Last Updated: May 15, 2018
IMPORTANT – THIS IS A LEGAL AGREEMENT BETWEEN YOU (referenced herein as “YOU” or “USER” or with “YOUR”) ON ONE HAND, AND THE ENTERTAINMENT SOFTWARE ASSOCIATION AND ITS SUBSIDIARIES AND AFFILIATES (collectively, “ESA”) ON THE OTHER HAND, WHICH APPLIES EACH TIME YOU USE OR ACCESS THE WEBSITE(S) PROVIDED BY ESA. YOU SHOULD READ CAREFULLY THE FOLLOWING TERMS AND CONDITIONS CONTAINED IN THIS TERMS OF SERVICE AGREEMENT (“TOS”) AS THEY GOVERN YOUR ACCESS AND USE OF THE AVAILABLE INFORMATION, SERVICES, SOFTWARE FUNCTIONALITY, OR MATERIALS PROVIDED THROUGH THE ESA WEBSITES (individually, “WEBSITE”, and collectively, “WEBSITES”). ESA IS WILLING TO LICENSE THE USE OF THIS WEBSITE AND PROVIDE THE RELATED INFORMATION, SERVICES, SOFTWARE FUNCTIONALITY, OR MATERIALS TO YOU ONLY ON THE CONDITION THAT YOU ACCEPT AND AGREE TO ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS TOS. IF YOU DO NOT AGREE WITH THIS TOS, YOU ARE NOT GRANTED PERMISSION TO ACCESS OR OTHERWISE USE THIS WEBSITE AND ARE INSTRUCTED TO IMMEDIATELY EXIT THIS WEBSITE.
Terms and Conditions
- LICENSE GRANT. This TOS provides to you a personal, revocable, limited, non-exclusive, royalty-free, non-sublicenseable, non-transferable license to use the Website conditioned on your continued compliance with the terms and conditions of this TOS. You may print and download materials and information from the Website solely for your personal use, provided that all hard copies contain all copyright and other applicable notices contained in such materials and information. The content layout, formatting, and features of and access privileges for the Website shall be as determined by ESA in its sole discretion. You also acknowledge and agree to the following: (i) ESA has the right to control and direct the means, manner, and method by which the Website is provided; (ii) ESA may from time to time engage independent contractors, consultants, or subcontractors to aid ESA in providing the Website or use thereof; and (iii) ESA has the right to provide the Website to others.
- RESTRICTIONS. Notwithstanding the foregoing, you may not modify, translate, decompile, create derivative work(s) of, copy, distribute, disassemble, broadcast, transmit, publish, remove, or alter any proprietary notices or labels on, license, sublicense, transfer, sell, mirror, frame, exploit, rent, lease, private label, grant a security interest in, or otherwise use in any manner not expressly permitted herein, the Website. Specifically, and by way of illustration and not limitation, you may not separate and use any graphics, photographs, or other audio, visual, or video elements from the accompanying text or material without the prior express written permission of ESA and/or its licensor(s). Moreover, you may not: (i) use any “deep link,” “page scrape,” “robot,” “spider,” or other automatic device, program, script, algorithm, or methodology, or any similar or equivalent manual process, to access, acquire, copy, or monitor any portion of the Website or in any way reproduce or circumvent the navigational structure or presentation of the Website to obtain or attempt to obtain any materials, documents, or information through any means not purposely made available through the Website; (ii) attempt to gain unauthorized access to any portion or feature of the Website or any other systems or networks connected to the Website or to any ESA server or to any of the services offered on or through the Website, by hacking, password “mining,” or any other illegitimate or prohibited means; (iii) probe, scan, or test the vulnerability of the Website or any network connected to the Website, nor breach the security or authentication measures on the Website or any network connected to the Website; (iv) reverse look-up, trace, or seek to trace any information on any other user of or visitor to the Website; (v) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Website or ESA’s systems or networks or any systems or networks connected to the Website; (vi) use any device, software, or routine to interfere with the proper working of the Website or any transaction conducted on the Website, or with any other person’s use of the Website; (vii) forge headers, impersonate a person, or otherwise manipulate identifiers in order to disguise your identity or the origin of any message or transmittal you send to ESA on or through the Website; (viii) use the Website to harvest or collect e-mail addresses or other contact information; or (ix) use the Website in an unlawful manner or in a manner that could damage, disparage, or otherwise negatively impact ESA.
- USER OBLIGATIONS. By downloading, accessing, or using the Website in order to view any information and materials, register, or enter into a transaction with or through ESA for any reason, or submit information of any kind, you represent that you are at least eighteen (18) years of age (or the legal age of majority (whichever is greater)) and will, at all times, provide true, accurate, current, and complete information when submitting information or materials on the Website, including, without limitation, when you provide information via a Website registration or submission form. If you provide any false, inaccurate, untrue, or incomplete information, ESA reserves the right to terminate immediately your access to and use of the Website. In addition, you agree to abide by all applicable local, state, national, and international laws and regulations with respect to your use of the Website. You also acknowledge and agree that use of the Internet and access to the Website is solely at your own risk. While ESA has endeavored to create a secure and reliable Website, you should understand that the confidentiality of any communication or material transmitted to or from the Website over the Internet or other form of global communication network cannot be guaranteed. Accordingly, ESA is not responsible for the security of any information transmitted to or from the Website. You must make your own determination as to such issues.
- USER NAME HANDLING POLICY. Registration as a User for access to certain areas of the Website may require both a user name and a password or adherence to other particular access requirements as designated by ESA. Only one user can use such user’s user name and password and, thus, one account. By limiting access, it helps avoid unauthorized usage by other persons, institutions, or entities because anyone with knowledge of both your user name and password can gain entry to the restricted portions of the Website and to your account. Accordingly, by using the Website, you agree to consider your user name and password as confidential information and to keep your user name and password confidential. You also agree not to use another user’s user name and password. You will immediately notify ESA if you become aware of any loss or theft of your password or any unauthorized use of your user name and password. ESA cannot and will not be liable for any loss or damage arising from your failure to comply with these obligations. ESA reserves the right to delete or change a user name or password at any time and for any reason. Notwithstanding the foregoing, nothing herein shall convey to you any further rights in your account or its information and any and all such content or information shall be subject to this TOS.
- Mobile Services. The Website may offer certain tools or services that are available to you via your mobile phone or other mobile device (collectively, “Mobile Services”). Please note that your mobile carrier’s normal messaging, data, and other rates and fees will apply to your use of the Mobile Services. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your mobile carrier, and not all Mobile Services may work with all carriers or devices. Therefore, you are responsible for checking with your mobile carrier to determine if the Mobile Services are available for your mobile devices, what restrictions, if any, may be applicable to your use of the Mobile Services, and how much they will cost you. Nevertheless, all use of the Website and its Mobile Services shall be in accordance with this TOS.
- POSTINGS. This Website may contain interactive features and functionality where users can share and post certain creative content. To the extent that the Website contains such interactive features (collectively, “Interactive Features”), you agree that by using the Website you will not upload, post, display, or transmit any of the following materials on the Website’s Interactive Features:
- anything that interferes with or disrupts the Website or the operation thereof;
- any statement or material that defames, harasses, abuses, stalks, threatens, intimidates, or in any way violates the rights of others;
- unauthorized copyrighted materials or any other material that infringes on the intellectual property rights, trade secrets, or privacy of others;
- any statement or material that violates other contractual or fiduciary rights, duties, or agreements;
- any statement or material that is bigoted, hateful, or racially offensive;
- any statement or material that encourages criminal conduct or that would give rise to civil liability or otherwise violates any law or regulation in any jurisdiction;
- any statement or material that constitutes anti-competitive collaboration and/or antitrust violations;
- any statement or material that contains vulgar, obscene, profane, or otherwise objectionable language or images that typically would not be considered socially or professionally responsible or appropriate in person;
- any statement or material that harms minors;
- any statement or material that impersonates any other person or entity, whether actual or fictitious, including, without limitation, employees and representatives of ESA;
- any statement or material that misrepresents your affiliation with any entity and/or ESA;
- anything that violates the privacy or publicity rights of any other person, including, without limitation, posting any personal identifying information of another individual;
- chain letters or pyramid schemes;
- any statement or material that is deceptive or misleading;
- any statement or material that constitutes junk mail, spam, or unauthorized advertising or promotional materials; and
- files that contain malicious code, viruses, corrupted files, or any other similar software or programs that may damage the operation of another’s computer, network, or the Website.
- PERMISSION TO USE POSTINGS. By submitting content or information of any type (a “Posting”) to an Interactive Feature or other portion of the Website or by otherwise using the Website to transmit or display a Posting, you automatically grant ESA a royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, publish, translate, create derivative works from, distribute, transmit, perform, and display such content or information (in whole or in part) worldwide and/or to incorporate into other works in any form, media, or technology now known or later developed for the full term of any rights that may exist in such content or information. You represent that you have all necessary rights to make the Posting available to ESA, and you also acknowledge that such Postings are non-confidential for all purposes. Accordingly, notwithstanding this right and license, it is understood that by merely permitting your information, content, and materials to appear on the Website, ESA has not become and is not a publisher of such information, content, and materials and is merely functioning as an intermediary to enable you to provide and display a Posting. Moreover, ESA assumes no responsibility for the deletion of or failure to store any Posting and recommends that you do not post, display, or transmit any confidential or sensitive information. All users shall remain responsible for their own Postings.
- NO PRE-SCREENING OF POSTINGS. ESA is not responsible for screening, policing, editing, or monitoring your or another user’s Postings and encourages all of its users to use reasonable discretion and caution in evaluating or reviewing any Posting. Moreover, and except as provided below with respect to ESA’s right and ability to delete or remove a Posting (or any part thereof), ESA does not endorse, oppose, or edit any opinion or information provided by you or another user and does not make any representation with respect to, nor does it endorse the accuracy, acceptability, completeness, timeliness, or reliability of any advice, opinion, statement, or other material displayed, uploaded, or distributed by you or any other user. Nevertheless, ESA reserves the right to monitor, delete, or take other action with respect to Postings (or parts thereof) at any time, without prior notice, and in our sole discretion for any or no reason. If you become aware of Postings that violate these rules regarding acceptable behavior or content, you may reach us at the contact provided at the bottom of this TOS.
- FEEDBACK AND SUBMISSIONS. ESA welcomes your feedback and suggestions about ESA’s programs or services or with respect to how to improve the Website. By transmitting any suggestions, information, material, or other content (collectively, “feedback”) to ESA, you represent and warrant that such feedback does not infringe or violate the intellectual property or proprietary rights of any third party (including, without limitation, patents, copyrights, or trademark rights) and that you have all rights necessary to convey to ESA and enable ESA to use such feedback. In addition, any feedback received through the Website will be deemed to include a royalty-free, perpetual, irrevocable, transferable, non-exclusive right and license for ESA to adopt, publish, reproduce, disseminate, transmit, distribute, copy, use, create derivative works, and display (in whole or in part) worldwide, or act on such feedback without additional approval or consideration, in any form, media, or technology now known or later developed for the full term of any rights that may exist in such content, and you hereby waive any claim to the contrary.
- THIRD-PARTY PRODUCTS/SERVICES. ESA, in its sole discretion, may feature and/or post the advertisements of third parties on the Website and/or feature on the Website materials, programs, products, and services provided by third parties. ESA makes no representations with respect to, nor does it guarantee or endorse, the quality, non-infringement, accuracy, completeness, timeliness, reliability, or correct sequencing of such third-party materials, programs, products, and services or any other materials, programs, products, and services that such third-party materials, products, and services may access. Your correspondence or any other dealings with third parties found on the Website are solely between you and such third party. Accordingly, ESA expressly disclaims responsibility and liability for all third-party provided materials, programs, products, and services contained on or accessed through the Website, and you agree that ESA shall not be responsible for any loss or damage of any sort incurred as a result of any such dealings or as the result of the presence of such third parties on the Website.
- LINKS TO OTHER WEBSITES. ESA may provide links, in its sole discretion, to other websites on the World Wide Web for your convenience in locating or accessing related information, products, and/or services. These websites have not necessarily been reviewed by ESA and are maintained by third parties over which ESA exercises no control. Accordingly, ESA expressly disclaims any responsibility for the content, the materials, the accuracy of the information, and/or the quality of the products or services provided by, available through, or advertised on these third-party websites. Moreover, these links do not imply an endorsement with respect to any third party or any website or the products or services provided by any third party.
- DISCLAIMER. THE INFORMATION, SOFTWARE FUNCTIONALITY, AND MATERIALS AVAILABLE ON OR THROUGH THIS WEBSITE ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS AND MAY INCLUDE ERRORS, OMISSIONS, OR OTHER INACCURACIES. MOREOVER, ESA MAY MAKE MODIFICATIONS AND/OR CHANGES TO THIS WEBSITE OR IN THE PRODUCTS, SOFTWARE, MATERIALS, AND INFORMATION AVAILABLE ON THIS WEBSITE AT ANY TIME AND FOR ANY REASON. ESA MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, COMPLETENESS, TIMELINESS, RELIABILITY, LEGALITY, OR ACCURACY OF THE PROGRAMS, SERVICES, PRODUCTS, SOFTWARE, MATERIALS, AND INFORMATION AVAILABLE ON THIS WEBSITE FOR ANY PURPOSE, AND EXPRESSLY DISCLAIMS (TO THE FULLEST EXTENT OF THE LAW) ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OR ANY OTHER IMPLIED WARRANTY UNDER THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT AS ENACTED BY ANY STATE. ESA ALSO MAKES NO REPRESENTATION OR WARRANTY THAT THIS WEBSITE WILL OPERATE ERROR-FREE, OR IN AN UNINTERRUPTED FASHION, OR THAT ANY MESSAGE, FILE, AND/OR INFORMATION WILL BE STORED, ARCHIVED, OR DOWNLOADED FROM THE WEBSITE IN A MANNER FREE OF VIRUSES OR CONTAMINATION OR OTHER DESTRUCTIVE FEATURES.
- LIMITATION OF LIABILITY. You expressly absolve and release ESA and our subsidiaries, affiliates, directors, officers, employees, agents, members, and assigns from any claim of harm resulting from a cause beyond our control, including, without limitation, failure of electronic or mechanical equipment or communication lines, telephone or other connection problems, computer viruses, unauthorized access, theft, operator errors, severe weather, earthquakes, or natural disasters, strikes, or other labor problems, wars, or governmental restrictions. MOREOVER, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ESA AND/OR OUR subsidiaries, affiliates, directors, officers, employees, agents, members, and assigns BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THIS WEBSITE, WITH THE DELAY OR INABILITY TO USE THIS WEBSITE, THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY INFORMATION, SOFTWARE FUNCTIONALITY, AND MATERIALS AVAILABLE THROUGH THIS WEBSITE, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, TOTAL LIABILITY OF ESA AND/OR OUR subsidiaries, affiliates, directors, officers, employees, agents, members, and assigns FOR ANY REASON WHATSOEVER RELATED TO USE OF THE WEBSITES SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU TO ESA IN CONNECTION WITH THE SUBJECT MATTER OF THE PARTICULAR DISPUTE OR $2,500 (U.S.), WHICHEVER IS LESS.
- INDEMNIFICATION. You agree to indemnify, defend, and hold harmless ESA and our subsidiaries, affiliates, directors, officers, employees, agents, members, and assigns from and against any and all loss, costs, expenses (including reasonable attorneys’ fees and expenses), claims, damages, and liabilities related to or arising out of your use of the Websites and any alleged violation by you of this TOS. We reserve the right to assume the exclusive defense of any claim for which we are entitled to indemnification under this Section. In such event, you shall provide us with such cooperation as we reasonably request.
- GOVERNING LAW. This TOS has been made in and will be construed and enforced in accordance with the laws of the District of Columbia as applied to agreements entered into and completely performed in the District of Columbia and without regard to principles of conflicts of laws. You agree that any claim or dispute against us arising out of this TOS and/or the Websites must be resolved by the U.S. District Court for the District of Columbia, unless agreed upon in writing by all parties. You access the Website on your own volition and are responsible for compliance with all applicable laws with respect to your access and use of the Website.
- ENFORCING SECURITY ON THE WEBSITE. Actual or attempted unauthorized use of the Website may result in criminal and/or civil prosecution, including, without limitation, punishment under the Computer Fraud and Abuse Act of 1986 under U.S. federal law. ESA reserves the right to view, monitor, and record activity on the Website without notice or permission from you, including, without limitation, by archiving notices or communications sent by you through the Website. Any information obtained by monitoring, reviewing, or recording is subject to review by law enforcement organizations in connection with investigation or prosecution of possible criminal or unlawful activity on the Website as well as to disclosures required by or under applicable law or related government agency actions. ESA will comply with court orders or subpoenas involving requests for such information. In addition to the foregoing, ESA reserves the right, at any time and without notice, to modify, suspend, terminate, or interrupt operation of or access to the Website, or any portion of the Website in order to protect the Website, ESA, or ESA’s business.
- INJUNCTIVE RELIEF. You acknowledge that any breach, threatened or actual, of this TOS, including, without limitation, with respect to unauthorized use of ESA proprietary assets, will cause irreparable injury to ESA, such injury would not be quantifiable in monetary damages, and ESA would not have an adequate remedy at law. You therefore agree that ESA shall be entitled, in addition to other available remedies, to seek and be awarded an injunction or other appropriate equitable relief from a court of competent jurisdiction restraining any breach, threatened or actual, of your obligations under any provision of this TOS. Accordingly, you hereby waive any requirement that ESA post any bond or other security in the event any injunctive or equitable relief is sought by or awarded to ESA to enforce any provision of this TOS.
- TERM AND TERMINATION. This TOS will take effect (or re-take effect) at the moment you register, respond to a request for information, and/or begin downloading, accessing, or using the Website, whichever is earliest. ESA reserves the right at any time and on reasonable grounds, which shall include, without limitation, any reasonable belief of fraudulent or unlawful activity or actions or omissions that violate any term or condition of this TOS, to deny your access to the Website or to any portion thereof in order to protect its name and goodwill, its business, and/or other users, and this TOS will also terminate automatically if you fail to comply with its terms and conditions, subject to the survival rights of certain provisions identified below. Termination will be effective without notice. You may also terminate this TOS at any time by notifying us at the contact provided at the bottom of this TOS, but all applicable provisions of this TOS will survive termination, as identified below, and each re-access or use of the Website will reapply this TOS (then in effect) to you. Upon termination, you must destroy all copies of any aspect of the Website in your possession. The provisions concerning ESA’s proprietary rights, feedback and submissions, disclaimers of warranty and liability, admissibility of this TOS, waiver and severability, entire agreement, governing law, and any other provisions that by their nature should survive, will survive the termination of this TOS for any reason.
- WAIVER & SEVERABILITY. Failure to insist on strict performance of any of the terms and conditions of this TOS will not operate as a waiver of any subsequent default or failure of performance. No waiver by ESA of any right under this TOS will be deemed to be either a waiver of any other right or provision or a waiver of that same right or provision at any other time. If any part of this TOS is determined to be invalid or unenforceable pursuant to applicable law, including, without limitation, the warranty disclaimers and the liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most clearly matches the intent of the original provision, and the remainder of this TOS shall continue in effect.
If you need to contact ESA regarding this TOS, please contact us at:
Attn.: Legal Department
601 Massachusetts Avenue, NW, Suite 300 West
Washington, DC 20001