Last Updated: March 25, 2014
THIS SERVICES AGREEMENT, as amended by Es-Gamers.com, its subsidiaries, affiliates, successors and assigns (hereinafter referred to collectively as "Es-Gamers.com", "us", "we" and/or "our"), from time to time (hereinafter referred to as the "Agreement" and/or "Terms and Conditions"), between you ("Customer", "you" and/or "your") and Es-Gamers.com, sets forth the terms and conditions applicable to your purchase and/or use of our products and services (the "Services") as further set forth herein. You and Es-Gamers.com together may be referred to herein as the "Parties" and either alone may be referred to as a "Party".
You acknowledge that you have read, understand and agree to be bound by all of the terms and conditions of this Agreement, as well as all other applicable rules or policies, terms and conditions, or service agreements that are or may be established by Es-Gamers.com from time to time and are incorporated herein by reference. You may also elect to purchase additional Services from Es-Gamers.com, our partners and/or other third parties, which may have their own service agreements or other related terms and conditions, and it is your obligation to review, accept and abide by those agreements as well as this Agreement.
If you order the Services via purchase order or other executable document, you shall be deemed legally bound by this Agreement immediately upon your signing of that document. If you order the Services online, you shall be deemed legally bound by this Agreement immediately upon placing that order. If you order the Services by telephone and do not agree to be legally bound by these Terms and Conditions at that time, you may notify Es-Gamers.com within Twenty-four hours (24) from when Es-Gamers.com sends you a welcome e-mail to your last known contact e-mail address that you desire to cancel the Services and the Services will be cancelled, a refund of any funds already paid to Es-Gamers.com with respect to such order of Services will be issued, and there will be no further obligations by either Party. Failure to notify Es-Gamers.com of this cancellation within the applicable time period shall be deemed to indicate that you have read and understood these Terms and Condition and agree to be legally bound by them. Additionally, it is your responsibility to make sure that Es-Gamers.com has a current and active e-mail address.
Unless otherwise stipulated herein or in the related order process (the "Order Process"), this Agreement shall begin in accordance with the above (the "Effective Date") and shall automatically renew for successive terms or otherwise continue until terminated in accordance with this Agreement. Es-Gamers.com may terminate this Agreement immediately for any or no reason and without notice to Customer. Without limiting the foregoing, Es-Gamers.com reserves the right to suspend or terminate all Services immediately with or without notice to Customer if Es-Gamers.com determines, in its sole discretion, that Customer has failed to comply with its obligations as set forth in this Agreement.
Unless otherwise stipulated in the Order Process, Customer may terminate the Services by contacting Es-Gamers.com, whereby this termination request may be recorded and the Services will terminate as of the end of the current billing period. To effect your termination request, Es-Gamers.com may require you to provide Customer user name, password and a verification or authorization code. Customer will be responsible for all fees incurred up to and including the date of termination and upon termination Customer may receive a final bill reflecting the balance due for any remaining charges and agrees to pay all such fees incurred by Customer. Where applicable, certain Sections of this Agreement will survive termination. In the event of expiration or termination for any reason, the licenses granted under this Agreement shall automatically and immediately cease. Termination shall not affect the rights of Es-Gamers.com to recover from you fees, losses, damages, indemnity, defense costs, expert costs, collection costs and/or attorney's fees or expert witnesses' cost or other costs of any kind owed under this Agreement.
Customer shall pay Es-Gamers.com for all Services ordered and/or provided. Depending on the method of sale, Es-Gamers.com shall provide Customer with Services at the prices designated in the Order Process, subject to change in accordance with this Agreement. If Customer exceeds stated limits for any part of the Services or if Customer requires additional Services, additional fees will apply based on Es-Gamers.com's posted rates, also subject to change in accordance with this Agreement. Unless otherwise stated, all fees are quoted in U.S. Dollars and exclude all applicable sales, use, and other taxes and government charges, whether federal, state or foreign, and you will be responsible for payment of all such taxes (other than taxes based on Es-Gamers.com's income), fees, duties, and charges, and any related penalties and interest, arising from the payment of any and all fees under this Agreement.
Unless otherwise stipulated in the Order Process, payment for Services will be made via a charge to the Customer's credit card, charge card, Paypal or bank account (the "Account") upon ordering of the Services. By submitting an order for processing, Customer authorizes Es-Gamers.com to charge the order to the Account or to otherwise immediately bill Customer for the Services. Customer acknowledges and agrees that all annual, monthly or other recurring fees referenced in the Agreement or otherwise related to the Services are to be recurring transactions billed on an ongoing basis until the Services are terminated in accordance with this Agreement. If Customer has provided billing information sufficient for automatic billing, Es-Gamers.com will bill customer automatically in accordance with the applicable billing frequency. Customer is obligated to pay for the full amount of the Agreement, even if such full amount is scheduled to be paid in installments. If Customer elects to pay for the Services in installments, all installments must be received on or before the applicable due date.
Without limiting any of Es-Gamers.com's rights hereunder, should any fee payment become delinquent, Es-Gamers.com may suspend or cancel the Services; however charges will continue to accrue in accordance with the Term of this Agreement and price of Services. Es-Gamers.com may bill an additional charge to reinstate a suspended Customer account. Client acknowledges and agrees that Es-Gamers.com is not responsible whatsoever for any effect the suspension of Services might have on the Services or the results or effectiveness thereof. If Es-Gamers.com provides any Service discount to Customer and Customer defaults on its payments or obligations as outlined herein, Es-Gamers.com may rescind all discounts and require full payment for the Services. Es-Gamers.com reserves the right to refer any amounts owed hereunder to a third party for collection in the event of ongoing default.
On any amounts not paid when due, Customer agrees to pay interest at the rate of 1.5% per month (18% per year) or, if such rate is in excess of the rate allowed by law, then Customer agrees to pay the highest rate allowed by law. In addition, Customer agrees to pay all costs of collection, including costs of litigation and reasonable attorneys' fees. Customer agrees to execute financing statements and other instruments at Es-Gamers.com's request. A $20.00 (Twenty U.S. Dollars) collection fee will be charged for all dishonored checks. A $15.00 (Fifteen U.S. Dollars) fee will be assessed for the following reasons: (i) late payment, (ii) payment with insufficient funds, (iii) denied or invalid credit card number, or (iv) the restarting of Services terminated for nonpayment.
CUSTOMER UNDERSTANDS AND AGREES THAT ALL Es-Gamers.com FEES AND CHARGES ARE NONREFUNDABLE AND THAT Es-Gamers.com MAY CHANGE ANY FEE, RATE OR PLAN AT ANY TIME UPON NOTICE TO CUSTOMER IN ACCORDANCE WITH SECTION 19 (NOTICE) OF THIS AGREEMENT.
If Client pays for the Services by credit card or charge card, Client permanently and irrevocably waives any and all right to enact a ‘chargeback' (that is, a disputed, reversed or contested charge with the applicable bank, credit card or charge card) against these payments for any reason whatsoever against Es-Gamers.com.
Customer shall be responsible for the following (whereby failure to adhere to these responsibilities shall constitute a material breach of this Agreement):
Depending on the Services you elect to receive, you may also be responsible for establishing and maintaining a commercial relationship with a financial institution or money transmitter such as a credit card processor, bank or PayPal. The terms of any such relationship shall be between you and that entity and such terms may be more restrictive or place limits on your use of the Services and as such you should contact those entities for more information regarding such terms where applicable.
Customer hereby represents and warrants as follows:
Customer further represents and warrants that they will not provide or use any Content or other materials or use the Services or the Website in a manner deemed to be any of the following:
For all domain names or uniform resource locators used by Customer in conjunction with the Services (collectively the "URL's"), Customer represents and warrants that any name or word submitted to be used as all or part of a domain name or URL does not infringe any trademark or domain name rights of any third party. Moreover, Customer further represents and warrants that it has a present good faith intention to use any domain name or URL it requests in connection with the Services and that it is not merely "cybersquatting" (i.e., obtaining the a domain name merely to attempt to sell the rights to the domain name or subdomain to some third party).
Customer further represents and warrants that Customer will use the Services in complete accordance with Es-Gamers.com's Acceptable Use Policy. Customer also represents and warrants that Customer shall not use the Services in a manner that interferes with or disrupts other network users, services, or equipment. Without limiting any of its other rights set forth herein, Es-Gamers.com reserves the right to terminate or suspend any and all Services without notice if any such interference is determined by Es-Gamers.com to exist. Such interference or disruption includes, but is not limited to:
Without limiting other remedies or any of its other rights set forth herein, Es-Gamers.com reserves the right to revoke any and all licenses granted hereunder, revoke access to the Services, or to otherwise limit, deny, terminate, or suspend, in whole or in part, any and all Services without notice if (i) Customer fails to pay any fees owed under this Agreement when due, or (ii) in Es-Gamers.com's sole discretion, the Services are used, or to be used, in a manner that is improper, illegal, in contravention of any of the representations or warranties made by Customer herein, or would otherwise amount to a breach of this Agreement or the documents it incorporates by reference. In the event of such termination or suspension, Customer agrees that the unused portion of any fees Customer may have paid for Services are an appropriate recompense to Es-Gamers.com for the time required to respond to and address issues created by Customer's illegal or improper actions, and Customer agrees not to seek recovery of those fees, however Customer acknowledges and agrees that this will not constitute a waiver by Es-Gamers.com of any other available remedies nor will it be considered satisfaction of the matter or any related claims that Es-Gamers.com may have against Customer.
Es-Gamers.com further reserves the right to reject, alter, modify, or remove the Website, Website domain name, URL, or any Content (including, but not limited to, any language, words, text, photographs, designs, drawings, graphics, images, symbols, or logos) which Es-Gamers.com deems, in its sole discretion, to be improper, illegal, in contravention of any of the representations or warranties made by Customer herein, or otherwise in breach of this Agreement, and where necessary Es-Gamers.com will also actively assist and cooperate with law enforcement agencies and government authorities in collecting and tendering information about Customer as well as any Services, Websites, domain names, URL's, Content and those persons that may have accessed any of the foregoing. Notwithstanding the foregoing, Customer acknowledges and agrees that Es-Gamers.com shall have no obligation to review any Content.
Es-Gamers.com further reserves the right to modify the Services, at its sole discretion, either temporarily or permanently, at any time or from time to time, with or without prior notice to you. Without limiting the foregoing, Es-Gamers.com may provide notice to you in accordance with Section 18 below regarding any such modification of the Services. You agree that Es-Gamers.com shall not be liable to you or any third party for any such modification of the Services.
For any Services involving a domain name or Website, for any such domain name or pages of the Website that do not resolve on the Internet, Es-Gamers.com reserves the right to point and/or redirect the domain name and/or pages to a page that may be modified at any time by Es-Gamers.com without prior notice to you and that may include such things as, without limitation (i) links to additional products and services offered by Es-Gamers.com, (ii) advertisements for products and services offered by third-parties, and/or (iii) an Internet search engine interface. If you do not wish to have the related domain name and/or web pages point to such a page, please provide notice to Es-Gamers.com in accordance with this Agreement (i.e., “opt out”).
You also acknowledge and agree that Es-Gamers.com reserves the right to use your domain name and Website screen shots in Es-Gamers.com’s portfolio and/or other advertising and promotional materials.
Unless otherwise expressly stated herein, you will be solely responsible for the development, maintenance and operation of the Website, including the accepting, processing and filing customer orders generated through the Website, and handling any customer inquiries, complaints, or disputes arising from orders or sales generated through the Website. You agree that Es-Gamers.com has no obligation to back-up any data related to the Website's operations and you should independently take appropriate steps to maintain such data in accordance with your needs and requirements.
You will be solely responsible for creating, managing, editing, reviewing, deleting and otherwise controlling the Content on the Website, regardless of whether Es-Gamers.com provides any design or customization Services to you under this Agreement, including all descriptions of the products and services you offer to customers of your Website and user-generated content on and related to your Website. When acting as a conduit, Es-Gamers.com will give you discretion over your Content provided it is compatible and interoperable with any Services or Es-Gamers.com software provided under this Agreement ("Software"). You retain all rights, title and interest in and to all intellectual property rights embodied in the Content, exclusive of any Content provided by Es-Gamers.com.
You acknowledge that, when providing you with the ability to publish and distribute your own or third party products, services or Content on the Website, Es-Gamers.com and its Software are acting only as passive conduits for the publishing and/or distribution of such products, services or Content. Es-Gamers.com has no obligation to you or any third party, and undertakes no responsibility, to review the Website, the products or services listed therein or any other Content, including but not limited to user-generated Content, published and/or distributed on the Website to determine whether any such product, service or content may incur liability to third parties.
Except as otherwise stated in the Agreement, Customer is to be considered the owner of all Customer Content. During the period that Es-Gamers.com provides Services to you pursuant to this Agreement, you hereby grant to Es-Gamers.com and its subcontractors a limited, non-exclusive, royalty-free, worldwide license to copy, reproduce, distribute, transmit, display, perform, create derivative works from, modify, and otherwise use and exploit the Website and the Content solely for the purpose of rendering the Services hereunder. You also acknowledge and agree that Es-Gamers.com reserves the right to use your domain name and Website screen shots in Es-Gamers.com’s portfolio and/or other advertising and promotional materials as provided for above.
In the event that Customer posts Content or allows its users to upload Content onto a Website, Customer agrees to designate a copyright agent under the Digital Millennium Copyright Act ("DMCA") (see 17 U.S.C 512(c)(3) for further detail). In the event that a copyright holder contacts Es-Gamers.com's copyright agent under the DMCA, Customer acknowledges and agrees that Es-Gamers.com may take all necessary action as required under the DMCA in its sole discretion, including removing Content from Customer's website.
Except as expressly allowed under this Agreement, you will not, either directly or through a third party, transfer your interest in and to the Website to any third party without the express written consent of Es-Gamers.com.
The Services may contain clipart and photo images (collectively, the "Images") and as such Es-Gamers.com may provide the Images to you in the process of providing the Services. The Images are either owned by Es-Gamers.com or licensed from a third party. Unless otherwise stipulated by Es-Gamers.com, your use of the Images is subject to the restrictions set forth in this Section and otherwise in accordance with this Agreement.
Provided Customer is not in breach of this Agreement or any of the representations and warranties contained herein, and provided Customer pays the applicable fees, Customer may do the following subject to the restrictions set forth in this Section (upon termination of the Services or this Agreement all Customer rights and licenses in and to the Images shall immediately terminate):
Customer may not:
YOU AGKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK, AND THAT EXCEPT AS EXPRESSLY PROVIDED HEREIN THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. Es-Gamers.com EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. FURTHERMORE, Es-Gamers.com DOES NOT WARRANT THAT THE SERVICES AND/OR ANY INFORMATION OBTAINED THEREBY SHALL BE COMPLETE, ACCURATE, UNINTERRUPTED, SECURE OR ERROR FREE. Es-Gamers.com FURTHER MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, NOR DOES Es-Gamers.com MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES.
YOU ACKNOWLEDGE AND AGREE THAT Es-Gamers.com WILL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES, TO YOU OR ANY OTHER PARTY FOR ANY (i) TERMINATION, SUSPENSION, LOSS, OR MODIFICATION OF YOUR SERVICE, (ii) USE OF OR INABILITY TO USE THE SERVICE, (iii) INTERRUPTION OF BUSINESS, (iv) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THIS SITE OR A SERVICE (INCLUDING, WITHOUT LIMITATION, TO WEBSITES ACCESSED BY THE DOMAIN NAME REGISTERED IN YOUR NAME), (v) DATA NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION, (vi) EVENTS BEYOND Es-Gamers.com'S AND ITS SUBCONTRACTORS' REASONABLE CONTROL, (vii) APPLICATION OF ANY APPLICABLE LAW, REGULATION OR Es-Gamers.com POLICY (INCLUDING, WITHOUT LIMITATION, ANY RELEVANT DISPUTE POLICY OR ANY OTHER ICANN OR SIMILAR GOVERNMENTAL OR SUCCESSOR ORGANIZATION ADOPTED POLICIES), (viii) DISBURSEMENT OR NON-DISBURSEMENT OF FUNDS BY PAYMENT PROCESSORS; (ix) TRANSACTIONS CONDUCTED ON A USER WEBSITE, INCLUDING FRAUDULENT TRANSACTIONS; (x) LOSS INCURRED IN CONNECTION WITH YOUR SERVICES, INCLUDING IN CONNECTION WITH E-COMMERCE TRANSACTIONS; (xi) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (xii) STATEMENTS OR CONDUCT OF ANY THIRD PARTY USING YOUR SERVICES, OR (xiii) ANY OTHER MATTER RELATING TO YOUR USE OF THE SERVICES.
ADDITIONALLY, Es-Gamers.com WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS, GOODWILL, DATA, THE COST OF REPLACEMENT GOODS OR SERVICES, BUSINESS INTERRUPTION OR OTHER INTANGIBLE LOSSES), WHETHER FORSEEABLE OR NOT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF Es-Gamers.com HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. THE FOREGOING SHALL APPLY DESPITE ANY NEGLIGENCE, MISCONDUCT, ERRORS OR OMISSIONS BY Es-Gamers.com, INCLUDING WITHOUT LIMITATION, ITS EMPLOYEES, REPRESENTATIVES, AGENTS OR TECHNICAL OPERATIONS.
IN NO EVENT SHALL Es-Gamers.com'S MAXIMUM AGGREGATE LIABILITY EXCEED THE TOTAL AMOUNT PAID BY YOU FOR THE SERVICES, BUT IN NO EVENT SHALL IT BE GREATER THAN FIVE HUNDRED DOLLARS ($500.00), AND YOU ACKNOWLEDGE AND AGREE THAT THIS WILL BE YOUR EXCLUSIVE REMEDY UNDER THIS AGREEMENT AND OTHERWISE IN RELATION TO YOUR USE OF THE SERVICES. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, OUR LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
YOU ALSO ACKNOWLEDGE AND AGREE THAT ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OF OUR SERVICES MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION INITIALLY AROSE OR SUCH CLAIM OR CAUSE OF ACTION SHALL BE PERMANTELY BARRED.
CUSTOMER ACKNOWLEDGES AND AGREES THAT THE LIMITATIONS CONTAINED IN THIS SECTION ARE AN ESSENTIAL ELEMENT OF THIS AGREEMENT, AND ABSENT SUCH LIMITATIONS, Es-Gamers.com WOULD NOT ENTER INTO THIS AGREEMENT OR PROVIDE SERVICES HEREUNDER. EACH PARTY ACKNOWLEDGES THAT IT HAS NOT ENTERED INTO THIS AGREEMENT IN RELIANCE UPON ANY WARRANTY OR REPRESENTATION EXCEPT THOSE SPECIFICALLY SET FORTH HEREIN.
Es-Gamers.com SHALL ALSO HAVE NO LIABILITY FOR ANY CONTENT PROVIDED BY CUSTOMER THAT INFRINGES OR VIOLATES ANY RIGHTS OF THIRD PARTIES, INCLUDING, WITHOUT LIMITATION, RIGHTS OF PUBLICITY, RIGHTS OF PRIVACY, PATENTS, COPYRIGHTS, TRADEMARKS, TRADE SECRETS, AND/OR LICENSES. Es-Gamers.com DISCLAIMS ANY RESPONSIBILITY FOR ANY CONTENT, GOODS, AND SERVICES SOLD BY CUSTOMER OR OTHERWISE AVAILABLE THROUGH THE WEBSITE, OR THE QUALITY OR ACCURACY OF ANY INFORMATION ON THE WEBSITE. Es-Gamers.com WILL NOT ENDORSE, WARRANT, OR GUARANTEE ANY PRODUCT OR SERVICE OFFERED THROUGH THE WEBSITE, AND WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN CUSTOMER AND THIRD-PARTY PURCHASERS OF PRODUCTS OR SERVICES OFFERED THROUGH OR RESULTING FROM THE SERVICES OR USE OF THE WEBSITE, INCLUDING, WITHOUT LIMITATION, ALL SALES OF GOODS OR SERVICES, CREDIT CARD TRANSACTIONS, BANKING OR SECURITIES TRANSACTIONS, OR ANY BUSINESS, SERVICE OR MERCHANDISE AGREEMENTS.
Customer hereby agrees to indemnify, defend, and hold harmless Es-Gamers.com and each of Es-Gamers.com's officers, directors, employees, agents, and affiliates, from and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, suits, judgments, settlements, out-of-pocket costs, expenses and disbursements (including reasonable costs of investigation, and reasonable attorneys, accountants and expert witness fees), of whatsoever kind and nature, that are imposed on or incurred by Es-Gamers.com as a consequence of or in connection with: (i) any breach of this Agreement by Customer, (ii) any breach or violation by Customer of any other Es-Gamers.com term, condition, rule, agreement or policy, (iii) any representation or warranty by Customer that proves to be untrue or inaccurate in any way, (iv) any failure by Customer to perform in accordance with this Agreement, (v) Customer's use of the Services, or (vi) the Website, Content and/or URL's.
Customer agrees to give prompt written notice to Es-Gamers.com upon the receipt of notice of any claim by a third party against Customer which might give rise to a claim against Es-Gamers.com, stating the nature and the basis of such claim and, if ascertainable, the amount thereof.
Neither Party shall be deemed in default hereunder, nor shall it hold the other Party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to earthquake, flood, fire, storm, natural disaster, act of God, war, terrorism, armed conflict, labor strike, lockout, or boycott, provided that the Party relying upon this Section shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided further, that in the event a force majeure event described in this Section extends for a period in excess of thirty (30) days in the aggregate, Es-Gamers.com may immediately terminate this Agreement and shall have no liability therefore.
Any Software provided by Es-Gamers.com and all worldwide intellectual property rights therein are the exclusive property of Es-Gamers.com. All rights in and to the Software not expressly granted to you in this Agreement are reserved by Es-Gamers.com. You acknowledge that the Software and its structure, organization, and source code constitute valuable trade secrets of Es-Gamers.com. Accordingly, except as expressly allowed under this Agreement, you will not, either directly or through a third party, (i) copy, modify, adapt, alter, translate, or create derivative works from the Software; (ii) distribute, sublicense, lease, rent, loan, or otherwise transfer the Software to any third party; or (iii) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Software. In the event of expiration or termination of this Agreement for any reason, the Software licenses granted under this Agreement shall automatically and immediately cease and you shall destroy all copies the Software or related documentation in your possession.
"Background Technology" means computer programming & formatting code or operating instructions developed by or for Es-Gamers.com and used to host or operate a Website or a Web server in connection with a Website. Background Technology includes, but is not limited to, any files necessary to make forms, buttons, checkboxes, and similar functions and underlying technology or components, such as style sheets, animation templates, interface programs that link multimedia and other programs, customized graphics manipulation engines, and menu utilities, whether in database form or dynamically driven. Background Technology does not include any Customer Content or any derivatives, improvements, or modifications of Customer Content. All rights to the Background Technology not expressly granted to Customer hereunder are wholly retained by Es-Gamers.com. Where such Background Technology is provided to Customer hereunder, Customer may not either directly or through a third party, (i) copy, modify, adapt, alter, translate, or create derivative works from the Background Technology; (ii) distribute, sublicense, lease, rent, loan, or otherwise transfer the Background Technology to any third party; or (iii) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Background Technology. In the event of expiration or termination of this Agreement for any reason, the any Background Technology licenses granted under this Agreement shall automatically and immediately cease and you shall destroy all copies the Background Technology or related documentation in your possession.
Certain additional features that Es-Gamers.com may make available to you may require access to and/or installation of additional software (including third party software) that is subject to supplemental or independent terms and conditions ("Additional Software"). Similarly, Es-Gamers.com may make available additional services (including third party services) that are subject to supplemental or independent terms and conditions (the "Additional Services"). You agree that you will not use such Additional Software or Additional Services unless you have agreed to the applicable terms and conditions, including but not limited to your payment of additional fees as required.
Upon your election to use and pay the applicable fees for certain features of the Software or in conjunction with certain Services, Es-Gamers.com may grant to you a non-exclusive, non-transferable, revocable, royalty-free license (without the right to grant sublicenses) to use and reproduce those trademarks expressly provided to you by Es-Gamers.com for use under this Agreement (the "Es-Gamers.com Marks"). The Es-Gamers.com Marks are solely for use in the display on those locations on your Website's web pages as designated by Es-Gamers.com in its sole discretion, and solely in accordance with any Es-Gamers.com Trademarks Use Policy, which is incorporated herein by reference and that Es-Gamers.com may periodically change from time to time. Es-Gamers.com grants you no rights whatsoever in the Es-Gamers.com Marks other than those expressly granted in this Section. You acknowledge Es-Gamers.com's exclusive ownership of the Es-Gamers.com Marks. You agree not to take any action inconsistent with such ownership and you agree not to adopt, use, or attempt to register any trademarks or trade names that are confusingly similar to the Es-Gamers.com Marks or in such a way as to create combination marks with the Es-Gamers.com Marks. At Es-Gamers.com's request, and in its sole discretion, you will immediately discontinue any use and display of the Es-Gamers.com Marks. You acknowledge and agree that, except with respect to the limited trademark license granted in this Section, no licenses are granted by Es-Gamers.com to any other trademarks, service marks, or trade names owned by Es-Gamers.com, its subsidiaries or affiliates.
Customer warrants that Customer is not, nor is Customer acting on behalf of any person or entity that is, prohibited from engaging in transactions with U.S. citizens, nationals or entities under applicable U.S. law and regulation including, but not limited to, regulations issued by the U.S. Office of Foreign Assets Control ("OFAC"). In addition, Customer is not, nor is Customer acting on behalf of any person or entity that is, a Specially Designated National ("SDN"), as OFAC may so designate from time to time. In addition to all other rights and remedies available to Es-Gamers.com under this Agreement, and at law and in equity, Customer's breach of this Section shall result in immediate termination of the Agreement and forfeiture of any and all Services or amounts previously provided, paid and/or owed to Customer under this Agreement.
This Agreement shall be governed by the laws of the United States of America and the State of Connecticut, without regard to conflict of laws principles, as if the Agreement was a contract wholly entered into and wholly performed within the State of Connecticut. Customer agrees that any judicial proceeding relating to or arising out of this Agreement or the Services shall be instituted only in a federal or state court of competent jurisdiction in the State of Connecticut, and Customer consents to the personal jurisdiction of such court and waives the right to challenge the jurisdiction of such court on grounds of lack of personal jurisdiction or forum non conveniens or to otherwise seek a change of venue. Customer also agrees to waive the right to trial by jury in any action that takes place relating to or arising out of this Agreement or the Services.
Any failure by Es-Gamers.com to enforce any of its rights under this Agreement or any applicable laws shall not constitute a waiver of such right. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, Es-Gamers.com will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of Es-Gamers.com as reflected in the original provision. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.
This Agreement, as well as any additional Es-Gamers.com terms and conditions, rules, policies, and service agreements, together with all modifications thereto, constitute the entire agreement between you and Es-Gamers.com concerning your use of the Services and any other subject matter related to this Agreement, and supersedes and governs all prior proposals, agreements or other communications between you and Es-Gamers.com (including, but not limited to, any prior versions of this Agreement). Customer may not waive, modify or supplement this Agreement, in whole or in part, except for written permission or amendment by Es-Gamers.com. Es-Gamers.com reserves the right to unilaterally modify and revise the Agreement from time to time. Such modifications or revisions shall be provided to Customer via the Notice provisions set forth in Section 19 below (Notice), and Customer shall be deemed to have accepted, and to be apprised of and bound by, any such modifications or revisions to the Agreement.
Notice to Customer hereunder shall be deemed effective when (i) sent via e-mail to the last known Customer contact e-mail address; (ii) sent via fax, to the last known Customer fax number; (iii) sent by certified mail, return reciept requested, or by Federal Express or other recognized overnight delivery service to the last known Customer mailing address or (iv) posted on www.Es-Gamers.com/legal and/or any of the applicable pages linked thereto, as updated from time to time.
All mail notices shall be effective upon receipt, email and fax notices shall be effective upon transmission and all Website notices shall be immediately effective upon posting on www.Es-Gamers.com/legal and/or any of the applicable pages linked thereto.
By providing such contact information to Es-Gamers.com, you agree that Es-Gamers.com may use the information you have provided to contact you via email, postal mail, telephone or fax in any format or manner. Es-Gamers.com may, but shall have no obligation to, send a single notice by various means of delivery (i.e., fax, email, certified mail or express mail). In no event shall Es-Gamers.com be liable to you for choosing to send notice to one address, or by one means of delivery, and not others.
Unless otherwise provided for herein or on the Es-Gamers.com Website, notice may be provided by Customer to Es-Gamers.com hereunder by contacting Es-Gamers.com customer service at the phone number listed on the Es-Gamers.com website or otherwise provided to Customer by Es-Gamers.com.
This Agreement does not create any agency, employment, partnership, joint venture, franchise, or other similar or special relationship between you and Es-Gamers.com. Neither Party will have the right or authority to assume or create any obligations or to make any representations, warranties or commitments on behalf of the other Party or its affiliates, whether express or implied, or to bind the other Party or its affiliates in any respect whatsoever.
Customer may not assign or transfer this Agreement or any of its rights or obligations hereunder, without the prior written consent of Es-Gamers.com. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. Es-Gamers.com may assign its rights and obligations under this Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without notice to or consent of the Customer. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
You acknowledge and agree that nothing herein, express or implied, is intended to nor shall be construed to confer upon or give to any person, other than you, any interests, rights, remedies or other benefits conveyed to you herein.
The Section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement. Also, in all references herein to any parties, persons, entities or corporations, the use of any particular gender, or the plural or singular number is intended to include the appropriate gender and number as the text of this Agreement may require.
The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
Customer agrees that during the term of this Agreement Es-Gamers.com may publicly refer to Customer, orally and in writing, as a customer of Es-Gamers.com.
(Updated March 25, 2014)
The purpose of this Policy is to enhance the quality of the Services, and to protect the Company’s customers and the Internet community as a whole, from illegal, irresponsible, or disruptive Internet activities. This Policy applies to visitors to our Website and to each Customer and its employees, agents, contractors or other users who obtain Services from Company on behalf of the Customer (collectively, "Users"). Users should use common sense and good judgment in connection with Website and the Services. Parents or guardians should always supervise minors in using the Internet. Parents and guardians should remain aware at all times of what is on the Internet and how the minors under their care are using the Services and the Internet.
Users may not:
If Company learns of or in its reasonable estimation believes there is a violation of this Policy, Company may, in Company's sole discretion, take one or more of the following actions, with or without notice to Customer:
Company expressly disclaims any obligation to monitor its Customers and other Users with respect to violations of this Policy. Company has no liability or responsibility for the actions of any of its Customers or other Users or any content any User may post on any website.
Company reserves the right to cooperate with appropriate legal authorities in investigations of claims of illegal activity involving Company's Services, Customers and other Users. Company reserves all other rights to respond to violations of this Policy to the extent of applicable law and in accordance with any applicable contractual obligations. Company may utilize technical means to monitor communications into, and out of, its network facilities to prevent the introduction of viruses or other hostile code, to prevent intrusions and otherwise to enforce this Policy and each Customer agrees that Company is authorized to monitor its communications through Company's network for such purposes. Any failure by Company to enforce any of its rights under this Policy or any applicable laws shall not constitute a waiver of such right.
Company reserves the right to suspend or terminate any Customer pursuant to any valid DMCA complaint. Furthermore, Company, in its sole discretion, may suspend or terminate, without notice, any User that Company determines is a repeat infringer.
Es-Gamers.com values your privacy and is dedicated to protecting your personal information and providing you with notice about what personally identifiable information we collect and how it is used, what choices you have regarding the collection, use and distribution of that information, the security procedures we implement to protect that information and what access you may have to correct any inaccuracies in the information we have collected from you.
We receive and store any information you enter on our Websites or give us in any other way, such as via telephone, electronic mail, online or otherwise. For example, this information may be collected when you register a domain name or when you contact us for customer support. Here are the types of information we gather:
Contact Information: We collect and retain personal contact information that you submit to us voluntarily and this includes, but is not limited to, your name, mailing address, web address, telephone number, and e-mail address. For any domain name registrars owned and/or operated by Es-Gamers.com, we are required by the Internet Corporation for Assigned Names and Numbers ("ICANN"), the organization which assumes responsibility for domain name allocation, to collect certain information about you during the domain name registration process and to maintain a copy of such information with a third party escrow service. This information may include your full name, mailing address, phone number, email address, and, where provided, your fax number. Such contact information may be used, for example, to communicate with you when necessary with respect to transactions. Additionally, we may collect contact information provided to us during any correspondence relating to customer support, as well as in connection with products and services offered on our Websites.
Demographic Information: We may collect and store anonymous demographic information (such as your zip code, gender and age), and use this data to tailor your experience on our Websites, provide content that we think you might be interested in, perform general improvements to the Websites, and display the content according to your preferences. Such demographic information may be shared with partners, market researchers and other third parties on an aggregate, non-personally identifiable basis. No personally identifiable information will be linked to such aggregated demographic information that is shared with third parties.
Other Information: We collect and store certain types of information whenever you interact with us. For example, our servers track the type of web browser you are using and the page from which you link. Additionally, we log IP addresses (a unique number assigned to every computer on the Internet) in order to improve security, analyze trends and administer the Websites. We may track your movement within the Websites, the third-party website pages from which you were referred, access times and browser types. We use this information to gauge the effectiveness of our Websites, track information for statistical purposes and to improve the products and services we provide. We collect this information to better develop a sense of what services our customers need and identify areas of improvement to the Websites. We may use such information for marketing purposes, and to send information to you that we believe might be of interest. In addition, such information may be shared with partners, market researchers and other third parties on an aggregate, non-personally identifiable basis. No personally identifiable information will be linked to such aggregated information shared with third parties.
We may supplement the information you provide us by acquiring publicly or commercially available information as available in the public domain or from third parties, for instance, to verify your address or to update your information and to create a profile of your preferences. We tie your personally identifiable information to information in the profile, in order to improve the content of the Websites for you or to inform you about products or services that we think will be of interest to you. In addition, we may obtain non-sensitive contact information from third parties, including via bulk access licenses from other registrars. From time to time, we may also ask you to participate in surveys or other communications conducted by us or third parties designed to help us improve the Websites or the products or services we provide.
Cookies: The Websites may use "cookie" technology for such purposes as enhancing your online experience by making it easier for you to navigate through the Websites and making certain features work better. Cookies are text files which are commonly deposited by websites on a user's hard drive when the user visits a website. The file identifies a user's computer and can record the user's preferences and other data about the user's website visit. We do not extract information about individual users during this process. Your web browser may enable you to disable cookies, but please note that certain services may not function correctly without it and your experience on our Websites may be hindered.
Electronic Mail: From time to time, Es-Gamers.com may use your personal information to contact you by electronic mail concerning our services. These communications are often intended to inform you of important information regarding your account, or about general services provided by Es-Gamers.com and/or its affiliates. If you do not want to receive email from us or our affiliates regarding new services, please click the "unsubscribe" link which is included at the bottom of any email you receive from us. However, in order to fulfill our service obligations to you, we will continue to send you emails regarding your account administration, as well as any necessary information, such as renewal notices and instructions. By providing us with your email address you consent to receiving communications from us electronically and all notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
Third Parties: From time to time we may share personally identifiable information with third parties in order to have them send you special offers and promotions or other information we think you might find of interest. We ourselves will also occasionally send you information on products, services, special deals, promotions, or information which we have found that may be of interest to our users and subscribers. If you do not want us to use the information you provide in order to inform you of products and services we think might interest you, or provide your information to third party companies, it is your obligation to please let us know by contacting Customer Support.
Agents and Service Providers: We engage other companies, individuals, and affiliates of Es-Gamers.com to perform certain functions and/or services to our customers. Examples may include processing credit card payments, providing marketing assistance and removing repetitive information from customer lists, as well as offering electronic mail services and making available digital certificates. Additionally, if you register a domain name through a registrar owned and/or operated by Es-Gamers.com, we may forward certain information you provide to the appropriate registry handling the administration of your chosen domain name. Your contact and financial information may either be collected by or shared with such third parties as necessary, and in some cases, your information may be retained or used by such third parties.
We contract with service providers to provide us with a data collection and reporting services. When you visit our Websites, those service providers may collect information on our behalf about you in order provide us with aggregated data about our customers to assist us in conducting our business and delivering the more relevant products and services to our customers. If you would like to opt-out of the gathering of such information, you can disable your cookies that assist in the gathering of that data, but please note that certain services and functions of our Websites may not function correctly without cookies.
Service Related Uses: We may use your personal information to contact you about the goods or services you have purchased from us, or for other purposes in which you have expressed an interest, for example, if you have contacted customer service or made an inquiry. We will also provide you with service and account related announcements. For instance, if the delivery of a service or product is delayed we might send you an email, or other message, or if there is some service issue with something you might have ordered. Generally, you may not opt-out of these communications, which are not promotional in nature. If you do not wish to receive them, you have the option to cancel your services with us.
Business Transfers: As Es-Gamers.com continues to develop its business, it might sell or transfer all or some of its business or assets, or create a separate business, and customer information generally would be transferred as one of the business assets of the company or be shared or transferred in the event of an insolvency, bankruptcy, receivership, or pledging of assets. Also, information about our users, including customer information, may also need to be disclosed in connection with a commercial transaction seeking financing, investment, support or funding.
Protection of Es-Gamers.com and Others: We may release account and other personal information when we are required to do so by law, court order, subpoena or other government or law enforcement authority or regulatory agency, including ICANN, in order to enforce or apply our Services Agreement or other agreements, or when we believe in good faith that disclosing this information is necessary or advisable, including for example, to protect the rights, property, or safety of Es-Gamers.com, our users, or others. This includes exchanging information with other companies and organizations for fraud protection, credit risk reduction or other similar purposes.
Es-Gamers.com has no control over and is not responsible for the privacy policies or information gathering practices of other websites, including those to which we may link and those which may link to us. We strongly recommend that you review the privacy policies of every online service you use before submitting any personal information and direct any concerns to the site administrator of that website.
You may opt-out of marketing communications from us by contacting Customer Support or opting out from the opt-out link in any marketing email we send to you.
We work to protect the security of your financial information but keep in mind however, that there is no method of transmission over the Internet or method of electronic storage that is 100% secure. Therefore, while we strive to use commercially acceptable means to protect your personal information we cannot guarantee its absolute security. You can further help to ensure your security by taking a few simple precautions. For instance, it is important to protect against unauthorized access to your computer and to any Es-Gamers.com username and password, and to be sure to sign off when you are finished using a shared computer.
Es-Gamers.com gives you the ability to access the information you have provided for the limited purpose of viewing and, in certain cases, updating that information. To view or change this information, Es-Gamers.com customers may contact Customer Support or log in to your online account manager, if applicable. We may retain your information in our files after you terminate all your services with us to resolve disputes, enforce our relevant Service Agreement, and to adhere to the technical and legal requirements and constraints related to the security, integrity and operation of the Websites. Past customers may request this information by emailing or calling Customer Support. Please note, however, that no financial information will be provided over the phone, and in no event will such information be provided without verification.
You must be at least eighteen (18) years old to register online or purchase our goods or services. Es-Gamers.com does not knowingly collect information from children under the age of eighteen (18).
Effective Date: March 25, 2014