
The Game may not be re-exported, downloaded or otherwise exported into (or to a national or resident of) any country to which the U.S. has embargoed goods, or to anyone on the U.S. Treasury Department’s list of Specifically Designated Nationals or the U.S. Commerce Department's Table of Denial Orders. You represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
12. DISCLAIMER OF WARRANTIES
THE COMPANY PROVIDES THE SERVICE, THE ACCOUNT, THE HERO MAGES GAME AND ALL OTHER SERVICES ON AN "AS IS" BASIS, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, WRITTEN OR ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, THE COMPANY DOES NOT WARRANT THAT THE SERVICE, YOUR ACCOUNT, OR HERO MAGES WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SERVICE, YOUR ACCOUNT, OR HERO MAGES WILL BE UNINTERRUPTED, ERROR-FREE, CONTINUOUS, SECURE, VIRUS-FREE, OR THAT THE DEFECTS IN THE SERVICE, YOUR ACCOUNT, OR HERO MAGES WILL BE CORRECTED. THE COMPANY DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICE OR RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, QUALITY, RELIABILITY, APPROPRIATENESS FOR A PARTICULARLY TASK OR APPLICATION, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY THE COMPANY OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. YOU ARE ENTIRELY RESPONSIBLE FOR AND ASSUME ALL RISK FOR USE OF THE SERVICE, YOUR ACCOUNT, AND HERO MAGES. YOU SHOULD NOT USE THE SERVICE IN HIGH RISK ACTIVITIES WHERE SUBSTANTIAL DAMAGE COULD RESULT IF AN ERROR OCCURRED. THE COMPANY DOES NOT WARRANT OR REPRESENT THAT ITS SECURITY PROCEDURES WILL PREVENT THE LOSS OR IMPROPER ACCESS TO YOUR DATA. THE COMPANY IS NOT RESPONSIBLE FOR TRANSMISSION ERRORS OR CORRUPTION OR SECURITY OF INFORMATION CARRIED OVER TELECOMMUNICATION LINES. SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
13. LIMITATION OF LIABILITY
(a) THE MAXIMUM AMOUNT AND THE TOTAL LIABILITY OF THE COMPANY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) SHALL NOT EXCEED THE TOTAL FEES PAID BY YOU TO THE COMPANY FOR THE TOTAL PURCHASE OF CHARACTER PACKS AND MAP EDITOR SAVE SLOTS IN AND WITHIN THE SAME MONTH OF THE EVENT CAUSING LIABILITY. IN NO EVENT SHALL THE COMPANY, OR ANY OF ITS MEMBERS, PARTNERS, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SUPPLIERS, BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION, ANY DAMAGES FOR LOST PROFITS, ARISING (WHETHER OR IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) OUT OF OR IN CONNECTION WITH THE SERVICE, YOUR ACCOUNT OR THIS AGREEMENT, WHETHER OR NOT THE COMPANY MAY HAVE BEEN ADVISED THAT ANY SUCH DAMAGES MIGHT OR COULD OCCUR. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY EVEN IF THE REMEDY TO YOU DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES, OR FAILS OF ITS ESSENTIAL PURPOSE. SOME STATES DO NOT ALLOW THE FOREGOING LIMITATIONS OF LIABILITY, SO THEY MAY NOT APPLY TO YOU.
(b) If you purchased Character Packs and/or Map Editor Save Slots (including your purchase pursuant to a Redeemable Code), you agree to release any and all liabilities of the Company related to your purchase and use of the Character Packs and/or Map Editor Save Slots, except that the Company is responsible for providing such Character Packs and Map Editor Save Slots to your Account in Hero Mages.
(c) You agree to release any and all liabilities of the Company related to any computer virus infection to your computer, whether it is through the Company's server or third party activities.
(d) You agree that the Company will not be held responsible or liable for anything that occurs or results from accessing or subscribing to Hero Mages.
14. UNCENSORED INFORMATION
YOU UNDERSTAND THAT CONTENT AND MATERIALS ON THE INTERNET MAY BE CREATED AND MAINTAINED BY THIRD PARTIES (SUCH AS USER MESSAGE BOARD) AND THAT PORTIONS OF SUCH MATERIALS MAY BE SEXUALLY EXPLICIT, OBSCENE, OFFENSIVE, OR ILLEGAL. IN NO EVENT SHALL THE COMPANY BE LIABLE TO ANY PERSON OR ENTITY, EITHER DIRECTLY OR INDIRECTLY, WITH RESPECT TO ANY MATERIALS FROM THIRD PARTIES ACCESSED THOUGH THE SERVICE. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FROM YOUR USE OF THE SERVICES AND INTERNET GENERALLY. THE COMPANY DISCLAIMS ANY AND ALL RESPONSIBILITY FOR CONTENT CONTAINED IN ANY THIRD PARTY MATERIALS PROVIDED THROUGH HYPERLINKS OR IN ANY OTHER FORMS.
BY ACCEPTING THIS DOCUMENT, YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS THE COMPANY, ITS MEMBERS, PARTNERS, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SUPPLIERS, ITS LICENSEES, DISTRIBUTORS, CONTENT PROVIDERS, AND OTHER MEMBERS OF THE SERVICE, FROM ALL DAMAGES, LIABILITIES, LOSSES, DAMAGES, JUDGMENTS, CLAIMS, CAUSES OF ACTION, CLAIMS, AND EXPENSES, INCLUDING ATTORNEYS' FEES AND COSTS, WHICH THE COMPANY MAY HEREAFTER INCUR, SUFFER, OR BE REQUIRED TO PAY, DEFEND, SETTLE (SUBJECT TO ANY LIMITATIONS SET FORTH IN THIS AGREEMENT), OR SATISFY AS A RESULT OR ARISING OUT OF YOUR USE OF THE SERVICE OR ANY BREACH OF THIS AGREEMENT BY YOU.
(a) The Company may terminate this Agreement (including your Account) immediately and without notice if you breach this Agreement or willfully infringe any third party intellectual property rights, or if the Company is unable to verify or authenticate any information you provide to us, or upon Game play, chat or any player activity whatsoever which is, in our sole discretion, inappropriate and/or in violation of the spirit of Hero Mages as described in this Agreement. If the Company terminates this Agreement under any circumstances, you will lose access to your Account without refund of any fees paid for the purchases of any Character Packs or Map Editor Save Slots.
(b) You agree that if the Service or your Account is terminated or cancelled for any reasons or length of time, you are not entitled to any reimbursement or refund of any fees paid for the purchases of any Character Packs or Map Editor Save Slots.
17. CHOICE OF LAW AND VENUE
This Agreement is governed by and shall be construed and enforced under the laws of the State of Illinois, without applying any conflicts of law principles that would require application of the law of any other jurisdiction. You agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated exclusively in the state or federal courts located in Chicago, Illinois.
18. EQUITABLE REMEDIES
You hereby agree that the Company will be irreparably damaged if the terms of this License Agreement were not specifically enforced, and therefore you agree that the Company shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this License Agreement, in addition to such other remedies as the Company may otherwise have available to it under applicable laws.
19. GENERAL PROVISIONS
Except as provided in this Agreement, any changes to this Agreement must be in writing and signed by the Company and you. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall remain in force. The UN Convention on Contracts for the International Sale of Goods is expressly disclaimed. The Company's failure to act with respect to a breach by you or others does not waive the Company’s right to act with respect to subsequent or similar breaches. You may not assign or transfer this Agreement or your rights hereunder (except as otherwise set forth in this Agreement), and any attempt to the contrary is void, without written permission of the Company. This Agreement sets forth the entire understanding and agreement between the Company and you with respect to the Company, the Service and Hero Mages, and this Agreement supersedes all prior agreements (oral or written, if any) between the parties. Notwithstanding anything else in this Agreement, no default, delay or failure to perform on the part of the Company shall be considered a breach of this Agreement if such default, delay or failure to perform is shown to be due to causes beyond the reasonable control of the Company. All notice given by you or required under this Agreement shall be e-mailed to email@example.com, Attention: Customer Support, and is effective on the date received.
YOU ACKNOWLEDGE THAT YOU HAVE READ AND ACCEPT THESE TERMS AND CONDITIONS BY PRESSING THE "I HAVE READ AND AGREE TO ABOVE TERMS OF SERVICE" BUTTON BELOW AND AGREED TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY CHOOSE NOT TO BECOME A USER OF THE SERVICE BY PROMPTLY EXITING FROM THIS PAGE AND YOU WILL NOT BE PERMITTED TO PLAY HERO MAGES.