Terms of service
LIMITED SOFTWARE WARRANTY AND LICENSE AGREEMENT
YOUR USE OF THIS SOFTWARE IS SUBJECT TO THIS LIMITED SOFTWARE WARRANTY AND LICENSE AGREEMENT (THE “AGREEMENT”) AND THE TERMS SET FORTH BELOW. THE “SOFTWARE” INCLUDES ALL SOFTWARE INCLUDED WITH THIS AGREEMENT, THE ACCOMPANYING MANUAL(S), PACKAGING AND OTHER WRITTEN, ELECTRONIC OR ON-LINE MATERIALS OR DOCUMENTATION, AND ANY AND ALL COPIES OF SUCH SOFTWARE AND ITS MATERIALS. BY OPENING THE SOFTWARE, INSTALLING, AND/OR USING THE SOFTWARE AND ANY OTHER MATERIALS INCLUDED WITH THE SOFTWARE, YOU HEREBY ACCEPT THE TERMS OF THIS LICENSE WITH MUNDFISH LLC (COLLECTIVELY, “LICENSOR”). If You do not agree to the terms of this Agreement Do not install or use this SOFTWARE AND IF YOU HAVE ALREADY PAID FOR THE SOFTWARE, PLEASE RETURN IT TO THE PLACE OF PURCHASE FOR A REFUND.
LICENSE. Subject to this Agreement and its terms and conditions, LICENSOR hereby grants you the non-exclusive, non-transferable, limited right and license to use one copy of the Software for your personal, non-commercial use on a single home or portable console or computer. The Software is being licensed to you and you hereby acknowledge that no title or ownership in the Software is being transferred or assigned and this Agreement should not be construed as a sale or transfer of any rights in the Software. All rights not specifically granted under this Agreement are reserved by LICENSOR and, as applicable, its licensors.
OWNERSHIP. LICENSOR retains all right, title and interest to this Software, including, but not limited to, all copyrights, trademarks, trade secrets, trade names, proprietary rights, patents, titles, computer and software codes, audiovisual effects, themes, characters, character names, stories, dialog, settings, artwork, sounds effects, musical works, and moral rights. The Software is protected by United States copyright law and applicable copyright laws and treaties throughout the world. The Software may not be copied, modified, reproduced, distributed, publicly displayed or publicly performed in any manner or medium, in whole or in part, without the express prior written consent from LICENSOR. Any persons copying, modifying, reproducing, distributing, publicly displaying or publicly performing all or any portion of the Software in any manner or medium without such prior written consent of LICENSOR, will be willfully violating the copyright laws and may be subject to civil and criminal penalties. Be advised that copyright violations might be subject to penalties of up to $100,000 per violation. The Software contains certain licensed materials and LICENSOR’s licensors may protect their rights in the event of any violation of this Agreement.
You agree not to:
(a) Commercially exploit the Software;
(b) Distribute, lease, license, sell, rent or otherwise transfer or assign this Software, or any copies of this Software, without the express prior written consent of LICENSOR;
(c) Make copies of the Software or any part thereof, except for back up or archival purposes;
(d) Except as otherwise specifically provided by the Software or this Agreement, use or install the Software (or permit others to do same) on a network, for on-line use, or on more than one computer, computer terminal, console, or workstation at the same time;
(e) Copy the Software onto a hard drive or other storage device from the included DVD (although the Software may automatically copy a portion of itself onto your hard drive during installation in order to run more efficiently);
(f) Use or copy the Software at a computer gaming center or any other location-based site;
(g) Reverse engineer, decompile, disassemble or modify the Software, in whole or in part;
(h) Remove or modify any proprietary notices or labels contained on or within the Software; and/or
(i) Transport, export or re-export (directly or indirectly) into any country forbidden to receive such Software by any U.S. export laws or accompanying regulations or otherwise violate such laws or regulations, that may be amended from time to time.
GAME MODS, IF ANY. If LICENSOR makes available for the Software a separate downloadable installer, a level editor or other similar type tools, assets and other materials (in each case an “Editor Tool”) that permit you to construct or customize new game levels and other related game materials for personal use in connection with the Software (“Game Mods”), then you will be required to download from a LICENSOR website or otherwise gain access to via a LICENSOR website one or more Editor Tools through which you may create or develop Game Mods. To obtain a copy of or get access to any such Editor Tool, you will be required to agree to the terms of a separate EULA (the “Editor EULA”) governing your use of the Editor Tool and creation of Game Mods using such Editor Tool. If there is a conflict between the terms and conditions in any such Editor EULA and the terms and conditions of this Agreement, the terms in the Editor EULA will control over the conflicting terms in this Agreement but solely for purpose of the specific Editor Tool and not for any other purpose. Please review the terms in the Editor EULA carefully.
If you purchased a physical copy of the Software on tangible media, LICENSOR warrants for a period of ninety (90) days following original retail purchase of the Software (the “Warranty Period”), that the physical Software media is, and under normal use shall be, free from substantial errors or defects that will materially interfere with the operation of the Software as described in the documentation for the Software. This limited express warranty applies to the initial purchaser only.
EXCEPT AS STATED ABOVE, LICENSOR MAKES NO OTHER WARRANTY, REPRESENTATION, OR CONDITION, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE. ANY AND ALL OTHER EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS, OR CONDITIONS, STATUTORY OR OTHERWISE, ARE EXPRESSLY AND SPECIFICALLY DISCLAIMED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR NON-MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, CUSTOM, TRADE, QUIET ENJOYMENT, ACCURACY OF INFORMATIONAL CONTENT, OR SYSTEM INTEGRATION, OR ANY WARRANTIES ARISING UNDER ANY STATUTE, COURSE OF DEALING, OR OTHER LEGAL REQUIREMENT. LICENSOR does not warrant the error-free or uninterrupted operation of the Software. In addition, with respect to software that is enabled for use on or over the Internet, you acknowledge that LICENSOR is not responsible for the Internet or whether it should continue to exist in its present form or whether or not a government or governmental agency, either foreign or domestic, will control, regulate or disband the Internet. Use of the Internet is at your sole risk.
Some jurisdictions do not allow limitations on how long an implied or express warranty or condition lasts, so the above limitation may not apply to you. This limited express warranty gives you specific legal rights, and you may also have other rights which vary from jurisdiction to jurisdiction.
Some jurisdictions require additional warranties or minimum warranty periods that cannot be waived, disclaimed or otherwise varied by contract. If and to the extent such local laws are held to apply to this Agreement or the Software, the foregoing warranty and/or warranty period shall be deemed modified to the extent necessary to comply with the applicable requirements of law, while retaining to the maximum extent possible the effect, scope and economic benefit of the original warranty provided herein.
If you purchased a physical copy of the Software on tangible media and you believe you have found an error or defect that would constitute a breach of the above limited warranty during the Warranty Period, you may (i) visit http://mundfish.com/support to contact us; with a dated proof of purchase, your product number, a brief description of such error or defect, and the address to which we should return the media.
If there is a breach of the foregoing limited warranty, LICENSOR’s entire liability and your exclusive remedy for breach of this limited warranty shall be the replacement of the applicable disc or other media, within a reasonable period of time and without charge, with a new disc or media with the Software. Any replacement disc or media shall be warranted for the remainder of the original Warranty Period or thirty (30) days from receipt thereof, whichever is longer. This limited warranty shall not be applicable and shall be void if the defect or problem with the media is found to be the result of abuse, unreasonable use, mistreatment or neglect.
WARRANTY PROTECTION. Warranty protection is available only to you, the original purchaser. In the event of any questions in this regard, LICENSOR reserves the exclusive right to determine warranty eligibility and appropriate redress, if any.
VIRTUAL REALITY: HEALTH AND SAFETY PRECAUTIONS AND DISCLAIMERS
If the Software provides for virtual reality gameplay and/or the use of third party virtual reality headsets and/or related equipment, the following health and safety precautions and disclaimers apply.
Failing to review and adhere to the health and safety precautions set forth below and the precautions given by the manufacturer of your VR headset may cause damage to property, personal injury to you or others, or death.
As with all virtual reality games, please also carefully read and follow all health and safety precautions from your virtual reality headset manufacturer before use.
PLEASE READ THE FOLLOWING CAREFULLY BEFORE PLAYING
Please note that certain people are susceptible to various symptoms and conditions when playing a game with virtual reality headsets, including:
- epileptic seizures or loss of consciousness;
- altered vision;
- motion sickness, dizziness, disorientation or nausea; and/or
- repetitive motion injuries and eye strain.
Immediately stop playing if you do not feel well or if you experience any of the above symptoms.
In any event, we strongly recommend that you take reasonable breaks from gameplay every 10 to 15 minutes and that you do not play for excessive overall periods.
If you are pregnant or if you have any pre-existing medical condition, you should talk with a physician to obtain professional advice before playing the game.
You should not play the game under the influence of alcohol or drugs or while using prescription or non-prescription medication.
Always be aware of your surroundings when playing the game. When playing with a virtual reality headset or other headset it is best to remain seated if that mode is supported. Since the game is an immersive reality experience, you may not be able to fully see or hear your surroundings while playing. Whether or not you remain seated during gameplay, give yourself plenty of room and make sure the play area is clear of objects and people that could be bumped into during gameplay. Ensure you are in a safe environment and not near stairs, balconies, windows, walls, furniture, objects that could cause tripping hazards or other objects or people that may pose a danger to you or them or could be damaged or cause injury during gameplay. Sound volume for the game should be kept at a low enough level so that you can be aware of your surroundings while playing, and to avoid any damage to your hearing.
YOU HEREBY RELEASE LICENSOR, ITS AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS AND EMPLOYEES FROM ANY AND ALL LIABILITY IN CONNECTION WITH THE USE OF A VIRTUAL REALITY HEADSET, RELATED EQUIPMENT, OR THE SOFTWARE.
In no event shall LICENSOR be liable for any damage to property, injury, or death (or for direct, indirect, punitive, incidental, or consequential damages) arising out of the use or misuse of the Software or any virtual reality headset or related equipment, including, without limitation, arising out of or connected with interactions between you and other people or objects in or around the play area during gameplay. You understand that misuse of the Software includes (without limitation) violations of any instructions or any warnings set forth on the packaging, documentation, and screen shots for your virtual reality headset, in this document, in other documentation accompanying the Software or the packaging for the Software. Failure to carefully read and follow those instructions and warnings could lead to property damage, injury or death. You expressly assume and accept any and all risks inherent in (or that may be associated with) the use of the Software, and/or of the virtual reality headsets or related equipment. Some, but not all, of those risks are discussed in the warnings set forth above or the warnings accompanying the Software and the virtual reality headset. Please also see the section on “Limitation of Liability” below in this Agreement.
LIMITATION OF LIABILITY.
To the maximum extent permitted by applicable law, and regardless of whether any remedy set forth herein fails of its essential purpose, IN NO EVENT SHALL LICENSOR OR ANY OF ITS LICENSORS, RESELLERS OR DISTRIBUTORS BE LIABLE FOR ANY (i) SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR OTHER INDIRECT DAMAGES, (ii) THIRD PARTY CLAIMS, OR (iii) LOSS OR DAMAGE TO ANY SYSTEMS, HARDWARE OR SOFTWARE, RECORDS OR DATA; EVEN IF ADVISED OF OR AWARE OF THE POSSIBILITY OF ANY SUCH DAMAGES. To the maximum extent permitted by applicable law, IN NO EVENT SHALL THE ENTIRE LIABILITY OF LICENSOR ARISING FROM OR IN ANY WAY RELATED TO THE SOFTWARE, THE PACKAGING, OR ANY PART THEREOF, OR THIS AGREEMENT, EXCEED IN THE AGGREGATE THE PURCHASE PRICE OF THE SOFTWARE.
Some jurisdictions do not allow the exclusion or limitation of special, incidental, consequential, indirect or exemplary damages, or the limitation of liability to specified amounts, so the above limitation or exclusion may not apply to you.
TERMINATION. This Agreement and the licenses granted under this Agreement are effective until terminated. They shall terminate automatically without notice if you fail to comply with any provision of this Agreement. Upon termination you shall immediately cease using the Software, and destroy the Software, the documentation, and the other parts of the Software, and all copies of any parts thereof.
U.S. GOVERNMENT RESTRICTED RIGHTS. The Software is a Commercial Item developed exclusively at private expense and comprised of “commercial computer software” and “commercial computer software documentation”, as these terms are defined in the applicable acquisition regulations, including without limitation the Federal Acquisition Regulation (“FAR”) at 48 C.F.R. 2.101. The Software is licensed to U.S. Government End Users subject to the terms of this Agreement, as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) ( for civilian agencies), and as specified in 48 C.F.R. 227.7202-3 and 48 C.F.R. 227.7202-4, consistent with 48 C.F.R. 227.7202 (for Department of Defense entities). Solely with respect to the U.S. Government’s rights in the Software, this U.S. Government License Rights clause is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision of the contract under which this Software is obtained. The Contractor/Manufacturer is the LICENSOR at the location listed below.
EQUITABLE REMEDIES. You hereby agree that if the terms of this Agreement are not specifically enforced, LICENSOR will be irreparably damaged, and therefore you agree that LICENSOR shall be entitled, without bond, other security, proof of damages, to appropriate equitable remedies with respect any of this Agreement, in addition to any other available remedies.
INDEMNITY: You agree to indemnify, defend and hold LICENSOR, its partners, licensors, affiliates, contractors, officers, directors, employees and agents harmless from all damages, losses and expenses arising directly or indirectly from your acts and omissions to act in using the Software pursuant to the terms of the Agreement.
MISCELLANEOUS; GOVERNING LAW; DISPUTE RESOLUTION.
This Agreement represents the complete agreement concerning this license between the parties and supersedes all prior agreements and representations between them. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and the remaining provisions of this Agreement shall not be affected.
For residents of North America, this Agreement and all Disputes (as defined below) shall be governed by the laws of the State of Maryland, USA, excluding its conflicts of laws rules and principles that would result in another State or country’s laws applying to this Agreement or any Disputes.
If you reside outside of North America, then this Agreement and all Disputes shall be governed by the laws of England, excluding its conflicts-of-law rules and principles that would result in another State or country’s laws applying to this Agreement or any Disputes.
This section facilitates the prompt and efficient resolution of any disputes that may arise between you and LICENSOR. Arbitration is a form of private dispute resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision. You have the right to opt-out of this section (as explained below), which means you would retain your right to file a lawsuit and litigate your disputes in a court, either before a judge or jury. Certain of the terms below in this section reference “class actions” or “other collective disputes or representative actions.” If you reside in a jurisdiction that does not permit class actions or other collective disputes or representative actions, such terms will not apply to you.
Please read this section carefully. It provides that all Disputes (defined below) between you and LICENSOR shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in court, before a judge or jury, and/or participate in or be represented in a case filed in court by others (including, but not limited to, class actions, collective actions or representative actions). Except as otherwise expressly provided in this section or applicable law, entering into this Agreement constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow the terms in this Agreement and can award the same damages and relief as a court (including, but not limited to, attorneys’ fees). The arbitrator may not award damages disclaimed by this Agreement.
For the purpose of this section, “LICENSOR” collectively refers to Mundish LLC and their affiliate companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and LICENSOR regarding or related to any aspect of your relationship with LICENSOR, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes, but not limited to, the validity, enforceability or scope of this section (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced.
YOU AND LICENSOR EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT OR IN ANY OTHER PROCEEDING IN ACCORDANCE WITH THIS SECTION.
- Pre-Arbitration Claim Resolution. For all Disputes, whether pursued in court or arbitration, you must first give LICENSOR an opportunity to resolve the Dispute. You must commence this process by mailing written notification to Mundfish Media Inc., Attn: Legal Dep’t, 1370 Piccard Drive, Suite 120, Rockville, MD 20850 USA. That written notification must include (1) your name, (2) your address, (3) a written description of your Dispute, and (4) a description of the specific relief you seek. If LICENSOR does not resolve the Dispute to your satisfaction within 45 days after receipt of your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.
- Exclusions from Arbitration/Right to Opt Out. Notwithstanding the above, you or LICENSOR may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute is initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt out by mailing written notification to Mundfish Media Inc., Attn: Legal Dep’t, 1370 Piccard Drive, Suite 120, Rockville, MD 20850 USA. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes through arbitration. Your decision to opt-out will have no adverse effect on your relationship with LICENSOR. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.
- Arbitration Procedures. If this Provision applies and the Dispute is not resolved as provided above (“Pre-Arbitration Claim Resolution”) either you or LICENSOR may initiate arbitration proceedings. If you reside in North America, the American Arbitration Association (“AAA”), www.adr.org, will arbitrate all Disputes. If you do not reside in North America, the International Centre for Dispute Resolution (“ICDR”), www.icdr.org, will arbitrate all Disputes. The arbitration taking place before the ICDR will be conducted in English before a single arbitrator. In either case, the arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. The arbitrator shall have the exclusive authority to decide all issues with respect to this section, including, but not limited to whether any particular claim asserted by you or LICENSOR falls within the scope of this section and any alleged ambiguities in this section.
- In Disputes before the AAA, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply for Disputes of less than $75,000, the AAA’s Commercial Arbitration Rules will apply for Disputes involving $75,000 or more, and in either instance the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The ICDR’s rules will apply to Disputes before that entity. AAA and ICDR rules are available at www.adr.org and www.icdr.org or by calling 1-800-778-7879. This Provision governs in the event it conflicts with the applicable arbitration rules of the AAA or ICDR. Based on the class action waiver set forth below, under no circumstances will class action procedures or rules apply to the arbitration.
iii. Because the Application and the use and distribution thereof concerns interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
- Arbitration Award. The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law and this Agreement, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
- Location of Arbitration. If you reside in North America, you or LICENSOR may initiate arbitration in either Rockville, Maryland, USA or the judicial district that includes the address you provide in your written notification of Pre-Arbitration Claim Resolution. In the event that you select the judicial district that includes the address you provide in your written notification of Pre-Arbitration Claim Resolution, LICENSOR may transfer the arbitration to Rockville, Maryland, USA in the event that it agrees to pay any additional fees or costs you incur as a result of the transfer, as determined by the arbitrator. If you do not reside in North America, the arbitration shall take place in London, England or Sydney, Australia as requested by you.
- Payment of Arbitration Fees and Costs. LICENSOR will pay all arbitration filing fees and arbitrator’s costs and expenses upon your written request given prior to the commencement of the arbitration or as otherwise required by applicable law. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with LICENSOR as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
vii. Class Action Waiver. Any arbitration proceedings initiated pursuant to this section will be conducted only on an individual basis and not in a class, collective, consolidated or representative action or as a member of a class, collective, consolidated or representative action. If you choose to pursue your Dispute in court by opting out of this Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of the Application can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
- Jury Waiver. You understand and agree that by entering into this Agreement you and LICENSOR are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this section, you and LICENSOR might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.
- Severability. If any clause within this section (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this section, and the remainder of this section will be given full force and effect. Notwithstanding the foregoing sentence, if the Class Action Waiver clause is found to be illegal or unenforceable, this entire section will be unenforceable and the Dispute will be decided by a court.
- Continuation. This section shall survive the termination of this Agreement and your use of the Application.
Notwithstanding the Disputes Provision, you agree that LICENSOR and you shall be entitled to injunctive relief, specific performance and equitable remedies with respect to the infringement, violation or misappropriation, of the other party’s intellectual property rights, in addition to such other remedies as either party may otherwise have under applicable law.
IF YOU HAVE ANY QUESTIONS CONCERNING THIS LICENSE, YOU MAY CONTACT http://mundfish.com/support .