Game License Agreement
This Game License Agreement (the “Agreement” or “License”) is made by and between NIGHT OF MYSTERY, INC. and its corporate affiliates (referred to herein as “we,” “us,” “Company” or “NIGHT OF MYSTERY”) and YOU.
This Agreement contains the general terms and conditions that govern your use of the game(s) listed in your shopping cart (the “Licensed Games”). This License is issued in conjunction with the User Terms of Service (the “TOS”), which is incorporated by reference. Any capitalized terms that are not defined in this License shall have the same meaning ascribed to them in the TOS. You and Company may be referred to collectively herein as the “Parties” and individually as a “Party.”
1 – TYPES OF LICENSES.
The Company offers three types of Licenses corresponding to the type of User Account You created:
- a.Personal License: Contingent upon your compliance with all the terms and conditions of this Agreement, Company grants you a personal, revocable, nontransferable, and non-exclusive license to use the Licensed Games solely for personal entertainment and hosting personal, non-commercial gatherings/parties for the duration of the Term. Personal Licenses are not for use in any commercial, organized group, or business manner whatsoever; including, but not limited to team building exercises, company parties, events you throw where you do charge the client/customer/employee, events you throw where you do not charge the client/customer/employee, non-profit fundraisers, and more. Any commercial, organized group, or business use of a Personal License is a material breach of this Agreement and will subject you to the Liquidated Damages set forth in Section 10(c) below.
- b. Business License: Contingent upon your compliance with all the terms and conditions of this Agreement, Company grants you a commercial, revocable, nontransferable, and exclusive license to use the Licensed Games an unlimited number of times during the Term in a commercial manner, business environment, and/or organized group environment.
These licenses expressly exclude any resale of any part of the Licensed Games or any derivative use of the Licensed Games. The Licensed Games nor any portion thereof may not be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited.
2 – LICENSE RESTRICTIONS.
The Licenses identified above are granted on the following conditions and restrictions:
- a. You do not, and do not allow any third party to, copy, modify, create a derivative work from, or attempt to transfer any rights in or to the Licensed Games; and
- b. You do not download (other than page caching) or modify the Licensed Games or any portion of thereof, without Company’s express written consent; and
- c. You abide by all the terms and conditions of this Agreement and the TOS.
3 – INTELLECTUAL PROPERTY.
- a. The Licensed Games are protected by all applicable federal and international intellectual property laws. Except as necessary to play the Licensed Games in accordance with their instructions, no portion of the Licensed Games may be reprinted, republished, modified or distributed in any form without Company’s express written permission. You agree not to reproduce, reverse engineer, decompile, disassemble or modify any portion of the Licensed Games. Certain content and functionality may be licensed from third parties and all such third-party intellectual property rights related thereto belong to the respective third parties.
- b. You acknowledge that Company reserves and retains exclusive ownership of the Licensed Games and all intellectual property rights associated therewith. Except as expressly provided herein, you are not granted any right or license to patents, copyrights, trade secrets or trademarks with respect to the Licensed Games, and Company reserves all rights not expressly granted hereunder. You shall promptly notify Company in writing upon your discovery of any unauthorized use or infringement of the Licensed Games or Company’s patents, copyrights, trade secrets, trademarks or other intellectual property rights. The Games contain proprietary and confidential information that is protected by applicable law.
4 – SOCIAL MEDIA
- a. Except as allowed in Section 6 below, posting images, videos, or live streams of our game or any portion of our published game on any online site or other electronic media (i.e. social media, blogs, YouTube etc.) is a violation of copyright and expressly prohibited. This includes but is not limited to posting a spoiler, such as a picture of who the victim is, the reading of the solution on a video, etc. Note: posting pictures of playing the game and/or aspects of the game which do not give away spoilers and/or content of the party are allowed – and encouraged!
Failure to abide by this section shall subject you to the Liquidated Damages set forth in Section 10(c). Furthermore, It is your responsibility to notify the players of the game of the policy and you will be responsible for any violations of this policy by the players of your Game.
5 – COPYRIGHT AND TRADEMARK NOTICES
- a. All content included In the Licensed Games, including but not limited to text, directions, graphics, logos, layout, design, button icons, images, data compilations, code and source code, multimedia content (including but not limited to images, illustrations, audio and video clips), html and other markup languages, and all other work and intellectual property of any type or kind, whether patentable or copyrightable or not (hereinafter, without limitation, “Game Content”), is the property of Company or its content suppliers and is protected by United States and international copyright laws with All Rights Reserved. All software used in conjunction with the Licensed Games is the property of Company or its software suppliers and is protected by United States and international copyright laws with All Rights Reserved.
- b. The trademark NIGHT OF MYSTERY, as well as individual Game names and all logos, URLs and trade dress related to the Site and the Games (collectively, the “Company Marks”) are exclusively owned by Company. Other trademarks, service marks, logos, labels, product names and appearing in the Game or the Site and not owned by Company or its subsidiaries, are the property of their respective owners.
- c. Except as provided for in this Agreement, You agree not to copy, display or otherwise use any Company Marks without Company’s prior written permission. Company Marks may never be used in any manner likely to cause confusion, disparage or dilute the Company Marks and/or in connection with any product or Games that is not authorized or sponsored by Company.
- d. You may not remove or alter, or cause to be removed or altered, any copyright, trademark, trade name, service mark, or any other proprietary notice or legend appearing on any Licensed Game.
6 – CO-BRANDING, FRAMING, METATAGS AND LINKING
- a. Except as specifically authorized herein, if you have a Personal License, you may not co-brand the Site or Games. If you have a Business or Charitable License, you may co-brand in accordance with this Section 6. For purposes of this Agreement, “co-branding” means to display the Company Marks or other means of attribution or identification of Company in such a manner as is reasonably likely to give the impression that you have the right to display, publish, or distribute the Games or content accessible within the Games. You agree to cooperate with Company in causing any unauthorized co-branding immediately to cease.
- b. You may not frame or use framing techniques to enclose any Company Marks or other proprietary information (including but not limited to images, text, page layout, and form) without Company’s express written consent. You may not include Company Marks in any metatags or any other “hidden text” without Company’s express written consent.
- c. Those holding Business or Charitable Licenses are granted a limited, revokable, non-exclusive license to utilize Company Marks purpose of promoting Your hosting of the Game(s). Any advertisement must include a statement that Company Marks, including but not limited to NIGHT OF MYSTERY are trademarks of Night of Mystery, Inc.
- d. Holders of Business and Charitable Licenses are also granted a limited, revocable, nonexclusive license to create a hyperlink to the Site’s home page, provided that you comply with all of the following:
- e. The link must be a text-only link clearly marked “NIGHT OF MYSTERY” or “www.nightofmystery.com”
- f. The link must “point” to the URL <http:// www.nightofmystery.com> and not to any other page within or without the Site;
- g. The link, when activated by any person, must display the Site full-screen and not within a “frame” on the linking or any other site;
- h. The link shall not portray Company or its products or the Games in any false, misleading, disparaging or otherwise offensive manner;
- i. The link may not use any Company logo or other proprietary graphic or trademark as part of the link without Company’s prior express written permission; and
- j. The appearance, position and other aspects of the link must not be such as to damage or dilute the goodwill associated with our name and trademarks or create any false appearance that we are associated with or sponsor the linking or any other site.
- k. The Company reserves the right to revoke the licenses contained in this Section at any time in our sole discretion, without notice.
Any unauthorized activity by you as set forth in this provision shall result in the immediate and automatic termination of your account and all permission, rights and/or licenses granted to you by Company, and may also result in such additional action as Company deems necessary to protect and enforce its legal rights.
7 – LICENSE TERM AND TERMINATION.
- a. If you are a Charitable Licensee, the term of your License shall expire immediately following the event specified in your Donation Receipt form.
- b. If you are a Personal or Business Licensee, the term of your License shall be one year commencing upon Company’s collection of the applicable License Fee.
- c. Your License is non-exclusive, non-transferrable and immediately revocable upon your breach of any provision of this Agreement.
- d. Your License will terminate immediately if you fail to comply with any term or condition of this Agreement. In such event, no notice shall be required by Company to effect such termination. Any breach by you of any terms or conditions herein, including but not limited to timely payment of all License Fees, shall be deemed material.
- e. Either Party may terminate your License immediately by written notice if the other Party makes an assignment for the benefit of creditors, becomes subject to a bankruptcy proceeding or is subject to the appointment of a receiver.
- f. License Fees collected by Company are nonrefundable, notwithstanding termination of your License for any reason or by any Party.
8 – DISCLAIMER OF WARRANTIES.
- a. You acknowledge that the Games may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and that Company shall not be responsible to you or others for any such interruptions, errors or problems or for discontinuance of the Games.
- b. A possibility exists that the Games could include inaccuracies or errors, or information or materials that violate this Agreement. Although we attempt to ensure the integrity of the Games, we make no guarantees as to their completeness or correctness. In the event that a situation arises in which a Game’s completeness or correctness is in question, you agree to contact us including, if possible, a description of the material to be checked, as well as information sufficient to enable us to contact you. We will make best efforts to address your concerns as soon as reasonably practicable.
- c. Company disclaims any and all responsibility for the deletion, failure to store, mis-delivery or untimely delivery of any information. Company disclaims any and all responsibility for harm resulting from downloading or accessing any information or Games on the Internet or through the Site.
- d. THE GAMES, INCLUDING ANY CONTENT OR INFORMATION CONTAINED THEREIN, ARE PROVIDED “AS IS,” WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, AND WITHOUT PREJUDICE TO DISCLAIMERS FOUND ELSEWHERE IN THIS AGREEMENT, COMPANY AND ITS OWNERS, AFFILIATES, LICENSORS, SUPPLIERS, SPONSORS, EMPLOYEES AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. COMPANY AND ITS OWNERS, AFFILIATES, LICENSORS, SUPPLIERS, SPONSORS, EMPLOYEES AND AGENTS DISCLAIM ANY AND ALL WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF ANY COMPANY PRODUCT OR SERVICE. COMPANY AND ITS OWNERS, AFFILIATES, LICENSORS, SUPPLIERS, SPONSORS, EMPLOYEES AND AGENTS DISCLAIM ANY AND ALL WARRANTIES FOR ANY INFORMATION OR ADVICE OBTAINED THROUGH THE SITE. NO OPINION, ADVICE OR STATEMENT OF COMPANY OR ITS OWNERS, AFFILIATES, LICENSORS, SUPPLIERS, SPONSORS, EMPLOYEES, AGENTS, USERS OR VISITORS, WHETHER MADE ON THE SITE OR OTHERWISE, SHALL CREATE ANY WARRANTY. COMPANY AND ITS OWNERS, AFFILIATES, LICENSORS, SUPPLIERS, SPONSORS, EMPLOYEES AND AGENTS DISCLAIM ANY AND ALL WARRANTIES FOR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SITE OR RECEIVED THROUGH ANY LINKS APPEARING ANYWHERE ON THE SITE, AS WELL AS FOR ANY INFORMATION OR ADVICE RECEIVED THROUGH ANY LINKS PROVIDED ANYWHERE ON THE SITE.
- E. COMPANY AND ITS OWNERS, AFFILIATES, LICENSORS, SUPPLIERS, SPONSORS, EMPLOYEES AND AGENTS DO NOT WARRANT THAT YOUR USE OF THE SITE WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE OR THE SERVER(S) ON WHICH THE SITE IS HOSTED ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE THAT YOU ARE RESPONSIBLE FOR OBTAINING AND MAINTAINING ALL TELEPHONE, COMPUTER HARDWARE AND OTHER EQUIPMENT NEEDED TO ACCESS AND USE THE SITE, AND ALL CHARGES RELATED THERETO. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SITE AND ANY GAMES AND YOUR RELIANCE THEREON. YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN MATERIAL, INFORMATION OR DATA THROUGH THE USE OF THE SITE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL, INFORMATION OR DATA.
- F. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION. PROVIDED, HOWEVER, THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW YOU HEREBY WAIVE THE PROVISIONS OF ANY STATE LAW LIMITING OR PROHIBITING SUCH EXCLUSIONS.
9- LIMITATION OF LIABILITY.
- A. NEITHER COMPANY NOR ANY OF OUR AFFILIATES, LICENSORS, SUPPLIERS OR SPONSORS, NOR OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AGENTS OR OTHER REPRESENTATIVES (TOGETHER, FOR PURPOSES OF THIS SECTION, “COMPANY”), ARE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, PERSONAL INJURY, DAMAGES FOR LOSS OF BUSINESS, LOSS OF DATA OR LOST PROFITS), UNDER ANY CONTRACT, NEGLIGENCE, WARRANTY, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO USE OR MISUSE OF OR RELIANCE ON THE SITE OR THE GAMES OR ANY LINKED SITE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IN NO EVENT SHALL COMPANY’S TOTAL CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL FEE, IF ANY, PAID BY YOU TO COMPANY. SUCH LIMITATION SHALL APPLY WITH RESPECT TO THE PERFORMANCE OR NONPERFORMANCE OF THE SITE OR ANY COMPANY PRODUCT OR ANY INFORMATION OR MERCHANDISE THAT APPEARS ON, OR IS LINKED OR RELATED IN ANY WAY TO, THE SITE. SUCH LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
- B. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. PROVIDED, HOWEVER, THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW YOU HEREBY WAIVE THE PROVISIONS OF ANY STATE LAW LIMITING OR PROHIBITING SUCH EXCLUSIONS OR LIMITATIONS.
- C. WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES SHALL COMPANY BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ACTS OF NATURE, FORCES, OR CAUSES BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET FAILURES, COMPUTER EQUIPMENT FAILURES, TELECOMMUNICATION EQUIPMENT FAILURES, OTHER EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES, LABOR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOR OR MATERIALS, FIRES, FLOODS, STORMS, EXPLOSIONS, ACTS OF GOD, EPIDEMIC, WAR, GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS, NON-PERFORMANCE OF THIRD PARTIES, OR LOSS OF OR FLUCTUATIONS IN HEAT, LIGHT, OR AIR CONDITIONING.
- a. Your rights under this Agreement are not assignable.
- b. This Agreement is binding on the Parties and their respective heirs, legatees, executors, successors and assigns. Except for Policies and other agreements incorporated by reference herein, this Agreement is the entire agreement between the Parties and supersedes all prior written or oral agreements between the Parties relating to the subject matter hereof, including but not limited to any and all prior written or oral representations made by any independent Company agent. If any portion of this Agreement is found to be void or unenforceable, the remaining portion shall be enforceable with the invalid portion removed, giving all reasonable construction to permit the essential purposes of the Agreement to be achieved. Aside from breaches that are subject to the liquidated damages provisions below, the Parties’ various rights and remedies hereunder shall be construed to be cumulative.
- c. If you violate the terms of the License by allowing a third party to use your account; violate Personal License as set forth in Section 1(a) by using the Games in a commercial manner; or you violate the terms of Section 4, you shall pay Company $5,000 =; or $25,000 respectively (“Liquidated Damages”). The Parties mutually intend that the Liquidated Damages constitute compensation, and not a penalty. The Parties acknowledge and agree that Company’s harm caused by the allowance of a third party to use your License; your breach of Sections 1(a); or 4 would be impossible or very difficult to accurately estimate at the time of contract and that the Liquidated Damages are a reasonable estimate of the anticipated or actual harm that might arise from the unauthorized use of your License; breach of Sections 1(a); or breach of Section 4 by You. Your payment of the Liquidated Damages is your sole liability and entire obligation and Company’s exclusive remedy for the unauthorized use of your License; or breach of Sections 1(a) or 4 by You.
- d. This Agreement shall be deemed to have been made in the United States of America, State of Colorado, and it shall be governed by the substantive laws of the State of Colorado without regard to any applicable conflict of laws provisions. The Parties submit to jurisdiction in the state and federal courts sitting in the city and county of Denver, Colorado, USA, and you hereby waive any jurisdictional, venue or inconvenient forum objections.
- e. The prevailing party in any legal suit, action, or proceeding arising out of or relating to this Agreement shall be entitled to their
reasonable attorney’s fees and costs.
- f. Nothing contained in this Agreement shall be construed to require the commission of any act contrary to law. Nothing in this Agreement shall be construed or deemed to create any partnership, agency, joint venture, employment or franchise relationship between the Parties.
- g. Captions and headings used in this Agreement are for purposes of convenience only and shall not be deemed to limit, affect the scope, meaning or intent of this Agreement, nor shall they otherwise be given any legal effect.
- h. No breach of this Agreement by Company shall be deemed material unless you shall have given Company written notice of such breach, and Company shall fail to cure such breach within thirty (30) days after its receipt of such notice.
- i. All notices required to be sent to Company under this Agreement shall be in writing and shall be sent by certified mail, return receipt requested, postage paid, or by overnight delivery service, to Night of Mystery, Inc., 26448 E. Walker Dr., Aurora, CO 80016, Attention: Legal (or such other address or addresses as may be designated by Company herein).
- j. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Site or Games must be filed within one (1) year after such claim or cause of action arose or be forever barred.
- k. Notice for California Users. Under California Civil Code Section 1789.3, California Users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210. The provider of services is Night of Mystery, Inc., 26448 E. Walker Dr., Aurora, CO 80016. There is a charge for licensing the Games. Charges are available by contacting Company at the above address, Attention: Customer Service.
- l. You agree to defend, indemnify and hold Company harmless against any losses, expenses, costs or damages (including any reasonable attorneys’ fees and costs) arising from, incurred as a result of, or in any manner related to any claim or action based upon (a) your breach of the terms and conditions of this Agreement, (b) your use of the Games, and/or (c) the use of the Games by any other person using your account or License. Company may participate in the defense of any such claim or action and any negotiations for its settlement or compromise. No settlement which may adversely affect our rights or obligations shall be made without our prior written approval.
ACCEPTANCE OF ELECTRONIC CONTRACT.
When you purchase a mystery game from Night of Mystery, Inc. you agree that this Agreement has the same legal force and effect as a written contract with your written signature and that it satisfies any laws that require a writing or signature, including any applicable statute of frauds. You further agree that you shall not challenge the validity, enforceability or admissibility of this Agreement on the grounds that it was electronically transmitted or authorized. A printed version of this Agreement shall be admissible in judicial or administrative proceedings based upon or relating to the Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You acknowledge that you have had the opportunity to print this Agreement.
WHEN PURCHASING FROM NIGHT OF MYSTERY, INC. YOU HEREBY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.