TERMS OF SERVICE AGREEMENT

CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS.

THESE TERMS AND CONDITIONS ARE ACCEPTED BY CLICKING THE “ACCEPT” BUTTON OR OTHER COMPARABLE OPTION, WHERE THE OPTION IS AVAILABLE (“ASSENT”). IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS, YOU MUST CLICK ON THE “REJECT” BUTTON OR OTHER COMPARABLE OPTION, YOU ARE NOT GRANTED A LICENSE IN ACCORDANCE WITH THIS AGREEMENT, AND ANY ACCESS, COPYING OR OTHER USE IS UNAUTHORIZED AND PROHIBITED.

 

This Terms of Service Agreement (“Agreement”) is made and entered into on the date the Assent was made (“Effective Date”) by and between Petroglyph Games, Inc. a Nevada corporation, (“Petroglyph”) and you as the natural person that indicates the Assent (“User”) and you represent and warrant that you are at least eighteen (18) years old or older to form a binding agreement with Petroglyph.

 

In consideration of the covenants, representations, and warranties set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Petroglyph and User (each a “Party” and together the “Parties”) hereby agree as follows:

 

1. Limited License. Subject to the terms and conditions of this Agreement, Petroglyph grants to User a personal, limited, revocable, non-exclusive, non-transferable, non-assignable license, only on and through the website(s) designated and authorized by Petroglyph (each a “Petroglyph Site”) to: (a) access and execute one copy of the executable code of the software enabling the video game titled Rise of ImmortalsSM accompanying this Agreement made generally and commercially available from Petroglyph (“Licensed Software”) through one personal computer or other device; provided, however, that access to and execution of the executable code of the Licensed Software may, in Petroglyph’s sole and absolute discretion, be denied at: (i) certain times reasonably designated by Petroglyph for updates, back-ups and/or maintenance of the Petroglyph Site and/or (ii) other times unexpected and/or outside the reasonable control of Petroglyph including, without limitation, network outages, technical errors, and third Person acts or omissions that prohibit, hinder or otherwise preclude access to and execution of the Licensed Software; and (b) view the content resulting from and enabled by the execution of the Licensed Software and accessible by the User (“Enabled Content”) only for the User’s personal, noncommercial purposes; provided, however, that nothing in this Agreement shall grant a license to disclose, disseminate, transmit, publish, post, make available, or otherwise convey (“Disclose”) such Enabled Content to any third natural person, corporation, general partnership, limited partnership, limited liability partnership, limited liability company, trust, association, organization, or other entity of whatsoever nature or character (“Person”). This Agreement applies to updates, supplements, add-on components, or Internet-based services components, of the Licensed Software that Petroglyph may make generally and commercially available to the User or make available to User after the date User accesses the initial copy of the Licensed Software, unless the foregoing are accompanied by separate terms.

 

2. Services. Subject to the other terms and conditions of this Agreement, Petroglyph, directly or through a third Person expressly authorized by Petroglyph, shall use commercially reasonable efforts to provide User reasonable access to the Licensed Software through a User account (“Services”).

 

3. Payment. User shall pay Petroglyph all fees and charges assessed for the Licensed Software and the respective Services, including, without limitation, all taxes on any transactions set forth herein (“Fees”) and hereby authorizes Petroglyph (or Petroglyph’s designated agent) to charge the Fees to any credit card or electronic payment method approved by Petroglyph. All fees and charges will be automatically assessed against the payment method, and the User will be responsible for any deficiency. In addition to all other rights and remedies available to Petroglyph, if User fails to timely pay any Fees due pursuant to this Agreement: (1) Petroglyph shall have the right to limit, suspend, or terminate the Services and/or terminate this Agreement; and/or (2) collect from User all actual damages, sums, fees, costs and expenses, including, without limitation, all reasonable attorneys’ fees incurred by Petroglyph in connection with or arising from the enforcement of this Agreement.

 

4. Termination. In additional to all other rights and remedies available to Petroglyph, Petroglyph may terminate this Agreement if the User fails to comply with the terms and conditions of this Agreement. Upon termination for any or no reason, User must destroy all copies of the Licensed Software and all of its component parts.

 

5. User Representations. User covenants, represents, and warrants that:

 

a. Petroglyph cannot control the Internet or events or activities of third Persons outside of Petroglyph’s control and Petroglyph shall not be liable for, or be in breach of this Agreement as a result of or related to any unavailability, delay, or malfunction of any Licensed Software associated with, relating to, resulting from, or arising from any cause beyond Petroglyph’s control, including, without limitation, war, insurrection, public enemy, acts of God, terrorist acts, changes in laws, acts or omissions of governmental authorities, labor disputes, strikes, and/or power failures;

 

b. User owns or has the right to Disclose all of the content provided by User (“User Content”) and to the best of User’s knowledge, Petroglyph’s use of the User Content does not infringe or misappropriate the intellectual property of any third Person;

 

c. User has the authority to enter into this Agreement;

 

d. the User is at least eighteen (18) years old and is authorized to enter the Agreement;

 

e. User shall comply with all applicable laws, including, without limitation, privacy, license, firearm, security, decency, and export laws,

 

f. the Licensed Software is subject to U.S. export jurisdiction and User shall comply with all applicable international and national laws that apply to the Licensed Software, including, without limitation, the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by U.S. and other governments;

 

g. User has read and consents to Petroglyph’s Privacy Policy, including, without limitation, that Petroglyph may, in Petroglyph’s sole and absolute discretion, Disclose the User Content to affiliated (by contract, equity, or otherwise) Persons;

 

h. User shall be responsible for all use of the User’s account, including, without limitation, all use of the User log-in information and shall maintain confidentiality for the account name and password and shall immediately notify Petroglyph of any Disclosure and/or unauthorized use of the account and/or password;

 

. Petroglyph owns all right, title and interest in and to the Licensed Software, the Enabled Content, and all other intellectual property developed or acquired by Petroglyph and User shall execute all documents and undertake all actions necessary to effect the clarification of ownership of all such right, title and interest;

 

j. User shall not charge any Person any amount to execute the Licensed Software or view, print, or otherwise use the Enabled Content;

 

k. except as expressly set forth in Section 1, User shall not use any embodiment of Licensed Software or Enabled Content in any media whatsoever, including, without limitation, for any commercial purpose, such as: (A) use at a cyber café, computer gaming center or any other location-based site without express written consent of Petroglyph; (B) for gathering in-game currency, items or resources for sale outside of the Licensed Software; (C) performing in-game services in exchange for payment outside the Licensed Software; (D) host, provide, develop, intercept, emulate, or redirect the communication protocols used by Petroglyph for unauthorized play over the Internet or any other network;

 

l. User shall not Disclose any content on or through the Petroglyph Site containing a virus, bug, Trojan horse, worm, time bomb, cancelbot, corrupted content, security breach, any intrusion from internal or external sources, or other similar content that may damage the operation of the Licensed Software or any Person’s computer or property;

 

m. User shall not utilize framing technology to enclose the Petroglyph Site or any Enabled Content;

 

n. User shall not use any meta tags or other content utilizing Petroglyph’s intellectual property without the express written consent of Petroglyph, such consent granted or denied by Petroglyph, in Petroglyph’s sole and absolute discretion; and

 

o. User shall not, directly or indirectly, copy, make derivative works, disassemble, decompile, or reverse engineer the Licensed Software, including, without limitation: (i) modify or caused to be modified any files that are part of the Licensed Software or Services; or (ii) facilitate, create or maintain any unauthorized connection to the Licensed Software or the Service.

 

6. Retained Rights. Petroglyph may, in Petroglyph’s sole and absolute discretion, modify any and all of the Licensed Software without notice at any time. All licenses not expressly granted to User pursuant to this Agreement are reserved by Petroglyph. All goodwill of Petroglyph’s marks exclusively vests in Petroglyph. Petroglyph retains the right to preclude User’s use of any portion of the Licensed Software that is determined to infringe a third Person’s intellectual property or that is the subject of a prohibition of use by any governmental authority.

 

7. Equitable Relief. User covenants, represents and warrants that any violation of Sections 1, 5, or 11 by User shall cause irreparable injury to Petroglyph and shall entitle Petroglyph to extraordinary and equitable relief by a court, including, but not limited to, temporary restraining orders and preliminary and permanent injunctions, without the necessity of posting bond or security.

 

8. Disclaimer. THE SERVICES AND LICENSED SOFTWARE ARE PROVIDED “AS IS.” PETROGLYPH AND ITS AFFILIATES MAKES NO REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED AND DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS OR REPRESENTATIONS, WHETHER OR NOT IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES, LICENSED SOFTWARE, OR ANY OF THE TRANSACTIONS REASONABLY CONTEMPLATED BY THE PARTIES PURSUANT TO THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NON INFRINGEMENT, COMPLETENESS, ACCURACY, ERROR-FREE, MERCHANTABILITY, FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT A PARTY KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE, IN FACT, AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOMER USAGE IN THE TRADE, BY COURSE OF DEALING, OR BY COURSE OF PERFORMANCE.

 

9. Limitation of Liability. PETROGLYPH AND PETROGLYPH’S AFFILIATES SHALL NOT BE LIABLE TO USER (NOR TO ANY PERSON CLAIMING ANY RIGHT, TITLE OR INTEREST DERIVED FROM OR AS SUCCESSOR TO USER OR ANY USER’S RIGHT, TITLE AND INTEREST): (A) ON ACCOUNT OF OR DUE TO BREACH OF THIS AGREEMENT IN OR FOR AN AMOUNT THAT EXCEEDS THE FEES PURSUANT TO THIS AGREEMENT RECEIVED BY PETROGLYPH FROM USER WITHIN THE PRIOR SIX (6) MONTHS OF TERMINATION OF THIS AGREEMENT OR (B) FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND INCLUDING, WITHOUT LIMITATION, LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR LOSS OF CONTENT ARISING OUT OF THIS AGREEMENT, IRRESPECTIVE OF WHETHER THE PARTIES HAVE ADVANCE NOTICE OF THE POSSIBILITY OF SUCH DAMAGES.

 

10. Indemnification. User shall indemnify and hold Petroglyph and Petroglyph’s affiliates (collectively the “Indemnified Parties” and individually an “Indemnified Party”) harmless from and against any losses incurred by any Indemnified Party with respect to any claim by a third Person that arises out of the: (a) the negligence, intentional act or omission, or gross negligence of the User; or (b) a material breach of this Agreement by the User; provided, however, the User does not settle any such claim without the prior written consent of the Indemnified Parties, and the Indemnified Parties retains the right to appoint its own counsel and control the defense of any such claim.

 

11. Limitation on Assignment. This Agreement is personal to User and User shall not assign or transfer this Agreement, or any right or obligation hereunder, without the prior written consent of Petroglyph (not to be unreasonably withheld), and any assignment or transfer in violation of such restriction shall be void.

 

12. Non-Waiver. Waiver by Petroglyph of any provision of this Agreement shall not be a waiver of, or prejudice to, Petroglyph’s right to require strict performance of the same or any other provision in the future.

 

13. Survival. Sections 3 through 17, inclusive, shall survive termination of this Agreement.

 

14. Amendment. This Agreement shall not be amended or modified except by: (a) Petroglyph providing electronic or written notice of such amendment or modification and such amendment or modifications are accepted and incorporated herein by reference upon Assent or (b) written document signed by both Parties.

 

15. Headings. Section headings are used for convenience only and shall have no interpretive effect or impact whatsoever

 

16. Governing Law/Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Nevada. Both Parties consent to personal jurisdiction, as well as the exclusive venue for any claim regarding or arising out of this Agreement in the state or federal court located in Clark County, Nevada.

 

17. Entire Agreement. This Agreement is the complete and exclusive statement of agreement between the Parties and supersedes all prior and contemporaneous proposals and all other agreements with respect to the subject matter herein. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.