END USER LICENSE AGREEMENT
Last Updated: [7/12/19]
By agreeing to this EULA, you represent and warrant that: (a) you are at least thirteen (13) years of age, and if you are a child between the age of thirteen (13) and eighteen (18) years old, that your parent or guardian has read and agreed to this EULA and to your use of the Service; (b) you have not previously been suspended or removed from the Service; and (c) your registration and use of the Service is in compliance with all applicable laws and regulations. If you are using the Service on behalf of an entity, you represent and warrant that you have the authority to bind that entity to this EULA and you agree to be bound by this EULA on behalf of that entity. Camouflaj may, in its sole discretion, refuse to offer the Service to any person or entity, and may change its eligibility criteria at any time.
2. GAME TERMS.
The terms of this Section 2 govern your acquisition and use of the Game:
2.1 Third-Party Accounts.
In order to use the Game, you may be required to create a separate account by the third-party app store or distribution platform that is distributing or providing you access to the Game, such as Valve Corporation, Gamele, Inc., Google Play, or the Amazon Gamestore (each, a “Distributor”). You are solely responsible for maintaining the security of any logins, passwords, or other credentials for your third-party account with any Distributor. Your use of any third-party account with a Distributor is subject to any terms, conditions, and policies of that Distributor. Later versions of the Game may require that you establish a different account with Camouflaj, and additional terms and restrictions may then apply.
2.2 License to the Game.
The Game is licensed, not sold, to you for use only under the terms of this
license. Subject to your compliance with the terms of this EULA, Camouflaj hereby grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license, for your personal and non-commercial use, to (access and use (i) one copy of the Game and (ii) the Service, as required to use the Game. You may not reproduce, distribute, publicly display, or publicly perform the Game or any part of the Service. Except if, and solely to the extent that, such a restriction is impermissible under applicable law, you may not (i) decompile, reverse engineer, or otherwise access or attempt to access the source code for the Game, or make or attempt to make any modification to or derivative work of the Game; or (ii) interfere with or circumvent any feature of the Game, including without limitation any security or access control mechanism. You may not use the Game or the Service for any purpose other than a purpose for which the Game and the Service are expressly designed. The term “Game” as used herein includes any update or modification to the Game made available to you by us (unless provided with separate terms). If you are prohibited under applicable law from using the Game or the Service, you may not use them.
2.3 Access to the Game; Third Party Fees.
Camouflaj does not provide you with equipment to access and use the Game. You are responsible for all fees charged by third parties to access and use the Game, including any charges by device or headset manufacturers (“Manufacturers”), mobile network operators (“Carriers”), or Distributors. By accessing and using the Game, you may be subject to separate third-party terms, conditions, and policies of any Distributor, Manufacturer, or Carrier. You are solely responsible for all such third-party terms and conditions, and Camouflaj is not responsible for any act or omission of any Distributor, Manufacturer, or Carrier.
3. HEALTH AND SAFETY.
This Section must be reviewed and understood prior to accessing and using the Game, and failure to do so may result in bodily harm or property damage. If you are a child using the Game as permitted under Section 1, then this Section must be read and explained to you by your parent or guardian. The health and safety precautions in this Section are not intended to be an exhaustive list, and use of the Game may involve other health and/or safety risks not contained herein.
Children using the Game must be supervised by an adult at all times. Adults should monitor children both during and after use of the Game for any adverse health symptoms, as further described below.
3.2 Health Warning.
Using virtual reality headsets, playing virtual Games, or accessing virtual reality experiences (including this Game) could have adverse health effects for some users that may occur both during and after use of the Game , including but not limited to: motion sickness, nausea, dizziness, poor balance, weakened hand-eye coordination, decreased multi-tasking ability, loss of or impaired consciousness or awareness, eye strain, altered vision, skin irritations, muscle soreness or twitching, convulsions or seizure, involuntary movements, disorientation, and discomfort. You or your child must stop playing the Game and consult a doctor if any of the foregoing symptoms or any other adverse symptoms occur during or after use of the Game. Camouflaj does not give medical advice. You must consult a doctor before using the Game if you are pregnant or if you have, or your child has, any pre-existing health condition that may be affected or worsened by using the Game, or if you have any other concerns about the health impact of using the Game.
3.3 Play Area Precautions.
As the Game is an immersive virtual reality experience, you must take necessary precautions to ensure your own safety (as well as the safety of others) while you or others are using the Game. While using the Game, users may be moving around the surrounding area, including making hand gestures or other movements. Before playing the Game, users must ensure that the surrounding area is free of all potential hazards and must maintain a reasonable distance from other individuals in the surrounding area. Users may not use the Game near objects, stairs, balconies, windows, walls, furniture, or other objects that may pose a danger or that could be damaged during or immediately after using the Game. Due to the immersive nature of the Game, sound volumes should be kept at low enough levels such that you are able to maintain awareness of your surroundings while using the Game.
3.4 Other Prohibited Uses.
Do not use the Game when you are tired, under the influence of alcohol or drugs, hung-over, experiencing digestive problems, under emotional stress or anxiety, or suffering from cold, flu, headaches, migraines, earaches, or other health issues which may increase your susceptibility to adverse symptoms or reactions, including as described in Section 3.2. Do not drive, operate heavy machinery, or engage in other demanding or strenuous activity while playing the Game or shortly thereafter, or while you are experiencing any health-related symptoms or illness. Never handle sharp or dangerous objects while playing the Game.
CAMOUFLAJ IS NOT LIABLE TO YOU OR ANY THIRD PARTY FOR ANY BODILY HARM (INCLUDING, WITHOUT LIMITATION, DEATH, INJURY, SICKNESS, AND HEALTH COMPLICATIONS) OR ANY PROPERTY DAMAGE THAT MAY OCCUR DURING, AS A RESULT OF, OR IN CONNECTION WITH YOUR USE OF THE GAME.
4. Personal and Non-Commercial Use.
The Service is for your personal and non-commercial use, and unless expressly authorized herein, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Game and/or Service (including any Materials, as defined below), or other information, software, products, and/or services accessed through the Game and/or Service.
This EULA does not grant you ownership of any intellectual property rights in the Game and/or Service or any content made available through the Game and/or Service. The visual interfaces, video, audiovisual content, characters, sound effects, music, animation, images (including the image, name, and likeness of certain individuals), graphics, designs, lay out, compilations, information, data, code (including source code or object code), products, software, services, branding, logo, copyrightable materials, technology, and all other elements made available on or through the Game and/or Service (“Materials”) are protected by intellectual property and other laws. As between you and Camouflaj, all Materials are the property of Camouflaj, its affiliates, licensors, and suppliers. Except as expressly authorized by Camouflaj or the applicable owner, or otherwise permitted by law, you may not make use of the Materials or any other content accessed on or through the Game and/or Service. As between you and Camouflaj, Camouflaj reserves all rights to the Materials not granted expressly in this EULA. If you provide Camouflaj any feedback regarding the Game and/or Service, you hereby assign to Camouflaj all right and title to such feedback, without any additional compensation to you.
For the avoidance of doubt, this EULA does not grant you the right to use any branding, logos, trade dress, or trademarks (“Marks”) made available through the Game and/or Service. All goodwill generated therefrom will inure to the exclusive benefit of Camouflaj or the applicable third-party owner of the Mark(s).
Without limiting the foregoing, certain portions of the Game and/or Service may include, display, or make available certain third-party content, data, information, or materials. Camouflaj makes no representations or endorsements, nor are we liable for, any such third-party content, data, information, or materials.
6. Use Guidelines.
You agree not to:
6.1 use the Game and/or Service for any illegal purpose or in violation of any local, state, national, or international law;
6.2 violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
6.3 interfere with security-related features of the Game and/or Service, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Game/or Service except to the extent that the activity is expressly permitted by applicable law
6.4 use, display, mirror or frame the Game and/or Service or any individual element therein (including any Marks) or other proprietary information without express written consent;
6.5 interfere with the operation of the Game and/or Service or any user’s enjoyment thereof, including by interfering with or disrupting any network, equipment, or server connected to or used to provide the Game and/or Service, or violating any regulation, policy, or procedure of any network, equipment, or server;
6.6 attempt to do any of the acts described in this Section 6, or assist or permit any person in engaging in any of the acts described in this Section 6.
7. TERM AND TERMINATION.
The EULA is effective until terminated by you or Camouflaj. Your rights under the limited license granted herein will terminate automatically without notice if you fail to comply with any term of this EULA. In addition, Camouflaj may suspend or terminate access to the Game and/or Service at any time without notice. We also reserve the right to modify or discontinue the Game and/or Service at any time (including by limiting or discontinuing certain features thereof) without notice to you. We will have no liability whatsoever with respect to any change to the Game and/or Service or any suspension or termination thereof. You may terminate this EULA by notifying Camouflaj via email mail and ceasing use of the Service (including the Game). Sections 1 through 5, 7 through 11, and Sections 13 through 16 will survive termination of this EULA for any reason.
8. EULA MODIFICATION.
We reserve the right, at our discretion, to change this EULA on a going-forward basis at any time. In the event that a change to this EULA materially modifies your rights or obligations, we will make reasonable efforts to notify you of such change, such as a notification through a pop-up or banner within the Game and/or Service, as applicable. Additionally, if the changed EULA materially modify your rights or obligations, we may require you to provide consent by accepting the changed EULA. If we require your acceptance of the changed EULA, changes are effective only after your acceptance. If you do not accept the changed EULA, you must cease use of the Service. All other changes are effective upon publication of the changed EULA. Disputes arising under this EULA will be resolved in accordance with the version of these EULA that was in effect at the time the dispute arose.
To the fullest extent permitted by law you agree that you will be responsible for your use of the Service (including the Game), and you agree to defend and indemnify Camouflaj and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Camouflaj Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Service (including the Game); (b) your violation of any portion of this EULA or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
10. DISCLAIMERS; NO WARRANTIES.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE GAME, THE SERVICE, AND MATERIALS ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE CAMOUFLAJ ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE GAME, THE SERVICE, AND MATERIALS, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE CAMOUFLAJ ENTITIES DO NOT WARRANT THAT THE GAME, SERVICE, OR MATERIALS WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
YOU ASSUME ALL RISK FOR ANY HARM OR DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE GAME, THE SERVICE, AND MATERIALS. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AGREE THAT YOU USE THE GAME, THE SERVICE, AND MATERIALS AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY BODILY HARM, DAMAGE TO PROPERTY, OR LOSS OF DATA THAT RESULTS FROM SUCH USE.
11. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE CAMOUFLAJ ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE GAME, THE SERVICE, AND MATERIALS, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY CAMOUFLAJ ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AGREE THAT THE AGGREGATE LIABILITY OF THE CAMOUFLAJ ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE GAME, THE SERVICE, THE MATERIALS, OR OTHERWISE UNDER THIS EULA, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO $100.
EACH PROVISION OF THIS EULA THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTY, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THIS EULA BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS EULA. THE LIMITATIONS IN THIS SECTION 11 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
12. INTERNATIONAL USE.
The Service is controlled and operated from within the United States. Camouflaj makes no representation that the Service (including the Game) is appropriate or available in locations outside the United States. Those who choose to access the Service (including the Game) from other locations are responsible for compliance with applicable laws. All users must comply with all applicable law, and any software made available in connection with the Service and the transmission of applicable data, if any, is subject to United States and other applicable export controls.
13. GOVERNING LAW.
This EULA is governed by the laws of Washington without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under this EULA, then you and Camouflaj agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within King County, Washington for the purpose of litigating any dispute.
14. DISPUTE RESOLUTION AND ARBITRATION.
In the interest of resolving disputes between you and Camouflaj in the most expedient and cost effective manner, you and Camouflaj agree that every dispute arising in connection with this EULA will be resolved by confidential, binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of this EULA, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this EULA. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS EULA, YOU AND CAMOUFLAJ ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Despite the provisions of Section 14.1, we both agree that nothing in this EULA will be deemed to waive, preclude, or otherwise limit the right of either of us to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
Any arbitration between you and Camouflaj will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this EULA, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Camouflaj.
14.4 Notice; Process.
A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or if we do not have a physical address on file for you, by electronic mail ("Notice"). Camouflaj’s address for Notice is: Camouflaj, 110 110th AVE NE STE 350, Bellevue WA 98004. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within thirty (30) days after the Notice is received, you or Camouflaj may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Camouflaj must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If our dispute is finally resolved through arbitration in your favor, Camouflaj will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Camouflaj in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
If you commence arbitration in accordance with this EULA, Camouflaj will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Santa Clara, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Camouflaj for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within fourteen (14) days of the arbitrator’s ruling on the merits.
14.6 No Class Actions.
YOU AND CAMOUFLAJ AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Camouflaj agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
If Camouflaj makes any future change to this arbitration provision (other than a change to Camouflaj’s address for Notice), you may reject the change by sending us written notice within thirty (30) days of the change to Camouflaj’s address for Notice, in which case your account with Camouflaj will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject, will survive.
If Section 14.6 is found to be unenforceable or if the entirety of this Section 14 is found to be unenforceable, then the entirety of this Section 14 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 13 will govern any action arising out of or related to this EULA.
16. OPEN SOURCE SOFTWARE.
The Game and/or Service may include open source software or third-party software. Any such software is made available to you under the terms of the applicable licenses.
17. CONTACT INFORMATION.
Camouflaj, LLC is located at 110 110th AVE NE, STE 350, Bellevue WA 98004. You may contact us by sending correspondence to that address or by emailing us at [email protected]
18. OBTAINING A COPY OF THIS EULA.
You may have this EULA mailed to you electronically by sending a letter to the address in Section 17 with your electronic mail address and a request for a copy of this EULA.
19. NOTICE TO CALIFORNIA RESIDENTS.
If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Game and/or Service or to receive further information regarding use thereof.