BY ACCESSING OR USING THE BETA PRODUCT, YOU AGREE TO THE TERMS OF THIS BETA AGREEMENT (“Agreement”). If you do not agree to the terms of this Agreement, do not access or use the Beta Product.
This Agreement is between Hit Factor, Inc. (“Licensor” “we” or “us”) and you (“you” or “Licensee”). You must be 18 years or older to use the Beta Product.
TO THE FULLEST EXTENT PERMITTED BY LAW, THIS AGREEMENT CONTAINS A BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER PROVISION IN SECTION 15 THAT AFFECTS YOUR RIGHTS UNDER THIS AGREEMENT AND WITH RESPECT TO ANY DISPUTE (AS DEFINED IN SECTION 15 BETWEEN YOU AND US.) YOU HAVE A RIGHT TO OPT OUT OF THE BINDING ARBITRATION AND CLASS ACTION WAIVER PROVISIONS AS DESCRIBED IN SECTION 15.
- Beta Product. Licensor may provide you with access to the War Park downloadable game beta test program, as well as associated services and documentation (collectively, the “Beta Product”). Beta Product participation is subject to this Agreement. Licensor may terminate or remove access to this Beta Product at any time without cause or advance notice to you. The features provided in the Beta Product may not be available in the final release. Access to the Beta Product may also depend on your agreement with the terms and conditions published by related platforms or services.
- License. Subject to the terms of this Agreement and solely for the Beta Period, Licensor grants Licensee a temporary, limited, revocable, nontransferable, nonsublicensable, nonexclusive license to access and use the Beta Product and any related user manuals, guides and other documentation delivered or otherwise provided to Licensee (“Documentation”) solely for internal use to evaluate and test the Beta Product. In connection with Licensee’s use of the Beta Product, Licensee will comply with all applicable laws, rules and regulations. Licensee will not, and will not permit any third party to: (i) copy, modify, translate, or create derivative works of the Beta Product or any related content; (ii) reverse engineer, decompile, disassemble, translate or otherwise attempt reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Beta Product, (iii) disclose or authorize disclosure of, lend, lease, license offer for sale, sell, transfer, distribute, assign, or otherwise use the Beta Product to or for the benefit of third parties; or (iv) attempt to circumvent any license, timing or use restrictions that are built into the Beta Product. The Beta Product may not be used by anyone other than Licensee.
- User Content. “User Content” means any and all information and content that Licensee or any other user submits to, or uses with, the Beta Product (e.g., content submitted in forms, uploaded documents, communications with Licensor or otherwise through the Beta Product, etc.). Licensee agrees that it is solely responsible for and assumes all risks associated with its User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of its User Content that personally identifies Licensee or any third party.
- Restrictions. Licensee agrees not to use the Beta Product to submit, collect, upload, transmit, display, or distribute any User Content (i) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iii) that is harmful to minors in any way; or (iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party. Licensee agrees not to: (i) upload, transmit, or distribute to or through the Beta Products any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send through the Beta Product unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) use the Beta Product to harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Beta Product, or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Beta Product (or to other computer systems or networks connected to or used together with the Beta Product), whether through password mining or any other means; (vi) harass or interfere with any other user’s use and enjoyment of the Beta Product; or (vi) use software or automated agents or scripts to produce multiple accounts on the Beta Product, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Beta Product (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Beta Product 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, subject to the parameters set forth in our robots.txt file).
- Enforcement. We reserve the right (but have no obligation) to review any User Content, and to investigate and/or take appropriate action against you in our sole discretion if you violate the any other provision of this Agreement or otherwise create liability for us or any other person. Such action may include removing or modifying your User Content, terminating your license to use the Beta Product and/or reporting you to law enforcement authorities.
- Evaluation Feedback. Licensee agrees that it will provide Licensor input regarding Licensee’s reactions, comments, and suggestions for improvement regarding the Beta Product (“Feedback”). Such input may include, but is not limited to, usability, missing features, functional errors and bug reports. All Feedback made by Licensee will be the property of Licensor and may be used by Licensor for any purpose whatsoever. Forms of feedback may include personal interview, online questionnaire or e-mail or other contact. For avoidance of doubt, “Feedback” includes all Licensee inputs into the Beta Product. Licensor will be the sole owner of any and all Beta Product, documentation or other inventions developed by Licensor in conjunction with Licensee or based on the Licensee’s input, including but not limited to general enhancements and additions to the Beta Product or any services provided by Licensor.
- Your information. Licensor may collect, use, disclose and dispose of personal information as described below. By using the Beta Product, you agree to our use of your personal information as described in this Agreement:
- Registration Information. When you create an account with us, we may use information you provide to us to communicate with you about the Beta Product and the commercial launch of the product. The personal information that you provide when you create an account with us will be disposed of within a reasonable period of time following the conclusion of the Beta Period (as defined below). You can cancel your account at any time by contacting us via email at CustomerSupport@HitFactor.com. Otherwise, if you purchase or otherwise access the game from us after the Beta Period, we will retain your information for the duration of the life of your account or subscription, whichever is longer.
- Use Information. When you use the Beta Product, we may collect information that you input into the Beta Product and other information about your use of and interaction with the Beta Product. You agree that we may retain this information and use it for any purpose, including sharing with others.
- No Sale. We do not and will not sell or otherwise monetize your personal information.
- No Purchase Price. Licensee recognizes that the Beta Product is a Beta version software product. Licensee will pay no purchase price for the Beta Product, but will abide by the terms of this Agreement and other applicable terms and conditions, and neither party will be obligated to enter into any further agreement for the license or purchase of the Beta Product. For the avoidance of doubt, Licensor grants Licensee no rights or licenses to any other version of the software product. Additionally, nothing in this Agreement will be construed as prohibiting Licensor from charging Licensee a fee in connection with other versions of the software product.
- Support. Licensor may provide Licensee general support for the Beta Product by telephone, electronic mail or other electronic communication during the Beta Period. Licensor is not obligated to provide maintenance or updates to Licensee for the Beta Product.
- Ownership. Licensee agrees that Licensor and its Licensors own all right title, and interest in and to the Beta Product as it exists as of the date of this Agreement and as may be developed in the future, including, without limitation, all code and screen formats including all patents, trademarks, copyrights, trade secrets, and all other intellectual property rights, and that other than the rights expressly granted pursuant to Section 1 above, Licensee will not acquire any right, title, or interest in the Beta Product. All rights in and to the Beta Product not expressly granted by this Agreement are reserved to Licensor.
- Injunctive Relief. Licensee acknowledges and agrees that violation by Licensee of any of the provisions contained in Sections 1, 2, 8 or 10 of this Agreement would cause irreparable harm to Licensor not adequately compensable by monetary damages. In addition to any other relief at law or in equity, Licensee agrees that temporary and permanent injunctive relief should be available without the necessity of proving actual damages.
- Confidentiality. Licensee agrees to hold in strict confidence, not to use or disclose, except in accordance with this Agreement, and to take all necessary precautions to protect the confidentiality of, Confidential Information received from Licensor or its agents under this Agreement. For the purposes of this Agreement, “Confidential Information” of Licensor will include, without limitation, your Feedback, the Beta Product, all accompanying Documentation and any other information or materials provided to you by Licensor. Confidential Information does not include information that Licensee can establish with competent documentary evidence: (i) was known by Licensee at the time of its disclosure; (ii) is already in the public domain or becomes generally known or published through no fault of Licensee; or (iii) is lawfully disclosed to Licensee by a third party free to disclose such information. The provisions under this confidentiality provision will survive expiration or termination of this Agreement for any reason. Notwithstanding the foregoing, this confidentiality provision will not be construed so as to prohibit the use, demonstration and display of the Beta Product as permitted in Section 2 of this Agreement.
- Term and Termination. The term of this Agreement will commence on the date the Beta Product is first accessed or used by the Licensee and will continue until the official commercial release of the product (not in a Beta version), or until access to the Beta Product is suspended or terminated by Licensor (the “Beta Period”) unless terminated by either party in writing at any time, with or without cause. Upon expiration or termination of the Beta Period, Licensee’s right to access and use the Beta Product will immediately terminate, Licensee will cease all use of the Beta Product, delete and destroy all copies of the Beta Product (if any), and Licensor will have the right to prohibit Licensee’s use of the Beta Product. The preceding sentence will not apply if Licensee and Licensor enter into a commercial license agreement that, by its terms, supersedes and replaces this Agreement.
- Disclaimer of Warranties; Limitation of Liability. THERE ARE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THIS AGREEMENT OR THE BETA PRODUCT, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION. THE BETA PRODUCT IS LICENSED AND PROVIDED “AS IS” AND LICENSOR DOES NOT WARRANT TO LICENSEE THAT THE BETA PRODUCT WILL MEET LICENSEE’S REQUIREMENTS OR THAT LICENSEE’S USE OF THE BETA PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE BETA PRODUCT AND LICENSEE’S USE OF THE BETA PRODUCT AND ANY RESULTS GENERATED BY THE BETA PRODUCT IS BORNE BY LICENSEE. SHOULD THE BETA PRODUCT PROVE DEFECTIVE IN ANY RESPECT, LICENSEE’S SOLE REMEDY IS TO TERMINATE ITS USE OF THE BETA PRODUCT. THE BETA PRODUCT CONSTITUTES A PRE-RELEASE PRODUCT AND MAY NEVER BE RELEASED BY LICENSOR OR MAY BE CHANGED SUBSTANTIALLY BEFORE COMMERCIAL RELEASE BY LICENSOR. Under no circumstances will Licensor be liable for any loss, cost, expense, or damage to Licensee resulting from the use, demonstration or display of the Beta Product or any decisions made with respect to the Beta Product. In no event will Licensor be liable to Licensee for any direct, indirect, incidental, special or consequential damages, however caused and on any theory of liability, arising out of or related to this Agreement or Licensee’s use of the Beta Product.
- Severability; Waiver. If any provision of this Agreement is determined to be unlawful and can be deleted without altering the essence of the Agreement, the unlawful provision will be deleted, and the remaining provisions will remain in full force or effect. The failure by either party at any time to enforce its rights under this Agreement will not be construed as a waiver of such rights and no waiver by either party will be valid unless it is contained in a signed writing.
- Governing Law. This Agreement and any related dispute will be governed by and interpreted in accordance with the laws of the State of California without regard to its conflicts of laws provisions.
- Disputes. The term “Dispute” means any dispute, claim, or controversy between you and Licensor or any of its current or former affiliates, including parents and subsidiaries, and any predecessor or successor entity to any of the foregoing, regarding the use of the Beta Product, whether based in contract, statute, regulation, ordinance, tort (including fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Section (with the exception of the enforceability of the Class Action Waiver clause below). If you have a Dispute (other than one described as excluded from arbitration below) with us or any of our officers, directors, employees or agents (“Adverse Entity”) that cannot be resolved through negotiation, you and the Adverse Entity agree to seek resolution of the Dispute only through binding arbitration of that Dispute according to Section’s terms, and not litigate that Dispute in court. Arbitration means that the Dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury.
- Jury Trial Waiver. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes will be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and Hit Factor in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND THE ADVERSE PARTY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by binding arbitration.
- Class Action and Consolidated Claims Wavier. ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION, UNLESS BOTH YOU AND THE ADVERSE ENTITY SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION.
- Arbitration. All arbitration proceedings that will be conducted in San Diego, California before one arbitrator. The arbitration will be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules or, for claims that do not exceed $250,000, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets will not be subject to this Arbitration Agreement.
- Confidentiality. All aspects of any arbitration proceeding under this Agreement, including but not limited to the award of the arbitrator and corresponding compliance, will be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph will not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
- Attorney’s Fees. In any arbitration arising out of or related to this Agreement, the arbitrator will award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration. If the arbitrator determines a party to be the prevailing party under circumstances where the prevailing party won on some but not all of the claims and counterclaims, the arbitrator(s) may award the prevailing party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration.
- Provisional Remedies. You acknowledge that your obligations under this Agreement are of a unique character and that your breach of your obligations will result in irreparable and continuing damage to Licensor for which money damages would not be a fully adequate remedy, and that Licensor may seek injunctive relief or a decree for specific performance, and other relief as may be proper. Therefore, notwithstanding anything to the contrary in this Section, Licensor will have the unrestricted right to seek equitable relief in any court of competent jurisdiction for any claim arising out of or related to this Agreement, without the need of posting a bond or other form of security.
- Severability. If any clause within this Section (other than the Class Action Waiver clause above) is illegal or unenforceable, that clause will be severed, and the remainder of this Section will be given full effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Section will be unenforceable, and the Dispute will be decided by a court. This Section survives this Agreement’s termination.
- Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties agree to submit to the exclusive personal jurisdiction of the state and federal courts located nearest to San Diego, California, for such purpose
- Relationship of the Parties. The relationship between Licensor and Licensee under this Agreement is intended to be that of independent contractors. Nothing in this Agreement will be construed to create any partnership, joint venture, employer-employee or agency relationship of any kind. Neither party has any authority under this Agreement to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement or undertaking any third party.
- Assignment. Licensee may not transfer or assign this Agreement or any of its rights or obligations hereunder, directly or indirectly, by operation of law or otherwise without the prior written consent of Licensor. Subject to the foregoing, this Agreement will inure to the benefit of and be binding upon each of the parties and its successors and permitted assigns.
- Integration. This Agreement constitutes the final, complete and exclusive agreement and understanding between Licensor and Licensee and supersedes all prior and contemporaneous agreements, oral and written as they regard the licensing of the Beta Product. This Agreement may not be amended except in a writing executed by each of the parties.