GameCommerce Terms of Service
Last updated: September 12, 2018
GameCommerce, Inc. (together with its affiliates, “GameCommerce”, “our”, or “we”) provides game-development and related software (the “Software”) and development services such as GameCommerce Teams and Quest.AI (“Developer Services”) through or in connection with our websites (collectively, the “Site”). These terms and conditions exclusively (unless expressly superseded by a separate agreement) govern your access to and use of the Software, Developer Services, and the Site (collectively, the “Services”), and constitute a binding legal agreement between you and GameCommerce (the “Agreement”).
If you accept or agree to the Agreement on behalf of a company, organization or other legal entity (a “Legal Entity”), you represent and warrant that you have the authority to bind that Legal Entity to the Agreement and, in such event, “you” and “your” will refer and apply to that Legal Entity.
You acknowledge and agree that, by accessing, purchasing, or using the Services, you are indicating that you agree to be bound by the Agreement whether or not you have created a GameCommerce Account (defined below), subscribed to the GameCommerce newsletter, or otherwise registered with the Site. If you do not agree to the terms of this Agreement then you must not access or use any of the Services.
1. Updates to this Agreement
GameCommerce reserves the right, at its sole discretion, to modify, discontinue, or terminate the Services. GameCommerce may also modify the Agreement at any time and without prior notice. If we modify the Agreement, we will post the modification on the Services or otherwise provide you with notice of the modification. We will also update the “Last updated” date at the top of this Agreement. By continuing to access or use the Services after we have provided you with notice of a modification, you indicate that you agree to be bound by the modified Agreement. If the modified Agreement is not acceptable to you, your only recourse is to cease using the Services.
2. Your GameCommerce Account
2.1 Creating and Maintaining a GameCommerce Account
In order to use most Services, you must register for a “GameCommerce Account.” To create a GameCommerce Account, you must provide certain information and establish a username and a password. You agree to provide—and maintain over time—accurate, current, and complete information during the registration process and to update such information to keep it accurate, current, and complete. GameCommerce reserves the right to suspend or terminate your account if any information provided during the registration process or thereafter proves to be inaccurate, not current, or incomplete.
You are responsible for safeguarding your log-in credentials. You agree not to disclose your credentials to any third party and to take sole responsibility for any activities or actions under your GameCommerce Account, whether or not you have authorized such activities or actions. You will immediately notify GameCommerce of any unauthorized use of your account.
2.3 Canceling Your GameCommerce Account
You may cancel your GameCommerce Account at any time by sending an email to email@example.com. Canceling your GameCommerce Account does not relieve you of the obligation to pay any and all remaining amounts owing for Services under this Agreement or any applicable separate agreement.
3. Your Responsibilities
You represent and warrant that:
- you have the legal capacity to agree to the Agreement;
- you are not located in a country embargoed by the United States and that you are not on the U.S. Treasury Department’s list of Specially Designated Nationals;
- you will comply with all applicable laws and regulations in connection with your use of the Services, including but not limited to applicable privacy and data protection laws and regulations;
- you will not resell the Services;
- you will not copy, reproduce, distribute, publicly perform, or publicly display GameCommerce Technology (defined below), except as expressly permitted by us or our licensors;
- you or Your Content (defined below) will not violate any applicable law, contract, intellectual property, right to privacy or publicity, or other third-party right, or commit a tort;
- you have the right to grant the licenses to Your Content granted to GameCommerce in this Agreement;
- Your Content is not harmful, hateful, threatening, abusive, violent, profane, discriminatory, prejudicial, disparaging, fraudulent, inaccurate, misleading, dangerous, sexual in nature, offensive, indecent, harassing, threatening, intimidating, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, or otherwise objectionable;
- you will not commit fraud or conduct other unlawful activity, including using stolen payment information to make a purchase;
- you will not access or attempt to access another user’s account without authorization from that user and GameCommerce;
- you will not attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of the Services that you are not authorized to access;
- you will not connect to or access any GameCommerce computer system or network without authorization;
- you will not use the Services in any manner that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying the Services or that could damage, disable, overburden, or impair the functioning of the Services in any manner;
- except as otherwise authorized under the license granted to you in this Agreement, you will not copy, modify, create derivative works from, reverse engineer, decompile, disassemble, or otherwise attempt to learn the source code, structure, or ideas upon which the Services are based; and
- you will not develop or use any third-party applications that interact with the Services without our prior written consent, including any scripts designed to scrape or extract data from the Services.
4. Intellectual Property Rights
4.1 GameCommerce’s Ownership
The Services and all related content, templates, and materials, the designs of each of the foregoing (collectively, the “GameCommerce Technology”), and any and all intellectual property rights in the foregoing, as between GameCommerce and you, shall at all times remain the exclusive property of GameCommerce and its third-party licensors.
4.2 Your License to Use the Services and GameCommerce Technology
On the condition that you comply with all your obligations under this Agreement, GameCommerce grants you a limited, revocable, non-exclusive, non-transferable (except as provided herein) right to access and use the Services and GameCommerce Technology. Any use of the Services that exceeds the rights expressly granted in this Agreement is strictly prohibited and constitutes a violation of this Agreement, which may result in the termination of your right to access and use the Services. Your access to the Services is provided on a temporary basis with no guarantee for future availability. Without limiting the prior sentence, GameCommerce may terminate your access to the Services and the GameCommerce Technology immediately in the event you violate the terms of this Agreement or at any time as deemed necessary by GameCommerce in its sole judgment to protect the Services, GameCommerce Technology, or other users of the Services. Any use of the Services or GameCommerce Technology other than as specifically authorized in this Agreement or without our prior written permission is strictly prohibited and will terminate the license granted under this Agreement. You may not remove, alter, or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services. The license granted to you in this Agreement is non-transferable, except that you may grant end users of a game created using the Services a sub-license to use any GameCommerce Technology only for that end user’s personal use in connection with such game.
4.3 Ownership of Your Content
The Services allow you to create or submit your own content, such as your brand, your trademarks, your own designs, programming code, and other content you submit to, or otherwise contribute to the Services, (collectively, “Your Content”). GameCommerce does not claim intellectual property ownership of any content other than its own. As between you and GameCommerce, you own all right, title, and interest (including, all intellectual property rights) in and to Your Content, excluding any licensed GameCommerce Technology contained therein or on which such content is based.
4.4 GameCommerce’s License to Your Content and Suggestions
4.5 Copyright Policy
If you are a copyright owner or an agent thereof and believe that any content in the Services infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Designated Agent (as set forth below) with the following information in writing (see 17 U.S.C. 512(c)(3) for further details):
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the site are covered by a single notification, a representative list of such works on the site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
- Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if applicable, e-mail address;
- 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 you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Written notification of claimed infringement must be submitted to the following Designated Agent:
Game Commerce Copyright Agent
By email: firstname.lastname@example.org
For clarity, only DMCA notices should be sent to the Designated Agent.
4.6 Proprietary Rights Notices
All trademarks, service marks, logos, trade names, and any other proprietary designations of GameCommerce used herein are trademarks or registered trademarks of GameCommerce. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective owners.
5.1 Fees Due
You agree to timely pay all amounts due for the Services as set forth in an online cart, quote, or invoice made available or provided to you by GameCommerce and in accordance with the payment terms in Section 5.5 of this Agreement or other applicable terms. If any payment is not made on time, GameCommerce may deactivate your access to the Services. You acknowledge and agree that, in the case of certain Services, any estimates of fees and charges provided to you by GameCommerce (whether based on assumed data consumption or otherwise) are solely estimates based on assumptions and that you are fully responsible for the actual fees and charges that accrue.
5.2 Amount of Fees
Fees for certain Services are set forth on the Site or otherwise made available to you through the Services. GameCommerce may increase, modify, or add new fees and charges for any of the Services from time to time by posting such changes to the Services. GameCommerce will provide you with at least 30 days’ notice of any changes affecting existing Software and/or Services you have already started using, and your continued use of such Software and/or Service after the effective date of any such change means that you accept and agree to such changes, as applicable.
All fees payable under the Agreement are net amounts and payable in full, without deduction for taxes or duties of any kind. You will be responsible for, and agree to promptly pay, all taxes or duties of any kind (including but not limited to sales, use, and withholding taxes) associated with any purchase or your receipt or use of the Services, except for taxes based on GameCommerce’s net income. In the event that GameCommerce is required to collect any tax for which you are responsible, you will pay such tax directly to GameCommerce or its payment processor. If you pay any withholding taxes that are required to be paid under applicable law, you will promptly furnish GameCommerce with written documentation of all such tax payments, including receipts. GameCommerce reserves the right to collect any applicable sales, use, or value added tax.
5.4 Final Sales
All sales are final and there shall be no refunds except as required by law. Further, GameCommerce will not allow changes to your purchase after you complete it. GameCommerce may block your access to any Services you have licensed or subscribed to in the event you fail to make all payments when due.
5.5 Payment Terms
5.6 Subscription Renewal
Any subscriptions you purchase will remain in effect for the initial subscription period, and thereafter will automatically renew on a month-to-month basis at the then-current applicable fees, unless you renew the subscription for a new subscription term or terminate and cancel it as described on the Site.
6. Termination and Account Cancellation
GameCommerce will have the right in its sole discretion, and without prior notice to you, to suspend or disable your GameCommerce Account or terminate the Agreement and/or your right or ability to access or use any of the Services if: (a) you breach this Agreement; (b) your use of the Services poses a security risk to, or otherwise adversely impacts, the Services or any third party; (c) your use of the Services subjects GameCommerce or any third party to liability; (d) your use of the Services may be fraudulent; (e) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding.
In the event of any suspension, disablement, or termination, you acknowledge that: (i) GameCommerce will have no further obligation to provide the Services to you; (ii) all rights granted to you under the Agreement will immediately cease; (iii) you may no longer access any of Your Content that was previously submitted via any of the Services or that was related to your GameCommerce Account, and GameCommerce will have no obligation to maintain, or forward you, Your Content; and (iv) you will remain liable for all fees and charges for all Services ordered. If GameCommerce suspends, disables, or terminates due to your breach, you will also remain liable for any remaining amounts owing for the entire term of your subscriptions. Any suspension, disablement or termination will not affect your obligations to GameCommerce (including, without limitation, proprietary rights and ownership, indemnification and limitation of liability), which by their sense and context are intended to survive such suspension, disablement or termination.
THE SERVICES ARE ALL PROVIDED BY GAMECOMMERCE ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATIONS, WARRANTIES, COVENANTS OR CONDITIONS OF ANY KIND. GAMECOMMERCE AND ITS LICENSORS DO NOT WARRANT OR REPRESENT THAT THE SERVICES, OR ANY PART THEREOF, WILL OPERATE UNINTERRUPTED OR ERROR-FREE. GAMECOMMERCE DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL: (I) WARRANTIES OF MERCHANTABILITY; (II) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT GAMECOMMERCE KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE); AND (III) WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM GAMECOMMERCE OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THE AGREEMENT.
YOU SHALL BE SOLELY RESPONSIBLE FOR THE ACCURACY AND QUALITY OF YOUR CONTENT, AND YOU UNDERSTAND THAT YOU MUST EVALUATE AND BEAR ALL RISKS ASSOCIATED WITH YOUR USE OF THE SERVICES, OR YOUR RELIANCE ON THE ACCURACY, COMPLETENESS, OR USEFULNESS OF THE SERVICES.
To the maximum extent permitted by law, you agree to defend, indemnify, and hold GameCommerce, its affiliates, and their officers, directors, employees, agents, and licensors harmless from and against any and all claims, actions, suits, or proceedings, as well as any and all losses, liabilities, damages, costs, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with: (i) your access to or use of any of the Services; (ii) Your Content; or (iii) your violation of this Agreement.
9. Limitation Of Liability
GAMECOMMERCE’S TOTAL AGGREGATE LIABILITY TO YOU FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY RELATED TO THE SERVICES WILL BE LIMITED TO THE GREATER OF: (A) THE AMOUNTS PAID BY YOU IN THE MOST RECENT THREE (3) MONTHS FOR USE OF THE SERVICES; OR (B) ONE HUNDRED U.S. DOLLARS (US$100). IN NO EVENT WILL GAMECOMMERCE BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, BUSINESS, PROFITS, GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, SYSTEM FAILURE, OR ABILITY TO EXECUTE) OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS OR SERVICES ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR THE EXECUTION OR PERFORMANCE OF THE SERVICES, FROM THE USE OR INABILITY TO USE THE SITE OR SITE CONTENT OR YOUR CONTENT, OR FROM ANY COMMUNICATIONS, INTERACTIONS, OR MEETINGS WITH OTHERS AS A RESULT OF YOUR USE OF THE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT GAMECOMMERCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THE AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
IF YOU ARE A CALIFORNIA RESIDENT OR COULD OTHERWISE CLAIM THE PROTECTIONS OF CALIFORNIA LAW, YOU FURTHER EXPRESSLY WAIVE THE PROVISIONS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH READS AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO THE CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE WHICH, IF KNOWN BY HIM OR HER, MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND SECTION 1542 OF THE CALIFORNIA CIVIL CODE, AND YOU HEREBY EXPRESSLY WAIVE AND RELINQUISH ALL RIGHTS AND BENEFITS UNDER THAT SECTION AND ANY LAW OF ANY JURISDICTION OF SIMILAR EFFECT WITH RESPECT TO YOUR RELEASE OF ANY CLAIMS YOU MAY HAVE AGAINST THE INDEMNIFIED PARTIES.
10. Controlling Law; Agreement to Arbitrate
10.1 Choice Of Law
This Agreement and the rights of the parties hereunder will be governed by and construed in accordance with the laws of the state of California, exclusive of conflict or choice of law rules. Notwithstanding the provision in the preceding paragraph with respect to applicable substantive law, any arbitration conducted pursuant to the terms of this Agreement will be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16).
To the extent feasible, the parties desire to resolve any dispute, claim, or controversy arising out of or relating to your use of or access of the Services, this Agreement, or the breach, termination, enforcement, interpretation, or validity of this Agreement, including the determination of the scope or applicability of this agreement to arbitration (a “Dispute”) through discussions and negotiations between each other. The parties agree to attempt to resolve any Disputes by negotiation with the other party (by phone, electronic correspondence, or written correspondence). If, after good faith discussions, the Dispute(s) cannot be resolved solely between the parties, such Dispute(s) will be determined by arbitration in the English language in San Francisco County, California before a single arbitrator.
The arbitration will be administered by Judicial Arbitration and Mediation Services (“JAMS”) in accordance with the Streamlined Arbitration Rules and Procedures (“Rules”) of JAMS, which are available on the JAMS website and hereby incorporated by reference. You either acknowledge and agree that you have read and understand the rules of JAMS or waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.
You and GameCommerce agree that the state or federal courts sitting in San Francisco County, California have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. This provision will not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
10.3 Conduct of Arbitration
The arbitration will be commenced by the claimant party filing a demand for arbitration with JAMS and serving the demand on the opposing party. Within 30 calendar days of the date the demand for arbitration is filed, the parties will select an arbitrator by following the Rules’ arbitrator selection procedures. Except as may be required by law, neither party nor the arbitrator may disclose the existence, content, or results of any arbitration under this Agreement without the prior written consent of both parties. The arbitrator’s award will be in writing, in the English language, and accompanied by a reasoned opinion and a written statement of the essential findings and conclusions on which the award is based.
10.4 Costs; Judgment
The arbitrator will determine how the costs and expenses of the arbitration will be allocated between the Parties, and may award attorneys’ fees. Each party shall bear the burden of its own counsel fees incurred in connection with any arbitration proceedings. Judgment upon the award returned by the arbitrator may be entered in any court having jurisdiction over the parties or their assets or application of enforcement, as the case may be. Any award by the arbitrator shall be the sole and exclusive remedy of the parties. The parties hereby waive all rights to judicial review of the arbitrator’s decision and any award contained therein.
10.5 Arbitration is on an Individual Basis Only; Class Action Waiver
The Parties agree to arbitrate solely on an individual basis, and that this Agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. The arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. Notwithstanding the arbitrator’s power to rule on his or her own jurisdiction and the validity or enforceability of the agreement to arbitrate, the arbitrator has no power to rule on the validity or enforceability of THIS agreement to arbitrate solely on an individual basis. In the event the prohibition on class arbitration is deemed invalid or unenforceable, then the remaining portions of this Section 10 will remain in force.
The Agreement is the complete and exclusive understanding and agreement between the parties regarding its subject matter, and supersedes all proposals, understandings or communications between the parties, oral or written, regarding its subject matter, unless you and GameCommerce have executed a separate agreement governing your use of the Services, in which case such separate agreement(s) will control in relation to the relevant Services. The English language version of the Agreement is legally binding in case of any inconsistencies between the English version and any translations. Any terms or conditions contained in any purchase order or other ordering document that are inconsistent with or in addition to the terms and conditions of the Agreement are hereby rejected by GameCommerce and will be deemed null. You may not assign or transfer the Agreement or any rights granted hereunder, by operation of law or otherwise, without GameCommerce’s prior written consent. Any attempt by you to do so, without such consent, will be void. GameCommerce may assign or transfer the Agreement, at its sole discretion, without restriction. GameCommerce may assign your account for collection, and the collection agency may pursue claims limited to the collection of past due and owing amount and any interest or cost of collection permitted by law or the Agreement in any court of competent jurisdiction. Subject to the foregoing, the Agreement will bind and inure to the benefit of the parties, their successors and permitted assigns. Except as expressly set forth in the Agreement, the exercise by either party of any of its remedies under the Agreement will be without prejudice to its other remedies under the Agreement or otherwise. GameCommerce will deliver all notices, approvals or other communications required or permitted under the Agreement, including those regarding modifications to the Agreement by posting to the Site or your GameCommerce Account. The failure by either party to enforce any provision of the Agreement will not constitute a waiver of future enforcement of that or any other provision. Any waiver, modification or amendment of any provision of the Agreement will be effective only if in writing and signed by authorized representatives of both parties. If any provision of the Agreement is held to be unenforceable or invalid that provision will be enforced to the maximum extent possible and the other provisions will remain in full force and effect.
If you have questions about these Terms of Service, you may contact terms@GameCommerce.com.