EULA/December 2004
City of Heroes
USER AGREEMENT (the "Agreement")
Last Modified December 2004
1. TERMS OF AGREEMENT
(a) Terms of Agreement. NCsoft Europe Limited (“NCsoft”) offers to allow you to play its multi-player online computer game "City of Heroes " conditional upon your agreement to all of the terms and conditions contained in this Agreement and your compliance with the posted Rules of Conduct. Additionally, you agree to the terms of NCsoft's data protection policy http://uk.cityofheroes.com/support/confidentiality.html, since your data may be transferred to a country outside the EU. Your use of City of Heroes constitutes your agreement to all such terms and conditions and your agreement to comply with the Rules of Conduct. To confirm your agreement, you must click on the "I Accept" button at the end of this Agreement. If you do not so agree, you must click on the "I Reject" button at the end of this Agreement, in which case you reject the offered terms of use and will not be permitted to play City of Heroes . If you have any questions regarding these terms and conditions or the Rules of Conduct, please contact NCsoft customer service by visiting the support section of our web site, currently at the following link: http://uk.support.cityofheroes.com .
(b) Amendments. NCsoft may amend this Agreement or modify the Rules of Conduct at any time in its sole discretion by posting on our web site (a) the amended Agreement, currently at http://uk.cityofheroes.com/support/terms.html or (b) the modified Rules of Conduct, currently at http://uk.cityofheroes.com/support/conduct.html . When logging onto the Service (as defined below) you will be asked to confirm your acceptance to any such revised terms and conditions. If you do not agree to the revised terms and conditions, you should contact NCsoft immediately to discuss closure of your Account (also defined below).
2. DESCRIPTION OF SERVICE
NCsoft offers City of Heroes as a fee-based online fantasy role-playing game service (the "Service") accessible through our web site, currently at http://uk.cityofheroes.com (the "Web Site"). NCsoft reserves the right to change the URL address of the Web Site at any time. To use the Service, you will need to install software which NCsoft makes available from the Web Site via download or which you have purchased from a retailer, including but not limited to all and any items accompanying the software, such as user manuals and serial codes (the "Software"). Anyone desiring to use the Service is required to establish an account with NCsoft (the "Account"). NCsoft does not provide Internet access, and you are responsible for all fees associated with your Internet connection. The Web Site located at uk.cityofheroes.com is an active part of the Service and any use of the Web Site is governed by the same terms and conditions of this User Agreement and the Rules of Conduct.
3. LICENSE TO USE
Subject to the terms of this Agreement, NCsoft grants to you, for your personal use only, a non-exclusive, nontransferable (except as permitted in Section 4(a)) license to use the Service, and a non-exclusive, nontransferable (except as permitted in Section 4(a)) license to use the Software in connection with the Service, for a 30-day trial period without charge and thereafter on a prepaid basis according to Section 5 for so long as you maintain an authorized and fully-paid Account. You may not (a) sublicense, rent, lease, loan or otherwise transfer the Software or the Service (or any part thereof), including but not limited to serial codes; (b) modify, adapt, reverse engineer or decompile the Software, or otherwise attempt to derive source code from the Software; (c) create any derivative works in respect of the Software or the Service; or (d) otherwise use the Software or the Service except as expressly provided in this Agreement. Title to the Software, and all rights with respect to the Software and Service not specifically granted under this Agreement, including without limitation all rights of reproduction, modification, distribution, display, disassembly and decompilation and all copyright, patent, trademark, trade secret and other proprietary rights and interests are reserved to NCsoft.
4. ACCOUNT
(a) Eligibility. By clicking the "I Accept" button you represent that you are an adult 18 years of age or older or, if under 18 years of age, that you have the consent of a parent or guardian and will provide their details where requested. Only one person may use an Account. You are liable for all activities conducted through your Account, and parents or guardians are liable for all activities of their minor child conducted through the Account.
(b) Account ID. At the time your Account is opened, you must choose a name to identify yourself to NCsoft staff (your "Account ID"). You may not select as your Account ID the name of another person, or a name which violates any third party's trademark right, copyright, or other proprietary right, or which may mislead other players to believe you to be an employee of NCsoft or its associated companies, or which NCsoft deems in its sole discretion to be vulgar or otherwise offensive. NCsoft reserves the right, in its sole discretion, to (1) delete or alter any Account ID or (2) terminate any license granted herein, for any reason whatsoever, including, without limitation, any suspected or actual infringement of any trademark or trade name right, copyright, or other proprietary right. You have sole liability for all activities conducted through your Account or under your Account ID.
(c) Message Board ID. You have the option to create a Message Board ID for use on the official City of Heroes message boards. You may not select as your Message Board ID the name of another person, or a name which violates any third party's trademark right, copyright, or other proprietary right, or which may mislead other players to believe you to be an employee of NCsoft or its associated companies, or which NCsoft deems at its sole discretion to be vulgar or otherwise offensive. NCsoft reserves the right, in its sole discretion, to (1) delete or alter any Message Board ID or (2) terminate any license granted herein, for any reason whatsoever, including, without limitation, any suspected or actual infringement of any trademark or trade name right, copyright, or other proprietary right (3) to delete any content published on any electronic boards without notice. You have sole liability for all activities conducted under your Message Board ID.
(d) Account. By agreeing to the User Agreement you agree that you do not own the Account you use to access the Service, the characters NCsoft stores on NCsoft servers, the items stored on these servers, or any other data which the servers and Accounts are comprised of. The Account you create is needed to login to the Service and the fee that you pay is to continue to access the Service.
(e) Character Name. In order to use the Service, you must create a character and choose a name for your character to identify your character to other Members (your "Character Name"). You may not select as your Character Name the name of another person, or a name which violates any third party's trademark right, copyright, or other proprietary right, or which may mislead other players to believe you to be an employee of NCsoft or its associated companies, or which NCsoft deems at its sole discretion to be vulgar or otherwise offensive. NCsoft reserves the right, in its sole discretion, to (1) delete or alter any Character Name or (2) terminate any license granted herein, for any reason whatsoever, including, without limitation, any suspected or actual infringement of any trademark or trade name right, copyright, or other proprietary right.
(f) Super Group Names, Super Group Member Titles, Battle Cry, and Character Description. While accessing the Service, it is possible to name your Super Group, give titles to members of your Super Group, create a Battle Cry, and write a Character Description. You may not create a Battle Cry, Character Description, give a name to a Super Group, or give a title to a Super Group member that is the name/description/title of another person, or a name/description/title which violates any third party's trademark right, copyright, or other proprietary right, or which may mislead other players to believe you to be an employee of NCsoft or its associated companies, or which NCsoft deems at its sole discretion to be vulgar or otherwise offensive. NCsoft reserves the right, in its sole discretion, to (1) delete or alter any name/description/title given to a Super Group, Super Group Member, Battle Cry, or Character Description or (2) terminate any license granted herein, for any reason whatsoever, including, without limitation, any suspected or actual infringement of any trademark or trade name right, copyright, or other proprietary right.
(g) Passwords. At the time your Account is opened, you must select a password. You are responsible for maintaining the confidentiality of your password and you are responsible for any harm resulting from your disclosure or allowing the disclosure of your password or from use by any person of your password to gain access to your Account and Account ID. At no time should you respond to an online request for a password. NCsoft will never ask for your password offline or online, except that you will be required to enter your password as part of the log-on process.
(h) Registration Obligations. You agree to provide true, accurate, current and complete information about yourself as prompted by the Service's registration form ("Registration Data") and maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or NCsoft has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, NCsoft has the right to suspend or terminate your Account and refuse any and all current or future use of the Service.
(i) Former Members. Members whose Accounts have been terminated by NCsoft may not access the Service in any manner or for any reason, including through any other Account, without the express written permission of NCsoft.
(j) Related Accounts. If NCsoft terminates an Account, NCsoft may terminate any other Accounts that share the same member name, phone number, email address, postal address, Internet Protocol address, or credit card number with the terminated Account.
(k) In City of Heroes, characters have the privilege of sending server wide messages called 'Global Chat.' With this privilege comes a high level of responsibility on the part of the user. Due to the fact that this communication channel has the ability to impact every player on the server, NCsoft will not tolerate any inappropriate behavior of any sort in this chat channel. This includes but is not limited to: inappropriate language of any sort or any attempt to escape the profanity filter, inappropriate or vulgar content of any sort, repeated 'spamming,' or 'flooding' of the global chat channel, or any other conduct determined to be inappropriate by NCsoft Support, in its sole discretion. Any violation of this term or rules of conduct may, in the sole discretion of NCsoft, lead to the temporary removal of the character's ability to communicate, the Account being suspended for a set period of time, or lead to permanent Account closure.
5. SERVICE FEE
Our fees and billing procedures are published in the registration section of the Web Site, which are incorporated herein by this reference. All fees are stated in Pounds Sterling (£) or Euros (€). YOUR MEMBERSHIP FEES ARE PAYABLE IN ADVANCE AND ARE NOT REFUNDABLE IN WHOLE OR IN PART FOR ANY REASON WHATSOEVER, INCLUDING, WITHOUT LIMITATION, INTERRUPTION OR UNAVAILABILITY OF SERVICE (SEE ALSO SECTION 10 BELOW). We will automatically charge your credit card on a recurring basis for applicable Account fees, plus any applicable taxes we are required to collect, where you authorize us to do so. All recurring Account fees are payable in advance. YOU ARE FULLY LIABLE FOR ALL CHARGES TO YOUR ACCOUNT. After opening your Account there is a free trial period, you will not be charged any Account fees if you cancel your Account within the free trial period. The duration of the free trial period will be published in the registration section of the Web Site. Any person who has been a Member is not eligible for any subsequent free trial period. By paying by credit card, you represent to NCsoft that you are the authorized user of the credit card used to pay the Account fee. You agree to promptly notify NCsoft of any changes to your credit card account number, its expiration date and/or your billing address, and you agree to promptly notify NCsoft if your credit card expires or is cancelled for any reason.
NCsoft reserves the right to alter the fees payable for the Service. Any alteration to the fees will be posted on the Web Site at least 30 days prior to such increase taking effect. If you do not agree to any such increase, you should terminate your Account prior to the date on which the alteration takes effect, otherwise the revised amount will automatically be debited to your Account.
6. CONTENT AND MEMBER CONDUCT
(a) Content. You acknowledge that: (i) by using the Software and the Service you will have access to graphics, sound effects, music, animation-style video and text (collectively, "Content"), and (ii) Content may be provided under license by independent content providers, including text contributions from other Members (all such independent content providers, "Content Providers"). NCsoft does not pre-screen Content as a matter of policy. NCsoft has the right, but not the obligation, to remove Content at any time which it deems to be harmful, offensive, or otherwise in violation of this Agreement.
(b) Rights in Content. You acknowledge that NCsoft and Content Providers have rights in their respective Content under copyright and other applicable laws, and that you accept full responsibility and liability for your use of any Content in violation of any such rights. You agree that you will not use any Content other than in connection with playing City of Heroes .
(c) Member Content. Members can upload Content to our servers in various forms, such as in selections you make for City of Heroes and in bulletin boards and similar user-to-user areas. Unless specified otherwise in your transmission, by submitting your Content to any area on the Service, you automatically grant (or you warrant that the owner of such Content has expressly granted) to NCsoft 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 such Content worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed.
(d) Member Conduct. You agree not to use the Service to: (i) upload, post, e-mail or otherwise transmit Content that infringes any third party rights; (ii) impersonate any person or entity, including, but not limited to, an NCsoft employee, or falsely state or otherwise misrepresent your affiliation with a person or entity; (iii) upload, post, e-mail or otherwise transmit Content that violates any law or regulation; (iv) upload, post, e-mail or otherwise transmit Content as determined by NCsoft at its sole discretion that is harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; or contains any viruses, trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (v) upload, post, email or otherwise transmit any Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (vi) upload, post, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation; (vii) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; or (viii) "stalk" or otherwise harass another member.
7. OFFICIAL SERVICE
City of Heroes is designed only for play as offered by NCsoft at the Web Site. You agree to play City of Heroes only as offered by NCsoft at the Web Site and not through any other means. You further agree not to create or provide any other means through which City of Heroes may be played by others, as through server emulators. You agree not to use any hardware or software, including but not limited to third party tools, or any other method of support which may in any way influence or advantage your use of the Service which is not authorised by NCsoft, including but not limited to the use of ‘bots’ and/or any other method by which the Service may be played automatically without human input. You acknowledge that you do not have the right to create, publish, distribute, create derivative works from or use any software programs, utilities, applications, emulators or tools derived from or created for City of Heroes , except that you may use the Software to the extent expressly permitted by this Agreement. You may not take any action which imposes an unreasonable or disproportionately large load on our infrastructure. You may not sell or auction any City of Heroes Accounts, characters, items, coin or copyrighted material.
8. PRIVACY
Our privacy policy, which covers the usage and protection of your personal information, is published on the Web Site, currently at uk.cityofheroes.com/support/privacy.html and is incorporated herein by this reference.
9. PARENTAL GUIDANCE
While NCsoft may choose to monitor and take action upon inappropriate game play, chat or links to the Service, it is possible that at any time there may be language or other material accessible on or through the Service that may be inappropriate for children or offensive to some users of any age. NCsoft cannot ensure that other players will not provide Content or access to Content that parents or guardians may find inappropriate or that any user may find objectionable. NCsoft does not as a matter of policy pre-screen the content of the materials or communications transmitted by each player.
10. INTERRUPTION OF SERVICE
(a) NCsoft reserves the right to interrupt the Service from time to time on a regularly scheduled basis or otherwise with or without prior notice in order to perform maintenance.
(b) You acknowledge that the Service may be interrupted for reasons beyond the control of NCsoft, and NCsoft cannot guarantee that you will be able to access the Service or your Account whenever you may wish to do so. NCsoft shall not be liable for any interruption of the Service, delay or failure to perform resulting from any causes whatsoever.
(c) NCsoft shall not be obligated to refund all or any portion of any Account fee by reason of any interruption of the Service by reason of any of the circumstances described in paragraph (a) or (b).
11. DISCLAIMER OF WARRANTY
THE SERVICE, THE SOFTWARE, THE ACCOUNT, THE CITY OF HEROES GAME AND ALL OTHER SERVICES ARE PROVIDED ON AN "AS IS" BASIS, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, NCSOFT HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, WRITTEN OR ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, QUIET ENJOYMENT, ACCURACY, OR FITNESS FOR A PARTICULAR PURPOSE. Without limiting the foregoing, we do not ensure continuous, error-free, secure or virus-free operation of the Service, the Software, your Account or City of Heroes .
12. LIMITATION OF LIABILITY
THE MAXIMUM AMOUNT OF NCSOFT'S LIABILITY TO YOU UNDER THIS AGREEMENT SHALL NOT EXCEED AN AMOUNT EQUAL TO 150% OF THE ACCOUNT FEES PAID BY YOU TO NCSOFT. IN NO EVENT SHALL NCSOFT, NOR ANY OF ITS CONTENT PROVIDERS, SHAREHOLDERS, PARTNERS, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SUPPLIERS, BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL PUNITIVE OR EXEMPLARY DAMAGES, (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR ANY OTHER PECUNIARY LOSS), REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING CONTRACT, NEGLIGENCE, OR STRICT LIABILITY) ARISING OUT OF OR IN CONNECTION WITH THE SERVICE, THE SOFTWARE, YOUR ACCOUNT OR THIS AGREEMENT WHICH MAY BE INCURRED BY YOU, WHETHER OR NOT NCSOFT MAY HAVE BEEN ADVISED THAT ANY SUCH DAMAGES MIGHT OR COULD OCCUR. You agree that NCsoft cannot be held responsible or liable for anything that occurs or results from accessing or subscribing to the City of Heroes Service.
13. INDEMNIFICATION
At NCsoft's request, you agree to defend, indemnify and hold harmless (a) NCsoft, (b) its shareholders, partners, affiliates, directors, officers, employees, agents or suppliers, (c) its licensees, distributors, Content Providers, and (d) other Members of the Service, from all damages, liabilities, claims and expenses, including attorneys' fees and costs, arising from or related, directly or indirectly, to any misuse of the City of Heroes Service or breach of this Agreement by you.
14. TERMINATION
(a) We may terminate this Agreement (including your Software license and your Account) immediately and without notice if you breach this Agreement or willfully infringe any third party intellectual property rights, or if we are unable to verify or authenticate any information you provide to us, or upon game play, chat or any player activity whatsoever which is, in our sole discretion, inappropriate and/or in violation of the spirit of City of Heroes as described in the Rules of Conduct. If we terminate this Agreement under any circumstances, you will lose access to your Account for the balance of any prepaid period without any refund.
(b) You agree that if the Service or your Account is terminated or cancelled for any reason or length of time, you are not entitled to any reimbursement or refund of any fees or unused access time.
15. GENERAL PROVISIONS
This Agreement is governed by and shall be construed and enforced under English law. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. The UN Convention on Contracts for the International Sale of Goods is expressly disclaimed. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. Except as otherwise permitted herein, you may not assign or transfer this Agreement or your rights hereunder, and any attempt to the contrary is void. This Agreement sets forth the entire understanding and agreement between us and you with respect to the subject matter hereof. Notwithstanding anything else in this Agreement, no default, delay or failure to perform on the part of NCsoft shall be considered a breach of this Agreement if such default, delay or failure to perform is shown to be due to causes beyond the reasonable control of NCsoft. All notices given by you or required under this Agreement shall be sent either to Attn.: Customer Support, Ncsoft Europe Limited, Fifth Floor, Mocatta House, Trafalgar Place, Brighton, United Kingdom, BN1 4DU or by email to [email protected].