GAMERAILTM SUBSCRIBER AGREEMENT
This GameRail Subscriber Agreement ("Agreement")
is a legal agreement between you and Progression, LLC, dba GameRail
("Progression"), with respect to your access and use of the GameRail network,
which may also include GameRail client software, content and related
documentation and information (collectively, the "Service"). By accessing GameRail, you agree to accept
without modification all of the terms, conditions, and notices contained in
this Agreement. If you do not accept this Agreement in its entirety, you may
not access or use the Service.
Portions of the Service may be governed by posted
guidelines, rules, or other terms and conditions. All such guidelines, rules,
terms and conditions are hereby incorporated by reference into these Terms of
Use. In the event of a conflict between
such other guidelines, rules, terms and conditions and these Terms of Use, the
Terms of Use shall control, except that the Progression Service Privacy Policy,
referenced below, supersedes any conflicting language in these Terms of Use
and/or any other guidelines, rules, terms and conditions published in
connection with the Service with respect to the subject matter covered by such
privacy policy.
MODIFICATION OF THESE TERMS OF USE; UPDATES
Progression may change the Subscriber Agreement at any time
and such changes shall be effective immediately. You are responsible for
regularly reviewing the Subscriber Agreement. The most recent version of the
Subscriber Agreement can be found at http://www.gamerail.com
. Your continued use of the Service affirms your agreement to the Subscriber
Agreement and any changes.
Progression is not obligated to provide updates or
improvements to the Service. However, if Progression, in its sole discretion,
updates or improves the Service, this Subscriber Agreement shall apply to such
updates and improvements unless expressly noted otherwise.
1. REGISTRATION AND ACTIVATION.
GameRail is a high-speed bypass network ("GameRail") offered by Progression.
You become a subscriber of GameRail ("Subscriber") by installing the
GameRail client software and completing the GameRail registration.
Additionally, as a Subscriber you may obtain access to certain services,
software and content ("Subscriptions") available to Subscribers.
Each Subscription allows you access to certain services, software and other
content under the terms of each such Subscription and this Agreement.
Additional terms provided with each such Subscription ("Subscription
Terms") may apply to the use of a given Subscription, and are incorporated
into this Agreement.
When you complete Progression's registration process, you create a GameRail
account ("Account"). Your Account will eventually include billing
information you provide to us for the purchase of Subscriptions. You are solely
responsible for all activity on your Account and for the security of your
computer system. You may not reveal, share or otherwise allow others to use
your password or Account. You agree that you are personally responsible for the
use of your password and Account and for all of the communication and activity
on GameRail that results from use of your login name and password. You may not
sell or charge others for the right to use your Account, or otherwise transfer
your Account.
2. LICENSES
A. License Terms.
Progression and your Subscription(s) require the automatic download and
installation of software and other content and updates onto your computer
("GameRail Software"). You may not use GameRail Software for any
purpose other than the permitted access to GameRail and your Subscriptions. You
understand that for reasons that include, without limitation, system security,
stability, and multiplayer interoperability, GameRail may need to automatically
update, pre-load, create new versions or otherwise enhance the GameRail
Software and accordingly, the system requirements to use the GameRail Software
may change over time. You understand that neither this Agreement nor the terms
associated with a particular Subscription entitles you to future updates, new
versions or other enhancements of the GameRail Software associated with a
particular Subscription although Progression may choose to provide such
updates, etc. in its sole discretion.
Progression hereby grants, and you accept, a limited, terminable, non-exclusive
license and right to use the GameRail Software for your personal use in
accordance with this Agreement and the Subscription Terms. The GameRail
Software is licensed, not sold. Your license confers no title or ownership in
the GameRail Software.
B. Ownership.
All title, ownership rights and intellectual property rights in and to the
GameRail Software and any and all copies thereof are owned by Progression
and/or its licensors. All rights reserved, except as expressly stated herein.
The GameRail Software is protected by the copyright laws of the United States,
international copyright treaties and conventions and other laws. The GameRail
Software contains certain licensed materials and Progression's licensors may
protect their rights in the event of any violation of this Agreement.
C. Restrictions.
You may not, in whole or in part, copy, photocopy, reproduce, translate,
reverse engineer, derive source code, modify, disassemble, decompile, create
derivative works based on, or remove any proprietary notices or labels from the
GameRail Software or any software accessed via GameRail without the prior
consent, in writing, of Progression.
You are entitled to use the GameRail Software for your own use, but you are not
entitled to sell, grant a security interest in or transfer reproductions of the
GameRail Software to other parties in any way, nor to rent, lease or license
the GameRail Software to others without the prior written consent of
Progression.
3. BILLING, PAYMENT AND REFUNDS
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 U.S. Dollars. YOUR SUBSCRIPTION 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 subscription fees, plus any applicable taxes we are
required to collect, where you authorize us to do so. All recurring
Subscription 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 Subscriber is
not eligible for any subsequent free trial period. By paying by credit card, you represent to
Progression that you are the authorized user of the credit card used to pay the
Subscription fee. You agree to promptly notify Progression of any changes to
your credit card account number, its expiration date and/or your billing
address, and you agree to promptly notify Progression if your credit card
expires or is cancelled for any reason.
Progression reserves the right to change our fees or billing
methods at any time and Progression will provide notice of any such change at
least thirty (30) days advance. All changes will be posted as amendments to
this Agreement and you are responsible for reviewing the billing section of
GameRail to obtain timely notice of such changes. Your non-cancellation of your
Account or an affected Subscription thirty (30) days after posting of the
changes on GameRail means that you accept such changes. If any change is
unacceptable to you, you may cancel your Account or a particular Subscription
at any time as described below, but Progression will not refund any fees that
may have accrued to your Account before cancellation of your Account or
Subscription, and Progression will not prorate fees for any cancellation. If
your use of GameRail is subject to any type of use or sales tax, then
Progression may also charge you for any such taxes, in addition to the
Subscription or other fees published in the Rules of Use.
4. YOUR ACCOUNT, PASSWORD, AND SECURITY
Upon registration, you will receive a username, password,
and other account information. You are the only authorized users of your
GameRail account and must comply with this Agreement. You must keep your
password confidential so that no one else may access the Services through your
account. You must notify Progression immediately upon discovering any
unauthorized use of your account.
5. ONLINE CONDUCT, CHEATING AND ILLEGAL BEHAVIOR
You agree that you will be personally responsible for the use of your Account
and for all of the communication and activity on GameRail that results from use
of your Account. Your online conduct and interaction with other subscribers
should be guided by common sense and basic etiquette.
GameRail and the GameRail Software may include functionality designed to
identify software or hardware processes or functionality that may give a player
an unfair competitive advantage when playing multiplayer versions of any game
("Cheats"). You agree that you will not create or assist third
parties in any way to create Cheats. You agree that you will not directly or
indirectly disable, circumvent, or otherwise interfere with the operation of
software designed to prevent or report the use of Cheats. You acknowledge and
agree that either Progression or any online multiplayer host may refuse to
allow you to participate in certain online multiplayer games if you use Cheats
in connection with GameRail or the GameRail Software. Further, you acknowledge
and agree that an online multiplayer host may report your use of Cheats to
Progression, and Progression may communicate your history of use of Cheats to
other online multiplayer hosts for Progression products. Progression may
terminate your Account or a particular Subscription for any conduct or activity
that Progression believes is illegal, constitutes a Cheat, or which otherwise
negatively affects the enjoyment of GameRail by other Subscribers. You
acknowledge that Progression is not required to provide you notice before
terminating your Subscriptions(s) and/or Account, but it may choose to do so.
6. USER GENERATED INFORMATION
"User Generated Information" means any information made available
through your use of the GameRail Software. User Generated Information may
include, but is not limited to, chat, forum posts, screen names, game
selections, player performances, usage data, suggestions about Progression
products or services, and error notifications. Subject to the Progression
privacy policy referenced in Section 1 above, as applicable, you expressly
grant Progression the complete and irrevocable right to use, reproduce, modify,
create derivative works from, distribute, transmit, broadcast, and otherwise
communicate, and publicly display and perform the User Generated Information
and derivative works thereof in any form, anywhere, with or without attribution
to you, and without any notice or compensation to you of any kind.
7. DISCLAIMERS; LIMITATION OF LIABILITY; NO GUARANTEES
A. DISCLAIMERS.
THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF GAMERAIL OR THE GAMERAIL
SOFTWARE REMAINS WITH YOU, THE USER. PROGRESSION EXPRESSLY DISCLAIMS (I) ANY
WARRANTY FOR GAMERAIL OR THE GAMERAIL SOFTWARE, AND (II) ANY COMMON LAW DUTIES
WITH REGARD TO GAMERAIL AND THE GAMERAIL SOFTWARE, INCLUDING DUTIES OF LACK OF
NEGLIGENCE AND LACK OF WORKMANLIKE EFFORT. GAMERAIL AND THE GAMERAIL SOFTWARE,
AND ANY INFORMATION AVAILABLE IN CONNECTION THEREWITH ARE PROVIDED ON AN
"AS IS" AND "AS AVAILABLE" BASIS, "WITH ALL
FAULTS" AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING,
WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, OR NON-INFRINGEMENT. ANY WARRANTY AGAINST INFRINGEMENT THAT
MAY BE PROVIDED IN SECTION 2-312(3) OF THE UNIFORM COMMERCIAL CODE AND/OR IN
ANY OTHER COMPARABLE STATE STATUTE IS EXPRESSLY DISCLAIMED. ALSO, THERE IS NO
WARRANTY OF TITLE, INTERFERENCE WITH YOUR ENJOYMENT, OR AUTHORITY IN CONNECTION
WITH GAMERAIL, THE GAMERAIL SOFTWARE, OR INFORMATION AVAILABLE IN CONNECTION
THEREWITH. THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW.
B. LIMITATION OF LIABILITY.
NEITHER PROGRESSION, ITS LICENSORS, NOR THEIR AFFILIATES SHALL BE LIABLE IN ANY
WAY FOR LOSS OR DAMAGE OF ANY KIND RESULTING FROM THE USE OR INABILITY TO USE
GAMERAIL, YOUR ACCOUNT, YOUR SUBSCRIPTIONS AND THE GAMERAIL SOFTWARE INCLUDING,
BUT NOT LIMITED TO, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR
MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES. IN NO EVENT
WILL PROGRESSION BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL,
PUNITIVE, EXEMPLARY DAMAGES, OR ANY OTHER DAMAGES ARISING OUT OF OR IN ANY WAY
CONNECTED WITH GAMERAIL OR GAMERAIL SOFTWARE, ANY INFORMATION AVAILABLE IN
CONNECTION THEREWITH, OR THE DELAY OR INABILITY TO USE MERCHANDISE OR ANY
INFORMATION, EVEN IN THE EVENT OF FAULT, TORT (INCLUDING NEGLIGENCE), STRICT
LIABILITY, BREACH OF CONTRACT, OR BREACH OF PROGRESSION'S WARRANTY AND EVEN IF
PROGRESSION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE
LIMITATIONS AND EXCLUSIONS REGARDING DAMAGES APPLY EVEN IF ANY REMEDY FAILS.
C. NO GUARANTEES.
PROGRESSION DOES NOT GUARANTEE CONTINUOUS, ERROR-FREE, VIRUS-FREE OR SECURE
OPERATION AND ACCESS TO GAMERAIL, THE GAMERAIL SOFTWARE, YOUR ACCOUNT AND/OR
YOUR SUBSCRIPTIONS(S).
8. EXCLUSIVE REMEDIES
A. EXCLUSIVE REMEDY -- GAMERAIL AND GAMERAIL SOFTWARE.
YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE
WITH PROGRESSION WITH REGARD TO GAMERAIL OR THE GAMERAIL SOFTWARE IS TO
DISCONTINUE USE OF GAMERAIL AND CANCEL YOUR ACCOUNT. BECAUSE SOME STATES OR
JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR
CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS,
PROGRESSION, ITS LICENSORS, AND THEIR AFFILIATES LIABILITY SHALL BE LIMITED TO
THE FULL EXTENT PERMITTED BY LAW.
THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9. INDEMNIFICATION
You agree to defend, indemnify and hold harmless Progression, its licensors and
their affiliates from all liabilities, claims and expenses, including
attorneys' fees, that arise from or in connection with breach of this
Agreement, use of GameRail or any Subscription, or any User Generated
Information or Third Party Content. Progression reserves the right, at its own
expense, to assume the exclusive defense and control of any matter otherwise
subject to indemnification by you. In that event, you shall have no further
obligation to provide indemnification to Progression in that matter. This
Section regarding Indemnification shall survive termination of this Agreement.
10. AMENDMENTS TO THIS AGREEMENT
Progression may amend this Agreement at any time in its sole discretion. As a
Subscriber, you agree that Progression may amend the terms of this Agreement.
If Progression amends the Agreement, such amendment shall be effective thirty
(30) days after your receiving notice of the amended Agreement, either via
e-mail or as a notification within the GameRail Software. You can view the
Agreement at any time at http://www.gamerail.com/ . Your failure to cancel your
Account thirty (30) days after receiving notification of an amended Agreement
will mean that you accept all such amendments. If you don't agree to the
amendments or to any of the terms in this Agreement, your only remedy is to
cancel your Account or a particular Subscription.
11. TERM AND TERMINATION
Either you or Progression has the right to terminate or cancel your Account or
a particular Subscription at any time. You understand and agree that the
cancellation of your Account or a particular Subscription is your sole right
and remedy with respect to any dispute with Progression.
A. Term.
The term of this Agreement (the "Term") will be effective as of the
date that you initiate your Account, and will continue in effect until
otherwise terminated in accordance with this Agreement.
B. Termination by You.
GameRail accepts cancellation by email,
phone, fax or U.S. Mail. Accounts are set to close at the end of the current
billing period. You will be issued a confirmation number as your only proof of
cancellation. We do not grant refunds or credits for any prior use including
partial use during the last month of cancellation. If you do cancel by one of
the prescribed methods and are mistakenly billed again, we will refund any
erroneous charges upon proof of cancellation. To cancel the Service you must do
the following:
Phone Cancellation:
+1 (314) 994-9178
Email Cancellation: cancellation@gamerail.com
Fax Cancellation:
+1 (314) 994-9168
U.S.
Mail: Two City Place Drive, Suite 380, St. Louis, MO 63141
C. Termination by Progression.
1. In the case of a recurring payment Subscription (e.g., a monthly
subscription), in the event that Progression terminates or cancels your Account
or a particular Subscription for convenience, Progression may, but is not
obligated to, provide a prorated refund of any prepaid Subscription fees paid
to Progression.
2. In the case of a free Subscription,
Progression may choose to terminate or amend the terms of the Subscription as
provided in the "Amendments to this Agreement" section above.
D. Survival of Terms.
Sections 2(D), 2(E), 7, 9, 10, 11, 13(D), 14, and 15 will survive any
expiration or termination of this Agreement.
12. APPLICABLE LAW/JURISDICTION
You agree that this Agreement shall be deemed to have been made and executed in
the State of Missouri, and any dispute arising hereunder shall be resolved in
accordance with the law of Missouri. You agree that any claim asserted in any
legal proceeding by you against Progression shall be commenced and maintained
exclusively in any state or federal court located in Saint Louis County, Missouri,
having subject matter jurisdiction with respect to the dispute between the
parties and you hereby consent to the exclusive jurisdiction of such courts. In
any dispute arising under this Agreement, the prevailing party will be entitled
to attorneys' fees and expenses.
13. MISCELLANEOUS
In the event that any provision of this Agreement shall be held by a court or
other tribunal of competent jurisdiction to be unenforceable, such provision
will be enforced to the maximum extent permissible and the remaining portions
of this Agreement shall remain in full force and effect. This Agreement
constitutes and contains the entire agreement between the parties with respect
to the subject matter hereof and supersedes any prior oral or written
agreements. You agree that this Agreement is not intended to confer and does
not confer any rights or remedies upon any person other than the parties to
this Agreement.
Progression's obligations are subject to existing laws and legal process and
Progression may comply with law enforcement or regulatory requests or
requirements notwithstanding any contrary term.
You agree to comply with all applicable import/export laws and regulations of
the United States
and its governmental and regulatory agencies (including, without limitation,
the Bureau of Export Administration and the U.S. Department of Commerce). You
agree not to export the GameRail Software or allow use of your Account by
individuals of any terrorist supporting countries to which encryption exports
are at the time of exportation restricted by the Bureau of Export
Administration. You represent and warrant that you are not located in, under
the control of, or a national or resident of any such prohibited country.
