Terms of Service

DATE: 2009/12/29

THE FOLLOWING DESCRIBES THE TERMS BY WHICH YOU MAY ACCESS AND USE WEBSITES AND WEB SERVICES OWNED BY HAZARDOUS SOFTWARE INC. BY ACCESSING OR USING SAID WEBSITES OR WEB SERVICES, YOU ARE AGREEING TO BE BOUND BY THE THESE TERMS OF SERVICE. YOU MAY NOT CONTINUE TO ACCESS OR USE HAZARDOUS SOFTWARE INC.'S WEBSITES AND WEB SERVICES IF YOU DO NOT AGREE TO THESE TERMS.

1. AMENDMENTS

Hazardous Software Inc. ("Hazardous Software") may amend or revise these Terms of Service at any time by posting on its websites a new Terms of Service in place of this one. Hazardous Software will post a notice stating when the Terms of Service have been amended. If you do not agree with the amended Terms of Service, you must terminate all use of Hazardous Software's websites and web services.

2. ACCESS

You must agree to abide by the terms and conditions of these Terms of Service in order to access or use Hazardous Software's websites or web services. Any other access or use shall be deemed a trespass and unlawful use of Hazardous Software's computer systems.

Some content, features, and portions of Hazardous Software's websites and web services require you to have a valid account. In order to register for such an account, you must provide some personal information to Hazardous Software. You agree to (i) provide accurate, truthful, and current information as requested and (ii) keep this information up to date. Hazardous Software's privacy policy may be found at http://hazardoussoftware.com/site/privacy-policy.php.

Hazardous Software has the right and sole discretion to suspend or terminate your account, access, and use of Hazardous Software's websites and web services in the event that Hazardous Software reasonably believes that you are breaching these Terms of Service or any other contract, agreement, or obligation between you and Hazardous Software.

3. SERVICES

You agree that Hazardous Software is not liable for any delay, downtime, or unavailability of Hazardous Software's websites and web services, regardless of whether due to Hazardous Software or some third party.

4. CONDUCT

Hazardous Software is very interested in providing a safe and enjoyable experience for all of its users. To achieve this goal, we require that you do not:

(i) harass, threaten, insult, or otherwise attempt to directly or indirectly harm another person or organization;

(ii) submit or link to any material that may potentially infringe on any intellectual property, patent, copyright, trademark, trade secret, or right to privacy of any third party;

(iii) make false claims, mislead other users, or attempt any sort of fraud;

(iv) submit or link to any material which violates any law, regulation, or ordinance at any level including but not limited to the local, federal, state, international laws governing any parties involved;

(v) submit or link to any material that is obscene, profane, or pornographic;

(vi) perform any act of computer trespass, send unsolicited advertisements, or otherwise attempt to disrupt normal use of any computer systems owned or used by Hazardous Software, other users, or any third party; or

(vii) gather information from Hazardous Software's websites or web services using a spider or other manual or automatic means beyond normal use.

5. CONTENT

5.1 User Submitted Content. Hazardous Software may allow users to upload information, content, links, game results, game statistics, modifications to Hazardous Software products, and other media to Hazardous Software's websites and web services (all such information and materials called "User Submitted Content"). By submitting User Submitted Content to Hazardous Software's websites and web services, you are giving Hazardous Software a non-exclusive perpetual, royalty-free, irrevocable, and transferable right to (i) use, reproduce, modify, and create derivative works from the submitted information and material and (ii) publicly and privately distribute, sell, license, or otherwise disseminate the information and material and aforementioned rights and derivative works. You may not submit any information or material unless you created the information or material yourself and own the copyright to the material or have explicit written permission to submit the content from the owner of the information or material. Hazardous Software will not accept, and will subsequently remove upon discovery, any content posted that requires any additional terms beyond these Terms of Service without a prior written agreement.

5.2 Validity of Content. Hazardous Software makes no claims to the validity or accuracy of any User Submitted Content that is contributed to or appears on any of its websites or web services. Some information or links provided in User Submitted Content may be offensive, incorrect, misleading, or illegal, or may infringe upon others' rights. Hazardous Software may, from time to time and without notice, change, edit, delete, or otherwise modify any User Submitted Content that it determines, in its sole discretion, to be in violation of these Terms of Service. All User Submitted Content remains solely the responsibility of its author, and under no circumstances will Hazardous Software be liable in any manner for such content. You agree to bear any risks, costs, or damages incurred by Hazardous Software or other directly or indirectly from your User Submitted Content.

5.3 Unsolicited Intellectual Property Submissions. Any ideas or intellectual property submitted to Hazardous Software that are not otherwise provided in User Submitted Content delivered to a website, such as by a private communication, e-mail, or other means, including, but not limited to, game ideas, software products, business models, other uses of Hazardous Software's products, technology, or services, will be immediately destroyed upon receipt and Hazardous Software shall have no liability for future use of any information disclosed in such communications except to the extent that such information may be protected by copyright or patent rights of others. Any person, business, or other entity wishing to build a commercial product or service using products, technology, services, or other content made available by Hazardous Software should make an initial formal business proposition without disclosing trade secrets, which Hazardous Software may or may not choose to pursue at its sole discretion.

6. AGE RESTRICTION AND PASSWORDS

These Terms of Service are a legal agreement that is required in order for you to use the websites. If you are not at least 18 years old, or the legal age required to form a binding contract in your jurisdiction if that age is greater than 18, in order to use the websites you must have the approval of your parent or legal guardian who approves these Terms of Service on your behalf. By using the websites, you represent and warrant that you are at least 18 years old and of legal age to form a binding contract, or you have obtained such approval from your parent or legal guardian. If you are granted access to any portion of the websites requiring a password or other special permission, your right of access may be used only by you. You are responsible for maintaining the security of any password provided to you.

7. MERCHANTS AND LINKS TO THIRD PARTY SITES

The websites may contain advertisements, offers, or other links to other websites and resources of third parties that Hazardous Software does not control. Advertisements, as well as information on such websites or other information provided by third parties, may or may not be or remain wholly accurate. You acknowledge and agree that Hazardous Software is not responsible or liable for (i) the availability or accuracy of such sites or resources; or (ii) the content, advertising, or products or services on or available from such sites or resources. The inclusion of any link on a Hazardous Software website does not imply an endorsement of the linked website by Hazardous Software or any affiliation of the operators of that website with Hazardous Software. You use the links at your own risk.

Hazardous Software privacy policy is applicable only when you are on Hazardous Software websites. Once you choose to link to a website of another party, you should read and understand that website's privacy statement before disclosing any personal information.

Your correspondence or business dealings with, or participation in promotions of, third party merchants or advertisers that are found on or through Hazardous Software websites or which provide links on the Hazardous Software websites, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such merchant or advertiser. You waive any claim against Hazardous Software and agree to hold Hazardous Software harmless from any loss or damage of any kind incurred as the result of any such dealings or as the result of the presence of such merchants or advertisers on the Hazardous Software websites.

8. CUSTOMER SUPPORT

You acknowledge that Hazardous Software has no obligation to provide you with customer support of any kind, except under the terms of support packages that may be made available from Hazardous Software. However, Hazardous Software may provide you with customer support from time to time, at its sole discretion. Requests for support should be addressed to support@hazardoussoftware.com.

9. NOTICES AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT

Hazardous Software respects the intellectual property of others. It is Hazardous Software's policy to respond promptly to claims of copyright and other intellectual property infringement. Hazardous Software will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act ("DMCA") and other applicable intellectual property laws. Upon receipt of notices complying or substantially complying with the DMCA, Hazardous Software may act expeditiously to remove or disable access to any material claimed to be infringing or claimed to be the subject of infringing activity and may act expeditiously to remove or disable access to any reference or link to material or activity that is claimed to be infringing. Hazardous Software will terminate access for users who are repeat infringers.

Procedure for notifying Hazardous Software of copyright infringement: To provide Hazardous Software notice of an infringement, you must provide a written communication to the attention of "DMCA Infringement Notification Dept." care of abuse@hazardoussoftware.com that sets forth the information specified by the DMCA (http://www.copyright.gov/title17/92chap5.html#512). Please note that you may be liable for damages (including costs and attorneys' fees) if you materially misrepresent that an activity is infringing your copyright. Hazardous Software's designated Copyright Agent to receive notifications of claimed infringement is: Christopher Hazard, 8929 Taymouth Ct, Raleigh, NC 27613, USA, email: abuse@hazardoussoftware.com. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to Hazardous Software customer service through support@hazardoussoftware.com. You acknowledge that if you fail to comply with all of the requirements of this paragraph, your DMCA notice may not be valid.

Procedure for providing Hazardous Software with counter-notification: If Hazardous Software removes or disables access to content in response to an infringement notice, Hazardous Software will make reasonable attempts to contact the owner or administrator of the affected site or content. If you feel that your material does not constitute infringement, you may provide Hazardous Software with a counter-notification by written communication to the attention of "DMCA Counter-Notification Dept." at abuse@hazardoussoftware.com that sets forth the necessary information required by the DMCA (http://www.copyright.gov/title17/92chap5.html#512). Please note that you may be liable for damages (including costs and attorneys' fees) if you materially misrepresent that an activity is not infringing the copyrights of others. If you are uncertain whether an activity constitutes infringement, you should consult an attorney.

10. ELECTRONIC TRANSACTIONS

You agree that all of your transactions with or through a Hazardous Software website may, at the option of Hazardous Software, be conducted electronically from start to finish. If Hazardous Software decides to proceed non-electronically, those transactions will still be governed by the remainder of these Terms of Service unless you enter into different terms on a form provided by Hazardous Software. If the law allows you to withdraw this consent or if Hazardous Software is ever required to deal with you non-electronically, Hazardous Software reserves the right to charge or increase fees and you agree to print or make an electronic copy of these Terms of Service and any other contract or disclosure that we are required to provide to you.

11. NOTICES AND CONTACT INFORMATION

Except as may otherwise be provided in these Terms of Service, Hazardous Software will give you any notices by posting them on the Hazardous Software websites. You authorize Hazardous Software to send notices (including without limitation notice of subpoenas or other legal process, if any) via electronic mail if Hazardous Software decides, in its sole discretion, to do so. You agree to check the Hazardous Software websites that you use for notices, and that you will be considered to have received a notice when it is made available to you by posting on those websites. Hazardous Software may provide notice to any e-mail or other address that you provide if you register for any web service or make use of any Hazardous Software product or service. You agree to keep your email and postal mail addresses provided to Hazardous Software current and that notice provided by Hazardous Software to the address that you have most recently provided will constitute effective notice.

12. LIMITATION OF LIABLIITY.

ALL RISKS INCURRED FROM USING HAZARDOUS SOFTWARE'S WEBSITES AND WEB SERVICES REMAINS WITH YOU, THE USER. HAZARDOUS SOFTWARE EXPRESSLY DISCLAIMS (I) ANY WARRANTY FOR THE WEBSITES, WEB SERVICES, AND ASSOCIATED PRODUCTS AND SERVICES AND (II) ANY COMMON LAW DUTIES WITH REGARD TO SAID PRODUCTS AND SERVICES, INCLUDING BUT NOT LIMITED TO THE LACK OF NEGLIGENCE AND LACK OF WORKMANLIKE EFFORT. THE WEBSITES, WEB SERVICES, AND ALL ASSOCIATED PRODUCTS AND SERVICES ARE PROVIDED ON AN "AS IS" WITH "ALL FAULTS" AND ON AN "AS AVAILABLE" BASIS. THE WEBSITES, WEB SERVICES, AND ALL ASSOCIATED PRODUCTS AND SERVICES ARE PROVIDED WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.

UNDER NO CIRCUMSTANCES WILL HAZARDOUS SOFTWARE BE LIABLE IN CONNECTION WITH THE WEBSITES, WEB SERVICES, OR ASSOCIATED PRODUCTS AND SERVICES, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. Our total liability to you for all losses, damages, and causes of action shall, in no circumstance, exceed the amount received by Hazardous Software from your affected purchases, even if Hazardous Software has been advised of the possibility of such damages. Hazardous Software will attempt to ensure that products performs without fault on the operating systems, hardware, input devices, and other computing equipment and software as advertised by Hazardous Software, but will in no way be liable for incompatibilities or malfunction arising from products or services provided by third parties.

13. INDEMNITY

You agree to indemnify, defend and hold harmless Hazardous Software and its employees, contractors, officers, directors, and agents from any claims, losses, damages, liabilities, including attorneys' fees, arising out of your violation of these Terms of Service and/or your use or misuse of any of Hazardous Software's websites or web services.

14. GOVERNING LAW AND VENUE.

Hazardous Software is based in North Carolina, USA. These Terms of Services will be governed by and construed in accordance with the laws of the State of North Carolina, USA, excluding its conflicts of law rules and specifically excluding the United Nations Convention on Contracts for the International Sale of Goods. Except in the sole discretion of Hazardous Software, the venue for any action in connection with these Terms of Service or the websites, web services, and associated products and services provided by Hazardous Software shall lie exclusively in the state and federal courts located in Wake County, North Carolina, USA, and you hereby consent and submit to the personal jurisdiction of such courts.

15. MISCELLANEOUS.

This is the entire agreement between you and Hazardous Software relating to the subject matter herein and replaces any and all previous representations, agreements, understandings or communications, whether written or oral. If a court of competent jurisdiction declares any provision of these Terms of Service to be void or unenforceable, then such provision will be interpreted, construed or reformed to the extent reasonably required to render it valid, enforceable and consistent with the original intent underlying such provision, and such invalidity or unenforceability will not affect any other provision of these Terms of Service. The English language version of these Terms of Service will control its interpretation.

16. NOTICE RE TRADEMARKS

HAZARDOUS SOFTWARE, ACHRON, and other Hazardous Software graphics, logos, designs, page headers, button icons, scripts, and service names used in connection with the Hazardous Software websites, web services, and associated products and services are registered trademarks, trademarks or trade dress of Hazardous Software or its licensors in the U.S.A. and/or other countries. Trademarks and trade dress of Hazardous Software or its licensors appearing on the websites may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion with the products or services provided by Hazardous Software. Trademarks relating to products or services of third parties mentioned on the Hazardous Software websites belong to those third parties.