IN CONSIDERATION and exchange of the mutual covenants of the Parties contained herein and the mutual benefits to be received under this Agreement, the Parties agree as follows:
Changes to this Agreement. We may change or modify this Agreement (including the Policies) at any time without further notice and such changes or modifications will become effective upon being posted on the Site. We will indicate at the top of its first page the date the Agreement was last revised. If you do not agree to abide by these or any future versions of the Agreement, do not use or access (or continue to use or access) the Site or Games. It is your responsibility to check the Site regularly to determine if there have been changes to the Agreement and to review such changes. Back to top
Licensee Registration Data; Account Security In order to access the Games and some features of the Forums, you must create an account. To access the Games you must also become a Registered Licensee, and pay the applicable License Fee. You may not use the account or License of any other person or entity. For purposes of this Agreement, you are not a “Registered Licensee” until you have paid the applicable License Fee for each Game you wish to license. If Company grants you complimentary access to a Game for charitable purposes you are considered a “Charitable Licensee” and, as such, are subject to all the terms and conditions of this Agreement, provided, however, that your License to use such Game shall expire immediately following the event specified in your Donation Receipt form. For the avoidance of doubt: aside from references to the term and Fee for a License, all references in this Agreement to a Registered Licensee shall also include a Charitable Licensee. In addition to the other terms, conditions and covenants of this Agreement, you agree (as more fully described below) to: • provide accurate, current and complete information about you as may be requested by any registration form on or relating to the Site or Games ("Registration Data"); • maintain the security of your username and password, if any; • maintain and promptly update your Registration Data, and any other information you provide to Company, to keep it accurate, current and complete; and • be fully responsible for all use of your account and for any actions that take place using your account. You consent and authorize us to verify your Registration Data as required for your use of and access to the Site and Games. You are solely and entirely responsible for any and all activities that occur under your account, including, but not limited to, any charges incurred relating to the Site or Games. You agree to notify us immediately of any unauthorized use of your account or any other breach of security known to you. You acknowledge that the complete privacy of your data transmitted while using or accessing the Site or Games cannot be guaranteed. Company, in its sole discretion and without notice to you, may freeze or otherwise disable access to your account for a reasonable period of time to investigate any good faith suspicion Company may have regarding activities occurring under your account that may be in violation of this Agreement and/or applicable law. You agree that your failure to abide by any provision of this Agreement, the Policies or any other Company operating rule or policy, your willful provision of inaccurate or unreliable Registration Data, your failure to advise Company regarding changes in your Registration Data, and/or your failure to respond to inquiries from Company concerning the accuracy of your Registration Data shall be considered a material breach of this Agreement. If within ten (10) calendar days after Company provides notice (in any form and via any method of delivery) to you of such material breach, you fail to provide evidence, reasonably satisfactory to Company, that you have not breached your obligations under this Agreement, Company may terminate your account and any outstanding Licenses without further notice to you and without any obligation to refund any License Fee, portion thereof or other sums you may have paid to Company. Back to top
Email and Notices. You agree that Company may provide any and all notices, statements and other communications to you through the e-mail address specified in your Registration Data or, in Company’s sole discretion, by mail, express delivery service, facsimile or other electronic communication sent to the respective addresses specified in your Registration Data. Back to top
License and Site Access Contingent upon your compliance with all the terms and conditions of this Agreement, Company grants you a personal, revocable, nontransferable, and non-exclusive license to access and make use of the Site and (if you are a Registered Licensee) any Games for which you have paid the applicable License Fee, subject to the following terms and conditions: • You do not, and do not allow any third party to, copy, modify, create a derivative work from, or attempt to transfer any right in the Site or the Games; and • You do not download (other than page caching) or modify the Site or Games or any portion of either, without Company’s express written consent; and • You do not download (other than page caching), modify or exercise any other right to any Licensee Data (as defined in this Agreement) that you do not exclusively own, without a written license from the owner(s) thereof; and • You do not download (other than page caching), modify or exercise any other right to any Site Content (as defined in this Agreement), without a written license from Company; and • You abide by all the terms and conditions of this Agreement, including without limitation the requirements set forth under the section of this Agreement titled User Conduct and General Practices. Except as otherwise specifically permitted herein, this license expressly excludes any resale of any part of the Site or Games; any derivative use of the Site or the Games; any downloading or copying of any other User’s Registration Data; and any use of data mining, robots, or similar data gathering and extraction tools. Neither the Site nor the Games nor any portion thereof may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited without Company’s express written consent. The Site and Games are protected by all applicable federal and international intellectual property laws. No portion of the Site or Games may be reprinted, republished, modified or distributed in any form without Company’s express written permission. You agree not to reproduce, reverse engineer, decompile, disassemble or modify any portion of the Site or Games. Certain content and functionality may be licensed from third parties and all such third party intellectual property rights related thereto belong to the respective third parties. You acknowledge that Company reserves and retains exclusive ownership of the Site and Games and all intellectual property rights associated therewith. Except as expressly provided herein, you are not granted any right or license to patents, copyrights, trade secrets or trademarks with respect to the Site or Games, and Company reserves all rights not expressly granted hereunder. You shall promptly notify Company in writing upon your discovery of any unauthorized use or infringement of the Site or Games or Company's patents, copyrights, trade secrets, trademarks or other intellectual property rights. The Site and Games contain proprietary and confidential information that is protected by applicable law. Violations of this Agreement may result in civil and/or criminal liability. We have the right to investigate occurrences that may involve such violations and may provide information to and cooperate with law enforcement authorities in connection with such occurrences. Back to top
License Term and Termination. If you are a Charitable Licensee, the term of your License shall expire immediately following the event specified in your Donation Receipt form. If you are a Registered Licensee, the term of your License shall be perpetual, commencing upon Company’s collection of the applicable License Fee. Your License is non-exclusive, non-transferrable and revocable upon your breach of any provision of this Agreement. Your License will terminate immediately if you fail to comply with any term or condition of this Agreement. In such event, no notice shall be required by Company to effect such termination. Any breach by you of any terms or conditions herein, including but not limited to timely payment of all License Fees, shall be deemed material.
Either Party may terminate your License immediately by written notice if the other Party makes an assignment for the benefit of creditors, becomes subject to a bankruptcy proceeding or is subject to the appointment of a receiver. License Fees collected by Company are nonrefundable, notwithstanding termination of your License for any reason or by any Party. Back to top Licensee Data. In this Agreement, the term “Licensee Data” means any data, information or other materials of any nature whatsoever you upload, enter or post on, at or through the Site, or by any other means, in the course of registering for, implementing and/or using the Site. You acknowledge, consent and agree that Company may access, preserve and disclose your account information and Licensee Data if required to do so by law or in a good faith belief that such access, preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the Agreement; (c) respond to claims that any Licensee Data violates the rights of third parties; (d) respond to your requests for customer service; or (e) protect the rights, property or personal safety of Company, its Users and the public. Company may in its sole discretion, but shall not be required, to retain Licensee Data for purposes of convenience in order to accommodate Users who may wish at a later time to renew or purchase additional Licenses. Company makes no representation that your Licensee Data will be available for this purpose, following termination of your License. Back to top
User Conduct and General Practices Without limiting any other provision of this Agreement, you agree not to use the Site or the Games in any unlawful manner or, without limitation, to: • harvest or collect email addresses or other contact information from others by electronic or other means; • damage, disable, overburden or impair the Site; • use automated scripts to collect information from or otherwise interact with the the Site; • upload, post, transmit, share, store or otherwise make available any content that we deem to be harmful, threatening, unlawful, defamatory, infringing, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, invasive of privacy or publicity rights, hateful, or racially, ethnically or otherwise objectionable; • impersonate any person or entity, or falsely state or otherwise misrepresent yourself, your age or your affiliation with any person or entity; • upload, post, transmit, share or otherwise make available any unsolicited or unauthorized advertising, solicitations, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation; • upload, post, transmit, share, store or otherwise make publicly available any private information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers; • solicit personal information from anyone under 18 or solicit passwords or personally identifying information for commercial or unlawful purposes; • upload, post, transmit, share or otherwise make available any material that contains 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; • intimidate, “stalk” or harass another; • upload, post, transmit, share, store or otherwise make available content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law; • use or attempt to use another's account, or create a false identity on the Site; • provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) pursuant to Section 219 of the Immigration and Nationality Act; and/or • upload, post, transmit, share, store or otherwise make available content that, in the sole judgment of Company, is objectionable or which may expose Company or its Users to any harm or liability of any type. You understand that the technical processing and transmission of your Licensee Data may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. You agree that Company has no responsibility or liability for the deletion or failure to store any communications, Licensee Data or Site Content. You further acknowledge that Company reserves the right to modify these general practices and limits from time to time. Company reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Site and Games (or any part thereof) with or without notice. You agree that Company shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Site or Games. Back to top
User Representations By accepting this Agreement you expressly warrant and represent the following to Company and acknowledge that Company is relying upon such warranties and representations: • That all factual assertions you have made and will make to us are true and complete; that you have reached the age of majority and are otherwise competent to enter into contracts in your jurisdiction; and that in any event you are at least 18 years of age. • That you have obtained and hold all rights, approvals, consents, licenses and/or permissions, in proper legal form, necessary to submit Licensee Data on the terms provided herein and to grant Company the licenses set forth herein. • That no other rights, approvals, consents, licenses and/or permissions are required from any other person or entity to submit your Licensee Data on the terms provided herein or to grant Company the licenses set forth herein. • That your Licensee Data does not infringe on the personal, privacy, publicity or intellectual property rights of any person or entity, and that neither it nor the act of submitting it to Company is otherwise actionable at law or equity. • That you have neither intentionally nor with gross negligence submitted any Licensee Data containing or producing any virus or other harmful code or other information that could damage or otherwise interfere with our computer systems or data and/or that of our Users. • You agree to sign and deliver to Company any additional documents that Company may request to confirm Company’s rights and your warranties and representations under this Agreement, without the necessity of additional consideration. • You acknowledge that Company is relying upon the representations, warranties and covenants you have made herein. You agree to and hereby do indemnify Company, its licensees, assigns, customers and corporate affiliates against, and hold them harmless from, any loss, expense (including reasonable attorney fees and expenses), or damage occasioned by any claim, demand, suit, recovery, or settlement arising out of any breach or alleged breach of any of the representations, warranties or covenants made herein or arising out of any failure by you to fulfill any of the representations, warranties, or covenants you have made herein. You are solely responsible at your own cost and expense for creating backup copies and replacing any Licensee Data you post or store on the Site or otherwise provide to Company.
You shall retain all ownership rights in and to your Licensee Data. Notwithstanding, when you post, transmit or share Licensee Data, you authorize and direct us to make such copies thereof as we deem necessary in order to facilitate the storage of such Licensee Data. You understand and agree that Company may in its sole discretion retain server copies of Licensee Data that have been removed or deleted. COMPANY DOES NOT CONTROL LICENSEE DATA POSTED TO THE SITE AND COMPANY EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY IN CONNECTION WITH LICENSEE DATA. Back to top
Co-Branding, Framing, Metatags and Linking Except as specifically authorized herein, you may not co-brand the Site or Games. For purposes of this Agreement, "co-branding" means to display a name, logo, trademark, or other means of attribution or identification of Company in such a manner as is reasonably likely to give the impression that you have the right to display, publish, or distribute the Site or Games or content accessible within the Site or Games. You agree to cooperate with Company in causing any unauthorized co-branding immediately to cease. You may not frame or use framing techniques to enclose any Company trademark, logo, or other proprietary information (including but not limited to images, text, page layout, and form) without Company’s express written consent. You may not include Company’s name or trademarks in any metatags or any other "hidden text" without Company’s express written consent. You are granted a limited, revocable, nonexclusive license to create a hyperlink to the Site’s home page, provided that you comply with all of the following: • The link must be a text-only link clearly marked “NIGHT OF MYSTERY” or "www.nightofmystery.com” • The link must "point" to the URL <http:// www.nightofmystery.com> and not to any other page within or without the Site; • The link, when activated by any person, must display the Site full-screen and not within a "frame" on the linking or any other site; • The link shall not portray Company or its products or the Games in any false, misleading, disparaging or otherwise offensive manner; • The link may not use any Company logo or other proprietary graphic or trademark as part of the link without Company’s prior express written permission; and • The appearance, position and other aspects of the link must not be such as to damage or dilute the goodwill associated with our name and trademarks or create any false appearance that we are associated with or sponsor the linking or any other site. We reserve the right to revoke this license to link at any time in our sole discretion, without notice. Any unauthorized activity by you as set forth in this provision shall result in the immediate and automatic termination of your account and all permission, rights and/or licenses granted to you by Company, and may also result in such additional action as Company deems necessary to protect and enforce its legal rights. Back to top
Copyright and Trademark Notices Except for Licensee Data, all content included on the Site and the Games, including but not limited to text, directions, graphics, logos, layout, design, button icons, images, data compilations, code and source code, multimedia content (including but not limited to images, illustrations, audio and video clips), html and other mark up languages, all scripts within the Site or associated therewith and all other work and intellectual property of any type or kind, whether patentable or copyrightable or not (hereinafter, without limitation, “Site Content”), is the property of Company or its content suppliers and is protected by United States and international copyright laws with All Rights Reserved. The compilation of all Site Content on the Site is the exclusive property of Company and is protected by United States and international copyright laws with All Rights Reserved. All software used on this site is the property of Company or its software suppliers and is protected by United States and international copyright laws with All Rights Reserved. The trademark NIGHT OF MYSTERY, as well as individual Game names and all logos, URLs and trade dress related to the Site and the Games (collectively, the “Company Marks”) are exclusively owned by Company. Other trademarks, service marks, logos, labels, product names and appearing in Site Content and not owned by Company or its subsidiaries, are the property of their respective owners. You agree not to copy, display or otherwise use any Company Marks without Company’s prior written permission. Company Marks may never be used in any manner likely to cause confusion, disparage or dilute the Company Marks and/or in connection with any product or Games that is not authorized or sponsored by Company. You may not remove or alter, or cause to be removed or altered, any copyright, trademark, trade name, service mark, or any other proprietary notice or legend appearing on any Site Content. Back to top
Parental Control Protections. Pursuant to 47 U.S.C. Section 230 (d), as amended, we hereby notify you that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available at http://internet-filter-review.toptenreviews.com Back to top
Special Admonitions for International Use We make no representation that products or services available on or through the Site are appropriate or available for use in locations other than the United States of America. Those who choose to access the Site from other locations do so on their own initiative and at their own risk, and are responsible for compliance with local laws, if and to the extent local laws are applicable. Products, including software, made available through the Site are further subject to United States export controls. We reserve the right to limit the availability of the Site and/or Games to any person, geographic area or jurisdiction, at any time and in our sole discretion. Back to top Digital Millennium Copyright Act (DMCA) Policy and Notification Section 512 of the Copyright Law of the United States (17 U.S.C. §512) limits liability for copyright infringement by service providers if the service provider has designated an agent for notification of claimed infringement by providing contact information to the Copyright Office and through the service provider’s website. Night of Mystery, Inc. has designated an agent to receive notification of alleged copyright infringement (our agent is identified below). This notification is made without prejudice or admission as to the applicability of the Digital Millennium Copyright Act, 17 U.S.C., Section 512, to Night of Mystery, Inc. Back to top
How to report a claim of infringement If you believe that any of your exclusive rights under United States copyright law have been violated in a manner that constitutes infringement, and that the allegedly infringing material is accessible on the Site or through Night of Mystery, Inc. as an online service provider, you must notify our designated agent. The law requires that to be valid, your claim of copyright infringement must be written and addressed to our agent (identified below) and must provide the following information (the list below comes straight from the statute; if you do not understand the language please seek independent advice): • 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 at a single online site are covered by a single notification, a representative list of such works at that 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 the service provider to locate the material; • Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted; • A statement that the complaining party has 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 the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
When filing an infringement claim, please include any URLs identifying the allegedly infringing material along with any other information that might assist our agent’s investigation of your claim. Upon receipt of a valid claim (i.e., a claim in which all required information is substantially provided) Night of Mystery, Inc. will undertake to have the disputed material removed from public view. We will also notify the user who posted the allegedly infringing material that we have removed or disabled access to that material. Night of Mystery, Inc. has no other role to play either in prosecuting or defending claims of infringement, and cannot be held accountable in any case for damages, regardless of whether a claim of infringement is found to be true or false. Please note: If you materially misrepresent that material infringes your copyright interests, you may be liable for damages (including court costs and attorneys fees) and could be subject to criminal prosecution.
How to make a counter notification • If you are a User and you feel that material that you have placed online that has been removed following an infringement complaint is in fact NOT an infringement, you may file a counter notification. Section 512 (g)(3) requires that to be valid, the counter notification must be written and addressed to our agent (identified below) and must provide the following information (again, the list below comes straight from the statute; if you do not understand the language please seek independent advice): • A physical or electronic signature of the subscriber; • Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled; • A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and • The subscriber's name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber's address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person. Our designated agent will present your counter notification to the person who filed the infringement complaint. Once your counter notification has been delivered, Night of Mystery, Inc. is allowed under the provisions of Section 512 to restore the removed material in not less than ten or more than fourteen days, unless the complaining party serves notice of intent to obtain a court order restraining the restoration. It is Night of Mystery, Inc.’s policy to terminate users who are found to be repeat infringers.
Night of Mystery, Inc.’s designated agent is RANDI STRAND. By e-mail: firstname.lastname@example.org (Subject line: DMCA) By mail: Night of Mystery, Inc., 21892 E. Powers Dr., Centennial, CO 80015. Attn: Randi Strand
Disclaimer of Warranties. You acknowledge that the Site may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and that Company shall not be responsible to you or others for any such interruptions, errors or problems or for discontinuance of the Site or Games. A possibility exists that the Site or Games could include inaccuracies or errors, or information or materials that violate this Agreement. Although we attempt to ensure the integrity of the Site and Games, we make no guarantees as to their completeness or correctness. In the event that a situation arises in which the Site's or a Game’s completeness or correctness is in question, you agree to contact us including, if possible, a description of the material to be checked, as well as information sufficient to enable us to contact you. We will make best efforts to address your concerns as soon as reasonably practicable. Company disclaims any and all responsibility for the deletion, failure to store, misdelivery or untimely delivery of any information or Licensee Data. Company disclaims any and all responsibility for harm resulting from downloading or accessing any information, Licensee Data or Site Content on the Internet or through the Site. THIS SITE AND GAMES, INCLUDING ANY CONTENT OR INFORMATION CONTAINED THEREIN, ARE PROVIDED “AS IS,” WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, AND WITHOUT PREJUDICE TO DISCLAIMERS FOUND ELSEWHERE IN THIS AGREEMENT, COMPANY AND ITS OWNERS, AFFILIATES, LICENSORS, SUPPLIERS, SPONSORS, EMPLOYEES AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. COMPANY AND ITS OWNERS, AFFILIATES, LICENSORS, SUPPLIERS, SPONSORS, EMPLOYEES AND AGENTS DISCLAIM ANY AND ALL WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF ANY COMPANY PRODUCT OR SERVICE. COMPANY AND ITS OWNERS, AFFILIATES, LICENSORS, SUPPLIERS, SPONSORS, EMPLOYEES AND AGENTS DISCLAIM ANY AND ALL WARRANTIES FOR ANY INFORMATION OR ADVICE OBTAINED THROUGH THE SITE. NO OPINION, ADVICE OR STATEMENT OF COMPANY OR ITS OWNERS, AFFILIATES, LICENSORS, SUPPLIERS, SPONSORS, EMPLOYEES, AGENTS, USERS OR VISITORS, WHETHER MADE ON THE SITE OR OTHERWISE, SHALL CREATE ANY WARRANTY. COMPANY AND ITS OWNERS, AFFILIATES, LICENSORS, SUPPLIERS, SPONSORS, EMPLOYEES AND AGENTS DISCLAIM ANY AND ALL WARRANTIES FOR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SITE OR RECEIVED THROUGH ANY LINKS APPEARING ANYWHERE ON THE SITE, AS WELL AS FOR ANY INFORMATION OR ADVICE RECEIVED THROUGH ANY LINKS PROVIDED ANYWHERE ON THE SITE.
COMPANY AND ITS OWNERS, AFFILIATES, LICENSORS, SUPPLIERS, SPONSORS, EMPLOYEES AND AGENTS DO NOT WARRANT THAT YOUR USE OF THE SITE WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE OR THE SERVER(S) ON WHICH THE SITE IS HOSTED ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE THAT YOU ARE RESPONSIBLE FOR OBTAINING AND MAINTAINING ALL TELEPHONE, COMPUTER HARDWARE AND OTHER EQUIPMENT NEEDED TO ACCESS AND USE THE SITE, AND ALL CHARGES RELATED THERETO. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SITE AND ANY GAMES AND YOUR RELIANCE THEREON. YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN MATERIAL, INFORMATION OR DATA THROUGH THE USE OF THE SITE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL, INFORMATION OR DATA. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION. PROVIDED, HOWEVER, THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW YOU HEREBY WAIVE THE PROVISIONS OF ANY STATE LAW LIMITING OR PROHIBITING SUCH EXCLUSIONS. Back to top
Limitation of Liability. NEITHER COMPANY NOR ANY OF OUR AFFILIATES, LICENSORS, SUPPLIERS OR SPONSORS, NOR OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AGENTS OR OTHER REPRESENTATIVES (TOGETHER, FOR PURPOSES OF THIS SECTION, “COMPANY”), ARE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, PERSONAL INJURY, DAMAGES FOR LOSS OF BUSINESS, LOSS OF DATA OR LOST PROFITS), UNDER ANY CONTRACT, NEGLIGENCE, WARRANTY, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO USE OR MISUSE OF OR RELIANCE ON THE SITE OR THE GAMES OR ANY LINKED SITE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IN NO EVENT SHALL COMPANY’S TOTAL CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL FEE, IF ANY, PAID BY YOU TO COMPANY. SUCH LIMITATION SHALL APPLY WITH RESPECT TO THE PERFORMANCE OR NONPERFORMANCE OF THE SITE OR ANY COMPANY PRODUCT OR ANY INFORMATION OR MERCHANDISE THAT APPEARS ON, OR IS LINKED OR RELATED IN ANY WAY TO, THE SITE. SUCH LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. PROVIDED, HOWEVER, THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW YOU HEREBY WAIVE THE PROVISIONS OF ANY STATE LAW LIMITING OR PROHIBITING SUCH EXCLUSIONS OR LIMITATIONS.
WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES SHALL COMPANY BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ACTS OF NATURE, FORCES, OR CAUSES BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET FAILURES, COMPUTER EQUIPMENT FAILURES, TELECOMMUNICATION EQUIPMENT FAILURES, OTHER EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES, LABOR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOR OR MATERIALS, FIRES, FLOODS, STORMS, EXPLOSIONS, ACTS OF GOD, EPIDEMIC, WAR, GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS, NON-PERFORMANCE OF THIRD PARTIES, OR LOSS OF OR FLUCTUATIONS IN HEAT, LIGHT, OR AIR CONDITIONING. Back to top
Submissions You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Site or the Games ("Submissions") provided by you to Company are non-confidential and shall become the sole property of Company. You hereby assign to Company all exclusive rights, including all intellectual property rights, to Submissions and Company shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without notice, attribution or compensation to you. Back to top
Miscellaneous. Your rights under this Agreement are not assignable.
This Agreement is binding on the Parties and their respective heirs, legatees, executors, successors and assigns. Except for Policies and other agreements incorporated by reference herein, this Agreement is the entire agreement between the Parties and supersedes all prior written or oral agreements between the Parties relating to the subject matter hereof, including but not limited to any and all prior written or oral representations made by any independent Company agent. If any portion of this Agreement is found to be void or unenforceable, the remaining portion shall be enforceable with the invalid portion removed, giving all reasonable construction to permit the essential purposes of the Agreement to be achieved. The Parties’ various rights and remedies hereunder shall be construed to be cumulative.
This Agreement shall be deemed to have been made in the United States of America, State of Wisconsin, and it shall be governed by the substantive laws of the State of Wisconsin without regard to any applicable conflict of laws provisions. The Parties submit to jurisdiction in the state and federal courts sitting in Dane County, Wisconsin, USA, and you hereby waive any jurisdictional, venue or inconvenient forum objections.
Nothing contained in this Agreement shall be construed to require the commission of any act contrary to law. Nothing in this Agreement shall be construed or deemed to create any partnership, agency, joint venture, employment or franchise relationship between the Parties.
Captions and headings used in this Agreement are for purposes of convenience only and shall not be deemed to limit, affect the scope, meaning or intent of this Agreement, nor shall they otherwise be given any legal effect.
No breach of this Agreement by Company shall be deemed material unless you shall have given Company written notice of such breach, and Company shall fail to cure such breach within thirty (30) days after its receipt of such notice.
All notices required to be sent to Company under this Agreement shall be in writing and shall be sent by certified mail, return receipt requested, postage paid, or by overnight delivery service, to Night of Mystery, Inc., 1955 Knotty Pine Drive, Green Bay, WI 54304, Attention: Legal (or such other address or addresses as may be designated by Company herein).
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Site or Games must be filed within one (1) year after such claim or cause of action arose or be forever barred.
Notice for California Users. Under California Civil Code Section 1789.3, California Users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210. The provider of services is Night of Mystery, Inc., 1955 Knotty Pine Drive, Green Bay, WI 54304. There is a charge for licensing the Games. Charges are available by contacting Company at the above address, Attention: Customer Service.
You agree to defend, indemnify and hold Company harmless against any losses, expenses, costs or damages (including any reasonable attorneys' fees and costs) arising from, incurred as a result of, or in any manner related to any claim or action based upon (a) your breach of the terms and conditions of this Agreement, (b) your use of the Games, and/or (c) the use of the Games by any other person using your account or License. Company may participate in the defense of any such claim or action and any negotiations for its settlement or compromise. No settlement which may adversely affect our rights or obligations shall be made without our prior written approval. Back to top
Acceptance of Electronic Contract You agree that this Agreement has the same legal force and effect as a written contract with your written signature and that it satisfies any laws that require a writing or signature, including any applicable statute of frauds. You further agree that you shall not challenge the validity, enforceability or admissibility of this Agreement on the grounds that it was electronically transmitted or authorized. A printed version of this Agreement shall be admissible in judicial or administrative proceedings based upon or relating to the Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You acknowledge that you have had the opportunity to print this Agreement. Back to top
FINANCIAL TERMS AND CONDITIONS
Currency License Fees are based on United States dollars. Payments for same shall be made to Company in United States dollars. Back to top
Stale Checks. Checks issued by Company to any User, for any purpose, are VOID after 180 days from the date of issue. Users who fail to cash Company-issued checks within such 180-day period will be charged a $5.00 fee for re-depositing funds from the stale check to the User’s Account. Users requesting replacement checks will be charged an additional $5.00 fee for issuance of the replacement check.
YOU HEREBY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS