The following sets forth the agreement (this “Agreement”) between you and Hothead Games Inc. (with its affiliates, “Hothead,” “we” or “us”) under which you may use Hothead’s website located at www.hotheadgames.com (the “Website”) and all linked pages owned and operated by Hothead, including, without limitation, all or any part of any content, visual interfaces, images, information, graphics, design, compilation, computer code, products, software, and services thereon, and Hothead’s mobile applications (the “Software”), and all other elements of the Hothead service and other materials that are provided by or in connection with the Hothead service (collectively, the “Hothead Service”).
YOU ACKNOWLEDGE THAT, PRIOR TO DOWNLOADING THE SOFTWARE OR USING THE HOTHEAD SERVICE, YOU HAVE READ AND UNDERSTOOD THE TERMS OF THIS AGREEMENT, WITHOUT MODIFICATION. BY USING THE HOTHEAD SERVICE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND TO COMPLY WITH ALL APPLICABLE LAWS AND REGULATIONS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE HOTHEAD SERVICE.
In order to download the Software, you must have an account with an Application Provider (as defined below) such as an Apple iTunes Account or Google Play account, which such services require a valid credit card in order to download and participate. Accordingly, we assume all users of the Software are at least 18 years of age, or are 13 years of age and using the Hothead Services with permission from their parent or guardian and under parental supervision.
You may not access or use the Hothead Service if you are a competitor of ours or if we have previously banned you from the Hothead Service or closed your account.
USE OF THE SOFTWARE GENERALLY
Hothead develops and publishes mobile gaming applications to be used for entertainment purposes only. Provided that you otherwise fully comply with the terms and conditions of this Agreement, and upon downloading the Software, we grant to you a limited, personal, non-exclusive, non-transferable and non-sublicensable license to use the Software solely as set forth herein.
USE OF THE HOTHEAD SERVICE GENERALLY
We grant you permission to use the Hothead Service, including without limitation the Software, subject to the restrictions in this Agreement. The Hothead Service and some reference sites contain Content (as defined below) of Hothead. Such Content is protected by copyright, trademark, trade secret and other laws, and Hothead owns and/or licenses such Content. Hothead hereby grants you a limited, revocable, non-sublicensable license to reproduce and display Hothead’s Content solely for your personal use in using the Hothead Service. You may not modify, translate, publish, broadcast, transmit, distribute, perform display or sell any Content appearing on the Hothead Service, except as expressly authorized by Hothead. As used within this Agreement, “Content” shall include, but is not limited to, text, images, files, photos, audio, works of authorship, location information or any other forms of data or communication. Unless we explicitly say otherwise, you may not use any automated means (such as scripts) to access Hothead or collect information from it. The Hothead Service may be modified, updated, interrupted, suspended or discontinued at any time without notice or liability.
Except as expressly authorized herein, you agree to the following restrictions:
- You may not use, copy, modify, translate, publicly perform or display, transmit, publish, edit, adapt, reproduce, or transfer the right to use the Hothead Service except as expressly provided in this Agreement.
- You may not distribute, sell, resell, sublicense, rent, lease, share, or lend any portion of the Hothead Service.
- You may not reverse engineer, reverse compile, disassemble, or otherwise attempt to discover the source code of any portion of the Hothead Service.
- You agree that you shall only use the Hothead Service in a manner that complies with all applicable laws in the jurisdiction in which you use the Hothead Service, including, but not limited to, applicable restrictions concerning privacy, copyright and other intellectual property rights.
- You agree not to upload, post, e-mail or otherwise send or transmit any material that contains viruses or any other computer code, files or programs designed to interrupt, destroy, usurp, modify or limit the functionality of the Hothead Service or any computer software, hardware, telecommunications equipment or other equipment or devices associated with the Hothead Service. You also agree not to interfere with the servers, networks or other devices or equipment connected to or used in connection with the Hothead Service or to violate any of the procedures, policies or regulations of such networks, devices or equipment, or of any service providers associated with or connected to the Hothead Service.
- You agree not to modify, adapt, appropriate, reproduce, distribute, translate, create derivative works or adaptations of, publicly display, sell, trade, or in any way exploit the Hothead Service or Content, except as expressly authorized by Hothead.
- You agree not to use any robot, spider, internet search/retrieval application, or other automated device, process or means to access, retrieve, scrape, or index any portion of the Hothead Service or any Content without our express permission.
- You agree not to take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on Hothead’s technology infrastructure or otherwise make excessive traffic demands of the Hothead Service.
Information, data, software, sound, images, tags, or other materials uploaded, transmitted or otherwise made available by you via the Hothead Service (“User Content), whether publicly posted or privately sent, is the sole responsibility of the person that sent the User Content. This means that you, not Hothead, are entirely responsible for all of your User Content. You agree not to upload, transmit or otherwise make available any User Content that is or could reasonably be viewed as unlawful, harmful, harassing, defamatory, libelous, obscene or otherwise objectionable, invasive of another’s privacy, or that violates the intellectual property rights of others.
Our games may include virtual currencies such as “gold”, “bucks” or “coins” and other virtual items, some of which may be “earned” or purchased for real money (“Virtual Goods”). You must be 18 years old to purchase Virtual Goods with real money. Your account and any related items are owned by Hothead. Hothead gives you a limited license to use your account and the related items while we offer the Hothead Service.
We are not an internet service provider. To access the Hothead Service or to play our mobile games, you must have internet access and/or mobile handset that meets the technical requirements of the Application Provider. In connection with your use of the Hothead Service, you may be subject to charges imposed by your wireless or other applicable carrier. Payment of such charges is solely your responsibility.
The Hothead Service may store and provide to Hothead data about your location and about your interaction with the Hothead Service, including without limitation, data related to gameplay and the content accessed while using the Hothead Service.
ADVERTISING/THIRD PARTY OFFERS
In connection with your use of the Hothead Service, we may display certain third party advertising based on your current location or your use of the Hothead Service. Additionally, the Hothead Service may contain links to third party web sites, advertisements, or programs that are not controlled by or affiliated with Hothead. Hothead is not responsible for the content, offers or privacy policies of such third party advertising, sites and programs. Your dealings with third party sites are solely between you and the applicable third party.
You have no right to exploit Hothead’s intellectual property except as specifically set forth in this Agreement. Hothead retains ownership of all intellectual property rights (including, without limitation, copyrights, patents, know-how, trade secrets and any trademarks or service marks) in and relating to the Hothead Service (collectively the “Hothead IP”). You shall not rent, lease, sublicense, distribute, transfer, copy, reproduce, download, display, modify or timeshare the Hothead IP or any portion thereof, or use such Hothead IP as a component of or a base for products or services prepared for commercial sale, sublicense, lease, access or distribution. You shall not, nor authorize, encourage or assist others to, attempt to decompile, disassemble, reverse engineer, modify or create derivative works based on the Hothead IP.
You may voluntarily elect to send us any ideas, suggestions, documents or proposals (“Feedback”) related to the Hothead Service or otherwise. By sending us Feedback, you agree that (i) your Feedback does not contain the confidential or proprietary information of third parties, (ii) we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (iii) we may have something similar to the Feedback already under consideration or in development, and (iv) you grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, publish, distribute and sublicense the Feedback.
LIABILITY; DISCLAIMERS; NO WARRANTIES
THE HOTHEAD SERVICE, INCLUDING THE SOFTWARE, IS PROVIDED ON AN “AS IS” BASIS. HOTHEAD, AND ITS USERS, AFFILIATES, LICENSORS, AGENTS, MERCHANTS AND SUPPLIERS, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE, IN CONNECTION WITH THE HOTHEAD SERVICE, INCLUDING THE SOFTWARE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES; THEREFORE, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. IN THAT EVENT, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO THIRTY (30) DAYS FROM THE DATE YOU COMMENCE USING THE HOTHEAD SERVICE. THIS CONDITIONAL WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM JURISDICTION TO JURISDICTION.
TO THE FULLEST EXTENT PERMITTED BY LAW, WE AND OUR USERS, LICENSORS, AGENTS, MERCHANTS AND SUPPLIERS SHALL NOT BE LIABLE FOR ANY LOST PROFITS OR ANY DIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (HOWEVER ARISING, INCLUDING NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THE HOTHEAD SERVICE, YOUR USE THEREOF OR IN ANY WAY RELATED TO THIS AGREEMENT.
YOU ACKNOWLEDGE THAT IN NO EVENT SHALL HOTHEAD, OR ITS USERS, AGENTS, AFFILIATES, LICENSORS, OR SUPPLIERS, REGARDLESS OF THE CAUSE OF ACTION, HAVE ANY LIABLITY FOR ANY DAMAGES, INJURIES OR LOSSES INCURRED BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED TO YOU BY ANY THIRD PARTIES AND RECEIVED BY YOU THROUGH OR ADVERTISED ON THE HOTHEAD SERVICE OR RECEIVED BY YOU THROUGH ANY LINKS PROVIDED ON THE HOTHEAD SERVICE. YOU WAIVE AND RELEASE HOTHEAD AND ITS USERS, AGENTS, AFFILIATES, LICENSORS, AND SUPPLIERS FROM ANY CLAIM, LIABILITIES, DAMAGES, OR INJURY ARISING FROM OR RELATING TO ANY ACT OR OMISSION OF ANY THIRD PARTY IN CONNECTION WITH SUCH UNDERLYING PRODUCTS OR SERVICES.
YOU ALSO SPECIFICALLY AGREE THAT YOU SHALL NOT HOLD HOTHEAD LIABLE FOR CLAIMS, DEMANDS, OR DAMAGES OF ANY KIND OR NATURE ARISING OUT OF OR IN ANY WAY CONNECTED WITH A DISPUTE WITH ANY OTHER USER OF HOTHEAD.
WE FURTHER DISCLAIM ALL LIABILIITY FOR ANY LOSS OR DAMAGE ARISING OUT OF YOUR USE OF THE HOTHEAD SERVICE. YOUR USE OF THE HOTHEAD SERVICE IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM YOUR ATTEMPT TO DOWNLOAD ANY MATERIAL OR CONTENT FROM THE HOTHEAD SERVICE.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR PERSONAL INJURY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH CASE, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE ENTIRE LIABILITY OF HOTHEAD AND ITS USERS, AFFILIATES, LICENSORS, AGENTS, MERCHANTS AND SUPPLIERS FOR ANY DAMAGES WHATSOEVER, WHETHER ARISING UNDER CONTRACT, TORT OR OTHERWISE, ARISING UNDER OR RELATED TO THIS AGREEMENT, THE HOTHEAD SERVICE OR THE USE THEREOF, SHALL BE LIMITED TO $100.
YOU ACKNOWLEDGE THAT THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
INDEMNIFICATION; HOLD HARMLESS; RELEASE
You agree to indemnify, hold harmless, defend and release Hothead, its users, licensors, suppliers and partners, and its and their respective officers, directors, stockholders, agents and affiliates, from any claims, losses, damages or liabilities, including attorney’s fees, arising out of (i) the use or misuse of the Hothead Service by you or any third party using your account, (ii) breach of any of this Agreement by you or any third party using your account, (iii) the violation of any applicable law or the rights of any other person or entity arising out of related to the Hothead Service or the use thereof by you or any third party using your account, or (iv) the infringement of any intellectual property or other right of any person or entity by you or any third party using your account. You agree not to settle any matter without the prior written consent of Hothead. Hothead reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims.
Hothead has no obligation to furnish you with technical support unless separately agreed in writing between you and Hothead.
GOVERNING LAW; ATTORNEY’S FEES
This Agreement will be deemed to have been made in the State of California, and the provisions and conditions of this Agreement will be governed by and interpreted in accordance with the laws of the State of California, without regard to conflict of laws principles thereof. YOU AND HOTHEAD AGREE THAT THE EXCLUSIVE VENUE FOR ANY DISPUTE RELATING TO THIS AGREEMENT IS SAN MATEO COUNTY, CALIFORNIA. YOU AND HOTHEAD CONSENT TO THE PERSONAL JURISDICTION OF THESE COURTS. The prevailing party in any legal action brought by one party against the other and arising out of this Agreement shall be entitled, in addition to any other rights and remedies it may have, to reimbursement for its expenses, including court costs and reasonable attorney’s fees.
Hothead makes no claims that the Software or any other portion of the Hothead Service may be lawfully accessed, used or downloaded outside of Canada or the United States. Any such use of the Software and/or the Hothead Service may not be lawful by certain persons or in certain territories. If you access any of these from outside of Canada or the United States, you do so at your own risk and are responsible for compliance with the laws of whatever jurisdiction you are in at the time.
EXPORT LAW COMPLIANCE
You agree that to comply with all export restrictions and regulations of the Department of Commerce or other agency of the United States Government, and that you will not export or otherwise transfer the Software or any other portion of the Hothead Service, directly or indirectly, to a prohibited country.
Any provision of this Agreement may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of any party at any time to require performance of any provision of this Agreement shall in no manner affect such party’s right at a later time to enforce the same. A waiver of any breach of any provision of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement.
If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. The parties further agree to replace such void or unenforceable provision of this Agreement with a valid and enforceable provision which will achieve, to the extent possible, the economic, business and other purposes of the void or unenforceable provision.
We may assign our interest in this Agreement. You may not assign or transfer this Agreement. We may also assign or delegate certain of our rights and responsibilities under this Agreement to independent contractors or other third parties. There are no third party beneficiaries to this Agreement, except as expressly set forth herein or agreed to by Hothead.\
We may revise this Agreement from time to time, and we will use commercially reasonable efforts to provide at least 20 days’ notice prior to any new terms taking effect, by posting a notice on the Website. By continuing to access or use our Services after those revisions become effective, you agree to be bound by the revised terms.
RIGHT TO TERMINATE
This Agreement shall commence on the date you first begin using the Hothead Service and shall continue until the date you close your user account on the Hothead Service and cease all use of the Hothead Service. Hothead reserves the right to terminate your use of the Hothead Service at any time, in its sole discretion, and you should not place any reliance on your ability to continue to use the Hothead Service. In case of any termination, you must cease all use of the Hothead Service and Hothead may immediately restrict your access to the Hothead Service. All provisions hereof that are reasonably intended to survive beyond termination of this Agreement, including without limitation all provisions related to your license of Posted Content to Hothead, representations and warranties, disputes, limitations on liability, and indemnification, and any claims for payments due to Hothead, shall survive any expiration or termination of this Agreement.
MOBILE APPLICATION PROVIDER
In the event you are using the Hothead Service in connection with a mobile device and an application (an “Application) accessed through or downloaded from any app store or distribution platform (like the Apple App Store or Google Play) where the Application is made available (each an “Application Provider”). You acknowledge and agree that:
- This Agreement is concluded between you and Hothead, and not with the Application Provider, and Hothead (not the Application Provider), is solely responsible for the Application.
- The Application Provider has no obligation to furnish any maintenance and support services with respect to the Application.
- In the event of any failure of the Application to conform to any applicable warranty, you may notify the Application Provider, and the Application Provider may refund the purchase price for the Application to you (if applicable) and to the maximum extent permitted by applicable law, the Application Provider will have no other warranty obligation whatsoever with respect to the Application. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Hothead.
- The Application Provider is not responsible for addressing any claims you have or any claims of any third party relating to the Application or your possession and use of the Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- In the event of any third party claim that the Application or your possession and use of that Application infringes that third party’s intellectual property rights, Hothead will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement.
- The Application Provider, and its subsidiaries, are third party beneficiaries of this Agreement as related to your license of the Application, and that, upon your acceptance of the terms and conditions of this Agreement, the Application Provider will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the Application against you as a third party beneficiary thereof.
You must also comply with all applicable third party terms of service when using the Application.
The heading references herein are for convenience purposes only, do not constitute a part of Agreement, and shall not be deemed to limit or affect any of the provisions hereof.
You acknowledge that Hothead may update this Agreement from time to time, and you agree to be bound by any subsequent update to this Agreement. The most recent version of this Agreement can be found at www.hothead.com/termsofuse. If you do not consent to the updated Agreement, you can uninstall and/or discontinue use of the Hothead Service. Your continued use of the Hothead Service will constitute acceptance of the updated Agreement.
This is the entire agreement between us relating to the subject matter herein and shall not be modified except in writing, signed by both parties, or by a change to this Agreement made by Hothead as set forth above.
Hothead Games Inc. is located at 1555 W Pender St, Vancouver, British Columbia, Canada, V6G 2T1. Contact us by email: firstname.lastname@example.org
The following are trademarks or registered trademarks of Hothead Games Inc.:
Hothead, Kill Shot, Kill Shot Bravo, Gun Kings, Big Win, Big Win Sports, Rivals at War.