END USER LICENSE AGREEMENT
Effective Date: July 2, 2021.
This End User License Agreement ("EULA") governs your use of any websites, games, or other service location that posts a link to this EULA, as well as your relationship with Our Machinery, Inc. ("Our Machinery", “we”, “our”, or “us") including, without limitation, the The Machinery game engine (collectively, the “Service").
BY ACCESSING OR USING ANY PART OF THE SERVICE, YOU AGREE TO BE BOUND BY THIS EULA. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS EULA NOW OR IN THE FUTURE, THEN DO NOT ACCESS OR USE THE SERVICE. YOUR CONTINUED USE OF THE SERVICE NOW, OR FOLLOWING THE POSTING OF ANY CHANGES IN THIS EULA, WILL INDICATE ACCEPTANCE AND AGREEMENT BY YOU OF SUCH CHANGES
ARBITRATION NOTICE: UNLESS YOU OPT OUT OF ARBITRATION WITHIN THIRTY (30) DAYS OF THE DATE YOU FIRST AGREE TO THIS EULA BY FOLLOWING THE OPT-OUT PROCEDURE SPECIFIED IN THE DISPUTE RESOLUTION SECTION BELOW, AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN SUCH SECTION, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
In some instances, both this EULA and separate terms elsewhere on the Service will apply to your use of the Service ("Additional Terms"). To the extent there is a conflict between this EULA and any applicable Additional Terms, the Additional Terms will control unless they expressly state otherwise.
Please note that the licenses and rights available to you are subject to factors such as your revenue as set forth on the Service or Additional Terms.
B. Passwords; Security.
You are entirely responsible for maintaining the confidentiality of your password. You agree not to share your account, username or password, and agree to notify us immediately if you suspect any unauthorized use of your account. You further agree that you are entirely liable for all activities conducted through your account, and are responsible for ensuring that you or your child is aware of, understands, and complies with this EULA and all other rules, policies, or notices published by us.
Use of the Service is void where prohibited. By registering an account and using the Service, you represent and warrant that: (i) all Registration Data that you submit is truthful and accurate; (ii) you are the age of consent in your country/region or older; and (iii) your use of the Service will not violate any applicable law or regulation, this EULA, or any other rules, policies, or notices published by us.
2. Service Use.
The Service contains: (i) materials and other items relating to Our Machinery and its products and services, and similar items from our licensors and other third parties, including all layout, information, databases, articles, posts, text, data, files, images, scripts, designs, graphics, instructions, illustrations, photographs, sounds, pictures, videos, advertising copy, URLs, technology, software, source code, algorithms, interactive features, the “look and feel” of the Service, and the compilation, assembly, and arrangement of the materials of the Service and any and all copyrightable material; (ii) trademarks, logos, trade names, trade dress, service marks, and trade identities of various parties, including those of Our Machinery; and (iii) other forms of intellectual property (all of the foregoing, collectively “Content"). All right, title, and interest in and to the Service and the Content is the property of Our Machinery or our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent and/or other intellectual property and unfair competition rights and laws to the fullest extent possible.
B. Limited License.
Unless stated in another written agreement between you and Our Machinery, and subject to your strict compliance with this EULA and any applicable Additional Terms, Our Machinery grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to use the Service in accordance with this EULA and your any applicable Additional Terms. The foregoing limited license (i) does not give you any ownership of, or any other intellectual property interest in, any Content, and (ii) may be suspended or terminated only in accordance with the “Availability” Section below. Your unauthorized use of the Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability.
You can freely use The Machinery to create derivative works and freely use such derivative works. However, you may not: (i) resell the Service or Content; (ii) reverse engineer the Service or Content; (iii) interfere with the proper operation of any security measure used by the Service or Content; (iv) infringe any intellectual property or other right of any third party; (v) use the Service or Content in a manner that suggests an unauthorized association or is beyond the scope of the limited license granted to you; or (vi) otherwise violate this EULA or any applicable Additional Terms. You agree to comply with all local, state, federal, national, foreign, supranational, and international laws, statutes, ordinances, regulations, treaties, directives, and agreements that apply to your use of the Service and Content. For clarity, although you cannot sell The Machinery itself, you can sell derivative works that you built using The Machinery if you have an appropriate license from us.
Our Machinery may suspend or terminate the availability of the Service and Content, in whole or in part, to any individual user or all users, without advance notice or liability in Our Machinery’s sole discretion if: (i) you breach this EULA; (b) your use of the Services poses a security risk to, or otherwise adversely impacts, the Services or any third party; (c) your use of the Services subjects Our Machinery, our affiliates, or any third party to liability; or (d) your use of the Services may be fraudulent. Upon suspension or termination of your access to the Service, or upon notice from Our Machinery, all rights granted to you under this EULA or any applicable Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Service and Content.
E. Reservation of Rights.
All rights not expressly granted to you are reserved by Our Machinery and its licensors and other third parties. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. Any unauthorized use of the Content or Service for any purpose is prohibited.
3. User Content.
As part of your use of the Service, you may be able to create, upload, display, promote, disseminate, post, make available, distribute, or transmit messages, artwork, text, displays, images, photographs, graphics, screenshots, data, databases, information, files, pictures, video, audio, music, software, and other materials and content, whether in written, digital, oral, machine-readable, electronic or visual form, to the Service (collectively, your “User Content"). As between you and Our Machinery, you own all right, title, and interest (including, all intellectual property rights) in and to your User Content, excluding any Our Machinery Content contained therein or used in connection therewith.
B. License to Our Machinery.
Derivative works (e.g., games) you create with The Machinery are owned by you and you are free to use such derivative works as you wish. However, your specific license may be subject to Additional Terms depending on availability and your selection; for example, publicly posted marketing materials for games developed with the “Indie Free License” may be used by us for marketing purposes such as creating demo reels but we will not use parts of your game (e.g., screenshots) that you have not publicly posted. To effectuate grants including, without limitation, the use of publicly posted marketing materials under the Indie Free License, you hereby irrevocably grant to us a worldwide, perpetual, irrevocable, royalty-free, non-exclusive, and fully sublicensable license to use, reproduce, modify, incorporate, and display such User Content (in whole or in part) in any media in accordance with this EULA or any applicable Additional Terms. and you waive any and all claims that any use by us or our licensees of your User Content violates any of your rights, including moral rights, privacy rights, rights to publicity, proprietary, attribution, or other rights, and rights to any material or ideas contained in your User Content.
C. Representations and Warranties.
For content that you submit to us through or relating to the Service (such as bug reports, forum threads and pull requests), you represent and warrant that: (i) you own or control all of the rights to the User Content that you post or you otherwise have the right to post such User Content to the Services; (ii) the User Content is accurate and not misleading; (iii) the User Content and your use of such User Content does not violate any law, rule or regulation; (iv) the User Content is not inappropriate, profane, indecent, harmful, threatening, abusive, defamatory, harassing, tortuous, vulgar, obscene, libelous, pornographic, harmful to minors, racially, ethnically or otherwise objectionable or that may be invasive of another’s right of privacy or publicity; (v) the User Content does not contain any macro, bot, virus, trojan horse, keystroke logger, worm, time bomb, cancelbot, corrupted data or other file, code or computer programming routing that is intended to or results in damage, detrimentally interferes with the Service; and (vi) User Content you supply does not violate this EULA and will not violate any rights of any third party or cause injury to any person or entity. You agree to pay for all royalties, fees, and any other monies owed to any person by reason of any User Content posted by you.
You represent and warrant that any User Content containing licensed music is not subject to and we have no obligation to pay royalties to any third party, including without limitation a sound recording copyright owner (e.g., a record label), a musical work copyright owner (e.g., a music publisher), a PRO (e.g., ASCAP, BMI, SESAC, etc.), a sound recording PRO, any unions or guilds, or other third parties.
You are solely responsible for the User Content that you post, store or upload on or through the Service. We may, but are not obligated to, monitor, screen, delete, or edit any of the User Content at any time and for any reason without notice in our sole discretion.
When you submit any unsolicited ideas, feedback, opinions, techniques, images, sounds, videos, bug reports, forum posts, pull requests, or other content to us through or relating to the Service ("Submissions"), you grant us a non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, transferable and cost-free right and license to host, store, use, display, reproduce, modify, adapt, edit, combine with other materials, publish, distribute, create derivative works from, promote, exhibit, broadcast, syndicate, sublicense (including, without limitation, to third party media channels, platforms, and distributors), publicly perform, publicly display, and otherwise use and exploit in any manner whatsoever, or grant third parties the right to do any of the foregoing, all or any portion of your Submissions, for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. You further irrevocably grant us the right, but not the obligation, to use your name in connection with your Submissions. You also agree to waive any right of approval for our use of the rights granted herein and agree to waive any moral rights that you may have in any Submissions, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights in a manner that interferes with any exercise of the granted rights.
You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section. Our receipt of your Submissions is not an admission of their novelty, priority, or originality, and it does not impair our right to existing or future intellectual property rights relating to your Submissions. You waive any and all rights and claims in connection with our consideration, use, or development of any product, content, or other materials similar or identical to your Submission now or in the future.
You represent and warrant that you own or have the necessary rights, licenses, consents, and permissions to grant us the rights granted in this Section. You alone, though, retain whatever legally cognizable right, title, and interest that you have in your Submission and remain responsible for them.
4. Disclaimer of Representations and Warranties.
THE SERVICE IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. NEITHER OUR MACHINERY NOR ANY OF ITS PARENTS, SUBSIDIARIES, AFFILIATES, AND EACH OF ITS AND THEIR OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES OR AGENTS (COLLECTIVELY, THE “OUR MACHINERY PARTIES”) MAKE ANY REPRESENTATIONS, WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER AS TO THE CONTENT OR OTHER SERVICES, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, INCLUDING THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND FREEDOM FROM COMPUTER VIRUS. BY ACCESSING OR USING THE SERVICE YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SERVICE.
NOTWITHSTANDING THE FOREGOING, THESE DISCLAIMERS DO NOT EXCLUDE ANY PRODUCT LIABILITY CLAIMS, STATUTORY CONSUMER RIGHTS, DAMAGES ASSOCIATED WITH PERSONAL INJURY OR RESULTING FROM OUR MACHINERY’S INTENTIONAL MISCONDUCT, RECKLESSNESS, FRAUD, OR GROSS NEGLIGENCE.
5. Limitations of Our Liability.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE OUR MACHINERY PARTIES BE LIABLE TO YOU FOR ANY LOSS, DAMAGE OR INJURY OF ANY KIND INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSSES OR DAMAGES, OR DAMAGES FOR SYSTEM FAILURE OR MALFUNCTION OR LOSS OF PROFITS, DATA, USE, BUSINESS OR GOODWILL, ARISING OUT OF OR IN CONNECTION WITH (A) THE SERVICE, (B) THIS EULA OR (C) YOUR MISUSE OF THE SERVICE OR ANY CONTENT AVAILABLE ON OR THROUGH THE SERVICE. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER THE ASSERTED LIABILITY OR DAMAGES ARE BASED ON CONTRACT, INDEMNIFICATION, TORT, STRICT LIABILITY, STATUTE OR ANY OTHER LEGAL OR EQUITABLE THEORY.
NOTWITHSTANDING THE FOREGOING, THESE DISCLAIMERS HEREIN DO NOT EXCLUDE ANY PRODUCT LIABILITY CLAIMS, STATUTORY CONSUMER RIGHTS, DAMAGES ASSOCIATED WITH PERSONAL INJURY OR RESULTING FROM OUR MACHINERY’S INTENTIONAL MISCONDUCT, RECKLESSNESS, FRAUD, OR GROSS NEGLIGENCE.
You agree to defend, indemnify and hold harmless the Our Machinery Parties from and against any and all claims, liabilities, damages, losses, costs and expenses (including, without limitation, attorneys' fees and costs) arising out of or in connection with any of the following: (i) your breach or alleged breach of this EULA; (ii) your User Content and Submissions; (iii) your misuse of the Service; (iv) your violation of any laws, rules, or regulations of any governmental or quasi-governmental authorities; (v) your violation of the rights of any third party, including any intellectual property right, publicity, property, or privacy right; (vi) your use of a Third Party Service; or (vii) any misrepresentation made by you. We reserve the right to assume, at your expense, the exclusive defense and control of any matter subject to indemnification by you. You agree to cooperate with our defense of any claim. You will not in any event settle any claim without our prior written consent. This provision does not require you to indemnify us for any unconscionable commercial practice by us or for our fraud, deception, false promise, misrepresentation, or concealment, suppression, or omission of any material fact in connection with the Service.
7. Copyright Infringement.
A. DMCA Notification.
Our Machinery responds to copyright notifications submitted under the Digital Millennium Copyright Act, 17 U.S.C. § 512 ("DMCA"). To submit a notice of claimed copyright infringement under U.S. law, provide our designated agent with the following written information:
- A physical or electronic signature of the copyright owner or a person authorized to act on his or her behalf;
- Identification of the copyrighted work claimed to have been infringed;
- Identification of the infringing material and information reasonably sufficient to permit us to locate that material;
- Your contact information, including your address, telephone number, and an e-mail address;
- A statement that you have a good faith belief that the use of the material in the manner asserted is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
Our designated agent is:
120 30 Stockholm
You can obtain further information from the Copyright Office’s online directory at www.dmca.copyright.gov/osp.
We will respond to notifications of claimed copyright infringement in accordance with the DMCA.
8. Subscriptions and Products.
Certain areas of the Service require payment before you can access them ("Subscriptions"). For example, you may need to subscribe in order to access certain video content on the Service. Subscriptions can be purchased by paying a periodic subscription fee. We will disclose to you the particular terms for any Subscription prior to collecting initial payment for any Subscription. When you register for a Subscription, you get access to the premium areas of our Service. SUBSCRIPTIONS CANNOT BE TERMINATED BEFORE THE END OF THE PERIOD FOR WHICH YOU HAVE ALREADY PAID, AND OUR MACHINERY WILL NOT REFUND ANY FEES THAT YOU HAVE ALREADY PAID. Your payment will automatically renew at the end of the subscription period unless you cancel your Subscription through your subscription page before the end of the current subscription period. The cancellation will take effect the day after the last day of the current subscription period. Our Machinery may change the price for the Subscriptions, from time to time, by posting the new price on its Service. Price changes for Subscriptions will take effect at the start of the next subscription period following the date of the price change. As permitted by local law, you accept the new price by continuing to use the Service after the price change takes effect. If you do not agree with the price changes, you have the right to reject the change by unsubscribing from the Service prior to the price change going into effect. Please therefore make sure you read any such notification of price changes carefully.
From time to time, we may offer trials of Subscriptions for a specified period without payment or at a reduced rate (a “Trial"). We will require you to provide your payment information to start the Trial. UNLESS YOU CANCEL YOUR TRIAL THROUGH YOUR SUBSCRIPTION PAGE BEFORE THE END OF THE TRIAL, WE WILL AUTOMATICALLY CHARGE YOU FOR A SUBSCRIPTION ON THE FIRST DAY FOLLOWING THE END OF THE TRIAL, ON A REOCURRING MONTHLY BASIS. Your Subscription will be subject to the terms set forth in this Section.
We do our best to describe every product or service offered on our Service as accurately as possible. However, we do not warrant that product specifications, pricing, or other content on the Service is complete, accurate, reliable, current, or error-free. In the event of any errors relating to the pricing or specifications, Our Machinery shall have the right to refuse or cancel any orders in its sole discretion. If we charged your credit card or other account prior to our cancellation, we would issue a credit to your account in the amount of the charge. If a product or service you purchased from Our Machinery is not as described, your sole remedy is to cancel the purchase and receive a credit for the purchase price.
All physical products purchased from the Service are made pursuant to a shipment contract. This means that the risk of loss and title for such items pass to you upon delivery to the carrier.
For any purchases made through third party platform providers, such as Apple, Amazon, Roku, or Google, please contact their customer support. Their terms, conditions and policies, and not ours, apply and we do not handle returns or refund requests for purchases through those third party platform providers.
9. Customer Support.
If you have any questions or comments, please send an e-mail to us at [email protected]. Report bugs on our GitHub page https://github.com/OurMachinery/themachinery-public/issues. You acknowledge that the provision of support is at OUR sole discretion and that we have no obligation to provide you with customer support of any kind. All legal notices to us must be mailed to: [email protected]. When you communicate with us electronically, you consent to receive communications from us electronically. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
10. Third Party Services.
You can opt-out of receiving certain promotional e-mails from us at any time by following the instructions as provided in e-mails to click on the unsubscribe link, or contacting us at [email protected] with the word UNSUBSCRIBE in the subject field of the e-mail. Your opt-out will not affect non-promotional e-mails, such as those about your account, transactions, servicing, or Our Machinery’s ongoing business relations. Please note that any opt-out by you is limited to the e-mail address, device, or phone number used and will not affect subsequent subscriptions.
12. Dispute Resolution and Choice of Law.
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
A. We Both Agree to Arbitrate.
You and Our Machinery agree that any dispute, claim, or controversy arising out of or relating to this EULA, or the use of the Service ("Disputes") will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court (a “Small Claims Action") and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights (an “IP Protection Action"). The exclusive jurisdiction and venue of any IP Protection Action will be the state and federal courts located in New York County, and you and Our Machinery waive any objection to jurisdiction and venue in such courts and consent to their jurisdiction. You agree you may bring arbitration claims only on your own behalf and not on behalf of any other person or entity.
Unless you timely provide us with an Arbitration Opt-out Notice (as defined below in the subsection titled “Your Choices”), you acknowledge and agree that you and Our Machinery are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Our Machinery otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of any class or representative proceeding.
This clause does not limit either party’s ability to file an action in a court with jurisdiction to seek injunctive or other equitable relief for disputes relating to intellectual property, proprietary data, or to enforce this dispute resolution clause, including your agreement not to assert claims related to the suspension or termination of another person’s account. In any such action, the court rather than an arbitrator must decide whether such a claim is arbitrable and must decide whether the party is entitled to the requested injunctive or other equitable relief.
B. Arbitration Rules and Process.
The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules") then in effect, except as modified by this Dispute Resolution Section. (The AAA Rules are available at https://www.adr.org/mediation or by calling the AAA at 1–800–778–7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Dispute Resolution Section.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules (The AAA provides a form Demand for Arbitration). The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
C. Arbitration Location and Procedure.
Unless you and Our Machinery otherwise agree, the arbitration will be conducted in the state where you reside, with the option for you to participate telephonically to the extent the AAA Rules allow. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and Our Machinery submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
D. Authority of Arbitrator.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions which the arbitrator based its award on. Judgment on the arbitration award may be entered in any court having jurisdiction over the arbitration award. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” subsection of this EULA as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys' fees and expenses, to the extent provided under applicable law. We will not seek, and hereby waive all rights we may have under applicable law to recover, attorneys' fees and expenses if we prevail in arbitration, unless such arbitration is found by the arbitrator to be frivolous under the standards of the Federal Rules of Civil Procedure 11(b) and in that case, we shall be entitled to recover attorneys' fees in addition to any damages awarded to it.
If the arbitrator finds that your payment of the administrative and arbitrator fees (excluding any attorney’s fees) under this subsection is a burden on you, we agree to pay those fees for you (but not any attorney’s fees).
By rejecting any changes to this EULA, you agree that you will arbitrate any Dispute between you and Our Machinery in accordance with the provisions of this Dispute Resolution Section as of the date you first accepted this EULA (or accepted any subsequent changes to this EULA).
G. Your Choices.
If you do not want to settle Disputes by arbitration as described above, you will notify us by sending us written notice (including by email to [email protected]) telling us that you do not want to use arbitration, within thirty (30) days of the date on which you agreed to this EULA (such notice, an “Arbitration Opt-out Notice"). If you do not provide us with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any dispute except for a Small Claims Action and an IP Protection Action as stated above.
H. Choice of Law/Forum Selection.
In any circumstances where the Agreement to Arbitrate Disputes permits the parties to litigate in court, this EULA shall be governed by and construed in accordance with the laws of the State of New York, excluding its conflict of law rules. You further expressly consent and agree to submit to the exclusive jurisdiction and venue of a court of competent jurisdiction located in New York, NY.
13. Waiver of Injunctive or other Equitable Relief.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU AGREE THAT YOU WILL NOT BE PERMITTED TO OBTAIN AN INJUNCTION OR OTHER EQUITABLE RELIEF OF ANY KIND, SUCH AS ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, SUBMISSIONS, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY OUR MACHINERY OR A LICENSOR OF OUR MACHINERY.
14. Updates to Terms.
We reserve the right, at any time in our sole discretion, to modify or replace any part of this EULA and any applicable Additional Terms, without prior notice. You agree that we may notify you of any updated EULA and any applicable Additional Terms by posting them on the Service, and/or to send you an e-mail to the last e-mail address you provided to us. All such changes are effective immediately when we post them, or such later date as may be specified in the notice of updated EULA and any applicable Additional Terms. If you object to any such changes, your sole recourse is to cease using the Service.
15. General Provisions.
A. Consent or Approval.
No Our Machinery consent or approval may be deemed to have been granted by Our Machinery without being in writing and signed by an officer of Our Machinery.
The provisions of this EULA and any applicable Additional Terms, which by their nature should survive termination of your use of the Service, including sections on Service Use (except for the limited license), User Content, Submissions, Copyright Infringement, Subscriptions and Products, Customer Support, Third Party Services, Dispute Resolution and Choice of Law, Disclaimer of Representations and Warranties, Limitations of Our Liability, Indemnification, Waiver of Injunctive or Other Equitable Relief, Updates to Terms, and General Provisions, shall survive.
C. Severability; Interpretation; Assignment.
If any provision of this EULA, or any applicable Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable, then that provision will be deemed severable from this EULA or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of this EULA or the Additional Terms. You hereby waive any applicable statutory and common law that may permit a contract to be construed against its drafter. The summaries of provisions and section headings are provided for convenience only and shall not limit the full Terms. Our Machinery may assign its rights and obligations under this EULA and any applicable Additional Terms, in whole or in part, to any party at any time without any notice. This EULA and any applicable Additional Terms shall not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Our Machinery.
D. Complete Agreement; No Waiver.
This EULA, and any applicable Additional Terms, reflect our complete agreement regarding the Service and supersede any prior agreements, representations, warranties, assurances or discussion related to the Service. Except as expressly set forth in this EULA or any applicable Additional Terms: (i) no failure or delay by you or Our Machinery in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy; and (ii) no waiver or modification of any term of this EULA or any applicable Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.
E. International Issues.
We control and operate the Service from the U.S., and Our Machinery makes no representation that the Service is appropriate or available for use beyond the U.S. You agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this EULA or to any sale of goods carried out as a result of your use of the Service. Software related to or made available by the Service may be subject to export controls of the U.S., and, except as authorized by law, you agree and warrant not to export or re-export the software to any county, or to any person, entity, or end-user subject to U.S. export controls or sanctions.
F. Investigations; Cooperation with Law Enforcement.
We reserve the right to investigate and prosecute any suspected breaches of this EULA or the Service. Our Machinery may disclose any information as necessary to satisfy any law, regulation, legal process, or governmental request.
H. California Consumer Rights and Notices.
Residents of California are entitled to the following specific consumer rights information: you may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs by mail at: 1625 North Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (916) 445-1254. Their website is located at: http://www.dca.ca.gov.