Vultr.com - Instant Cloud Server Deployment
TERMS OF SERVICE

WEBSITE USER AND MEMBERSHIP TERMS AND CONDITIONS


 Effective Date: ________9/2/2005________  

Last Modified: ______3/23/2007_________

I. INTRODUCTORY PROVISIONS:

A. These Website User and Membership Terms and Conditions govern your use and access to and/or membership in, www.GameTracker.com. Hereinafter, GameTracker.com may be referred to as “we,” “us,” or other first-person pronouns. These Terms and Conditions apply to you whether you are a paid member who leases server space from us, whether you are a player who contributes to the membership fees of one of our members, a passive or active user of our services, simply a registrant who posts to and reads our message boards, or if you are merely browsing our site.

B. GameTracker is in the business of providing leased gaming server space, web pages, message boards, and other associated internet-based services. These services may be referred to in this agreement as “our services,” “the services,” or similar by syntax.

C. IMPORTANT! These Terms and Conditions apply to visitors and members of the SITE. By accessing, using, viewing, reading, printing, installing, or downloading any material from us, or becoming a member of GameTracker, you agree to be bound by these Terms and Conditions. This Agreement is intended to be governed by the Electronic Signatures in Global and National Commerce Act (E-Sign Act). You manifest your agreement to these Terms and Conditions by any act demonstrating your assent thereto, including clicking any button containing the words “I agree” or similar syntax. You may submit a paper copy of this transaction and print this form for your personal records. You have the right to withdraw your consent to use the E-Sign Act by emailing us. Your consent to use the E-Sign Act is limited to providing the information on this form. Access to this electronic record requires a simple browser program such as Internet Explorer, TM Netscape, TM Opera,™ Mozilla Firefox,™ or other alternate brands, and a computer.

D. Revisions to This Policy: We reserve the right to revise, amend, or modify this policy and our other policies and agreements at any time and in any manner. The user should periodically check this web page for any modifications regarding these Terms and Conditions by re-visiting this web page and using the “refresh” button on the user’s browser. The user should note the date of last revision to this page, which appears at the top of this page. If the “last modified” date remains unchanged, after the user has clicked the “refresh” button on his/her browser, the user may presume that no changes have been made since the last reading of the document. A changed “last modified” dates indicates that this document has been updated or edited, and the updated or edited version supersedes any prior versions immediately upon posting.

E. If you do not agree to be bound by these Terms and Conditions, you may not use our site, servers, or any other services: you must exit the GameTracker site immediately, you may not use or access the SITE. You may use and access our services only in accordance with these Terms and Conditions and any applicable laws. Please consult these Terms and Conditions regularly and read them carefully before using our services. You affirm that you have read this Agreement and understand, agree and consent to its Terms and Conditions.

F. You are solely responsible for obtaining access to our services and that access may involve third party fees (such as Internet service provider or airtime charges). You are responsible for those fees, including those fees associated with the display or delivery of advertisements. In addition, you must provide and are responsible for all equipment necessary to access our services.

II. IMAGES AND CONTENT:  

A. Our websites contain images and content, including but not limited to text, software, images, graphics, data, messages, or any other information, and any other World Wide Web Site owned, operated, licensed, or controlled by us (collectively, “Materials”).

B. If you are seeking information regarding illegal activities, please leave the GameTracker site immediately and refrain from accessing our site or services in the future.

C. You further agree not to use or access our services if doing so would violate the laws of your state, province or country.

  • You specifically agree to refrain from using our services to illegally swap files or to distribute any copyrighted materials without the express permission of the copyright holder.
  • Some of our content may depict graphic images of violence, gore, criminal activity, or battle scenes. Viewer discretion is advised. Teenagers, ages 13 to 17 must have their parents’ permission to use the SITE.  

 

III. AGE OF RESTRICTION AND MEMBERSHIP:

A. Age of Restriction. You represent and warrant you are at least 13 years of age and that you have the legal capacity to enter into this Agreement. If you are not at least 13 years of age, you terminate our use of our services immediately and may not use or access our services. Teenagers, ages 13 to 17 must have the permission of a parent or legal guardian to access, use or play on the SITE. You agree not to bypass any security and/or access features that we have installed. Additionally, we do not assume any responsibility or liability for any misrepresentations regarding a user’s age.

B. Membership. Membership and passwords may not be assigned, transferred, or sold to a third party. GameTracker and its affiliates disclaim any and all liability arising from fraudulent entry and use of our services. If a user fraudulently obtains access, we may terminate membership immediately and take all necessary and appropriate actions under applicable federal, state, and international laws.

 

IV. ACCESS TO, LIMITED LICENSE, AND INTERFERENCE WITH OUR SERVICES:

A. Access. To access GameTracker.com or some of the resources it has to offer, you may be asked to provide certain registration details or other information. It is a condition of your use of our services that all information you provide will be correct, current, and complete. If we believe that the information you provide is not correct, current, or complete, we have the right to refuse you access to our services and to terminate or suspend your access at any time with no refund due.

B. Limited License. Subject to these Terms and Conditions and in consideration of using our services, we hereby grant you a limited, nonexclusive, nontransferable personal license to access and use our services. We provide our services for personal, non-commercial use by gamers, viewers, fans, visitors, subscribers and/or potential subscribers. Users of our services are granted a single copy license to use our services and attendant software (on a single computer only). Our services shall be for private non-commercial use only, and all other uses are strictly prohibited. We reserve the right to limit the amount of bandwidth used. You agree to prevent any unauthorized hacking of our services or unauthorized use thereof. Any unauthorized use of our services or any of the Materials contained therein terminates this limited license effective immediately. You represent and warrant that you will not allow anyone under 13 to access our services without the permission of a parent or legal guardian. We reserve the right to terminate this license at any time if you breach or violate any provision of this Agreement, in which case you will be obligated to immediately destroy any information or materials you have downloaded, printed or otherwise copied from our servers. Violators of this limited license may be prosecuted to the fullest extent under the applicable law.

1. You may not circumvent any encryption or other security tools used anywhere on our servers (including the theft of user names and passwords or using another person’s user name and password in order to gain access to a restricted area of our services);

2. You may not use any data mining, bots, or similar data gathering and extraction tools on our servers, or any of our services.

3. You may not decompile, reverse engineer, modify or disassemble any of the software aspect of the Materials except and only to the extent permitted by applicable law;

4. You may not sell, rent, lease, license, sublicense, transfer, distribute, re-transmit, time- share, use as a service bureau or otherwise assign to any third party the Materials or any of your rights to access and use our services.

C. Interference. Except where expressly permitted by law and by our affirmative consent, you may not translate, reverse-engineer, decompile, disassemble, or make derivative works from our servers’ Materials. User hereby agrees not to use any automatic device or manual process to monitor or reproduce our works, and will not use any device, software, computer code, or virus to interfere or attempt to disrupt or damage GameTracker or any communications on it.

 

D. You agree to cooperate with us in causing any unauthorized use to cease immediately. At any time, if we provide a service enabling users to share information or communicate with other users, you hereby agree not to publish, disseminate or submit any defamatory, offensive, or illegal material while using our services. You are solely responsible for submitting any material that violates any United States or International laws even if a claim arises after your service is terminated, and, by doing so, your actions shall constitute a material breach of this Agreement and we shall terminate all your rights under this Agreement.

 

V I. MEMBERSHIP:

 

A. Registration. You may access the non-public portion including our gaming server services by being a member in good standing and/or with the permission of a member whose server space that you access. We reserve the right to modify our services at anytime, with or without prior notice.

1. Members may lease server space by completing an online registration form, which must be accepted by us, and you must pay all applicable fees. Upon submission of the online registration form, we will process the application. We reserve the right to contract with authorized agents to sub-contract registration services for us. In connection with completing the online registration form, you agree to:

a. Provide true, accurate, current and complete information about yourself as prompted by the registration form (such information being the “Registration Data”) and

b. Maintain and promptly update the Registration Data to keep it true, accurate, current and complete at all times while you are a member. You must promptly inform us of all changes, including, but not limited to, changes in your address and changes in your credit card used in connection with billing.

2. If you provide any information that is untrue, inaccurate, not current or incomplete, or we or any of our authorized agents have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of GameTracker, as well as subjecting you to criminal and civil liability.

3. Subscription fees are non-refundable, and you are responsible for any credit card charge backs, dishonored checks, and any related fees that we incur with respect to your account. Subscription fees are listed on our website and are rounded down to whole cents.

B. Member Account, Password, and Security. As part of the registration process, you will be issued a unique user name and password which you must provide in order to gain access to our services. You certify that when asked to choose a username you will not choose a name which may falsely represent you as somebody else or a name which may otherwise be in violation of the rights of a third party.

1. We reserve the right to disallow the use of usernames that we, at our sole discretion, deem inappropriate. We reserve the right to cancel at any time the membership of any member who uses their selected username in violation of these Terms and Conditions or in anyway we, in our sole discretion deem inappropriate.

2. Your membership, the ID and password are nontransferable and non-assignable.

3. You represent and warrant that you will not disclose to any other person your unique user name and password and that you will not provide access to our services to anyone who is not specifically authorized to use them.

4. You are solely responsible for maintaining the confidentiality of your user name and password and are fully responsible for all activities that occur under your user name and password. We will not release your password for security reasons.

5. Regarding additional password and account security, You agree to:

a. Immediately notify us of any unauthorized use of your user name and password or any other breach of security, and

b. Ensure that you exit from your account at the end of each session. You are liable and responsible for any unauthorized use of the services. Unauthorized access to GameTracker and its services is illegal and a breach of this Agreement. You indemnify us against all activities conducted through your account.

C. Membership Fees. Membership fees for use of GameTracker are prominently displayed prior to processing your subscription thereto. You agree to pay all membership fees when due according to these billing terms. All fees are nonrefundable. We reserve the right to contract with a third party to process all payments. Such third party may impose additional terms and conditions governing payment processing. Your account will be deemed past due if it is not paid in full by the payment due date. If your account becomes past due more than thirty (30) days after the invoice date, you agree to pay interest on the past due amount at a monthly rate of 1.5%, or the highest amount allowed by law, whichever is higher, compounded daily, plus any additional collection costs, credits, charge backs and attorney’s fees. Your card issuer agreement may contain additional terms with respect to your rights and liabilities as a card holder. You agree to pay all amounts due to us immediately upon cancellation or termination of your account. We reserve the right to make changes to our fees and billing methods, including the addition of supplemental charges for any content or services provided by us, with or without prior notice to you, at any time. This site uses an automatic rebill cycle with the credit card payment method.

D. Billing Errors. If you believe that you have been erroneously billed, please notify us immediately of such error. If we do not hear from you within thirty (30) days after such billing error first appears on any account statement, such fee will be deemed acceptable by you for all purposes, including resolution of inquiries made by your credit card issuer. You release us from all liabilities and claims of loss resulting from any error or discrepancy that is not reported to us within thirty (30) days of its publication.

E. Download and Usage Limit. As a member of good standing, you may download up to 500 MB of data each day. Upon reaching this limit, you may be denied access to download any additional data until the beginning of the next day.

VIII. TERMINATION:

A. You may cancel your premium membership at any time by cancelling your account from the members area.

B. You hereby agree to be personally liable for any and all charges incurred by you until termination of membership for goods or services through your use of the services. In the event that your account is canceled by you, no refund, including any membership fees, will be granted; no online time or other credits will be credited to you or can be converted to cash or other form of reimbursement. This Agreement’s provisions shall survive its termination, unless otherwise stated. Upon our processing of your request to cancel your membership, you will no longer have access to the non-public areas of our services.

C. Without limiting other remedies, we may immediately issue a warning, temporarily suspend, indefinitely suspend, or terminate your access and use of the GameTracker and refuse to provide our services to you at any time, with or without advance notice, if:

1. We believe that you have breached any material term of these Terms and Conditions or the documents it incorporates by reference;

2. You fail to pay any amount due by the payment due date;

3. We are unable to verify or authenticate any information you provide to us;

4. We believe that your actions may cause legal liability for you, our users or us; or

5. We decide to cease operations or to otherwise discontinue any of the services or parts thereof.

6. We believe that you have breached any Terms and Conditions set forth by

the game publishers for the game in your subscription.

D. Further, you agree that neither GameTracker nor any third party acting on our behalf shall be liable to you for any termination of your membership or access to our services. You agree that if your account is terminated, you will not attempt to re-register as a member without prior written consent from us.

 

IX. DISCLAIMER OF WARRANTY:

A. You expressly agree that use of our services or any of our materials is at your own and sole risk.

B. Our services are provided “as is” without warranty of any kind, either express or implied, including but not limited to, any implied warranties of merchantability, fitness for a particular purpose, title, or non-infringement.

C. We make no representations or warranties that our services or any materials contained therein will be uninterrupted, timely, secure, or error free; nor does GameTracker make any representations or warranties as to the quality, suitability, truth, usefulness, accuracy or completeness of our services or any of the materials contained therein.

D. You also understand and agree that any material and/or data downloaded or otherwise obtained through the use of our services or any of the materials contained therein is done at your own discretion and risk and that you will be solely responsible for any damage to your computer system or loss of data that results from the download of such material and/or data.

E. You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet will be free of viruses, worms, Trojan horses or other code that may manifest contaminating or destructive properties. GameTracker does not assume any responsibility or risk for your use of the internet.

F. We make no warranty regarding any goods or services purchased or obtained through our services or any transaction entered into through us and is not responsible for any use of confidential or private information by sellers or third parties.

G. We may change any of the information found on GameTracker.com at any time without notice including the terms of service without notice. We make no commitment to update the information found on our servers or in our services. We make no commitment to update the materials.

H. The warranties and representations set forth in this agreement are the only warranties and representations with respect to this agreement, and are in lieu of any and all other warranties, written or oral, express or implied, that may arise either by agreement between the parties or by operation of law, including warranties of merchantability and fitness for a particular purpose. None of these warranties and representations will extend to any third person. Some jurisdictions do not allow the exclusion of certain warranties, so some of the above exclusions may not apply to you.

 

X. DISCLAIMER:

 

A. The provision of any services which is in violation of any laws is strictly prohibited. If we determine that you or any user has provided or intends to purchase or provide any services in violation of any law, your ability to use our services will be terminated immediately. We do hereby disclaim any liability for damages that may arise from any user providing any services for any purpose that violates any law. You do hereby agree to defend, indemnify and hold us harmless from any liability that may arise should you violate any law.

B. You do also hereby agree to defend and indemnify us should any third party be harmed by your illegal actions or should we be obligated to defend any claims including, without limitation, any criminal action brought by any party not affiliated with us.

 

 

XI. LIMITATION OF LIABILITY:

A. In no event shall we (or our licensors, agents, suppliers, resellers, service providers, or any other subscribers or suppliers) be liable to you, or any other third party for any direct, special, indirect, incidental, consequential, exemplary, or punitive damages, including without limitation, damages for loss of profits, loss of information, business interruption, revenue, or goodwill, which may arise from any person’s use, misuse, or inability to use our services or any of the materials contained therein, even if we have been advised of the probability of such damages. This is for any matter arising out of or relating to this agreement, whether such liability is asserted on the basis of contract, tort or otherwise, even if we have been advised of the possibility of such damages.

B. In no event shall our maximum total aggregate liability hereunder for direct damages exceed the total fees actually paid by you for use of our services for a period of no more than one (1) month from the accrual of the applicable cause or causes of action. Because some jurisdictions prohibit the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to you.

 

XII. INDEMNITY:

 

You agree to defend, indemnify, and hold harmless, GameTracker and our officers, directors, shareholders, employees, independent contractors, telecommunication providers, and agents, from and against any and all claims, actions, loss, liabilities, expenses, costs, or demands, including without limitation legal and accounting fees, for all damages directly, indirectly, and/or consequentially resulting or allegedly resulting from your, or you under another person’s authority including without limitation to governmental agencies, use, misuse, or inability to use our servives or any of the Materials contained therein, or your breach of any of these Terms and Conditions. We shall promptly notify you by electronic mail of any such claim or suit, and cooperate fully (at your expense) in the defense of such claim or suit. We reserve the right to participate in the defense of such claim or defense at its own expense, and choose its own legal counsel, but are not obligated to do so.

 

XIII. LINKS AND LINKING:

 

A. Some websites which are linked to us are owned and operated by third parties. Because we have no control over such websites and resources, you acknowledge and agree that we are not responsible or liable for the availability of such external websites or resources, and does not screen or endorse them, and is not responsible or liable for any content, advertising, services, products, or other materials on or available from such websites or resources.

B. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such third-party content, goods or services available on or through any such website or resource. If you decide to access any such third party website, you do so entirely at your own risk and subject to any terms and conditions and privacy policies posted therein.

C. Users further acknowledge that use of any website controlled, owned or operated by third parties is governed by the terms and conditions of use for those websites, and not by our Terms and Conditions, Spam Policy, Webmaster Agreement, or Privacy Policy, which are incorporated by reference.

D. Links to external websites (including external websites that are framed by the Site) or inclusions of advertisements do not constitute an endorsement by us of such websites or the content, products, advertising or other materials presented on our servers, but are for user's convenience.

E. Users access them at their own risk. We expressly disclaims any liability for any damages whatsoever incurred by any user in connection with the use of any website, the access to which was found through our services. We expressly disclaims any liability derived from the use and/or viewing of any links that may appear in our services.

F. All users do hereby agree to hold GameTracker harmless from any and all damages and liability that may result from the use of links that may appear on our servers. We reserve the right to terminate any link or linking program at anytime.

 

XIV. TRADEMARK INFORMATION:

A. GameTracker is a protected service mark and/or trademarks. The terms “GameTracker.com” and “Choopa, Inc.” are considered to be our trademarks. We aggressively defend our intellectual property rights and we will aggressively pursue anyone who infringes on our trademarks.

B. Other manufacturers’ product and service names referenced herein may be trademarks and service marks of their respective companies and are the exclusive property of such respective owners, and may not be used publicly without the express written consent of the owners and/or holders of such trademarks and service marks.

C. Our marks, logos, domains, and trademarks may not be used publicly except with express written permission from us, and may not be used in any manner that is likely to cause confusion among consumers, or in any manner that disparages or di scredits us.

 

XV. COPYRIGHT INFORMATION:

A. The Materials accessible from our servers, and any other World Wide Web Site owned, operated, licensed, or controlled by us, is our proprietary information and valuable intellectual property. Any copyright infringement will not be tolerated. Our words and software are registered with the U.S. Copyright Office.

B. Our Materials may not be copied, distributed, republished, modified, uploaded, posted, or transmitted in any way without the prior written consent of us, except that you may print out a copy of the Materials solely for your personal use. In doing so, you may 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 Materials.

C. Modification or use of the Content except as expressly provided in these Terms and Conditions violates our intellectual property rights.

D. Neither title nor intellectual property rights are transferred to you by the use of our services.

E. All of our Materials, such as text, graphics, photographs, video and audio clips, music, soundtracks, button icons, streaming data, animation, images, downloadable materials, data compilations, and software is the property of GameTracker or its content suppliers and is protected by United States and international copyright laws. The compilation of all of our Materials is the exclusive property of GameTracker or its content suppliers and protected by United States and international copyright laws, as well as other laws and regulations.

 

XVI. Notice of Claimed Infringement

We respect the intellectual property of others, and we ask our users to do the same. We voluntarily observe and comply with the United States ’ Digital Millennium Copyright Act. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide our Designated Copyright Agent the following information:

A. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;

B. Description of the copyrighted work or other intellectual property that you claim has been infringed;

C. A description of where the material that you claim is infringing is located;

D. Your address, telephone number, and email address;

E. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and

F. A statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.

 

G. You may send your Noti ce of Claimed Infringement to:

  David Gucker
  100 Matawan Rd. Suite 420
  Matawan, NJ 07747
  dmca@gametracker.com

Please do not sent other inquires or information to our Designated Agent.

 

XVII. NOTICE AND TAKEDOWN PROCEDURES:

We implement the following “notice and takedown” procedure upon receipt of any notification of claimed copyright infringement:

A. We reserve the right at any time to disable access to, or remove any material or activity accessible on or from our services or any materials claimed to be infringing or based on facts or circumstances from which infringing activity is apparent. 

B. It is GameTracker firm policy to terminate the accounts of copyright infringers, when appropriate, and we will act expeditiously to remove access to all material that infringes on another’s copyright, according to the procedure set forth in 17 U.S.C. §512 of the Digital Millennium Copyright Act (“DMCA”). Our DMCA Notice Procedures are set forth in the preceding paragraph. If the notice does not comply with Paragraph 19 and §512 of the DMCA, but does comply with three requirements for identifying the sites that are infringing according to §512 of the DMCA, we shall attempt to contact or take other reasonable steps to contact the complaining party to help that party comply with the notice requirements.

C. When the Designated Agent receives a valid notice, we will expeditiously remove and/or disable access to the infringing material and shall notify the affected user. Then, the affected user may submit a counter-notification to the Designated Agent containing a statement made under penalty of perjury that the user has a good faith belief that the material was removed because of misidentification of the material. After the Designated Agent receives the counter-notification, it will replace the material at issue within 10-14 days after receipt of the counter-notification unless the Designated Agent receives notice that a court action has been filed by the complaining party seeking an injunction against the infringing activity.

D. We reserve the right to modify, alter or add to this policy, and all users should regularly check back to these Terms and Conditions to stay current on any such changes.

 

XVIII. EXPORT CONTROL:

A. You understand and acknowledge that the software elements of the Materials on our servers may be subject to regulation by agencies of the United States Government, including the United States Department of Commerce, which prohibits export or diversion of software to certain countries and third parties. Diversion of such Materials contrary to United States ’ or international law is prohibited.

B. You will not assist or participate in any such diversion or other violation of applicable laws and regulations.

C. You warrant that you will not license or otherwise permit anyone not approved to receive controlled commodities under applicable laws and regulations and that you will abide by such laws and regulations.

D. You agree that none of the Materials are being or will be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals or be used for proscribed activities.

 

XIX. NO AGENCY RELATIONSHIP:

 

Nothing in this Agreement shall be deemed to constitute, create, imply, give effect to, or otherwise recognize a partnership, employment, joint venture or formal business entity of any kind; and the rights and obligations of the parties shall be limited to those expressly set forth herein.

 

XX. NOTICE:

 

A. Notice. Any notice required to be given under this Agreement may be provided by email to a functioning email address of the party to be noticed, by a general posting on our servers, or personal delivery by commercial carrier such as FedEx or Airborne. Notices by customers to us shall be given by electronic messages unless otherwise specified in the Agreement.

B. Change of Address. Either party may change the address to which notice is to be sent by written notice to the other party pursuant to this provision of the Agreement.

C. When Notice is Effective. Notices shall be deemed effective upon delivery.  Notices delivered by overnight carrier (e.g., United States Express Mail or Federal Express) shall be deemed delivered on the business day following mailing.  Notices mailed by United States Mail, postage prepaid, registered or certified with return receipt requested, shall be deemed delivered five (5) days after mailing.  Notices delivered by any other method shall be deemed given upon receipt.  Notices by email and facsimile transmission, with confirmation from the transmitting machine that the transmission was completed, are acceptable under this Agreement provided that they are delivered one (1) hour after transmission if sent during the recipient's business hours, or 9:00 a.m. (recipient's time) the next business day.  Either Party may, by giving the other Party appropriate written notice, change the designated address, fax number and/or recipient for any notice or courtesy copy, hereunder.

D. Refused, Unclaimed, or Undeliverable Notice. Any correctly addressed notice that is refused, unclaimed, or undeliverable, because of an act or omission of the Party to be notified shall be deemed effective as of the first date that said notice was refused or deemed undeliverable by the postal authorities, messenger, facsimile machine, email server, or overnight delivery service.

XXI.COMMUNICATIONS NOT PRIVATE:

We do not provide any facility for sending or receiving private or confidential electronic communications. All messages transmitted to us shall be deemed to be readily accessible to the general public. Visitors should not use our services to transmit any communication for which the sender intends only the sender and the intended recipient(s) to read. Notice is hereby given that all messages entered onto our servers can and may be read by the agents and operators of this service, regardless of whether they are the intended recipients of such messages.

 

XXII. FORCE MAJEURE:

We shall not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond our reasonable control, including but not limited to: acts of God, such as fire, flood, earthquakes, hurricanes, tropical storms or other natural disasters; war, riot, arson, embargoes, acts of civil or military authority, or terrorism; fiber cuts; strikes, or shortages in transportation, facilities, fuel, energy, labor or materials; failure of the telecommunications or information services infrastructure; hacking, SPAM, or any failure of a computer, server or software, including Y2K errors or omissions, for so long as such event continues to delay our performance.

 

XXIII. GENERAL PROVISIONS:

 

A. Governing Law. These Terms and Conditions and all matters arising out of, or otherwise relating to, these Terms and Conditions shall be governed by the laws of the State of Florida , excluding its conflict of law provisions. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms and Conditions. The parties hereby submit to the personal jurisdiction of the state and federal courts of the State of Florida . Exclusive venue for any litigation or arbitration permitted under this Agreement shall be with the state and federal courts located in Orange County , Florida .

  • Rights to Injunctive Relief. Both parties acknowledge that remedies at law may be inadequate to provide an aggrieved party with full compensation in the event of the other party’s breach, and that an aggrieved party shall therefore be entitled to seek injunctive relief in the event of any such breach, in addition to seeking all other remedies available at law or in equity. 
  • Binding Arbitration. If there is a dispute between the Parties arising out of or otherwise relating to this Agreement, the Parties shall meet and negotiate in good faith to attempt to resolve the dispute. If the Parties are unable to resolve the dispute through direct negotiations, then, except as otherwise provided herein, either Party may submit the issue to binding arbitration in accordance with the then-existing Commercial Arbitration Rules of the American Arbitration Association. Arbitral Claims shall include, but are not limited to, contract and tort claims of all kinds, and all claims based on any federal, state or local law, statute, or regulation, excepting only claims under applicable worker’s compensation law, unemployment insurance claims, actions for injunctions, attachment, garnishment, and other eq uitable relief. The arbitration shall be conducted in Orange County , Florida , and conducted by a single arbitrator, knowledgeable in Internet and e-Commerce disputes. The arbitrator shall have no authority to award any punitive or exemplary damages; certify a class action; add any parties; vary or ignore the provisions of these Terms and Conditions; and shall be bound by governing and applicable law. The arbitrator shall render a written opinion setting forth all material facts and the basis of his or her decision within thirty (30) days of the conclusion of the arbitration proceeding. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN REGARD TO ARBITRAL CLAIMS.

 

D. Assignment. The rights and liabilities of the parties hereto will bind and inure to the benefit of their respective assignees, successors, executors, and administrators, as the case may be.

  • Severability. If for any reason a court of competent jurisdiction or an arbitrator finds any provision of these Terms and Conditions, or any portion thereof, to be unenforceable, that provision will be enforced to the maximum extent permissible and the remainder of these Terms and Conditions will continue in full force and effect.

 

F. Attorney’s Fees. In the event any Party shall commence any claims, actions, formal legal action, or arbitration to interpret and/or enforce the terms and conditions of this Agreement, or relating in any way to this Agreement, including without limitation asserted breaches of representations and warranties, the prevailing party in any such action or proceeding shall be entitled to recover, in addition to all other available relief, its reasonable attorney’s fees and costs incurred in connection therewith, including attorney’s fees incurred on appeal.

G. No Waiver. No waiver produced shall be deemed a waiver of any subsequent default of the same provision of these Terms and Conditions. If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from these Terms and Conditions.

H. Headings. All headings are solely for the convenience of reference and shall not affect the meaning, construction or effect of these Terms and Conditions.

I. Complete Agreement. These Terms and Conditions constitute the entire agreement between the parties with respect to your access and use of our services and the Materials contained therein, and your membership with us, and supersede and replace all prior understandings or agreements, written or oral, regarding such subject matter.

J. Modifications. We reserve the right to change any of the provisions posted herein and you agree to review these Terms and Conditions each time you visit GameTracker or you specifically waive your right to do so. Your continued use of our services following our posting of any changes to these Terms and Conditions constitutes your acceptance of such changes. We do not and will not assume any obligation to provide you with notice of any change to these Terms and Conditions. Unless accepted by us in writing, these Terms and Conditions may not be amended by you.

K. Government Rights. The software elements of the Materials have been developed at private expense and are “commercial computer software” or “restricted computer software” within the meaning of the FARs , the DFARs, and any other similar regulations relating to government acquisition of computer software. Nothing contained herein will be deemed to: (1) grant any government agency any license or other rights greater than are mandated by statute or regulation for commercial computer software developed entirely at private expense, or (2) restrict any government rights in any extensions or custom solutions provided hereunder and developed at government expense . You further agree not to upload to our servers any data or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software. This assurance and commitment shall survive termination of this Agreement.

L. Other Jurisdictions. We make no representation that our services or any of the Materials contained therein are appropriate or available for use in other locations, and access to them from territories where their content may be illegal or is otherwise prohibited. Those who choose to access our services from such locations do on their own initiative and are solely responsible for compliance with all applicable local laws.

 

COMPLAINTS – CALIFORNIA RESIDENTS

The Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be contacted in writing at 1020 N. Street, #501, Sacramento , CA 95814 , or by telephone at 1-916-445-1254.

This document was prepared by Lawrence G. Walters, Esq., of www.FirstAmendment.com.