IMPORTANT! These Terms and Conditions ("Terms and Conditions") govern your (the "User" or "You") use of the Nyko Web Site (the "Web Site") provided by Nyko Technologies, Inc. (the "Company"). These Terms and Conditions are subject to change by the Company at any time in its discretion. Your use of the Web Site after such changes are implemented constitutes your acceptance of the changes. Please consult these terms and conditions regularly. These Terms and Conditions were last updated: November 25, 2003.
User has a nonexclusive, nontransferable, limited, and revocable right to use the Web Site solely for User's personal educational, informational, and entertainment use. User will not use the Web Site for any other purpose, including any commercial purpose, without the Company's express prior written consent. For example, User will not, and will not authorize any other person to, (i) co-brand the Web Site or portion thereof, or (ii) frame the Web Site or portion thereof (whereby the Web Site or portion thereof will appear on the same screen with a portion of another web site). "co-branding" means to display a name, logo, trademark, or other means of attribution or identification of any party in such a manner reasonably likely to give a User the impression that such other party has the right to display, publish, or distribute the Web Site or content accessible within the Web Site (the "Content"). User agrees to cooperate with the Company in causing any unauthorized co-branding, framing or linking to immediately cease.
User acknowledges and agrees that the content accessible within the Web Site is the proprietary information of the Company and its content providers, and the Company and its content providers retain all right, title, and interest in the Content. Accordingly, User will not reproduce, transmit, publish or distribute such Content to any third party without the express written consent of the Company or the applicable content provider except that User may print out a copy of Content solely for User's personal use. In doing so, User will not remove or alter, or cause to be removed or altered, any copyright, trademark, trade name, service mark, or any other proprietary notice or legend appearing on any of the Content.
User will have access to a variety of sources of content through the Internet. The Company has made no effort to verify the accuracy or suitability of any information contained in any such sources. Accordingly, the Company will have no liability or responsibility whatsoever for any content contained within any such sources. User accesses, uses, and relies upon such content at User's own risk. User understands further that the Internet contains unedited materials, some of which are sexually explicit or may be offensive. User accesses such materials at User's risk. Company has no control over and accepts no responsibility whatsoever for such materials.
User understands that, except for information, products or services clearly identified as being supplied by the Company, the Company does not operate, control or endorse any information, products or services on the Internet in any way. User also understands that the Company cannot and does not guarantee or warrant that files available for downloading from the Internet will be free of infection or viruses, worms, Trojan horses or other code that manifest contaminating or destructive properties. Each User is responsible for implementing sufficient procedures and checkpoints to satisfy User's particular requirements for accuracy of data input and output, and for maintaining a means external to the Web Site for the reconstruction of any lost data. The Company does not assume any responsibility or risk for User's use of the Internet.
The Company expressly disclaims any and all warranties with respect to any Content accessible within or through the Web Site, express or implied, including any implied warranty of merchantability, fitness for a particular purpose, title, or non-infringement.
Limitation On Liability
The Company, its licensors, service providers, content providers, employees, agents, officers and directors will not be liable for any incidental, indirect, consequential, or special damages, including loss of revenue or income, pain and suffering, emotional distress or similar damages, even if the Company has been advised of the possibility of such damages. In no event will the collective liability of the Company and its licensors, service providers, content providers, employees, agents, officers and directors to any party (regardless of the form of action, whether in contract, tort or otherwise) exceed the amount User has paid to the Company for the applicable Content or service out of which liability arose.
User will indemnify and hold the Company, its licensors, content providers, service providers and contractors (the "Indemnified Parties") harmless from any breach of these Terms and Conditions by User, including any use of Content other than as expressly authorized in these Terms and Conditions. User agrees that the Indemnified Parties will have no liability in connection with any such breach or unauthorized use, and agrees to indemnify any and all resulting loss, damages, judgments, awards, costs, expenses, and attorneys' fees of the Indemnified Parties in connection therewith. User will also indemnify and hold the Indemnified Parties harmless from and against any claims brought by third parties arising out of User's use of the information accessed from the Web Site.
Information posted on forums, bulletin boards, or similar portions of the Web Site ("Forums") is supplied by third parties and other Users unless the Company or its authorized representative identifies itself as the content poster. Any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties or any other User are those of the respective author(s) and not of the Company. User will not post any of the following material in any Forum:
- material which threatens or abuses others, or which is defamatory or libelous, or which is invasive of another's privacy;
- material for which User does not have the right to post, including the proprietary material of any third party;
- material which advocates illegal activity or discusses an intent to commit an illegal act;
- material for advertising or commercial solicitation;
- material which is vulgar, obscene, pornographic, or indecent; or
- material which does not pertain directly to the subject matter of the particular forum.
The Company reserves the right to monitor Forums to determine compliance with these Terms and Conditions, as well the right to remove or refuse to post any posting, including any of the above postings upon discovery thereof. Notwithstanding these rights, Users remain solely responsible for the content of its postings. User acknowledges and agrees that neither the Company nor any third party content provider will assume or have any liability for any action or inaction by the Company or any third party content provider with respect to any posting on the Forums. User will not (i) select or use a member name or e-mail address of another person with the intent to impersonate that person; (ii) use a user name or e-mail address subject to the rights of any person without authorization; (iii) use a member name in violation of the intellectual property rights of any person; or (iv) use a member name that the Company, in its sole discretion, deems offensive.
Further, User hereby grants to Company the royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display any message posted in Forums (in whole or in part) worldwide or to incorporate any message in other works in any form, media or technology now known or later developed.
a. Arbitration. Any controversy or claim arising out of, or relating to, these Terms and Conditions, or the making, performance or interpretation thereof, shall be settled by arbitration in Los Angeles, California in accordance with the rules of the American Arbitration Association then existing, and judgment on the arbitration award may be entered in any court having jurisdiction over the subject matter of the controversy. The parties further agree that a restraining order, injunction, writ of possession and/or writ of attachment may be applied for from a court of competent jurisdiction by any party pending resolution of the dispute. The arbitrators selected shall be persons experienced in negotiating, making and consummating agreements of the type of these Terms and Conditions.
b. Applicable Law. These Terms and Conditions shall, in all respects, be governed by the laws of the State of California applicable to agreements executed and to be wholly performed within California.
c. Severability. Nothing contained herein shall be construed so as to require the commission of any act contrary to law, and wherever there is any conflict between any provisions contained herein and any present or future statute, law, ordinance or regulation, the latter shall prevail; but the provision of these Terms and Conditions which is affected shall be curtailed and limited only to the extent necessary to bring it within the requirements of the law.
d. Further Assurances. Each of the parties hereto shall execute and deliver any and all additional papers, documents and other assurances, and shall do any and all acts and things reasonably necessary in connection with the performance of their obligations hereunder to carry out the intent of the parties hereto.
e. Successors and Assigns. All of the terms and provisions contained herein shall inure to the benefit of and shall be binding upon the parties hereto and their respective heirs, legal representatives, successors and assigns.
f. Entire Agreement. These Terms and Conditions constitutes the entire understanding and agreement of the parties with respect to its subject matter and any and all prior agreements, understandings or representations with respect to its subject matter are hereby terminated and cancelled in their entirety and are of no further force or effect.
g. Non-Waiver. No waiver by any party hereto of a breach of any provision of these Terms and Conditions shall constitute a waiver of any preceding or succeeding breach of the same or any other provision hereof.
h. Number and Gender. In these Terms and Conditions, the masculine, feminine or neuter gender, and the singular or plural number, shall each be deemed to include the others whenever the context so requires.
i. Captions. The captions appearing at the commencement of the sections hereof are descriptive only and for convenience in reference. Should there be any conflict between any such caption and the section at the head of which it appears, the section and not such caption shall control and govern in the construction of these Terms and Conditions.
j. Parties in Interest. Nothing in these Terms and Conditions, whether express or implied, is intended to confer any rights or remedies under or by reason of these Terms and Conditions on any persons other than the parties and their respective successors and assigns, nor is anything in these Terms and Conditions intended to relieve or discharge the obligation or liability of any third persons to any party to these Terms and Conditions, nor shall any provision give any third person any right of subrogation or action over or against any party to these Terms and Conditions.