Terms of Use - Torchlight

TORCHLIGHT WEBSITE TERMS OF USE

Last Modified on August 17, 2009

PLEASE READ THIS AGREEMENT CAREFULLY; THIS IS A BINDING CONTRACT.

Welcome to the torchlightgame.com website (the “Site”). This Terms of Use (this “ToU”) describes the terms and conditions under which Runic Games, Inc. (“Runic,” “we,” or “us”) provides you access to the Site.

Runic may amend this ToU at any time by posting the amended ToU on the Site, and you agree that you will be bound by any changes to this ToU. For your convenience, the date of last revision is included at the top of this page. Runic may make changes to the Site at any time. You understand that Runic may discontinue or restrict your use of the Site for any reason or no reason with or without notice.

YOUR USE OF THE SITE SIGNIFIES THAT YOU AGREE TO THIS TOU AND CONSTITUTES YOUR BINDING ACCEPTANCE OF THIS TOU, INCLUDING ANY MODIFICATIONS THAT RUNIC MAKES FROM TIME TO TIME.

1. Privacy Policy. By using the Site, you represent that you have read our Privacy Policy. Runic may revise the Privacy Policy at any time, and the new versions will be available on the Site. If at any point you do not agree to any portion of the Privacy Policy, you must immediately stop using the Site.

2. ToU Updates. Runic will revise this ToU as the Site evolves. You must agree to all revisions if you choose to continue using the Site. By using the Site, you agree to the then-current version of this ToU as posted on the Site at http://www.torchlightgame.com/terms-of-use/. If at any point you do not agree to any portion of the then-current version of this ToU, you must immediately stop using the Site.

3. Fansites and Use of Runic Content. In this section, the term “Runic Content,” means Game-related images, graphics and artwork and the term “Runic Marks,” means the trademarks, logos, and service marks of Runic and/or our licensors. Unless otherwise specified on the Site, we grant you a personal, revocable, non-transferable, non-sublicensable, non-exclusive license to reproduce and display any Runic Content and Runic Marks solely on your fansite or fansite pages dedicated to the Game (“Fansite”) solely for noncommercial purposes, provided that you agree to the following:

3.1. Compliance with All Agreements and Policies. You must be in full compliance with the provisions of this ToU and any usage guidelines or policies that may be provided by Runic from time to time (all of which may be modified from time to time in our sole discretion.

3.2. Fansite Restrictions. As the operator of an independent, unaffiliated web site, you will have sole editorial control of the Fansite, except that you represent and warrant to Runic that the Fansite will not post or transmit: (a) any material that is unlawful, harmful, harassing, fraudulent, threatening, abusive, libelous, defamatory, vulgar, obscene, hateful, or racially, ethnically or otherwise objectionable, or infringes our or any third party’s intellectual property or other rights; or (b) any content or information that is derogatory or harmful to the reputation of the Game, Runic, our officers and employees and/or any of our licensors and/or suppliers, in any way.

3.3. Notice Requirements. You must retain all trademark, copyright and other proprietary notices contained in or on the Runic Content or Runic Marks. If you post Runic Content on your Fansite, you must also prominently post the following notices on your Fansite on the same web page(s) as any of the Runic Content: “Torchlight content and materials are trademarks and copyrights of Runic Games, Inc. or its licensors and used with permission. All rights reserved.” You shall not remove or alter any identifying information or copyright or trademark information conveyed in connection with the Runic Content.

3.4. Reservation of Rights. Your ownership in the Fansite excludes (a) Runic Content, Runic Marks and all goodwill relating thereto, and (b) any derivative works based upon or including Runic Content and/or Runic Marks. The Fansite is not a “Joint Work” as that term is defined under United States copyright law (i.e., Title 17, United States Code). You shall not challenge Runic’s ownership of Runic Content or Runic Marks, nor use or adopt any trademarks that might be confusingly similar to Runic Marks.

3.5. Restrictions on Use. Except as expressly authorized by this ToU, you may not (a) download, copy or use any of the Runic Content or Runic Marks; (b) distribute, modify, transmit, publicly display and/or otherwise use Runic Content or Runic Marks; (c) rent, lease, reproduce, modify, translate or create derivative works of Runic Content; or (d) create any derivative works (including without limitation fiction or visual art) from, or in any way exploit, any of the characters or content contained in the Game or on the Site, in each case, without the written consent of Runic. Runic does not consent to the protection of any unauthorized derivative work under any copyright law. The creation and sale of merchandise that uses, references or is based upon the Game, Runic Content and/or Runic Marks is expressly prohibited.

3.6. Termination and Limitation of Liability. We may terminate the limited permission to use the Runic Content and Runic Marks pursuant to this Section 3 at any time for any reason. Under no circumstances will we be liable to you for any direct, indirect, incidental, consequential, special or exemplary damages of any kind in connection with this limited permission. We reserve the right in our sole discretion to expressly refuse this limited permission to any particular Fansite, or to revoke this limited permission at any time without any liability to you whatsoever.

4. User Content.

4.1. Content. “Content” means any communications, images, sounds, and all the material and information that you upload or transmit through the Site, or that other users upload or transmit, including without limitation any forum postings. You understand all Content is the sole responsibility of the person from which such Content originated. This means that you, and not Runic, are entirely responsible for all Content that you upload, post, transmit or otherwise make available through the Site. Runic does not control the Content posted or transmitted through the Site forums and does not guarantee the accuracy, integrity or quality of such Content. You understand that by using the Site, you may be exposed to Content that is offensive, indecent or objectionable and you may be exposing others to Content that others find objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. You acknowledge that you may not rely on any Content submitted to Runic through the Site forums.

4.2. License Grant. You hereby grant to us and our licensors, including without limitation our respective successors and assigns, a non-exclusive, perpetual, irrevocable, sublicensable, transferable, worldwide, paid-up right to reproduce, fix, adapt, modify, translate, reformat, create derivative works from, manufacture, introduce into circulation, publish, distribute, sell, license, sublicense, transfer, rent, lease, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, communicate to the public by telecommunication, display, perform, enter into computer memory, and use and practice such Content as well as all modified and derivative works thereof, without compensation to you. None of the Content will be subject to any obligation, whether of confidentiality, attribution or otherwise, on our part and we will not be liable for any use or disclosure of any Content.

4.3. Content Screening and Disclosure. We do not, and cannot, pre-screen or monitor all Content. You acknowledge and agree that you have no expectation of privacy concerning the submission of any Content. We do not assume any responsibility or liability for Content that is generated by users of the Site. We have the right, but not the obligation, in our sole discretion to edit, refuse to post, or remove any Content. We also reserve the right, at all times and in our sole discretion, to disclose any Content for any reason, including without limitation (a) to satisfy any applicable law, regulation, legal process or governmental request; (b) to enforce the terms of this ToU or any other agreement; (c) to protect our legal rights and remedies; (d) where we feel someone’s health or safety may be threatened; or (e) to report a crime or other offensive behavior.

5. Restrictions and Conditions of Use.

5.1. Use of Site. Runic permits you to view and use a single copy of the Site for your personal, non-commercial use. You agree not to license, create derivative works from, transfer, sell or re-sell any information, content, or services obtained from the Site.

5.2. No Violation of Laws. You agree that you will not violate any applicable law or regulation in connection with your use of the Site. Without limiting the foregoing, you agree that you will not make available through the Site any material or information (including, without limitation, Content) that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy or publicity).

5.3. Misuse of Site. You may not connect to or use the Site in any way not expressly permitted by this ToU. Without limiting the foregoing, you agree that you will not (a) institute, assist, or become involved in any type of attack, including without limitation denial of service attacks upon, or hacking of, the Site or otherwise attempt to disrupt the Site or any other person’s use of the Site; (b) attempt to gain unauthorized access to the Site or the computer systems or networks connected to the Site; (c) obtain or attempt to obtain any information from the Site using any method not expressly permitted by Runic; or (d) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan-horse routing, trap door, time bomb or any other codes, instructions or third-party software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, damage or disassemble the Site.

5.4. No Commercial Uses. You agree that you will not use the Site for any commercial purpose or the benefit of any third party or charge any person, or receive any compensation for, the use of the Site including, without limitation, selling, licensing, or otherwise commercially exploiting “mods” of the Game.

5.5. Restrictions on Content. You may not use the Site to develop, generate, transmit or store information (including, without limitation, Content) that: (a) in the sole and absolute discretion of Runic, is deemed to be offensive; (b) is deemed unlawful, harmful, harassing, fraudulent, threatening, abusive, libelous, defamatory, vulgar, obscene, hateful, sexually explicit, or racially, ethnically or otherwise objectionable, nor may you use a misspelling or an alternative spelling to circumvent these restrictions; (c) consists of advertisements, promotions, solicitations, chain letters, pyramid schemes, investment opportunities or other unsolicited commercial communication; (d) is derogatory or harmful to the reputation of the Site, Runic, or our directors, officers and employees in any way; (e) encourages the violation of any local, state, national, or international laws or regulations; (f) solicits other users’ passwords and/or credit card information; (g) is anti-social, disruptive, or destructive, including, without limitation, “flaming,” “spamming” and “trolling”; (h) carries out any action with a disruptive effect, such as causing forum screens to scroll faster than other users are able to read, or setting up macros with large amounts of text that, when used, can have a disruptive effect on the normal flow of forum postings; (i) contains any user’s personal information, including, but not limited to, such user’s real name, address, phone number or private e-mail address, except that a user may communicate his or her own personal information in a private message directed to a single user; (j) forges headers or otherwise manipulates identifiers in order to disguise the origin of any message (k) in any way obstructs or otherwise interferes with the normal performance of another person’s use of the Site; (l) constitutes harassment or a violation of privacy or threatens other people or groups of people; (m) is harmful to children in any manner; or (n) constitutes phishing, pharming or impersonates any other person, or steals or assumes any person’s identity (whether a real identity or online nickname or alias).

6. Ownership. As between you and Runic and/or its licensors, Runic and/or its licensors own the Site. Runic and its licensors reserve the exclusive right to create derivative works based on the Site. You agree that you will not create any work of authorship or create any derivative works based on the Site or the Game except as expressly permitted by Runic. Any reproduction or redistribution of the Site or the Game not in accordance with this ToU is expressly prohibited by law, and may result in severe civil and criminal penalties.

7. Links.

7.1. Links from the Site. The Site may contain links to websites operated by other parties. Runic provides these links to other websites as a convenience, and use of these sites is at your own risk. The linked sites are not under the control of Runic, and Runic is not responsible for the content available on the other sites. Such links do not imply Runic’s endorsement of information or material on any other site and Runic disclaims all liability with regard to your access to and use of such linked websites.

7.2. Links to the Site. Unless otherwise set forth in a written agreement between you and Runic, you must adhere to Runic’s linking policy as follows: (a) the appearance, position and other aspects of the link may not be such as to damage or dilute the goodwill associated with Runic’s and/or its licensors’ names and trademarks, (b) the appearance, position and other attributes of the link may not create the false appearance that your organization or entity is sponsored by, affiliated with, or associated with Runic, (c) when selected by a user, the link must display the Site on full-screen and not within a “frame” on the linking Site, and (d) Runic reserves the right to revoke its consent to the link at any time and in its sole discretion.

8. Notice for Claims of Copyright Infringement.

If you are a copyright owner or agent thereof and believe that content posted on the Site by a Runic user infringes upon your copyright, please submit notice, pursuant to the Digital Millennium Copyright Act (17 U.S.C. § 512(c)) to our Copyright Agent with the following information:

(a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright;

(b) a description of the copyrighted work that you claim has been infringed;

(d) your address, telephone number, and email address;

(e) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and

(f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

Our Copyright Agent can be reached by mail at Runic Games, Inc., PO Box 636 Seattle, WA 98111 ATTN: Runic Games, Inc. Copyright Agent, by facsimile at (206) 682-1136 or by email at legal@runicgames.com. Please note that attachments cannot be accepted at the email address for security reasons. Accordingly, any notification of infringement submitted electronically with an attachment will not be received or processed.

9. Intellectual Property.

9.1. Trademarks. Torchlight and the Torchlight logo are trademarks/service marks of Runic. Runic and the Runic logo are trademarks/service marks of Runic. Unauthorized use of any Runic trademark, service mark or logo may be a violation of federal and state trademark laws.

9.2. Copyright. The Site and Game are protected by U.S. and international copyright laws. Except for your use as authorized above, you may not modify, reproduce or distribute the content, design or layout of the Site or Game, or individual sections of the content, design or layout of the Site without Runic’s express prior written permission.

10. Unsolicited Idea Submissions. Neither Runic nor any of its employees and/or contractors accept or consider unsolicited ideas, original creative artwork or other works, including, without limitation, ideas or suggestions for new or improved games or technologies, game or product enhancements, marketing plans or names for new games (collectively “Unsolicited Ideas”). Please do not send your Unsolicited Ideas to Runic or its employees and/or contractors. Our policy is aimed at avoiding potential misunderstandings or disputes when Runic’s products or strategies might seem similar to Unsolicited Ideas that are submitted. If, despite our request that you not send us your Unsolicited Ideas, you still submit your Unsolicited Ideas to us or to any of our employees and/or contractors, then, you hereby grant us and our designees a worldwide, non-exclusive, sublicenseable, assignable, royalty-free, perpetual, irrevocable right to use, reproduce, distribute, create derivative works of, publicly perform, publicly display and license, digitally perform, make, have made, sell, offer for sale and import your Unsolicited Ideas, including, without limitation, all copyrights, trademarks, trade secrets, patents, industrial rights and all other intellectual and proprietary rights related thereto, in any media now known or hereafter developed, for any purpose whatsoever, commercial or otherwise, including, without limitation, giving the Unsolicited Ideas to others.

11. Location. The Site is operated by Runic in the United States. Those who choose to access the Site from locations outside the United States do so on their own initiative and are responsible for compliance with applicable local laws.

12. Children. The Site is not directed toward children under 13 years of age nor does Runic knowingly collect information from children under 13. If you are under 13, please do not submit any personally identifiable information to Runic.

13. DISCLAIMER OF WARRANTIES. THE SITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. RUNIC MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY CONTENT AVAILABLE THROUGH THE SITE. YOU ARE RESPONSIBLE FOR VERIFYING ANY INFORMATION BEFORE RELYING ON IT. USE OF THE SITE AND/OR THE CONTENT AVAILABLE ON THE SITE IS AT YOUR SOLE RISK. RUNIC DOES NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE SITE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SITE ARE 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.

14. LIMITATION OF LIABILITY; SOLE AND EXCLUSIVE REMEDY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, RUNIC, ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE “RELATED PARTIES”) DISCLAIM ALL LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND FURTHER DISCLAIMS ALL LOSSES, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SITE EVEN IF RUNIC AND/OR RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE LIABILITY OF RUNIC OR ANY OF THE RELATED PARTIES EXCEED THE AMOUNT THAT YOU PAID TO US OR OUR DESIGNEES DURING THE SIX (6) MONTHS PRIOR TO THE TIME YOUR CAUSE OF ACTION AROSE.

Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of Runic and its affiliates shall be limited to the fullest extent permitted by law.

15. Indemnification. You agree to indemnify, defend and hold Runic and the Related Parties harmless from any claim, demand, damages or other losses, including reasonable attorneys’ fees, asserted by any third-party resulting from or arising out of any breach by you of this ToU or any other policies that Runic may issue for the Site from time to time.

16. General.

16.1. TOU Revisions. This ToU may only be revised in a writing signed by Runic, or published by Runic on the Site.

16.2. Governing Law; Jurisdiction. This ToU shall be governed by and construed in accordance with the laws of the State of Washington without regard to its conflict of law rules. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed. Any legal proceeding arising out or relating to this ToU against or relating to Runic or any Related Parties will be subject to the exclusive jurisdiction of any state or federal court sitting in Seattle, Washington and you irrevocably consent to the jurisdiction of such courts.

16.3. No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Runic as a result of this ToU or your use of the Site.

16.4. Assignment. Runic may assign this ToU, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the ToU without Runic’s prior written consent, and any unauthorized assignment by you shall be null and void.

16.5. Severability. If any part of this ToU is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of the ToU shall be given full force and effect.

16.6. Attorneys’ Fees. In the event any litigation is brought by either party in connection with this ToU, the prevailing party in such litigation shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation.

16.7. No Waiver. Our failure to enforce any provision of this ToU shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by us of any provision, condition or requirement of this ToU shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.

16.8. Notices. All notices given by you or required under this ToU shall be in writing and addressed to: Runic Games, Inc., PO Box 636 Seattle, WA 98111, ATTN: CEO.

16.9. Export Administration. You will comply fully with all relevant export laws and regulations of the United States, including, without limitation, the U.S. Export Administration Regulations (collectively “Export Controls”). Without limiting the generality of the foregoing, you will not, and you will require your representatives not to, export, direct or transfer the Game, or any direct product thereof, to any destination, person or entity restricted or prohibited by the Export Controls.

16.10. Equitable Remedies. You hereby agree that Runic would be irreparably damaged if the terms of this ToU were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this ToU, in addition to such other remedies as we may otherwise have available to us under applicable laws.

16.11. Entire Agreement. This ToU, including the documents expressly incorporated by reference, constitutes the entire agreement between you and us with respect to the Site and supersedes all prior or contemporaneous communications, whether electronic, oral or written, between you and us with respect to the Site.