GamesMeltdown Terms and Conditions

REALNETWORKS, INC.

END USER LICENSE AGREEMENT

SOFTWARE, GAMES AND SERVICES

 

REDISTRIBUTION NOT PERMITTED

 

License for software, games and services distributed by RealNetworks, Inc.

 

IMPORTANT -- READ CAREFULLY BEFORE USING THIS SOFTWARE: This License Agreement for software and games distributed by RealNetworks, Inc. (collectively, "Software") and the GamesMeltdown FunPass subscription services ("Services") is a legal agreement between you (either an individual or an entity) and RealNetworks, Inc. including its GamesMeltdown division ("RealNetworks") and its suppliers, distributors and licensors, including game developers (collectively, "RN") and Alpha, Beta, trial, pre-release, free, pay and premium versions of the products. You may install only ONE copy of the Software that you have downloaded or purchased from RN. By clicking on the "Accept" button, installing, copying or otherwise using the Software, you agree to be bound by the terms of this License Agreement. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE AGREEMENT, CLICK ON THE "Cancel" BUTTON AND/OR DO NOT INSTALL THE SOFTWARE OR DOWNLOAD ANY GAMES USING IT.

 

FOR YOUR USE OF THE SERVICES, YOU AGREE TO BE BOUND BY THE "TERMS OF SERVICE" ATTACHED HERETO AS EXHIBIT A.

 

PERSONAL INFORMATION YOU PROVIDE TO REALNETWORKS IS GOVERNED BY THE REALNETWORKS PRIVACY POLICY AT http://www.realnetworks.com/company/privacy/index.html

 

YOU AGREE THAT YOUR USE OF THE SOFTWARE AND/OR SERVICES ACKNOWLEDGES THAT YOU HAVE READ THIS LICENSE, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.

 

THE GAMES DISTRIBUTED BY RN ARE SUBJECT TO THIS LICENSE AGREEMENT UNLESS SUPERCEDED BY ANOTHER LICENSE AGREEMENT PROVIDED BY A THIRD PARTY AND DISPLAYED PRIOR TO YOUR INSTALLATION OF THAT GAME. USAGE OF THESE GAMES SHALL BE GOVERNED BY SUCH THIRD PARTY'S LICENSE AGREEMENT.

 

THE TERMS OF THIS LICENSE AGREEMENT APPLY TO ALL VERSIONS OF THE GAMES, INCLUDING VERSIONS DOWNLOADED OR ACQUIRED WITHOUT CHARGE ("SHAREWARE"), FULL VERSIONS FOR WHICH A FEE IS CHARGED, SUBSCRIPTION SERVICES AND ANY LICENSE KEYS, IF APPLICABLE.

 

THE SHAREWARE VERSIONS OF THE GAMES MAY CONTAIN USE, FEATURE, OR TIME LIMITATIONS. IN ORDER TO REMOVE SUCH LIMITATIONS, YOU MAY PURCHASE THE FULL VERSION OF THE GAME IF AVAILABLE.

 

1. GRANT OF LICENSE.

 

RN hereby grants to you a non-exclusive license to use the Software and any related documentation ("Documentation") subject to the following terms:

 

a) You may: (i) use the Software on any single computer; (ii) use the Software on a second computer so long as the first and second computers are not used simultaneously; and (iii) copy the Software for back-up and archival purposes, provided any copy must contain all of the original Software's proprietary notices.

 

b) RN may modify this License Agreement with respect to free versions of the Software upon 14 days written notice to you, including notice via the communications features described below.

 

2. LICENSE RESTRICTIONS.

 

a) You may not: (i) permit other individuals to use the Software except under the terms listed above; (ii) modify, translate, reverse engineer, decompile, disassemble (except to the extent that this restriction is expressly prohibited by law) or create derivative works based upon the Software or Documentation; (iii) copy the Software or Documentation (except for back-up or archival purposes); (iv) rent, lease, transfer, or otherwise transfer rights to the Software or Documentation; or (v) remove any proprietary notices or labels on the Software or Documentation. Any such forbidden use shall immediately terminate your license to the Software.

 

b) You agree that you shall only use the Software and Documentation in a manner that complies with all applicable laws in the jurisdictions in which you use the Software and Documentation, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights.

 

c) You may only use the Software for your private, non-commercial use. You may not use the Software in any way to provide, or as part of, any commercial service or application. Copies of content files, including, but not limited to songs and other audio recordings and game executables, associated game files, patches, mods, or other game-related information other than Shareware versions of games, which are downloaded, copied, or played using the Software, and which are protected by the copyright laws or related laws of any jurisdiction, are for your own personal use only and may not be distributed to third parties or performed outside your normal circle of family and social acquaintances subject to the specific licensing terms of that content.

 

d) You may not use the Software in an attempt to, or in conjunction with, any device, program or service designed to circumvent technological measures employed to control access to, or the rights in, a content file or other work protected by the copyright laws of any jurisdiction.

 

3. COPIES OF SOFTWARE AND ENHANCEMENTS.

 

If you receive the first copy of the Software electronically and a second copy on physical media (e.g., CD, diskette, etc.), the second copy may be used for archival purposes only and may not be transferred to or used by any other person. This license does not grant you any right to any enhancement or update.

 

4. BETA RELEASE VERSIONS.

 

In the event that the Software is a beta release version, the terms of this Section shall apply. Your license to use the Software expires 45 days after installation (or such other period as indicated by the Software) and the Software may cease to function. The Software you are receiving may contain more or less features than the commercial release of the Software that RN intends to distribute. While RN intends to distribute a commercial release of the Software, RN reserves the right at any time not to release a commercial release of the Software or, if released, to alter features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of the commercial release. You agree that the Beta Release Versions are not suitable for production use and may contain errors affecting their proper operation. You agree that you will not do anything to circumvent or defeat the features designed to stop the Software from operating after the license expires.

 

5. DIGITAL RIGHTS MANAGEMENT SYSTEMS ("DRMs").

 

The Software may include a DRM from RN or third party DRMs as plug-in components which are subject to their own license agreements. DRMs are designed to manage and enforce intellectual property rights in digital content purchased over the Internet. You may not take any action to circumvent or defeat the security or content usage rules provided or enforced by either the DRM or the Software. DRMs may be able to revoke your ability to use applicable content. RN is not responsible for the operation of a third party DRM in any way, including revocation of your content. RN is not responsible for any communications to or from any third party DRM provider, or for the collection or use of information by third party DRMs. You consent to the communications enabled and/or performed by the DRM, including automatic updating of the DRM without further notice. You agree to indemnify and hold harmless RN for any claim relating to your use of a third party DRM.

You acknowledge and agree that in order to protect the integrity of certain third party content, RN or its suppliers and licensors may provide for the Software security-related updates that will be automatically downloaded and installed on your computer. Such security-related updates may impair the Software (and any other software on your computer which specifically depends on the Software) including disabling your ability to copy and/or play "secure" content, i.e. content protected by digital rights management. In such an event, RN and/or its suppliers and licensors shall use reasonable efforts to promptly post notices on the RN web site explaining the security update and providing instructions to end users for obtaining new versions or further updates of the Software that restore access to secure content and related features.

 

6. TITLE.

 

Title, ownership, rights, and intellectual property rights in and to the Software and Documentation shall remain in RN and/or its suppliers. The Software is protected by the copyright laws of the United States and international copyright treaties. Title, ownership rights and intellectual property rights in and to the content accessed through the Software including the content contained in the Software media demonstration files shall be retained by the applicable content owner and may be protected by applicable copyright or other law. This license gives you no rights to such content.

 

7. DISCLAIMER OF WARRANTY AND LIMIT OF LIABILITY.

 

THE SOFTWARE AND SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, RN FURTHER DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE AND DOCUMENTATION REMAINS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL RN OR ITS SUPPLIERS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF RN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. RN's TOTAL LIABLITY FOR ANY DIRECT DAMAGES SHALL NOT EXCEED THE FEES YOU PAID FOR THE SOFTWARE AND/OR THE SERVICES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

 

8. INDEMNIFICATION.

 

This Software is are intended for use only with properly licensed media, content, and content creation tools. It is your responsibility to ascertain whether any copyright, patent or other licenses are necessary and to obtain any such licenses to serve and/or create, compress or download such media and content. You agree to download, install, and play only those materials for which you have the necessary patent, copyright and other permissions, licenses, and/or clearances. You agree to hold harmless, indemnify and defend RN, its officers, directors and employees, from and against any losses, damages, fines and expenses (including attorneys' fees and costs) arising out of or relating to any claims that you have (i) viewed, downloaded, installed, copied or transmitted any materials (other than materials provided by RN) in connection with the Software in violation of another party's rights or in violation of any law, or (ii) violated any terms of this License Agreement. If you are importing the Software from the United States, you shall indemnify and hold RN harmless from and against any import and export duties or other claims arising from such importation.

 

9. TERMINATION.

 

This License Agreement will automatically terminate if you fail to comply with any term hereof. No notice shall be required from RN to effect such termination. You may also terminate this License Agreement at any time by notifying RN in writing of termination. Upon any termination of this License Agreement, you shall immediately discontinue use of the Software and shall within three (3) days return to RN, or certify destruction of, all full or partial copies of the Software, documentation, and related materials provided by RN. Your obligation to pay accrued charges and fees shall survive any termination of this License Agreement.

 

10. NO ASSIGNMENT.

 

This Agreement is personal to you, and may not be assigned without RN's express written consent.

 

11. MISCELLANEOUS.

 

a) Arbitration & Jurisdiction. You and RN agree that the exclusive remedy for all disputes and claims relating in any way to, or arising out of, this Agreement, the Software or Services, or your use of the Software or Services shall be final and binding arbitration. The arbitration shall be conducted under the Commercial Arbitration Rules of the American Arbitration Association ("AAA") and AAAÕs Supplementary Procedures for Consumer Related Disputes ("AAA Consumer Rules"). The arbitration shall take place in the State of Washington. To the fullest extent permitted by law: no arbitration under this License Agreement shall be joined to any other arbitration, including any arbitration involving any other current or former licensee of RN; no class arbitration proceedings shall be permitted; no finding or stipulation of fact in any other arbitration, judicial or similar proceeding may be given preclusive or collateral estoppel effect in any arbitration hereunder (unless determined in another proceeding between you and RN); and no conclusion of law in any other arbitration may be given any weight in any arbitration hereunder (unless determined in another proceeding between you and RN). Your arbitration fees and your share of arbitrator compensation will be limited to those set forth in the AAAÕs Consumer Rules with the remainder paid by RN. If such costs are determined to be excessive, RN will pay all arbitration fees and arbitrator compensation. You and RN may litigate in court only to compel arbitration under this Agreement, stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award rendered by the arbitrator(s). You and RN hereby consent to the exclusive jurisdiction of the state and federal courts sitting in the State of Washington to enforce the provisions of this Section 16 and to resolve any disputes and claims cognizable in court relating in any way, or arising out of, this Agreement, the Software or Services or your use of the Software or Services. The court, not the arbitrator, shall determine arbitrability and enforce the arbitration agreements contained herein, including the prohibition on consolidated arbitrations and class arbitration. This Agreement and all disputes and claims relating in any way to, or arising out of, this Agreement, the Software or Services or your use of the Software or Services shall be governed by the laws of the State of Washington and the Federal Arbitration Act.

 

b) Complete Agreement. This Agreement shall constitute the complete and exclusive agreement between us, notwithstanding any variance with any purchase order or other written instrument submitted by you, whether formally rejected by RN or not. The acceptance of any purchase order is you place is expressly made conditional on your consent to the terms set forth herein. The terms and conditions contained in this Agreement may not be modified by you except in a writing duly signed by you and an authorized representative of RN. 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 such decision shall not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances. This Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.

 

EXHIBIT A

TERMS OF SERVICE

Terms of Service for GamesMeltdown FunPass

 

1. PAYMENT, CANCELLATION & SERVICES

 

Following the expiration of a trial period that may be provided to you in the sole discretion of RN, you agree to pay RN the applicable service charges (e.g., monthly, quarterly or annual) for your use of the Services using a valid credit card, plus any applicable taxes, in accordance with the billing terms and prices in effect at the time the fee or charge becomes payable. You authorize RN to automatically bill the charge card you provide each month or on each applicable subscription period renewal date, or withdraw funds via electronic transfer from your checking account (depending on what type of charge card you are using), until you cancel the Services. Payments are billed in advance at the beginning of the applicable month or at the beginning of the applicable subscription period if not monthly. All payments are completely non-refundable. You may cancel the Services at any time, but RN will not refund any remaining portion of your subscription fees, including any minimum commitments, already billed to your account. To ensure that your credit card will not be charged for your next billing period, you MUST cancel your FunPass membership no later than the day before your next scheduled billing period begins The exceptions to this refund policy are cancellations of a quarterly or annual subscription within the first 30 days following your first payment or renewal payment of the annual subscription. In this case, you may request a refund of the full annual subscription fee if your cancellation request is received and processed by RN within this 30 day period. After 30 days following your first payment or renewal payment of an annual subscription, you may still cancel at any time but all payments will be non-refundable for the unused portion of your annual subscription. In this case, your account will remain active until the end of the original billing period, but will not be renewed. You agree to provide RN with a valid credit card and accurate, complete and updated information required by the subscription registration form. Failure to comply may result in the immediate termination of Services. Once your cancellation is effective, you will no longer have access to the FunPass service, and you will no longer receive FunPass member discounts on purchases of downloadable products. RN will assess an additional 1.5% (or the highest amount allowed by law, whichever is lower) per month late charge if your payment is more than 30 days past due. That amount is also due immediately. You are responsible and liable for any fees, including attorney and collection fees, that RN may incur in its efforts to collect any remaining balances from you. You also agree that you will be billed for and will pay any outstanding balances if you cancel the Services, or the Services are terminated. You agree to notify RN about any billing problems or discrepancies within 90 days after they first appear on your account statement. If you do not bring them to RN's attention within 90 days, you agree that you waive your right to dispute such problems or discrepancies. During your active subscription period, you are entitled to receive US$5 off any additional game purchases.

 

2. FREE FUNPASS TRIAL POLICY

 

Any customer that signs up for FunPass may be given a period of time to try the service at no cost. At the end of the period, if the customer has not cancelled their subscription they will be billed as a FunPass member in normal standing.

 

3. REALNETWORKS' RIGHT TO TERMINATE OR MODIFY SERVICES

 

RN may modify the terms of this Agreement or the Services, including but not limited to the price, content or nature of the Services, upon notice to you. In the event RN modifies the Agreement or the Services, you may terminate the Services. RN may terminate this Agreement and any Services at any time upon notice to you, provided that you will be entitled to receive the Services for any period for which you have already paid, or a pro-rata refund at RN's sole discretion. RN may provide notice by e-mail or by publishing the changes on its website. This Agreement will automatically terminate if you fail to comply with any term. No notice shall be required from RN to effect such termination. Upon any termination of this Agreement (whether by you or RN), you shall immediately discontinue use of the Services. Your obligation to pay accrued charges and fees shall survive any termination of this Agreement.

 

4. SERVICE USE RESTRICTIONS

 

You agree that you shall only use the Services in a manner that complies with all applicable laws in the jurisdictions in which you use the Services, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights. Except as specifically authorized herein, you may not: (i) permit other individuals to use the Services; (ii) modify, translate, distribute or create derivative works of the Services; (iii) rent, lease, transfer, or otherwise transfer rights to the Services; and (iv) remove any proprietary notices or labels on the Service. You may only use the Services for your private, non-commercial use. You may not use the Services in any way to provide, or as part of, any commercial service or application.

 

You may not attempt to, in conjunction with, any device, software program or service, circumvent technological measures employed to control access to, or the rights in, a content file. The Service embodies a copy management system required by the laws of the United States, and you may not circumvent or attempt to circumvent this system by any means. In addition to any other remedies available in equity or law to RN and RN's content suppliers, failure to comply with any of the terms and conditions in this Section 4 "Service Use Restrictions" shall immediately terminate your license to the Content and the Services.

 

5. PERSONAL INFORMATION AND PRIVACY

 

Personal information you provide to RealNetworks is governed by RealNetworks Privacy Policy at realnetworks.com/company/privacy/index.html. Your election to use the Software and Services, indicates your acceptance of the terms of the RealNetworks Privacy Policy, so please review it carefully if you have any questions about RealNetworks treatment of personal information you provide to us. If you have questions about our Privacy Policy, please e-mail us at privacy@real.com.

 

You are responsible for maintaining the confidentiality of your password and account information. You are responsible for all activities that occur in your account and you agree to notify RealNetworks immediately of any unauthorized account use. RN is in no way responsible for any loss that you may incur as a result of any unauthorized use of your user account and password.

 

6. E-MAIL NOTIFICATION

 

To let you know what new content and Services are available from time to time, RN will send you e-mail describing the latest content and how to get access to the content. You agree that as a Service subscriber, RN may send you such e-mail to the address you provide. Because this e-mail is necessary for you to receive the Services, you will receive this e-mail even if you have opted out of receiving other e-mail from RN. If you do not want to receive this e-mail, you may cancel the Service at any time as provided in this Agreement.