TORCHLIGHTGAME WEBSITE TERMS OF USE
Last Modified on March 14, 2012

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

Welcome to the torchlightgame.com website (the “Site”). This Terms of Use (this “”) describes the terms and conditions under which Runic Games, Inc. (“Runic,” “we,” or “us”) provides you access to the Site and the online game services provided through the Site (collectively, with the Site, the “Services”).

If you wish to install and play the videogames made available through the Site (each, a “Game”) you must first read and agree to the end user license agreement provided with the Game (the “EULA”). The EULA governs the terms regarding your use of the Game and this ToU governs your use of the Services.

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 and are familiar with the Runic Privacy Policy found at http://www.torchlightgame.com/privacy-policy in addition to this ToU. 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:

4. User Content.

5. Accounts.

6. Restrictions and Conditions of Use.

7. Ownership. As between you and Runic and/or its licensors, Runic and/or its licensors own the Site and the Game. 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.

8. Links.

9. 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:

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.

10. Intellectual Property.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. Negotiations and Arbitration.

17.1. Negotiations. Disputes can be expensive and time consuming for both parties. In an effort to accelerate resolution and reduce the cost of any dispute or claim related to this Agreement (“Claim”), you and Runic agree to first attempt to informally negotiate any Claim for at least thirty (30) days (except those Claims expressly excluded in Section 17.6 below). Runic will send its notice to the address it has on file to the extent that you have provided additional contact information to Runic (e.g. by participating in a promotional or survey, or contacting a customer services representative). Otherwise, Runic will send its notice to the email address associated with your Account. You will send your notice to Runic Games, Inc., PO Box 636 Seattle, WA 98111, Attn: Legal Department. Please note that this informal resolution procedure does not suspend any statutory limitation periods applicable to the bringing of a Claim.

17.2. Binding Arbitration. If the parties fail to resolve a Claim through negotiations, within such thirty (30)-day period, either you or Runic may elect to have the Claim (except as otherwise provided in Section 17.6) finally and exclusively resolved by binding arbitration 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 in this Section 17.2 and the JAMS Rules, the terms set forth in the JAMS Rules will control and prevail.

Except as otherwise set forth in Section 17.6, 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 we 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, (i) you and Runic 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 (ii) the arbitrator’s decision is 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 RUNIC ARE WAIVING THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.

17.3. Arbitration Fees. If you initiate arbitration for a Claim, you will only need to pay an arbitration initiation fee of $250 and we will pay all other costs charged by JAMS for initiating the arbitration. 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. Notwithstanding Section 18.5 of this Agreement to the contrary, you will not be required to pay our attorneys’ fees or other costs if you do not prevail in the arbitration.

17.4. Location. The arbitration will take place in your hometown area if you so notify Runic in your notice of arbitration or within ten (10) days following receipt of Runic’ arbitration notice. In the absence of a notice to conduct the arbitration in your hometown area, the arbitration will be conducted in Seattle, Washington, unless the parties agree to video, phone and/or internet connection appearances. Any Claim not subject to arbitration (other than claims proceeding in any small claims court), or where no election to arbitrate has been made, shall be decided exclusively by a court of competent jurisdiction in Seattle, Washington, United States of America, and you and Runic agree to submit to the personal jurisdiction of that court.

17.5. Limitations. You and Runic agree that any arbitration shall be limited to the Claim between Runic and you individually. YOU AND RUNIC 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 OR AS A PRIVATE ATTORNEY GENERAL; AND (C) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER.

17.6. Exceptions to Negotiations and Arbitration. You and Runic agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (i) any Claims seeking to enforce or protect, or concerning the validity of, any of your or Runic’ intellectual property rights; (ii) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (iii) any claim for equitable relief. 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 courts’ jurisdiction in lieu of arbitration.

17.7. Governing Law. Except as otherwise provided in this Agreement, this Agreement shall be is governed by, and will be construed under, the laws of the United States of America and the law of the State of Washington, without regard to choice of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Other laws may apply if you choose to access the Game from outside of the United States. In such an event, those local laws shall affect this Agreement only to the extent necessary in that jurisdiction, and this Agreement shall be interpreted to give maximum effect to the terms and conditions in this Agreement. You are responsible for compliance with all local laws if and to the extent local laws are applicable. The New Zealand Consumer Guarantees Act of 1993 (the “Act”) may apply to the Game if you access the Game from, and are a resident of, New Zealand. Notwithstanding anything to the contrary in this Agreement, if the Act applies then you may have other rights or remedies as set out in the Act which may apply in addition to or instead of those set out in this Agreement.

17.8. Severability. You and Runic agree that if any portion this Section 17 is found illegal or unenforceable (except any portion of Section 17.6), that portion shall be severed and the remainder of the Section shall be given full force and effect. If Section 17.6 is found to be illegal or unenforceable then neither you nor Runic will elect to arbitrate any Claim falling within that portion of Section 17.6 found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within Seattle, State of Washington, United States of America, and you and Runic agree to submit to the personal jurisdiction of that court.

18. General.