END USER LICENSE AGREEMENT
YOU SHOULD CAREFULLY READ THE FOLLOWING END USER LICENSE AGREEMENT BEFORE INSTALLING THIS SOFTWARE PROGRAM. BY INSTALLING, COPYING, OR OTHERWISE USING THE GAME, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, PROMPTLY CONTACT YOUR PLACE OF PURCHASE REGARDING ITS RETURN POLICY FOR THE SOFTWARE PRODUCT.
Grant of a Limited Use License.
a. All title, ownership rights and intellectual property rights in and to the Game and all copies thereof (including, but not limited to, any titles, computer code, themes, objects, characters, character names, stories, dialog, catch phrases, locations, concepts, artwork, character inventories, structural or landscape designs, animations, sounds, musical compositions, audio-visual effects, storylines, character likenesses, methods of operation, moral rights, any related documentation, and "applets" incorporated into the Game) are owned or licensed by Licensor. The Game is protected by the copyright laws of the United States, international copyright treaties and conventions, and other laws. All rights are reserved. The Game may contain certain licensed materials, and the licensors of those materials may enforce their rights in the event of any violation of this License Agreement.
b. You may not transfer ownership of the Game, any parts thereof, nor any of your rights and obligations under the License Agreement, to another.
c. Release. You hereby release and covenant not to hold liable Little Orbit or its affiliates, or any of their licensees, assigns or successors, for any and all damages, liabilities, causes of action, judgments or claims (a) pertaining to any intellectual property you assert to have been developed by you or any third party that interacts with, uses, or relates to the Game; and (b) which otherwise may arise in connection with your use of, reliance on, or reference to the Game. Little Orbit retains the Intellectual Property Rights in and to the Game and any derivative works thereto created by or for any other person or entity.
Responsibilities of End User
a. Subject to the Grant of License hereinabove, you may not, in whole or in part, copy, photocopy, reproduce, translate, reverse engineer, derive source code, modify, disassemble, decompile, or create derivative works based on the Game, or remove any proprietary notices or labels on the Game. Failure to comply with the restrictions and limitations contained in this Section 4 shall result in the immediate, automatic termination of the license granted hereunder and may subject you to civil and/or criminal liability. Notwithstanding the foregoing, you may make one (1) copy of the Game Client and the Manuals for archival purposes only in accordance with Section 117 of the United States Copyright Act.
b. You agree that you shall not, under any circumstances:
sell, grant a security interest in or transfer reproductions of the Game to other parties in any way not expressly authorized herein, nor shall you rent, lease or sublicense the Game to others;
exploit the Game or any of its parts, including, but not limited to, the Game Client, for any commercial purpose;
host, provide or develop matchmaking services for the Game or intercept, emulate or redirect the communication protocols used by Licensor in any way, including, without limitation, through protocol emulation, tunneling, packet sniffing, modifying or adding components to the Game, use of a utility program or any other techniques now known or hereafter developed, for any purpose, including, but not limited to, unauthorized network play over the Internet, network play utilizing commercial or non-commercial gaming networks or as part of content aggregation networks; or
create or maintain, under any circumstance, any unauthorized connections to the Game or the Service. All connections to the Game and/or the Service, whether created by the Game Client or by other tools and utilities, may only be made through methods and means expressly approved by Licensor. Under no circumstances may you connect, or create tools that allow you or others to connect, to the Game's proprietary interface or interfaces other than those expressly provided by Licensor for public use.
Export Restrictions and Controls.
You acknowledge that the Game may be subject to international rules that govern the export of software. You agree to comply with all applicable international and national laws that apply to the Game as well as end-user, end-use and destination restrictions issued by national governments. You will cooperate with Little Orbit as necessary to ensure compliance with the laws and regulations of the United States and all other relevant countries, relating to exports and re-exports. The Game may not be re-exported, downloaded or otherwise exported into (or to a national or resident of) any country to which the U.S. has embargoed goods, or to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders. By installing the Game, you are agreeing to the foregoing, and you are representing and warranting that you are not located in, under the control of, or a national or resident of any such country or on any such list.
Patches and Updates.
Licensor may deploy or provide patches, updates and modifications to the Game that must be installed for the user to continue to play the Game. You consent to Licensor updating the Game remotely, including, without limitation, the Game Client residing on your machine, without advance or other notice to you, and you hereby grant to Licensor your consent to deploy and apply such patches, updates and modifications to the Game by push, pull, or any other technology now known or hereinafter developed.
Duration of the "On-line" Component of the Game.
You agree that Little Orbit may collect certain information transmitted by your web browser, client software, or your personal computer, including without limitation certain geographic information or information regarding your computer (capabilities, game data processing, etc.). You agree that Little Orbit may use this information to generate aggregate statistics about its user community and that it may provide that information to advertisers and/or partners. You also agree that Little Orbit can use this information against you or any third party for security purposes, system integrity (the prevention of hacking, cheating, etc.), or enforcement purposes.
To the fullest extent permitted under applicable law, Licensor expressly disclaims any warranty for the Game, including the Game Client and Manual(s). THE GAME, GAME CLIENT AND MANUAL(S) ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF CONDITION, , USE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, OR NONINFRINGEMENT. The entire risk arising out of use or performance of the Game, Game Client and Manual(s) remains with the user. THE LIMITATION OF LIABILITY BELOW SETS FORTH YOUR SOLE AND EXCLUSIVE REMEDY FOR THE EXPRESS WARRANTY SET FORTH IN THIS SECTION. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY FOR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE GAME IS TO DEINSTALL AND CEASE USE OF SUCH GAME.
Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE, OUR LICENSORS, OUR AFFILIATES OR OUR SUPPLIERS, AND OUR AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY LOST PROFITS OR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (HOWEVER ARISING, INCLUDING NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THE POSSESSION, USE, OR MALFUNCTION OF THE SOFTWARE, YOUR ACCOUNT, THE GAME, OR THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, DAMAGE TO PROPERTY AND-TO THE EXTENT PERMITTED BY APPLICABLE LAW-DAMAGES FOR PERSONAL INJURY, EVEN IF WE, OUR LICENSORS AND EACH OF OUR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS. THE LIABILITY OF LITTLE ORBIT, OUR LICENSORS OR ANY OF OUR OR THEIR RESPECTIVE PARENT OR AFFILIATED COMPANIES TO YOU OR ANY THIRD PARTIES IS LIMITED TO $100. YOU AGREE TO WAIVE ANY RIGHT TO EQUITABLE RELIEF INCLUDING, WITHOUT LIMITATION, INJUNCTIVE RELIEF AGAINST LITTLE ORBIT, ITS LICENSORS, THEIR PARENTS OR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS TO ENFORCE THE TERMS HEREOF; HOWEVER, THE FOREGOING SHALL NOT PRECLUDE LITTLE ORBIT AND/OR ITS LICENSORS FROM SEEKING ANY INJUNCTIVE RELIEF. Some jurisdictions do not allow the foregoing limitations of liability, so they may not apply to you.
You hereby agree that Licensor would be irreparably damaged if the terms of this License Agreement were not specifically enforced, and therefore you agree that Licensor shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this License Agreement, in addition to such other remedies as Licensor may otherwise have available to it under applicable laws.
Changes to the Agreement.
Little Orbit reserves the right, at its sole discretion, to change, modify, add to, supplement or delete any of the terms and conditions of this License Agreement when Little Orbit upgrades the Game Client, effective upon prior notice as follows: Little Orbit will post notification of any such changes to this License Agreement on the Game website and will post the revised version of this License Agreement in this location, and may provide such other notice as by postal mail, email or pop-up screen. If any future changes to this License Agreement are unacceptable to you or cause you to no longer be in compliance with this License Agreement, you may terminate this License Agreement in accordance with Section 5 herein. Your installation and use of any updated or modifications to the Game or your continued use of the Game following notice of changes to this Agreement as described above will mean you accept any and all such changes. Little Orbit MAY CHANGE, MODIFY, SUSPEND, OR DISCONTINUE ANY ASPECT OF THE GAME AT ANY TIME. Little Orbit may also impose limits on certain features or restrict your access to parts or all of the Game without notice to you or liability licensor. You agree that you have no interest, monetary or otherwise, in any feature or content contained in the Game.
If you are residing in a jurisdiction which restricts the use of internet-based applications according to age, or which restricts the ability to enter into agreements such as this agreement according to age and you are under such a jurisdiction and under such age limit, you may not enter into this Agreement and download, install or use the Game.
Relationship Between the Parties.
The relationship between you and Little Orbit is that of licensee/licensor. Neither party will represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other party, nor to represent the other party as agent, employee, franchisee, or in any other capacity.
Representations and Warranties.
You represent and warrant that all information provided by you is true and accurate and complete, and that you are authorized to enter into this Agreement and comply with its terms. Furthermore, You represent and warrant that you will at any and all times meet with your obligations hereunder, as well as any and all laws, regulations and policies that may apply to the use of the Game.
Resolution of Disputes
In order to expedite and control the cost of disputes, you and Little Orbit agree that any legal or equitable claim relating to this Agreement (referred to as "Claim") will be resolved as follows:
a. Informal Resolution.
You and Little Orbit agree that we will first try to resolve any Claim informally. Accordingly, neither of us may start a formal proceeding (except for Claims involving any violation of the federal trademark or copyright laws, or for injunctive relief) for at least 30 days after one of us notifies the other of a Claim in writing. Little Orbit will send its notice to your billing address, with a copy via email to your email address.
b. Formal Resolution - US and International Residents
(1) Agreement to Arbitrate.
If we cannot resolve a Claim informally, we agree that any and all Claims either of us asserts shall be resolved solely through binding arbitration, which to the fullest extent under applicable law shall be final non-appealable. The arbitration will be conducted under the rules of the Judicial Arbitration and Mediation Service ("JAMS") that are in effect at the time the arbitration is initiated, including the rules for the exchange of non-privileged and relevant information, and under the rules set forth in this Agreement. If there is a conflict between JAMS rules and the rules set forth in this Agreement, the rules set forth in this Agreement will govern. This arbitration will be governed under the JAMS Streamlined arbitration rules in force at the time the arbitration commences. Other fees will be paid in accordance with JAMS rules. The arbitration will be held at a JAMS dispute resolution center in Orange County, California unless you and Little Orbit both agree to another location. Forms and other information on filing such a Claim can be found at www.jamsadr.com.
BY AGREEING TO ARBITRATE AS SET FORTH HEREIN, YOU UNDERSTAND THAT WE ARE BOTH WAIVING OUR RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
(2) Special Rules.
You and Little Orbit agree that the type of arbitration in which we both agree to participate is between Little Orbit and you as an individual. YOU AND Little Orbit THAT NEITHER OF US WILL UTILIZE OR ATTEMPT TO UTILIZE CLASS ACTION ARBITRATION PROCEDURES IN ANY ARBITRATION.
c. Formal Resolution - Jurisdiction - and Jurisdiction.
Both parties submit to personal jurisdiction in California and further agree that any Claim shall be exclusively brought in under the JAMS rules in the County of Orange, State of California. Parties agree that the laws of the State of California shall govern the resolution of any Claim arising out of this agreement.
In the event that any provision of this Terms of Service shall be held by an arbitrator, court, or other tribunal of competent jurisdiction to be unenforceable, such provision will be enforced to the maximum extent permissible, and the remaining portions of this License Agreement shall remain in full force and effect.
In particular in regard to Section 16(b), you and Little Orbit agree that if Section 16(b)(1) is found to be unenforceable by a court of competent jurisdiction, it shall be severed from this Agreement and - in that event -- you and Little Orbit agree to submit to personal jurisdiction in California and agree that any Claim shall be exclusively brought in the appropriate state or federal court in the County of Orange, State of California. You and Little Orbit also agree that if Section 16(b)(2) is found to be unenforceable by a court of competent jurisdiction, then - regardless of the enforceability of Section 16(b)(1) -- any class action Claim shall be exclusively brought in the appropriate state or federal court in the County of Orange, State of California and you agree to submit to personal jurisdiction in California.
I hereby acknowledge that I have read and understand the foregoing License Agreement and agree that the action of installing the Game Client is an acknowledgment of my agreement to be bound by the terms and conditions of the License Agreement contained herein.