TERMS AND CONDITIONS AND END USER LICENSE AGREEMENT
I'm what they call an End User License Agreement. That is a license between you (the "End User"), and Velan Studios (the "maker of the game"). It lays out a bunch of terms regarding use of the Rift Rally software which are important for you to understand and agree to.
It's honestly straightforward stuff, like "you agree not to use the game for things it wasn't meant for, and if you do, it's not our responsibility should you break something or hurt someone." Thing is, because it's all legal business, we have to say it in a really wordy way. Still, you must agree with it to play our game. Because if you don't agree, well, rules are rules.
THIS IS A LEGAL AGREEMENT - PLEASE CAREFULLY REVIEW
Important Notice - Binding Arbitration. If a dispute cannot be resolved by Velan's customer service team, these Terms and Conditions and End User License Agreement ("EULA") require that you participate in individual binding arbitration, rather than a jury trial or class action. Please see Section 11 below titled "Dispute Resolution" for more information.
Use of Rift Rally and related services ("Game") is governed exclusively by this EULA. The Game includes a physical car (the "Car") and software ("Software") that is accessible through third party platforms ("Platform(s)") (e.g., iOS and Playstation ®).
All terms of this EULA apply to the Game as a whole, except where specifically stated otherwise. Additional terms imposed by third party Platform providers also may apply, as set forth in Section 12.2, below.
1. BINDING AGREEMENT. This EULA is a legally binding agreement between the user ("User", "you", "your") and Velan Studios, Inc. ("Velan", "we", "us", "our"). By downloading the Software and/or using the Game, you agree to this EULA. You and Velan are sometimes referred to herein, individually, as a "Party", and, collectively, as the "Parties".
2. PARENT/GUARDIAN CONSENT. If a User is under the age of eighteen (18) or the age of majority in country where the User resides, this EULA must be accepted on the User's behalf by the User's parent or legal guardian, in which case this EULA will be binding on the User and the parent or legal guardian who accepts the EULA.
3. VELAN INTELLECTUAL PROPERTY. Velan's trademarks, service marks, copyrights, patents, trade secrets, and all other proprietary rights in or related to the Game are the exclusive property of Velan and/or its licensors ("Velan Intellectual Property"), whether or not registered, recognized, or perfected under applicable law. Velan Intellectual Property may not be copied, distributed, republished, uploaded, posted, or transmitted except in connection with the authorized use of the Game. You may not alter, decompile, disassemble, reverse engineer, or otherwise modify any Velan Intellectual Property.
4. LIMITED LICENSE. Velan provides you a limited, non-transferrable, non-exclusive, revocable license for personal, non-commercial use of the Game. Nothing herein shall be construed as granting to you or any other person, whether by estoppel or otherwise, any license or other rights to the Game or any Velan Intellectual Property incorporated into the Game except for those rights expressly granted in this Section 4.
5. FEEDBACK. If you provide any suggestions or comments regarding the Game ("Feedback") either directly to us or indirectly through any other method, medium or person (such as social media), you grant Velan a non-exclusive, fully paid, royalty-free, worldwide, perpetual, irrevocable, sublicensable, transferable, and assignable license to use, reproduce, distribute, modify, adapt, prepare derivative works based on, publicly perform, publicly display, make, have made, use, sell, offer to sell, import, and otherwise exploit any and all Feedback, or any portion of it, in any manner or form and in any medium or forum, whether now known or later devised, without notice, payment or attribution of any kind to you or any third-party. You understand and agree that Velan is not required to make any use of any Feedback that you provide.
7. SAFETY. All Users (and/or a User's Parent or Guardian, if the User is under 18) must follow the safety instructions, product information, and operating instructions for proper handling and safe use of the Game ("Safety Instructions"). The Safety Instructions are expressly incorporated herein below. Velan and all individuals and legal entities involved in the development, manufacture, distribution, sale, and operation of the Game ("Velan Affiliates") are not responsible for and are not liable to User or any other person for any injuries (including death), damage to property or any other costs, losses or damages of any kind or nature to User or others in any way resulting from failure to follow and comply with the Safety Instructions or any negligent, grossly negligent, or intentionally harmful use of the Game by User or anyone else. User (and/or User's Parent or Guardian) hereby expressly agrees that User (and/or User's Parent or Guardian) assumes all risk of using or handling the Game or any component of the Game other than as specified in the Safety Instructions. User (and/or User's Parent or Guardian) expressly agree to defend, indemnify, and hold harmless Velan and Velan Affiliates for any failure to comply with the Safety Instructions.
8. COMPLIANCE WITH LAW. You are required to comply with all laws, regulations, and ordinances ("Law(s)") applicable to use of the Game, including but not limited to any Laws that may prohibit use of the Game in a specific location (e.g., a public road). Velan is not responsible for any use of the Game that is prohibited by Law.
9. LIMITED WARRANTIES. Velan warrants that the hardware components of the Game (including the Car) will be free from defects in material and workmanship for a period of one year from the date of original purchase (sales receipt required for proof of purchase) or for the minimum required warranty period in the location where the product is sold (the "Hardware Limited Warranty Period"). Velan warrants that the software components of the Game (including any physical media) will be free from defects in material and workmanship for a period of three months from the date of purchase (the "Software Limited Warranty Period"). If any covered defect is discovered during the applicable Hardware or Software Limited Warranty Period, Velan will (at its sole option) repair, replace or refund the cost of the Game or Game component at no cost to you. This is the sole and exclusive remedy available to you relating to any defect in the Game. This Limited Warranty is further limited and conditioned as follows:
9.1. This Limited Warranty (a) applies only to the original purchaser/gift recipient of the Game, (b) covers purchases made solely through an authorized retailer or distributor, and (c) is non-transferrable.
9.2. This Limited Warranty does not apply to and expressly excludes (a) re-sold Games or any re-sold components of the Game (e.g., Cars), (b) consumable parts, such as batteries, (c) cosmetic damage, (d) damage caused by use with other software, (e) damage caused by operating the Game outside permitted or intended uses as described in the Safety Instructions, (f) any Game or game component that has been modified, and (g) claims resulting from misuse, failure to follow instructions, abuse, alteration, and normal wear and tear.
9.3. THIS LIMITED WARRANTY IS EXCLUSIVE, AND IN LIEU OF ALL OTHER WARRANTIES, REMEDIES, AND CONDITIONS, WHETHER STATUTORY, WRITTEN OR ORAL, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. ANY IMPLIED WARRANTIES THAT CANNOT BE DISCLAIMED ARE LIMITED IN DURATION TO THE LIMITED WARRANTY PERIOD.
9.4. IN NO EVENT SHALL VELAN OR ANY VELAN AFFILIATE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OR LOST PROFITS, RESULTING FROM ANY BREACH OF WARRANTY, CONDITION, OR ANY OTHER LEGAL THEORY, NO MATTER HOW IT ARISES.
9.5. Some states or countries do not allow exclusion of incidental or consequential damages or a limitation on the duration of implied warranties, so one or more of the foregoing limitations may not apply to you. In addition, you may have other legal rights, which vary by state or country.
10. LIMITATION OF LIABILITY. EXCEPT AS EXPRESSLY REQUIRED BY APPLICABLE LAW, VELAN AND VELAN AFFILIATES SHALL NOT BE LIABLE FOR ANY LOSSES THAT WERE NOT CAUSED BY VELAN'S BREACH OF THIS EULA, OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES OF ANY TYPE. THE TYPES OF EXCLUDED DAMAGES INCLUDE, FOR EXAMPLE, FINANCIAL LOSS (SUCH AS LOST INCOME OR PROFITS), COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, AND DEVICE FAILURE OR MALFUNCTION. THIS LIMITATION APPLIES TO ANY CLAIM ARISING OUT OF OR RELATED TO THE GAME, WHETHER BASED IN CONTRACT, TORT, STATUTE, STRICT LIABILITY OR OTHERWISE. IT ALSO APPLIES EVEN IF VELAN KNEW OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF SUCH DAMAGES. YOU MAY RECOVER ONLY DIRECT DAMAGES IN AN AMOUNT NO GREATER THAN WHAT YOU ACTUALLY PAID FOR THE GAME. VELAN DOES NOT LIMIT ITS LIABILITY FOR FRAUD, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FOR DEATH OR PERSONAL INJURY. SOME JURISDICTIONS DO NOT ALLOW THE ABOVE EXCLUSIONS AND LIMITATIONS, SO SOME OR ALL OF THEM MAY NOT APPLY. YOU ACKNOWLEDGE THAT (A) WITHOUT THE INCLUSION OF THIS LIMITATION OF LIABILITY PROVISION, VELAN WOULD NOT HAVE PROVIDED THE GAME AND (B) THIS LIMITATION OF LIABILITY PROVISION IS MERELY A LIMITATION, AND NOT AN EXCULPATION, OF LIABILITY.
11. DISPUTE RESOLUTION/CONSENT TO ARBITRATION. EXCEPT AS EXPRESSLY REQUIRED BY LAW, BY ACCEPTING THE TERMS OF THIS EULA, YOU AND VELAN EXPRESSLY WAIVE THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION. This Section 11 includes an agreement to arbitrate and offers a streamlined way to resolve disputes between us if they arise. Most of your concerns can be resolved quickly and satisfactorily by contacting Velan customer service via one of the methods described in Section 12.5 below. If we cannot resolve your concern, you and Velan agree to be bound by the procedure set forth in this Section 11 to resolve any disputes between us. This Section 11 also applies to our respective agents, employees, subsidiaries, predecessors, successors, beneficiaries, and assigns. The agreement to arbitrate evidences a transaction in interstate commerce, and thus the US Federal Arbitration Act governs the interpretation and enforcement of this Section 11 and any arbitration carried out under this Section. This Section 11 shall be interpreted broadly and shall survive termination of this EULA.
11.1. CLAIMS COVERED BY ARBITRATION. All disputes, claims or controversies between you and Velan arising out of or relating to the Game and this EULA, including the validity, enforceability, and scope of this Section 11 ("Disputes"), shall be determined exclusively by binding arbitration. This includes claims that accrued before you entered into this EULA. The only Disputes not covered by this Section 11 are claims regarding the infringement, protection or validity of your, Velan's, or Velan's Licensors' intellectual property rights.
11.2. INFORMAL NEGOTIATIONS. You and Velan shall first attempt to resolve any Dispute informally for at least 30 days before initiating arbitration. The informal negotiations begin upon receipt of written notice from one Party to the other ("Notice of Dispute"). The Notice of Dispute must: (a) include the full name and contact information of the complaining Party; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought. Velan will send its Notice of Dispute to your billing or email address. You will send your Notice of Dispute to: firstname.lastname@example.org.
11.3. BINDING ARBITRATION. If you and Velan cannot resolve a Dispute informally, you or Velan may elect to have the Dispute finally and exclusively resolved by binding arbitration. Any election to arbitrate by one Party shall be final and binding on the other. The arbitration shall be administered by the American Arbitration Association under its Consumer Arbitration Rules ("AAA Consumer Rules"), which are available at www.adr.org or by calling 1-800-778-7879, with the following modifications:
11.3.1. Arbitration fees and costs shall be governed by the AAA Consumer Rules.
11.3.2. If the Dispute does not exceed $50,000, the arbitration will be conducted solely on the basis of written submissions.
11.3.3. The Parties may bring any dispositive motion or motions during the course of the proceedings.
11.3.4. The arbitrator shall make a decision in writing, which will include the findings and conclusions on which the decision is based. The arbitrator has the authority to issue any relief allowed by this EULA pursuant to applicable law, but the arbitrator shall have no authority to issue any relief on any basis other than an individual basis. The arbitrator may award declaratory or injunctive relief only in favor of the individual Party seeking relief and only to the extent necessary to provide relief warranted by that Party's individual claim.
11.3.5. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. You and Velan may litigate in court to compel arbitration, to stay proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
11.4. LIMITATIONS ON SCOPE OF ARBITRATION. YOU AND VELAN AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING AS TO ALL DISPUTES. The arbitrator shall not consolidate another person's claims with your claims and shall not preside over any type of representative or class proceeding. If this Section 11.4 is found to be unenforceable, then the entirety of this agreement to arbitrate shall be null and void.
11.5. LOCATION AND GOVERNING LAW. The arbitration will take place within twenty-five (25) miles of Troy, New York, or such other location deemed mutually acceptable by the Parties. If you are not reasonably able to appear in person, some or all of the arbitration proceeding may be conducted using remote/virtual videoconferencing capabilities. You and Velan agree to submit to the personal jurisdiction of the New York State Supreme Court in Rensselaer County or the United States District Court for the Northern District of New York to compel arbitration, to stay the proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator regardless of whether the arbitration is conducted in person or by remote/virtual methods. This EULA shall be deemed to have been entered into in the State of New York and shall be governed by and interpreted pursuant to New York State law, without reference to its choice of law rules. For disputes not subject to binding individual arbitration, you agree to submit to the exclusive jurisdiction of the state and federal courts for Rensselaer County, New York, and to waive any jurisdictional, venue or other similar objections. This Section will be interpreted as broadly as applicable law permits. The Parties agree that the UN Convention on Contracts for the International Sale of Goods shall not apply to this EULA.
11.6. RECOVERY. If the arbitrator rules in your favor on the merits of any claim you bring against Velan and issues you an award that is greater in monetary value than Velan's last written settlement offer, then Velan will reimburse the arbitration fees that you paid to the AAA. If the arbitrator rules in Velan's favor and finds that your claim was frivolous or not filed in good faith, you agree to reimburse Velan for any arbitration fees Velan paid to AAA.
11.7. CHANGES TO ARBITRATION AGREEMENT. Once you accept these terms, Velan will not enforce material changes to this agreement to arbitrate, unless you expressly agree to the changes.
11.8. SEVERABILITY. If any clause within this Section 11 (other than the Class Action Waiver clause) is found to be unenforceable because it would preclude a particular claim or remedy (such as public injunctive relief), that claim or remedy (and only that claim or remedy) must be severed from the arbitration and may be brought in court, while any remaining claims or remedies will be resolved through arbitration. If any clause within this Section 11 (other than the Class Action Waiver clause) is found to be unenforceable for any other reason, that clause will be severed from this Section 11 and the remainder of this Section 11 will remain in full force and effect.
12.1. ENTIRE AGREEMENT. This EULA constitutes the entire agreement between you and Velan relating to the Game and your use of the Game. This EULA may not be amended or modified unless made in writing and signed by Velan or posted by Velan on its website or through the Game. If any part of this EULA is held to be unenforceable, all other parts of this EULA shall continue in full force and effect.
12.2. PLATFORM TERMS. Your use of the Game may also require acceptance of terms relating to use of third party Platforms ("Platform Terms"). Velan is not responsible for any Platform Terms, which are solely between you and the third party Platform provider.
12.3. AMENDMENTS. Velan may modify this EULA from time to time. For Users who accepted a previous version of this EULA, the revisions will become effective thirty (30) days after posting through the Game and on our website. Your continued use of the Game after this thirty (30) day notice period means you accept the changes.
12.4. WAIVER. A Party's failure to insist upon strict adherence to any term of this EULA on any occasion shall not be considered a waiver thereof or deprive that Party of the right thereafter to insist upon strict adherence to that term or any other term of this EULA.
12.5. CONTACT. You can contact Velan through any of the following methods regarding your Account or use of the Services:
5 Third Street, Suite 300
Troy, New York 12180
Before the setup and use of Hot Wheels: Rift Rally please read the following information and warnings.
Failure to follow the instructions and these warnings can result in fire, personal injury, property damage, or damage to the car.
* The game is intended for personal non-commercial use only.
* The game is suitable for ages 6 and above. Some adult supervision may be required for younger players.
* For optimal play, use indoors only. Use outdoors can result in damage to the car from dirt, water and other hazards. Damage caused by outdoor use is not covered by the product warranty.
* An open area at least 10 feet by 12 feet should be used for playing the game.
* The car should not be used in public areas or any other location where people not playing the game are present and could be struck or come into contact with the car while it is being used.
* Use of the car on public streets, paths, or roadways is expressly prohibited.
* The car is designed for use only with the accessories included with the game. Damage caused by unauthorized accessories is not covered by the product warranty.
* Avoid exposure of liquids to the car. Do not charge the car if the car does get exposed to liquids. Air dry the car before charging if the car does get exposed to liquids.
* The car includes rechargeable batteries that are not replaceable.
* The included gates must not be modified visually in any way as it may interfere with the game's ability to function. Do not apply any decorations, drawings, or stickers to the gates.
* Please keep the car clean. Do not use cleaning solutions or solvents as this may damage the car. Use a dry cloth to clean the wheels and chassis as needed. Keep the connector port clear of debris.
* WARNING: Do not touch the wheels when they are moving.
* WARNING: Keep hair away from moving parts.
* WARNING: Exposure to flashing lights or certain intensities or visual patterns can trigger seizures in people with epilepsy. If you have epilepsy or have had seizures due to flashing lights and patterns, consult your doctor before using this game.
* WARNING: If the car appears to be operating incorrectly, please stop using it immediately.
* WARNING: If the car produces smoke or becomes hot to the touch please stop using it immediately.
* If you experience any problems with the car or game, or for Consumer Product Safety Information Act (CPSIA) information please visit our website at www.riftrally.com.