Terms of Service
THIS IS A TERMS OF SERVICE AGREEMENT ("LICENSE") BETWEEN YOU ("LICENSEE") AND BERK & HIRT CONSULTING INC. d/b/a MOBYGAMES ("LICENSOR") GOVERNING YOUR USE OF THE CONTENT OF AND SERVICES PROVIDED BY THE MOBYGAMES SITE ON THE WORLD WIDE WEB (HEREINAFTER, THE MOBYGAMES WEB SITE).
I. Rules of Conduct
You agree not to transmit any message, information, data, text, software or graphic files, or other materials ("Content") that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, that may be invasive of another's right of privacy or publicity, hateful, racially, ethnically or otherwise objectionable; impersonate any person or entity, including but not limited to, an administrator; otherwise misrepresent your affiliation with a person or entity; post or transmit any Content that contains a virus or corrupted data; delete any author attributions, legal notices or proprietary designations or labels associated with any Content; undertake or assist in any action that adversely affects the availability of any MobyGames web site resources to other users; post or transmit any unsolicited advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation; and intentionally or unintentionally violate any applicable local, state, national or international law, rule or regulation.
You agree to indemnify and hold Licensor harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your violation of these terms of service or arising out of your violation of any rights of a third party.
You agree not to interrupt or attempt to interrupt the operation of MobyGames in any way.
The Message Boards may provide (and users may include in messages) links to other Web Sites or resources. Licensor is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You agree not to hold Licensor responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such external sites or resources.
III. MobyGames Policies and Procedures
GENERAL TERMS AND CONDITIONS
1. Copyright and Trademark Notices
The MobyGames web site is Copyright © 1999-2006 Berk & Hirt Consulting Inc., 70 W. Madison, Chicago, IL 60202. All rights reserved. MobyGames, MobyGames Pro, and the MobyGames logo are trademarks of Berk & Hirt Consulting Co.
2. Intellectual Property
By submitting (e.g., uploading or otherwise transmitting) Content to the MobyGames web site, you warrant that you have all rights necessary to submit such Content free and clear of any rights of any third party. Further, by submitting Content, you assign all worldwide rights, title and interest in and to such Content to Mobygames, including all copyrights in any form, media, or technology now known or later developed. You waive any and all moral rights that you may have in the Content.
Licensor grants to Licensee the right to use the MobyGames web site for Licensees personal, non-commercial use. Licensee agrees not to modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way commercially exploit the MobyGames web site unless authorized to do so in writing by Licensor.
3. DISCLAIMER OF LIABILITY
NEITHER LICENSOR, NOR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING ANY CONTENT OR SERVICES CONTAINED ON MOBYGAMES, NOR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, MAKE ANY WARRANTY WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THAT MOBYGAMES WILL BE UNINTERRUPTED OR FREE OF ERRORS; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF MOBYGAMES OR AS TO THE ACCURACY, RELIABILITY, QUALITY OR CONTENT OF ANY INFORMATION, SERVICE OR MERCHANDISE PROVIDED ON OR THROUGH MOBYGAMES, INCLUDING, WITHOUT LIMITATION, ALL LICENSOR CONTRIBUTION FEATURES.
MOBYGAMES AND ALL MATERIAL CONTAINED THEREIN ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE OR NON-INFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES WHICH ARE INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT. USE OF MOBYGAMES, INCLUDING, WITHOUT LIMITATION, ALL CONTRIBUTION FEATURES OF MOBYGAMES, IS AT YOUR SOLE RISK.
4. LIMITATION OF LIABILITY
THE DISCLAIMERS OF LIABILITY CONTAINED IN THIS SECTION APPLY TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF MOBYGAMES, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION.
IN NO EVENT WILL LICENSOR OR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING ANY CONTENT OR SERVICES CONTAINED ON MOBYGAMES, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, BE LIABLE FOR (A) ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO (I) THE USE OF OR INABILITY TO USE MOBYGAMES, (II) THE BREACH OF ANY REPRESENTATION OR WARRANTY, (III) THE USE BY YOU OF MOBYGAMES OF ANY BROWSER OWNED OR OPERATED BY ANY PARTY AND/OR (IV) THE DOWNLOADING OF ANY SOFTWARE OWNED OR OPERATED BY ANY THIRD PARTY, IN CONNECTION WITH MOBYGAMES OR (B) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO MOBYGAMES, EVEN IF LICENSOR WAS PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN THE EVENT ANY CLAIM RELATING TO THE PERFORMANCE OR NONPERFORMANCE BY LICENSOR PURSUANT TO THIS AGREEMENT, OR IN ANY OTHER WAY CONCERNING MOBYGAMES, IS MADE BY YOU, THE ACTUAL DAMAGES TO WHICH YOU MAY BE ENTITLED SHALL BE LIMITED TO THE FEES, IF ANY, PAID BY YOU FOR USE OF MOBYGAMES. LICENSOR DOES NOT ENDORSE NOR IS RESPONSIBLE FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE OR STATEMENT, NOR FOR ANY OFFENSIVE, DEFAMATORY, OBSCENE OR ILLEGAL POSTING OR CONDUCT, ON MOBYGAMES, INCLUDING, WITHOUT LIMITATION, ALL CONTRIBUTION FEATURES OF MOBYGAMES, BY ANYONE OTHER THAN AUTHORIZED LICENSOR EMPLOYEES WHILE ACTING IN THEIR OFFICIAL CAPACITIES. UNDER NO CIRCUMSTANCES WILL LICENSOR, OR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING ANY CONTENT OR SERVICES CONTAINED ON MOBYGAMES, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON INFORMATION OBTAINED ON OR THROUGH MOBYGAMES, INCLUDING, WITHOUT LIMITATION, ALL LICENSOR CONTRIBUTION FEATURES. IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY INFORMATION, OPINION, ADVICE OR OTHER CONTENT AVAILABLE THROUGH MOBYGAMES, INCLUDING, WITHOUT LIMITATION, ALL CONTRIBUTION FEATURES OF MOBYGAMES. PLEASE SEEK THE ADVICE OF PROFESSIONALS, AS APPROPRIATE, REGARDING THE EVALUATION OF ANY SPECIFIC INFORMATION, OPINION, ADVICE OR OTHER CONTENT. LICENSOR DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY PRODUCT OR SERVICE OFFERED BY A THIRD PARTY THROUGH MOBYGAMES AND LICENSOR WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD PARTIES.
Licensor may change any part of this Agreement at any time by posting a notice of such change at www.mobygames.com/info/terms/change. The notice shall show the change and the date on which the change shall become a part of these Terms of Service and thereby become effective. By continuing to use MobyGames after the posted effective date of the change, you agree to and accept the changed Terms of Service.
1. Arbitration and Governing Law
Disputes arising under this Terms of Service shall be governed by and interpreted and construed in accordance with the substantive law (and not the law of conflicts) of the State of Illinois. The Licensor and Licensee hereto agree hereby consent to binding arbitration using the American Arbitration Association. Licensor and Licensee shall be responsible for their own share of the arbitration fees in accordance with the applicable Rules of Arbitration. In the event that either party fails to proceed with arbitration, unsuccessfully challenges the arbitrator's award, or fails to comply with the arbitrator's award, the other party is entitled to costs of suit, including a reasonable attorney's fee for having to compel arbitration or defend or enforce the award.
2. Entire Agreement
This Terms of Service is the entire agreement of the Licensor and Licensee and supersedes any prior agreements, negotiations, or understandings between them, whether written or oral, with respect to the subject matter hereof. No waiver, alteration, or modification of any of the provisions of this Terms of Service shall be binding unless in writing and signed by an authorized representative of the Licensor.
If any provision of this Terms of Service becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, portions of such provision, or such provision in its entirety, to the extent necessary, shall be severed from this Terms of Service, and such court will replace such illegal, unenforceable or void provision of this Terms of Service with a valid and enforceable provision that will achieve, to the extent possible, the same economic, business and other purposes of the illegal, unenforceable or void provision. The balance of this Terms of Service shall be enforceable in accordance with its terms.
4. Injunctive Relief
In addition to any other available relief, Licensor and Licensee agree that any commercial use of material obtained from the MobyGames web site including modification, publishing, transmission or participating in the transfer, sale or creation of derivative works, or in any way commercially exploiting the MobyGames web site unless authorized to do so in writing by Licensor will result in irreparable harm to Licensor, with damages that cannot be ascertained or compensated by monetary awards; and that, on that basis, Licensee agrees that the Licensor is entitled to, and may seek and obtain, without the requirement to post bond, any injunctive or immediate legal, equitable, administrative, or other relief available in the country, state, or other jurisdiction appropriate.