Last Updated: 10/26/2012
This Agreement (the “Agreement”) is a legal agreement between ClutchPlay Games, Inc. and its related companies and affiliates (collectively, “ClutchPlay,” “we,” or “us”) and you (“you”) that states the terms and conditions under which you may use any ClutchPlay game or application (including, but not limited to, Little Chomp) provided by ClutchPlay on the Internet, through a mobile device, or on other platforms (collectively, the “Service”). By using or accessing the Service, you agree to these terms and conditions and our Privacy Policy, which is incorporated herein by reference.
ClutchPlay reserves the right, in its sole discretion, to modify or revise this Agreement at any time, and you agree to be bound by such modifications or revisions. Any such change or modification will be effective immediately upon posting on the Service, and your continued use of the Service after any changes or modifications to this Agreement are posted will constitute your acceptance of, and agreement to, such changes or modifications. If you object to any change or modification, your sole recourse shall be to cease using the Service.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT OR DO NOT MEET ALL CONDITIONS FOR USE OF THE SERVICE, PLEASE DO NOT ACCESS OR USE THE SERVICE.
1. ACCESS TO THE SERVICE AND CREATING AN ACCOUNT
If you are accessing the Service through a social networking service (“SNS”), you may be required to have an account with the SNS through which you connect to the Service. You agree to comply with the SNS’s terms of use as well as this Agreement.
For accounts created directly with ClutchPlay, you agree to provide ClutchPlay with accurate and complete information as required by registration for the Service. You are solely responsible for managing your account and agree to keep your customer registration data current at all times. Your password should be kept strictly confidential to prevent unauthorized use.
The collection and use of your account information, whether extracted from an SNS or created directly with ClutchPlay, is subject to our Privacy Policy. You agree that ClutchPlay may use your account information, game history and other data related to your use of the Service as provided in our Privacy Policy.
2. LIMITED LICENSE TO USE THE SERVICE
Subject to your compliance with this Agreement, ClutchPlay grants you a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to use and access the Service, solely for your personal, non-commercial use.
You agree not to (a) use the Service for any use or purpose other than as expressly permitted by this Agreement or (b) copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Service or any portion thereof, except as expressly permitted in this Agreement. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by ClutchPlay or its licensors, except for the permissions and rights expressly granted in this Agreement.
If you violate this Agreement, ClutchPlay reserves the right to immediately terminate or suspend any or all accounts you have created using the Service. You agree that ClutchPlay need not provide you notice before terminating or suspending your account, but it may do so.
ClutchPlay reserves the right to refuse any user access to the Service without notice for any reason, including, but not limited to, a violation of this Agreement.
3. PROPRIETARY RIGHTS
All content and materials comprising the Service, including without limitation, software, computer code, artwork, graphics, video, animations, sounds, musical compositions, audio-visual effects, games, titles, themes, objects, icons, virtual items, characters, stories, dialogue, catch phrases, concepts, formats, effects, methods of operation and documentation, and the selection and arrangement thereof (“Content”) and the trademarks, service marks, trade dress and logos contained therein (“Marks”), as between you and ClutchPlay, are owned by ClutchPlay or its licensors. All other trademarks, service marks, trade names and logos used on the Service, with or without attribution, are the trademarks, service marks, trade names and logos of their respective owners.
You acknowledge and agree that the Content and Marks are protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws of the United States and similar laws of other jurisdictions. ClutchPlay reserves all rights, including without limitation, all intellectual property rights or other proprietary rights, in connection with the Content and Marks. You acknowledge and agree that you shall not acquire any ownership rights whatsoever by using or accessing the Service.
You agree that you shall not modify, copy, distribute, frame, reproduce, republish, download, scrape, display, post, transmit, or sell in any form or by any means, in whole or in part, or otherwise exploit the Content without ClutchPlay’s express prior written permission. All other uses of proprietary material, including any derivative use, require express prior written permission from ClutchPlay.
4. USER CONTENT
“User Content” is defined as any communications, images, sounds, and all the material, data, and information that you upload or transmit through the Service, or that is extracted from your SNS profile, including without limitation, your profile photo, any in-game chat text, or game questions or content. By posting any User Content on, through or in connection with the Service, you hereby grant to ClutchPlay a perpetual, non-exclusive, fully-paid and royalty-free, sublicensable, transferable (in whole or in part), worldwide license to use, modify, excerpt, adapt, create derivative works and compilations based upon, publicly perform, publicly display, reproduce, and distribute such User Content on, through or in connection with the Service or in connection with any distribution or syndication thereof on and through all media formats now known or hereafter devised, for any and all purposes including, but not limited to, promotional, marketing, trade or commercial purposes. ClutchPlay’s use of such User Content shall not require any further notice to you and such use shall be without the requirement of any permission from or payment to you or to any other person or entity.
Please note that not all Services allow the posting of User Content and ClutchPlay reserves the right to limit the storage capacity of User Content that you post on, through or in connection with the Service. ClutchPlay also reserves the right (but not the obligation) to remove and permanently delete any User Content from the Service with or without notice for any reason or no reason.
You represent and warrant that: (a) you own the User Content posted by you on, through or in connection with the Service, or otherwise have the right to grant the license set forth in this Section, and (b) the posting of User Content by you on, through or in connection with the Service does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person or entity. You agree to pay for all royalties, fees, and any other monies owing any person or entity by reason of the use of any User Content posted by you on or through the Service.
User Content is not confidential and will not be returned to the user.
5. VIRTUAL CURRENCY AND VIRTUAL ITEMS
The Service may include an opportunity to purchase virtual currency (“Virtual Currency”) or virtual items (“Virtual Items”), such as episodes, power-ups and similar content, that may require you to pay a fee using real money to obtain the Virtual Currency or Virtual Items. PURCHASES OF ANY VIRTUAL CURRENCY AND VIRTUAL ITEMS ARE FINAL; AND EXCEPT IN OUR SOLE AND ABSOLUTE DISCRETON, SHALL NOT BE REFUNDABLE, TRANSFERRABLE, OR EXCHANGEABLE. You have no other right, title or interest in or to any such Virtual Items or Virtual Currency appearing or originating in the Service. You agree that Virtual Currency and/or Virtual Items will be forfeited if your account is terminated for any reason, including in ClutchPlay’s sole and absolute discretion or if ClutchPlay discontinues providing the Service for any reason. Prices and availability of the Virtual Currency or Virtual Items are subject to change without notice.
6. DMCA POLICY
ClutchPlay respects the intellectual property rights of others and expects users of the Service to do the same. We will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to us.
If you believe that your content has been copied in a way that constitutes copyright infringement, please provide us with the following information: (i) a physical or electronic signature of the copyright owner or a person authorized to act on their behalf; (ii) identification of the copyrighted work claimed to have been infringed; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (iv) your contact information, including your address, telephone number, and an email address; (v) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
We reserve the right to remove content alleged to be infringing without prior notice and at our sole discretion. In appropriate circumstances, ClutchPlay will also terminate a user’s account if the user is determined to be a repeat infringer. Our designated copyright agent for notice of alleged copyright infringement appearing on the Service is:
ClutchPlay Games, Inc.
Attn: Copyright Agent
815 NE Schuyler St. Box 12164
Portland, OR 97212
United States
E-mail: feedback@clutchplaygames.com
7. RULES OF CONDUCT
Your use of the Service is subject to all applicable local, state and national laws and regulations. You are solely responsible for all activities, acts and omissions that occur in, from, through or under your account. You shall not use, allow, or enable others to use the Service, in any manner that is, attempts to, or is likely to:
- be libelous, defamatory, vulgar, indecent, or obscene, pornographic, sexually explicit, racially, culturally, or ethnically offensive, harmful, harassing, intimidating, threatening, discriminatory, or abusive, or which may or may appear to impersonate anyone else;
- affect us adversely or reflect negatively on us, our goodwill, name or reputation or cause duress, distress or discomfort to us or anyone else, or discourage any person, firm or enterprise from using all or any portion, features or functions of the Service, or from advertising, linking or becoming a supplier to us in connection with the Service;
- use cheats, exploits, automation software, bots, hacks, mods or any unauthorized third party software designed to modify or interfere with the Service or any ClutchPlay game experience;
- exploit, distribute or publicly inform other members of any game error, miscue or bug which gives an unintended advantage;
- send or result in the transmission of junk e-mail, chain letters, duplicative or unsolicited messages, surveys, contests, pyramid scheme, or so-called “spamming” and “phishing”;
- unless approved by us, be used for commercial or business purposes, including, without limitation, advertising, marketing or offering goods or services, whether or not for financial or any other form of compensation or through linking with any other website or web pages;
- transmit, distribute or upload programs or material that contain malicious code, such as viruses, timebombs, cancelbots, worms, trojan horses, spyware, or other potentially harmful programs or other material or information;
- create a false identity for the purpose of misleading others or forge any TCP/IP packet header or part of the header information in any email or newsgroup posting for any reason;
- contact anyone who has asked not to be contacted; “stalk” or otherwise harass anyone;
- violate any laws, regulations (including, without limitation, laws regarding the transmission of technical data or software exported from the United States), judicial or governmental order or any treaties, or violate or infringe upon any intellectual property rights, rights of publicity or privacy or any other rights of ours or of any other person, firm or enterprise;
- gain unauthorized access to the Service, other users’ accounts, names, passwords, personally identifiable information or other computers, websites or pages, connected or linked to the Service;
- modify, disrupt, impair, alter or interfere with the use, features, functions, operation or maintenance of the Service or the rights of use and enjoyment of the Service by any other person, firm or enterprise; or
- use the Service in any manner which violates or is inconsistent with the terms and conditions of this Agreement.
8. TERMINATION
If you created an account with us directly (not through an SNS), you may cancel the Service and close your account at any time. If you access the Service through an SNS, you may cancel the Service by removing the relevant Service application (such as the Little Chomp application) from your SNS account.
ClutchPlay may cancel your account and your access to the Service (or, at ClutchPlay’s sole option, applicable portions of the Service) at any time and for any reason. ClutchPlay is not required to provide you with any notice or warning prior to any such termination.
You may, as the result of cancellation, lose your account and all information and data associated therewith, including without limitation, your Virtual Currency, Virtual Items and achievements, as applicable, and ClutchPlay is under no obligation to compensate you for any such loss.
9. USER DISPUTES
You are solely responsible for your interaction with other users of the Service and other parties that you come in contact with through the Service. ClutchPlay hereby disclaims any and all liability to you or any third party relating to your use of the Service. ClutchPlay reserves the right, but has no obligation, to manage disputes between you and other users of the Service
10. USER FEEDBACK
In general, ClutchPlay does not accept, via the Service or otherwise, unsolicited submissions including, without limitation, submissions of game ideas, characters, drawings, information, suggestions, proposals, ideas or concepts (collectively, “User Feedback”). Therefore, any similarity between an unsolicited submission and any elements in a ClutchPlay creative work or Service would be purely coincidental. However, on occasion, we may request feedback from our users in the form of a survey or similar submission. Any and all User Feedback provided by you to ClutchPlay, whether solicited or not, and all rights contained therein, will become the sole property of ClutchPlay and may be used, copied, sublicensed, adapted, transmitted, distributed, publicly performed, published, displayed or deleted as ClutchPlay sees fit. You agree that you are not entitled to any compensation, credit or notice whatsoever in connection with your User Feedback or ClutchPlay’s use thereof.
11. LINKS AND THIRD PARTY ADVERTISING
The Service may contain links to third-party websites or resources. You acknowledge and agree that we are not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by ClutchPlay of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
From time to time, during your use of the Service, you may communicate with, receive communications from, be re-directed to, interact with, or participate in or use the services or obtain goods and services of or from, third parties such as our advertisers, sponsors, or promotional partners (collectively, the “Advertisers”). All such communication, interaction and participation is between you and such Advertisers and we shall not be responsible or liable to you in any way in connection with these activities or transactions (including, without limitation, any representations, warranties, covenants, contracts or other terms or conditions that may exist between you and the Advertiser or any goods or services you may purchase or obtain from any Advertiser).
12. CONTESTS, SWEEPSTAKES AND PROMOTIONS
From time to time, ClutchPlay, its affiliates, suppliers, and Advertisers, may conduct promotions on or through the Service, including, without limitation, auctions, contests and sweepstakes, which may be subject to Additional Terms and/or Rules.
13. DISCLAIMER OF WARRANTY
Your access to and use of the Services or any Content is at your own risk. You understand and agree that the Service is provided to you on an “AS IS” and “AS AVAILABLE” basis. Without limiting the foregoing, CLUTCHPLAY AND ITS PARTNERS DISCLAIM ANY WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. We make no warranty and disclaim all responsibility and liability for the completeness, accuracy, availability, timeliness, security or reliability of the Service or any content thereon. ClutchPlay will not be responsible or liable for any harm to your computer system, loss of data, or other harm that results from your access to or use of the Service, or any Content. You also agree that ClutchPlay has no responsibility or liability for the deletion of, or the failure to store or to transmit, any Content and other communications maintained by the Service. We make no warranty that the Service will meet your requirements or be available on an uninterrupted, secure, or error-free basis. No advice or information, whether oral or written, obtained from ClutchPlay or through the Service, will create any warranty not expressly made herein.
You also acknowledge that the time that you spend on the Service, including any dollar amounts or achievements accumulated in our games, is solely for entertainment purposes and that no value can be attributed to such time. Accordingly, please do not contact us requesting payment of your “winnings” as such requests will not be honored.
14. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CLUTCHPLAY AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (i) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICE; (ii) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SERVICE, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (iii) ANY CONTENT OBTAINED FROM THE SERVICE; AND (iv) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR USER CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, WHETHER OR NOT CLUTCHPLAY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
15. INDEMNIFICATION
Upon ClutchPlay’s and/or its licensors’ request, you agree to defend, indemnify and hold harmless ClutchPlay, its licensors and ClutchPlay affiliates, contractors, vendors, and content providers from all liabilities, claims and expenses, including attorneys’ fees, that arise from or relate to a breach of these Agreement for which you are responsible or in connection with your distribution of any User Content on or through the Service. Without limiting the generality of the foregoing, you agree to indemnify and hold ClutchPlay and its licensors harmless for any improper or illegal use of your account, including the illegal or improper use of your account by someone to whom you have given permission to use your account. You agree that you will be personally responsible for your use of Service and for all of your communication and activity on the Service, including any content you contribute, and that you will indemnify and hold harmless ClutchPlay, ClutchPlay’s licensors and ClutchPlay affiliates from any liability or damages arising from your conduct on the Service, including any User Content that you contribute.
ClutchPlay and its licensors reserve the right, at their own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. In that event, you shall have no further obligation to provide indemnification to ClutchPlay and/or its licensors in that matter.
16. EXPORT CONTROLS
Software available in connection with the Services (the “Software”) is further subject to United States export controls. No Software may be downloaded from the Services or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk.
17. GENERAL
(a) This Agreement states your entire agreement with ClutchPlay regarding the use of the Service. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intention of the parties, and the remainder of this Agreement shall remain in full force and effect.
(b) No delay or failure to take action under this Agreement shall constitute any waiver by ClutchPlay of any provision of this Agreement.
(c) This Agreement shall be governed by the laws of the State of Oregon without regard to its conflict of laws rules. You expressly agree that exclusive jurisdiction for any claim or dispute with ClutchPlay or affiliates or relating in any way to your use of the Service resides exclusively in the courts of Illinois, and you further consent and agree to personal jurisdiction by the state and federal courts sitting in the State of Illinois, Cook County, in connection with any such dispute.
(d) Any cause of action by you must be instituted within one year after the claim or cause of action has arisen, or be barred.
(e) Sections 14-16 (warranty, limitation of liability and indemnity provisions) of this Agreement, as well as all obligations and restrictions placed upon you by this Agreement, shall survive termination of the Service.
(f) This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by ClutchPlay without restriction.
18. CONTACTING US
If you have any questions about this Agreement, or the practices of ClutchPlay’s Service, please contact us at feedback@clutchplaygames.com or write to us at:
ClutchPlay Games
815 NE Schuyler St., Box 12164
Portland, OR 97212
United States.
19. BETA TESTERS
In its sole discretion, ClutchPlay may contact you to review and evaluate one or more Services or aspects thereof prior to commercial release for the purpose of improving the Service and identifying program errors. This process is known as a “Beta Test.” If you sign up for and are accepted by ClutchPlay as a beta tester, you agree to the terms of this Agreement and the additional terms in this Section
In connection with the Beta Test, ClutchPlay may provide you, on a temporary basis, access to a pre-release version of the Service (a “Beta Service”). You understand and agree that the Beta Service and all other materials provided to you are confidential or proprietary information of ClutchPlay and subject to the restrictions contained in this Agreement, including without limitation, Sections 2 and 3 of this Agreement. You agree as a condition of participating in a Beta Test to (i) not copy or reproduce the Beta Service, or any portion thereof, including without limitation, making, posting or distributing gameplay videos; (ii) prevent unauthorized access to, reproduction of, disclosure of and/or unauthorized use of, the Beta Service and confidential and proprietary information thereof, and (iii) fully comply with the terms and conditions of this Agreement.
You will carry out the testing personally and not provide access to pre-release versions of the Service to any other person. You agree that breach of the above obligations will cause irreparable harm to ClutchPlay, and ClutchPlay is entitled to (in addition to any other remedies available to it) ex parte injunctive relief without bond to prevent the breach or threatened breach of your obligations. Your obligation to keep the beta Service confidential will continue until ClutchPlay publicly distributes, or has otherwise disclosed to the public through no fault of yours, each of the Services and the content that you are testing.
You may be asked to provide to ClutchPlay (and to ClutchPlay only) certain feedback and suggestions regarding your experiences while reviewing and evaluating the Beta Service. Any and all feedback provided by you to ClutchPlay in connection with the Beta Test program, whether solicited or not, including without limitation, any ideas, suggestions, proposals, code or any other content, and all rights contained therein (collectively, “Beta Feedback”), will become the sole property of ClutchPlay and may be used, copied, sublicensed, adapted, transmitted, distributed, publicly performed, published, displayed or deleted as ClutchPlay sees fit. You agree that you are not entitled to any compensation, credit or notice whatsoever in connection with your Beta Feedback or ClutchPlay’s use thereof.
As a tester, you are invited to play Beta Service for the sole purpose of evaluating the Beta Service and providing us with feedback. The Beta Service is provided for testing on an “as is” and “as available” basis and we make no warranty to you of any kind, express or implied.
When using the Beta Service, you may accumulate experience points, achievements or other value or status indicators. This data may be reset at any time during the testing process, and it may be reset when the particular game completes a testing phase. In this case, all player history and data may be erased.
By starting a beta version of the Service, you agree that: (i) playing the beta Service is at your own risk and you know that the Service may include known or unknown bugs, (ii) ClutchPlay has no obligation to make the Service available for play without charge for any period of time, nor to make them available at all, (iii) the Beta Service may be available only by subscription or other payment method once the Beta Test process is complete or at any time in the future; and (iv) if it is a closed beta test, you will keep all information about the beta games confidential as stated above and not disclose such information to any other person.
Beta Test accounts are non-transferable under any circumstances.