AIMSTAR END USER LICENSE AGREEMENT
This AIMSTAR END USER LICENSE AGREEMENT (the “Agreement”) is a legally binding between you and Aimstar Games, Inc. (“Aimstar”). Please read this Agreement carefully. It is a legal document that explains your rights and obligations related to your use of the Software, including any Services you access or purchases you make through the Software. By downloading or using the Software, or by otherwise indicating your acceptance of this Agreement, you are agreeing to be bound by the terms of this Agreement. If you do not or cannot agree to the terms of this Agreement, please do not download or use this Software.
As used in this Agreement, the following capitalized words have the following meanings:
“Cheat Detection” means programs and functionalities intended to identify Cheats.
“Cheats” means programs or other processes which may give players an unfair competitive advantage in the Software.
“Confidential Information” means any non-public information related to the Software, including without limitation information related to game play or other content, Currency, Content, the Services, your own feedback and comments, and the feedback or comments of any other licensee of the Software or any Aimstar representative.
“Content” means any virtual items or other content that Aimstar makes available for you to access or download through or in connection with the Software.
“Feedback” means any feedback or suggestions that you provide to Aimstar regarding the Software, Services or other Aimstar products and services.
“Services” means any services made available to you through the Software, including services to acquire, maintain and use Currency and Content.
“Software” means the proprietary software application known as Aimstar, and any patches, updates, and upgrades to the application, and all related content and documentation made available to you by Aimstar under this Agreement, including but not limited to all software code, titles, themes, objects, characters, names, dialogue, catch phrases, locations, stories, artwork, animation, concepts, sounds, audio-visual effects, methods of operation, and musical compositions that are related to the application, and any copies of any of the foregoing. Software specifically includes all Currency and Content for which you have paid the associated fee or otherwise acquired a license under Section 5.
Aimstar hereby grants you a personal, non-exclusive, non-transferable, non-sublicensable limited right and license to install and use one copy of the Software on a device for your personal entertainment use (the “License”). The rights that Aimstar grants you under the License are subject to the terms of this Agreement, and you may only make use of the License if you comply with all applicable terms.
The License becomes effective on the date you accept this Agreement. The Software is licensed, not sold, to you under the License. The License does not grant you any title or ownership in the Software.
3. LICENSE OBLIGATIONS
You may not do any of the following with respect to the Software or any of its parts: (a) use it commercially or for a promotional purpose; (b) use it on more than one device at a time; (c) copy, reproduce, distribute, display, or use it in a way that is not expressly authorized in this Agreement; (d) sell, rent, lease, license, distribute, or otherwise transfer it; (e) reverse engineer, derive source code from, modify, adapt, translate, decompile, or disassemble it or make derivative works based on it; (f) remove, disable, circumvent, or modify any proprietary notice or label or security technology included in it; (g) create, develop, distribute, or use any unauthorized software programs to gain advantage in any online or other game modes; (h) use it to infringe or violate the rights of any third party, including but not limited to any intellectual property, publicity, or privacy rights; (i) use, export, or re-export it in violation of any applicable law or regulation; or (j) behave in a manner which is detrimental to the enjoyment of the Software by other users as intended by Aimstar, in Aimstar’s sole discretion and judgment, including but not limited to the following – harassment, use of abusive or offensive language, game abandonment, game sabotage, spamming, social engineering, or scamming.
4. SOFTWARE UPDATES AND PATCHES
Aimstar may provide patches, updates, or upgrades to the Software that must be installed in order for you to continue to use the Software or Services. Aimstar may update the Software remotely without notifying you, and you hereby consent to Aimstar applying patches, updates, and upgrades. Aimstar may modify, suspend, discontinue, substitute, replace, or limit your access to any aspect of the Software or Services at any time. You acknowledge that your use of the Software or Services does not confer on you any interest, monetary or otherwise, in any aspect or feature of the Software or Services, including but not limited to any in-game rewards, achievements, character levels, Currency, or Content. You also acknowledge that any character data, game progress, game customization or other data related to your use of the Software or the Services may cease to be available to you at any time without notice from Aimstar, including without limitation after a patch, update, or upgrade is applied by Aimstar. Aimstar does not have any maintenance or support obligations with respect to the Software or Services.
5. CURRENCY AND CONTENT
Aimstar may offer you the ability to acquire licenses to in-game-currency (“Currency”) or Content, such as by: (a) purchasing a limited license to use Currency for a fee (“Purchased Currency”), (b) earning a limited license to use Currency by performing or accomplishing specific tasks in the Software, or (c) purchasing for a fee, exchanging Currency for, or earning a limited license to use Content. Also, Aimstar may facilitate the exchange of certain Content through the Software, in some cases for a fee. You may only use such Currency or Content if you pay the associated fee (if any). When you earn or pay the fee to obtain such Currency or Content, you are obtaining or purchasing from Aimstar the right to have your License include such Currency or Content. Regardless of any references Aimstar may make outside this Agreement to purchasing or selling Currency or Content, both Currency and Content are licensed, not sold, to you under the License. Use of an Aimstar Account to purchase Currency or Content is subject to Aimstar’s Terms of Service.
Neither Currency nor Content are redeemable for money or monetary value from Aimstar or any other person, except as otherwise required by applicable law. Currency and Content do not have an equivalent value in real currency and do not act as a substitute for real currency. Neither Aimstar nor any other person or entity has any obligation to exchange Currency or Content for anything of value, including, but not limited to, real currency. You agree that Aimstar may engage in actions that may impact the perceived value or purchase price, if applicable, of Currency and Content at any time, except as prohibited by applicable law.
All purchases of Purchased Currency and Content are final and are not refundable, transferable, or exchangeable under any circumstances, except as otherwise required by applicable law. Aimstar, in its sole discretion, may impose limits on the amount of Currency or Content that may be purchased, earned, accumulated, redeemed or otherwise used.
Except as otherwise prohibited by applicable law, Aimstar, in its sole discretion, has the absolute right to manage, modify, substitute, replace, suspend, cancel or eliminate Currency or Content, including your ability to access or use Currency or Content, without notice or liability to you. You may not transfer, sell, gift, exchange, trade, lease, sublicense, or rent Currency or Content except within the Software and as expressly permitted by Aimstar. Except as otherwise prohibited by applicable law, Aimstar reserves and retains all rights, title, and interest in and to the Currency and Content. The license to Currency and Content under the License will terminate upon termination of the License and as otherwise provided herein.
When you provide payment information to Aimstar or its authorized processor, you represent that you are an authorized user of the payment card, PIN, key, account or other payment method specified by you, and you authorize Aimstar to charge such payment method for the full amount of the transaction.
6. USER GENERATED CONTENT
“User Contributions” means any content that you create, generate, or make available through the Software or the Services, including chat posts, character data, game customization, in-game constructions, and screenshots. You hereby grant to Aimstar a non-exclusive, fully-paid, royalty-free, irrevocable, perpetual, transferable, and sublicensable license to use, copy, modify, adapt, distribute, and publicly display your User Contributions. You may not create, generate, or make available through the Software of the Services any User Contributions to which you do not have the right to grant Aimstar such license. In addition, you may not create, generate, or make available through the Software of the Services any User Contributions that is illegal or violates or infringes another’s rights, including intellectual property rights or privacy, publicity or moral rights. Aimstar, in its sole discretion, reserves the right to take down any User Contributions.
7. USER FEEDBACK
If you provide Aimstar with any Feedback, you hereby grant Aimstar a non-exclusive, fully-paid, royalty-free, irrevocable, perpetual, transferable, sublicensable license to reproduce, distribute, modify, prepare derivative works based on, publicly perform, publicly display, make, have made, use, sell, offer to sell, import, and otherwise exploit that Feedback for any purposes, for all current and future methods and forms of exploitation in any country. If any such rights may not be licensed under applicable law (such as moral and other personal rights), you hereby waive and agree not to assert all such rights. You understand and agree that Aimstar is not required to make any use of any Feedback that you provide. You agree that if Aimstar makes use of your Feedback, Aimstar is not required to credit or compensate you for your contribution. You represent and warrant that you have sufficient rights in any Feedback that you provide to Aimstar to grant Aimstar and other affected parties the rights described above. This includes but is not limited to intellectual property rights and other proprietary or personal rights.
8. TITLE, RIGTS AND THIRD PARTY LICENSES
Aimstar and its licensors own all title, ownership rights, and intellectual property rights in the Software and Services. Aimstar is a trademark or registered trademark of Aimstar in the United States of America and elsewhere. All rights granted to you under this Agreement are granted by express license only and not by sale. No license or other rights shall be created hereunder by implication, estoppel, or otherwise.
9. DISCLAIMERS AND LIMITATIONS OF LIABILITY
The Software (including any Currency and Content) and Services is provided on an “as is” and “as available” basis, “with all faults” and without warranty of any kind. Aimstar, its licensors, and affiliates disclaim all warranties, conditions, common law duties, and representations (express, implied, oral, and written) with respect to the Software and Services, including without limitation all express, implied, and statutory warranties and conditions of any kind, such as title, non-interference with your enjoyment, authority, non-infringement, merchantability, fitness or suitability for any purpose (whether or not Aimstar knows or has reason to know of any such purpose), system integration, accuracy or completeness, results, reasonable care, workmanlike effort, lack of negligence, and lack of viruses, whether alleged to arise under law, by reason of custom or usage in the trade, or by course of dealing. Without limiting the generality of the foregoing, Aimstar, its licensors, and affiliates make no warranty that: (1) the Software or Services will operate properly; (2) that the Software or Services will meet your requirements; (3) that the operation of the Software or Services will be uninterrupted, bug free, or error free in any or all circumstances; or (4) that any defects in the Software or Services can or will be corrected. Any warranty against infringement that may be provided in the Uniform Commercial Code or in any other comparable statute is expressly disclaimed. Aimstar, its licensors, and affiliates do not guarantee continuous, error-free, virus-free, or secure operation of or access to the Software or the Services. This paragraph will apply to the maximum extent permitted by applicable law.
To the maximum extent permitted by applicable law, neither Aimstar, nor its licensors, nor affiliates, nor any of Aimstar’s service providers (collectively, the “Aimstar Parties”), shall be liable in any way for any loss of profits or any indirect, incidental, consequential, special, punitive, or exemplary damages, arising out of or in connection with this Agreement or the Software (including, but not limited to any Currency or Content) or Services, or the delay or inability to use or lack of functionality of the Software or Services, even in the event of an Aimstar Party’s fault, tort (including negligence), strict liability, indemnity, product liability, breach of contract, breach of warranty, or otherwise and even if an Aimstar Party has been advised of the possibility of such damages. Further, to the maximum extent permitted by applicable law, the aggregate liability of the Aimstar Parties arising out of or in connection with this Agreement or the Software (including, but not limited to any Currency or Content) or Services will not exceed the total amounts you have paid (if any) to Aimstar for the use of the Software (including, but not limited to any Currency or Content) during the twelve (12) months immediately preceding the events giving rise to such liability. These limitations and exclusions regarding damages apply even if any remedy fails to provide adequate compensation.
Notwithstanding the foregoing, some countries, states, provinces or other jurisdictions do not allow the exclusion of certain warranties or the limitation of liability as stated above, so the above terms may not apply to you. Instead, in such jurisdictions, the foregoing exclusions and limitations shall apply only to the extent permitted by the laws of such jurisdictions. Also, you may have additional legal rights in your jurisdiction, and nothing in this Agreement will prejudice the statutory rights that you may have as a consumer of the Software or the Services.
You agree to indemnify, pay the defense costs of, and hold Aimstar, its licensors, affiliates, 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: (a) any claim that, if true, would constitute a breach by you of this Agreement or negligence by you; or (b) any act or omission by you in using the Software (including, but not limited to any Currency or Content) or the Services. You agree to reimburse Aimstar on demand for any defense costs incurred by Aimstar and any payments made or loss suffered by Aimstar, whether in a court judgment or settlement, based on any matter covered by this Section 10.
If you are prohibited by law from entering into the indemnification obligation above, then you assume, to the extent permitted by law, all liability for all claims, demands, actions, losses, liabilities, and expenses (including attorneys’ fees, costs and expert witnesses’ fees) that are the stated subject matter of the indemnification obligation above.
Without limiting any other rights of Aimstar, this Agreement will terminate automatically without notice if you fail to comply with any of its terms and conditions. You may also terminate this Agreement by deleting the Software. Upon any termination, the License will automatically terminate, you may no longer exercise any of the rights granted to you by the License, and you must destroy all copies of the Software in your possession.
Except to the extent required by law, all payments and fees are non-refundable under all circumstances, regardless of whether or not this Agreement has been terminated.
Sections 3, 6-14, and 16-18 will survive any termination of this Agreement.
12. GOVERNING LAW AND JURISDICTION
You agree that this Agreement will be deemed to have been made and executed in the State of California, U.S.A., and any dispute will be resolved in accordance with the laws of the State of Delaware, and agree not to raise or assert any argument of forum non conveniens or similar argument in an attempt to seek or lay venue in any other location. Any action or proceeding brought to enforce the terms of this Agreement or to adjudicate any dispute must be brought in the Los Angeles Superior Court, State of California or the United States District Court for the Central District of California. You agree to the exclusive jurisdiction and venue of these courts. You waive any claim of inconvenient forum and any right to a jury trial. The Convention on Contracts for the International Sale of Goods will not apply. Any law or regulation which provides that the language of a contract shall be construed against the drafter will not apply to this Agreement.
13. CLASS ACTION WAIVER
You agree not to bring or participate in a class or representative action, private attorney general action, or collective arbitration related to the Software (including, but not limited to any Currency or Content) or Services or this Agreement. You also agree not to seek to combine any action or arbitration related to the Software or Services or this Agreement with any other action or arbitration without the consent of all parties to this Agreement and all other actions or arbitrations.
14. U.S. GOVERNMENT
The Software is a “Commercial Item” (as defined at 48 C.F.R. §2.101), consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation” (as used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable). The Software is being licensed to U.S. Government end users only as Commercial Items and with only those rights as are granted to other licensees under this Agreement.
You represent and warrant to Aimstar that you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties.
You may not, without the prior written consent of Aimstar, assign, transfer, charge, or sub-contract any of your rights or obligations under this Agreement, and any attempt without that consent will be null and void. If restrictions on transfer of the Software in this Agreement are not enforceable under the law of your country, then this Agreement will be binding on any recipient of the Software. Aimstar may at any time assign, transfer, charge, or sub-contract all or any of its rights or obligations under this Agreement.
This Agreement and any document or information referred to in this Agreement constitute the entire agreement between you and Aimstar relating to the subject matter covered by this Agreement. All other communications, proposals, and representations with respect to the subject matter covered by this Agreement are excluded.
The original of this Agreement is in English; any translations are provided for reference purposes only. You waive any right you may have under the law of your country to have this Agreement written or construed in the language of any other country.
This Agreement describes certain legal rights. You may have other rights under the laws of your jurisdiction. This Agreement does not change your rights under the laws of your jurisdiction if the laws of your jurisdiction do not permit it to do so. Limitations and exclusions of warranties and remedies in this Agreement may not apply to you because your jurisdiction may not allow them in your particular circumstance. In the event that certain provisions of this Agreement are held by a court or tribunal of competent jurisdiction to be unenforceable, those provisions shall be enforced only to the furthest extent possible under applicable law and the remaining terms of this Agreement will remain in full force and effect.
Any act by Aimstar to exercise, or failure or delay in exercise of, any of its rights under this Agreement, at law or in equity will not be deemed a waiver of those or any other rights or remedies available in contract, at law or in equity.
You agree that this Agreement does not confer any rights or remedies on any person other than the parties to this Agreement, except as expressly stated.
Aimstar’s obligations are subject to existing laws and legal process, and Aimstar may comply with law enforcement or regulatory requests or requirements despite any contrary term in this Agreement.