User Terms and Conditions of Service
Updated [August 3, 2020]
Welcome to GameForm. We are very excited that you have decided to join and participate in our suite of skilled-based games, competitions, and tournaments, collectively (“Competitions”). Participation also includes using our other applications, tools and services, that may be provided from time to time, together with Competitions referred to herein as (“the “Services”).
BY REGISTERING FOR AN ACCOUNT WITH US (your “Account”), USING THE SERVICES IN ANY WAY, CLICKING “I ACCEPT” BELOW, DOWNLOADING ANY SOFTWARE APPLICATION FROM US (as further defined in Section 2.2 below, “Software”), OR REGISTERING FOR OR
PARTICIPATING IN ANY COMPETITIONS, YOU: (A) ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS AND CONDITIONS OF SERVICE AND ALL OBLIGATIONS AND RULES THAT MAY BE INCLUDED WITHIN EACH COMPETITION IN WHICH YOU PARTICIPATE (“Rules”) (these Terms and Conditions of Service, the terms of any policy incorporated herein, and the Rules are collectively referred to as the “Terms”) IN THEIR ENTIRETY; (B) AGREE TO BE BOUND BY THE TERMS; AND (C) ARE AUTHORIZED AND ABLE TO ACCEPT THESE TERMS. If you don’t wish to be bound by the Terms, do not click “I accept” and do not register with GameForm (“GameForm”, “we” or “us”) and do not use the Services. Declining to accept these Terms means you will be unable to participate in Competitions or use your GameForm account.
1. GENERAL TERMS
1.1. Arbitration. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, ANY CLAIM, DISPUTE OR CONTROVERSY OF WHATEVER NATURE (“CLAIM”) ARISING OUT OF OR RELATING TO THESE TERMS AND/OR OUR SOFTWARE OR SERVICES MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION IN ACCORDANCE WITH THE PROCESS DESCRIBED IN SECTION 14 BELOW. PLEASE READ SECTION 14 CAREFULLY. To the maximum extent permitted under applicable law, you are giving up the right to litigate (or participate in as a party or class member) all disputes in court before a judge or jury. 1.2. Changes to the Terms. We may amend, change, modify or revise the Terms at any time, and we may post a notice on our website at [www.gameform.io] (“Website”) of any material changes, and you can see when these Terms were last revised by referring to the “Updated” legend above. Your continued participation in Competitions and/or use of Software
or Services means you accept any new or modified Terms. You are responsible for reviewing the Terms for any changes, so please check back here from time to time.
1.3. Eligibility. These Terms may not be modified, except by a writing signed by both the user and an authorized GameForm Representative. For purposes of these Terms, “writing” does not mean an email nor an electronic/facsimile signature.
1.3.1. United States (U.S.). To be eligible to register an Account, to participate in any Competition or receive Services, and/or to download Software, you must: (a) be a natural person who is at least 18 years of age or older, and who is personally assigned to the email address submitted during your Account registration; (b) have the power to enter into a contract with GameForm; (c) be physically located within the U.S. when accessing your Account and participating in Competitions; (d) be physically located within a U.S. state in which participation in the Competition you select is unrestricted by that state’s laws; and (e) at all times abide by these Terms. If any one of these requirements is not met at any time, we may suspend or close your Account with or without notice.
1.3.2. Non-U.S. To be eligible to register an Account, to participate in any Competition or receive Services, and/or to download Software, you must: (a) be a natural person who is at least 18 years of age or older, and who is personally assigned to the email address submitted during your Account registration; (b) have the power to enter into a contract with GameForm; (c) be physically located in a jurisdiction in which participation in the Competition you select is permitted and unrestricted by that state or country’s laws; and (d) at all times abide by these Terms. If any one of these requirements is not met at any time, we may suspend or close your
Account with or without notice.
1.4. Registration. When you create an Account, you will be asked for a legitimate phone number and email address that you control. You will also be asked to create a password. After phone number registration, you will be given the opportunity to create a username. The password and username are needed to participate in the Services. As a registered user, you can update your account settings, including your email address, by logging into yourGameForm Account and clicking “Settings” and “Edit Profile”. Also, if you forget either your password or username, you can visit the Website or email us for help. Please keep your username and password secret because you are responsible for all activity taken through
your Account. Although we may offer a feature that allows you to “save” or “remember” your password, this feature makes it possible for third parties to access your Account, so please use that feature prudently because such use is at your own risk. We may, in our sole discretion, reject, change, suspend and/or terminate your username.
1.5. Your Account. You, as the holder of your Account, are solely responsible for complying with these Terms, and only you are entitled to all benefits accruing thereto. You may not allow any other person to (i) access your Account; (ii) access Services or Software through your Account; or (iii) accept or use prizes, winnings and other representative of value (including
without limitation digital trophies, virtual currency or virtual goods)(collectively “Winnings”). Neither your Account nor Winnings nor any Digital Assets (defined in Section 10.3) are transferable to any other person or account. You must immediately notify us of any unauthorized use of your password or identification or any other breach or threatened breach of our security or the security of your Account.
1.6. Personal Location Data: As a part of this service, we collect location information from your device. If you would like to opt out of having this information collected, you can disable location access to GameForm through the Settings menu through your mobile app.
1.7. Use of Information Collected: By upgrading an account and providing an email address and phone number, users authorize GameForm to provide them with important announcements, relevant promotions, notifications, and other related communications. Users will always have the opportunity to opt out of these communications at any time.
1.8 Employee Policy: GameForm employees may use the Services and/or Software for the purpose of testing the user experience, but may not withdraw money. GameForm directors, contractors, affiliates, or partners may use the Website, Services and/or Software without such limitation, but only if they do not have any access to non-public information relating to the Services and/or Software that would lead to any advantage in their play using the Services and/or Software.
2. SERVICES AND SOFTWARE
2.1. Our Services. We may, with or without notice to you: (1) modify, suspend or terminate your access to the Website, Services and/or Software for any reason without liability; and (2) interrupt the operation of the Website, Services and/or Software as necessary to perform maintenance, error correction, or other work. We may suspend and/or close the account of any user who violates, or whom we reasonably believe may be in violation of or will violate, these Terms, at any time without notice and without liability. Also, and without limiting our other rights or remedies, if we believe you have violated these Terms or if you have violated these Terms, we may determine that your Winnings, if any, will be forfeited, disgorged or
recouped by us.
2.2. Software. If you wish to participate in Competitions or receive Services, you may be required to first download certain proprietary GameForm software and/or mobile applications (together with the content included therein, any associated documentation, and any application program interfaces, license keys, and patches, updates, upgrades, improvements,
enhancements, fixes and revised versions of any of the foregoing, is collectively “Software”). If you do not download the Software, you will not be able to participate in Competitions or receive relevant Services. Your use of the Software is subject to these Terms. We license the Software to you under Section 10.2.
2.3. Remote Access and Updates. We may choose to offer technical support for Software from time to time in our discretion. Such technical support may require that we remotely access your personal computer or device on which the Software is installed (“Device”). Also, if and when we update the Software or deploy patches, updates, and modifications to the Software, we may do so through remote access of your Device without
2.4. Beta Releases. For any Service that is identified by us as a “beta” version (“Beta Service”), you acknowledge and agree that a Beta Service may contain more or fewer features than the final release of the Service. We reserve the right, in our sole discretion, not to release a final release of a Beta Service or to alter its features, specifications, capabilities, functions,
licensing terms, release dates, general availability or other characteristics. Beta Services may not be suitable for production use and may contain errors affecting proper operation and functionality.
2.5. Third Party Sites. You may be able to access third-party websites or services via the Software, Services or Website. We are not responsible for third-party websites, services, or content available through those third-party services. You are solely responsible for your dealings with third-parties (including advertisers and game developers). Your use of third-party software, websites or services may be subject to that third-party’s terms and conditions.
3. COMPLIANCE WITH LAWS
3.1. Prohibited US States/Countries. You acknowledge that various rules, regulations and laws addressing sweepstakes, contests, and tournaments with entry fees and/or prizes govern your participation in Competitions (“Gaming Laws”), and that Gaming Laws are set up by each individual US state, country, territory, or jurisdiction. Therefore, the Software DOES NOT permit Cash Competitions (as defined in section 8.3) to be offered to users participating in Competitions in any state in which such Competition violates its Gaming Laws (“Prohibited Jurisdiction”), and if you are located in any Prohibited Jurisdiction then you may not participate in Cash Competitions. In the United States, Prohibited Jurisdictions, as of the “Updated” date above, include: Arizona, Arkansas, Connecticut, Delaware, Louisiana, Montana, South Carolina, South Dakota, and Tennessee. For card games, Prohibited Jurisdictions include Maine and Indiana. It is your responsibility to determine whether the state, country, territory or jurisdiction in which you are located is a Prohibited Jurisdiction. Together with our developer partners, we reserve the right (but have no obligation) to monitor the location from which you access Services, and on behalf of our developer partners, we may block access from any Prohibited Jurisdiction. Each time you log in to participate in a Cash Competition, you must accurately confirm the location from which you are playing.
3.2. Additional Laws. In addition to Gaming Laws, you are also subject to all municipal, state and federal laws, rules and regulations of the city, state and country in which you reside and from which you access and use Services, including without limitation U.S. export laws (together with Gaming Laws, the “Applicable Laws”). You are solely responsible for your
compliance with all Applicable Laws. Access to Competitions may not be legal for some or all residents of, or persons present in, certain jurisdictions. SERVICES AND COMPETITIONS ARE VOID WHERE PROHIBITED OR RESTRICTED BY APPLICABLE LAWS.Your
participation in Competitions is at your own risk, and you agree not to hold us responsible or liable if Applicable Laws restrict or prohibit your access or participation.
3.3. Legal Disclaimers. WE MAKE NO REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, AS TO THE LAWFULNESS OF YOUR PARTICIPATING IN ANY COMPETITION OR USE OF SERVICES, NOR SHALL ANY PERSON AFFILIATED, OR CLAIMING AFFILIATION, WITH US HAVE AUTHORITY TO MAKE ANY SUCH REPRESENTATIONS OR WARRANTIES.
4. YOUR REPRESENTATIONS AND WARRANTIES TO US
You represent and warrant to us that (1) you have the right, authority, and capacity to agree to these Terms, to register for an Account, and to participate in those Competitions for which you register; and (2) you will comply with these Terms when participating in Competitions, receiving Services, and/or using Software; and (3) all information you supply to us is complete, accurate and current (and knowingly submitting incomplete or inaccurate information, or failing to update and maintain current, complete and accurate information, may result, without limitation, in immediate termination of your Account and forfeiture of Winnings).
5. YOUR INDEMNIFICATION OF US
You will, at your own cost and expense, indemnify and hold us and our directors, officers, employees and agents harmless from and against any and all claims, disputes, liabilities, judgments, settlements, actions, debts or rights of action, losses of whatever kind, and all costs and fees, including reasonable legal and attorneys’ fees, arising out of or relating to (i) your breach of these Terms; (ii) any use of your Account, the Website, the Software and the Services by any person including yourself; (iii) your violation of Applicable Laws; and/or (iv) your negligence or misconduct; and, if we instruct you in writing, you will, at your cost and expense, defend us from any of the foregoing using counsel reasonably acceptable to us.
push notification or chat for any other purpose relating to Services or Software. We or our representatives may monitor all communications made by or received by you while using the Website and Services. If you do not wish to receive these communications from us, you may opt out by emailing Admin@gameform.io, but you acknowledge that opting out may result in your inability to participate in Competitions or receive Services.
6.4. Warning. Please take care in sending us sensitive information because third parties can unlawfully intercept or access transmissions or private communications between you and us, and you acknowledge that internet transmissions are never completely private or secure.
6.6. Gameplay Dialogue. We may use third party websites and technologies to record or stream gameplay or chat dialogue occurring through the Services, including your own dialogue (“Recordings”). We use Recordings to verify compliance with these Terms and as part of marketing and promotion of the Services. Please do not submit personally identifiable information in gameplay dialogue—this information is available for anyone to see and use. You may record and distribute your own recordings of gameplay dialogue for non-commercial purposes (i.e., you may not record or distribute Recordings for compensation) so long as your recording and distribution: (a) do not include other products or services that are competitive with our products or services, and (b) comply with these Terms.
6.7. Children. The Services will not knowingly accept personal information from anyone under 18 years old. If you believe that a child under 18 has gained access to the Services, please contact us at Admin@gameform.io. We have taken commercially reasonable steps to restrict use of Services to those who are at least 18 years old. We do not sell products or services for
purchase by minors.
7. ACCEPTABLE USE POLICY
7.1. Rules of Conduct. You are personally responsible for your use of Services and Software, and while using Services and Software you must conduct yourself in a lawful and respectful manner in accordance with our rules of conduct below. We may temporarily or permanently ban users who violate these rules, or who abuse email communications, support communications, or the community purpose of any message board areas, as determined by us in our sole discretion. We reserve the right to disable a player’s ability to upload profile photos or edit their username at any time.
● Profanity, obscenities, or the use of **asterisks** or other “masking” characters to disguise such words, is not permitted.
● You may not use or upload obscene, lewd, slanderous, pornographic, abusive, violent, insulting, indecent, threatening and harassing language of any kind, as determined by us in our sole discretion.
● Service usernames will be displayed as ‘Your Name’; impersonating other players is not allowed.
● Do not share personal information (your name, phone number, home address, and password) with other users.
● Do not transmit or upload any copyrighted, or trademarked materials in messages or postings.
● Information disclosed in chat rooms, message boards, gameplay dialogue or via eMessages is revealed to the public, and we are not responsible for information you choose to disclose to others.
● Advanced fonts, java, tables, html, or other programming codes or commands are not allowed in messages.
● You may not attempt to participate in any Service by means of automatic, macro, programmed, or similar methods.
● You may not commit fraud with regard to any Service.
● You may not attempt to impersonate or deceive another user for the purposes of illicitly obtaining cards, passwords, account information etc.
You may not make any commercial use of any of the information provided
on the Website or through the Services nor make any use of the Website or
Services for the benefit of a business.
7.2. Your Content. You acknowledge that the Service is a passive conduit for user content and that we do not pre-screen user content or communications. We do not control, verify or pay for any user content or communications. We do not endorse, and specifically disclaim any responsibility or liability for, any publicly posted content. In addition, we may terminate your access to any public forums at any time, without notice, for any reason whatsoever, and/or delete, move or edit content submitted publicly, in whole or in part. You may only upload, send, and receive messages and material that is related to the subject matter of the public forums, complies with Applicable Laws, and conforms to any additional terms of service we post in the public forums. You may not upload to, distribute, or otherwise publish any content, information, or other material that (a) violates or infringes the copyrights, patents, trademarks, service marks, trade secrets, or other proprietary rights of any person; (b) is libelous, threatening, defamatory, obscene, indecent, pornographic, or could give rise to any civil or criminal liability under U.S. or international law; or (c) includes any bugs, viruses, worms, trap doors, Trojan horses or other harmful code or properties. Submissions or opinions expressed by users are that of the individual expressing such submission or opinion and may not reflect our opinions. Subject to the foregoing, we may edit, refuse to post, or to remove any information or materials that you submit to us, in our sole discretion. You may not use a false email address, pretend to be someone other than yourself or otherwise mislead us or third parties as to the origin of your submissions or content. We may, but shall not be obligated to, remove or edit any of your submissions or content for any reason.
7.3. Cheating, Fraud, and Abuse. In accessing or participating in Services or using the Software, you represent and warrant to us that you will not engage in any activity that interrupts or attempts to interrupt the operation of the Services or Software. Anyone who engages in, participates in, or displays behavior that may be interpreted, in our sole discretion, as unfair methods in participating in Services or using the Software, including but not limited to, the opening and/or use of multiple accounts, the use of unauthorized or altered software or hardware to assist play (e.g., bots, bot nets, and collusion with bots), intentionally poor play in certain games to achieve competitive advantage, collusion with other players (e.g.
intentionally losing rematches in Cash Competitions), deliberate transfer of money between accounts (e.g., “money laundering”), harassment of other participants, posting objectionable material, breach of these Terms, breach of security of your Account or, or any other act (whether through the use of automated technology or otherwise) that unfairly alters your chance of winning or constitutes the commission of fraud (collectively, “Abuse”), you
will be subject to immediate sanction (as determined by us in our sole discretion), which may include, without limitation: (1) immediate termination of your Account and blocking of your access to the Website and Services;
(2) any Winnings that you may otherwise have been entitled to receive shall be void and forfeited; and (3) any Winnings received by you shall be subject to disgorgement and/or recoupment. In addition to the foregoing, we reserve the right to disclose or report any money laundering similar illegal activity to law enforcement and regulatory authorities. Without limiting our other available remedies, we may institute or seek any injunctive relief, civil and/or criminal proceedings against you and/or any of your co-conspirators arising out of or related to your commission of Abuse, including without limitation recovering all of our fees and expenses (including reasonable attorneys’ fees) in connection with such efforts.
7.4. Hacking, Tampering, or Unauthorized Access. Any attempt to gain unauthorized access to our systems or any other user’s account, interfere with procedures or performance of Services, Software or the Website, or deliberately damage or undermine the Services or Software is subject to civil and/or criminal prosecution and will result in immediate termination of your Account and forfeiture of your Winnings. You acknowledge that we are not responsiblefor any damage, loss, or injury resulting from hacking, tampering, or other unauthorized access or use of Services or your Account.
7.5. Restrictions. Any use, reproduction or redistribution of the Service, Software, or related products or services (including without limitation, Digital Assets, as defined in Section 10.3) not expressly authorized by these Terms is expressly prohibited. You may not engage in, or assist others to engage in, conduct that would damage or impair our property including, without limitation: (a) copying, distributing, transmitting, displaying, performing, framing, linking, hosting, caching, reproducing, publishing, licensing, or creating derivative works from any information, software, products or services obtained from us; (b) providing unauthorized
means through which others may use Services such as through server emulators; (c) taking actions that impose an unreasonable or disproportionately large load on our or our suppliers’ network infrastructure, or that could damage, disable, overburden, or impair our Websites or
Services; (d) interfering with any other party’s use and enjoyment of Services and/or Software (including cheating) or the Website; and/or (e) attempting to gain unauthorized access to third party accounts, the Service, or Software.
8. WINNINGS, ACCOUNT FUNDS, AND PAYMENTS
8.1. Fees. Fees and payments for Services that you pay to us (“Fees”) and our billing procedures are detailed in our billing application. If there are Fees charged to your Account, you agree to pay those Fees. All Fees are stated in U.S. Dollars, must be prepaid, and are non-refundable. You are fully responsible and liable for all charges, deposits and withdrawals made
under your Account, including any unauthorized charges, deposits or withdrawals. We may change the price of Services at any time, but no price change will affect your past purchases.
8.2. Billing. We may change Fees and billing procedures by updating our billing application with or without notice to you. By providing us with a payment method, you (i) represent that you are authorized to use the payment method that you provided and that any payment information you provide is true and accurate; (ii) authorize us to charge you for the Services using your payment method; and (iii) authorize us to charge you for any paid feature of the Services that you choose to sign up for. We may bill you (a) in advance; (b) at the time of purchase; or (c) shortly after purchase, in our sole discretion. If we make an error on your bill, you must tell us within 120 days after the error first appears on your bill. We will then promptly
investigate the charge. If you don’t tell us within that time, we’ll not be liable for any losses resulting from the error and we won’t be required to correct the error or provide a refund. If we identify a billing error, we will correct that error within 90 days. You must pay for all reasonable costs we incur to collect any past due amounts, including without limitation reasonable
attorneys’ fees and other legal fees and costs.
8.3. Cash Deposits. If you play games integrated in a Competition without depositing U.S. Dollars into your Account for that Competition, then you are a “Non-Cash Player” with respect to such Competition. However, if you play in a Competition that requires an entry paid in U.S. Dollars (“Cash Competition”), then you are a “Cash Player”, and if you establish a positive
Competition within a continuous 60 day time period, all Bonus Funds in your account will be forfeit.
8.5. Withdrawals. If you are a Cash Player, you may request a withdrawal of funds from your available Account balance at any time. Digital Assets (as defined in Section 10.3) and Bonus Funds (as defined in Section 8.4) cannot be withdrawn. Processing of requested funds is made by check or by refund to the payment method used to make your deposit and may take up to ninety (90) days; provided, however, that we may freeze your Account and/or delay a request for withdrawal of funds pending completion of any investigation of reported or suspected Abuse, verification of eligibility, or to comply with Applicable Laws. We may assess a check
request processing fee of up to $2.00 for any withdrawal of less than $10.00.
8.6. Closing Accounts; Forfeiture of Funds. If you close your Account, we will return the funds in your Account subject to the terms of Section 8.5. If we unilaterally close or terminate your Account for cause as allowed in these Terms, funds in your Account may be forfeited and not returned to you. If your funds are forfeited by you in accordance with this Section or
Sections 2.1, 4, 7.3, 7.4, 8.6 or 8.9 hereof, we may use these funds to defray the costs of administration and enforcement of these Terms, allocate or disburse such amounts to other Services, or donate these funds.
8.7. Account Monthly Maintenance Fee. If your Account is inactive (i.e. you have not entered at least one (1) tournament) for six (6) consecutive months or more, we reserve the right to charge a maintenance fee of $2.00 per month (the “Monthly Maintenance Fee”). After five or more months of inactivity we will notify you by email that if your Account remains inactive for one more month, the Monthly Maintenance Fee will be deducted from your Account each consecutive month after that that it remains inactive. The Monthly Maintenance Fee will not be deducted from your Account if there are no funds in your Account. However, if your Account has no funds and has been inactive for twelve or more consecutive months we reserve the
right to close your Account.
8.8. Refund Policy. Unless otherwise required by law, no refunds are given.
8.9. Winnings. If you are eligible to receive Winnings, we may require that you provide us with proof that you are, or were at the time of your participation in the subject Competition, eligible to participate in accordance with these Terms and that your participation was in accordance with these Terms. If you do not provide us with such proof to our reasonable satisfaction, then you will not receive the relevant Winnings. If you receive a payment in error, we may reverse or require return of the payment. You agree to cooperate with us in our efforts to do this. We may also reduce payment to you without notice to adjust for any previous overpayment.
8.10. Credit Card/Debit Card/PayPal/Apple Pay Use. When you pay for any charges by credit card or debit card, you represent to us that you are the
authorized user of such credit card. You must promptly notify us of any changes to your credit card account number, its expiration date and/or your billing address, or if your credit card expires or is canceled for any reason. We are not liable for any loss caused by any unauthorized use of your credit card or debit card or other method of payment by a third party (such as PayPal or Apple Pay) in connection with the Services. Any attempt to defraud through the use of credit cards or other methods of payment, regardless of the outcome, or any failure by you to honor legitimate charges or requests for payment, will result in immediate termination of your Account, forfeiture of Winnings, and pursuit of civil litigation and/or
8.11. Taxes. If you are a U.S. resident, we may send you an IRS Form W-9 and 1099-MISC or other appropriate form if your Winnings total $600 or more in any given calendar year. Depending on the state in which you reside, we may also send you additional federal or state tax forms. Without limiting the foregoing, we may withhold from your existing Account balance
and/or from future Winnings any amount required to be withheld by Applicable Laws, including amounts due in connection with your failure to complete relevant tax documentation, but you remain solely responsible for paying all federal, state and other taxes in accordance with all Applicable Laws.
9. COPYRIGHT COMPLAINTS
The Digital Millennium Copyright Act (DMCA) provides copyright owners who believe that their rights under the United States copyright law have been infringed by acts of third parties over the Internet with ways to protect their rights. If you believe that your copyrighted work has been copied without your authorization and is available in the Services in a way that may constitute copyright infringement, you can provide notice of your claim to the designated agent listed below. For your notice to be effective, it must include the following information:
1. A physical or electronic signature of a person authorized to act on
behalf of the owner of the intellectual property right that is allegedly infringed;
2. A description of the copyrighted work that you claim has been infringed upon;
3. A description of where the material that you claim is infringing is located in this game; Information reasonably sufficient to permit us to contact the complaining party, such as address, telephone number, and, if available, an email address at which the complaining party can be contacted;
4. 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; and
5. A statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.
GameForms’ Designated Agent is: GameForm, Inc. Attn: Legal 112 Cordova Way Apt. #1, Concord, CA 94519 Admin@GameForm.io
10. PROPRIETARY RIGHTS
10.1. Your Content. Subject to these Terms, you grant to us a worldwide,perpetual,unrestricted, royalty-free license to use, copy, modify, distribute, publish, perform, transmit, and display any and all communications, materials, content and information that you submit to us, whether directly or through the Website, Services or Software (“Content”), and waive any moral rights you may have in Content. Subject to these Terms, any communication or material you transmit to us, including any data, questions, comments, suggestions, or the like, will be treated by us as non-confidential and non-proprietary. Subject to these Terms, we may use Content for any purpose, without any compensation, accounting or other liability or obligation to you. If you use or share Content in a way that infringes others’ copyrights, trademarks, other intellectual property rights, or privacy rights, you are breaching these Terms. You represent and warrant to us that for the duration of these Terms you have (and will have) all the rights necessary for the Content you upload or share on the services and that the use of the Content, as contemplated in this Section will not violate any Applicable Laws. If your Account is cancelled or terminated, we may permanently delete your Content from our servers and we have no
obligation to return Content to you.
10.2. Software License. Subject to these Terms, we grant to you a personal, nonexclusive, limited, non-transferable, non-assignable, non-sublicensable, limited license to install and run the Software, in object code format only, on a Device owned or controlled by you, solely for the purpose of accessing and using the Services in accordance with these Terms, and solely for so long as your Account is open. You acknowledge that you are receiving licensed rights only. You may not network the Software among devices. You may not directly or indirectly, or authorize any person or entity to: (i) reverse engineer, decompile, disassemble, re-engineer or otherwise create or attempt to create or permit, allow, or assist others to create the source code of the Software, or its structural framework; (ii) create derivative works of the Software; (iii) use the Software in whole or in part for any purpose except as expressly provided
herein; or (iv) disable or circumvent any access control or related device, process or procedure established with respect to the Software. You acknowledge that you have access to sufficient information such that you do not need to reverse engineer the Software in any way to permit other products or information to interoperate with the Software. You are responsible for all use of the Software that is under your possession or control.
10.3. Digital Assets. Some Services and Software may allow you to create digital objects, such as avatars. Such digital objects, in addition to any digital or virtual objects or assets we assign to your Account. You acknowledge that because all Digital Assets are created through the Software and/or Services, we solely and exclusively own all Digital Assets. To the extent we do not automatically own any Digital Asset, you hereby irrevocably, expressly and automatically assign to us, in perpetuity, all right, title and interest in and to such Digital Assets, including, without limitation, all copyrights, patent rights, trade secrets, trademarks, moral rights and all other applicable proprietary and intellectual property rights throughout the world. If you have any rights to Digital Assets that cannot (as a matter of law) be assigned to us in accordance with the foregoing, you unconditionally and irrevocably: (i) waive the enforcement of such rights against us; and (ii) grant to us an exclusive, irrevocable, perpetual, worldwide, royalty-free license (a) to reproduce, create derivative works of,
distribute, publicly perform, publicly display, digitally perform, and otherwise use and exploit such Digital Assets, (b) to use, make, have made, sell, offer to sell, import, and otherwise exploit any product or service based on, embodying, incorporating, or derived from Digital Assets, and (c) to exercise any and all other present or future rights not yet known in Digital
Assets. Subject to these Terms, we grant you a limited license to use Digital Assets through your own Account solely for purposes and in furtherance of your use of Services.
10.4. Ownership. All content of the Website, the Software, Services, and all GameForm products and services, and all GameForm logos, symbols, expansion names and symbols, play level symbols, trade dress or “look and feel”, and all Digital Assets, and all derivative works or modifications of any of the foregoing, and all related and underlying intellectual property (including without limitation patents, trademarks, trade secrets and copyrights), are our sole and exclusive property. We reserve all rights not expressly granted herein. Except as expressly set forth herein: no right or license is granted hereunder, express or implied or by way of estoppel, to any intellectual property rights and your use of Services and/or Software
does not convey or imply the right to use the Services or Software in combination with any other information or products.
11. TERM AND TERMINATION
These Terms apply to you and to us from the date that you accept them as provided above, until termination of your Account (whether by deactivation, cancellation, closure, expiration or termination by you or us). You may terminate these Terms at any time and for any reason by emailing Admin@GameForm.io. Upon termination of your Account, you must immediately discontinue use of the Services and the Software and your Account and promptly uninstall and delete all copies of the Software. Immediately upon termination of your Account, all license and rights granted to you under these Terms automatically terminate and you shall
automatically forfeit the right to use Digital Assets. Your obligation to pay accrued Fees will survive any termination of these Terms. Any and all terms and conditions within these Terms which should, by their nature, survive termination of these Terms, will survive such termination (including without limitation Sections 3.3, 4, 5, 6, 8.6, 8.7, 8.9, 8.10, 10.3 and 12
through 15 (inclusive).
We strive to keep Services up and running; however, all online services suffer occasional disruptions and outages, we are not responsible or liable for any disruption or loss you may suffer as a result. You should regularly backup content that you store on the Services.
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, ALL SERVICES, PRODUCTS, INFORMATION AND DATA PROVIDED OR MADE AVAILABLE BY US (INCLUDING WITHOUT LIMITATION DIGITAL ASSETS AND SOFTWARE) ARE “AS IS” AND WITHOUT
WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND YOU ASSUME THE ENTIRE RISK WITH RESPECT THERETO. WE MAKE NO REPRESENTATION, WARRANTY OR GUARANTEE THAT SERVICES, YOUR ACCOUNT, SOFTWARE, THE WEBSITE AND/OR DIGITAL ASSETS WILL BE SECURE, VIRUS-FREE, UNINTERRUPTED OR ERROR-FREE, OR THAT THE SAME WILL FUNCTION PROPERLY IN COMBINATION WITH ANY THIRD PARTY COMPONENT, TECHNOLOGY, HARDWARE,
SOFTWARE, OR SYSTEM.
We are not responsible or liable for any damage, loss, or injury resulting from, relating to or arising out of (1) use, access, or attempted use or access of Services, Digital Assets, the Software or the Website; (2) downloading any information from the Software, Services or Website; and/or (3) violations of these Terms by other users. We have no responsibility to enforce these terms for the benefit of any user. Some states do not allow the disclaimer of implied warranties; as such the foregoing disclaimer may not apply to you in its entirety.
13. LIMITATIONS OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, NEITHER WE, NOR OUR SUPPLIERS OR LICENSORS, WILL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST DATA OR LOSS OF GOODWILL), OR INCIDENTAL DAMAGES, ARISING OUT OF OR RELATING TO THESE TERMS, THE WEBSITE, OR ANY INFORMATION, SERVICES,
PRODUCTS OR SOFTWARE MADE AVAILABLE OR ACCESSIBLE TO YOU, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF WE OR OUR THIRD PARTY SUPPLIERS OR LICENSORS HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH LIABILITY. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, OUR MAXIMUM LIABILITY TO YOU ARISING OUT OF OR IN ANY WAY
CONNECTED TO THESE TERMS SHALL NOT EXCEED U.S. $50.00. THE EXISTENCE OF ONE OR MORE CLAIMS BY YOU WILL NOT INCREASE OUR LIABILITY. IN NO EVENT SHALL OUR SUPPLIERS OR LICENSORS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY
CONNECTED TO OUR PRODUCTS, INFORMATION OR SERVICES. Certain jurisdictions do not allow limitations of liability for incidental, consequential or certain other types of damages; as such, the limitations and exclusions set forth in this Section may not apply to you.
14. DISPUTE RESOLUTION AND ARBITRATION
14.1. General. This Section applies to any Dispute except for Disputes relating to the enforcement or validity of our intellectual property rights. The term “Dispute” means any dispute, action, or other controversy between you and us concerning these Terms, the Services or any product, service or information we make available to you, whether in contract, warranty, tort, statute, regulation, ordinance, or any other legal or equitable basis.
“Dispute” will be given the broadest possible meaning allowable under law. In the event of a Dispute, you or we must give the other a Notice of Dispute, which is a written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the Dispute, and the relief requested. You must send any Notice of Dispute by U.S. Mail
to GameForm Customer Support, 112 Cordova way Apt. # 1 Concord, California 94519. We will send any Notice of Dispute to you by U.S. Mail to your address if we have it, or otherwise to your email address. You and we will attempt to resolve any Dispute through informal negotiation within sixty (60) days from the date the Notice of Dispute is sent. After sixty (60) days, either you or we may commence arbitration. You may also litigate any Dispute in small claims court in San Francisco, California, if the Dispute meets all requirements to be heard in the small claims court. You may litigate in small claims court whether or not you negotiated informally first.
14.2. Binding arbitration. If you and we do not resolve any Dispute by informal negotiation or in small claims court, any other effort to resolve the Dispute will be conducted exclusively by binding arbitration as described in this Section. Instead, all Disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal
under the Federal Arbitration Act. Any court with jurisdiction over the parties may enforce the arbitrator’s award.
14.3. Class action waiver. To the maximum extent permitted under applicable law, any proceedings to resolve or litigate any Dispute in any forum will be conducted solely on an individual basis. Neither you nor we will seek to have any Dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative
capacity. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings. If this waiver is found to be illegal or unenforceable as to all or some parts of a Dispute, then it won’t apply to those parts. Instead, those parts will be severed and proceed in a court of law, with the remaining parts
proceeding in arbitration.
14.4. Arbitration procedure. If you are located within the United States, Canada, the United Kingdom or the European Union, or any of their territories, then any arbitration will be conducted by the American Arbitration Association (the “AAA”) under its Commercial Arbitration Rules. You and we each agree to commence arbitration only in San Francisco,
California, USA. You may request a telephonic or in-person hearing by following the AAA rules. In a Dispute involving $10,000 or less, any hearing will be telephonic unless the arbitrator finds good cause to hold an in-person hearing instead. If you are located in a country other than listed above, then arbitration will be conducted by the International Court of Arbitration of the International Chamber of Commerce (ICC) pursuant to UNCITRAL rules, and the arbitration shall be conducted in English and the English version of these Terms (and not any translation) shall control, and both parties hereby agree to accord this arbitration agreement the broadest scope admissible under applicable Laws, and that it shall be interpreted in a non-restrictive manner. The arbitrator may award the same damages to you individually as a court could. The arbitrator may award declaratory or injunctive relief only to you individually, and only to the extent required to satisfy your individual claim. These Terms govern to the extent they conflict with the arbitrators’ commercial rules. The arbitrator may award compensatory damages, but shall NOT be authorized to award non-economic damages, such as for emotional distress, or pain and suffering or punitive or indirect, incidental or consequential damages. Each party shall bear its own attorneys’ fees, cost and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the arbitrator and AAA; however, the arbitrator may award to the prevailing party reimbursement of its reasonable attorneys’ fees and costs (including, for example, expert witness fees and travel expenses), and/or the fees and costs of the arbitrator. Within fifteen (15) calendar days after conclusion of the arbitration, the arbitrator shall issue a written award and a written statement of decision describing the material factual findings and conclusions on which the award is based, including the calculation of any damages awarded. Judgment on the award may be entered by any court of competent jurisdiction. The parties waive their right to commence any action or judicial proceeding in connection with a dispute hereunder, except for purposes of: (i) recognition and/or enforcement of the arbitration award or any other decision by the arbitral tribunal, (ii) obliging the other party to participate in the arbitration proceedings, (iii) requesting any type of conservative or interim measure in connection with the dispute prior to the constitution of the arbitral tribunal, (iv) requesting the appearance of witnesses and/or experts, and/or (v) requesting that any information and/or
documentation discovery be complied with. By agreeing to this binding arbitration provision, you understand that you are waiving certain rights and protections which may otherwise be available if a claim or Dispute were determined by litigation in court, including, without limitation, the right to seek or obtain certain types of damages precluded by this arbitration
provision, the right to a jury trial, certain rights of appeal, the right bring a
claim as a class member in any purported class or representative proceeding, and the right to invoke formal rules of procedure and evidence.
14.5. Claims or Disputes must be filed within one year. To the extent permitted by applicable law, any claim or Dispute under these Terms must be filed within one year from the date of the cause of action. If a claim or dispute isn’t filed within one year, it’s permanently barred.
14.6. Equitable Relief. You agree that we would be irreparably damaged if these Terms were not specifically enforced. Therefore, in addition to any other remedy we may have at law, and notwithstanding our agreement to arbitrate Disputes, we are entitled without bond, other security, or proof of damages, to seek appropriate equitable remedies with respect to your
violation of these Terms in any court of competent jurisdiction.
These Terms constitute the entire agreement between you and us pertaining to the subject matter hereof and supersede all prior or other arrangements, understandings, negotiations and discussions, whether oral or written. These Terms cannot be modified by you, and may only be modified by us as provided above. Our failure to require or enforce strict performance by you of any provision of these Terms or to exercise any right under them shall not be construed as a waiver or relinquishment of our right to assert or rely upon any such provision or right in that or any other instance. The provisions of these Terms are intended to be severable. If for any reason any provision of these Terms shall be held invalid or unenforceable in whole or in part by any court of competent jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of the Terms, which shall continue to be in full force and effect. Section titles in these Terms are for reference only and have no legal effect. No right or remedy of ours shall be exclusive of any other, whether at law or in equity, including without limitation damages injunctive relief, attorneys’ fees and expenses.
We may assign these Terms, in whole or in part, at any time without notice to you. You may not assign these Terms or transfer any rights to use the Services or Software. You consent to our providing you notifications about the Services or information the law requires us to provide via email to the address that you specified when you created your Account. Notices
emailed to you will be deemed given and received when the email is sent. If you do not consent to receive notices electronically, you must close your Account. These Terms are solely for your and our benefit, and not for the benefit of any other person, except for our successors and assigns. A printed version of these Terms and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
Please send any questions or comments (including all inquiries unrelated to copyright infringement) to: GameForm Customer Support, 112 Cordova Way Apt. #1 Concord, CA 94519. Please print these Terms for your records.
Developer Terms and Conditions of Service
Updated [June 24, 2014]
GameForm is happy to be working with you. These Developer Terms of Service defines the relationship between GameForm, Inc. (“GameForm”) and you, the person registering for developer services or the organization or entity that has authorized you to register for developer services (in either case, “Company”). By clicking “I Agreed and Accepted” at the end of this agreement, and in creating a developer account, Company agrees that (i) he, she, or it has read, understands, agrees, and accepts these Developer Terms of Service and agrees to be bound by these Terms of Service and all terms, policies and guidelines incorporated in the Terms of Service by reference (collectively, the “Agreement”); and (ii) if Company is an individual, is at least eighteen (18) years old. If Company does not agree to
be bound by this Agreement, Company must not create a developer account nor use the Monetization Services (as defined below) in any way, and Company must check the button indicating non-acceptance. The Monetization Services are offered to Company conditioned on Company’s acceptance without modification of this Agreement. The date of Company’s
acceptance of these Developer Terms and Conditions is the “Effective Date” of the Agreement.
GameForm may modify the Agreement at any time by posting such modifications to the GameForm website (https://www.GameForm.io) and Company’s account homepage. Modifications will be effective either upon such posting, or, if GameForm informs Company by email, when GameForm sends that email. Changes will not apply retroactively and generally will become effective 14 days after they are posted or, if emailed, at the time GameForm sends that email. If Company does not agree to any modified terms in the Agreement, Company must terminate this Agreement and stop using the Monetization Services.
GameForm designs and provides online, real-money, tournament-based competitions (“Competitions”) to developers who wish to enable users of their gaming applications to participate in such Competitions. Company has developed a game (“Game”) and wishes to modify such Game to enable the end users who register for such Game (“Users”) to participate in Competitions. GameForm is willing to license its software developer kit (together with all content thereof, and all updates, enhancements, modifications and derivative works thereof, including updates, upgrades or error corrections, the “SDK”) to Company to allow Company to modify its Game to enable Users to participate in Competitions, and to establish and maintain Competitions that are specific to the Game, all in accordance with this Agreement. GameForm and Company agree to the following:
1. Monetization Services
1.1. Services. Upon deployment of the Modified Game (defined in Section 2) in a live production environment and subject to the terms and conditions of this Agreement, GameForm shall (i) establish and manage Competitions through its proprietary online, hosted monetization platform (“Monetization Platform”) by creating Game tournaments, facilitating User-entry into Competitions, managing and hosting User’s Competition accounts, collecting User entry fees, distributing User payouts, resolving User disputes pertaining to his/her participation in Competitions, and providing all tiers of customer support for User inquiries related to the Competitions (but not related to the Game) and (ii) provide Company with access to reporting data that details activity under such Competitions, including the
number of tournaments played, User actions, and related revenue (“Competition Data”) (provision of the Monetization Platform and the Competition Data are collectively referred to as “Monetization Services”). GameForm may modify, enhance, update or provide appropriate
replacements for Monetization Services or any element thereof at any time, and remove functionalities or features of the Monetization Services at any time, and GameForm may suspend or stop providing Monetization Services altogether.
1.2. SDK License. GameForm grants to Company during the Term a limited, non-exclusive and non-transferable license to install, run and copy the SDK solely for the limited purpose of modifying the Game to allow GameForm to provide Monetization Services with respect to such Game. This license does not include the right to reproduce the SDK, the Monetization Platform or the Monetization Services, or to sublicense, resell, or distribute the foregoing. Company shall not allow any third party to access the Monetization Services. Company shall not itself and shall not allow any third party to (i) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas, user interface techniques or algorithms, file formats or programming or interoperability interfaces of the Monetization Services, the SDK or any portion thereof, (ii) remove any product identification, copyright or other notices, or (iii) modify the Monetization Services or the SDK or incorporate the Monetization Services or SDK into or with other software or
services or make derivative works thereof, or (iv) take any action that would cause the Monetization Services or the SDK to be placed in the public domain. All rights not expressly granted to Company herein are expressly reserved by GameForm, and nothing in this Agreement will be deemed to grant, by implication or estoppel, a license under any of GameForm’s or its licensor’s existing or future rights in or to the SDK, Monetization Platform or Competition Data.
1.3. Suspension. Company may suspend its User’s access to and/or participation in a Game’s Competitions at any time in its sole discretion and upon notice to GameForm. GameForm may suspend or terminate provision of Monetization Services or part thereof (including without limitation provision of Competitions) at any time in its sole discretion upon notice to Company. Company may display Advertisements preceding, following, or during any virtual currency tournament-based competitions that do not include a real money entry fee. GameForm may immediately suspend Monetization Services or part thereofin the event that Company displays any content that promotes or references a thirdparty product or service or any hyperlinked content (collectively, “Advertisements”) preceding, immediately following, or during any Competition.
1.4. Promotion. GameForm and the entities that participate in GameForm’s affiliate program (“Affiliates”) may use Company’s name, trademarks and logos solely for the purpose of indicating that Company is a client of GameForm in GameForm’s and its Affiliates’ advertising, marketing or other promotional materials, and GameForm and its Affiliates may identify the Company and the Game as part of GameForm’s network.
not (i) sell personally identifiable User data to any third party, nor (ii) aggregate or present User data in a form or manner that would permit a third party to identify any individual’s personal information or identify the data as associated with Company or the Game. GameForm will endeavor to resolve User disputes regarding participation in Competitions. If there is a dispute between Company and a User apart from Monetization Services,
however, GameForm is under no obligation to become involved, and Company will manage such dispute or disagreement directly. Company will not make any claims against GameForm with respect to Company’s User dealings.
1.6. Exclusivity. From the Effective Date through the later of either (i) the first anniversary of the Effective Date (even if such anniversary occurs after termination of this Agreement); or (ii) ninety (90) days after termination or expiration of this Agreement, Company shall not enter into any agreement with any third party that provides services similar to the Monetization
Services or Monetization Platform, nor will Company offer to customers any in-Game competition functionality similar to the Monetization Services or Monetization Platform.
2. Revenue Share
GameForm shall pay Company separate agreed upon percentage of Net Revenue as a monthly revenue share (“Revenue Share”), where “Net Revenue” means all amounts received by Gamform from Users participating in Competitions, less deductions for taxes and for all costs and expenses directly attributable to Competitions and Users within the Game, and for amounts owed to Affiliates. If the foregoing deductions exceed the corresponding Net Revenue in any given month, then Gameform will treat such loss as a cost, and will deduct this cost from subsequent Revenue Share payments. In no event must Company pay GameForm any amounts in respect of Net Revenue or the Revenue Share. For Revenue Share that exceeds two hundred fifty dollars ($250) in any given calendar month, GameForm shall pay Company the Revenue Share within forty-five (45) days following the end of the calendar month in which the applicable Net Revenue was received. For Revenue Share that does not exceed two hundred fifty dollars ($250) in any given calendar month, GameForm will
accrue and hold such Revenue Share until the aggregate Revenue Share held exceeds two hundred fifty dollars ($250), at which time GameForm will pay Company such Revenue Share in the next-occurring calendar month.
3. Company Information
Company shall provide GameForm with access to Company’s Game information and data to enable GameForm to perform Monetization Services. Company is responsible for ensuring all Game information is accurate, and acknowledges that GameForm may rely upon such information without investigation, and is not responsible for any inaccuracies therein, or for GameForm’s reliance upon Company’s instructions. Company shall notify GameForm immediately if Company receives complaints related to the Monetization Services. If any error results from incorrect input supplied by Company, Company shall be responsible for discovering and reporting such error to GameForm and supplying all information necessary to correct such error at the earliest possible time.
4. Confidential Information
“Confidential Information” means this Agreement, and all confidential or proprietary information disclosed by one party (“Disclosing Party”) to the other party (“Receiving Party”) hereunder, including information which is orally or visually disclosed to the Receiving Party. The Receiving Party shall: (a) not use any of the Disclosing Party’s Confidential Information for any purpose except in performance of its rights and obligations hereunder;
(b) disclose the Disclosing Party’s Confidential Information only to its employees or contractors who need to know such information in order to carry out obligations hereunder, and certifies that such individuals have previously agreed, either as a condition to employment or in order to obtain the Confidential Information, to be bound by terms and conditions substantially similar to those of this Section; and (c) treat all of the Disclosing Party’s Confidential Information with the same degree of care as it accords its own Confidential Information of a similar nature, but in no case less than reasonable care. The forgoing obligations shall continue for a period of five (5) years following termination of this Agreement. The Receiving Party shall have no obligation with respect to information of the
Disclosing Party which (i) was rightfully in possession of or known to the Receiving Party without any obligation of confidentiality prior to receiving it from the Disclosing Party as evidenced by the Receiving Party’s contemporaneous written records; (ii) is, or subsequently becomes, legally and publicly available without breach of this Agreement or wrongful act by the Receiving Party; or (iii) is rightfully obtained by the Receiving Party from a source other than the Disclosing Party without any obligation of confidentiality. The Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent required by a valid order of a court or government agency having jurisdiction, provided that the Receiving Party provides prior written notice to the Disclosing Party of such obligation and the opportunity to oppose such disclosure. Upon written demand of the Disclosing Party, the Receiving Party shall cease using the Disclosing Party’s Confidential Information and return the Confidential Information and all copies, notes or extracts thereof in the Receiving Party’s possession to the Disclosing Party within seven (7) days of receipt of notice.
MONETIZATION SERVICES, COMPETITION DATA AND COMPETITIONS ARE MADE AVAILABLE “AS IS” AND WITHOUT WARRANTY. GameForm MAKES NO REPRESENTATION OR WARRANTY EXPRESS OR IMPLIED WITH RESPECT TO ANY PRODUCTS, SERVICES, INFORMATION OR TECHNOLOGY PROVIDED OR MADE AVAILABLE HEREUNDER, INCLUDING WITHOUT LIMITATION, NETWORK FAILURES, THIRD-PARTY PRODUCTS AND
SERVICES, SOFTWARE PROGRAMS, AND OUTPUT OR RESULTS OF THE MONETIZATION SERVICES. GameForm DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES THE COMPANY MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE SERVICE. GameForm DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.
GameForm is not responsible or liable for any damage, loss, or injury resulting from, relating to or arising out of (1) use, access, or attempted use or access of Services, Digital Assets, the Software or the Website; (2) downloading any information from the Software, Services or Website; and/or (3) violations of these Terms by other users. GameForm has no responsibility to enforce these terms for the benefit of any user. Some states do not allow the disclaimer of implied warranties; as such the foregoing disclaimer may not apply to you in its entirety.
6. Limitations of Liability
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW:
(1) GameForm’s total AGGREGATE liability arising out of OR RELATING TO this Agreement, whether based on contract, tort or otherwise, shall not exceed THE LESSER OF EITHER (A) THE FEES paid AND PAYABLE BY GameForm to COMPANY DURING THE THREE (3) MONTHS
IMMEDIATELY PRECEDING THE COMPANY’S FIRST CAUSE OF ACTION ARISING HEREUNDER, or (B) $1,000; AND (2) EXCEPT FOR DAMAGES CAUSED BY A BREACH OF SECTION 2 OR section 6, for INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S
INTELLECTUAL PROPERTY RIGHTS, AND AMOUNTS OWED BY A PARTY PURSUANT TO ITS INDEMNIFICATION OBLIGATIONS IN SECTION 8, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR SPECIAL, INDIRECT, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, LOSS OF USE, OR LOSS OF PROFITS), ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR THEY WERE OTHERWISE
7.1. By Company. Company shall defend, hold harmless and indemnify GameForm, its officers, directors, employees, agents, representatives and Affiliates from and against any and all third-party claims, actions, proceedings, and suits brought against any of the foregoing persons or entities, and pay all related third party liabilities, damages, judgments,
settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys’ fees and other litigation expenses) to the extent arising out of or relating to Company’s breach of Section 1.6 and/or Content.
7.2. By GameForm. GameForm shall defend, indemnify, and hold Company, its officers, directors, employees, agents, representatives and Affiliates harmless from and against any and all third-party claims, actions, proceedings, and suits brought against any of the foregoing persons or entities, and pay all related third party liabilities, damages, judgments,
settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys’ fees and other litigation expenses) to the extent arising out of or relating to a third-party claim that the Monetization Platform or SDK infringes or misappropriate such third party intellectual property right. GameForm shall have no obligation under this Section with
respect to any claim based upon (i) Content; (ii) modification of the SDK by Company; (iii) the combination, operation or use of the SDK with non-GameForm software program(s) or data; or (iii) use of the SDK or Monetization Platform other than in compliance with this Agreement. If any portion of the SDK or Monetization Platform, in the opinion of GameForm,
is likely to or does become the subject of a claim of infringement or misappropriation, GameForm may, at its sole option and expense: (x) modify the SDK or Monetization Platform (as applicable) to be non-infringing, provided that such modification does not materially diminish the terms of usage of the Monetization Platform; (y) obtain for Company a right to continue using the SDK or Monetization Platform at no additional charge; or (z) terminate this Agreement upon notice to Company. This Section represents GameForm’s sole liability, and Company’s sole and exclusive remedy, regarding infringement or misappropriation of intellectual property rights.
7.3. Process. The indemnified party shall promptly notify the indemnifying party in writing of any claim covered by this Section. The indemnified party shall give the indemnifying party sole control over the defense and/or settlement of any such claim, except that the indemnifying party shall not agree to any settlement or compromise that (1) would require the indemnified party to make any payments, admit liability, or bear any obligations, or (2) does not include an unconditional release of the indemnified party, unless the indemnifying party obtains the indemnified party’s prior written approval. The indemnified party shall give the indemnifying Party reasonable assistance and cooperation in such defense at the indemnifying party’s expense.
7.4. Other Claims. If any U.S. governmental or regulatory agency, or any consumer resident within the U.S., brings any claim, suit or proceeding against Company alleging that the Monetization Platform (excluding the Game and Content) in the form provided by GameForm violates applicable laws, rules or regulations, then GameForm, at its own expense, shall defend (or at its option settle) such claim, suit or proceeding, and shall pay any final and non-appealable fine, penalty or judgment entered or settlement against the Company thereon; provided, however, that (a) GameForm shall not be responsible for any compromise or settlement made without its prior consent; and (b) GameForm shall have no such obligation unless Company gives GameForm prompt notice of the claim, the right to control and direct the investigation, preparation, defense and settlement of the claim, and full cooperation (at GameForm’s expense), in any such investigation, preparation, defense and/or settlement.
8. Term and Termination.
This Agreement shall have an initial term of one (1) year from the Effective Date (“Initial Term”) and shall automatically renew for periods of six months thereafter (each a “Renewal Term”, together with the Initial Term, the “Term”) unless either party provides forty-five (45) days written notice of its intent to terminate the Agreement prior to the expiration of any Initial Term or Renewal Term, in which case this Agreement will terminate upon expiration of the then-current Initial Term or Renewal Term, as applicable. This Agreement may be terminated by either party’s convenience upon thirty (30) days written notice from the other party. This Agreement may be terminated by a party if the other party materially breaches any provision hereof and does not cure such breach within thirty (30) days of receipt of notice describing such breach. Sections 1.6, 6, 7, 8, 9 and 10 and this sentence shall survive termination of this Agreement, as well as any other obligations of the parties that contemplate performance by a party following such termination. Termination of this Agreement shall automatically terminate all licenses granted in this Agreement. Upon termination of this Agreement, Company will return or destroy all materials regarding the Monetization Services and Monetization Platform in its possession or control, including deleting all references to GameForm on its website and in marketing materials.
Nothing in this Agreement shall be deemed to create a partnership or joint venture between the parties and neither GameForm nor Company shall hold itself out as the agent of the other, except as set forth in this Agreement. Neither party shall be liable to the other for delays or failures in performance resulting from causes beyond the reasonable control of that party. Any notice required or permitted to be given by either party under this Agreement shall be in writing and shall be personally delivered or sent by a reputable overnight mail service (e.g., Federal Express), or by prepaid first class mail (certified or registered). Notices to GameForm shall be sent to GameForm Inc., 112 Cordova Way Apt. #1 Concord, CA 94519, and notices to Company shall be sent to the name and physical address provided on the account page of Company’s profile or, if no physical address is submitted, then to the email address provided on the account page. Any amendment or other modification of any provision of this
Agreement shall be effective only if in writing and signed by the parties. This Agreement shall be interpreted under the laws of the State of California without regard to conflict of laws principles dictating another state’s laws. The United Nations Convention for the International Sale of Goods shall not apply to this Agreement. This Agreement may not be
assigned by Company without the prior written consent by GameForm. This Agreement shall be binding on permitted successors and assigns. This Agreement and its Appendix constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous understandings or agreements,
written or oral, regarding such subject matter. This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument. All rights and remedies, whether conferred hereunder, or by any other instrument or law, unless otherwise expressly stated, will be cumulative and may be exercised singularly or concurrently. The failure of any party to enforce any of the provisions hereof will not be construed to be a waiver of the right of such party thereafter to enforce such provisions. If one or more provisions in this Agreement are ruled entirely or partly invalid or unenforceable by any court or governmental authority of competent jurisdiction, then the validity and enforceability of all provisions not ruled to be invalid or unenforceable shall remain unaffected. EVERY PROVISION OF THIS AGREEMENT WHICH PROVIDES LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES OR EXCLUSION OF DAMAGES IS A FUNDAMENTAL PART OF THE BASIS OF THE BARGAIN HEREUNDER. IF ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN EFFECT TO THE MAXIMUM ALLOWED BY APPLICABLE LAW.
Affiliate Program Terms Of Service
Updated [June 24, 2014]
GameForm is happy to be working with you. These Affiliate Terms of Service define the relationship between GameForm, Inc. (“GameForm”) and you, the person registering, on behalf of yourself or the organization or entity that has authorized you to register for the Affiliate program (in either case, “Affiliate”) to exchange affiliate services and other valuable
consideration with GameForm in accordance with these Terms of Service. By clicking “Agreed and Accepted” at the end of this agreement, and in creating an affiliate account, Affiliate agrees that (i) he, she, or it has read, understands, agrees, and accepts these Affiliate Terms of Service and agrees to be bound by these Terms of Service and all terms, policies and guidelines incorporated in these Terms of Service by reference (collectively, the “Agreement”); and (ii) if Affiliate is an individual, is at least eighteen (18) years old. If Affiliate does not agree to be bound by this Agreement, Affiliate must not create an affiliate account, and Affiliate must check the button indicating non-acceptance. The date of Affiliate’s acceptance of these Affiliate Terms and Conditions is the “Effective Date” of the Agreement. GameForm may modify the Agreement at any time by posting such modifications to the GameForm affiliate website and/or Affiliate’s account homepage. Modifications will be effective either upon such posting, or, if GameForm informs Affiliate by email, when GameForm sends that email. Affiliate’s continued use of the GameForm affiliate website or GameForm Content (defined below) posted to Affiliate’s account homepage after GameForm has posted a revised Agreement signifies Affiliate’s acceptance of such revised Agreement. No amendment or modification of this Agreement will be binding unless in writing and signed by a GameForm duly authorized representative or posted to the GameForm affiliate website or Affiliate’s account homepage by a GameForm duly authorized
GameForm desires for Affiliate to actively promote and solicit consumer downloads of the GameForm App and GameForm’s suite of games (each a “GameForm Game” and collectively, the “GameForm Games”) through Affiliate URLs in accordance with these Terms of Service.
“Competition” means a multiplayer competition managed by GameForm. “Net Revenue” means all GameForm Tournament entry fees received by GameForm from each Valid Referral that created its initial GameForm account within the preceding 12-month period, less deductions for taxes and expenses attributable to Competitions. “GameForm Content” means data, graphics, information, images, links and displays provided by GameForm to Affiliate in support of Affiliate’s activities hereunder, including without limitation trademarks, logos, service marks and brands. GameForm Content may include third party content provided by GameForm to Affiliate. “GameForm Game” means any mobile game that includes one or more GameForm Tournaments. GameForm may change or discontinue any GameForm Game at any time, in its sole discretion. “GameForm Representative” means Officer of the company or agent appointed by officer of the company. “GameForm Tournament” means a Competition featuring a real money entry fee. GameForm may change or discontinue any GameForm Tournament at any time, in its sole discretion. “User” means anyone who has registered for an account with GameForm, downloaded any software application from GameForm or participated in any Competition. Users are subject to the GameForm User Terms of Service and may have their account suspended or closed at any time. “Valid Referral” means a User that (i) downloads a GameForm Game directly through Affiliate’s GameForm Content link on an Affiliate URL (ii) creates a new GameForm account and (iii) enters a GameForm Tournament within thirty (30) days of the account creation.
3. APPOINTMENT AND AUTHORITY OF AFFILIATE
3.1. Appointment and License. Subject to the terms and conditions of this Agreement, GameForm appoints Affiliate as a nonexclusive referral agent for GameForm Tournaments, and Affiliate hereby accepts such appointment. Affiliate’s sole authority will be to publicly display GameForm Content on Affiliate URLs and GameForm hereby grants Affiliate a limited, nonexclusive, non-transferable, non-sublicensable, royalty-free license to display GameForm Content as necessary to perform the foregoing during the term of this Agreement. Affiliate will use GameForm’ then-current names for GameForm Games and GameForm Tournaments (but will not represent or imply that it is GameForm or is a part of GameForm) and will not add to, delete from or modify any GameForm Content without GameForm’ written approval. Affiliate acknowledges and agrees that all of its use of GameForm Content, including all goodwill associated therewith, shall inure to the benefit of GameForm and its licensors. GameForm, on behalf of itself and its licensors, reserves all rights in and to its technology, GameForm Games, GameForm Content, GameForm Tournaments, and all related intellectual property rights, and except for the express limited license granted to Affiliate in this Section 3.1, GameForm does not grant Affiliate any right or license in and to any of the foregoing, whether by implication, estoppel or otherwise.
3.2. Limitations and Obligations. Affiliate has no power or authority, express or implied, to make any commitment or incur any obligations on behalf of GameForm. Affiliate shall use reasonable and diligent efforts to actively promote and solicit consumer downloads of GameForm Games through Affiliate URLs on a continuing basis during the term of this Agreement, and shall comply with good business practices and all applicable laws and regulations, and shall conduct its business in a manner that will reflect favorably on the good name and reputation of GameForm and it products, and shall not make any representations, promises, warranties or guarantees with respect to GameForm products or services that are inconsistent with or supplemental to or greater than any representations and warranties published by GameForm. If GameForm, in its sole discretion, determines that Affiliate’s display of GameForm Content on any given Affiliate URL may harm GameForm’ or its partners’ name or reputation, then GameForm may instruct Affiliate to remove such
GameForm Content from such Affiliate URL, and Affiliate shall do so within 24 hours. Affiliate shall not, either individually or on behalf of or through any third party, directly or indirectly, solicit, divert or appropriate or attempt to solicit, divert or appropriate any of GameForm’ game or tournament developers, publishers or partners for the purpose of competing with GameForm, or where such solicitation, diversion or appropriation could have the effect of reducing GameForm’ relationship with such persons or entities.
Affiliate represents, warrants and covenants to GameForm as follows: (i) Affiliate’s execution and performance of this Agreement does and will not violate any judgment, writ, injunction, or order of any court, arbitrator, or governmental agency applicable to Affiliate, or conflict with, result in the breach of any provisions of or the termination of, or constitute a default under, any contractual or legal obligation or agreement to which Affiliate is a party or by which Affiliate or any of its assets or properties is or may be bound; (ii) Affiliate has the power and authority to execute, deliver, and perform its obligations under this Agreement in accordance with this Agreement; and (iii) Affiliate shall perform this Agreement only as specified hereunder, only for lawful purposes, conforming to all applicable laws and ethical business practices, and without knowingly violating any intellectual property, publicity, privacy, confidentiality, contractual or other right of any third party.
5. LIMITATIONS ON LIABILITY
GameForm WILL NOT BE LIABLE TO AFFILIATE FOR ANY LOST PROFITS, LOST DATA, COST OF SUBSTITUTE PRODUCTS OR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES, HOWEVER CAUSED, AND WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER THEORY OF LIABILITY, REGARDLESS OF WHETHER GameForm HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Affiliate acknowledges that (i) it has no expectation and has received no assurances that any investment by Affiliate in the promotion of GameForm Games will be recovered, or that Affiliate will obtain any amount of profits under this Agreement; and (ii) it will not have or acquire by virtue of this Agreement any rights, proprietary or otherwise, in its promotion of GameForm Games, or in any goodwill created by its efforts hereunder. Affiliate acknowledges that the manner and notice of termination set forth in this Agreement is reasonable and that, upon termination, no payment or indemnity for loss of goodwill, loss of profit, investments made, or otherwise shall be due to Affiliate.
Affiliate acknowledges that by reason of its relationship to GameForm hereunder, Affiliate will have access to certain information and materials concerning GameForm’ business, plans, customers, technology, services and products that is confidential or proprietary (“Confidential Information”). Affiliate shall not use Confidential Information in any way for its own account or the account of any third party other than to fulfill its obligations under this Agreement, nor disclose Confidential Information to any third party. Affiliate shall take every reasonable precaution to protect the confidentiality of such information, and shall protect Confidential Information with at least as much care as it protects its own most highly
At no time during or after the term of this Agreement shall Affiliate challenge or assist others to challenge GameForm’s trademarks or trade names or the registration thereof or rights thereto, or attempt to register any such trademarks or trade names, or any trademarks, marks or trade names confusingly similar to those of GameForms’.
9. TERM AND TERMINATION
9.1. Term. The term of this Agreement shall commence on the Effective Date and continue until terminated by either party as set forth in this Agreement (the “Term”).
9.2. Mutual Termination Rights. Each party may terminate this Agreement immediately upon delivery of written notice to the other party provided in accordance with Section 12 hereof.
9.3. Effect of Termination. The provisions of Sections 3, 4, 5, 7, 9.3, 10 and 11 will survive the termination or expiration of this Agreement for any reason. Upon termination of this Agreement, Affiliate shall return or destroy, and promptly (and in any event within two business days) cease further use of, any and all GameForm Content and Confidential Information of GameForm.
Affiliate will indemnify and hold harmless GameForm and its affiliates, licensors, employees, directors, officers, agents and customers from and against any and all claims, damages, losses, costs, liabilities and expenses, including without limitation attorneys’ fees, incurred by any of the foregoing persons or entities arising out of or relating to Affiliate’s performance and/or breach of this Agreement.
The relationship of the parties is that of independent contractors, and nothing contained in this Agreement will be construed to give the other party the power to direct or control the day-to-day activities of the other party or its employees. No amendment or modification hereof will be valid or binding unless made in writing and signed by the duly authorized representatives of both parties. If any provision or provisions of this Agreement is held to be unenforceable, this Agreement will continue in full force and effect without said provision and will be interpreted to reflect the original intent of the parties. This Agreement will be governed by the laws of the State of California, without regard to its conflict of laws principles.
The parties consent to the personal and exclusive jurisdiction of courts located in San Francisco, California. Waiver by either party of a breach of any provision of this Agreement or the failure by either party to exercise any right hereunder will not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any other right. The
Agreement and all rights and obligations hereunder are not assignable or transferable by Affiliate and any attempt to do so shall be void. Affiliate acknowledges that it has not been induced to enter into this Agreement by any representation or warranty not set forth in this Agreement. This Agreement constitutes the entire agreement and understanding of the
parties and terminates and supersedes any and all prior agreements, arrangements and understandings, both oral and written, express or implied, between the parties hereto concerning the subject matter of this Agreement. Any notice required or permitted to be given by either party under this Agreement shall be in writing and shall be personally delivered
or sent by a reputable overnight mail service (e.g., Federal Express), or by prepaid first class mail (certified or registered), or email if permitted below.
Notices to GameForm shall be sent to GameForm Inc., 112 Cordova Way Apt. #1 Concord, CA 94519, and notices to Affiliate shall be sent to the name and physical address provided on the account page of Affiliate’s profile or to the email address provided on the Affiliate’s account page.