END USER LICENSE AGREEMENT
Last modified: June 19, 2023
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE INSTALLING STORMGATE® (THE “GAME”). IF YOU DO NOT AGREE WITH ALL OF THE TERMS OF THIS AGREEMENT, YOU MAY NOT INSTALL OR OTHERWISE ACCESS THE GAME.
YOU AFFIRM THAT YOU ARE AN ADULT OF LEGAL AGE AS DEFINED BY THE LAWS OF THE JURISDICTION IN WHICH YOU RESIDE. IF YOU ARE NOT AN ADULT, YOU MAY NOT INSTALL OR PLAY THE GAME WITHOUT PARENTAL CONSENT.
ATTENTION PARENTS: Users must be the legal age of majority where they live to accept this Agreement. If you’re the parent or guardian of a child who doesn’t meet this age requirement, you need to accept this Agreement. If you accept this Agreement as the parent or guardian of a child, you confirm you’re the child’s parent or legal guardian, you agree to supervise and be fully responsible for your own and your child’s use of the Game, and you agree to accept financial responsibility for all transactions made while using the Game, whether or not you authorized them.
This End User License Agreement (“Agreement”) is a legal agreement between you and Frost Giant Studios, Inc. (“Frost Giant”) a Delaware Corporation headquartered in California. If you have any questions about this agreement, you can reach Frost Giant Studios, Inc. at 150 Progress, Suite #150, Irvine, CA 92618, Attn. Department of Legal & Business Affairs. Email: email@example.com.
THIS AGREEMENT SETS FORTH THE TERMS AND CONDITIONS UNDER WHICH YOU ARE LICENSED TO INSTALL AND USE THE GAME, ITS UPGRADES, UPDATES, COMPONENTS, EDITORS, EXPANSIONS, AND DOWNLOADABLE CONTENT, AND ALL RELATED SERVICES (TOGETHER “THE PRODUCT”). IT ALSO GOVERNS OTHER ASPECTS OF THE RELATIONSHIP BETWEEN YOU AND FROST GIANT AS DESCRIBED BELOW. PLEASE READ THIS LICENSE AGREEMENT CAREFULLY BEFORE INSTALLING OR USING THE GAME. BY CLICKING THE “I AGREE” BUTTON BELOW OR INSTALLING THE GAME SOFTWARE OR PLAYING THE GAME, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND AGREE THAT IT IS ENFORCEABLE AGAINST YOU. IF YOU DO NOT AGREE TO THE TERMS SET FORTH IN THIS AGREEMENT, CLICK ON THE “CANCEL” BUTTON BELOW AND DO NOT COMPLETE INSTALLATION OF THE SOFTWARE.
IMPORTANT NOTICE FOR RESIDENTS IN THE UNITED STATES AND CANADA: THIS AGREEMENT CONTAINS A BINDING, INDIVIDUAL ARBITRATION AND CLASS-ACTION WAIVER PROVISION. THIS MEANS THAT YOU AND FROST GIANT AGREE TO GIVE UP THE RIGHT TO TAKE DISPUTES TO COURT AND TO HAVE THEM DECIDED BY A JUDGE OR JURY, AND TO BRING CLAIMS ON A CLASS BASIS OR PARTICIPATE IN A CLASS ACTION. ARBITRATION IS AN ALTERNATIVE DISPUTE RESOLUTION PROCEDURE THAT CAN RESOLVE DISPUTES MORE QUICKLY AND LESS EXPENSIVELY THAN LITIGATION IN COURT. (SEE SECTION O BELOW FOR FULL DETAILS).
A. PRODUCT ACCESS
- To gain access to the Product and/or Services, you will need an account in good standing with a platform hosting the Product, such as Steam or the Epic Game Store (“Account.”)
- To gain access to the Product prior to its Early Access release, you may also need an access code or game key. For Product licenses purchased at retail (“Founders Pack” or “Collector’s Edition”), the game key will either be included in the packaging materials or sent to you via electronic means.
- You are responsible for the activity on your Account. If you believe your Account has become compromised, you must immediately notify the hosting platform and also notify Frost Giant by emailing firstname.lastname@example.org. Your access to the Product may be suspended or terminated if you or someone else uses the Account to engage in activity that violates this Agreement.
B. PRODUCT ACCESS TERMINATION
- You may terminate or suspend your Account at any time by contacting the hosting platform for the Product.
- Frost Giant may terminate or suspend your access to the Product without notice to you if Frost Giant reasonably determines that:
- You have breached the terms of this Agreement (including the License Limitations and User Conduct Rules and in Sections C(2) and C(3) below);
- Doing so is in the best interests of the Frost Giant community or is required to uphold a third party’s rights;
- Frost Giant has stopped offering the Product in your region (although advance notice of this will be provided to you, where possible);
- You have outstanding payments owing to Frost Giant or Frost Giant must refund someone due to an unauthorized payment made from your Account; or
- You have (or there are reasonable grounds for suspecting that you have) made unauthorized use of someone else’s payment information.
- If your Product access is terminated you will lost all of the Product data and in-game items, whether earned or purchased, associated with your Account. You will not be entitled to any refunds for your purchases and Frost Giant will have no further liability to you.
- If you believe Frost Giant has terminated your Product access in error, your recourse is to follow the dispute resolution procedure set forth below in Section O.
C. LIMITED USE LICENSE
- Scope of License.
THIS PRODUCT IS LICENSED, NOT SOLD, TO YOU UNDER THE TERMS OF THIS AGREEMENT. This Agreement describes the rights available to you; Frost Giant reserves all other rights. You may only use the Product as expressly permitted in this Agreement.Subject to your acceptance of and compliance with the Agreement, Frost Giant hereby grants you a personal, limited, non-exclusive, non-transferable, non-sublicensable, revocable license to the Product, subject to the “License Limitations” and “User Conduct Rules” set forth below, until such time as either you or Frost Giant terminates this License Agreement, as follows:
- You may internally install and execute (1) copy of the Product solely and exclusively for your personal and non-commercial use.
- You must accept an End User License Agreement for the platform hosting the Product prior to your being able to play the Product on the platform, and the terms and conditions of that End User License Agreement are hereby incorporated into this Agreement by reference. In the event of a conflict between the terms between this Agreement and the Platform’s End User License Agreement pertaining to the use of the Product, this Agreement shall supersede and govern your use of the Product.
- The Product may offer third party features, which are managed by third-party providers for which additional terms and/or costs may apply. You must comply with such additional terms: for instance, if the Product features a VoIP application, then you must comply with the associated wireless data service agreement when using the Product. Please review such additional terms and costs carefully.
- License Limitations
You agree that you will not use the Product, or any part of it, in a manner that is inconsistent with the terms of this Agreement. If you commit any breach of this Agreement, your right to use the Product under this Agreement shall automatically and immediately terminate, without notice.Frost Giant may suspend or revoke your license without notice if you violate or collaborate with others to violate the following license limitations:
- Except as may be expressly permitted by Frost Giant, you may not sell, copy, exchange, transfer, publish, assign, rent, lease or lend the Product or otherwise distribute anything you copy or derive from the Product.
- You may not use, or allow others to use, the Product or this License for commercial purposes without first obtaining a license from Frost Giant to do so.
- This includes leasing, renting, sublicensing or exploiting the Product or any of its parts at an Internet café, computer gaming center or any other location-based site.
- This includes any commercial purpose not expressly authorized by Frost Giant, including, but not limited to:
- gathering items or resources for sale outside the Product;
- offering account boosting or power-leveling;
- proffering commercial advertisements or solicitations through the Product;
- organizing, promoting, facilitating or participating in an event involving wagering on the outcome, or any other aspect of, Frost Giant’s Product (whether or not such conduct constitutes gambling under the laws of any applicable jurisdiction) without prior authorization from Frost Giant.
- You may not access, copy, modify or distribute (including via a network server, multi-user arrangement, or remote access arrangement) or display the Product, or publish the Product for others to copy, unless expressly authorized by Frost Giant or permitted by law.
- You may not host, provide or develop matchmaking services for the Product, or intercept, emulate or redirect the communication protocols used by Frost Giant in any way, for any purpose, including without limitation unauthorized play over the internet, network play (except as expressly authorized by Frost Giant), or as part of content aggregation networks.
- You may not reverse engineer or attempt to extract or otherwise derive source code or other data from the Product or modify, adapt, translate, decompile, or disassemble it or make derivative works based on the Product, unless expressly authorized by Frost Giant or permitted by law.
- You may not create data or executable programs which mimic data or functionality in the Product unless such functionality is provided to you in an editor licensed to you by Frost Giant.
- You may not remove, disable or circumvent any security protections, proprietary notices or labels contained on or within the Product, including but not limited to separating the Key Code from the physical materials included with the Product;
- You may not use the Product to infringe or violate the rights of any third party, including but not limited to any intellectual property, publicity, or privacy rights;
- You may not use, export, or re-export the Product in violation of any applicable law or regulation;
- You may not organize, promote or participate in an esports competition for the Product which has not been licensed by Frost Giant.
- User Conduct Rules
Frost Giant may suspend or revoke your license if you behave or collaborate with others to behave in a manner while using the Product which is detrimental to the enjoyment of the Product by other users as intended by Frost Giant, in Frost Giant’s sole judgment. This includes but is not limited to the following behavior:
- You may not harass, stalk or threaten other users while using the Product;
- You may not publicly post personal identifying information about yourself, Frost Giant employees or other players;
- You may not transmit or communicate any material or content which, in the sole discretion of Frost Giant, is deemed offensive, including, but not limited to, language that is harmful, threatening, unlawful, abusive, harassing, defamatory, disparaging, obscene, sexually explicit, or racially, ethically, or otherwise objectionable;
- You may not spam chat, whether for personal or commercial purposes, by disrupting the flow of conversation with repeated postings of a similar nature;
- You may not create, develop, distribute, or use unauthorized hardware or software programs to cheat or gain advantage in any game mode in the Product or to influence gameplay or to mine or scrape system, data or personal information;
- You may not modify the software of the Product or use any unauthorized code and/or software that enables automated control of the Product or gameplay in the Product,
- You may not modify, distort, block, abnormally burden, disrupt, slow down and/or hinder the normal functioning of all or part of the Product, or their accessibility to other users, or the functioning of the partner networks of the Product;
- You may not access or attempt to access areas of the Frost Giant Product that are not made available to the public;
- You may not play on another user’s Account or otherwise engage in activity intended to “boost” an Account’s status or ranking;
- You may not impersonate Frost Giant employees, partners and/or agents or falsely claim to be endorsed by Frost Giant.
- Anti-cheat and Consent to Monitoring
To give users a positive and fair experience, we use software and tools to detect and prevent programs and activities that are used for hacking, account stealing, or other unauthorized or fraudulent activity, or that can give you or other users a competitive advantage within the Game. This includes bots, hacks, add-ons, malware, scripts, and mods not expressly authorized by Frost Giant. By accepting this Agreement, you agree that you will not use or encourage the use of such cheats; engage in or encourage others to engage in cheating or fraud; develop, market, distribute, or support any unauthorized software or tools that allow for cheating or fraud in the Game; or attempt to tamper with, modify, disable, disrupt, or circumvent Frost Giant’s fraud detection tools. You understand that the mere presence of unauthorized cheat software on your device, whether or not you use that unauthorized software while playing the Game, may result in Frost Giant exercising its full rights under this Agreement.
- In order to safeguard its licensing rights, when you are using the Product, Frost Giant may monitor your hardware random access memory (RAM) for unauthorized third party programs prohibited under this Agreement that interact with the Product. In the event that the Product detects such an unauthorized third party program, information may be communicated back to Frost Giant, including the name of your Account, your SteamID, your internet protocol (IP) address, details about the unauthorized third party program detected, and the time and date that the unauthorized third party program was detected, along with the hardware specifications and performance characteristics of your hardware, with or without additional notice to you. If the Product detects the use of an unauthorized third party program, this License and your access to the Product may be terminated with or without additional notice to you.
- Frost Giant shall have the right to monitor and/or record your communications when you use the Product, and you acknowledge and agree that when you use the Product, you have no expectation that your communications will be private. Frost Giant shall have the right to disclose your communications for any reason, including: (a) to satisfy any applicable law, regulation, legal process or governmental request; (b) to enforce the terms of this Agreement or any other Frost Giant policy; (c) to protect Frost Giant’s legal rights and remedies; (d) to protect the health or safety of anyone that Frost Giant believes may be threatened; or (e) to report a crime or other offensive behavior.
- Availability of Service and Updates
From time to time, Frost Giant may update, patch or modify the Product, its content or entitlements, without notice to you. You hereby consent to Frost Giant applying these updates, patches or modifications and accessing the Product residing on your computer for such purpose. These updates, patches and modifications may need to be installed by you in order for you to continue to use the Product.Frost Giant does not guarantee that the Product, or any entitlement, game progress, or game customization will be available at all times, in all locations, or at any given time or that Frost Giant will continue to offer specific content or entitlements, or the Product, for any particular length of time. Frost Giant does not guarantee that the Product can be accessed by means of a specific retail platform, Internet or connection provider, or in all geographic locations.Frost Giant shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of Frost Giant, such as natural disasters, war, terrorism, riots, embargoes, acts of civil or military authorities, acts of God, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.Frost Giant may need to update, or reset certain parameters in the Game to balance gameplay. These updates or “resets” may cause you setbacks within the Game and may affect Product characters, rankings, progression, matches, games, groups or other entitlements associated with your Account.Frost Giant may also take actions against your Account and Product entitlements without notice to you to protect you or Frost Giant, such as preventing unauthorized access, suspending Account access, or deleting data.
D. OWNERSHIP/THIRD PARTY LICENSES
Except as expressly licensed to you in this Agreement, all right, title, and interest in and to the Product and any and all associated copyrights, trademarks and intellectual properties therein and/or related thereto and all copies thereof (including, but not limited to, any patches, updates, copies, derivative works, titles, computer code, themes, objects, characters, character names, stories, themes, dialogs, catch phrases, scenery, locations, costumes, choreographies, concepts, artwork, images, animation, sounds, musical compositions, audio-visual effects, text, data and communications generated by or occurring through the Product, methods of operation, domain names, elements which are part of the Product, individually or in combination, moral rights, “applets” incorporated into the Product and any related documentation) are owned by Frost Giant.
The Product is protected under United States and international copyright laws, treaties and conventions, and United States and common law trademark laws, and other laws. All rights are reserved worldwide.
The Product contains certain materials licensed by Frost Giant from others. A list of credits and notices for such third party materials may be found in the Game interface. Frost Giant and Frost Giant’s licensors may take steps to protect their rights in the event of any violation of this Agreement.
Frost Giant, Frost Giant Studios, and Stormgate, and their respective logos, are trademarks or registered trademarks of Frost Giant Studios 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.
You are responsible for providing, at your own expense, the equipment, Internet connection and charges required to access and use the Product.
E. USER GENERATED CONTENT
You are responsible for your own user generated content (“UGC”). When you contribute UGC, you grant to Frost Giant, its licensors and licensees a non-exclusive, perpetual, transferable, worldwide, sublicensable license to copy, reproduce, fix, modify, adapt, translate, reformat, create derivative works of, add to and delete from, rearrange and transpose, manufacture, publish, distribute, sell, transfer, rent, lease, transmit, publicly display, publicly perform, provide access to, broadcast or otherwise transmit and communicate the UGC, or any portion of it, in any manner or form and in any medium or forum, whether now known or later devised, without notice, payment or attribution of any kind to you or any third party. You also grant to all other users who can access and use your UGC via the Product the right to use, copy, modify, display, perform, create derivative works from, and otherwise communicate and distribute your UGC on or through the relevant Product hosting platform without further notice, attribution or compensation to you.
You may not upload UGC that infringes a third party’s intellectual property rights or that violates the law, this Agreement or a third party’s right of privacy or right of publicity.
Any such contribution by you shall not create any contractual relationship between you and Frost Giant. Except to the extent that any such waiver is prohibited by law, you hereby waive the benefit of any provision of law known as “moral rights” or “droit moral” or any similar law in any country of the world. You represent and warrant that the UGC does not infringe upon the copyright, trademark, patent, trade secret or other intellectual property rights of any third party. You further represent and warrant that you will not use or contribute UGC that is unlawful, tortious, defamatory, obscene, invasive of the privacy of another person, threatening, harassing, abusive, hateful, racist or otherwise objectionable or inappropriate. Frost Giant may, in its sole discretion, remove, edit or disable UGC for any reason, including if Frost Giant reasonably determines that UGC violates this Agreement. Frost Giant does not assume any responsibility or liability for UGC, for removing it, or for not removing it.
F. COLLECTION OF PERSONAL DATA.
G. EMAIL, MESSAGING AND CHAT
Frost Giant may make email, messaging, or chat (collectively, “Communication Software”) available through the Product, either directly or through a third-party provider. Frost Giant is not responsible for communications made by you or other users via the Communication Software. You agree that communications made by you via the Communication Software are public and not private communications. You acknowledge and agree that personal information that you communicate via the Communication Software may be seen and used by others and may result in widespread distribution of such information. Frost Giant strongly encourages you not to disclose any personal information in your public communications via the Communication Software unless you wish such information to be made permanently available to the public.
H. PLAYTESTING PRE-RELEASE VERSIONS OF THE GAME
Certain pre-release versions of the Game may be made available to you for playtesting (“Alpha or Beta Test”). Your participation in an Alpha or Beta Test will be governed by the following:
- You must have a Steam account in good standing;
- You must register to be a playtester in response to an invitation from Frost Giant and disclose to Frost Giant your name, email, location;
- You must agree during registration to a Non-Disclosure Agreement;
- You must agree that you will download, launch and play a particular build of the Game from Steam when so directed during the Alpha or Beta Test; and
- You must be offered a key by Frost Giant to access the Game and participate in the Alpha or Beta Test.
- During the Alpha or Beta Test, you will have the ability to: (a) download, test, evaluate and analyze the Alpha or Beta Game (b) and provide feedback, analysis, suggestions and comments to Frost Giant by sending feedback and bug reports, emails, and posting on a private forum on the Game’s Discord server (collectively, “Feedback”).
- The Game may also include a tool that will allow your computer system to forward system and driver information to Frost Giant in the event of a crash.
- You agree that Frost Giant may use or otherwise exploit all or part of your Feedback or any derivative thereof in any manner or media now known without any further remuneration, compensation or credit to you;
- You agree that any Feedback which is provided by you hereunder is original work made solely by you and does not infringe any third party intellectual property rights.
- If Frost Giant announces that an Alpha or Beta Test is confidential, then you will be required to agree to a Non-Disclosure Agreement (“NDA”) that establishes confidentiality provisions around the Alpha or Beta Test in order to participate.
- During the confidential Alpha or Beta Test, and pursuant to the terms of the NDA, all elements of the Alpha or Beta Test are to be kept confidential, and you agree to keep everything related to the Alpha or Beta Test secret from anyone who is not participating in the Alpha or Beta Test until Frost Giant informs you that the Alpha or Beta Test is no longer confidential.
- Specifically, you agree that you will not disclose the following:
- Information about the Beta Test, such as your role as a Beta Tester, the length of the Beta Test, or the number of Beta Testers,
- Information about the Game that you are Beta Testing, such as the Game’s look and feel, playable races, combat, communication, monetization systems, units, items, tech trees, armor, weapons, maps, features, modes, playability or stability of the Game, etc.
- Information about Frost Giant’s business plans for the Game, including without limitation, documents, designs, techniques, specifications, Product plans, strategic information, existing or prospective marketing and monetization plans, existing or prospective Product studies or pilot test objectives and/or results.
- You further agree that you will:
- Use Confidential Information only for the purpose of giving Feedback to Frost Giant;
- Not disclose Confidential Information to any third parties (including the sharing of unreleased/concept art or screenshots for the Product);
- Use the same degree of care, but no less than a reasonable degree of care (including reasonable security measures), to prevent the unauthorized use, dissemination or publication of Confidential Information as you would use to protect your own confidential information of like nature.
You acknowledge that:
- The Game which is the object of the Alpha or Beta Test is a work in progress and may contain bugs which may cause loss of data and/or damage to your computer system;
- You have, or will, back-up your hard drive prior to installation of the Beta;
- You have the resources necessary to easily reinstall the operating system for the computer system that you will use to take part in the Alpha or Beta Test as well as to restore any and all data that may be lost;
- Frost Giant Is not liable in any way for the loss of data or damage to the computer system that you use to take part in the Alpha Beta Test, or for interruptions of service, software or hardware failures, loss of data or disruption of service;
- Frost Giant may monitor and record any and all communications, electronic or otherwise, pertaining to the Beta including, without limitation, packets, in-game chat, forum postings, etc.;
- Frost Giant may delete or modify the information stored by the Game during the Alpha or Beta Test for any reason at any time;
- You may not sell, transfer or commercially exploit access to the Game during an Alpha or Beta Test, including the distribution of Beta keys without Frost Giant’s express authorization.
You agree that any breach of this Agreement by you may result in irreparable harm to Frost Giant, for which damages would be an inadequate remedy and therefore, in addition to its rights and remedies otherwise available at law, Frost Giant shall be entitled to seek equitable relief, including injunction, in the event of such breach.
Frost Giant can terminate an Alpha or Beta Test at any time. When Frost Giant terminates an Alpha or Beta Test, you must delete the pre-release version of the Game that was the subject of the Alpha or Beta Test and you may be asked by Frost Giant to remove any elements of the Alpha or Beta from any hard drives on which the pre-release version of the Game that was the subject of the Alpha or Beta Test has been installed. You agree and acknowledge that Frost Giant’s termination of the Alpha or Beta Test shall not be grounds for any refunds of any kind.
- Sections of the Agreement Applicable to Beta Tests.
When participating in an Alpha or Beta Test, the terms of this Section H shall supersede and govern over any other Section of this Agreement which may be in conflict with the terms of this Section H.
I. WARRANTY DISCLAIMER, LIMITATION OF LIABILITY.
YOU EXPRESSLY ACKNOWLEDGE THAT USE OF THE PRODUCT IS AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE PRODUCT IS SUPPLIED ON AN “AS IS” AND “AS AVAILABLE“ BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. FROST GIANT AND FROST GIANT’S LICENSORS, AND ASSOCIATED SERVICE PROVIDERS DO NOT MAKE AND HEREBY DISCLAIM ANY GUARANTEES, CONDITIONS, WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY OR OTHER TERMS INCLUDING AS TO: (A) ITS MERCHANTIBILITY, CURRENTNESS, COMPLETENESS, RELIABILITY OR SECURITY (B) ITS FITNESS FOR A PARTICULAR USE; (C) IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT; (D) ITS MARKET VALUE; OR (E) YOUR SATISFACTION. FROST GIANT DOES NOT WARRANT THAT THE PRODUCT WILL BE UNINTERRUPTED, TIMELY, SECURE, RELIABLE OR ERROR-FREE, THAT THE PRODUCT CAN BE OPERATED WITH OR IS COMPATIBLE WITH OTHER SOFTWARE, OR THAT DEFECTS WILL BE CORRECTED. AS THE USER, YOU ASSUME ALL RESPONSIBILITY AND RISK FOR SELECTING THE PRODUCT TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE PRODUCT.
AT SOME POINT IN THE FUTURE THE PRODUCT MAY GO OUT OF DATE, AND FROST GIANT MAKES NO COMMITMENT TO UPDATE OR CONTINUE TO SUPPORT OR OFFER THE PRODUCT. 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 UNAUTHORISED ACCESS TO, ALTERATION OF, OR USE OF THE PRODUCT, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION. THE USE OF THE PRODUCT OR THE DOWNLOADING OR OTHER ACQUISITION OF ANY MATERIALS THROUGH OR IN CONNECTION WITH PRODUCT IS DONE AT YOUR OWN DISCRETION AND RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITIES.
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, IN NO EVENT WILL FROST GIANT, FROST GIANT’S LICENSORS AND ASSOCIATED SERVICE PROVIDERS BE LIABLE FOR LOSS OR DAMAGE SUFFERED IN CONNECTION WITH THE USE OF THE PRODUCT OR ANY RELATED THIRD PARTY SERVICE. THIS INCLUDES, WITHOUT LIMITATION, (A) ALL LOSSES OF ANY KIND, WHETHER IN TORT (INCLUDING FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), CONTRACT, MISREPRESENTATION (WHETHER INNOCENT OR NEGLIGENT) OR OTHERWISE, (B) DIRECT LOSS; (C) ACCIDENTAL LOSS, (D) INCIDENTAL LOSS, (E) CONSEQUENTIAL LOSS, AND (F) INDIRECT LOSS.
THE FOLLOWING PARAGRAPH APPLIES TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW: NOTWITHSTANDING THE AFOREMENTIONED LIMITATIONS OF LIABILITY, YOUR SOLE REMEDY IN THE EVENT OF A DISPUTE WITH FROST GIANT OR ITS LICENSORS AND ASSOCIATED SERVICE PROVIDERS IS TO CEASE TO USE THE PRODUCT; AND IF APPLICABLE, SEEK DAMAGES FOR YOUR LOSSES. FOR ANY PRODUCT PURCHASED FOR USE ON A COMPATIBLE MOBILE TERMINAL THAT WOULD NOT MEET THE APPLICABLE LEGAL WARRANTIES, FROST GIANT’S LIABILITY IS LIMITED TO THE REFUND (DIRECTLY OR INDIRECTLY THROUGH ITS ASSOCIATED SERVICE PROVIDERS) OF THE PURCHASE PRICE OF THE PRODUCT. IN NO EVENT FROST GIANT, ITS AFFILIATES, LICENSORS, AND ASSOCIATED SERVICE PROVIDERS BE LIABLE FOR DAMAGES IN EXCESS OF ANY AMOUNT YOU HAVE PAID TO FROST GIANT FOR THE PRODUCT DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO THE TIME YOUR CAUSE OF ACTION AROSE.
NOTHING IN THIS SECTION I SHALL AFFECT FROST GIANT’S LIABILITY FOR FRAUD OR FRAUDULENT MISREPRESENTATION, NOR ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
FOR PURPOSES OF THIS SECTION I, FROST GIANT’S LICENSORS AND ASSOCIATED SERVICE PROVIDERS ARE THIRD PARTY BENEFICIARIES TO THE LIMITATIONS OF LIABILITY SPECIFIED HEREIN AND THEY MAY ENFORCE THIS AGREEENT AGAINST YOU.
You are solely responsible for any damage caused to Frost Giant, its licensors, and associated service providers and subcontractors, other users of the product or any other individual or legal entity as a result of your violation of this Agreement.
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, YOU HEREBY AGREE TO DEFEND, INDEMNIFY AND KEEP INDEMNIFIED FROST GIANT AND ITS AFFILIATES, THEIR LICENSORS, ASSOCIATED SERVICE PROVIDERS AND THEIR SUBCONTRACTORS AGAINST ANY CLAIM OR ALLEGED CLAIMS, LIABILITIES, LOSSES DAMAGES AND ALL COSTS (INCLUDING LAWYERS’ FEES), DIRECTLY OR INDIRECTLY ATTRIBUTABLE TO YOUR FAULT AND/OR RESULTING FROM (A) A VIOLATION OF ANY PROVISION OF THIS AGREEMENT OR (B) YOUR USE OR MISUSE OF THE PRODUCT. Frost Giant reserves the right to take sole responsibility, at its own expense, for conducting the defense of any claim for which you agreed to indemnify Frost Giant. The provisions of this Section J shall remain in force after termination of this Agreement.
K. EQUITABLE REMEDIES.
You agree that Frost Giant would be irreparably damaged if the terms of this Agreement were not specifically followed and enforced. In such an event, you agree that Frost Giant shall be entitled, without bond or other security, or proof of damages, to take such action as may be required, including seeking an injunction and other equitable relief, in the event you breach this Agreement; and that the awarding of equitable relief to Frost Giant will not limit its ability to receive remedies that are otherwise available to Frost Giant under applicable laws.
L. TERM AND TERMINATION.
This Agreement is effective the date you download or use the Product, and shall remain in effect as long as you comply with its terms or until it is terminated or superseded by a new Agreement. You and Frost Giant (or its licensors) may terminate this Agreement at any time, for any reason upon written notice. Termination by Frost Giant will be effective upon (a) notice to you or (b) Frost Giant’s termination of your access to the Product on its hosting platform or (c) at the time of Frost Giant’s decision to discontinue offering and/or supporting the Product. This Agreement will terminate automatically if you fail to comply with any of the terms and conditions of this Agreement. Upon termination for any reason, you must immediately uninstall the Product and destroy all copies of the Product in Your possession and any right you may have had to any pre-purchased virtual goods, such as weapons, wearable items, skins, sprays, pets, mounts, etc., are forfeit, and you agree and acknowledge that you are not entitled to any refund for any amounts which were pre-paid by you for the Product or its entitlements on your Account prior to any termination of this Agreement.
M. CHANGES TO THIS END USER LICENSE AGREEMENT OR TO THE PRODUCT.
Frost Giant reserves the right, in its sole and absolute discretion, to revise, update, change, modify, add to, supplement, or delete certain terms of this Agreement for security, legal, best practice or regulatory reasons. Such changes will be effective with or without prior notice to you. You can review the most current version of this Agreement by clicking on the “EULA” link located in launch screen for the Product or on www.playstormgate.com/legal/EULA. You are responsible for checking this Agreement periodically for changes. If any future changes to this Agreement are unacceptable to you, you may terminate this Agreement in accordance with Section L and must immediately uninstall the Product. Your continued use of the Product following any modification to this Agreement constitutes irrevocable acceptance by you of the new Agreement. The sole exception is that any amendments Frost Giant may make to the dispute resolution terms of the agreement will not apply to any dispute that has already commenced at the time of the amendments, unless you wish those amended terms to apply to the resolution of a previously commenced dispute.
Frost Giant may change, modify, suspend, or discontinue the Product for any reason or without any specific reason, at any time and at its entire discretion, in particular for technical reasons such as updates, maintenance operations and/or resets to improve and/or optimize the Product. You agree that the Product may install or download the modifications automatically. You agree that Frost Giant may cease supporting previous versions of the Product upon availability of an updated version and may remove items or modify characteristics of items at any time in order to balance the Game. Frost Giant’s service providers shall have no obligation to furnish any maintenance or customer support with respect to the Product. Frost Giant also reserves the right to amend the User Conduct Rules set out in Section C(3) which places limits on the use of the Product at any time without notice to you.
All notices given by you under this Agreement shall be in writing and addressed to: Frost Giant Studios, Inc. 150 Progress, Suite #150, Irvine, CA 92618, Attn. Department of Legal & Business Affairs.
O. FOR RESIDENTS IN THE UNITED STATES AND CANADA – BINDING ARBITRATION AND CLASS ACTION WAIVER
The informal resolution and binding individual arbitration requirements in this Section O apply to all Disputes between you and Frost Giant. “Dispute” means any dispute, claim or controversy (excluding only those exceptions listed below) between you and Frost Giant, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, for which either party seeks legal recourse. This includes, without limitation, any Dispute pertaining to your use or attempted use of the Product or to anything in this Agreement. Disputes that must be arbitrated also include disputes over the validity, enforceability, or scope of this agreement to arbitrate or any portion of it. In the United States, this agreement to arbitrate is governed by the Federal Arbitration Act (“FAA”). In all jurisdictions where it applies, it will be interpreted as broadly as applicable law permits. An arbitration proceeding has different rules than a lawsuit in a court. For example, arbitration is less formal and usually provides for more limited information sharing between the parties in the process called discovery. After the arbitrator decides the outcome, that decision will be final and you or Frost Giant will generally not be able to change the outcome by appealing it to a court.
The exceptions to this arbitration are: (i) claims that can be brought as individual actions in small-claims court in the jurisdiction where you reside; (ii) pursuit of enforcement actions through a government agency if the law allows; (iii) an action to compel or uphold any prior arbitration decision; (iv) your or Frost Giant’s right to seek injunctive relief in a court of law to preserve the status quo while an arbitration proceeds; (v) claims of intellectual-property infringement (including claims of piracy; or creation, distribution, or promotion of Cheats) or tortious interference; and (vi) the enforceability of the requirement that arbitrations must be conducted on an individual rather than a class basis.
This Section O only applies to Disputes and does not prevent either party from taking unilateral actions they are entitled to take under this Agreement. This means, for example, that you can terminate your access to the Product at any time without following this dispute resolution process. Likewise, Frost Giant may enforce this Agreement through actions like suspending and terminating your Account’s access to the Product at any time, in its sole discretion, without following this dispute resolution process. This freedom to unilaterally act in accordance with the Agreement is important so that Frost Giant can ensure a positive and fair experience for users of the Product by taking immediate action against players engaged in cheating, pirating (selling or trading accounts), or violating others’ rights in their intellectual property. If you believe that Frost Giant has made a mistake, that disagreement is a Dispute that must be resolved using the process set forth in this Section O.
- Informal Resolution
If you have a Dispute against Frost Giant or if Frost Giant has a Dispute against you, you and Frost Giant will attempt to resolve the Dispute informally before an arbitration is filed in order to resolve the Dispute faster and reduce costs for both parties. You and Frost Giant will make a good-faith effort to negotiate the resolution of any Dispute for at least 30 days (“Informal Resolution”) from the day you receive or Frost Giant receives a written notice of a dispute from the other party (a “Notice of Dispute”) in accordance with this Agreement.You will send any Notice of Dispute to email@example.com. Frost Giant will send any Notice of Dispute to your registered email address and to any billing address you have provided us. The Notice of Dispute sent by either party must include the sender’s name, address, and other contact information, a description of the Dispute (including any relevant account names or Steam identifiers), and what resolution to the Dispute is being sought.The Informal Resolution requirement is designed to allow Frost Giant (or you, in the case of a Dispute that Frost Giant asserts against you) to make a fair, fact-based offer of settlement if it chooses to do so. You or Frost Giant cannot proceed to arbitration before the end of the Informal Resolution period. If you or Frost Giant proceed to arbitration without providing a compliant Notice of Dispute and waiting until the conclusion of the Informal Resolution period, a court may enjoin the filing and order the party that has not followed the Informal Resolution process to reimburse the other party for any arbitration fees and costs already incurred. The compliance of a Notice of Dispute with this Agreement, including whether a Notice of Dispute contained all required information, is an issue to be decided by a court.
- Binding Individual Arbitration
You and Frost Giant agree that Disputes will be settled by binding individual arbitration conducted by National Arbitration and Mediation (“NAM”), https://namadr.com, according to the U.S. Federal Arbitration Act (“FAA”) and federal arbitration law and according to NAM’s Comprehensive Dispute Resolution Rules and Procedures in effect at the time the Dispute arises (the “Rules”), as modified by this Agreement.“Arbitration” means that Disputes you have with Frost Giant and Disputes that Frost Giant has with you will be resolved by a neutral arbitrator instead of in a court by a judge or jury.“Individual” means that the arbitrator may award the same remedies to you or Frost Giant as a court could, but only to satisfy your or Frost Giant’s individual claims. To the fullest extent allowed by applicable law, the arbitrator may not award money or other relief for the benefit of any person other than you or Frost Giant as part of the resolution of any Dispute.“Binding” means that both you and Frost Giant will have to live with the arbitrator’s decision, except to the limited extent appeals to a court are permitted under the FAA. As limited by the FAA, this Agreement, and the Rules applicable to the arbitration, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator will have authority to award temporary, interim, or permanent injunctive relief or relief providing for specific performance of this Agreement, but (as provided above) only to the extent necessary to provide relief to a party in arbitration warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction.
- Arbitration Procedure and Location/Venue for Non-Arbitrated Disputes
You or Frost Giant may initiate arbitration of any Disputes not resolved by Informal Resolution by filing a Demand for Arbitration with NAM in accordance with the Rules. (Instructions for filing a Demand for Arbitration with NAM are available on the NAM website or by calling NAM at 800-358-2550, and instructions for filing a Demand for Arbitration with AAA are available on the AAA website or by calling AAA at 800-778-7879.) You will send a copy of any Demand for Arbitration to firstname.lastname@example.org. Frost Giant will send any Demand for Arbitration to the email address and to any billing address you have provided us.The arbitration will be conducted by a single arbitrator. You and Frost Giant both agree that the arbitration will be conducted in the English language and that the arbitrator will be bound by this Agreement.For Disputes in which the claimant seeks less than USD $10,000, the arbitrator will decide the matter solely on the basis of written submissions, without a formal hearing, unless the arbitrator decides that a formal hearing is necessary. For matters in which the claimant seeks USD $10,000 or more, or smaller matters in which the arbitrator determines a hearing to be necessary, hearings shall be conducted by video or telephone, unless the arbitrator determines an in-person hearing to be necessary. If an in-person hearing is required and you reside in the United States, the hearing will take place in Irvine, California, unless the arbitrator determines that this would pose a hardship for the claimant, in which case the in-person hearing may be conducted in the claimant’s state and county of residence. If you reside outside the United States, the site of any in-person hearing will be determined by the applicable Rules.
The arbitrator (not a judge or jury) will resolve the Dispute. Unless you and Frost Giant mutually agree otherwise, any decision or award will include a written statement stating the decision of each claim and the basis for the award, including the arbitrator’s essential factual and legal findings and conclusions.To the fullest extent allowed by applicable law, the arbitrator may only award legal or equitable remedies that are individual to you or Frost Giant to satisfy one of our individual claims (that the arbitrator determines are supported by credible relevant evidence).
An arbitration award, and any judgment confirming it, apply only to that specific case; it cannot be used or offered as precedent in any other case except to enforce the award itself.
Any decision or award may be enforced as a final judgment by any court of competent jurisdiction or, if applicable, application may be made to such court for judicial confirmation of any award and an order of enforcement.
Any Disputes between us that are not subject to arbitration, other than disputes filed in small claims court, may be filed only in the state courts in Orange County, California, or if federal jurisdiction exists, in the United States District Court for the Central District of California, and you consent as part of this Agreement to personal jurisdiction in such courts and to venue such cases exclusively in these courts. Nothing in this paragraph shall be construed as prohibiting either you or Frost Giant from removing a case from state to federal court if removal is allowed under applicable law.
- Consumer Arbitration Fees
The terms of this Consumer Arbitration Fees section only apply to you if you are a Consumer.If you start an arbitration against Frost Giant, you will pay the filing fee required for consumer arbitrations. In some situations, Frost Giant will help you with the fees related to an arbitration you start against Frost Giant. If the Dispute involves a claim of damages of USD $10,000 or less, including any attorneys’ fees and all other relief you are seeking, Frost Giant will pay all of the arbitration costs, including the fees you otherwise would have been required to pay. Even if the Dispute involves a claim of damages of more than USD $10,000, Frost Giant may (but is not obligated to) help you with your fees, if you demonstrate that arbitration costs will be prohibitive compared to litigation costs. For purposes of calculating damages under this paragraph, similar claims brought by multiple claimants represented by the same or coordinated counsel will be aggregated.If Frost Giant starts an arbitration against you, Frost Giant will pay all filing fees and costs, including the fees you otherwise would have been required to pay.Arbitration costs do not include your attorneys’ fees and expenses if you choose to be represented by an attorney. If you choose to be represented by an attorney, you will pay your own attorneys’ fees and costs unless the applicable law provides otherwise.
- Notice and Filing
To the fullest extent permitted by applicable law, you or Frost Giant must start arbitration of a Dispute within two (2) years from when the Dispute first arose. If applicable law requires you or Frost Giant to bring a claim for a Dispute sooner than two years after the Dispute first arose, that shorter deadline applies instead. The failure to begin arbitration regarding a Dispute within the time frames described above in this section shall bar the Dispute, which means that you and Frost Giant will not have the right to assert the Dispute.
- Coordinated Filings
If 25 or more Notices of Disputes are sent that raise similar claims and have the same or coordinated counsel, these will be considered “Coordinated Cases” and will be treated as mass filings or multiple case filings according to the Rules, if and to the extent Coordinated Cases are filed in arbitration as set forth in this Agreement. Frost Giant or you may advise the other of its or your belief that cases are Coordinated Cases, and disputes over whether a case or cases meet the contractual definition of “Coordinated Cases” will be decided by the arbitration provider as an administrative matter. Demands for Arbitration in Coordinated Cases shall only be filed with the arbitration provider as permitted by the bellwether process set forth below. Frost Giant will pay only its share of arbitration fees for Coordinated Cases; the claimants will be responsible for their share of those fees. Applicable statutes of limitations will be tolled for claims asserted in a Coordinated Case from the time a compliant Notice of Dispute has been received by a party until, under the terms of this Agreement, the Coordinated Case may be filed in arbitration or court.Once counsel in the Coordinated Cases has advised Frost Giant that all or substantially all of the Notices of Dispute have been provided, counsel for the parties shall confer in good faith regarding the number of cases that should proceed in arbitration as bellwethers, to allow each side to test the merits of its arguments. If counsel for the parties do not agree on the number of bellwethers, an even number shall be chosen by the arbitration provider as an administrative matter (or, in the arbitration provider’s discretion, by a process arbitrator). Factors that the arbitration provider may consider in making this decision include the complexity of the dispute and differences in facts or applicable laws among various cases. Once the number of bellwethers is fixed, by agreement or by the arbitration provider, each side shall select half that number from among the claimants who have provided compliant Notices of Dispute, and only those chosen cases may be filed with the arbitration provider. The parties acknowledge that resolution of some Coordinated Cases will be delayed by this bellwether process.A single arbitrator shall preside over each Coordinated Case chosen for a bellwether proceeding, and only one Coordinated Case may be assigned to each arbitrator as part of a bellwether process unless the parties agree otherwise.
Once all bellwether trials have concluded (or sooner if the counsel for the claimants and Frost Giant agree), the parties must engage in a single mediation of all remaining Coordinated Cases, with each side paying half the applicable mediation fee. Frost Giant and counsel for the claimants must agree on a mediator within 30 days after the conclusion of the last bellwether trial. If counsel for Frost Giant and claimants cannot agree on a mediator within 30 days, the arbitration provider will appoint a mediator as an administrative matter. Frost Giant and counsel for the claimants will cooperate for the purpose of ensuring that the mediation is scheduled as quickly as practicable after the mediator is appointed.
If the mediation does not yield a global resolution, this arbitration requirement shall no longer apply to Disputes that are the subject of Coordinated Cases for which a compliant Notice of Dispute was received by the other party but that were not resolved in bellwether proceedings. Such Disputes may be filed only in the state courts in Orange County, California, or if federal jurisdiction exists, in the United States District Court for the Central District of California, and you consent as part of this Agreement to venue such cases exclusively in these courts. Nothing in this paragraph shall be construed as prohibiting either you or Frost Giant from removing a case from state to federal court if removal is allowed under applicable law. To the extent you are asserting the same claims as other persons and are represented by common or coordinated counsel, you agree to waive any objection that the joinder of all such persons is impracticable. If a formerly arbitrable Dispute is brought in court, claimants may seek class treatment, but to the fullest extent allowed by applicable law, the classes sought may comprise only the claimants in the Coordinated Cases who provided compliant Notices of Dispute, and any party may contest class certification at any stage of the litigation and on any available basis.A court shall have authority to enforce this bellwether process and may enjoin the filing of lawsuits or arbitration demands not made in compliance with it.
- Continuation in Effect
The dispute resolution process set forth in this Section O survives any termination of this Agreement.
If all or any provision of this Section O is found invalid, unenforceable, or illegal, then you and Frost Giant agree that the provision will be severed, and the rest of this Agreement, including Section O shall remain in effect and be construed as if any severed provision had not been included. The sole exception is that if the prohibition on class arbitrations is found invalid, unenforceable, or illegal, you and Frost Giant agree that this entire Section O will be void and unenforceable and any dispute will be resolved in court subject to the venue and choice of law clauses specified in this Agreement.
- Your 30-Day Right to Opt Out
You have the right to opt out of and not to be bound by the Binding Individual Arbitration provisions set forth in this Section O. To exercise this right, you must send written notice of your decision to the following address: Frost Giant Studios, Inc. 150 Progress, Suite #150, Irvine, CA 92618, Attn. Department of Legal & Business Affairs. Your notice must include your legal name, mailing address, and SteamID, and state that you do not wish to be bound by the arbitration provisions set forth in the Agreement. TO BE EFFECTIVE, THIS NOTICE MUST BE POSTMARKED OR DEPOSITED WITHIN 30 DAYS OF THE DATE ON WHICH YOU FIRST ACCEPTED THIS AGREEMENT UNLESS A LONGER PERIOD IS REQUIRED BY APPLICABLE LAW; OTHERWISE YOU WILL BE BOUND TO ARBITRATE DISPUTES IN ACCORDANCE WITH THIS SECTION O. You are responsible for ensuring that Frost Giant receives your opt-out notice, so you may wish to send it by a means that provides for a delivery receipt. If you opt out of these provisions, Frost Giant also will not be bound by them with respect to Disputes with you.
P. CLASS ACTION WAIVER
To the maximum extent permitted by applicable law, for any case not subject to the requirement to arbitrate (except to the limited extent discussed above for Coordinated Cases), you and Frost Giant will only bring disputes, claims, or controversies between you and Frost Giant in an individual capacity and shall not:
- seek to bring, join, or participate in any class or representative action, collective or class-wide arbitration, or any other action where another individual or entity acts in a representative capacity (like private attorney general actions); or
- consolidate or combine individual proceedings or permit another to do so without the express consent of all parties to these Terms.
- Applicable law for jurisdictions outside the USA and Canada.
Any dispute arising out of or related to this Agreement shall be governed in all respects by the laws of the State of California of the United States of America without regard to conflict of law provisions.
- Export Controls.
The Product is subject to all applicable export restrictions. You must comply with all export and import laws and restrictions and regulations of any United States and foreign agency or authority relating to the Product and Your use of the Product. The Product may not be re-exported, downloaded or otherwise exported to, or installed by a national or resident of, any country to which the United States has embargoed goods, or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders. You represent and warrant that You are not located in, under the control of, or a national or resident of any such country or on any such list.If any court of competent jurisdiction or competent authority finds that any provision of this Agreement is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected. If any invalid, unenforceable or illegal provision of this EULA would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable to reflect Frost Giant’s initial intentions.No failure or delay by Frost Giant (or its licensors) to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy. Waiver of a right or remedy may be considered to have taken place only after signing of a written statement to this effect by Frost Giant or by the User.