CONDUIT VIRTUAL, INC. TERMS OF SERVICE
Last updated September 8, 2023
Welcome to Conduit Virtual. Please read these Terms of Service carefully. These Terms of Service form a legally binding agreement between you and Conduit Virtual, Inc. (“Conduit,” “we,” “us,” and “our”) regarding your access to and use of Conduit’s platform and related services (collectively, the “Platform”). You are a game developer and/or publisher in the business of developing, marketing, and/or publishing, directly or indirectly, one or more video games or other interactive software products (each a “Game” and, collectively, “Games”) and want to receive assistance from us in connection with such development, marketing, and/or publishing. The Platform, among other things, allows you to access research about your Games and your competitors, preview marketing assets, and obtain a social media plan. Services related to the Platform may include additional market research, creation of brand marketing and community assets, setting up and managing marketing channel campaigns, providing campaign reporting and analysis, and other business advice and insights, in each case, as mutually agreed upon between you and us from time to time.
We host, operate, and maintain the Platform, including performance of any related services mutually agreed upon by you and us and offered to you in connection with your authorized access to and use of the Platform (the “Services”). The Platform may comprise, among other things, the Services; one or more web sites, web pages, or web portals (collectively, the “Site”); one or more elements of software that enables you to access and use certain features and functions of the Platform (collectively, the “Software”); and related information, reports, plans, documentation, and other materials that we provide or otherwise make available to you from time to time as part of the Platform (collectively, the “Documentation”). Unless the context indicates otherwise, the term “Platform,” as used in these Terms of Service, comprises the Services, Site, Software, Documentation, and any of our related products, services, systems, technology, features, or functions (including any enhanced features or functions or premium products or services) that we offer to you from time to time as part of the Platform or in connection with your authorized access to and use of the Platform. Users of the Platform are referred to in these Terms of Service as “Users.”
AGREEMENT TO THESE TERMS OF SERVICE
Agreement to be Bound: By registering for, connecting with, subscribing to, purchasing, enrolling with, or otherwise accessing or using the Platform, you accept and agree to be bound by these Terms of Service (this “Agreement”), including the provisions below that (a) allow us, in certain circumstances, to cancel, suspend, or otherwise place limits on your access to and use of the Platform and (b) require you to resolve disputes with us by mandatory binding arbitration involving a class action waiver.
Legally Binding on You and Any Entity You Represent: This Agreement constitutes a legally binding agreement made between Conduit and any Users, whether an individual or an entity (“Developer,” “you,” “yourself,” and “your”) that registers for, connects with, subscribes to, purchases, enrolls with, or otherwise accesses or uses the Platform. In the event that you purport to be an agent or other representative of an entity (e.g., an officer or employee) or in the event that you otherwise, in fact, act on behalf of such an entity, you hereby acknowledge and agree that references in this Agreement to “Developer,” “User,” “you,” “yourself,” and “your” include such entity. Each of you and us are a “Party,” and may be referred to, collectively, as the “Parties.”
Your Affiliates: If you are an entity, you may have one or more affiliates, such as a parent or subsidiary (each, a “User Affiliate”). A User Affiliate that wishes to access and use the features and functions of the Platform must enter into this Agreement separately with Conduit by separately acquiring access to and use of the Platform. This creates a separate agreement between the User Affiliate and Conduit. Neither you nor any User Affiliate has any rights under each other’s agreement with us, and breach or termination of any such agreement is not breach or termination of any other.
If You Do Not Agree to These Terms of Service: You agree that by registering for, connecting with, subscribing to, purchasing, enrolling with, or otherwise accessing or using the Platform, you have read, understood, and agree to be bound by this Agreement on behalf of yourself and any entity that you represent. If you do not agree to all of the terms of this Agreement, do not access or use the Platform. Except for certain kinds of disputes specifically described in Section 21 below, you agree that disputes arising under this Agreement will be resolved by mandatory, binding, individual arbitration, and by accepting this Agreement, you and we are each waiving the right to a trial by jury or to participate in any class action or representative proceeding. You agree to give up your right to go to court to assert or defend your rights under this Agreement. Your rights will be determined by a neutral arbitrator and not a judge or jury. Please see Section 21 for more information.
ELIGIBILITY TO ACCESS AND USE THE PLATFORM
Age: In order to access and use the Platform, now or in the future, you must be at least 18 years of age (or the age of legal majority where you live and/or access the Platform).
Use Outside the United States: You acknowledge and understand that the Platform is designed, developed, hosted, operated, supported, maintained, and otherwise offered by us in or from the United States and that the Site, Software, and Documentation are controlled and offered by us from our facilities in the United States. The Platform is not intended for distribution to or use by any person or entity outside the United States, and we make no representations that the Platform, including the Site, Software, and Documentation, are appropriate or available for use in other locations or jurisdictions. More specifically, the Platform is not intended for distribution to or use by any person or entity in any jurisdiction where such distribution or use would be contrary to law or that would subject us to any registration requirement within such jurisdiction. Accordingly, those persons and entities that choose to access or use the Platform from locations outside the United States do so on their own initiative and are solely responsible for compliance with local laws.
Export Controls: You represent and warrant that you (and, if applicable, any entity that you represent) are not (1) located in a country that is subject to a US government embargo, or that has been designated by the US government as a “terrorist supporting” country; or (2) listed on any US government list of prohibited or restricted parties. You represent that you will comply with all US export control laws and the export control laws in your local jurisdiction.
If You Do Not Meet the Eligibility Requirements: By accessing or using the Platform, you represent and warrant that you meet all eligibility requirements. If you do not meet any such requirement, you must not access or use the Platform. We reserve the right to cancel, suspend, or otherwise limit your access to and use of the Platform, if you fail to comply with any of these eligibility requirements.
MODIFICATIONS TO THIS AGREEMENT
We reserve the right to modify the terms, conditions, limitations, and restrictions set forth in this Agreement, or any policies or Supplemental Terms (as defined below) related to your access to and use of the Platform, at any time and in our sole discretion; provided, that, in the event that we make such modifications, including introducing any such policies or Supplemental Terms, we will endeavor to notify you the next time that you access the Platform and allow you to review and accept the modifications, policies, or Supplemental Terms, as the case may be, prior to continuing. The most current version of this Agreement will be posted at www.conduit.gg/terms, and we will update the “Last updated” date at the top of this Agreement.
Separate Agreements Between You and Us: Supplemental Terms also may include express terms and conditions agreed upon and set forth in a separate, written, and signed agreement between Conduit and you or an entity you represent. If there is a conflict between the terms, conditions, limitations, or restrictions set forth in a separate, written, and signed agreement between Conduit and you or an entity you represent, the terms, conditions, limitations, and restrictions set forth in that agreement will supersede the conflicting terms, conditions, limitations, or restrictions set forth in this Agreement, only to the extent of such conflict and only as long as that agreement is signed by an authorized signatory of Conduit.
ACCESS TO AND USE OF THE PLATFORM
Permission to Access and Use the Platform: Subject to the terms, conditions, limitations, and restrictions set forth in this Agreement, we hereby grant to you, during the term of this Agreement, permission to access and use your User Account (as defined below) on any Internet-enabled device that you (or, if applicable, the entity that you represent) own or control solely for the purpose of accessing and using, on a non-exclusive, non-transferable, non-sublicensable basis, the features and functions of the Platform that we make available to you via your User Account in accordance with the Documentation, solely for your own business purposes, and not for the purpose of any external distribution or dissemination of the Platform, or any element thereof, whether for commercial or non-commercial purposes. The foregoing license includes permission to download or install any elements of the Software that we make available for you to download and install using your User Account, but you may use such elements of the Software, without modification or redistribution and only for the purposes set forth herein. You are not permitted to transfer or sublicense the foregoing license granted by us to you, including transferring access to or use of your User Account internally to other officers, employees, contractors, agents, or representatives of an entity that you represent, without our express, written consent. You are also not permitted to reproduce, modify, aggregate, republish, resell, sublicense, redistribute, re-disseminate, download, or install the Platform, including any element thereof, except as otherwise expressly permitted by this Agreement, without our express, written consent, which consent must take the form of a separate, written, and signed agreement executed by an authorized signatory of Conduit.
User Account: In order to access and use the Platform, you will need to create a user account (each, a “User Account”) with Conduit. In the event that you are an agent or other representative of an entity (e.g., an officer or employee), you and other agents and representatives of the entity each may be allowed to create User Accounts. In that event, references in this Agreement to “User Account” include all such associated User Accounts, collectively, unless otherwise expressly noted or the context clearly indicates otherwise. To create a User Account, you will be required to provide certain information and establish authentication credentials. You agree to provide accurate, current, and complete information during creation of your User Account and to update such information to keep it accurate, current, and complete. As set forth in Section 8 below, we reserve the right to cancel, suspend, terminate, or otherwise place limits on your access to and use of User Account, at any time and for any reason or no reason, with or without notice. That includes circumstances in which information provided by you, at the time of your User Account creation or later, proves to be inaccurate, not current, or incomplete. User Accounts assigned by us may be assigned to individual persons. You acknowledge that, in the case of User Accounts assigned to individual persons, each User Account is only for use by the assigned individual and is not transferable to any other individual (e.g., other officers, employees, contractors, agents, or representatives of an entity you represent), and you agree that neither you nor any individual associated with you will create more than one User Account in order to access and use the Platform. You are responsible for maintaining the confidentiality of your User Account and authentication credentials and are responsible for the access to and use of your User Account and the Platform by anyone who obtained your authentication credentials through you. You may not share authentication credentials with anyone else or otherwise permit anyone other than yourself to access or use the Platform using your User Account or your authentication credentials. You will immediately notify us of any unauthorized use of your User Account or the Platform that comes to your attention.
Responsibility for Access to and Use of the Platform: You are solely responsible for the software, hardware, network connections, and other systems needed in order for you to access and use your User Account and the Platform. You accept any and all risk arising out of your use of the Platform, including, for the avoidance of doubt, your use of the Services, Site, Software, or Documentation.
PERFORMANCE OF SERVICES
Non-Exclusivity: With respect to any Services we agree to perform for your benefit, we agree to perform such Services on a non-exclusive basis. Either Party is allowed to provide other services and/or work with any other third parties, as long as such efforts do not conflict or give rise to a breach of the terms set forth in this Agreement.
Materials; Access: You shall share with us all data, information, and other materials reasonably necessary in order for us to successfully perform Services for your benefit, as contemplated in this Agreement, including, access to certain platforms, networks, systems, online stores, and partners, as needed. We will not be responsible for any failure to successfully perform Services for your benefit that results from any delay or other failure on your part to share such materials or furnish such access.
Credit: We will be credited in the Game, or Games, as the case may be, and in any materials where you receive a credit or similar acknowledgement (including, but not limited to, such Game’s, or Games’, splash page(s), end credits, public marketing and public relations materials, and in any physical products), unless agreed upon otherwise by the Parties in writing. The exact nature of the credit will be mutually agreed between the Parties in writing, acting in good faith. For the avoidance of doubt, we will not receive a credit or similar acknowledgement on a specific Game if we have not performed Services for your benefit related to that Game, unless otherwise agreed by you.
No Guarantee: Nothing in this Agreement and nothing in our statements to you shall be construed as a promise or guarantee of specific outcomes for you, your business, or any Game or Games. We make no such promises or guarantees. Our statements, including comments about the outcomes for you, your business, or any product or service, including the Game, or Games, as the case may be, merely reflect our opinion at the time such statements are made, based on the information made available to us at the time such statements are made.
DELIVERABLES; DELIVERY AND ACCEPTANCE
Delivery: With respect to any Services we agree to perform for your benefit, we will deliver such Services in the manner agreed upon by the Parties and in accordance with any mutually agreed upon specifications. Target delivery dates, if any, must be mutually agreed upon by the Parties, and, if such dates are to be enforceable, they must be evidenced by a separate, written, and signed agreement executed by an authorized signatory of Conduit.
Acceptance: To the extent such Services involve the delivery of deliverables from us to you, you promptly will review such deliverables and notify us if such deliverables meet the mutually agreed-upon specifications or other mutually agreed-upon acceptance criteria within a commercially reasonable period after receipt thereof. We will take all steps reasonably necessary to correct any non-conforming deliverable within a commercially reasonable period after receipt of written notice from you stating that the deliverable is non-conforming accompanied by the written basis for your conclusion. If you do not notify us of the rejection of a deliverable within 30 calendar days after delivery thereof, the deliverable will be deemed accepted.
FREE ACCESS AND USE; FEES AND CHARGES
Free Access and Use: Generally, registration to access and use the Platform is offered free of charge. However, from time to time, we may charge a fees, or fees, including, for example, a subscription fee, a retainer, a commission, revenue sharing, or other similar compensation, in consideration for your access to and use of certain features, functions, or elements of the Platform or in consideration for the performance of certain Services for your benefit. If you choose to access and/or use any such features, functions, or elements, or if you choose to have us perform any such Services, you will be billed, or, if applicable, your User Account will be charged, according to the choices you make. Following registration to access and use the Platform, you will be able to make reasonable use of those features, functions, and elements of the Platform that we offer free of charge, but we reserve the right to place certain limitations on free access to and use of the Platform, including, for example, imposing velocity limitations on your usage, if and to the extent that we deem such limitations reasonable or necessary. The Platform and any features, functions, or elements of the Platform that are provided by us to you for free are provided on an “as-is” and “as-available” basis without any warranties of any kind and on a royalty-free, non-transferable, non-sublicensable, and non-exclusive basis for use solely for your own business purposes.
Fees: As discussed above, from time to time, you may be charged a fee, or fees, to access and use certain features, functions, or elements of the Platform. The amount of any such fees will be presented to you on a rate sheet or price list at the time that you initially place your order. You agree to provide us with current, complete, and accurate purchase, payment, billing, and account information. You further agree to promptly update any such information, including any information related to your authorized payment method, or methods, so that we can complete all payment and billing transactions promptly and contact you, as needed. All payments will be stated by us and paid by you in US Dollars. We may change our fees, rates, or prices at any time (it being understood that we will not apply such changes to you retroactively). You agree to pay all charges at the prices then in effect for your purchases, and you authorize us to charge your authorized payment method for any such amounts upon making purchases from us. Except as otherwise expressly set forth in this Agreement, all fees paid by you to us pursuant to this Agreement are non-refundable. If one or more of your purchases are subject to recurring charges, then you consent to our billing you or otherwise charging your authorized payment method on a recurring basis without requiring your prior approval for each recurring charge, until you notify us of your cancellation of such recurring charges. To cancel any recurring charges, contact as at firstname.lastname@example.org We reserve the right to correct any errors or mistakes in charges, even if we have already requested or received payment. We also reserve the right to refuse any purchase made using your User Account.
Payment Terms: At the time that you place any order, we will notify you of the timing of your payment. At a minimum, you hereby agree to pay all fees owed within 14 calendar days after your receipt of an invoice from us, which include invoices that are issued to you via the Platform. In any event, unpaid fees are subject to a finance charge of 1.5% per month or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees.
Taxes: Sales taxes; value added taxes; goods and services taxes; or similar government fees, taxes, and surcharges (collectively, “Taxes”) may apply. Taxes that we are required by applicable law to collect and remit will be added to the price of purchases, as deemed required by us. You, on the other hand, are solely responsible for identifying and paying all Taxes that are imposed on you upon or with respect to the transactions and payments under this Agreement (and any penalties, interest, or other additional charges arising from such Taxes). Upon request, you will provide such information to us as we reasonably require in order to determine whether we are obligated to collect Taxes from you. We will not collect any Taxes for which you furnish us a properly completed exemption certificate or a direct payment permit certificate.
Third-Party Payment Providers: Acceptance and payment of funds between you and us may be performed using one or more designated third-party payment processors, such as Stripe (each, an “Authorized Payment Processor”). Authorized Payment Processors and the methods of payment processing offered by such Authorized Payment Processors on the Platform (each, an “Authorized Payment Method”) will be determined by us in our sole discretion. The Authorized Payment Processor and Authorized Payment Method that Users use in connection with each transaction will be designated by the User at the time of completing the transaction or in connection with such User’s creation and maintenance of its User Account. We do not guarantee, at any given time, the availability of any Authorized Payment Method or the services of any Authorized Payment Processor, and we reserve the right to add, cancel, or otherwise change Authorized Payment Processors and Authorized Payment Methods at any time. Your use of an Authorized Payment Method is subject to any terms, conditions, limitations, or restrictions imposed by the Authorized Payment Processor that offers that Authorized Payment Method (each, a “Payment Agreement”) and may be modified by the Authorized Payment Processor from time to time. Your use of an Authorized Payment Method is conditioned upon your compliance with the applicable Payment Agreement, and if the applicable Payment Agreement expires or is terminated, canceled, or suspended by the Payment Processor, you may not be able to use the Platform or you may have your User Account terminated or suspended.
Use of Stripe: As mentioned above, payment processing services for Users of the Platform may be provided by Stripe. If payment processing services are provided by Stripe, the payment processing services provided by Stripe expressly are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to this Agreement, continuing to access and use the Platform, and using any of the payment processing services offered by Stripe, you hereby agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of us enabling payment processing services on the Platform through Stripe, you agree to provide us with current, accurate, and complete information about you and your business and authorize us to share with Stripe the information about you and your business that you provide, any applicable Payment Information, and any applicable transaction information related to your use of the payment processing services provided by Stripe.
Expenses: Unless otherwise agreed in writing, all fees are fully inclusive of all expenses incurred by us or any of the assigned personnel in the performance of any Services we perform for your benefit. If there are any expenses incurred by us in connection with performance of such Services for which we wish to be reimbursed, we will first ask you for permission to incur such expenses. If permission is given, any expenses incurred by us in connection with such Services will be reimbursed by you. We will include any such expenses on the next invoice issued to you accompanied by receipts evidencing such expenses or other appropriate evidence of payment.
PROHIBITED CONDUCT AND HIGH-RISK ACTIVITIES
Prohibited Conduct: You will not access or use your User Account or the Platform for any purpose other than that for which we intend them to be used and for which they are designed and developed by us. Neither your User Account; the Platform; nor any related Services, Software, Documentation, or other products or services, may be used for any purpose other than your own business purposes, as described in greater detail in Section 6 above. In addition to the other limitations, restrictions, representations, and warranties set forth in this Section 10 and elsewhere in this Agreement, you agree that you will not, without our express, written consent (which consent must take the form of a separate, written, and signed agreement executed by an authorized signatory of Conduit): (1) reproduce, modify, make derivative works of, decipher, decompile, disassemble, or reverse engineer the Platform or any elements thereof, as applicable; (2) modify or remove any copyright notices or other proprietary rights notices of Conduit or its licensors in or accompanying your User Account or the Platform; (3) access or use your User Account or the Platform in any manner that violates any applicable laws, including laws protecting copyrights, trademarks, or other intellectual property and laws concerning sanctions or export controls; (4) make your User Account or the Platform available in any manner to any third party for use in the third party’s business operations, other than an entity that you have expressly represented to us that you represent as an agent or other representative (e.g., as an officer or employee); (5) access or use (or permit third parties to access or use) your User Account or the Platform in order to build or support any products or services competitive with the Platform or Conduit’s other products and services; (6) inaccurately or falsely represent your current location, your demographic location, your address, your employer, or otherwise inaccurately or falsely represent yourself to us; (7) circumvent, disable, or otherwise interfere, directly or indirectly, with any security-related features of your User Account or the Platform, including any features that prevent or restrict the use, downloading, redistribution, and/or reproduction of information, data, or other materials provided to you and others via the Platform; (8) engage in unauthorized framing of or linking to your User Account or the Platform; (9) interfere with, disrupt, or create an undue burden on the Platform, including the Site and Software, or any of the hardware, networks, or other systems that we own or control; (10) upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses, or other harmful code or materials that interfere with the uninterrupted use and enjoyment of the Platform by us or others or modifies, impairs, disrupts, alters, or interferes with the access to or use, features, functions, operation, or maintenance of the Platform; or (11) use, launch, develop, or distribute any automated system, including without limitation, any spider, robot, cheat utility, scraper, or offline reader that accesses your User Account or the Platform, or using or launching any unauthorized script or other software. You hereby acknowledge and agree that, if we determine that your access to or use of your User Account or the Platform constitutes an activity prohibited by this Agreement or otherwise exceeds reasonable limits, including those described in this Section 10, we reserve the right to cancel, suspend, or place limits on your access to and use of your User Account and the Platform, including, for example, imposing velocity limitations on your usage, if and to the extent that we deem such limitations reasonable or necessary. You are solely responsible for making sure that your access to and use of your User Account and the Platform is in compliance with applicable laws.
High-Risk Activities: You will not use the Platform or any of its features, functions, or other elements in connection with or in any high-risk, hazardous environments requiring fail-safe performance or any activities where their use or failure could lead to death, personal injury, or environmental damage, including life-support systems, emergency services, nuclear facilities, autonomous vehicles, aircraft navigation or control systems, weapons systems, or air traffic control systems (collectively, “High-Risk Activities”). You acknowledge that the Platform, expressly including the Services, Site, Software, and Documentation, are not designed or developed for High-Risk Activities and are not intended to meet any legal obligations associated with High-Risk Activities. Therefore, notwithstanding anything else in this Agreement, we will have no liability to you for any use of the Platform in connection with or in High-Risk Activities.
We have not agreed to, and do not agree to, treat as confidential any comments, suggestions, ideas, or feedback provided by you, individually or on behalf of any entity that you represent, regarding your User Account; the Platform; the information, data, and materials provided to you via the Platform; or any related products or services provided by us (collectively, “Feedback”), and nothing in this Agreement or in your and Conduit’s dealings arising out of or related to this Agreement will restrict our right to use, profit from, disclose, publish, or otherwise exploit any Feedback, without compensation to you or any entity that you represent, or provide you or any entity that you represent with any rights in or to any of our products or services. You hereby waive all moral rights to any Feedback, and you hereby warrant that any Feedback you provide is original with you or that you have the right to provide such Feedback to us. You agree that there shall be no recourse against us for any alleged or actual misappropriation of any intellectual property or infringement of any intellectual or other proprietary rights in Feedback that you provide to us.
MANAGEMENT OF THE PLATFORM
We reserve the right, but are not obligated, to: (1) monitor your User Account and access to and use of the Platform for breaches of the terms and conditions set forth in this Agreement; (2) take appropriate legal action against anyone who we believe has violated applicable laws or otherwise breached the terms and conditions set forth in this Agreement, including reporting such person to law enforcement authorities; (3) in our sole discretion and without prior notice or liability, remove from the Platform or otherwise disable any assets, files, or other content or materials that are in any way burdensome to the Site, Software, or the hardware, networks, or other systems that enable the Platform; and (4) otherwise manage the Platform in a manner designed to protect our rights and property and to facilitate the proper functioning of the Platform for us, you, and other Users.
MODIFICATIONS TO THE PLATFORM
We reserve the right to update, upgrade, improve, discontinue, and otherwise modify the Platform, including the Site; the Software; the Documentation; and the features, functions, and elements of the Platform at any time, for any reason, and without prior notice, including changes in our pricing. We also reserve the right, but are not obligated, to update, change, remove, and otherwise modify the information, data, and other content and materials provided to you and others via the Platform at any time, for any reason, and without prior notice. If, following any such modifications, you wish to cancel your User Account, you may do so following the procedures described in Section 19.2 below. We will not be liable to you or any third party for any such modifications.
CONFIDENTIAL INFORMATION, PERSONAL DATA, AND PRIVACY
Confidential Information: “Confidential Information” means any commercial or technical information in whatever form that is disclosed by one Party to the other Party and that would be regarded as confidential by a reasonable business person, including all business, statistical, financial, marketing, and personnel information; customer or supplier details; know-how; designs; trade secrets; or software of the disclosing Party or any information that is marked as “Confidential.” Confidential Information does not include any information that (i) was publicly known and made generally available in the public domain at the time of disclosure; (ii) became publicly known and generally available to the public after disclosure to receiving Party without breach of this Agreement; (iii) was lawfully received by receiving Party from a third party without a breach of such third party’s obligations of confidentiality; (iv) was known to receiving Party or its employees or agents without such restrictions prior to its receipt from disclosing Party; (v) was independently developed by receiving Party without use of or reference to such Confidential Information; (vi) was generally made available to third parties by disclosing Party without such restriction; or (vii) is required to be disclosed by receiving Party pursuant to judicial order or other compulsion of law, provided that, in the latter case, receiving Party will provide to disclosing Party prompt notice of such order and comply with any protective order imposed on such disclosure. The receiving Party has the burden of proof in establishing that any one or more of the above-listed exceptions applies. During the Term, in connection with the performance of this Agreement, either Party may receive Confidential Information from the other Party. Each Party agrees that it will comply with the following obligations: (i) the receiving Party will keep the Confidential Information secret; (ii) the receiving Party will not, in any manner whatsoever, provide the Confidential Information to third parties, unless the receiving Party has received prior permission in writing from the disclosing Party; and (iii) the receiving Party will only use the Confidential Information in connection with its performance of this Agreement. If this Agreement is terminated, or the disclosing Party requests, the receiving Party will comply with the following obligations, except as otherwise directed by the disclosing Party: (i) the receiving Party will return all Confidential Information to the disclosing Party; (ii) the receiving Party will destroy and/or permanently delete all reproductions of Confidential Information; and (c) the receiving Party will confirm in writing that all Confidential Information has been returned and that all reproductions of Confidential Information have been destroyed and/or permanently deleted. Each Party agrees that it will not, at any time, disclose to any third party, except its professional representatives or advisers with a need to know such Confidential Information or as required by law, any Confidential Information of the other Party. The receiving Party will be responsible for ensuring that any such representatives or advisors to whom they disclose Confidential Information are aware of the confidential nature of the Confidential Information and comply with the receiving Party’s obligations of confidentiality pursuant to this Section 14. If either Party breaches its confidentiality obligations pursuant to this Section 14, the other Party shall be entitled to seek equitable relief to protect its interests in the Confidential Information, including, but not limited to, injunctive relief, in addition to any and all other rights and remedies available at law or equity.
INTELLECTUAL PROPERTY AND DATA
Definition of Intellectual Property Rights: “Intellectual Property Rights” means any and all intellectual and proprietary rights in and to copyrights; trademarks, service marks, trade names, trade dress, logos, and the goodwill therein; domain names; patents and patent applications; know-how; trade secrets; and confidential information, including, for the avoidance of doubt, moral rights; publicity rights; and rights in names, images, and likenesses, that may exist now or in the future in any part of the world, in all cases whether or not registered or registrable.
Ownership of Your Property: You will remain at all times the owner of: (a) the Game or Games, including all elements thereof; and (b) the title and goodwill associated with each Game, or Games, including, as to both subsections (a) and (b) above, all Intellectual Property Rights therein and related thereto, including Intellectual Property Rights in and to any derivative works, translations, adaptations, or other modifications thereto or improvements thereon (“Developer Property”). Further, as between the Parties, you will have the sole and exclusive right to use and re-use any data generated in relation to the Game, or Games, including, without limitation, any information regarding the identity of users or users’ behavior relating to the Game, or Games (“Data”) and will be the data controller in relation to any and all Data. We may be furnished access to Data pursuant to Section 7.3 above, in which case such Data will be deemed your Confidential Information and subject to the obligations set forth in Section 14 above, and we will use such Data solely for the purposes of making the Platform available to you, including performance of any Services for your benefit.
Ownership of Conduit Property: Notwithstanding anything to the contrary in Section 6.1 above, Developer Property does not include Conduit Property. “Conduit Property” comprises the following: (a) the Platform (including all features, functions, elements, materials, and content provided by us via your User Account and the Platform, including any and all techniques and learnings relating to the improvements or modifications that we implement or otherwise develop in connection with our operation, support, and maintenance of the Platform; any statistical or logging data (including order of operation, timing, and performance data) obtained during operation, support, and maintenance of the Platform; and any source code, object code, sample code, documentations, libraries, development tools, displays, designs, images, graphics, text, data, databases, algorithms, video, and audio related to the Platform); (b) the Site; (c) all Software (in both human-readable source-code format and machine-readable object-code format); (d) all Documentation (and any authorized or unauthorized reproductions thereof); (e) our trademarks, service marks, trade name, logos, and any goodwill related thereto; and (f) any documents, text, graphics, art, video, trailers, or other works of authorship, assets, or materials (whether digital or physical, tangible or intangible) designed, developed, or created by us prior to the effective date of this Agreement or, if designed, developed, or created by us after the effective date of this Agreement, designed, developed, and created by us independently of this Agreement and without use of or reference to any Developer Property or your Confidential Information. We will remain at all times the owner of Conduit Property, including, as to both all of subsections (a)-(f) above, all Intellectual Property Rights therein and related thereto, including Intellectual Property Rights in and to any derivative works, translations, adaptations, updates, upgrades, improvements, or other modifications thereto or improvements thereon. To the extent Services we agree to perform for your benefit involve the delivery of one or more deliverables, we will not incorporate Conduit Property into any such deliverables without your advance consent. If we incorporate any Conduit Property into any such deliverables, we do hereby grant to you a perpetual, irrevocable, royalty-free, worldwide, non-exclusive license to use such Conduit Property as incorporated into such deliverables solely for the purposes for which such deliverables are delivered to you pursuant to this Agreement, exclusive of our trademarks, service marks, trade names, logos, and Confidential Information, unless otherwise mutually agreed by the Parties in writing.
WARRANTIES AND INDEMNIFICATION
Mutual Warranties: The Parties represent and warrant to each other that they have requisite power and authority to enter into this Agreement and that they are not a party to any arrangements that could reasonably be expected to hinder or prevent the performance of their obligations under this Agreement.
Conduit Warranties: We further represents and warrants to you that: (a) we have all necessary Intellectual Property Rights in and to Conduit Property and that Conduit Property does not infringe the Intellectual Property Rights of any third party; and (b) in connection with performance of this Agreement, we are in compliance with all applicable laws.
Your Warranties: You further represents and warrants to us that: (a) you have all necessary Intellectual Property Rights in and to Developer Property and that Developer Property does not infringe the Intellectual Property Rights of any third party; (b) in connection with performance of this Agreement, including the development, marketing, distribution, publication, and sale of the Game, or Games, you are in compliance with all applicable laws; (c) you meet the eligibility requirements for accessing and using the Platform set forth in this Agreement; (d) all information you submit to us is true, accurate, current, and complete and will be maintained as such by you; (e) you are authorized to accept this Agreement on behalf of any entity that you purport to represent as an agent or other representative (e.g., as an officer or employee) or that you otherwise, in fact, act on behalf of; (f) you have not, and will not, access or use your User Account or any features or functions of the Platform for any illegal or unauthorized purpose, and your access to and use of the Platform will not cause Conduit to be in violation of any applicable law or regulation; and (g) you have not, and will not, access or use your User Account or any feature, functions, or elements of the Platform in a manner that misappropriates the intellectual property or otherwise infringes on the intellectual property rights of any third party. If you breach these representations and warranties, in addition to any other remedies that we may have at law or equity, we will have the right to cancel, suspend, or otherwise limit your access to and use of your User Account and refuse to allow you (and, if applicable, the entity you represent) to access and use any or all of the features and functions of the Platform, now and in the future.
Indemnification: Each Party agrees to indemnify, defend, and hold harmless the other Party and its officer, directors, shareholders, members, employees, and other agents from and against any and all liabilities, costs, expenses, damages, claims, suits, actions, judgements, settlements, contributions, fines, penalties, and losses (including any direct or indirect consequential losses, loss of profit, and loss of reputation and all interest, penalties, and legal and other reasonable professional costs and expenses) arising out of or in connection with any breach of this Agreement, including the representations and warranties set forth in this Section 16; gross negligence; or intentional misconduct.
Disclaimer: We specifically disclaim all implied warranties, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. Without limiting the foregoing, you specifically acknowledge that we make no warranty that your User Account or the Platform, including the Services; the Site; the Software; the Documentation; the other information, data, and materials provided to you and others as part of the Platform; and any related products or services will meet your requirements or be error-free or without interruption; that all non-conformities will be corrected; that the Platform will be free of vulnerability to intrusion or attack; or that your specific requirements will be satisfied. You acknowledge we do not control the transfer of information or data over communications facilities, including the Internet, and that the Platform and your access to and use of your User Account may be subject to limitations, delays, and other problems inherent in the use of such communications.
LIMITATIONS OF LIABILITY
Warranties Disclaimer: We specifically disclaim all implied warranties, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. Without limiting the foregoing, you specifically acknowledge that we make no warranty that your User Account or the Platform, including the Services; the Site; the Software; the Documentation; the other information, data, and materials provided to you and others as part of the Platform; and any related products or services will meet your requirements or be error-free or without interruption; that all non-conformities will be corrected; that the Platform will be free of vulnerability to intrusion or attack; or that your specific requirements will be satisfied. You acknowledge we do not control the transfer of information or data over communications facilities, including the Internet, and that the Platform and your access to and use of your User Account may be subject to limitations, delays, and other problems inherent in the use of such communications.
Disclaimer of Consequential Damages: Except in the event of a breach of our non-disclosure obligations set forth in this Agreement, neither we nor our officers, employees, directors, subsidiaries, agents, and licensors are responsible or liable for any indirect, incidental, special, consequential, exemplary, punitive, or other damages whatsoever (including, but not limited to, damages for lost profits, goodwill, use, data, or other intangible losses) arising out of or related to your access to and use of your User Account or the Platform, including the Services; the Site; the Software; the Documentation; the other information, data, and materials provided to you and others as part of the Platform; and any related products or services, whether based on contract, tort, warranty, statute, or otherwise.
Cap on Liability: To the maximum extent permitted by applicable law and except in the event of our gross negligence or intentional misconduct, our maximum liability to you with respect to your access to and use of your User Account and the Platform, including a material breach of this Agreement by us, is the greater of $100 US Dollars or the amount of the fees, if any, that you have paid to us for access to and use of your User Account in the period preceding the event, or events, giving rise to your claim.
A Party will not be liable to the other Party due to the failure to fulfill its obligations in a timely manner if such failure is the result, wholly or partially, of events outside the reasonable control of such Party and that such Party could not avoid with the exercise of reasonable care, such as: (1) breakdowns of the internet, telephone, or electricity network; (2) calamities and environmental disasters; (3) virus outbreaks and pandemics; (4) strikes and work stoppages; and (5) acts of war and terrorism. The Party that relies on a force majeure will inform the other Party as soon as reasonably possible of the circumstances giving rise to the force majeure. Both Parties have the right to terminate this Agreement without penalty or liability, immediately upon delivery of written notice thereof, if the circumstances giving rise to a force majeure continue unabated for a period of more than 30 days, continuously, or more than 60 days, in the aggregate, over any three-month period.
TERM AND TERMINATION
Term: The term of this Agreement commences upon your acceptance of this Agreement, as evidenced by your registering a User Account or otherwise purchasing, accessing, or using the Platform.
Termination by You: You may terminate this Agreement at any time by logging into the User Account you created with us (and, if applicable, into each associated User Account) and electing to cancel your User Account or by sending an email to us at email@example.com. For the avoidance of doubt, canceling a User Account does not relieve you of the obligation to pay any remaining payments owed in connection with that User Account or otherwise accrued prior to the effective date of such cancellation, and, except as otherwise expressly set forth in this Agreement, all fees paid by you to us pursuant to this Agreement are non-refundable.
Termination by Us: We may terminate this Agreement by canceling or suspending your User Account in the event that you breach any of the terms, conditions, limitations, restrictions, representations, or warranties set forth in this Agreement or in the event that you no longer meet the eligibility requirements set forth in Section 3 above. We may also terminate this Agreement for convenience at any time for any reason or no reason, with 14 calendar days’ prior notice to you and by refunding any pre-paid fees paid by you for access to and use of the Platform that are not attributable to the products and services that we provided to you prior to the effective date of such cancellation.
Effect of Termination: Following termination of this Agreement for any reason, within 30 days thereafter, we may delete any User Account that you created with us and any Data or other information associated with that User Account, with or without advance notice. If we cancel or suspend your User Account for any reason, you are prohibited from registering and creating a new User Account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of an entity. In addition to canceling or suspending your User Account and/or terminating this Agreement, we reserve the right to take appropriate legal action, including, without limitation, pursuing civil and criminal remedies and seeking injunctive relief.
We respect the intellectual property rights of others. If you believe that any content or other materials provided via the Platform to anyone infringes upon any copyright you own or control, please immediately notify us using the contact information provided below (a “Notification”). A copy of your Notification will be sent to the person who posted or stored the material addressed in the Notification. Please be advised that, pursuant to US federal law, you may be held liable for damages if you make material misrepresentations in a Notification. Thus, if you are not sure that materials provided via the Platform infringe your copyright, you should consider first contacting an attorney.
DISPUTE RESOLUTION; MANDATORY BINDING ARBITRATION
Please read this Section 21 carefully, because it requires you to waive the right to a jury trial; requires you to arbitrate certain disputes, controversies, and claims with Conduit; and limits the manner in which you can seek relief from Conduit. As set forth in this Section 21, no class or representative actions or arbitrations are allowed.
Informal Negotiation: To expedite resolution and control the cost of any dispute, controversy, or claim related to this Agreement, including any Supplemental Terms (each a “Dispute” and collectively, the “Disputes”), brought by either of the Parties, the Parties agree to first attempt to negotiate any Dispute (except those Disputes expressly excluded below) informally for at least 30 days before initiating arbitration. Such informal negotiations commence upon written notice from one Party to the other Party.
Mandatory Binding Arbitration: If the Parties are unable to resolve a Dispute through informal negotiations, the Dispute (except those Disputes expressly excluded below) will be finally and exclusively resolved by binding arbitration before a single arbitrator. You understand that without this provision, you would have the right to sue in court and, in certain cases, have a jury trial. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures (collectively, the “Rules”) and in accordance with the Expedited Arbitration Procedures in the Rules, both of which are available on the JAMS web site at www.jamsadr.com/adr-rules-procedures/ (or a successor site). Your arbitration fees shall be governed by the Rules and, where appropriate, limited by the Rules. If such fees expressly are determined by the arbitrator to be excessive, we will pay all arbitration fees. The arbitration may be conducted in person, through the submission of documents, by phone, or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by either Party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except where otherwise required by the Rules or applicable law, the arbitration will take place in the County of Los Angeles, California, USA. Judgment on the award may be entered in any court having jurisdiction. This Section 21 shall not preclude the Parties from seeking provisional remedies in aid of arbitration from a court of competent jurisdiction. Except as otherwise provided herein, the Parties may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
Court Jurisdiction and Venue: If for any reason, all or any portion of a Dispute proceeds in court rather than arbitration, the Dispute shall be commenced or prosecuted in the state or federal courts of the State of California and the United States of America sitting in or having jurisdiction in Los Angeles County, California, USA, and the Parties hereby consent to, and waive all defenses of lack of personal jurisdiction, and forum non conveniens with respect to venue and jurisdiction in such state and federal courts.
No Class Actions or Representative Proceedings: The Parties agree that any arbitration shall be limited to the Dispute between the Parties individually. To the full extent permitted by law, (a) no arbitration shall be joined with any other proceeding; (b) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
Exceptions: The Parties agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (a) Disputes specifically seeking to enforce or protect, or concerning the validity of, any of the intellectual property rights of a Party; (b) Disputes specifically related to, or arising from, allegations of fraud, theft, or piracy; and (c) any claim for injunctive relief. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction and listed in Section 22 below, and the Parties agree to submit to the personal jurisdiction of that court.
Federal Arbitration Act: The Parties hereby agree that this Agreement affects interstate commerce and that the enforceability of this Section 21 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, this Agreement, and the Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action or proceeding, which is prohibited by this Agreement. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s or entity’s claims, preside over any type of class or representative action or proceeding, or preside over any action or proceeding involving more than one individual or entity
Confidentiality of Proceedings: The arbitrator and the Parties will maintain the confidentiality of any proceedings, including, but not limited to, any and all information gathered, prepared, and presented for purposes of the arbitration or related to the Dispute. The arbitrator will have the authority to make appropriate rulings to safeguard that confidentiality unless the law provides to the contrary.
No Delays: In no event shall any Dispute be commenced more than one year after the cause of action arose. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable, and such Dispute shall be decided by a court of competent jurisdiction and listed in Section 22 below, and the Parties agree to submit to the personal jurisdiction of that court.
Right to Opt Out: You may opt-out of the waiver of the right to have certain Disputes resolved in a class action and the waiver of the right to a jury trial described in this Section 21 by emailing us at firstname.lastname@example.org within 30 days after entering into this Agreement in the manner described herein. You must include your name, phone number, physical address, and email address in your opt-out notice. This is your only mechanism for opting out of the terms, conditions, limitations, restrictions, and waivers set forth in this Section 21, and failure to do so as described herein constitutes your consent hereto, including such waivers. If you choose to opt out, please note that all other provisions in this Agreement will remain intact and in full force and effect.
GOVERNING LAW; JURISDICTION AND VENUE
This Agreement, and your access to and use of the Platform and any User Account you create with us, will be governed by and interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Delaware, USA, without reference to its choice of law rules. Application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act are excluded from this Agreement. As set forth in Section 21 above, any dispute between you and us that is not subject to arbitration will be resolved in the state or federal courts of the State of California and the United States of America sitting in or having jurisdiction in Los Angeles County, California, USA.
Notices from you to us or us to you shall be in writing and may be sent via email or via your User Account. In any event, you can notify us or send questions, complaints, or claims related to the Platform to us by contacting us using the contact information set forth below. Notices from us to you will be sent to the email address or mailing address provided by you as part of your User Account.
This Agreement and any Supplemental Terms related to your access to and use of the Platform and any User Account you create with us that are incorporated into this Agreement constitute the entire agreement and understanding between you and us concerning your User Account and the Platform, including the Services; the Site; the Software; the Documentation; the other information, data, and materials provided to you and others as part of the Platform; and any related products or services and supersedes all previous communications, representations, understandings, and agreements, either oral or written, between the Parties with respect to said subject matter. This Agreement may not be amended, except by a writing signed by both Parties. Except as otherwise expressly set forth herein, no shrink-wrap, click-to-accept, or other terms or conditions outside this Agreement (“Additional Terms”) will be binding on us, even if use thereof requires an affirmative acceptance of such Additional Terms before access or use is permitted. Additional Terms will have no force or effect and will be deemed rejected by us in their entirety. For the avoidance of doubt, the Supplemental Terms defined in Section 5 above are not Additional Terms, as that term is used in this Agreement. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. This Agreement operates to the fullest extent permissible by law. If any provision of this Agreement is adjudged to be invalid, void, or unenforceable, you and we hereby agree that the remaining provisions of this Agreement shall not be affected thereby, that the provision in question may be replaced by the lawful provision that most nearly embodies the original intention of you and us, and that this Agreement shall in any event otherwise remain valid and enforceable. This Agreement is for the benefit of, and shall be binding upon us and you. No third party shall be considered a third-party beneficiary hereunder. We may assign any or all of our rights and obligations under this Agreement to others at any time. You may not assign or transfer your rights or obligations under this Agreement without our prior written consent. You and we are independent contractors with respect to this Agreement, your User Account, and the Platform. There is no joint venture, partnership, employment, or agency relationship created between you and us as a result of this Agreement. You agree that this Agreement will not be construed against us by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of this Agreement and the lack of written or electronic signatures by the parties hereto to execute this Agreement. The Parties must mutually agree to any press release or public announcement about this Agreement and/or their collaboration.
In order to resolve a complaint regarding access to or use of the Platform or any User Account you create with us or to receive further information from us about the Platform, please contact us at: Conduit Virtual, Inc. 4417 South Centinela Avenue Los Angeles, California 90066 USA Phone: +1 (760) 219-3793 Email: email@example.com