These Terms of Service contain provisions that govern how claims between you and us are resolved (See Section 17, Binding Individual Arbitration; Class Action Waiver below). This includes an obligation to arbitrate certain claims through binding and final arbitration, unless you opt out of the arbitration when you install the Game. Unless you opt out, you will only be permitted to bring claims against us and seek relief on an individual basis,not as a plaintiff or class member in any class or representative action or proceeding, and you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
These Terms of Service (“TOS”) is a legal agreement between you (“you” or “your”) and 1047 Games, LLC, a Nevada limited liability company (“1047 Games” or “us” or “we” or “our”), whose website is located at www.1047games.com, governing your access to the online service (a “Game Server”) for use with an authorized copy of the Splitgate: Arena Warfare game software installed on your personal computer or device (“System”) (together with any Updates, the “Software”). The Game Server, Software, and all content therein, including any virtual items made available for use or purchase (“Content”) are collectively referred to as the“Game.” The Software is governed by our End User License Agreement (“EULA”) while these TOS govern your use of the Game Server. By installing and playing the Game, you agree to be bound by these TOS and the EULA.
1. Grant of a Limited License to use a Game Server.
Subject to your agreement to and continuing compliance with these TOS and your continuing compliance with all agreements and guidelines required by Valve for the use of your Steam account as posted on the www.steampowered.com website (“Steam”) and 1047 Games’ other third-party service providers (the “Account”), you may use a Game Server solely for your own non-commercial entertainment purposes by accessing it with an authorized, unmodified Software. You may not use or access a Game Server for any other purpose or in connection with any other software, and any access or use outside the express scope of this license shall constitute a violation of 1047 Games’ copyrights. The license granted herein confers no title or ownership in the Game (including, without limitation, the Game Server) and should not be construed as a sale of any rights to the Game. The license granted is non-transferable and any attempted transfer in violation of this provision shall be null and void. All rights, titles and interests in and to the Game and any and all copies thereof (including without limitation any and all titles,computer code, technology, themes, objects, characters, character names,stories, dialog, catch phrases, locations, concepts, artwork, music, etc.) are owned by 1047 Games or its licensors.
2. Changes to Agreement and Game
1047 Games may update these TOS at its sole discretion, and you agree to the revised version of these TOS by continuing to play the Game after notice that the TOS has been updated. If you do not agree to a revised TOS, you will not be permitted to continue playing the Game through the Game Server. If at any time you are no longer able to comply with the terms of the then-current TOS, you must immediately stop playing the Game.
1047 Games may change, modify, suspend, or discontinue any aspect of the Game at any time. 1047 Games may also impose limits on certain features or restrict your access to parts or all of the Game without notice or liability.
You agree that, between you and 1047 Games, 1047 Games owns and shall continue to own all rights, title and interest in and to the Game,all copies thereof, all content therein, and all intellectual property rights therein and thereto. The Game is protected by the copyright laws of the United States, international treaties and other laws. The Game may contain materials licensed by third parties, and the licensors of those materials are third party beneficiaries of these TOS with the right to enforce their rights against you if you violate these TOS. Furthermore, you understand and agree that you have no interest, monetary or otherwise, in any feature or Content contained in the Game, which may include without limitation any in-game items or in-game currency. You may not purchase, sell or trade any in-game items or in-game currency (if any) for anything of value in the real world without 1047 Games’ express written permission, and any attempt to do so without 1047 Games’ prior written consent shall be null and void. Any in-game transaction or purchase of content and/or items is purchased from Steam,and not from 1047 Games.
4. Account Suspension/Deletion.
1047 GAMES MAY SUSPEND, TERMINATE, MODIFY, OR DELETE YOUR ACCESS TO THE GAME SERVER AT ANY TIME FOR ANY REASON OR NO REASON, WITH OR WITHOUT NOTICE TO YOU.
5. Financial Transactions.
You acknowledge and agree that all financial transactions will be handled by Steam and not from 1047 Games.
6. Collection and Use of Data.
When you use the Game Server, 1047 Games or its third-party services providers may collect and store data from your computer or device, including information about your computer or device and operating system (such as IP Address and device ID), information about your Game Server usage, Game play and usage statistics, and system interactions. If you play the game offline, this data will be stored on your device and transmitted to 1047 Games when your device connects to the Internet. 1047 Games also may collect, use, store, transmit and publicly display statistical data regarding game play (including scores, rankings and achievements). 1047 Games uses this information to provide that matchmaking service, operate the Game, provide Updates, improve its products and services, dynamically serve Content and Software support, and trouble-shoot bugs or otherwise enhance your experience. If you are a user outside the United States, you also understand that your data will be transferred to the United States where data protection may not be as comprehensive as in other countries, such as those in the European Union.
7. In-Game Communications.
YOU UNDERSTAND AND AGREE THAT 1047 GAMES AND ITS SERVICE PROVIDERS MAY MONITOR, RECORD, REVIEW, MODIFY AND/OR DISCLOSE YOUR IN-GAME COMMUNICATIONS WITHOUT NOTICE TO YOU. 1047 Games and its service providers, however, are under no obligation to monitor in-game communications.
You acknowledge that 1047 Games may suffer irreparable damage if you breach any of the provisions governing ownership, the license granted or license limitations. You therefore agree that if you breach any of these provisions, in addition to damages and reasonable attorneys’ fees, 1047 Games shall be entitled to enjoin such breach and to obtain specific performance of such provisions in any court of competent jurisdiction.
9. DISCLAIMER OF WARRANTIES.
THE GAME SERVERS ARE MADE AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANT ABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND AVAILABILITY.
10. LIMITATION OF LIABILITY.
IN NO EVENT SHALL 1047 GAMES OR ITS SERVICE PROVIDERS BE LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND ARISING OUT OF OR RELATING TO THE GAME AND/OR THE GAME SERVER OR ANY USE THEREOF, INCLUDING WITHOUT LIMITATION ANY LOSS OF DATA OR GOODWILL, DISRUPTION OF SERVICE OR CLAIMS OF THIRD PARTIES. IN NO EVENT SHALL 1047 GAMES OR ITS SERVICE PROVIDERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE,LIQUIDATED, OR OTHER CONSEQUENTIAL DAMAGES, WHETHER UNDER CONTRACT, TORT(INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY,ARISING FROM YOUR USE OF THE GAME (INCLUDING, WITHOUT LIMITATION, THE GAME SERVER). THE FOREGOING LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. In no event shall 1047 Games’ aggregate liability, whether arising in contract, tort, strict liability or otherwise, exceed the total fees, if any, paid by you for the Game.
You agree to indemnify, pay the defense costs of, and hold 1047 Games, its service providers, and its and their employees, officers, directors, agents, contractors, and other representatives harmless from all claims, demands, actions, losses, liabilities, and expenses (including attorneys’ fees, costs, and expert witnesses’ fees) that arise from or in connection with your use of the Game or Game Server. You agree to reimburse 1047 Games on demand for any defense costs incurred by 1047 Games and any payments made or loss suffered by 1047 Games whether in a court judgment or settlement, based on any matter covered by this Section 11.
12. User Content.
“User Content” means any communications, images, sounds, videos, and all the material and information that you or anyone using your Account contributes through the Game or any 1047 Games-affiliated website (if any), including, without limitation, feedback about the Game and/or streamed content you create in association with the Game, including without limitation rights to use your likeness and/or voice as provided by you through such Stream. You hereby grant 1047 Games a perpetual, irrevocable, worldwide, paid-up, non-exclusive, license, including the right to sublicense to third parties, and right to reproduce, fix, adapt, modify, translate, reformat, create derivative works from, manufacture, introduce into circulation, publish, distribute, sell, license, sublicense, transfer, rent, lease, transmit, stream, publicly display, publicly perform, provide access to electronically, broadcast, communicate to the public by telecommunication, display, perform, enter into computer memory, and use and practice such User Content (if any) as well as all modified and derivative works thereof. You hereby represent and warrant that you have, and have the documentation to establish, all necessary rights to grant the license referenced in the preceding sentence. To the extent permitted by applicable laws, you hereby waive any moral rights, artist’s rights, rental rights, likeness rights, or similar rights (if any) you may have in any User Content (if any).
13. Claims of Infringement.
If you believe that any Content appearing in the Game infringes your copyright rights, we at 1047 Games want to hear from you. Please forward the following information in writing to the Copyright Agent at 1047 Games, LLC, Attn: Copyright Agent, P.O. Box 10578, Zephyr Cove, NV 89448:
a. your name, address, telephone number, and e-mail address;
b. a description of the copyrighted work that you claim has been infringed;
c. the exact URL or a description of each place where alleged infringing material is located;
d. a statement by you that you have a good faith belief that the disputed use has not been authorized by you, your agent, or the law;
e. your electronic or physical signature or the electronic or physical signature of the person authorized to act on your behalf; and
f. a statement by you made under penalty of perjury, that the information in your notice is accurate, that you are the copyright owner or authorized to act on the copyright owner’s behalf.
14. Patches and Updates.
1047 Games may apply patches, updates and modifications (collectively, “Updates”) to the Game at any time, and game play may change after the application of an Update.
These TOS are effective until terminated. You may terminate these TOS by uninstalling the Game. In the event that you terminate or breach these TOS, you will forfeit your right to any and all purchases and other payments made in connection with the Game. You acknowledge and agree that you are not entitled to any refund for any amounts paid or pre-paid in connection with the Game prior to termination of these TOS. 1047 Games may terminate these TOS with or without notice by banning the Account. All Sections of these TOS that by their nature should survive termination will survive, including without limitation the Ownership, Financial Transactions, Use of Data, In-Game Communications, Remedies, Disclaimer of Warranties, Limitation of Liability, Indemnification, User Content, Termination, Governing Law and Jurisdiction, and Binding Individual Arbitration; Class Action Waiver Sections of these TOS.
16. Governing Law and Jurisdiction.
These TOS is entered into in the State of Nevada, U.S.A.,and shall be governed by, and construed in accordance with, the laws of the State of Nevada, as they are applied to agreements entered into and to be performed entirely within Nevada, excluding only the Nevada body of laws concerning conflicts of law. You also acknowledge and agree that any applicable state law implementation of the Uniform Computer Information Transactions Act (including any available remedies) will not apply to these TOS and is hereby disclaimed.
For any Disputes (as defined below) deemed not subject to binding individual arbitration, as provided in the section immediately below, you and 1047 Games agree to submit to the exclusive jurisdiction of the state and federal courts located in the Carson City, Nevada, including for any action seeking to compel arbitration or vacate an arbitral award, and consent to the personal jurisdiction of such courts. You and 1047 Games agree to waive any jurisdictional, venue, or inconvenient forum objections to such courts (without affecting either party’s rights to remove a case to federal court if permissible), as well as any right to a jury trial.Any law or regulation which provides that the language of a contract shall be construed against the drafter will not apply to these TOS. This Section will be interpreted as broadly as applicable law permits.
17. Binding Individual Arbitration; Class Action Waiver.
YOU AND 1047 GAMES ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY,OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
17.1 Informal Resolution.
If a dispute arises between you and us, you agree to first provide us with notice of your complaint via email to email@example.com so that we may attempt to resolve the dispute informally with you within sixty (60) days from the date your complaint is received.
Any claim,dispute, or controversy (regardless of the cause of action or nature of the claim) between you and 1047 Games, its employees, officers, directors, agents and third party service providers in connection with the Game or Game Server or arising from or relating in any way to your use of the Game, the Game Server,these TOS, or the interpretation, breach, termination, or validity thereof (a “Dispute”), if unresolved through the informal process outlined above, will be resolved by binding arbitration conducted by the Judicial Arbitration Mediation Services, Inc. (“JAMS”) subject to the U.S. Federal Arbitration Act and federal arbitration law and according to the JAMS Streamlined Arbitration Rules and Procedures then in effect in arbitrating any Dispute, as modified by these TOS. The JAMS rules are available at www.jamsadr.com.
Notwithstanding the foregoing, arbitration is not required for (a) individual actions in small-claims court; (b) pursuit of enforcement actions through a government agency if the law allows; (c) an action to compel or uphold any prior arbitration decision; (d) 1047 Games’ right to seek injunctive relief against you in a court of law to preserve the status quo while an arbitration proceeds; (e) the enforceability of the Class Action Waiver clause below.
You and 1047 Games agree that whether a Dispute is subject to arbitration under these TOS will be determined by the arbitrator rather than a court.
The arbitration hearing will be held in Carson City, Nevada. If you are an individual consumer using the Game for personal, non-commercial use (an “Individual Consumer”), and you are located within the United States, you may alternatively select your state of residence as the place of arbitration, but all other actions remain subject to the venue and choice of law provisions in the Governing Law and Jurisdiction Section The arbitrator presiding over a Dispute will be a retired judge or justice of any state or federal court with substantial experience in the subject matter relevant to the matter in dispute and will follow Nevada law, exclusive of conflict or choice of law rules, in adjudicating the dispute.
The parties acknowledge that these TOS evidence a transaction involving interstate commerce. Notwithstanding the provision in the preceding paragraph with respect to applicable substantive law, any arbitration conducted pursuant to these TOS will be governed by the Federal Arbitration Act.
You agree that the arbitrator presiding over a Dispute will be instructed,whenever practicable, to resolve threshold legal issues by way of motions filed by you and 1047 Games.
The arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve all Disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these TOS, including, but not limited to, any claim that all or any part of these TOS is void or voidable, or whether a claim is subject to arbitration. The arbitrator will be empowered to grant whatever relief would be available in a court under law or in equity, other than class relief. The arbitrator’s award will be written, and binding, on 1047 Games and you and may be entered as a judgment in any court of competent jurisdiction. If you are an Individual Consumer, 1047 Games will pay all arbitration administrative fees and fees for the arbitrator’s services, other than the filing fee required for you to initiate a claim.
If you are an Individual Consumer and the claim you wish to assert against us is for less than $10,000 then, at your election, (i) the arbitration may proceed in-person, by telephone, or by written briefs or (ii) you may in lieu of arbitration bring your claim in small claims court. If either party files a claim in state or federal court that is required by these TOS to have been brought to arbitration, then the other party will be entitled to such party’s reasonable attorneys’ fees incurred in successfully compelling arbitration.
Both parties reserve the right to seek a preliminary injunction or temporary restraining order from a federal or state court located in Carson City, Nevada.However, after such request for relief has been adjudicated by such court, the remainder of the Dispute will be resolved by binding arbitration as set forth herein.
If a Dispute must be arbitrated, you or 1047 Games must start arbitration of the Dispute within two (2) years from when the Dispute first arose. If applicable law requires you to bring a claim for a Dispute sooner than two years after the Dispute first arose, you must start arbitration in that earlier time period. 1047 Games encourages you to tell us about a Dispute as soon as possible so we can work to resolve it. The failure to provide timely notice shall bar all claims.
17.3 Class Action Waiver.
YOU AND 1047 GAMES AGREE THAT ALL DISPUTES WILL BE RESOLVED ON AN INDIVIDUAL BASIS AND THAT ANY CLAIMS BROUGHT UNDER THESE TOS OR IN CONNECTION WITH THE GAME MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITIES, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PUTATIVE CLASS, COLLECTIVE, OR REPRESENTATIVE PROCEEDING. You further agree that will not participate in any class action (existing or future) brought by any third party arising under these TOS or in anyway in connection with the Game. If any court or arbitrator determines that the class action waiver set forth in this Section is void or unenforceable for any reason or that an arbitration here under can proceed on a class-wide basis, then such class action is not subject to arbitration and must be litigated in state or federal court in Carson City, Nevada.
17.4. Your 30-Day Right to Opt Out.
You have the right to opt out of and not be bound by the arbitration and class action waiver provisions set forth in these TOU. To exercise this right, you must send written notice of your decision to the following address: 1047 Games, LLC, P.O. Box 10578, Zephyr Cove, Nevada 89448. Your notice must include your name, mailing address, and account name you use while playing the Game, and state that you do not wish to resolve disputes with 1047 Games through arbitration. To be effective, this notice must be postmarked or deposited within 30 days of the date on which you first accepted these TOS or installed the Game unless a longer period is required by applicable law; otherwise you will be bound to arbitrate disputes in accordance with this Section.You are responsible for ensuring that 1047 Games receives your opt-out notice, so you may wish to send it by a means that provides for a delivery receipt. If you opt out of these arbitration provisions, 1047 Games will not be bound by them with respect to Disputes with you.
18. Code of Conduct.
You agree that you will not use the Game to upload, post, or otherwise distribute any User Content that:
· constitutes or promotes illegal activity;
· defames, abuses, harasses, stalks, threatens or otherwise violates the legal rights (such as rights of privacy and publicity) of others;
· is harmful, abusive, vulgar, sexually explicit, defamatory, libelous, obscene, infringing, embarrassing, unwanted, invasive of another’s right of privacy or publicity, hateful or racially, ethnically or, in a reasonable person’s view, otherwise offensive or objectionable;
· promotes any commercial activity, including promoting goods or services or soliciting donations;
· is subject to confidentiality or non-disclosure obligations;
· includes material, images or photographs that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy or publicity);
· disguises its source or origin, or misrepresents its author, by modifying metadata or other identifiers;
· links to any third-party sites or services that would violate the standards contained in this list; or
· attempts to get a password, other account information, or other private information from a user of the Game.
In using the Game you also agree not to:
· attempt to interfere with the operation of the Game in any way;
· copy, reproduce, distribute, transfer, sell, license, publish, enter into a database,display, perform publicly, modify, create derivative works of, upload, edit, post, link to, frame, transmit, rent, lease, lend or sublicense, scrape, crawl, or in any way exploit any part of the Game;
· use any tools designed to compromise security or digital rights management technology (including password guessing programs, cracking tools, or network probing tools) in connection with the Game;
· use the Game for any commercial purposes, including sending “spam” or any malicious or disruptive communications;
· decompile, reverse engineer, disassemble, or otherwise reduce the code used in the Game into a readable form in order to examine the construction of such software or to copy or create other products based (in whole or in part) on such software or any feature of the Game or piece of content available in the Game;
· use or distribute unauthorized software programs or tools, such as “auto” software programs, “macro” software programs, “cheat utility” software program or applications, exploits, cheats, or any other game hacking, altering or cheating software or tool;
· use exploits or cheats to gain an unfair advantage;
· restrict or inhibit any other user from using and enjoying the Game. For example, being disruptive with vulgar language, abusiveness, inputting excessively large images so the screen goes by too fast to read, use of excessive SHOUTING (all caps) in an attempt to disturb other users, “spamming,” or flooding (continuous posting repetitive text), all of which are prohibited conduct or send surveys, contests, pyramid schemes, chain letters, junk email, spam or any duplicative or unsolicited messages (commercial or otherwise);
· falsify, delete or disable any copyright management information, such as author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other content;
· harvest (in an automated manner or otherwise) or otherwise collect personal information about others, including e-mail addresses, or use such information to send unsolicited emails.
· violate any applicable laws or regulations, or promote or encourage any illegal activity including, without limitation, hacking, cracking or distribution of counterfeit software, or cheats or hacks for the Game;
· impersonate or create a false identity for the purpose of misleading others; or
· use the Game for fraudulent transactions or other commercial transactions prohibited by these TOS and/or the EULA, including, without limitation, fraudulent or unauthorized in-game virtual transactions.
The terms set forth in these TOS, including the provisions set forth in the Disclaimer of Warranties, Limitation of Liability and Indemnification Sections are fundamental elements of the basis of the agreement between 1047 Games and you with respect to the Game. 1047 Games would not be able to provide the Game on an economic basis without such limitations. Such provisions inure to the benefit of 1047 Games’ licensors, successors and assigns. You agree that you are not considered, and shall not represent yourself as, an agent, employee, joint venturer, or partner of 1047 Games. You may not assign these TOS or any of your rights here under, in whole or in part, without 1047 Games’ prior written consent and any attempted assignment in violation of this provision shall be null and void. 1047 Games may assign these TOS or any of its rights or obligations here under without your consent at any time. No waiver of any default, condition or breach of these TOS shall constitute a waiver of any other default, condition or breach of these TOS, whether of a similar nature or otherwise. Any provision found unlawful by a court or regulator having jurisdiction shall be deemed to be severed from these TOS, but such severance shall have no effect on the enforceability of the remaining provisions of these TOS. You agree that you will comply with all applicable laws in connection with the Game and these TOS. You must supply all necessary facilities, utilities and equipment necessary to play the Game, including appropriate computer equipment and Internet connections, at your sole risk and expense. In no event shall 1047 Games be liable for any failure of performance resulting from causes beyond the reasonable control of 1047 Games, including without limitation: acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labor or materials. These TOS represents the entire agreement between you and 1047 Games with respect to the Game Server and supersedes all prior agreements between you and 1047 Games pertaining to the Game Server.