GameSalad

GameSalad

GameSalad.com Terms Of Service

September 4, 2014

Effective Date of these Terms: 4 September 2014

PLEASE READ THE FOLLOWING TERMS OF SERVICE (“TERMS”) CAREFULLY. BY USING OR VISITING THE GAMESALAD WEBSITE OR ANY GAMESALAD SERVICES, SOFTWARE OR CONTENT, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS AND THE TERMS OF THE GAMESALAD PRIVACY POLICY (“PRIVACY POLICY”) WHEN ACCESSING THE WEB SITE LOCATED AT THE URL: WWW.GAMESALAD.COM (“SITE”) AND/OR USING ANY SERVICES, SOFTWARE OR CONTENT OFFERED BY GAMESALAD, INC. (“GAMESALAD” OR “WE” OR “OUR” OR “US”) THROUGH THE SITE (COLLECTIVELY, THE “SERVICES”).
IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR A COMPANY OR OTHER LEGAL ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY, OR LEGAL ENTITY TO THESE TERMS.

IF YOU DO NOT AGREE TO THESE TERMS OR THE TERMS OF THE PRIVACY POLICY, AND EACH AS AMENDED FROM TIME TO TIME, CLICK THE “I DO NOT AGREE” BUTTON, AND YOU MAY NOT ACCESS OR USE THE SITE OR SERVICES.
IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.

Your privacy is important to us. Please review the terms of our Privacy Policy. In order to use the Services you will need to provide certain personally identifiable information to us. We will collect, store and use such information in accordance with the terms of our Privacy Policy as amended from time to time.

1. Changes to the Site, Services and Terms

GameSalad may, in its sole discretion, add, change, modify, discontinue, remove, or suspend any portion or feature of the Site or Services, including, without limitation, the Software and Content (each as defined below), temporarily or permanently, at any time, without notice and without liability to you. Such additions, changes or modifications may change or delete the nature of features or other aspects of the Site, Services, Software or Content, including features that you may rely upon. You hereby agree that such activities may occur at GameSalad’s sole discretion and that GameSalad may condition continued use of the Site and Services upon your complete acceptance of such additions, changes or modifications.
In addition, we may make changes to these Terms or the Privacy Policy at any time. The most current version of these Terms will supersede all previous versions. Although we may attempt to notify you when major changes are made to the Terms, your acceptance of the revised Terms or Privacy Policy, if prompted to do so, or your continued use of the Site and Services means that you agree to the revised Terms or Privacy Policy, even if you have not reviewed the changes. If you do not agree to the revised Terms or Privacy Policy, your sole and exclusive remedy is to terminate your registration to use the Services immediately and to discontinue your use of the Site and Services.

2. Requirements for Use of the Site and Services

Children Under 13
The Services and Site are available for individuals aged 13 years or older. If you are under 13 years of age, you may not use the Site or Services; the Site and Services are not intended for children under 13 years of age. Parents or legal guardians may not consent to the use of the Site and Services by children under 13. GameSalad respects the privacy rights of children and encourages parents and legal guardians to take an active role in their children’s online activities.
Children Under 18
If you are 13 years of age or older, but not yet 18 years of age, you may only use the Site and Services with the consent of your parent or legal guardian. You should review these Terms with your parent or guardian to make sure that you and your parent or guardian understand the Terms. Your parent and legal guardian hereby agrees to assume full responsibility and liability for your acts and omissions in connection with your use of the Site and Services.
Compatible Devices and Access
Use of the Site and Services requires compatible devices, Internet access, and certain software (fees may apply), which may require periodic updates, and may be affected by the performance of these factors. High-speed Internet access is strongly recommended. You agree that these requirements and recommendations, which may change from time to time, are your responsibility.

3. Free Services and Fee-Based Services

The Services consist of: (i) services for which users are not required to pay any fee to GameSalad (“Free Services”); and (ii) services for which users must pay a fee to GameSalad before they can use such services (“Fee-Based Services”). Most of these Terms apply to both the Free Services and the Fee-Based Services. If different terms apply to either type of Services, we make this clear below in these Terms. GameSalad reserves the right in the future to charge for your use of any portion of the Free Services at any time in its sole discretion, upon notice to you.

4. User Account

A user account (“Account”) is required to access and use the Services. To create an Account, you must have an e-mail address. You represent and warrant that: (i) you will provide truthful, accurate, current, and complete Account registration information; (ii) you will promptly update such information if it changes to keep it accurate and complete; (iii) you are 13 years of age or older; and (iv) your use of the Site and Services does not violate any applicable law, rule or regulation. You hereby authorize GameSalad, either directly or through third parties, to make any inquiries we consider necessary to validate your Account registration data. You agree that you will not misrepresent yourself, or represent yourself as another user of the Site or the Services. Some Services may require you to create a “user name” and/or a “persona”. You may not use a user name or persona that is used by someone else or that is vulgar or offensive or that otherwise violates these Terms. You are solely responsible for maintaining the confidentiality and security of your user name, persona and Account information, and for all activity occurring under your Account as a result of your failure to keep such information secure and confidential. GameSalad will not be responsible for any losses arising out of the unauthorized use of your Account. You may not allow any third party to use your Account for any purpose. You must notify GameSalad promptly in the event of any unauthorized use of your Account, user name or persona, or any other security breach. GameSalad has no liability to you or any third party for any loss or damage arising from your failure to comply with your obligations specified in this section. You agree that GameSalad may store and use the registration data you provide for use in maintaining and billing fees to your Account.

5. Fees

You must have an Account to use the Services. You can sign up for a free membership Account to access and use the basic version of the Services or any other Free Services, but to access and use the Fee-Based Services, you must pay GameSalad’s then-current applicable fees for the Fee-Based Service you are purchasing (e.g. an annual subscription fee or one-time fee). Payments will be charged to your Account on the date on which the relevant Fee-Based Service is first made available to you (“Activation Date”). Thereafter, for subscription fees, on each anniversary of the Activation Date, your subscription will automatically renew and your Account will be charged for the then-current annual subscription fee, unless you cancel your subscription to the relevant Fee-Based Service before the upcoming anniversary of the Activation Date. Except as expressly stated by GameSalad in these Terms, all fees paid or owed by you are non-refundable.

You agree to pay all fees charged to your Account based on GameSalad’s fees, charges, and billing terms then in effect as shown on the payment page of the Site. If you have a balance due on any Account, you agree that GameSalad may, and you hereby authorize GameSalad to, charge such unpaid fees to your PayPal account, or such other payment method accepted by GameSalad, or otherwise bill you for such unpaid fees or other applicable charges. If you do not pay any amount due on time, or if GameSalad cannot charge your PayPal account or other payment method for any reason, GameSalad, in addition to any other rights or remedies it may have, reserves the right to either immediately suspend or terminate your access to all or a portion of the Site and/or Services. All payments to your Account must be made from a source for which you are the named account holder. GameSalad is not liable for any loss caused by any unauthorized use of your PayPal account, or any other method of payment by a third party in connection with your use of the Site or Services, or the use of your Account. GameSalad reserves the right to change its fees and billing methods at any time; any changes to the fees or billing methods will be posted on the Site or through the Services. Your continued use of the Services after the changes have taken effect means that you accept such changes. You are responsible for paying any taxes that may apply, or relate to, your use of the Services (including, without limitation, any income or other taxes payable by you if you sell Executable Packages developed using the Services), in addition to the fees or other applicable charges due under these Terms.

6. Monetization Tools

GameSalad offers you various methods to generate advertising revenue through your Executable Package (as defined in Section 8 below) (“Monetization Tools”). If you are a user of our Free Services, some Monetization Tools will be automatically implemented within your Executable Package; if you are a user of our Fee-Based Services, you will have the option to utilize one or more Monetization Tools. The Monetization Tools may be provided by GameSalad or through third party vendors (“Monetization Vendors”). Whether your use of the Monetization Tools is automatic or optional, you may be required to agree to terms and conditions of the applicable Monetization Vendor(s) (“Monetization Vendor Terms”). Notwithstanding anything to the contrary in the Monetization Vendor Terms, by utilizing the Monetization Tools, you agree that:

  • GameSalad or the applicable Monetization Vendor may place unique tags within your Executable Package in order to deliver advertisements or other promotions (“Ads”) through your Executable Package.
  • You will not attempt in any way to circumvent or interfere with the serving of Ads through your Executable Package.
  • You may not, directly or indirectly, or allow any person or company to directly or indirectly, engage in or enable the use of any deceptive means, incentives, computerized, fraudulent or other invalid means to increase the number of users, impressions, page views, click-throughs or any other measure of traffic on or in connection with an Ad embedded within your Executable Package. The foregoing restrictions include, as an example, any action by you to offer to any third person or end user of your Executable Package any inducement to click on any Ads.
  • If you are a user of our Fee-Based Services, we will pay to you a percentage of revenue actually collected by us from Monetization Vendors on account of Ads served to your Executable Package (“Revenue Share”) in accordance with each Monetization Vendor’s terms. We will make payment to you of your Revenue Share within thirty (30) days after the end of the calendar month in which we actually collected the applicable revenue from our Monetization Vendor(s); provided, however, that if your Revenue Share does not exceed one hundred dollars ($ 100.00), we will not send you a payment but will instead accrue such amounts to your Account until your Revenue Share exceeds such minimum. We reserve the right to withhold, in our sole discretion, up to fifteen percent (15%) of your Revenue Share against chargebacks and/or other uncollectible amounts. With each payment of your Revenue Share, we will include a written report stating the revenue we collected from our Monetization Vendor(s) on account of your Executable Package and a calculation of your Revenue Share; no additional information or data will be provided to you. Payment will be sent to you via PayPal to the account designated in your Account. We will also send you applicable tax documents (e.g., Form 1099) to the address you designate in your Account. Please note that no payment will be made to you if you have not provided to us all information requested in order to process payment to you in compliance with applicable tax regulations.
  • If you are a user of our Free Services, you will receive no Revenue Share or any other compensation for the use of Monetization Tools within your Executable Package. 

GAMESALAD MAKES NO WARRANTY OR REPRESENTATION WHATSOEVER REGARDING THE MONETIZATION TOOLS, THE SERVICES PROVIDED BY MONETIZATION PARTNERS, THE SUCCESS OF SUCH SERVICES, AS MEASURED IN ANY WAY, ANY CONTENT PROVIDED BY AN ADVERTISER (INCLUDING THE QUALITY OR CONTENT THEREOF), ANY INFORMATION, SERVICES OR PRODUCTS PROVIDED OR AVAILABLE THROUGH OR IN CONNECTION WITH THE MONETIZATION TOOLS, THE ADVERTISEMENTS, SITES LINKED THERETO OR THEREFROM OR ANY RESULTS OBTAINED THROUGH THE USE THEREOF. GAMESALAD HEREBY EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES RELATING TO THE MONETIZATION TOOLS, INCLUDING, WITHOUT LIMITATION (1) ANY WARRANTIES AS TO THE AVAILABILITY, ACCURACY OR CONTENT OF THE CONTENT, PRODUCTS OR SERVICES ADVERTISED, OR SITES LINKED THERETO OR THEREFROM; AND (2) ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE MONETIZATION TOOLS.

7. Ownership of Content and Software

GameSalad and/or its third party licensors owns all right, title and interest in and to: (i) the information, features, applications, text, content, files, advertising, graphics, images, photos, videos and video clips, screen shots, art work, icons, audio, sounds, musical works, copyrighted text, works of authorship, descriptions, user and visual interfaces, widgets, third party user Submissions and Feedback (each as defined below), and other materials or information provided on and through the Site and Services (collectively, the “Content”); and (ii) the proprietary software, algorithms and code made available by GameSalad through the Site and Services (collectively, the “Software”), including, without limitation: (a) the downloadable software tool made available to you in object code form (the “GameSalad Tool”); (b) that portion of the Executable Package (as defined below) consisting of the GameSalad engine (the “GameSalad Engine”); and/or © the software that enables embedding of GameSalad Submissions in websites (the “GameSalad Embeddable Player”) and (iii) the design, appearance, structure, selection, coordination, expression, look and feel, and arrangement of the Site, Services, Software and Content; and (iv) the domain names, trademarks, service marks, proprietary logos and other distinctive brand features found on, or in, the Site, Services, Software and Content. Notwithstanding the foregoing, your Submissions (including, without limitation, to the extent your Submissions are embodied in an Executable Package) and Feedback are not “Content” or “Software” for purposes of these Terms. You agree: (1) to use the Site, Services, Software and Content solely as expressly permitted by these Terms or as otherwise expressly permitted by GameSalad, and at all times in accordance with all applicable laws, rules and regulations; and (2) that your unauthorized use of the Site, Services, Software or Content may violate copyright, trademark, trade secret or patent laws, or various other intellectual property rights of GameSalad or third parties, unfair competition laws, the laws of privacy and publicity, and civil and criminal statutes.

8. License Grant From GameSalad for Services

To the extent that you use the Services, and subject to your compliance with these Terms, including, without limitation, your payment of all fees and other amounts due in connection with your use of the Fee-Based Services, and your execution of a EULA (as defined below) with each third party end user (except for end users who access Executable Packages through the GameSalad Embeddable Player) to whom you sell or otherwise provide an Executable Package (as defined below), GameSalad hereby grants you a limited, personal, revocable, non-exclusive, non-sublicensable, and non-transferable license to: (i) publish, publicly display, publicly perform, market, sell and license each Executable Package solely for your personal or commercial use, and solely on the Site or as desktop games, or as games for mobile applications including, without limitation, Apple products, in each case for use by third party end users who license the right to play the game embodied in each Executable Package for their own personal use from you; (ii) publish, publicly display, publicly perform, market, sell and license each Executable Package solely for your personal or commercial use on other web sites as web-based games through the GameSalad Embeddable Player; and (iii) download and use the GameSalad Embeddable Player for the sole purpose of publicly displaying and performing Executable Packages. “Executable Package” means a game that can function independently of the GameSalad platform consisting of: (a) your Submission; and (b) the GameSalad Engine in object code form only.

If any Services are subject to additional license or use terms, then those terms will apply in addition to these Terms and such additional terms, if any, will be notified to you if and when you elect to purchase or download such Services. If any Services are for third party software, content and/or other copyrighted material (“Third Party Content”), then your use of such Third Party Content is governed by the acknowledgements, licensing terms and disclaimers for such Third Party Content.

For clarity, “personal or commercial use” means that you, as an individual and/or on behalf of any person or entity other than yourself in your personal capacity (e.g., on behalf of an employer, or as a game developer or contractor), may publish, publicly display, publicly perform, market, and sell each Executable Package to third party end users for a fee or free of charge. Any fees you charge are earned solely by you in your personal capacity as an individual or by your employer.

As a condition to being permitted to use the Services, you will ensure that you execute a binding written End User License Agreement (“EULA”) with each third party end user to whom you sell or otherwise provide an Executable Package (except for end users who access Executable Packages through the GameSalad Embeddable Player). Each EULA must contain terms no less protective of GameSalad than the terms set forth in these Terms, including, without limitation, the terms specified herein under the headings “Ownership of Content and Software”, “Prohibitions”, “Reservation of Rights”, “Warranty Disclaimer”, “Limitation of Liability”, and “Indemnification.” You will provide complete and accurate copies of all EULA’s to GameSalad within five (5) calendar days after any request from GameSalad. You will enforce each such EULA with at least the same degree of diligence that a reasonable software company would use to enforce similar agreements for its own non-open source software products that it sells and distributes. You will immediately notify GameSalad if you become aware of any material breach of any EULA, and will provide GameSalad with reasonably detailed information in connection with such breach. Upon the termination of any EULA, you will use all reasonable efforts to obtain from the end user all copies of the Executable Package in such end user’s possession or control.

In using the Services, you will not commit any act, or refrain from taking any action, and you will not agree to any legal or other contractual terms, that reduce or otherwise negatively affect in any way, GameSalad’s and its licensors’ right, title and ownership of the intellectual property and other proprietary rights applicable to, or embodied in, the Site, Services, Software (including, without limitation, the GameSalad Engine and GameSalad Embeddable Player), and Content. You will not remove any proprietary trademarks, logos or other designations of GameSalad’s ownership, including without limitation, any “Made with GameSalad” or equivalent designation(s) from any Executable Package or the GameSalad Embeddable Palyer.

Without limiting any other rights or remedies of GameSalad, the limited license and the rights granted above will terminate automatically, without notice to you, if you breach, or threaten to breach any of the terms or conditions of these Terms.

9. Prohibitions

Except to the extent expressly permitted in these Terms, you may not: (i) copy, modify, adapt, translate, reverse engineer, reverse compile, decompile, disassemble, or attempt to discover the source code of any Software or Content (including any Submission) made available on or in connection with the Site, Services (including when made available through the GameSalad Embeddable Player on web sites) or Content, or make any derivative works of such Software; (ii) use any code, software, method or product to manipulate the Site, Services, Software or Content in any way that affects any user’s experience in using, or ability to use, same; (iii) reproduce, publish, broadcast, transmit, download, cache, distribute, perform, display, sell, or in any way exploit any Software or Content; or (iv) remove any patent, copyright, trademark or other proprietary notices contained in any Software or Content. To the extent the prohibition specified above concerning the reverse engineering, disassembly or decompilation of Software violates applicable local law, and you wish to take any action in contravention of this prohibition to the extent you are permitted to do so under applicable local law, then you must notify GameSalad in writing not less than 90 calendar days before taking that proposed action. GameSalad will then discuss with you, the scope of any necessary reverse engineering, disassembly or decompilation that would be required in order to enable you to exercise your rights as permitted under applicable local law, and you hereby agree that GameSalad, may in its sole discretion, carry out any such reverse engineering, disassembly or decompilation on your behalf, at no cost to you.

You agree not to use or launch any automated system, including without limitation, “robots,” “spiders,” or “offline readers” that accesses the Site in a manner that sends more request messages to the GameSalad servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser. Notwithstanding the foregoing, GameSalad grants the operators of public search engines permission to use spiders to copy materials from the site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials. GameSalad reserves the right to revoke these exceptions either generally or in specific cases. You agree not to collect or harvest any personally identifiable information, including account names, from the Site, nor to use the communication systems provided by the Site (e.g., comments, email) for any commercial solicitation purposes. You agree not to solicit, for commercial purposes, any users of the Site with respect to their Content or Submissions.

If you use the GameSalad Embeddable Player on your website, you may not: (i) modify, build upon, or block any portion or functionality of the GameSalad Embeddable Player, including but not limited to links back to the Site; and (ii) sell advertising, sponsorships, or promotions for placement within the GameSalad Embeddable Player.

10. Reservation of Rights

Except for the limited licenses specified above, you acknowledge that you have no right, title or interest in or to the Site, Services, Software or Content. GameSalad and its licensors retain all right, title and interest in and to the Site, Services, Software and Content, including, without limitation, all intellectual property and other proprietary rights embodied therein, or associated therewith. Nothing in these Terms will be deemed a sale of the Software. By making them available on the Site, or through the Services, Software or Content, GameSalad is not granting you any license to use the domain names, trademarks, service marks, proprietary logos, and other distinctive brand features found on or in the Site, Services, Software or Content, unless otherwise expressly permitted by GameSalad. All rights not expressly granted by GameSalad in these Terms are hereby reserved by GameSalad and its licensors. There are no implied rights.

You acknowledge and agree that GameSalad may use the Software licensed to you hereunder to develop its own games and that GameSalad reserves the right to independently develop and publish games that may be substantially similar to your Submission(s). To the extent that any game independently developed by GameSalad appears substantially similar to any of Submissions, you hereby waive any claims you may have against GameSalad arising therefrom.

11. Links to Third Party Web Sites

The Site may provide links to other web sites that are not owned or operated by GameSalad (“Third Party Web Sites”). GameSalad provides these links to you as a convenience only, and GameSalad does not verify, make any representations concerning, or take responsibility for, such Third Party Web Sites, including, without limitation, the truthfulness, accuracy, quality, or completeness of the content of, or activities conducted on, such Third Party Web Sites. You should use your own independent judgment before accessing and using such Third Party Web Sites. These Terms and the Privacy Policy do not apply to such Third-Party Web Sites, and you should review such Third Party Web Sites’ privacy policies, terms and conditions and business practices as they may be different to those of GameSalad and it is your sole responsibility to comply with such terms. Your dealings and communications with any third party in connection with the Third Party Web Sites are solely between you and such third party. Any reference on the Site to any product, process, publication or service of any third party, by trade name, domain name, trademark, trade identity, service mark, logo, manufacturer or otherwise, does not constitute or imply GameSalad’s endorsement or recommendation thereof, and your use of any Third Party Web Sites and third party product, process, publication, or service is entirely at your own risk.

12. Your Submissions

AS BETWEEN YOU AND GAMESALAD, YOU RETAIN OWNERSHIP OF ALL YOUR COPYRIGHT AND/OR OTHER INTELLECTUAL PROPERTY RIGHTS APPLICABLE TO, OR EMBODIED IN, YOUR SUBMISSIONS. You acknowledge and agree that you are solely responsible for the games, content, code, text, files, images, photos, screen shots, artwork, icons, videos, sounds, musical works, works of authorship, copyrighted text, descriptions, representations or any other materials or information that you submit, post or otherwise make available to GameSalad for publication and distribution, including, without limitation, games that you have developed and post on the Site using the Services, and games consisting of an Executable Package that you market, distribute, sell and license using the Services (each, a “Submission”), and that you, and not GameSalad, are solely and exclusively responsible for each such Submission, including, without limitation, ensuring that you have the legal right to post, provide, license, market, sell, or otherwise use, each Submission, and that such Submission does not violate these Terms, or the property or other rights of any third party. The term “Submission” does not include: (i) the GameSalad Tool; or (ii) that portion of the Executable Package consisting of the GameSalad Engine; (iii) the GameSalad Embeddable Player; or (iv) any other Software or Content.

You represent and warrant that each Submission is your own original creation, and/or that you have, or have obtained, all necessary permissions, rights, licenses, consents, and clearances to enable GameSalad to exercise the rights granted in these Terms and to use the Submissions for the foregoing purposes. To the extent you hold any rights that conflict with the rights you have granted as set forth in these Terms, you hereby waive, and agree not to assert, any moral or similar rights you may have, and which apply to your Submissions or Feedback which GameSalad uses within the scope of the licenses granted by you under these Terms.

13. Your Feedback and Support Requests

Certain areas of the Site and Services (e.g., blogs, online forums, chat rooms, games, and message boards) may permit you to provide feedback, comments, suggestions, ideas, messages, or similar information (collectively, “Feedback”). Feedback does not include any Submissions provided by you, and GameSalad’s rights to use Submissions provided by you, are solely as stated above. By submitting Feedback, and as a condition of using the Site and Services, you hereby grant GameSalad an irrevocable, perpetual, transferable, non-exclusive, fully-paid-up, royalty-free, worldwide, license (sublicensable through multiple tiers) to: (i) use, distribute, reproduce, modify, adapt, publish, translate, publicly perform, and publicly display your Feedback (or any modification thereto), in whole or in part, in any format or medium now known or later developed; and (ii) use (and permit others to use) your Feedback in any manner and for any purpose (including, without limitation, commercial purposes) that GameSalad deems appropriate in its sole discretion (including, without limitation, to incorporate your Feedback (or any modification thereto), in whole or in part, into any technology, product or service). GameSalad reserves the right to display advertisements in connection with Feedback and to use Feedback for advertising and promotional purposes. You acknowledge and agree that any Feedback provided by you is provided on a non-confidential basis. Feedback will generally be accessible by other users of the Site and Services, so be sure that any Feedback you post on any area of the Site or Services is information that you are comfortable sharing with others.

Requests for technical support should be addressed to customer support at gamesalad.com/contact for general support issues, and at gamesalad.com/bug/report for errors or bugs you want to report to GameSalad.

14. License Grant From You For Services

AS BETWEEN YOU AND GAMESALAD, YOU RETAIN OWNERSHIP OF ALL YOUR COPYRIGHT AND/OR OTHER INTELLECTUAL PROPERTY RIGHTS APPLICABLE TO, OR EMBODIED IN, YOUR SUBMISSIONS. You hereby grant GameSalad an irrevocable, perpetual, non-exclusive, worldwide, fully paid-up, royalty-free, transferable, sublicensable (with the right to sublicense through multiple tiers) license (in any media, whether now known or hereafter developed) to reproduce, create derivative works from, distribute, publicly perform, publicly display, modify, adapt, enhance, and otherwise use, the Submissions that you provide to GameSalad, solely for purposes of: (i) developing, creating, testing, delivering, maintaining, and supporting each Executable Package for use by you within the scope of the Services; (ii) hosting, publishing, publicly displaying and publicly performing each Executable Package on the Site at your request, and making such games available for use by users of the Site and Services; (iii) enabling Third Party Web Sites to embed all or portions of your Submissions into their web sites; (iv) marketing and promoting the Site and Services; and (v) hosting, providing, maintaining, adapting, enhancing, modifying and otherwise improving the Site, Services and Software. EXCEPT TO THE EXTENT YOU REQUEST GAMESALAD TO SELL YOUR SUBMISSIONS ON YOUR BEHALF PURSUANT TO PUBLISHING SERVICES THAT GAMESALAD MAY OFFER UNDER SEPARATE TERMS OF SERVICE, GAMESALAD WILL NOT SELL YOUR SUBMISSIONS TO ANY THIRD PARTY. GameSalad is not required to provide: (a) any attribution to you in connection with your Submissions, except to the extent you request attribution as set forth below; (b) any prior notice to you of any use of your Submissions for the purposes specified in clauses (iii) or (iv) of this section; or © any fees, royalties, or other payments to you. You may remove your Executable Package from the Site by accessing your Account and following the removal procedure specified on the Site; provided however, that such removal will not affect GameSalad’s continued right to use your Submissions pursuant to clauses (iii) and (iv) of this paragraph.

You acknowledge and agree that GameSalad may collect certain data arising from and regarding the use of your Submissions by users of the Site and Services, that GameSalad shall own all right, title and interest in such data, and that GameSalad has no obligation to share with you any such data.

As we explain here, GameSalad may collect certain data arising from and regarding the use of Submissions. If you upload applications built with GameSalad to the iOS App Store, then you will need to comply with the iOS Developer Program License Agreement’s provision regarding the collection and use of user data. GameSalad strives to ensure that the collection of any user data from your applications does comply with the iOS Developer Program License Agreement. As the agreement allows, we collect user data for the limited purpose of providing a service or function that is directly relevant to the use of your iOS applications (such as ensuring the proper functioning of features such as leaderboards and achievements), or to serve advertising in connection with such applications.

However, for you to comply with the iOS Developer Program License Agreement, you also need to notify users of your iOS application that you, or your third party service providers such as GameSalad, may collect such user data for the purposes described above. In connection with this notification requirement, we suggest that you include specific language in any privacy policies applicable to your application that you, or your third party service providers, may collect user or device data for such limited purposes.

You may deliver to GameSalad your own EULA for any Submission at the time that you provide your Submission to GameSalad; provided, however, that your EULA must comply with applicable laws. GameSalad will notify each end user that the end user’s use of that Submission is subject to the terms and conditions of your EULA (if any) and allow each end user to review your EULA at the time that GameSalad provides access to your Submission. If you do not furnish your own EULA for any Submission, then you acknowledge and agree that each end user’s use of that Submission will be subject to GameSalad’s standard EULA.

You hereby acknowledge that the EULA for each of your Submissions is solely between you and the end user, and neither GameSalad nor its distributors or agents will be responsible for, and/or have any liability whatsoever under, any EULA or any breach by you or any end user of any of the terms and conditions of any EULA.

15. Attribution

When posting a Submission to the Site through the Services, you will have the ability to select one of the following options with respect to each Submission: (i) not to share your Submission with other users of the Site and Services; (ii) to share your Submission with other users of the Site and Services under the licenses granted above, without requiring any kind of attribution to you; or (iii) to share your Submission with other users of the Site and Services under the licenses granted above, and requiring attribution to you (in such form as reasonably determined by GameSalad). If you opt to require attribution, you hereby grant GameSalad an irrevocable, perpetual, non-exclusive, worldwide, fully paid-up, royalty-free, transferable, sublicensable (with the right to sublicense through multiple tiers) license (in any media, whether now known or hereafter developed) to use your name, user name and/or persona for the purposes of attributing you as the source of the Submission in connection with GameSalad exercising the rights granted by you above in connection with your Submission. If you select no option at the time you post your Submission, the default option will be that no attribution of any kind is required to be displayed with your Submission, and your Submission will not be shared with other users of the Site and Services. You represent and warrant that the use of your name, user name and/or persona in connection with your Submissions will not violate the right of any third party, including, without limitation, the right of privacy or publicity of any third party. You hereby waive all rights, and release and discharge GameSalad and its agents from, and will neither sue nor bring any proceeding against GameSalad or any third party for any claims, losses, demands, damages, liabilities, costs and expenses, including, without limitation, reasonable attorneys’ fees, at law or in equity, whether for libel, violation of the right of privacy or right of publicity, infringement of copyright or other intellectual property or other proprietary right, or any other claim that you may now have, or may hereafter have, by reason of GameSalad’s use of your name, user name and/or persona in connection with your Submissions.

16. Submission Rating and Content Restrictions

If requested by GameSalad, you will use the content rating tool set forth in the GameSalad Tool or otherwise provided as part of the submission process to supply information regarding each of the Submissions delivered by you to GameSalad in order to assign a rating to each such Submission. For purposes of assigning a rating to each of the Submissions, you will use your best efforts to provide correct and complete information about the content of that Submission with the content rating tool. Furthermore, you authorize GameSalad to correct the rating of any Submission of yours that has been assigned an incorrect rating; and you agree to any such corrected rating.

You represent and warrant that your Submission will not contain, or contain links to, content which is unlawful, libelous, pornographic, offensive, defamatory, contrary to public policy, GameSalad’s stated policies, or otherwise violates any law or any right of any third party (including intellectual property rights, publicity rights, privacy rights, or other legally recognized rights).

You agree that you will not upload, post, submit or otherwise make available on the Site or through the Services any Submissions or Feedback protected by copyright, trademark, patent, trade secret, or any other intellectual property or other proprietary right without the express prior permission of the legal owner of such right, and the burden of determining whether any material is protected by, or infringes, misappropriates or violates, any such right is your sole and exclusive responsibility. As between you and GameSalad and the other Indemnified Parties (as defined below), you will be solely liable for any claims, losses, or damage resulting from any such infringement, misappropriation or violation of such rights, or any other harm resulting from any Submissions or Feedback that you provide.

You represent and warrant that: (i) you have the right to enter into this Agreement; (ii) you own all Submissions and Feedback provided by you on or through the Site or Services or you otherwise have the legal right to grant the licenses to GameSalad as set forth in these Terms; (iii) you have the right to reproduce and distribute each of the Submissions, and to authorize GameSalad to permit end users to download and use each of the Submissions; (iv) none of the Submissions or Feedback, or GameSalad’s or end users’ permitted uses of those Submissions and Feedback, violate or infringe, or will violate or infringe, any patent, copyright, trademark, trade secret, privacy, or publicity rights, or other intellectual property, proprietary or contractual rights, of any other person, firm, corporation or other entity; and (v) all information you provided to GameSalad in your Account and using the GameSalad Tool and, including any information relating to the Submissions, is accurate and that, if any such information ceases to be accurate, you will promptly update it to be accurate.
GameSalad reserves the right to limit the number of Submissions and amount of Feedback that you can upload or provide (in total or simultaneously) to the Site or through the Services, at any time, and without notice.
If you submit an Executable Package to Apple, Inc. (“Apple”) or any third party web site or product provider, GameSalad is not responsible, and has no liability to you, if Apple or any third party web site or product provider rejects, fails to approve, and/or fails to make any game embodied in such Executable Package available for use on or with the relevant Apple or third party web site or product. Furthermore, you acknowledge and agree that your interactions and dealings with any third party in connection with your use of the Site and/or Services (including, without limitation, Apple, other web site and product providers, and other users of the Site and Services) are solely between you and such third party. GameSalad is not responsible for any loss or damage of any sort incurred by you, or any third party, as a result of any third party rejection, act, omission, failure, interaction or dealing, and GameSalad has no obligation to become involved in any resulting dispute.

17. Rules of Conduct

GameSalad requires that you respect the GameSalad online community, including other individuals who use the Site and Services. Your conduct should be guided by common sense and basic etiquette. To further these common goals, when posting and providing Submissions and Feedback to, or otherwise using, the Site and Services, you agree not to do any of the following:
(i) post or provide Submissions, Feedback or any other content that is false, harmful or illegal;
(ii) harass, threaten, abuse, stalk, troll or flame other users of the Site or Services or any other person;
(iii) post or provide Submissions, Feedback or any other content that is racially or ethnically offensive, vulgar, obscene, pornographic, sexually explicit, disparaging, defamatory, tortious, libelous, infringing or that otherwise violates the legal rights of others (including, without limitation, the intellectual property rights, privacy or publicity rights of third parties);
(iv) impersonate another person or attempt to mislead users by indicating that you represent GameSalad;
(v) attempt to illicitly obtain a password, account information, or other private information from anyone else who uses the Services;
(vi) collect user names, personas, street addresses, e-mail addresses, or other personal information from, or of, other users of the Services for any purpose other than your personal use in your interactions on the Site, and at all times with the permission of the relevant users;
(vii) provide or upload files or other content that contain a virus, corrupted data, Trojan horses or other harmful, disruptive or destructive files, or post material that interferes with any third party’s uninterrupted use and enjoyment of the Site or the Services;
(viii) post or disseminate any unsolicited or unauthorized advertising or promotional messaging, junk mail, chain letters, pyramid schemes, or other commercial activities (except when and where such commercial activities are expressly authorized by GameSalad);
(ix) reveal any other Services user’s real-world personal information, including, without limitation, such user’s first and last name, telephone number or street address; or
(x) post any materials that are subject to third party rights, including without limitation, third party copyright, trademark, patent, trade secret, or other intellectual property rights without the express prior permission from the legal owner of such rights.
This list of prohibitions provides examples of prohibited conduct, and is not intended to be a complete or exclusive list of all prohibitions. Without limiting the rights and remedies available to it, GameSalad reserves the right in its sole discretion, to: (a) suspend or terminate access to your Account, the Site and/or the Services or your ability to post to the Site or the Services; and (b) refuse, delete, remove, move or edit the content, in whole or in part, of any Submissions or Feedback provided by you; with or without cause, and with or without notice, for any reason or no reason, and to take any other action that GameSalad determines in its sole discretion is necessary as a result of any behavior by you that is illegal, inappropriate, disruptive to the Site, Services, or to any other user of the Site or the Services, or which otherwise breaches these Terms. GameSalad may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required, or otherwise in GameSalad’s sole discretion, GameSalad will cooperate with law enforcement agencies in any investigation of alleged illegal activity conducted using the Site and/or the Services. GameSalad does not, and cannot, review all Feedback posted to the Site or through the Services, or review every Submission for compliance with these Terms. These prohibitions do not require GameSalad to monitor, police, remove or reject any Submissions, Feedback or other information submitted by you or any other user.

18. Electronic Communications

By using the Site and Services, you consent to receive electronic communications from GameSalad, its parents, affiliates, subsidiaries and third party service providers. These electronic communications may include notices about applicable fees and other charges, transactional information and other information concerning the Site and Services. These electronic communications are part of your relationship with GameSalad and you receive them as a condition to you being permitted to use the Site and Services. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.

19. Termination of Services and Your Account

GameSalad reserves the right to do any of the following, at any time, without notice: (i) modify, interrupt, suspend or terminate operation of or access to the Site and/or Services, or any portion of the Site and/or Services, for any reason; and (ii) terminate your Account, and block your future access to the Site and Services, for any reason at any time, including, without limitation, because of your violation or threatened violation of these Terms, the Privacy Policy, or any other applicable GameSalad terms or policies that apply to your use of the Site or Services, (e.g., sharing your Account information with a third party, illegal or improper use of your Account, the Services, Software, or any other products or services of GameSalad, or your infringement, misappropriation or violation of GameSalad’s or a third party’s intellectual property or other proprietary rights). You may lose your user name and/or persona as a result of Account termination. If you have more than one Account, GameSalad may terminate all of your Accounts, user names and personas. GameSalad may, but is not required to, provide you with notice before terminating your Account. If your Account is terminated for any reason, no refunds or credits of any Fee-Based Services fees, or other fees will be paid to you.

All of GameSalad’s obligations hereunder, will terminate upon the expiration or termination of these Terms.

In the event that you no longer have the legal right to distribute the Submissions, or to authorize GameSalad to allow access to those Submissions by end users, you will promptly withdraw those Submissions from the Site; provided, however, that such withdrawal by you under will not relieve you of any of your obligations to GameSalad under these Terms, or any liability to GameSalad and/or any end user with respect to those Submissions.

GameSalad reserves the right to cease marketing, displaying, posting, publishing and distributing your Submissions at any time, with or without cause, by providing notice of termination to you. Without limiting the generality of this paragraph, you acknowledge that GameSalad may cease the marketing, displaying, posting, publishing and distributing of some or all of the Submissions if GameSalad reasonably believes that: (i) those Submissions are not authorized for export to one or more countries, in accordance with the Export Administration Regulations; (ii) those Submissions and/or GameSalad’s publication of those Submissions and/or any end user’s possession and/or use of those Submissions, infringe patent, copyright, trademark, trade secret or other intellectual property rights of any third party; or (iii) the publication, distribution, sale and/or use of those Submissions violates any applicable law in any country. An election by GameSalad to cease marketing, displaying, posting, publishing and distributing any Submissions, pursuant to this paragraph, will not relieve you of your obligations under these Terms.

20. Cancellation of Your Account

You may stop using the Services at any time by cancelling your Account by following the Account cancellation procedure specified on the Site, and ceasing to access the Site and Services. You may also cancel any Fee-Based Services at any time by following the cancellation procedure specified on the Site, however, you will not receive a refund of any amounts paid or owed by you before the effective date of cancellation or expiration of any Fee-Based Services. If you do not agree to the then-current version of these Terms or the Privacy Policy, your sole and exclusive remedy is not to use, or in the event of changes to these Terms or the Privacy Policy, to stop using, the Site and Services, and to cancel your Account.

21. Consequences of Termination

Upon termination of your use of the Site and Services for any reason, you will have no recourse against GameSalad, its parents, affiliates, and subsidiaries, and its and their officers, directors, employees, contractors, licensors, licensees, third party service providers, or agents, for your inability to use the Site and Services, and you must destroy any copies of Software (including, without limitation, the GameSalad Tool) or Content in your possession, including, without limitation, any Software or Content downloaded, or otherwise obtained by you, through the Site or Services. GameSalad has no obligation to return any Submissions to you, or to provide you with any Software, technology, materials or services to enable you to re-use all or part of your Submission. Any obligations that apply to you under these Terms, which by their nature are intended to survive the termination of your use of the Site or Services, will continue to apply to you after you stop using the Site and Services. Without limiting the foregoing, your obligations to enforce the terms of your EULA with respect to end users to whom you sold or otherwise provided an Executable Package before the termination of your use of the Site and Services, will continue to apply until such end users no longer use the relevant Executable Package.

22. Digital Millennium Copyright Act

GameSalad respects the intellectual property and other proprietary rights of others and has a policy of removing content that infringes third party copyrights and suspending and/or terminating the Account of any user who uses the Site or Services in violation of copyright law, and where appropriate, blocking such user’s access to the Site and Services. If you are a copyright owner, or an agent thereof, and believe that your work is the subject of copyright infringement and appears on our Site, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our copyright agent (designated below) with the following information in writing: (i) your physical or electronic signature; (ii) identification of the copyrighted work claimed to have been infringed; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit GameSalad to locate such material; (iv) information reasonably sufficient to permit GameSalad to contact you, such as an address, telephone number, and, if available, an e-mail address; (v) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and under penalty of perjury, that you are, or that you are authorized to act on behalf of, the owner of an exclusive right that is allegedly infringed. GameSalad’s designated copyright agent to receive notifications of claimed infringement under the DMCA is:

Legal
GameSalad, Inc.
8911 N. Capital of Texas Highway
Suite 2210
Austin, TX 78759
E-mail: dmca@gamesalad.com

Only DMCA or other intellectual property rights-related notices should be sent to the copyright agent. Requests for technical support should be addressed to customer support at gamesalad.com/contact for general support issues and at gamesalad.com/bug/report for errors or bugs you want to report to GameSalad. Any feedback, comments, questions, or other communications should be directed to GameSalad at the address specified at the end of these Terms.

23. Responsibility and Liability

GameSalad will have no responsibility for the installation and/or use of any of the Submissions or Executable Packages by any end user. You will be solely responsible for any and all product warranties, end user assistance and product support with respect to each of your Submissions and Executable Packages.

You will be solely responsible for, and GameSalad will have no responsibility or liability whatsoever with respect to, any and all claims, suits, liabilities, losses, damages, costs and expenses arising from, or attributable to, the Submissions and Executable Packages and/or the publication and distribution of those Submissions and Executable Packages and/or the use of those Submissions and Executable Packages by any end user, including, without limitation: (i) claims of breach of warranty, whether specified in the EULA or established under applicable law; (ii) product liability claims; and (iii) claims that any of the Submissions and Executable Packages and/or publication and distribution of those Submissions and Executable Packages and/or the end user’s possession or use of those Submissions and Executable Packages infringes the copyright or other intellectual property rights of any third party.

GameSalad reserves the right to take steps which GameSalad believes are reasonably necessary or appropriate to enforce and/or verify compliance with any part of these Terms. You agree that GameSalad has the right, without liability to you, to disclose any registration data and/or Account information to law enforcement authorities, government officials, and/or a third party, as GameSalad believes is reasonably necessary or appropriate to enforce and/or verify compliance with any part of these Terms (including without limitation GameSalad’s right to cooperate with any legal process relating to your use of the Services or Site, and/or a third-party claim that your use of the Services or Site is unlawful or infringes such third party’s rights.

24. Warranty Disclaimer

GAMESALAD DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE SERVICES OR SITE WILL BE UNINTERRUPTED OR ERROR-FREE, AND YOU AGREE THAT FROM TIME TO TIME GAMESALAD MAY REMOVE THE SERVICES OR SITE FOR INDEFINITE PERIODS OF TIME, OR CANCEL THE SERVICES OR SITE AT ANY TIME, WITHOUT NOTICE TO YOU.

YOU AGREE THAT YOUR USE OF, OR INABILITY TO USE, THE SITE, SERVICES, SOFTWARE, AND CONTENT IS SOLELY AT YOUR OWN DISCRETION AND RISK. THE SITE, SERVICES, SOFTWARE AND CONTENT ARE FURNISHED TO YOU “AS IS” AND WITHOUT WARRANTIES OR CONDITIONS, STATUTORY OR OTHERWISE, OF ANY KIND, AND ARE SUBJECT TO CHANGE WITHOUT NOTICE. NEITHER THE SOFTWARE NOR CONTENT HAS BEEN VERIFIED OR AUTHENTICATED IN WHOLE OR IN PART BY GAMESALAD, AND THEY MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL OR OTHER ERRORS. GAMESALAD, ITS PARENTS, AFFILIATES, AND SUBSIDIARIES, AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, LICENSORS, LICENSEES, THIRD PARTY SERVICE PROVIDERS, AND AGENTS DO NOT WARRANT THAT THE SITE, SERVICES, SOFTWARE OR CONTENT WILL MEET YOUR REQUIREMENTS, OR THAT THEY WILL BE UPDATED, OR THAT THE OPERATION OF THE SERVICES, SITE, OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ANY DEFECTS WILL BE CORRECTED.

GAMESALAD, ITS PARENTS, AFFILIATES, AND SUBSIDIARIES, AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, LICENSORS, LICENSEES, THIRD PARTY SERVICE PROVIDERS, AND AGENTS, MAKE NO, AND HEREBY EXPRESSLY DISCLAIM, ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY AND ALL OTHER REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THE SITE, SERVICES, SOFTWARE AND CONTENT, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR ANY WARRANTIES ARISING THROUGH COURSE OF DEALING OR TRADE. GAMESALAD DOES NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, SPYWARE OR MALWARE THAT MAY BE INSTALLED ON YOUR COMPUTER AS A RESULT OF USING THE SITE, SERVICES, SOFTWARE OR CONTENT.

Some jurisdictions may not allow the exclusion and/or limitation of implied warranties or conditions, or allow limitations on how long an implied warranty lasts, so the above limitations or exclusions may not apply to you. In such event, GameSalad’s warranties and conditions with respect to the Site, Services, Software and Content will be limited to the greatest extent permitted by applicable law in such jurisdiction.

25. Limitation of Liability

IN NO EVENT WILL GAMESALAD’S, ITS PARENT’S, AFFILIATES’, AND SUBSIDIARIES’, AND ITS AND THEIR OFFICERS’, DIRECTORS’, EMPLOYEES’, CONTRACTORS’, LICENSORS’, LICENSEES’, THIRD PARTY SERVICE PROVIDERS’, AND AGENTS’ TOTAL, AGGREGATE LIABILITY TO YOU UNDER THESE TERMS OR OTHERWISE RELATING TO THE SITE, SERVICES, SOFTWARE OR CONTENT, WHETHER ARISING UNDER CONTRACT, TORT (INCLUDING WITHOUT LIMITATION, STRICT LIABILITY OR NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE GREATER OF: (i) ANY AMOUNT THAT YOU PAID TO GAMESALAD FOR THE SPECIFIC FEE-BASED SERVICE FROM WHICH THE CAUSE OF ACTION OR CLAIM AROSE IN THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO THE LIABILITY; OR (ii) ONE HUNDRED U.S. DOLLARS (US$100).

IN NO EVENT WILL GAMESALAD, ITS PARENT, AFFILIATES, AND SUBSIDIARIES, AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, LICENSORS, LICENSEES, THIRD PARTY SERVICE PROVIDERS, AND AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE, EXTRAORDINARY, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING FROM THE SITE, SERVICES, SOFTWARE OR CONTENT OR ANY OTHER THIRD PARTY SERVICES OR PRODUCTS OFFERED ON OR THROUGH THE SITE, OR YOUR DISPLAYING, COPYING, DOWNLOADING, PERFORMING OR USING ANY OF THE FOREGOING (INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWSOEVER ARISING, EVEN IF GAMESALAD KNOWS THERE IS A POSSIBILITY OF SUCH DAMAGE.

GAMESALAD DOES NOT ENDORSE, WARRANT OR GUARANTEE, AND WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY FOR, ANY THIRD PARTY GOODS, PRODUCTS, SERVICES OR CONTENT AVAILABLE THROUGH THE SITE, SERVICES, SOFTWARE OR CONTENT OR THIRD PARTY WEB SITES AND WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD PARTIES.

You agree that fees hereunder are based in part on the limitation of warranty, limitation of liability and remedies set forth in these Terms.

Some jurisdictions may not allow the exclusion or limitation of incidental, special, consequential, or other damages, so the above limitations or exclusions may not apply to you. In such event, the liability of GameSalad, its parent, affiliates, and subsidiaries, and its and their officers, directors, employees, contractors, licensors, licensees, third party service providers, and agents, for such damages with respect to the Site and Services will be limited to the greatest extent permitted by applicable law in such jurisdiction.

26. Indemnification

You hereby agree to defend, indemnify and hold harmless GameSalad, its parent, affiliates, and subsidiaries, and its and their officers, directors, employees, contractors, licensors, licensees, third party service providers, and agents (each an “Indemnified Party”) from and against any and all claims, actions, proceedings, demands, losses, costs, damages, liabilities, and expenses (including, without limitation, fees of attorneys and experts and costs of defense) incurred by the Indemnified Party in connection with any actual or alleged claim arising out of or related to: (i) your use or misuse of the Site, Services, Software or Content, or the use or misuse of the Site, Services, Software or Content by any person using your Account, user name or persona; (ii) any breach by you of these Terms or any other terms applicable to your use of the Site, Services, Software or Content in any manner; (iii) any actual or alleged violation or non-compliance by you with any applicable local, state, federal or international law, rule or regulation, including, without limitation, the infringement, misappropriation or violation of the intellectual property rights or other proprietary rights, privacy rights, publicity rights, or any other rights of a third party; (iv) any interactions or dealings by you with other users of the Site and Services or any other third party in connection with your use of the Site and/or Services (including, without limitation, Apple and other web site and product providers); (v) any damage caused or alleged to have been caused by you to the Site, Service, Software or Content; and (vi) any use of the Submissions, Feedback or other materials you provide to GameSalad in connection with your use of the Site and Services, or any Submissions or Feedback provided by any person using your Account, user name or persona.

Counsel you select for defense or settlement of a claim must be reasonably acceptable to GameSalad and/or the other affected Indemnified Party(s) before such counsel can be engaged to represent you and GameSalad and/or the other Indemnified Party(s). You and your counsel will cooperate as fully as reasonably required, and provide such information as reasonably requested, by the relevant GameSalad and/or the other Indemnified Party(s) in the defense or settlement of any claim. GameSalad and/or the other Indemnified Party(s) reserves the right, at its own expense, to assume the exclusive defense or settlement, and control of any matter otherwise subject to indemnification by you. You agree that you will not, in any event, consent to any judgment, settlement, attachment, or lien, or any other act adverse to the interest of GameSalad or any other Indemnified Party(s) without the prior written consent of GameSalad and/or the other affected Indemnified Party(s).

By using the Services and Site, you agree to indemnify and hold harmless GameSalad, its parent, affiliates, and subsidiaries, and its and their officers, directors, employees, contractors, licensors, licensees, third party service providers, and agents with respect to any claims arising out of any action taken by GameSalad as part of its investigation of a suspected violation of these Terms or as a result of its finding or decision that a violation of these Terms has occurred. This means that you cannot sue or recover any damages from GameSalad, its parent, affiliates, and subsidiaries, and its and their officers, directors, employees, contractors, licensors, licensees, third party service providers, and agents as a result of its decision to remove or refuse to process any information or content, to warn you, to suspend or terminate your access to the Services or Site, or to take any other action during the investigation of a suspected violation or as a result of GameSalad’s conclusion that a violation of these Terms has occurred. This waiver and indemnity provision applies to all violations described in or contemplated by these Terms.

27. General Terms

Governing Law. The laws of the State of Texas, or where applicable the federal laws of the U.S.A., excluding conflicts of law rules, govern these Terms. Your use of the Services and Site may also be subject to other laws. Unless otherwise elected by GameSalad in writing for a particular instance (which GameSalad may do at its sole option), the state and federal courts seated in Austin, Texas, will have exclusive jurisdiction in respect of any and all matters relating to these Terms, including, without limitation, any claim arising from, or relating to, your use of the Site, Services, Software, Content, and your provision of Submissions and Feedback, and any claim involving GameSalad, its parent, affiliates, and subsidiaries, and its and their officers, directors, employees, contractors, licensors, licensees, third party service providers, or agents, and you hereby irrevocably submit to the exclusive personal jurisdiction of such courts. You acknowledge that any actual or threatened breach of these Terms by you may result in immediate, irreparable harm to GameSalad for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach or threatened breach, and notwithstanding the provisions of this paragraph, GameSalad may seek injunctive or other equitable relief in any court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms or to any activities carried out by either party pursuant to these Terms. Furthermore, these Terms (including, without limitation, the use of the Site, Services, Software and Content) will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act (UCITA) or any other act derived from or related to UCITA.

Jury Trial Waiver. TO THE EXTENT NOT OTHERWISE PROHIBITED BY APPLICABLE LAW, THE PARTIES HERETO HEREBY AGREE TO WAIVE TRIAL BY JURY WITH RESPECT TO ANY MATTERS ARISING UNDER OR RELATING TO THESE TERMS. Any claim or cause of action arising under, or relating to, these Terms must be commenced by you within one (1) year after the claim or cause of action arises.

Local Laws; Export Control. GameSalad controls and operates the Site from its headquarters in the United States of America and the Site, Services, Software, Content, Submissions and Feedback may not be appropriate or available for use in other locations. If you choose to access the Site or use the Services from outside the United States of America, you do so on your own initiative, and you are solely responsible for complying with all local, state, federal, and national laws, statutes, ordinances, and regulations that apply to your use of the Site and Services. Any offer for any services made on the Site or through the Services is void where prohibited. You agree to comply with all export and re-export restrictions and regulations of the U.S. Department of Commerce and any other U.S. or foreign agencies and authorities in connection with your use of the Site and Services and to not transfer, or authorize the transfer, of any Software to a prohibited country or otherwise, in violation of any applicable laws, rules or regulations. In particular, but without limitation, the Software may not, in violation of any applicable laws, rules or regulations be exported or re-exported: (i) into any U.S. embargoed countries; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders.

U.S. Government Customers. Any Software provided by GameSalad through the Site or Services is a “Commercial Item” as that term is defined in 48 C.F.R. Sec. 2.101, consisting of “Commercial Computer Software”  (as defined in 48 C.F.R. Sec. 2.101) and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. Sec. 12.212 or 48 C.F.R. Sec. 227.7202, as applicable. Consistent with 48 C.F.R.  Sec. 12.211 and 12.212, and 48 C.F.R. Sec. 227.7202-1 through Sec. 227.7202-4, as applicable, Software is being provided to U.S. Government Customers: (i) only as a Commercial Item; and (ii) with only those license rights as are granted to all other users pursuant to the terms and conditions of these Terms.  This U.S. Government Customers clause is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses Government rights in computer software or computer software documentation.   

Assignment. GameSalad may freely assign these Terms or any of its rights or obligations hereunder to any third party. Neither these Terms nor any obligations or rights hereunder may be assigned, delegated, or otherwise transferred by you without GameSalad’s prior written consent, which consent may be withheld in GameSalad’s sole discretion. Any attempted assignment in violation of this provision will be void. Subject to the foregoing, these Terms will inure to the benefit of the parties’ permitted successors and assigns.

Third Party Beneficiaries. These Terms will not be interpreted or construed to confer any rights or remedies on any third parties, except that each Indemnified Party will be deemed to be a third party beneficiary for purposes of these Terms. Therefore, each Indemnified Party will be entitled to directly enforce and rely upon any provision(s) of these Terms that confers a right or remedy in favor of such Indemnified Party.

Severability. If any part of these Terms is held invalid or unenforceable, that portion will be interpreted in a manner consistent with applicable law to reflect, as nearly as possible, the original intention of these Terms, and the remaining portions of the Terms will remain in full force and effect.

Waiver. Any waiver by GameSalad of any right or provision of these Terms must in a writing signed by GameSalad. The failure of GameSalad to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. These Terms will be interpreted without application of any strict construction in favor of or against you or GameSalad.

Independent Contractors. GameSalad and you are independent contractors, and nothing in these Terms is intended to create, or will be construed as creating, any employment, partnership, joint venture or comparable relationship.

Force Majeure. GameSalad will have no liability to you or any third party for any failure by GameSalad to perform its obligations under these Terms in the event that such non-performance arises as a result of the occurrence of an event beyond the reasonable control of GameSalad, including without limitation an act of war or terrorism, natural disaster, failure of electricity supply, failure or delay in transportation, civil commotion or other event of force majeure.

Entire Agreement. These Terms, any additional terms and conditions posted on the Site, and the Privacy Policy, together constitute the entire agreement between you and GameSalad with respect to the Site, Services, Software and Content (excluding any Services or Software that GameSalad may provide to you under a separate written agreement), and supersede, cancel and replace any and all other oral or written negotiations, discussions or agreements between you and GameSalad in respect of the Site, Services, Software and Content. No GameSalad employee or agent has the authority to vary these Terms. GameSalad may notify you with respect to the Services and Site by sending an email message to your Account email address or a letter via postal mail to your Account mailing address, or by a posting on the Services or Site. Notices will become effective immediately.

Trademarks. GameSalad, the GameSalad logo, and other GameSalad trademarks, service marks, graphics, and logos used in connection with the Site and Services are trademarks or registered trademarks of GameSalad, Inc. in the U.S. and/or other countries. Other trademarks, service marks, graphics, and logos used in connection with the Services may be the trademarks of their respective owners. You are granted no right or license with respect to any of the aforesaid trademarks and any use of such trademarks.

Questions. If you have any questions concerning these Terms, you may contact us by writing to the address below. However, as you are aware, Internet transmissions are never completely private or secure, and you should understand that any communication or other information you send to us may be read or intercepted by others, unless there is a special notice that a particular message (for example, credit card information) is encrypted (sent in code). Also, sending a message to GameSalad does not create any special relationship between us, or cause us to have any special responsibility to you. We cannot, and do not, commit to respond to all questions or communications that we receive.

GameSalad, Inc.
8911 N. Capital of Texas Highway
Suite 2210
Austin, TX 78759
Attn: Legal
Email: legal@gamesalad.com

28. Legacy User Rights and Migration to New Terms of Use

If you have a current annual subscription to GameSalad’s Services and Software which you purchased before the effective date of these Terms, then you may continue to use the Services and Software for the remainder of your current paid subscription term pursuant to the terms of service in effect immediately before the effective date of these Terms, including the right to continue distributing Executable Packages. When your current paid subscription for the Services and Software expire, you will no longer be able to use the Services and Software for any purpose except pursuant to these Terms.

END


GameSalad.com Terms of Service (version 6, 4 September 2014)

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