1. Introduction and Eligibility
- Binding Agreement. These Terms constitute a binding agreement between you, a User (as defined below), and Headlight Corp, Inc. (“Midgame,” “we,” “us”). “User” means a visitor to the Service. You accept these Terms each time you access the Service. If you do not accept these Terms, then you must not use the Service.
- Revisions to Terms. We may revise these Terms at any time by Posting (as defined below) an updated version. Revisions to the Terms are effective upon Posting. The Terms will be identified as of the most recent date of revision. You should visit this page periodically to review the most current Terms. Your continued use of the Service after a change to these Terms constitutes your binding acceptance of these Terms. Notwithstanding the preceding sentences of this Section 1.b, no revisions to these Terms will apply to any dispute between you and us that arose prior to the date of such revision.
- Children. No part of the Service is directed to persons under the age of 13. IF YOU ARE UNDER 13 YEARS OF AGE, YOU MUST NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER. By using the Service, you represent and warrant you are at least 18 years of age. If you are under 18 years of age, then you affirm that you possess the legal consent of your parent or guardian to access and use the Service.d. The terms “Post” and “Posting” as used in these Terms will mean the act of submitting, uploading, publishing, displaying, or similar action on the Service, either by us, you, or other Users of the Service.
2. The Service
- The “Service” means the website located at www.Midgame.gg and any associated software, applications, and Internet services under our control, whether partial or otherwise, used in connection with providing the services provided by us. The Service provides an online platform for you to capture and analyze of in-game communication (“Team Comms”). The Service will likely change over time and we reserve the right to make any changes to the Service in our sole discretion. You agree to these Terms in consideration of your use of the Service and other good and valuable consideration, the receipt and sufficiency of which you hereby acknowledge.
- Third-Party Services. The Service may link to websites and other services owned by third parties (“Third Party Sites”) to facilitate its provision of services to you, including but not limited to Discord and other gaming and communication platforms. If you use these links, then you will leave the Service. Some of these Third Party Sites may use Midgame Content (defined below) under a license from us. We are not responsible for these Third Party Sites, whether or not we are affiliated with such Third Party Sites. Through our use, we do not endorse the organizations sponsoring such Third Party Sites or their products or services. You agree we are not responsible or liable for any loss or damage of any sort incurred as a result of any such dealings you may have on or through a Third Party Site or as a result of the presence of any third-party advertising on the Service.
3. Financial Matters
The Service is currently offered to you for free. In the future, however, we may charge you a fee to Post content on the Service. Before doing so, we will update these Terms and provide you with advance notice of any charges and applicable payment terms.
4. Account Creation and Your Account
- To use some parts of the Service, such as recording Team Comms, you must create an account by providing a valid email address, username, password and other information as prompted by the registration form or by signing in through a third-party account that connects to the Service, such as your Discord account (“Third-Party Account”).
- Registration Information. When registering, you are prohibited from selecting or using as a username:
- a name of another person with the intent to impersonate that person;
- a name that is subject to any rights of a person other than you without appropriate authorization; or
- a name that is otherwise offensive, vulgar or obscene.
- You represent and warrant that the information you provide to us upon registration and at all other times will be true, accurate, current, and complete. We reserve the right to reject any username or to terminate your username and give such username to another user of the Service in our sole discretion, and without any liability to you. We also reserve the right to create verified User accounts and to require additional information from you in order to provide you with a verified User account. You also represent and warrant that you will ensure that this information is kept accurate and up-to-date at all times.
- Your Log-In Credentials. You are responsible for maintaining the confidentiality of your log-in credentials and are fully responsible for all activities that occur through the use of your credentials. You agree to notify us immediately at email@example.com if you believe the confidentiality of your log-in credentials has been compromised or if you suspect unauthorized use of your account. You agree that we will not be liable for any loss or damage arising from unauthorized use of your credentials.
- Access Through a Third-Party Account. If you access the Service through a Third-Party Account as part of the functionality of the Service, you may link your Account with Third-Party Account, by allowing Midgame to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Midgame and/or grant Midgame access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Midgame to pay any fees or making Midgame subject to any usage limitations imposed by such third-party service providers. By granting Midgame access to any Third-Party Accounts, you understand that Midgame may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through Midgame Properties that you have provided to and stored in your Third-Party Account (“Third-Party Account Content”) so that it is available on and through the Service via your Account. Please note that if a Third-Party Account or associated service becomes unavailable or Midgame’s access to such Third-Party Account is terminated by the third-party service provider, then Third-Party Account Content will no longer be available on and through Midgame Properties. You have the ability to disable the connection between your Account and your Third-Party Accounts at any time by accessing the “Settings” section of the Service.
- PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND MIDGAME DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS.
- We make no effort to review any Third-Party Account Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Midgame is not responsible for any Third-Party Account Content.
- You agree to receive email from us at the email address you provided to us for customer service-related purposes.
- Electronic Notices. By using the Service or providing Personal Information to us, you agree that we may communicate with you electronically regarding security, privacy, and administrative issues relating to your use of the Service. If we learn of a security system’s breach, then we may attempt to notify you electronically by posting a notice on the Service or sending an email to you. You may have a legal right to receive this notice in writing. To receive free written notice of a security breach (or to withdraw your consent from receiving electronic notice), please write to us at firstname.lastname@example.org.
6. Your License to Us and Other Users
- Definitions. Edit means to access, download, edit, stream, use, perform, transmit, display, reproduce, modify, adapt, prepare derivative works of, Team Comms solely through the Service using the tools made available by the Service. Collaborator means a User who is invited to review, comment, and collaborate on Team Comms by such Team Comms’s Creator. Creator means a User who Posts Team Comms that has not yet been Edited to the Service. Editing Setting is a setting you apply to Team Comms that dictates who may Edit such Team Comms. You may select certain Users to Edit your Team Comms or you may make your Team Comms public so that any Users can Edit your Team Comms. Edited Team Comms means Team Comms that has been Edited. Use means to reproduce, distribute, publicly display, transmit, synchronize, communicate to the public, make available, publicly perform (including by means of digital audio transmissions) on a through-to-the audience basis, create derivative works from, transmit to Third Party Sites, and otherwise use and exploit. User Content means any material that you Post to the Service, including, without limitation, Team Comms and Edited Team Comms, literary works, photographs, audiovisual works, artwork and Comments (as defined in Section 9).
- We Claim No Ownership. You or a third-party licensor, as appropriate, retain all intellectual property rights to the User Content you Post to the Service. We do not acquire ownership to any User Content Posted to the Service. This also means that you are responsible for protecting any of your rights in your User Content, and we need not enforce a violation of these Terms by another User as it pertains to your User Content, although we reserve the right to terminate the rights of such Users to use the Service.
- User Content. You represent and warrant that any User Content you Post to the Service is truthful, accurate, not misleading, and offered in good faith, and that you have all rights, licenses, permissions, and authorizations necessary to Post the User Content to the Service and grant the rights to the User Content set forth in these Terms. You acknowledge and agree that, subject to your Editing Settings, your User Content is non-confidential and non-proprietary, except as otherwise agreed upon between you and us, and we may use your User Content for any purpose or disclose your User Content to any third party with or without notice to you and without liability to us.
- License Grant From You to Us. Subject to your Editing Settings, you hereby grant us an unrestricted, assignable, sublicenseable, revocable, royalty-free license throughout the universe to Use all User Content you Post to the Service, through any media and formats now known or hereafter developed, for the purposes of
- advertising, marketing, and promoting the Midgame and the Service;
- sharing information about your User Content with third parties and Third Party Sites, including Users; and
- Using your User Content on and through the Service as authorized in these Terms, including, but not limited to, for the purpose of Editing.
- You also grant us a royalty-free license to Use your name, image, voice, and likeness as made available by you or on your behalf through the Service in conjunction with advertising, marketing, or promoting you, your User Content, the Midgame, or the Service. For the avoidance of doubt, the rights granted in the preceding sentences of this Section 6.d include, but are not limited to, the right to reproduce sound recordings (and make mechanical reproductions of the musical works embodied in such sound recordings), and publicly perform sound recordings (and the musical works embodied therein), all on a royalty-free basis. This means that you are granting us the right to Use your User Content without the obligation to pay royalties to any third party, including, but not limited to, a sound recording copyright owner (e.g., a record label), a musical work copyright owner (e.g., a music publisher), a PRO, a sound recording PRO (e.g., SoundExchange), any unions or guilds, and engineers, producers or other royalty participants involved in the creation of User Content. Notwithstanding anything to the contrary in this Section 6.d, if your User Content is Team Comms, then we will exercise our rights under this Section 6.d in a manner consistent with the Editing Settings you have chosen for such Team Comms.
- For example, if you’ve indicated that Team Comms is Private, then we will exercise the rights to such Team Comms under this Section 6.d in a manner consistent with your intent to keep it private (e.g., not use such Team Comms to advertise, market, and promote the Midgame and the Service for so long as the Team Comms is set to Private).
- You Must Have Rights to the Content You Post. You must not Post any User Content to the Service if you are not the copyright owner of or are not fully authorized to grant rights in all of the elements of the User Content you intend to Post to the Service. In addition, if you only own the rights in and to a sound recording, but not to the underlying musical works embodied in such sound recordings, then you must not Post such sound recordings to the Service unless you have all necessary rights, authorizations, and permissions with respect to such embedded musical works that grant you sufficient rights to sublicense us pursuant to these Terms.
- Rights and License as a Creator. If you are a Creator, then you retain ownership of your Team Comms.
7. Our Content Ownership and Use
- The contents of the Service include: designs, text, graphics, images, video, information, logos, button icons, software, computer code, and our content (collectively, “Midgame Content”). All Midgame Content and the compilation (meaning the collection, arrangement, and assembly) of all Midgame Content are the property of us or our licensors and are protected under copyright, trademark, and other laws.
- License to You. We authorize you, subject to these Terms, to access and use the Service and the Midgame Content, and to install any Apps, solely for the use of the services we provide, at our discretion. Any other use is expressly prohibited. This license is revocable at any time without notice and with or without cause. Unauthorized use of the Midgame Content may violate copyright, trademark, and applicable communications regulations and statutes and is strictly prohibited. You must preserve all copyright, trademarks, service marks, and other proprietary notices contained in the original Midgame Content on any copy you make of the Midgame Content. You may not copy, reproduce, republish, upload, post, transmit, or distribute material made available on or through the Service in any way without written permission of the copyright owner, excluding only Team Comms, which are governed by the provisions in Section 6. You may not download or copy materials that we do not make expressly available for download without our prior written permission. Modification of materials obtained from the Service, including, but not limited to, User Content, for any other purpose, including, without limitation, any commercial purpose, is a violation of our copyrights and other proprietary rights or those of our licensors, unless you have obtained express written authorization to the contrary.
- No Implied Rights. There are no implied licenses granted in these Terms. All rights not granted herein are expressly reserved by us, our licensors, or the copyright owner of any User Content.
- Midgame Marks. Midgame, the Midgame logo, and other Midgame logos and product and service names are or may be our trademarks (the “Midgame Marks”). Without our prior written permission, and except as solely enabled by any link we provide, you agree not to display or use in any manner the Midgame Marks.
8. Community We provide areas for Users to comment (such comments, “Comments”) on User Content;
All comments are subject to the license grant and restrictions set forth in Section 6 (excluding those provisions applicability only to Team Comms). Posting Comments is a privilege, not a right, and we may terminate such privileges of any User at any time and for any reason, without liability to such User. Harmful, obscene, or offensive content is not welcome and we reserve the right to monitor, edit, pre-screen, and remove any Comments, although nothing herein requires us to monitor, edit or remove any Comments. If you find objectionable content in a Comment, then please notify us by sending an e-mail to email@example.com. You should exercise discretion, good sense, and sound judgment when posting a Comment. Once a Comment is posted, it may live in perpetuity online, and Comments posted today could be highly embarrassing or damaging to your credibility or reputation in the future. You are solely responsible for the content of any Comment. You must not post any material in a Comment that you consider to be confidential or proprietary. We do not endorse, support, represent or guarantee the truthfulness, accuracy, or reliability of any Comments posted to the Service. The opinions expressed in any Comment are to be attributed solely to the person or entity that posted such message. Any reliance you place on material or information set forth in a Comment will be at your own risk.
10. Intellectual Property Policy
- We respect the intellectual property of others and takes the protection of copyrights and all other intellectual property very seriously, and we ask our Users to do the same. Infringing activity will not be tolerated on or through the Service.
- Our intellectual property policy is to
- remove material that we believe in good faith, upon notice from an intellectual property owner or their agent, is infringing the intellectual property of a third party by being made available through the Service, and
- remove any User Content posted to the Service by “repeat infringers.” We consider a “repeat infringer” to be any User that has uploaded User Content to the Service and for whom we have received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512(c) with respect to such User Content. We have discretion, however, to terminate the account of any User after receipt of a single notification of claimed infringement or upon our own determination.
- The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for intellectual property owners who believe that material appearing on the Internet infringes their rights under U.S. law. If you believe in good faith that materials posted on the Service infringe your intellectual property rights, then you (or your agent) may send us a “Notification of Claimed Infringement” requesting that the material be removed, or access to it blocked. The notice must include the following information:
- A physical or electronic signature of a person authorized to act on behalf of the owner of the works that have been allegedly infringed;
- Identification of the copyrighted work alleged to have been infringed (or if multiple copyrighted works located on the Service are covered by a single notification, a representative list of such works);
- Identification of the specific material alleged to be infringing or the subject of infringing activity, and information reasonably sufficient to allow us to locate the material on the Service;
- Your name, address, telephone number, and email address (if available);
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- 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 an exclusive right that is allegedly infringed. If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, then the DMCA permits you to send us a counter-notice.
- Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see http://www.loc.gov/copyright/ for details. Notices and counter-notices with respect to the Service should be sent firstname.lastname@example.org.
- Counter Notification. If you receive a notification from us that User Content you made available on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide us with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to our Designated Agent through one of the methods identified in Section 10.d , and include substantially the following information
- A physical or electronic signature of the subscriber;
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
- The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which we may be found, and that the subscriber will accept service of process from the person who provided notification under Section 10.c above or an agent of such person. A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
- False Notifications of Claimed Infringement or Counter Notifications.
- The Copyright Act provides that: any person who knowingly materially misrepresents under Section 512 of the Copyright Act (17 U.S.C. § 512) that material or activity is infringing, or
- that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it. 17 U.S.C. § 512(f). We reserve the right to seek damages from any party that submits a notification of claimed infringement or counter notification in violation of the law. Consult your legal admidgame and see 17 U.S.C. § 512 before filing a notice or counter-notice as there are penalties for false claims under the DMCA. The foregoing is not intended to provide you with legal advice.
11. Suggestions and Submissions.
We appreciate hearing from our Users and welcome your comments regarding the Service. Please be advised, however, that if you send us creative ideas, suggestions, inventions, or materials (“Creative Ideas”), then we will:
- have a perpetual, irrevocable, royalty free, fully paid up, assignable, sublicensable, non-exclusive right in and to any Creative Ideas and will own exclusive rights to any derivative works based upon your Creative Ideas created by or for us;
- not be subject to any obligation of confidentiality and will not be liable for any use or disclosure of any Creative Ideas; and
- be entitled to unrestricted use of the Creative Ideas for any purpose whatsoever, commercial or otherwise, without compensation to you or any other person.
12. User Content Disclaimers, Limitations, and Prohibitions
- We do not represent or guarantee the truthfulness, accuracy, or reliability of User Content. You accept that any reliance on material posted by other Users or third-party service providers will be at your own risk. By using the Service you accept the risk that you might be exposed to content that is objectionable or otherwise inappropriate.
- You are solely responsible for your User Content on the Service. We do not endorse any, nor are we responsible for, User Content on the Service. You assume all risks associated with your User Content, including anyone’s reliance on its quality, accuracy, or reliability. You may expose yourself to liability if, for example, your User Content contains material that is false, intentionally misleading, or defamatory; violates third-party rights; or contains material that is unlawful or advocates the violation of any law or regulation.
- You agree to use the Service only for its intended purpose. You must use the Service in compliance with all privacy, data protection, intellectual property, and other applicable laws. The following uses of the Service are prohibited. You may not:
- attempt to interfere with, harm, reverse engineer, steal from, or gain unauthorized access to the Service, user accounts, or the technology and equipment supporting the Service;
- frame or link to the Service without permission;
- use data mining, robots, or other data gathering devices on or through the Service;
- post incomplete, false, or misleading information, impersonate another person, or misrepresent your affiliation with a person or entity;
- disclose personal information about another person or harass, abuse, or post objectionable material;
- sell, transfer, or assign any of your rights to use the Service to a third party without our express written consent;
- Post advertising or marketing links or content, except as specifically allowed by these Terms;
- use the Service after your account has been terminated, without our consent;
- use the Service in an illegal way or to commit an illegal act in relation to the Service or that otherwise results in fines, penalties, and other liability to us or others;
- access the Service from a jurisdiction where it is illegal or unauthorized;
- reproduce any part of the Service;
- Post any information or content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party, including by incorporating any such material in User Content;
- undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of any aspect of the Service or any part thereof, or attempt to do any of the foregoing, except as permitted by these Terms, the authorized features of the Service, or by law, or otherwise attempt to use or access any portion of the Service other than as we intend;
- solicit personal information from anyone under the age of 18;
- promote any criminal activity on the Service; or
- assist or permit any persons in engaging in any of the activities described above.
13. Consequences of Violating These Terms
- We reserve the right to suspend or terminate your account and prevent access to the Service for any reason, at our discretion. We reserve the right to refuse to provide the Service to you in the future.
- We may review and remove any User Content at any time for any reason, including if you engage in activity which, in our sole judgment: violates these Terms; violates applicable laws, rules, or regulations; is abusive, disruptive, offensive or illegal; or violates the rights of, or harms or threatens the safety of, Users of the Service.
- You are responsible for any claims, fees, fines, penalties, and other liability we or others incur caused by or arising out of your breach of these Terms and your use of the Service.
- You are solely responsible for maintaining backup copies of any User Content you upload to the Service. We are not responsible for the deletion or unavailability of any User Content. This includes if we terminate your right to access or use the Service for a violation of these Terms. We will have no liability to you for denying you access to any User Content you Posted to the Service in the event of a breach of these Terms.
14. Our Liability
- Changes to the Service. We may change, suspend, or discontinue any aspect of the Service at any time, including hours of operation or availability of the Service or any feature, without notice or liability.
- User Disputes. We are not responsible for any disputes or disagreements between you and any third party you interact with using the Service, including Users. You assume all risk associated with dealing with third parties. You agree to resolve disputes directly with the other party. You release us of all claims, demands, and damages in disputes among Users of the Service. You also agree not to involve us in such disputes. Use caution and common sense when using the Service and dealing with other Users.
- Content Accuracy. We make no representations about accuracy, reliability, completeness, or timeliness of any contents of the Service. Similarly, we make no representations about accuracy, reliability, completeness, or timeliness of any data from a third-party service provider or the quality or nature of third-party products or services obtained through the Service. Use the Service at your own risk.
- Third-Party Sites. You are responsible for evaluating whether you want to access or use any Third Party Site. We are not responsible for and do not endorse any features, content, advertising, products, or other materials on any Third Party Site. You assume all risk and we disclaim all liability arising from your use of them. e. We make no promises and disclaim all liability of specific results from the use of the Service.
- Released Parties Defined. “Released Parties” include us and our affiliates, officers, employees, agents, service providers, partners, and licensors.
- DISCLAIMER OF WARRANTIES YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
- YOUR USE OF THE SERVICE, INCLUDING ANY USER CONTENT, IS AT YOUR SOLE RISK, AND THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND THE RELEASED PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES AS TO PRODUCTS OR SERVICES OFFERED BY BUSINESSES LISTED ON THE SERVICE, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT;
- THE RELEASED PARTIES MAKE NO WARRANTY THAT
- THE SERVICE WILL MEET YOUR REQUIREMENTS,
- THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE,
- THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE,
- THE QUALITY OF ANY GOODS OR SERVICE AVAILABLE ON THE SERVICE WILL MEET YOUR EXPECTATIONS AND, AND
- ANY ERRORS IN THE SERVICE WILL BE CORRECTED; AND
- ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL.
- LIMITATION OF LIABILITY AND INDEMNIFICATION YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE RELEASED PARTIES WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM:
- THE USE OR THE INABILITY TO USE THE SERVICE;
- THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH, FROM, OR AS A RESULT OF THE SERVICE;
- UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA;
- STATEMENTS OR CONDUCT OF ANY USER OR THIRD PARTY ON THE SERVICE;
- YOUR RELIANCE ON CONTENT MADE AVAILABLE BY US; OR
- ANY OTHER MATTER RELATING TO THE SERVICE, INCLUDING USER CONTENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS IN THIS PARAGRAPH MAY NOT APPLY TO YOU. IN SUCH CASES, YOU AGREE THAT BECAUSE SUCH WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND COMPANY, AND ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND COMPANY IN LIGHT OF OUR OFFERING MANY OF THE FUNCTIONALITIES OF THE SERVICE FOR FREE, OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU UNDERSTAND AND AGREE THAT WE WOULD NOT BE ABLE TO OFFER THE SERVICE TO YOU ON AN ECONOMICALLY FEASIBLE BASIS WITHOUT THESE LIMITATIONS. TO THE FULLEST EXTENT POSSIBLE BY LAW, OUR MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE SERVICE OR YOUR USE OF CONTENT, INCLUDING ANY USER CONTENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED THE GREATER OF $100 OR THE AMOUNTS PAID BY YOU TO COMPANY, IF ANY, DURING THE SIX-MONTH PERIOD PRIOR TO THE DATE OF YOUR CLAIM AGAINST US.
- You agree to defend, indemnify, and hold harmless the Released Parties from and against any claims, actions, or demands, including, without limitation, reasonable legal and accounting fees, alleging or resulting from
- your use of or reliance on any third-party content or User Content,
- your use of or reliance on any Midgame Content, or
- your breach of these Terms.
- Notwithstanding the preceding sentence, we reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify the Released Parties if we, in our reasonable discretion, conclude that you are not adequately protecting the Released Parties’ interests or are incapable of protecting our interests, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without our prior written consent. We will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it but if we are unable to communicate with you in a timely manner because of an inactive e-mail address, then your indemnification obligation will continue notwithstanding our inability to contact you in a timely manner.
15. Terms and Termination
- Term. These Terms, as amended, will be effective commencing with your first use or registration of the Service and will remain in full force and effect throughout your use of the Service, until such time as you terminate your account or we terminate your account, subject to the survival provision of these Terms.
- Termination by Us. We may terminate your use of the Service or any features or functionalities of the Service at any time and for any reason, with or without notice, for conduct violating these Terms or upon our sole determination. You hereby agree to our broad right of termination. You agree that if your use of the Service is terminated pursuant to these Terms, you will not attempt to use the Service under any name, real or assumed, and further agree that if you violate this restriction after being terminated, then you will indemnify and hold us harmless from any and all liability that we may incur therefor. Upon our termination of your use of the Service, we may delete any of your User Content available on or through the Service and terminate your access to your User Content if those materials remain on the Service, without any liability to you.
- Termination by You. You are free to terminate your use of the Service at any time; you can simply choose to stop visiting or using any aspect of the Service. If you wish to terminate your account on the Service, then you may do so by sending an e-mail to email@example.com or using any other account termination functionality that may be offered through the Service. For example, we may develop a functionality that permits you to click on a termination button on your Profile. If you terminate your account, then all of your User Content will be made inaccessible via the Service although copies of your User Content may remain stored on back-up storage media maintained by or for us. You hereby grant us a royalty free license to retain such back-up copies of your User Content on storage media maintained by or for us. If you stop using the Service but keep User Content on the Service, then these Terms will continue to apply in full force and effect for so long as such User Content is available on or through the Service.
16. General Terms
These Terms constitute the entire agreement between you and us concerning your use of the Service. Our failure to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, then you and us nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect. The section titles and annotations in these Terms are for convenience only and have no legal or contractual effect. The provisions of these Terms that are intended to survive the termination of these Terms by their nature will survive the termination of these Terms, including, but not limited to, Sections 6 (Your License to Us and Other Users), 7 (Our Content Ownership and Use), 10 (Intellectual Property Policy), 11 (Suggestions and Submissions), 12 (User Content Disclaimers, Limitations, and Prohibitions), 13 (Consequences of Violating these Terms), 14 (Our Liability), 15 (Term and Termination, 16 (General Terms), and 17 (Arbitration, Class Waiver, and Waiver of Jury Trial). 17. Arbitration, Class Waiver, and Waiver of Jury Trial.
- We are not a party to, has no involvement or interest in, make no representations or warranties as to, and have no responsibility or liability with respect to any communications, transactions, interactions, disputes or any relations whatsoever between you and any other User. All disputes between Users are subject to the provisions of Section 14.b. Disputes between a User and us are subject to this Section 17.
- Mandatory Arbitration. Please read this carefully. It affects your rights. YOU AND US AND EACH OF OUR RESPECTIVE SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS, AND PERMITTED ASSIGNS AGREE TO ARBITRATION (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT), AS THE EXCLUSIVE FORM OF DISPUTE RESOLUTION EXCEPT AS PROVIDED FOR BELOW, FOR ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SERVICE. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a jury or judge, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Please visit www.adr.org for more information about arbitration.
- Commencing Arbitration. A party who intends to seek arbitration must first send to the other, by certified mail, a written notice of intent to arbitrate (a “Notice”), or, in the absence of a mailing address you provide to Midgame, to you via any other method available to Midgame, including via e-mail. The Notice to Midgame should be addressed to: • (the “Arbitration Notice Address”). The Notice must
- describe the nature and basis of the claim or dispute; and
- set forth the specific relief sought (the “Demand”).
- If you and Midgame do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Midgame may commence an arbitration proceeding as set forth below or file a claim in small claims court. THE ARBITRATION WILL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (THE “Rules”), AS MODIFIED BY THIS AGREEMENT. The Rules and AAA forms are available online at www.adr.org or by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. If you are required to pay a filing fee to commence an arbitration against us, then we will promptly reimburse you for your confirmed payment of the filing fee upon our receipt of Notice at the Arbitration Notice Address that you have commenced arbitration along with a receipt evidencing payment of the filing fee, unless your Demand is equal to or greater than $1,000 or filed in bad faith, in which case you are solely responsible for the payment of the filing fee.
- Arbitration Proceeding. The arbitration will be conducted in the English language. A single independent and impartial arbitrator will be appointed pursuant to the Rules, as modified herein. You and Midgame agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties:
- the arbitration will be conducted by telephone, online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration;
- the arbitration will not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and
- any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- No Class Actions. YOU AND COMPANY AGREE THAT YOU AND COMPANY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISO IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS SECTION 17.b WILL BE NULL AND VOID.
- Decision of the Arbitrator. Barring extraordinary circumstances, the arbitrator will issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings will be closed to the public and confidential and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator will be in writing and will include a statement setting forth the reasons for the disposition of any claim. The arbitrator will apply the laws of the State of California in conducting the arbitration. You acknowledge that these Terms and your use of the Service evidence a transaction involving interstate commerce. The United States Federal Arbitration Act will govern the interpretation, enforcement, and proceedings pursuant to the Mandatory Arbitration clause in these Terms.
- Choices of Law; Choice of Forum. These Terms and your use of the Service will be governed by the substantive laws of the State of California without reference to its choice or conflicts of law principles. Only if the Mandatory Arbitration clause is deemed to be null and void, then all disputes arising between you and us under these Terms will be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco, California, and you and us hereby submit to the personal jurisdiction and venue of these courts.
- Equitable Relief. The foregoing provisions of this Dispute Resolution section do not apply to any claim in which we seek equitable relief of any kind. You acknowledge that, in the event of a breach of these Terms by us or any third party, the damage or harm, if any, caused to you will not entitle you to seek injunctive or other equitable relief against us, including with respect to any User Content, and your only remedy will be for monetary damages, subject to the limitations of liability set forth in these Terms.
- Claims. You and Midgame agree that, notwithstanding any other rights the party may have under law or equity, any cause of action arising out of or related to these Terms or the Service, excluding a claim for indemnification, must commence within one year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
- Improperly Filed Claims. All claims you bring against Midgame must be resolved in accordance with this Dispute Resolution section. All claims filed or brought contrary to this Dispute Resolution section will be considered improperly filed. Should you file a claim contrary to this Dispute Resolution section, we may recover attorneys’ fees and costs up to $5,000, provided that we have notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.