TERMS OF SERVICE
1. YOU MUST AGREE TO THIS TERMS OF SERVICE AGREEMENT BEFORE USING OUR WEBSITE AND/OR PLAYING OUR GAMES
This Terms of Service Agreement (“Agreement”) informs you of the terms, conditions, disclaimers, notices and policies (collectively the “Terms”) that apply to your access and use of the website of Insomniac Games, Inc. (“Insomniac”), located at the URL www.insomniacgames.com (“Site”) and any and all games and related products, including virtual goods, provided by Insomniac (“Games”). Collectively, the Site and the Games are referred to as the “Services” in this Agreement. Many of these Games may be playable by one or more persons simultaneously (each a “User” and collectively “Users”), and the conduct of all such Users while playing the Games or using the Site is governed by this Agreement.
This Agreement is a binding contract between you and Insomniac that provides for important rights and obligations. By accessing, browsing, and/or using the Services and/or playing, downloading or browsing our Games you represent to Insomniac that you have read, understood and agree to be bound by this Agreement and all applicable local, state, national and international laws and conventions, including without limitation all intellectual property laws. Insomniac reserves the right, at its sole and absolute discretion, to deny any User access to the Services, without notice. If you violate any of the Terms, we may, at our option, give you a warning notice of violation or terminate your account immediately for violation of the Terms.
IF YOU DO NOT AGREE TO ALL OF THESE TERMS, YOU MUST NOT ACCESS OR USE THE SITE OR ACCESS OR USE OUR GAMES.
2. ELIGIBILITY TO ACCEPT AGREEMENT AND USE THE SITE
You must be at least 13 years of age to access and use the Services. There is no exception to this requirement. Insomniac does not knowingly collect any personal information from children under the age of 13 that falls within the Children’s Online Privacy Protection Act and Rule. By your use of the Services, you agree that you are either 18 years of age or older, or an emancipated minor, or possess legal parental or guardian consent, and that you are fully able and competent to understand and accept this Agreement as a binding contract and to abide by all Terms.
3. INSOMNIAC’S RIGHT TO MODIFY AGREEMENT
Insomniac may modify this Agreement at any time, with or without notice to you, by posting the modified Agreement on the Site. Your continued use of the Services after such modification shall be deemed to be your acceptance of any such modification. Any such modification will only apply to matters and events which occur following the date of modification. You may not modify this Agreement without the prior written authorization of an officer of Insomniac. It is your responsibility to check this Agreement regularly to determine whether the Agreement has been modified. IF YOU DO NOT AGREE TO ANY MODIFICATION OF THIS AGREEMENT YOU MUST IMMEDIATELY CEASE USE OF THE SITE AND UNINSTALL ANY GAMES YOU MAY HAVE INSTALLED ON YOUR COMPUTER OR OTHER INTERACTIVE DEVICE OR PLATFORM.
4. POLICY ON PRIVACY
5. POLICY ON USER PURCHASES ON THE SITE
The Services include the Digital Services Agreement relating to your purchase of cash, coins, chips or any of Insomniac’s or a third party’s virtual currency on the Site, and the purchase any Insomniac products or services through which you can use such virtual currency. By using the Services, you are consenting to the Digital Services Agreement.
6. INSOMNIAC’S OWNERSHIP OF THE SERVICES AND PROPRIETARY MATERIALS
The Services contain copyrighted material, technology, trademarks, service marks, trade secrets and other proprietary information, which may include computer code, text, data, video, images, illustrations, animations, sounds, musical compositions and recordings, audiovisual effects, color schemes, business methods and methods of operation, concepts, ideas, know-how, moral rights, and any related documentation (collectively the “Proprietary Material”). All intellectual property rights to the Proprietary Material, including patent, copyright, trademark and trade secret rights, are owned or licensed by Insomniac. You agree not to copy, download, reproduce, republish, upload, post, transmit, perform, display, distribute or sell, or in any other way exploit the Proprietary Material, or to participate with or to encourage others to engage in such acts, without the prior written consent of Insomniac. Moreover, you may not reverse engineer, disassemble, decompile, or translate any computer software programs that comprise Proprietary Material, or otherwise attempt to derive the source code of such programs, except to the extent allowed under any applicable law. If applicable law permits such activities, any information so discovered must be promptly disclosed to Insomniac and shall be deemed to be the confidential proprietary information of Insomniac. Nor may the Proprietary Material, or any portion thereof, be modified or used for any purpose other than as expressly authorized in this Agreement. The Proprietary Material may include materials licensed by Insomniac from third parties. The licensors of those materials are an intended beneficiary of this Agreement and may enforce their rights in the event of any violation of this Agreement.
ALL RIGHTS NOT EXPRESSLY GRANTED TO YOU IN THIS AGREEMENT ARE RESERVED BY INSOMNIAC AND ITS LICENSORS.
7. OWNERSHIP OF IDEAS INVENTIONS AND USER SUBMISSIONS INCLUDING USER-GENERATED CONTENT
The Services provide you with access to a variety of resources, materials and downloads, and may allow you access content made available by Insomniac and other Users. Such content may include, without limitation, game levels, content creation tools, audio, video, film, music, text, communications, software, graphics, images, and information. All such content made available by you or by other Users of the Services is referred to in this Agreement as “User-Generated Content.” As between Insomniac and you, you own the copyright in any User-Generated Content that is exclusively created by you. You expressly acknowledge and agree that any User-Generated Content that you make available through the Services may be made freely available by Insomniac to others, including without limitation for download by others.
You further acknowledge and agree that this permission is made and granted by you in consideration of your use of the Services, and that this permission constitutes a world-wide, nonexclusive, perpetual, royalty-free, irrevocable and transferable license to Insomniac to use, copy, perform, display and distribute such User-Generated Content, and to grant and authorize sublicenses of such User-Generated Content to others.
All comments, feedback, suggestions, gameplay features, level designs, and other submissions (“User Ideas”) disclosed, submitted, or offered to Insomniac shall be the exclusive property of Insomniac. Unless otherwise prohibited by law, Insomniac may use, sell, exploit, or create derivative works from these User Ideas and, further, Insomniac may disclose these User Ideas to third parties or the general public, without compensation to you.
You acknowledge that User Ideas and User-Generated Content are provided by you on a completely voluntary basis. Should you not wish to have your User Ideas or User-Generated Content incorporated into any game or website functions, you may choose not to share them with Insomniac on the Site.
8. TERMINATION OF GAMES OR SERVICE
Insomniac may terminate access to any or all Games and/or Services at any time by giving you notice of such termination within the time period specified when you consented to the Services, or if no time period for notice of termination was specified, then no less than thirty (30) days of the date such notice is either provided to you, at Insomniac’s discretion, either by email or by posting on the Site.
9. PROHIBITED USER-GENERATED CONTENT
(a) constitutes or includes any illegal or unauthorized copy, in whole or in part, of another person’s copyrighted or copyrightable work, discloses trade secrets without authorization, or otherwise violates the proprietary rights of a third party;
(b) misrepresents the source or identity of any material;
(c) is unlawful, obscene, defamatory, libelous, threatening, abusive, harassing, promotes racism, bigotry, hatred or physical harm of any kind against any individual or group, or encourages any other conduct that would be considered a criminal offense, creates civil liability, or is otherwise offensive to Users of the Services or is otherwise inappropriate;
(d) violates the rights of privacy or publicity of any person;
(e) is false or deceptive;
(f) displays pornographic or sexually explicit material of any kind;
(g) includes material that exploits people under the age of 18 in a sexual or violent manner;
(h) is an advertisement or solicitation to sell a product or service to Users of the Site, or constitutes any other commercial use of the Site, without the prior written consent of Insomniac;
(i) is unlawful under the laws of the United States or any individual state or locality, the laws of any foreign jurisdiction, or any international treaty or convention; or
(j) interferes with the proper functioning of the Services or the Site, or violates any other of the Terms of this Agreement.
You should not post any User-Generated Content if you are in doubt about its legality or its prohibition by the Terms.
You acknowledge that Insomniac is a service provider that may allow Users to interact online regarding topics and content self-chosen by the Users. Insomniac does not endorse any User-Generated Content or any opinion, recommendation or advice that may be expressed. Insomniac generally does not regulate and shall have no obligation to monitor any User-Generated Content. Nonetheless, Insomniac and its agents shall have and reserve the right to monitor any User-Generated Content from time to time for any lawful purpose. Insomniac may, without notice to you, remove or block any User-Generated Content, including disabling access to such User-Generated Content. Insomniac also may terminate your access to the Site and refer the User-Generated Content to law enforcement if it is in violation of any state, federal or local law.
10. PROHIBITED USER CONDUCT
Subject to the permitted use of the Services granted in this Agreement, you may not, in whole or in part, copy, photocopy, reproduce, translate, reverse engineer, derive source code from, modify, disassemble, decompile, or create derivative works based on the Service, or remove any proprietary notices or labels from the Service. Failure to comply with the restrictions and limitations contained in this Section 8 will result in the immediate, automatic termination of your access to the Services and may subject you to civil and/or criminal liability.
You further agree that you will not, under any circumstances:
(a) frame or otherwise display any portion of the Services or its contents that is not your User-Generated Content without prior authorization;
(b) sell, grant a security interest in, or transfer reproductions of all or any portion of the Services to other parties in any way not expressly authorized herein, nor shall you rent, lease or license all or any portion of the Services to others;
(c) exploit the Services or any of its parts for any commercial purpose whatsoever without the express prior written authorization of Insomniac;
(d) host, provide or develop services for or using the Services, or intercept, emulate or redirect the communication protocols used by Insomniac in any way, including without limitation through protocol emulation, tunneling, packet sniffing, modifying or adding components to the Services, use of a utility program or any other techniques now know or hereafter developed, for any purpose, including without limitation unauthorized access in any form over the Internet;
(e) facilitate, create or maintain any unauthorized connection to the Services, or any portion thereof, including without limitation any connection to any unauthorized server that emulates, or attempts to emulate, the Services. All connections to the Services, or any portion thereof, may only be made through methods and means expressly approved by Insomniac. Under no circumstances may you connect, or create tools that allow you or others to connect to the Services, or any portion thereof, other than those expressly provided by Insomniac;
(f) to develop or allow any malware, adware, spyware, Trojan Horses, cancelbots, other automated “bots”, “auto players”, cheat utilities, spoofers, keyloggers, or other circumvention devices to be present on any machine used to access the Services; and/or to attempt to upload/utilize such devices against the Services;
(g) use vulgar, obscene, pornographic language or other behavior while in the forums, chat rooms, or other public areas that will disrupt the User experience in those areas of the Site;
(h) use the Services in connection with any contests, surveys, chain letters, pyramid schemes or other similar services, whether or not they are used for commercial gain;
(i) collect, harvest, scrape or capture any User information, email addresses or other personal data of the Users to send unsolicited emails or any other communication, whether this is done for commercial gain; or
(j) use the Services in a manner prohibited by any applicable law or government regulation, or by the Terms.
Insomniac expressly reserves the right to monitor any/all network traffic between the User(s) and the Services to prevent the use of said means to compromise the Services
11. USER REGISTRATION AND ACCOUNT SECURITY
As a condition to using certain components of the Services, you may be required to register with Insomniac and select a password and screen name (“User ID”) to obtain a personal account. In cases where you do not choose a user name/screen name, Insomniac may automatically assign you a user ID to identify you to our servers.
You agree to provide Insomniac with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of the Terms, which may result in immediate, automatic termination of your access to the Services. You may not select or use as a User ID a name of another person with the intent to impersonate that person; use as a User ID a name subject to any rights (including trademarks or copyrights) of a person other than you without appropriate authorization; or use as a User ID a name that is otherwise offensive, vulgar or obscene. Insomniac reserves the right to refuse registration of, or to cancel, a User ID in its sole and absolute discretion. Notwithstanding the foregoing, you acknowledge that Insomniac cannot guaranty the accuracy of any information submitted by any User of the Services, nor any identifying information about any User.
You are solely responsible for the activity that occurs through your account. You shall be solely responsible for maintaining the confidentiality of your password. You may not share your account with a third party or use the account of a third-party. You agree to notify Insomniac immediately in writing of any unauthorized use of your account, or other account-related security breach of which you are aware. You may cancel your account at any time upon written notice to Insomniac.
12. GENERAL DISCLAIMERS
(a) THE SERVICES AND ANY ACCOMPANYING DOCUMENTATION AND MATERIAL ARE BEING PROVIDED TO YOU “AS IS” WITHOUT WARRANTY OF ANY KIND WHATSOEVER. WITHOUT LIMITING THE INTENDED GENERALITY OF THE PRECEDING SENTENCE, INSOMNIAC DOES NOT WARRANT THAT THE SERVICES OR ANY PORTION THEREOF (i) WILL BE UNINTERRUPTED, SECURE OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED; (ii) IS COMPATIBLE WITH ANY SOFTWARE, INCLUDING WITHOUT LIMITATION INTERNET BROWSER SOFTWARE; (iii) IS FREE OF INFECTION BY VIRUSES, WORMS, TROJAN HORSES OR ANYTHING ELSE MANIFESTING CONTAMINATING OR DESTRUCTIVE PROPERTIES; OR (iv) IS FREE OF DEFAMATORY, DEROGATORY OR ADULT-ORIENTED MATERIAL, OR MATERIAL THAT SOME INDIVIDUALS MAY DEEM OFFENSIVE OR OBJECTIONABLE. TO THE FULLEST EXTENT ALLOWED BY LAW, INSOMNIAC DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE.
(b) INSOMNIAC IS NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SERVICES. UNDER NO CIRCUMSTANCES WILL INSOMNIAC BE RESPONSIBLE FOR ANY LOSS OR DAMAGE, INCLUDING PERSONAL INJURY OR DEATH, RESULTING FROM YOUR USE OF THE SERVICES, ANY USER-GENERATED CONTENT POSTED ON THE SITE OR TRANSMITTED TO ANOTHER USER, OR ANY TRANSACTIONS BETWEEN OR AMONG YOU AND OTHER USERS, WHETHER ONLINE OR OFFLINE.
(c) THE SERVICES ARE CONTROLLED AND PROVIDED BY INSOMNIAC FROM ITS FACILITIES IN THE UNITED STATES OF AMERICA. INSOMNIAC MAKES NO REPRESENTATION THAT THE SITE OR THE SERVICES ARE APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS. IF YOU ACCESS OR USE THE SITE OR THE SERVICES FROM OUTSIDE THE UNITED STATES, YOU DO SO VOLUNTARILY AND ARE RESPONSIBLE FOR COMPLIANCE WITH THE LAWS APPLICABLE TO YOUR LOCATION.
13. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT ALLOWED BY LAW, INSOMNIAC, INCLUDING ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS, SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, COMPENSATORY, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SAME. YOU UNDERSTAND AND AGREE THAT INSOMNIAC CANNOT AND WILL NOT BE RESPONSIBLE FOR ANY LOSS OF YOUR USER GENERATED CONTENT OR ANY INTERRUPTIONS OF SERVICE, INCLUDING BUT NOT LIMITED TO ISP DISRUPTIONS, SOFTWARE OR HARDWARE FAILURES, OR ANY OTHER EVENT WHICH MAY RESULT IN A LOSS OF DATA OR A DISRUPTION OF SERVICE.
14. LINKS TO THIRD-PARTY WEBSITES
Solely as a convenience to Users, Insomniac may provide links on the Services to other websites ownedby third-parties. Unless otherwise expressly stated, Insomniac does not endorse or control these third-party websites and assumes no responsibility for them or the content contained therein.
15. USE OF THE SERVICES OUTSIDE OF THE UNITED STATES
The Services are controlled and operated by Insomniac in the State of California, United States of America. Insomniac makes no representations or warranties, either express or implied, that Services and other materials available through the Services are appropriate, legally permissible or available for use in other locations. Those who choose to access the Service from other locations do so at their own risk and are responsible for compliance with all federal, state and local laws.
Whether or not you use the Services inside the United States of America, you agree to abide by any applicable export control laws and not to transfer, by electronic transmission or otherwise, any User Generated Content, software or other materials subject to restrictions under such laws to a national destination prohibited by such laws, without first obtaining, and then complying with, any requisite government authorization. You further agree not to upload to the Services any data or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software.
16. EQUITABLE REMEDIES
You acknowledge and agree that money damages would not be a sufficient remedy for any breach orthreatened breach of this Agreement by you. Insomniac shall be entitled to seek equitable relief, including a preliminary and final injunction and specific performance, as a remedy for any such breach. Such remedies shall not be the exclusive remedies for a breach by you, but shall be in addition to all other remedies available to Insomniac at law or in equity.
To the maximum extent permitted by law, you agree to defend, indemnify and hold harmless Insomniac, its offers, directors, employees and agents, from and against all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney fees) arising from your use of the Services, your violation of any of the Terms, your violation of any third-party right, including without limitation any copyright, trade secret, privacy or property right, or any claim that your User-Generated Content caused damage to a third-party. This defense and indemnification obligation will survive this Agreement and your use of the Services.
18. GENERAL PROVISIONS
You agree that the Services shall be deemed exclusively based in the State of California, USA, and this Agreement shall be deemed to have been made and executed exclusively in the State of California. Any dispute arising out of this Agreement shall be resolved in accordance with the laws of the State of California without reference to its conflict of law provisions. You agree that any claim asserted in any legal proceeding by you or Insomniac shall be commenced and maintained in any state or federal court located in Los Angeles County, State of California, USA, having subject matter jurisdiction with respect to such dispute. You and Insomniac agree to submit to the personal jurisdiction of such court. The prevailing party in any such proceeding shall be entitled to reimbursement of court costs, including a reasonable attorney fee, in addition to any other remedy awarded. In the event any provision of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will be enforced to the maximum extend permissible and the remaining portions of this Agreement shall remain in full force and effect. You may not transfer or assign any of your rights or obligations provided in this Agreement without the express prior written approval of Insomniac; Insomniac may assign this Agreement without restriction of any kind. No failure on the part of Insomniac to enforce any provision of this Agreement shall be deemed a waiver or consent. This Agreement constitutes and contains the entire agreement and understanding between you and Insomniac with respect to the subject matter hereof and supersedes any prior oral or written agreements or understandings.
19. DIGITAL MILLENNIUM COPYRIGHT ACT NOTICE
As an online service provider, Insomniac has adopted the following general policy regarding copyright infringement in accord with the Digital Millennium Copyright Act, 17 U.S.C. § 512 (“DMCA”). The address of Insomniac’ Designated Agent to Receive Notification of Claimed Infringement (“Designated Agent”) is:
Insomniac Games, Inc.
2255 N. Ontario Street, Suite 550
Burbank, CA 91504 USA
For any notice of infringement to be effective, the notice must include:
a. A physical or electronic signature of a person authorized to act on behalf of the intellectual property owner of an exclusive right that is allegedly infringed;
b. A description of the copyrighted work that you claim has been infringed upon;
c. A description of where the material that you claim is infringing is located on this Sites and/or in the Games;
d. Information reasonably sufficient to permit the service provider to contact the complaining party, such as address, telephone number, and, if available, an e-mail address at which the complaining party may be contacted;
e. 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
f. 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.
It is Insomniac’s policy to block access to or remove content that it believes in good faith to be copyrighted material that has been illegally copied and distributed by any User or other content provider. If you believe that User-Generated Content or other material residing on or accessible through the Site infringes a copyright, please send a notice of copyright infringement to the Designated Agent. The notice of infringement should conform to the elements of notification provided in the DMCA, Section 512(c)(3), including: (i) contact information and the physical or electronic signature of a person authorized to act on behalf of the owner of the copyright allegedly infringed; (ii) identification of the copyrighted work or material infringed; (iii) identification and location the of the content claimed to be infringing so that it may be found and verified; (iv) a statement that the complaining party has a good faith belief that the use of the content in the manner complained of is not authorized; and (v) a statement, made under penalty of perjury, that all information in the notification is accurate and that the complaining party is authorized to act on behalf of the owner of the copyright claimed to be infringed. Once proper infringement notification is received by the Designated Agent, Insomniac will remove or disable access to the claimed infringing User-Generated Content or other material; notify the accused infringing party that it has removed or disabled access to the User-Generated Content or other material; and determine appropriate measures to prevent recurrence by the accused infringing party.
The DMCA requires a service provider to give prompt notification to the accused infringing party of the copyright claim and that the accused User-Generated Content or other material has been removal or access to it has been disabled. Section 512(g). The accused infringing party may then issue a counter notification in the form provided in the DMCA, Section 512(g)(3). In such instance, Insomniac shall follow the procedures and requirements of the DMCA calling for notification to the complaining party and timely restoration of the User-Generated Content or other material alleged to be infringing.
I HEREBY ACKNOWLEDGE THAT I HAVE READ IN ITS ENTIRETY AND UNDERSTAND THE FOREGOING AGREEMENT. I AGREE THAT BY BROWSING, INSTALLING OR USING THE SERVICES I AM ACKNOWLEDGING MY AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
Modified April 11, 2012