END USER LICENSE AGREEMENT
Last Modified on December 15, 2015
PLEASE READ THIS AGREEMENT CAREFULLY; THIS IS A BINDING CONTRACT.
Welcome to Curse! The Curse Application is a software application made available by Curse, Inc. (“Curse”) through various channels including desktop and mobile devices which allows users to, among other things, download add-ons, update add-ons, communicate by voice and instant messaging with other users and receive news (as it may be modified, updated and/or upgraded from time to time and together with any documentation, the “Software”). Curse also maintains a World Wide Web site network, available through www.curse.com (collectively, the “Website”) which operates together with the Software. The Software works in conjunction with the Website to provide you various services (the “Curse Service”).
IT IS IMPORTANT THAT YOU CAREFULLY READ AND UNDERSTAND THIS AGREEMENT. BY CLICKING THE “I AGREE” BUTTON LOCATED AT THE END OF THIS AGREEMENT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL THE TERMS OF THIS AGREEMENT AND DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, PLEASE CLICK THE “CANCEL” BUTTON. IF YOU DO NOT ACCEPT THIS AGREEMENT, THE SOFTWARE WILL NOT BE INSTALLED ON YOUR DEVICE.
Subject to all of the terms and conditions of this Agreement and the Curse Online Agreements, Curse hereby grants you a limited, royalty-free, non-exclusive, personal, non-sublicensable, non-assignable, revocable license to download, install and to use the Software in conjunction with the Website solely for the purpose of using the Curse Service. The Software may only be used in accordance with this Agreement and the Curse Online Agreements and any rules, restrictions or documentation set forth by Curse from time to time.
You may not, nor may you authorize or encourage any third party to, (a) sell, license, sublicense, rent, lease, assign, translate, reverse engineer, reverse compile, reduce to human perceivable form, disassemble the Software or otherwise attempt to derive the source code, underlying ideas, or algorithms of the Software, or in any way ascertain, decipher, or obtain the communications protocols for accessing a Curse service or network; (b) copy, modify, write or create derivative works of the Software except as necessary to execute the Software; (c) use the Software to develop software or services that access the address space of the Software or that intercept the proxy; (d) attempt to gain unauthorized access to any Curse service, account, computer system or network associated with the Software; (e) incorporate, integrate or otherwise include the Software or any portion thereof (including the communications protocols) into any software, program or product that communicates, accesses, or otherwise connects with a Curse service or that interconnects any Curse service with any other instant messaging or other online service; or (f) use any Curse services associated with the Software in any manner that could damage, disable, overburden, or impair such services or interfere with any other party's use and enjoyment of them. The Software may be installed on a noncommercial basis from the copy of the Software that you have been licensed, on additional devices by and for the use of end users who have agreed to the terms of this Agreement, but only if (i) the copy of the Software that you have been licensed is not bundled with or included within separately licensed products on a single medium and (ii) such installation does not violate the terms of other applicable end user agreements or the intellectual property rights of third parties. You may not transmit the Software over a network.
The Software and Curse Service may be incorporated into, and may incorporate, technology, software and services owned and controlled by third parties. Use of such third party software or services is subject to the terms and conditions of the applicable third party license agreements, and you agree to look solely to the applicable third party and not to Curse to enforce any of your rights in relation thereto. All modifications or enhancements to the Software and Curse Service remain the sole property of Curse. You understand that Curse, in its sole discretion, may modify or discontinue or suspend your right to access the Curse Service or use any of the Software at any time, and may at any time suspend or terminate any license hereunder and disable any Software you may already have accessed or installed without prior notice. Curse reserves the right to add or remove features or functions to the Software and/or Curse Service at any time in its sole discretion. When installed on your device, the Software periodically communicates with Curse servers. You acknowledge and agree that Curse has no obligation to make available to you any subsequent versions of its software applications.
The Software and Curse Service contain proprietary and confidential information of Curse, including copyrights which are protected by international copyright laws, trade secrets and trademarks contained in the Software and/or Curse Service. Title to and ownership of the Software, including without limitation all intellectual property rights in and to the Software, are and shall remain the exclusive property of Curse and its licensors, and except for the limited license granted to you by Curse, Curse reserves all right, title and interest in and to the Software. You shall not take any action to jeopardize, limit or interfere with Curse' ownership of and rights with respect to the Software and Curse Service. You acknowledge that any unauthorized copying or unauthorized use of the Software or Curse Service is a violation of this Agreement and is strictly prohibited.
4. YOUR REPRESENTATIONS AND WARRANTIES
You represent and warrant that you: (i) possess the legal right and ability to enter into this Agreement and to comply with its terms, (ii) will use the Software and Curse Service for lawful purposes only and in accordance with this Agreement and all applicable laws, regulations and policies, (iii) will always provide and maintain true, accurate, current and complete information as requested by Curse, (iv) are of a lawful age in your applicable jurisdiction to enter into this Agreement and install and use the Software and Curse Service, and (v) will only use the Software and Curse Service on a computing device on which such use is authorized by the device’s owner or lessee, as applicable.
If Curse has reasonable grounds to suspect that your representations, warranties or promises are inaccurate or breached, Curse may terminate this license, your Account, deny any or all use of the Software and/or Curse Service, and pursue any appropriate legal remedies.
5. WARRANTY DISCLAIMER
To the maximum extent allowed by law, Curse, its licensors and subcontractors do not warrant any connection to, compatibility with, transmission over, nor results or use of, any network connection or facilities provided (or failed to be provided) through the Curse Service. You are responsible for assessing your own computer and transmission network needs, and the results to be obtained there from.
YOUR USE OF THE CURSE SERVICE AND ALL SOFTWARE ACCESSIBLE THROUGH THE CURSE SERVICE IS AT YOUR SOLE RISK. THE CURSE SERVICE AND ALL SOFTWARE ACCESSIBLE THROUGH THE CURSE SERVICE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTY OF ANY KIND.
CURSE, ITS AFFILIATES AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, REPRESENTATIVES AND LICENSORS (COLLECTIVELY, THE "CURSE PARTIES") EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND RELATING TO THE CURSE SERVICE AND ANY SOFTWARE ACCESSIBLE THROUGH THE CURSE SERVICE, WHETHER EXPRESS, IMPLIED, OR STATUTORY INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. IN PARTICULAR, THE CURSE PARTIES DO NOT WARRANT THAT USE OF THE CURSE SERVICE OR ANY SOFTWARE OR CONTENT ACCESSIBLE THROUGH THE CURSE SERVICE WILL MEET YOUR REQUIREMENTS, BE UNINTERRUPTED, SECURE OR ERROR-FREE. THE CURSE PARTIES MAKE NO WARRANTY THAT DEFECTS IN THE SOFTWARE OR CONTENT WILL BE CORRECTED OR THAT THE WEBSITE OR THE SERVER THAT MAKES IT AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU.
YOU ACKNOWLEDGE THAT THE CURSE PARTIES DO NOT CONTROL IN ANY RESPECT ANY INFORMATION, PRODUCTS OR SERVICES OFFERED BY THIRD PARTIES, INCLUDING ADD-ONS, THROUGH THE CURSE SERVICE. THE CURSE PARTIES ARE NOT RESPONSIBLE FOR CONTENT PROVIDED BY THIRD PARTIES (INCLUDING USERS), AND ASSUME NO RESPONSIBILITY FOR AND MAKE NO WARRANTY OR REPRESENTATION AS TO THE ACCURACY, CURRENCY, COMPLETENESS, RELIABILITY OR USEFULNESS OF CONTENT MANAGED WITH THE CURSE SERVICE. THE CURSE PARTIES DO NOT ENDORSE, WARRANT OR GUARANTEE ANY PRODUCT OR SERVICE OFFERED THROUGH OR IN CONNECTION WITH THE CURSE SERVICE BY ANY THIRD PARTY, WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES, AND WILL NOT BEAR ANY RESPONSIBILITY FOR THEIR PRODUCTS, SERVICES, POLICIES OR ACTIONS. USERS USING ANY SUCH PRODUCTS AND SERVICES MAY BE SUBJECT TO ADDITIONAL TERMS AND CONDITIONS RELATING TO THE USE OF SUCH THIRD PARTY CONTENT, SOFTWARE OR SERVICES AND FAILURE TO ABIDE BY THOSE ADDITIONAL TERMS AND CONDITIONS MAY RESULT IN TERMINATION OF USERSHIP.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ANY CURSE PARTY OR THROUGH THE CURSE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN WARRANTIES OR LIABILITY, AND IN SUCH JURISDICTIONS THE CURSE PARTY’S AGGREGATE LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
6. LIABILITY LIMITATION
YOU AGREE THAT THE CURSE PARTIES WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE CURSE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR INABILITY TO USE THE CURSE SERVICE; (II) THE COST OF GETTING SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY PRODUCTS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED THROUGH OR FROM THE CURSE SERVICE; (III) UNAUTHORIZED ACCESS TO, ALTERATION, DELAY, NON-DELIVERY OR MIS-DELIVERY OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANYONE ON OR THROUGH THE CURSE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE CURSE SERVICE, INCLUDING ANY GOODS OR SERVICES OBTAINED THROUGH OR FROM THE CURSE SERVICE. IF, NOTWITHSTANDING THE OTHER PROVISIONS OF THIS AGREEMENT, ANY CURSE PARTY IS FOUND TO BE LIABLE TO YOU FOR ANY DAMAGE OR LOSS WHICH ARISES OUT OF OR IS ANY WAY CONNECTED TO YOUR USE OF THE CURSE SERVICE, LIABILITY OF THE CURSE PARTIES SHALL IN NO EVENT EXCEED THE TOTAL OF ANY SUBSCRIPTION OR SIMILAR FEES WITH RESPECT TO THE CURSE SERVICE OR FEATURE OF THE CURSE SERVICE PAID BY YOU TO CURSE IN THE SIX MONTHS PRIOR TO THE DATE OF THE INITIAL CLAIM MADE AGAINST THE CURSE PARTY. THE CURSE PARTY’S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO USE OF THE SOFTWARE SHALL BE THE REPLACEMENT OF SUCH SOFTWARE WHICH IS FOUND TO BE DEFECTIVE, USING MEDIA CHOSEN BY CURSE.
THE CURSE PARTIES ASSUME NO RESPONSIBILITY FOR ANY DAMAGES SUFFERED BY USER, LOSS OF DATA FROM ERRORS, SYSTEM DOWN TIME, NETWORK OR SYSTEM OUTAGES, FILE CORRUPTION, OR SERVICE INTERRUPTIONS CAUSED BY THE NEGLIGENCE OF ANY CURSE PARTY, OR USER'S OWN ERRORS AND/OR OMISSIONS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN DAMAGES; IN SUCH JURISDICTIONS THE CURSE PARTY’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
You agree to defend, indemnify and hold harmless the Curse Parties from all losses, liabilities, claims, demands, proceedings, suits, damages or expenses, including reasonable attorney's fees, (i) arising from breach of this Agreement by or through your Account, or (ii) asserted by any third party due to or arising from or in connection with use of or conduct through your Account on the Curse Service, including your use of the Software. Curse reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you hereunder, which shall not excuse your indemnity obligations.
8. COLLECTION OF INFORMATION
Curse may collect, use, store and transmit technical and related information regarding your computer device, including without limitation your Internet Protocol address, operating system, application software and peripheral hardware, that may be gathered periodically to facilitate the provision of software updates, dynamically served content, product support and other services to you. Curse may also use this information in the aggregate and, in a form which does not personally identify you, to improve our products and services.
Curse may change this Agreement at any time and the changes will become effective 15 days after posting the revised Agreement (the "Effective Date"). You can review the most current version of this Agreement at any time at http://www.curse.com/client-eula. You are responsible for checking periodically for changes and your continued use of the Curse Service after the Effective Date indicates your acceptance of such new version of the Agreement.
10. TERM AND TERMINATION
This Agreement is effective from the date you receive the Software and remains in force (subject to any modifications to this Agreement by Curse) until terminated pursuant to this Section 10. You may terminate the license under this Agreement at any time by destroying all tangible embodiments or copies of the Software in your possession, including all backup copies and all related materials. Your license rights hereunder will automatically terminate without notice if you fail to comply with any provision herein. Upon termination, you must destroy all tangible embodiments or copies of the Software in your possession, including, without limitation, delete all copies of the Software on your computer. Despite termination or expiration of this Agreement, Sections 2, 3, 4, 5, 6, 7, 10, 11, 12 and 13 shall survive such termination. Termination shall be in addition to any rights and remedies available to Curse at law or equity or under this Agreement.
11. EXPORT LAW
This Agreement is subject to any laws, regulations, orders or other restrictions on the export from the United States of the Software or of information about the Software that may be imposed from time to time by the U.S. government. Notwithstanding anything contained in this Agreement to the contrary, you may not export or reexport, directly or indirectly, any Software or information pertaining thereto to any country for which an export license or other governmental approval is required at the time of export or reexport without first obtaining such license or approval.
12. U.S. GOVERNMENT RESTRICTED RIGHTS
To the extent applicable, the U.S. Government shall only have those rights to use the Software as expressly stated and expressly limited and restricted in this Agreement, as provided in 48. C.F.R. §§ 227.7202-1 through 227.7204. The Software and all accompanying written materials are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in Restricted Rights in Technical Data and Computer Clause at FAR 52.227-7013(c)(1)(ii) or FAR 52.227-19. Contractor/manufacturer is Curse Inc., 417 Montgomery Street, Suite 500, San Francisco, CA 94104.
13. BINDING ARBITRATION
You and Curse agree that, except as provided below, all disputes, controversies and claims related to this Agreement (each a “Claim”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in this Agreement. In the event of a conflict between the terms set forth herein and the JAMS Rules, the terms herein will control and prevail.
Except as otherwise set forth below, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and Curse will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in this Agreement, (a) you and Curse may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (b) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND CURSE WAIVE THE RIGHT TO SUE IN COURT.
Location. The arbitration will take place in San Francisco, California, unless the parties agree to video, phone and/or internet connection appearances.
Limitations. You and Curse agree that any arbitration shall be limited to the Claim between Curse and you individually. YOU AND CURSE AGREE THAT (a) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (b) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY; AND (c) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
Exceptions to Arbitration. You and Curse agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: any Claim seeking to enforce or protect, or concerning the validity of, any of your or Curse’s intellectual property rights. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
Arbitration Fees. If you initiate arbitration for a Claim, you will need to pay the JAMS arbitration initiation fee. If we are initiating arbitration for a Claim, we will pay all costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.
Severability. You and Curse agree that if any portion this Arbitration section is found illegal or unenforceable (except any portion related to the “Exceptions to Arbitration”), that portion shall be severed and the remainder of this Arbitration section shall be given full force and effect.
This Agreement may only be revised in a writing signed by Curse, or published by Curse through the Service. Curse's rights under this Agreement may not be waived unless Curse agrees to such change in writing. This Agreement and your Account are personal to you and may not be transferred or assigned. This Agreement is governed by U.S. Federal law and the laws of the State of California, U.S.A., without regard to its conflicts of law provisions. You and Curse agree that, except as otherwise provided in Section 13, the state and federal courts located in San Francisco, California will have exclusive jurisdiction of all disputes arising out of or related to this Agreement or your use of the Curse Service and you agree to submit to the personal jurisdiction and venue of these courts. Notwithstanding the foregoing and notwithstanding anything to the contrary in Section 13, either party shall be allowed to apply for equitable remedies (including injunctions) in any jurisdiction. In any action to enforce this Agreement the prevailing party will be entitled to costs and attorneys’ fees. Notices hereunder will be effective only if in writing addressed to the relevant party upon receipt if delivered personally or by overnight mail carrier, or three (3) days after deposit in the U.S. mail, first-class postage prepaid. Any notice to Curse hereunder shall be sent to Curse, Inc., 417 Montgomery Street, Suite 500, San Francisco CA 94104, Attn: VP of Admin.
Curse's performance of this Agreement is subject to existing laws and legal process, and nothing contained in this Agreement is in derogation of our right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Curse Service or information provided to or gathered by Curse with respect to such use. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement shall continue in effect.
This Agreement, together with the Curse Online Agreements, constitutes the entire understanding between you and Curse regarding the Software and the Curse Service. The application to this Agreement of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly excluded. No delay or failure to perform by Curse shall be considered a breach of this Agreement if such default, delay or failure to perform is shown to be due to causes beyond Curse’s reasonable control. Without limiting any other remedy of Curse, Curse shall be entitled to seek specific performance, injunctive relief or other equitable remedies in the event of any failure to perform your obligations hereunder or for your breach of the terms of this Agreement.
YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CONTINUING TO INSTALL THE SOFTWARE, YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS AND GRANT TO CURSE THE RIGHTS SET FORTH HEREIN.