Chat Filter Terms
Basic Community Sift Services for Exit Games Photon Chat Subscription Agreement
This Basic Community Sift Services for Exit Games Photon Chat Subscription Agreement (the “C-Sift Agreement”) applies to Your use of the Basic Community Sift services for monitoring and filtration of user generated content (the “Service”) together with Exit Games Inc.’s (“Exit Games”, ”We” or “Our”) Photon Chat (“Photon Chat”).
PLEASE READ THIS C-SIFT AGREEMENT CAREFULLY BEFORE LICENSING, ACCESSING OR USING THE SERVICE. BY COMPLETING THE ONLINE REGISTRATION FORM AND CLICKING THE AFFIRMATION BOX, ACCESSING OR USING THE SERVICE, OR OTHERWISE AGREEING IN WRITING TO THE TERMS AND CONDITIONS SET FORTH HEREIN, YOU AGREE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THE TERMS OF THIS C-SIFT AGREEMENT (EXCEPT AS NOTED BELOW IF YOU HAVE ANOTHER RELEVANT AGREEMENT WITH EXIT GAMES) AND YOU REPRESENT THAT YOU HAVE AUTHORITY TO BIND YOUR COMPANY AND/OR OTHER ENTITY(IES) (COLLECTIVELY, THE “CUSTOMER” OR “YOU”) TO THIS AGREEMENT.
EXIT GAMES MAY REVISE AND UPDATE THIS C-SIFT AGREEMENT AT ANY TIME WITHOUT NOTICE BY POSTING THE AMENDED TERMS TO HTTPS://WWW.PHOTONENGINE.COM. YOUR CONTINUED USE OF THE SERVICE MEANS THAT YOU ACCEPT AND AGREE TO THE REVISED C-SIFT AGREEMENT.
IN ADDITION TO THIS C-SIFT AGREEMENT, YOUR ACCESS AND USE OF OUR PHOTON PRODUCTS AND SERVICES (THE “PHOTON OFFERINGS”), INCLUDING BUT NOT LIMITED TO, PHOTON CHAT, IS SUBJECT TO THE TERMS AND CONDITIONS OF OUR LICENSE AGREEMENT FOR EXIT GAMES PHOTON (“PHOTON AGREEMENT”).
CUSTOMERS WITH AN EXISTING AGREEMENT WITH EXIT GAMES: IN THE EVENT THAT YOU ALREADY HAVE A BINDING AGREEMENT, WRITTEN OR ELECTRONIC, IN EFFECT WITH EXIT GAMES RELATING TO THE LICENSING AND USE OF THE SERVICE (“OTHER AGREEMENT”), THE TERMS OF THE OTHER AGREEMENT SHALL CONTROL AND THE TERMS OF THIS AGREEMENT WILL NOT APPLY (EVEN IF YOU ARE REQUIRED TO CLICK THE BOX AFFIRMING YOUR CONSENT TO THE TERMS OF THIS AGREEMENT). FOR PURPOSES OF CLARITY, “OTHER AGREEMENT” DOES NOT INCLUDE THE PHOTON AGREEMENT.
This C-Sift Agreement does not apply to any other agreement that Customer has entered into with Exit Games. The Service shall not be considered a service or product or part of any service or product under any other agreement between Customer and Exit Games, unless and only to the extent otherwise expressly agreed in writing by Exit Games.
1.0 Service, Integration and Backward Compatibility.
1.1 Provision of Service. Subject to the terms and conditions of this C-Sift Agreement, Exit Games shall make the Service available to Customer as subscription and Customer may access and use the Service by no more than the maximum of individual, concurrent active users (“CCU”) that Customer has ordered for Photon Chat in the applicable Photon Agreement between Exit Games and Customer.
1.2 Integration of Service. Exit Games will provide Customer access to an API or other technical integration solution made available by Exit Games (collectively the “Exit Games Integration Solutions”) to enable Customer to integrate the Service with Customer’s services or products (each a “Customer Product”). Exit Games will give Customer reasonable written notice of any material change to the specifications that may affect integration with a Customer Product or discontinuance of any mode of integration.
(a) Customer will, at its expense, be responsible for all design, coding, and testing necessary to integrate the Service with the Customer Products using the Exit Games Integration Solutions.
(b) Customer will, at its expense, be responsible (i) for establishing and maintaining an internet connection to the Service and (ii) for compliance with the applicable laws that apply to Customer’s use of the Service together with the Customer Products.
1.4 Backward Compatibility. Exit Games may alter, update, add-to or remove parts of the Service from time to time, in its own discretion, provided that Exit Games will maintain the backward compatibility of the Service for a period of ninety (90) days’ after any new version is put into production by Exit Games.
2.1 License Grants. Subject to the terms of this C-Sift Agreement and during the applicable license term, Exit Games grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable right to (a) access and use the Service and (b) use and make a reasonable number of copies of any descriptions, instructions, or other documentation made available in connection with the Service, if any (“Documentation”).
2.2 License Restrictions. Except as otherwise expressly permitted under this C-Sift Agreement, Customer agrees not to: (a) use the Service with any other software, product or service than Photon Chat or a Customer Product; (b) modify, reverse engineer, disassemble, decompile or otherwise attempt to discover the source code of, or trade secrets embodied in, the Service, or any portion thereof, except to the extent expressly contemplated in or as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; (c) distribute, rent, resell, sell transfer, grant sublicenses to, the Service in a service bureau or outsourcing offering or otherwise make available the Service (or any portion thereof) to third parties, including, but not limited to, making the Service available through resellers or other distributors; (d) embed or incorporate in any manner the Service (or any element thereof) into other applications of Customer than the Customer Products; (e) create modifications to or derivative works of the Service; (f) attempt or permit any third party to attempt to modify, alter, or circumvent the license control and protection mechanisms within the Service; (g) use or transmit the Service in violation of any applicable law, rule or regulation, including any export/import laws; (h) remove, obscure or alter any copyright notices or any name, trademark, service mark, tagline, hyperlink or other designation of Exit Games or Community Sift displayed on any display screen within the Service; (h) commercially exploit the Service in a way that competes with Exit Games or Community Sift’s business. Customer shall not permit any third party to perform any of the foregoing actions and shall be responsible for all damages and liabilities incurred as a result of such actions. The Service is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), and more specifically is “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), the Service is provided to U.S. Government Customers (i) only as a commercial end item and (ii) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
(a) Customer acknowledges and agrees that (i) Community Sift retains all intellectual property and other proprietary rights, including without limitation, copyrights, patents, and trade secret rights, in and to the Service (and all modifications and additions thereto), (ii) Customer has no right, title or interest in or to the Service (and all modifications and additions thereto) except as expressly provided in this C-Sift Agreement, and (iii) that any suggestions for features, functionality, word list, or performance that relate solely to the Service, including without limitation new rules or artificial intelligence training to prevent false positives and negatives derived from Customer Data (defined below) (collectively “Service Improvements”) will be solely owned by Community Sift.
(b) In Customer’s use of the Service, Customer may utilize its own business rules, guidelines and other proprietary data or material (including without limitation all versions and modifications of the same) (collectively “Customer Materials”). Community Sift will be permitted during the license term and thereafter to use and modify the aggregated learnings from Community Sift’s use of the Customer Materials, particularly from the submissions of the Customer’s end users (excluding any personal data for such end users), to improve the Service, such as by training the artificial intelligence and to create new rules to enhance the Service. For greater certainty, any words, phrases or similar text filtered by the Service and which form part of the improvements through the Service’s automated learning functionality, through manual updates to the Service or otherwise, will be subject to use and modification for improving the Service by Community Sift during the license term and thereafter.
3.0 Customer Responsibilities.
(a) Customer agrees: (i) not to knowingly upload or distribute in any way files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of the Service or another's computer; (ii) not to use the Service for illegal purposes; and (iii) not to knowingly interfere or disrupt networks connected to the Service.
(b) Since Customer is responsible for the input of its custom risk settings in order to create the filters using the Service, neither Exit Games nor Community Sift assume any responsibility for Customer’s choices as to its custom risk settings and therefore what results may be obtained from use of the Service or as to the accuracy or reliability of any content or information obtained or made by the Service.
4.0 End User Communication.
Customer acknowledges and agrees that neither Community Sift nor Exit Games endorse the contents of any communications of Customer’s end users nor assume any responsibility for any threatening, libelous, obscene, harassing or offensive material contained therein, any infringement of third party intellectual property rights arising therefrom or any crime facilitated thereby.
5.0 Customer Data.
5.1 Customer Data License. Customer grants Community Sift and Exit Games a non-exclusive, non-transferable, non-sublicensable, royalty-free, limited license to store and use any data, information, images, text, media, and content submitted by Customer to the Service or otherwise processed through the Service (the “Customer Data”), subject to all the terms and conditions of this C-Sift Agreement, solely (a) as necessary to perform Exit Games’ obligations and exercise its rights under this C-Sift Agreement, (b) to respond to service or technical problems of Customer with the Service; or (c) for the purpose of making Service Improvements, provided that any such Customer Data used and stored for this purpose will be used and stored solely in an aggregated and non-identifiable form that does not contain, and is not linked to, any personal data and does not contain any content that has been identified as illegal or as violating any third party rights. For the avoidance of doubt, Customer Data includes all output generated through Customer’s use of the Service, including all reports and similar analytics material, but does not include Service Improvements.
5.2 Customer Data Restrictions. Except as expressly permitted in this C-Sift Agreement, Exit Games will not edit, delete, provide access to or disclose the contents of Customer Data in any manner or to any person unless specifically authorized by Customer in writing.
5.3 Responsibility for Customer Data. Since Customer inputs and assigns risk levels to the Customer Data, Customer is solely responsible for the accuracy, quality, legality, reliability, appropriateness and copyright of all Customer Data.
5.4 Personal Data and Privacy Laws.
(a) The parties agree that they will comply with all applicable data protection and privacy legislation in connection with this C-Sift Agreement. Each party will take appropriate technical and organizational measures against unauthorized or unlawful processing or accidental loss, destruction or damage of personal data in its possession in connection with this C-Sift Agreement.
(b) If Community Sift or Exit Games process any personal data on Customer’s behalf when performing Exit Games’ obligations under this C-Sift Agreement: (i) Customer will ensure that Customer is entitled to transfer the relevant personal data to Community Sift and Exit Games so that Community Sift and Exit Games may lawfully process the personal data in accordance with this C-Sift Agreement; and (ii) the personal data will only be processed in accordance with this C-Sift Agreement.
(c) Customer understands and acknowledges that in some jurisdictions, use of the Service may violate applicable data protection laws. Customer shall not knowingly use the Service in any jurisdiction where such use violates applicable data protection laws and Customer shall be solely responsible and liable for any alleged or actual violation of such laws.
5.5 Indemnification. Customer will, at its own expense, indemnify, defend and hold harmless any action against Exit Games, Community Sift and/or Exit Games’ and/or Community Sift’s affiliates, their officers, directors, employees, consultants and/or agents brought by a third party to the extent that the action (including but not limited to any governmental investigations, complaints, and actions) relates to Customer Data, including but not limited to infringement or misappropriation any third party´s intellectual property rights or violation of applicable law. Customer will pay those costs and damages finally awarded against Exit Games and/or Community Sift in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action.
6.0 Fees and Payment.
6.1 Fees. Subject to the terms and conditions below, Customer will pay to Exit Games, as applicable, all agreed fees for the Service (“Fees”) in advance of the then-current Term via credit card, PayPal or other payment mechanism accepted by Exit Games. All amounts payable shall be in the currency of the United States.
6.2 Late Payment. Late payments will bear interest at the lesser of one and one-half percent (1.5%) per month, compounded monthly (equivalent to 19.56% per annum) or the highest rate permitted by law, until paid.
6.3 Taxes. All fees are exclusive of applicable federal, state, provincial, local or other taxes, duties and tariffs not based on a party’s net income, including but not limited to, sales, use, transfer, value-added, privilege or property taxes, import and export duties and tariffs or amounts levied in lieu thereof.
7.0 Term and Termination.
7.1 Term. The term of the Service license will commence on the date that Exit Games accepts Customer’s offer to obtain the right to use the Service, and continue until one of the parties terminates this C-Sift Agreement (the “Term”). Termination shall be effective on the last day of the calendar month in which the C-Sift Agreement is terminated by either party.
7.2 Effect of Termination. Upon termination or expiration of this C-Sift Agreement, (a) all rights, licenses granted either party hereunder will immediately cease; (b) Customer will immediately cease all use of and access to the Service, and (c) each party will promptly return the other party’s Confidential Information (as defined below). Neither expiration nor any termination of this C-Sift Agreement will relieve either party of any obligation or liability accruing prior to such expiration or termination. In addition, the following Sections will survive expiration or termination of this C-Sift Agreement for any reason: Sections 5, 6, 8, 9, 10 and 11.
7.3 Disclaimer. Except as specifically provided herein, if either party is entitled under local law or otherwise for any special payment or termination indemnity as a consequence of termination or expiration of this C-Sift Agreement, such party hereby waives and disclaims to the fullest extent permitted by law, any right to such payment or indemnity.
8.0 Confidential Information.
8.1 Confidentiality Obligation. During the term of the license agreement, each party (the “Receiving Party”) may be provided with or otherwise learn confidential and/or proprietary information of the other party (the “Disclosing Party”) that is of substantial value to the Disclosing Party (including without limitation certain information and materials concerning the Disclosing Party’s business, plans, technology, and products), which is identified as confidential at the time of disclosure or which ought in good faith to be considered confidential (“Confidential Information”) and which includes, without limiting the foregoing, the terms and conditions of this C-Sift Agreement and any discussions related thereto, and, in the case of Exit Games, the Service and Service Improvements. All Confidential Information remains the property of the Disclosing Party. The Receiving Party may disclose the Confidential Information of the Disclosing Party only to its affiliates, employees, consultants, agents or other representatives who need to know the Confidential Information for purposes permitted under this C-Sift Agreement and who are bound by written confidentiality agreements with terms at least as restrictive as those provided in this C-Sift Agreement. The Receiving Party will not use the Confidential Information without the Disclosing Party’s prior written consent except in performance under this C-Sift Agreement. The Receiving Party will take measures to maintain the confidentiality of the Confidential Information similar to those measures the Receiving Party uses to maintain the confidentiality of its own Confidential Information of like importance but in no event less than reasonable measures. Customer will not publish any technical description of the Service beyond the description published by Community Sift for general dissemination. The Receiving Party will give immediate notice to the Disclosing Party of any unauthorized use or disclosure of the Confidential Information and agrees to assist the Disclosing Party in remedying such unauthorized use or disclosure.
8.2 Exceptions. The confidentiality obligations do not extend to Confidential Information which (i) becomes publicly available without the fault of the Receiving Party; (ii) is rightfully obtained by the Receiving Party from a third party with the right to transfer such information without obligation of confidentiality; (iii) is independently developed by the Receiving Party without reference to or use of the Disclosing Party’s Confidential Information; or (iv) was lawfully in the possession of the Receiving Party at the time of disclosure, without restriction on disclosure. The Receiving Party will have the burden of proving the existence of any condition in this Section 8.2.
8.3 Notice. In the event that any Confidential Information of the Disclosing Party is required to be disclosed by law or regulation or stock exchange or valid order of a court or other governmental authority, the Receiving Party will (unless legally prohibited) first have given notice to the Disclosing Party so that the Disclosing Party will have an opportunity to seek a protective order or other appropriate relief.
9.0 Warranties, Indemnity, Disclaimer.
9.1 General Warranty. Each party warrants that the execution of this C-Sift Agreement and the performance by it of its obligations hereunder, does not and will not violate any agreement to which that party is a party or is otherwise bound.
9.2 Exit Games Warranty. Exit Games warrants that the Service will perform substantially and materially in accordance with their functional specification under normal use and circumstances for the Service provided in accordance with this C-Sift Agreement. If there is a material breach of the above warranty, Exit Games’ entire liability and Customer’s entire remedy will be, at Exit Games’ sole discretion, to (i) modify the Service to conform to the functionality of Customer’s requirements or provide a reasonable workaround to substantially achieve such functionality which will reasonably meet Customer’s requirements; or (ii) if Exit Games reasonably determines that neither of the foregoing is commercially reasonable, after having expended reasonable efforts, it may terminate this C-Sift Agreement. These remedies are Customer’s sole and exclusive remedies for a breach of the foregoing warranty.
9.3 Exit Games Indemnification. Subject to Section 9.5, Exit Games will defend any third-party suit or action against Customer to the extent such suit or action is based on a claim that the Service infringes any copyright or trade secret, and Exit Games will indemnify Customer from and against those damages and costs finally awarded against Customer in any monetary settlement of such suit or action which are specifically attributable to such claim. These obligations do not include any claims to the extent they are based on use of the Service in violation of this C-Sift Agreement or in combination with any other software or hardware, or any modification to the Service other than by Community Sift or Exit Games. If any portion of the Service becomes, or in Exit Games’ opinion is likely to become, the subject of a claim of infringement, then Exit Games may, at its option and expense, (a) procure for Customer the right to continue using the Service; (b) replace or modify the Service so that it becomes non-infringing; or (c) if the foregoing options are not commercially reasonable, terminate this C-Sift Agreement. THE FOREGOING STATES CUSTOMER’S SOLE REMEDY AND EXIT GAMES’ SOLE LIABILITY FOR INFRINGEMENT OF THIRD PARTY RIGHTS.
9.4 Customer Indemnification. Customer will indemnify, defend and hold harmless Exit Games, its affiliates, and their officers, directors, employees, consultants and agents from and against any and all claims, actions, suits, proceedings, damages, liabilities, costs and expenses (including without limitation reasonable attorneys’ fees) arising out of or related to: (a) Customer’s misuse, modification, alteration, adaptation, promotion, marketing, sublicensing or distribution of the Service in breach of this C-Sift Agreement; (b) any services or components not supplied by Exit Games to Customer hereunder; (c) the combination of the Service with other services, products, components, process or material not obtained from Exit Games; (d) any modification to the Service not made by Community Sift; or (e) Customer Data.
9.5 Obligations. The indemnified party under Section 9.3 or Section 9.4, as applicable (the “Indemnified Party”) will (a) promptly notify the party subject to the indemnity obligations (the “Indemnifying Party”) in writing of any such claim, action or demand, (b) allow the Indemnifying Party to control the defense or settlement thereof, and (c) provide all reasonable assistance in connection therewith, at the Indemnifying Party’s request and expense. The Indemnified Party may participate in the defense or settlement of any such claim at its own expense. The Indemnifying Party agrees that it will not settle any claim in a manner which would impose any obligation on the Indemnified Party or restrict the Indemnified Party’s right, title or interest, including all intellectual property rights in the Indemnified Party’s products or services, without the Indemnified Party’s prior written consent.
9.6 DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS C-SIFT AGREEMENT, EXIT GAMES DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES WITH RESPECT TO THE SERVICE OR OTHERWISE UNDER THIS C-SIFT AGREEMENT. EXIT GAMES PROVIDES THE SERVICES TO CUSTOMER “AS IS,” WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE AND AGAINST INFRINGEMENT. EXIT GAMES DOES NOT WARRANT THAT THE SERVICE WILL BE ERROR-FREE OR THAT IT WILL OPERATE WITHOUT INTERRUPTION.
10.0 LIMITATION OF LIABILITY.
EXCEPT FOR (A) BREACH OF SECTION 8, (B) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS IN SECTION 9, OR (C) ANY LIABILITY WHICH CANNOT BE EXCLUDED AS A MATTER OF LAW: (i) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, FAILURE TO REALIZE EXPECTED SAVINGS, LOSS OF BUSINESS OR LOSS OR CORRUPTION OF DATA, ARISING UNDER OR RELATED TO THIS C-SIFT AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, REGARDLESS OF THE CAUSE OF ACTION UNDER WHICH SUCH DAMAGES ARISE; AND (ii) THE MAXIMUM AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATED TO THIS C-SIFT AGREEMENT, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WILL IN NO CASE EXCEED THE ACTUAL FEES EARNED BY EXIT GAMES UNDER THIS C-SIFT AGREEMENT IN THE SIX (6) MONTHS PERIOD PRIOR TO THE DATE OF FIRST NOTICE OF CLAIM UNDER THIS C-SIFT AGREEMENT.
The parties are independent contractors with respect to each other, and nothing in this C-Sift Agreement shall be construed as creating an employer-employee relationship, a partnership, agency relationship or a joint venture between the parties. Each party will be excused from any delay or failure in performance hereunder, other than the payment of money, caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to acts of God, earthquake, labor disputes and strikes, riots, war and governmental requirements. The obligations and rights of the party so excused will be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay. This C-Sift Agreement controls the actions of all party representatives, officers, agents, employees and associated individuals. The terms of this C-Sift Agreement shall be binding on the parties, and all successors to the foregoing. Customer will not assign, transfer or delegate its rights or obligations under this C-Sift Agreement (in whole or in part) without Exit Games’ prior written consent. Any attempted assignment, transfer or delegation in violation of the foregoing shall be null and void. All modifications to or waivers of any terms of this C-Sift Agreement must be in a writing that is signed by the parties hereto and expressly references this C-Sift Agreement. This C-Sift Agreement shall be governed by the laws of the State of Oregon, without regard to Oregon conflict of laws rules. The exclusive venue and jurisdiction for any and all disputes, claims and controversies arising from or relating to this C-Sift Agreement shall be the state or federal courts located in Portland, Oregon. Each party waives any objection (on the grounds of lack of jurisdiction, forum non conveniens or otherwise) to the exercise of such jurisdiction over it by any such courts. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or enforcement of this C-Sift Agreement. In the event that any provision of this C-Sift Agreement conflicts with governing law or if any provision is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, (a) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and (b) the remaining terms, provisions, covenants and restrictions of this C-Sift Agreement shall remain in full force and effect. No waiver of any breach of any provision of this C-Sift Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. The foregoing constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications, including, without limitation, any quotations or proposals submitted by Exit Games. The terms on any purchase order or similar document submitted by Customer to Exit Games will have no effect and are hereby rejected. All notices, consents and approvals under this C-Sift Agreement must be delivered in writing by courier, by facsimile, or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at its main corporate headquarters and sent to the attention of such party’s Chief Executive Officer.