Effective Date: 5/15/2009
DESCRIPTION OF SERVICE; MINIMUM AGE REQUIREMENT
a. Description of Service. KickinGames is where friends and games come together. Play hundreds of great games and enjoy sharing in the community.
b. Age Requirement. You must be at least 13 years old to use the Service.
MODIFICATIONS TO TERMS
b. Your Obligation to Stay Current. It is critical that you keep your email contact information correct and updated with KickinGames at all times. In addition, we encourage you to check back regularly to review these Terms at least once every thirty days.
MODIFICATIONS TO SERVICE
We reserve the right to modify or discontinue, and restrict or block access to, the Service without notice to you. We may modify or remove any Content from the Service at any time without notice to you, including removal of Content that we believe to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable. We are not liable for any such modification, suspension, discontinuance or removal, and any such action by us will not affect KickinGames's license to your Content as stated in Section 5 below.
a. Content Protected by Intellectual Property Rights. Any content available through the Service, including games, applications, software, text, audio, video, pictures, graphics, music, sound clips, images, likenesses, personal information and other works of authorship (collectively, "Content") is protected by the intellectual property rights of KickinGames or its licensors.
b. User Contact Submissions. When you submit ideas, suggestions, documents, or proposals (collectively, "Submissions") to KickinGames through our "Contact Us" web page located at contact us, you represent, warrant, and agree that: (a) your Submissions do not include confidential or proprietary information; (b) if we so choose, KickinGames may use and disclose your Submissions in any way; and (c) KickinGames has no obligation to pay or reimburse you for your Submissions or our use of your Submissions.
a. You must not post to the Service any Content that, as reasonably determined by KickinGames, is or appears to be:
i. untrue, misleading, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, invasive to another person's privacy or protected data, hateful, or racially or otherwise objectionable;
ii. infringing upon a third party's intellectual property rights, including any patent, trademark, trade secret, copyright, right of publicity, including any Content that is the subject of any claim of infringement;
iii. of a type that you do not have a right to transmit under any law or under contractual or fiduciary relationships, such as proprietary and confidential information
iv. unsolicited, undisclosed or unauthorized advertising;
v. software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
vi. data or information obtained through access that was not authorized by the owner, or that you are not authorized to post; or
vii. in violation of any applicable local, state, national or international law (including export laws).
b. Prohibited Conduct. You must not do, or attempt to do, any of the following, as reasonably determined by KickinGames, subject to applicable law:
i. access or use the Service in any way that is not in compliance with any applicable local, state, national or international law (including export laws), contracts, intellectual property rights or constitutes the commission of a tort, or for any purpose that is harmful or unintended (by us), or other than in full compliance with these Terms;
ii. access, tamper with, or use services or areas of the Service that you are not authorized to access;
iii. alter information on or obtained from the Service;
iv. tamper with postings, registration information, profiles, submissions or Content belonging to KickinGames or other users of KickinGames;
v. use any robot, spider, scraper or other automated means or interface not provided by us to access the Service or extract data or gather or use information, such as email addresses, available from the Service or transmit any unsolicited advertising, "junk mail," "spam," or "chain letters";
vi. frame any part of the Service, or link to the Service, or otherwise make it look like you have a relationship to us or that we have endorsed you or your Content for any purpose except as expressly permitted in writing by KickinGames;
vii. impersonate or misrepresent your affiliation with any person or entity;
viii. reverse engineer any licensed software, application, games or any other aspect of the Service or do anything that might discover source code, or bypass or circumvent measures employed to prevent or limit access to any area, content or code of the Service;
ix. send to or otherwise impact us or the Service (or anything or anyone else) with harmful, illegal, deceptive or disruptive code such as a virus, "spyware," "adware" or other code that could adversely impact the Service or any recipient; or
x. take any action which might impose a significant burden (as determined by us) on the Service's infrastructure or computer systems, or otherwise interfere with the ordinary operation of the Service.
MONITORING OF SERVICE CONTENT; RESOLUTION OF USER DISPUTES
a. No Duty to Monitor. We are under no obligation to restrict or monitor Service Content in any way. KICKINGAMES DOES NOT REGULARLY MONITOR THE ACCURACY OR RELIABILITY OF CONTENT. However, we reserve the right to modify or remove any Content at any time. Any opinions, advice, statements, services, offers, or other information or Content expressed or made available by third parties, including other users, are those of the respective author(s) and not of KickinGames. KickinGames neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, information, or statement made on the Service.
b. Right to Resolve Disputes. KickinGames has the right but not the obligation to resolve disputes between users relating to the Service and KickinGames's resolution of a particular dispute does not create an obligation to resolve any other dispute. KickinGames's resolution of any dispute is final with respect to the Service.
PROTECTION OF CONTENT
a. License by KickinGames to You. You must respect the intellectual property laws protecting our Service. KickinGames grants you a limited, revocable, non-transferable, non-sublicensable, non-exclusive license, under the rights. KickinGames has in the Content, to privately display and perform the Content on your computer for your own personal, noncommercial purposes.
b. Downloadable Games. Some games and other applications available through the Service require that you download software from the Site (the "Software") onto your computer. When you download the Software, subject to your compliance with any purchase pathway for the Software, KickinGames grants you a limited, non-transferable, non-sublicensable, non-exclusive license, under the rights KickinGames has in the Software, to download, privately display and perform one copy of the Software on your computer for your own personal, noncommercial purposes. In addition, you may make one additional copy of the software for archival purposes only. To the extent permitted under applicable law, you may not use the Software for any other purpose. You must not post the Software to a public or peer to peer network. Various technologies may not be consistent across all platforms and that the performance and some features offered by KickinGames may vary depending on your computer and other equipment.
c. Reservation of Rights. On its own behalf and the behalf of its licensors, KickinGames reserves all rights in the Content, including the Software, not expressly granted in this Section 8. KickinGames does not in any way grant any other rights to you. Except as expressly stated in this section, you may not reproduce, distribute, modify, publicly perform or display, or prepare derivative works of any Content, including any Software, without prior written consent from KickinGames or other third-party owner of the rights in that Content (if any).
TERMINATION OR CANCELLATION
a. Right to Terminate. We may, at any time, without notice to you, terminate your access to the Service, and your Account, or block your access to the Service if we believe in our sole discretion that you may have violated these Terms or have otherwise engaged in any activities that may harm or damage the reputation, rights, person, or property of KickinGames, our users, or any other person.
b. Notice of Termination. If applicable law requires us to provide notice of termination or cancellation, we may give prior or subsequent notice by posting it on the Site or by sending a communication to any address (email or otherwise) that we have for you in our records.
DEALINGS WITH MERCHANTS; LINKS
b. Transactions with Third Parties. Your transactions and other dealings with third party merchants or advertisers that are found on or through the Service, including "click to purchase," "co-registration," and other similar programs, including payment and delivery of related goods or services, are solely between you and such merchant or advertiser.
You agree to hold KickinGames and Demand Media, and their subsidiaries, affiliates (for example, those listed at www.demandmedia.com), officers, directors, employees, agents, attorneys, and suppliers, and each of their respective successors and assigns (collectively, the “Indemnified Persons”), harmless from, and indemnify them for, all damages, costs, expenses and other liabilities, including reasonable attorneys' fees and expenses, relating to any claim arising out of or related to: (i) your access to and use of the games, software, and other aspects of the Service and the Content; (ii) your violation of these Terms, and any applicable law or the rights of another person or party; (iii) any dispute you have with any user of the Service and any dispute you have related to any merchant or advertising found on or through the Service; (iv) KickinGames 's resolution (if any) of any dispute you have with any user of the Service; (v) your improper authorization for KickinGames to collect, use or disclose any Content provided by you; and (vi) any disclosures made with your permission.
DISCLAIMER OF WARRANTIES
KICKINGAMES PROVIDES THE SERVICE (INCLUDING THE SUBSCRIPTION SERVICE) "AS IS" AND "AS AVAILABLE". TO THE MAXIMUM EXTENT PERMITTED BY LAW, KICKINGAMES MAKES NO REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SERVICE OR THE INFORMATION, GAMES, SOFTWARE, OR CONTENT INCLUDED IN THE SERVICE. KICKINGAMES MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, VIRUS-FREE, SECURE, OR TIMELY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, KICKINGAMES EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND THOSE ARISING FROM A COURSE OF DEALING, TRADE, USAGE OR PERFORMANCE. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, AND THEREFORE SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. WE URGE YOU TO KEEP BACKUP COPIES OF YOUR PERSONAL CONTENT, IF ANY, THAT YOU MAINTAIN ON OR USE WITH THE SERVICE. IF YOUR USE OF THE SERVICE RESULTS IN THE NEED FOR SERVICING OR REPLACING PROPERTY, MATERIAL, EQUIPMENT OR DATA, WE ARE NOT RESPONSIBLE FOR ANY RESULTING COSTS OR DAMAGES.
EXCLUSION OF DAMAGES; LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NONE OF THE INDEMNIFIED PERSONS ARE LIABLE TO YOU OR ANY OTHER PERSON FOR INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL, STATUTORY, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST REVENUE, LOSS OF DATA, LOSS OF PRIVACY, LOSS OF GOODWILL OR ANY OTHER LOSSES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IN THE EVENT OF FAULT, TORT (INCLUDING NEGLIGENCE) OR STRICT OR PRODUCT LIABILITY. WITHOUT LIMITING THE FOREGOING, IN NO EVENT WILL THE AGGREGATE LIABILITY TO YOU OF THE INDEMNIFIED PERSONS EXCEED, IN TOTAL, THE AMOUNTS PAID BY YOU TO US.
KickinGames respects the intellectual property rights of others and requests that users of the Service do the same. If you believe that your work is being used on the Service in a way that constitutes copyright infringement, you may notify us by providing our copyright agent with the following information in writing:
1. the electronic or physical signature of the owner of the copyright or the person authorized to act on the owner's behalf;
2. identification of the copyrighted work that you claim has been infringed;
3. identification of the material that is claimed to be infringing and information reasonably sufficient to permit KickinGames to locate the material (for example, by providing a URL to the material);
4. your name, address, telephone number, and email address;
5. a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
6. a statement that the information in your notification is accurate and a statement, made under penalty of perjury, that you are the copyright owner or are authorized to act on the copyright owner's behalf.
Our designated agent to receive notification of claimed infringement can be reached at:
15801 NE 24th Street
Bellevue, WA 98008
(425) 974-4780 (fax)
It is our policy to terminate in appropriate circumstances any Account or user for repeated infringement of intellectual property rights, including copyrights, and we also reserve the right to terminate an Account or user for even one instance of infringement. KickinGames may access, preserve and disclose to third parties any of your information or data (including personally identifiable information and private communications) related to a written complaint of copyright infringement if we believe in our sole discretion that such access, preservation, or disclosure is necessary or useful to respond or otherwise address such complaint.
We have no obligation to provide you with customer support of any kind. However, we may provide you with customer support from time to time, at our sole discretion, if you have created an Account and you submit your customer support questions using your Account.
NOTICES AND CONTACT INFORMATION
Except as otherwise provided in these Terms, KickinGames will give you any notices by posting them on the Site. Since notice of any material change to the Terms will be posted to the Site for at least 30 days, we encourage you to visit the Site at least that often. You also authorize KickinGames to send notices (including notice of subpoenas or other legal process, if any) via electronic mail to the email address that we have on record for you. You will be considered to have received a notice when it is made available to you by posting on the Site or when sent by KickinGames via electronic mail, whether or not received by you. KickinGames may provide notice to any e-mail or other address that you provide to us. You must keep your address current and any notice sent by KickinGames to the address that you have most recently provided is effective notice. With the exception of notices of copyright infringement as described in Sections 5 and 14 above, respectively, you must send us any notice by mailing it to our address for Legal Notices which is: Hillclimb Media, Inc., 15801 NE 24th Street, Bellevue, WA, 98008, U.S.A., Attn: Legal Department.
a. Agreement to Conduct Transactions Electronically. All of your transactions with or through the Service may, at our option, be conducted electronically from start to finish. If we decide to proceed non-electronically, those services will still be governed by the remainder of these Terms unless you enter into different terms on a form provided by us. If the law allows you to withdraw this consent or if we are ever required to deal with you non-electronically, we reserve the right to charge or increase fees and you agree to print or make an electronic copy of the Terms and any other contract or disclosure that we are required to provide to you.
b. Compliance with Laws. You are responsible for compliance with applicable local laws. Access to the Service or Content by certain persons or in certain countries may not be legal.
c. No Agency; No Third Party Beneficiary. These Terms do not create any agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship. Except for the Indemnified Persons, there are no third party beneficiaries of these Terms.
d. Severance. If any part of the Terms is held by a court of competent jurisdiction to be invalid or unenforceable, the invalid or unenforceable part will be given effect to the greatest extent possible and the remainder will remain in full effect, provided that the allocation of risks described in these Terms is given effect to the fullest extent possible
e. Assignment. These Terms are personal to you and you may not transfer, assign or delegate them to anyone without the express written permission of KickinGames. Any attempt by you to assign, transfer or delegate these Terms without the express written permission of KickinGames will be null and void. KickinGames has the right to transfer, assign and delegate these Terms to one or more third parties without your permission.
f. Jurisdiction; Choice of Law; Export Limitations. This Service is controlled by us from our offices in the United States of America and is directed to U.S. users. If you access the Service from locations outside the U.S., you do so at your own risk and you are responsible for compliance with applicable local laws. You may not use or export anything from the Service in violation of U.S. export laws and regulations or the Terms. These Terms and all performances and claims of every nature between us are governed by the laws of the State of California, U.S.A., without regard to any conflicts of laws principles that would result in the application of the law of a different jurisdiction. You and KickinGames submit to the exclusive personal jurisdiction and venue of the state and federal courts located within Los Angeles County, California.
g. Limitations on Actions. Any action concerning any dispute with respect to the Service must be commenced within one year after the cause of the dispute arises, or the cause of action is barred.
h. Interpretation. The paragraph headings in these Terms are included to help make these Terms easier to read and have no binding effect. As used in these Terms, the words "include" and "including" are meant to be illustrative and not exhaustive.
j. No Waiver. The failure of any party to exercise or enforce any right or provision of these Terms, including any failure to act with respect to a breach, will not constitute a waiver of such right or provision or that party’s right to act with respect to subsequent or similar breaches. We suggest that you print out a copy of these Terms for your records
If you have a complaint, you may contact us at Demand Entertainment, Inc. Legal Department, 15801 NE 24th Street, Bellevue, WA 98008, U.S.A. If you are a California resident, the Complaint Assistance Unit of the Division of Consumer Services of the Dept. of Consumer Affairs may be contacted at 400 R Street, Sacramento, CA 95814 or (800) 952-5210.
NOTICE OF AVAILABILITY OF FILTERING SOFTWARE
All users are hereby informed by the provider of this interactive computer service that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist in limiting access to material that is harmful to minors. A report detailing some of those protections can be found at http://www.ntia.doc.gov/ntiahome/ntiageneral/cipa2003/index.html (Children's Internet Protection Act: Report on the Effectiveness of Internet Protection Measures and Safety Policies).
NOTICE: NO HARVESTING OR DICTIONARY ATTACKS ALLOWED
YOU MAY VIOLATE FEDERAL LAW IF YOU: (1) INITIATE THE TRANSMISSION TO KICKINGAMES COMPUTERS OR DEVICES OF A COMMERCIAL ELECTRONIC MAIL MESSAGE (AS DEFINED IN THE U.S. "CAN-SPAM ACT OF 2003") THAT DOES NOT MEET THE MESSAGE TRANSMISSION REQUIREMENTS OF THAT ACT; OR (2) ASSIST IN THE ORIGINATION OF SUCH MESSAGES THROUGH THE PROVISION OR SELECTION OF ADDRESSES TO WHICH THE MESSAGES WILL BE TRANSMITTED.
NOTICE RE TRADEMARKS
The trademarks KickinGames, Hillclimb Media, Demand Media and all other trademarks listed below or used in the Service are owned or used under license by KickinGames and its affiliated organizations. The names of third parties and their products mentioned may be their trademarks. You may not use any of the above or other trademarks displayed on the Service or in any Service content. All rights are reserved.
NOTICE RE COPYRIGHT OWNERSHIP: (c) 2009 Hillclimb Media, Inc. USA. All rights reserved.