OUYA Discover Marketplace Terms of Use
Last Updated: November 5, 2014
Welcome to the OUYA (“OUYA”,
“us”, or “we”) Discover Marketplace, where you can download games and apps to
play and use on your OUYA console (the “Marketplace”). We realize that this text
box is one of the few things standing between you and playing some new games,
but it’s important that you carefully read these Terms of Use (“Terms”). So please
read these Terms because they’re a contract between you and OUYA and the rules,
which govern your use of the Marketplace. Our goal is to be transparent, so if you
have any questions feel free to send us a note at bettercallsaul@ouya.tv. We’ll happily answer any
questions you may have.
Accepting The Quest
By accepting these
Terms or by using the Marketplace, you agree to be bound by these Terms. If you
don’t agree to these Terms, don’t use the Marketplace. If you’re reading these
Terms in a language other than English, we provided the translated version for
your convenience only, but the English version is the official version that binds
you and us. You may also find these terms published online at http://www.ouya.tv/discover-marketplace-terms-of-use.
What’s With The
Defined Terms?
You’ll
notice that some words appear in quotes in the Terms. They’re called “defined terms,” and we use
them so we don’t have to repeat the same language again and again, and to make
sure that the Terms are consistent.
We’ve included the defined terms throughout because we want it to be
easy for you to read them in context.
Changes To Terms Or Marketplace
Though we’ll try not
to change these Terms too frequently, there are sometimes reasons why we need
to modify these Terms, and we may do so at any time. Of course, if we do, we’ll
let you know either by posting the modified Terms on the Marketplace or through
other channels. We probably won’t communicate these changes to you using an
owl, a raven, or IP-over-Carrier Pigeon. However, when we tell you about the
changes, it’s important that you review the modified Terms because if you
continue to use the Marketplace
after we’ve told you that the Terms have been modified, you’re
telling us that you agree to be bound by the modified Terms. If you don’t agree to the modified
Terms then you can’t keep using the Marketplace… sorry. Because the Marketplace
is evolving over time we may change or discontinue all or any part of the Marketplace,
at any time and without notice, whenever we feel like it. It sounds harsh, but
it just means that we can focus on bringing you more awesomeness and not waste
time on things that aren’t cool or fun.
This Adventure Isn’t for
Everyone
You
may use the Marketplace only if you are 13 years or older and are not barred
from using the Marketplace under applicable law.
Registration and Your Information
If
you want to use the Marketplace you’ll have to create an account (“Account”). You can do this either
online at http://www.ouya.tv or via the
console when you first fire up your OUYA. It’s important that you provide us
with accurate, complete and up-to-date information for your Account and you promise
to keep your Account information up-to-date. If you don’t, we reserve the right
to suspend or terminate your Account, though we really would prefer to not
exercise that right. You agree not to share your password with other people,
animals, life-forms, bots, organic matter, etc. and you’ll let us know if there
is any unauthorized use of your Account. You’re responsible for all activities
that occur under your Account, whether or not you know about them.
Privacy
Policy
Please refer to our Privacy
Policy (http://www.ouya.tv/privacy-policy)
for information on how we collect, use and disclose information from our gamers.
Rights
to Games and Apps
“Games and Apps” means software, text,
graphics, images, music, audio, video, works of authorship of any kind, and
information or other materials that are posted, generated, provided or
otherwise made available through the Marketplace. The Games and Apps belong to
us and our licensors – for example – OUYA developers create and
make games available via the Marketplace. Any reviews or comments that you
provide to us in the form of feedback about the Marketplace or the Games and
Apps are called “Your Content”. Your Content (not surprisingly) is yours and nothing
in these Terms restricts any rights that you have to use it now and forever.
Content Ownership, Responsibility and
Removal
Subject to your
ownership of Your Content, OUYA and its licensors exclusively own all right,
title and interest in and to the Marketplace and Games and Apps, including all
associated intellectual property rights. You acknowledge that the Marketplace
and Games and Apps are protected by copyright, trademark, and other laws of the
United States and foreign countries. You agree not to remove, alter or obscure
any copyright, trademark, service mark or other proprietary rights notices
incorporated in or accompanying the Marketplace or Games and Apps.
At times you may create derivative works of a Game (e.g., levels, enhanced functionality, tools, data or media content), which we refer to as "Derivative In-Application Products." You hereby grant us the nonexclusive, irrevocable, royalty-free right to use, evaluate, reproduce, store, modify, offer, promote, exploit, sell, distribute, and make available your Derivative In-Application Products and any data and information related thereto through the Marketplace to gamers in the Territory by all means of electronic distribution available now or in the future. Besides the foregoing rights, you acquire no right, title or interest in or to the underlying Game or the Marketplace and all technology. By submitting your Derivative In-Application Products to the Marketplace, you agree that your Derivative In-Application Products do not violate or infringe on any intellectual property right or violate any laws, and comply with the OUYA General Content Guidelines.
Sometimes we may
discover that one of the Games and Apps on the Marketplace violates our
agreement with our developers or other legal agreements, laws, regulations or
policies. You agree that under those circumstances we have the right to
remotely remove those Games and Apps from your device at our sole discretion.
Games and Apps available
on the Marketplace may be subject to export controls or restrictions by the
United States or other countries or territories. You agree to comply with all
applicable U.S. and international export laws and regulations regarding the
download, installation and/or use of the Marketplace and/or the Games and Apps.
These laws include restrictions on destinations, end users, and end use.
Rights in Content Granted by OUYA
Subject
to your compliance with these Terms and any separate end user license agreement
for the Games and Apps that apply to your access to and use of those Games and
Apps you download, OUYA grants you access to the Marketplace to download and
play the Games and Apps for your own personal, non-commercial purposes.
Buying Things
The
Marketplace is a marketplace, after all. We strive to make all of the Games and
Apps on the Marketplace free to try. Some are completely free, while others may
require a paid license or subscription to play the full game. All taxes (including
sales tax and VAT) are included in the purchase price listed on the
Marketplace. Prices for the Games and Apps offered on the Marketplace may
change at any time, and OUYA and the Marketplace don’t provide price protection
or refunds if a price is reduced or if there’s a sale after you buy one of the
Games or Apps. You agree to pay for any Games and Apps that you purchase and
that we may charge your credit card or deduct the purchase amount from your
available Account balance for any Games and Apps you purchase. Though we hate
fees too, we know that our gamers are using credit cards and payment
instruments from all around the world. As such, you agree that you are solely
responsible for any and all fees associated with purchases you make on the
Marketplace. If the item you purchased becomes unavailable after you pay but
before you download, your only remedy is a refund from OUYA.
Don’t Do Bad Things
We really want everyone to have a great experience using
the Marketplace. That’s why you agree
that you won’t do any of the following things, otherwise we might have to suspend or terminate your Account.
· Use,
display, mirror or frame the Marketplace, or any individual element within the
Marketplace, OUYA’s name, any OUYA trademark, logo or other proprietary
information, or the layout and design of any page or form contained on a page,
without our express written consent, except as is clearly permitted by the
functionality of the services.
· Access,
tamper with, or use non-public areas of the Marketplace, OUYA’s API’s, or the
technical delivery systems of OUYA’s providers;
· Attempt
to probe, scan, or test the vulnerability of any OUYA system or network or
breach any security or authentication measures;
· Avoid,
bypass, remove, deactivate, impair, descramble or otherwise circumvent any
technological measure implemented by OUYA or any of OUYA’s providers or any
other third party (including another user) to protect the Marketplace or Games
and Apps;
· Send
any unsolicited or unauthorized advertising, promotional materials, email, junk
mail, spam, chain letters or other form of solicitation;
· Use
any meta tags or other hidden text or metadata utilizing a OUYA trademark, logo,
URL or product name without our express written consent;
· Use
the Marketplace or Games and Apps for any commercial purpose or for the benefit
of any third party or in any manner not permitted by these Terms;
· Forge
any TCP/IP packet header or any part of the header information in any email or
newsgroup posting, or in any way use the Marketplace or Games and Apps to send
altered, deceptive or false source-identifying information;
· Attempt
to decipher, decompile, disassemble or reverse engineer any of the software
used to provide the Marketplace or Games and Apps;
· Interfere
with, or attempt to interfere with, the access of any user, host or network,
including, without limitation, sending a virus, overloading, flooding,
spamming, or mail-bombing the Marketplace;
· Collect
or store any personally identifiable information from the Marketplace from
other users of the Marketplace without their express permission;
· Impersonate
or misrepresent your affiliation with any person or entity;
· Violate
any applicable law or regulation; or
· Encourage
or enable any other gamer or individual to do anything listed above.
DMCA/Copyright
Policy
OUYA
respects copyright law and expects you to do the same. It is our policy to
terminate Account holders or subscribers who repeatedly infringe the rights of
copyright holders. Please see OUYA’s Copyright and IP Policy at http://www.ouya.tv/copyright for further information.
Termination
We may terminate your
access to and use of the Marketplace, at our sole discretion, at any time and
without notice to you. This includes our suspending your account if you are
inactive for twelve months in a row. You,
too, may cancel your Account at any time by sending an email to us at support@ouya.tv. Any balance remaining on your Account at
the time of termination is not redeemable for cash and cannot be returned to
you as a cash refund, except as required by law. Any
unused balance on your Account is not transferable. Upon
any termination, discontinuation or cancellation of Marketplace or your
Account, the following provisions will survive: "Rights to Games and
Apps," "Content Ownership, Responsibility and Removal,"
"Warranty Disclaimers," "Indemnity," "Limitation of
Liability," "Dispute Resolution – Ready, Fight!," and
"General Terms."
OK. We get it.
There’s a lot to digest in these Terms.
But we’re not done yet! Let’s not be too hard on our lawyers
who “told” us (albeit nicely!) to include these sections in the Terms. They’re driven in large part by legal
precedent and we don’t have a lot of flexibility with the language. Among other things, these sections say that
the Marketplace, as a platform, which makes Games and Apps available to you, is not
responsible for such Games
and Apps.
Warranty
Disclaimers
AS
BETWEEN YOU AND OUYA, The Marketplace and GAMES AND APPS are provided “AS IS,” without
warranty of any kind. Without
limiting the foregoing, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND
NON-INFRINGEMENT AND ANY WARRANTIES
ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty
that the Marketplace will meet your requirements or be available on an
uninterrupted, secure, or error-free basis. We make no warranty regarding the
quality, accuracy, timeliness, truthfulness, completeness or reliability of any
of the Games and Apps.
Indemnity
You will indemnify and hold harmless OUYA and its
officers, directors, employees and agents, from and against any claims, disputes, demands, liabilities, damages,
losses, and costs and expenses, including, without limitation, reasonable legal
and accounting fees, arising out of or in any way connected with (i) your
access to or use of the Marketplace or Games and Apps; (ii) Your Content; or
(iii) your violation of these Terms.
Limitation of Liability
NEITHER OUYA NOR ANY OTHER party involved in
creating, producing, or delivering the Marketplace or GAMES AND APPS will be
liable for any incidental, special, exemplary or consequential damages,
INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION,
COMPUTER DAMAGE OR SYSTEM FAILURE arising
ouT of or in connection with thESE TERMS or from the use OF or inability to use
the Marketplace or Games and Apps, whether based on warranty, contract, tort
(including negligence), PRODUCT LIABILITY or any other legal theory, and
whether or not OUYA has been informed of the possibility of such damage, EVEN
IF A limited REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL
PUrPOSE. SOME JURISDICTIONS DO
NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR
INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
In no event will OUYA’s total liability arising out
of or in connection with THESE TERMS OR FROM
THE USE OF OR INABILITY TO USE the Marketplace
or Games and Apps EXCEED THE AMOUNTS YOU
HAVE PAID TO OUYA FOR USE OF THE MARKETPLACE OR GAMES
AND APPS OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE
NOT HAD ANY PAYMENT OBLIGATIONS TO OUYA, AS APPLICABLE. THE LIMITATIONS OF
DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN
BETWEEN OUYA AND YOU.
Governing Law
These Terms and any
action related to them will be governed by the laws of the State of California
without regard to its conflict of laws provisions.
Agreement
to Arbitrate
You and OUYA agree
that if you or OUYA
have any dispute arising out of or relating to these Terms or the breach,
termination, enforcement, interpretation or validity of these Terms, or the use
of the Marketplace or Games and Apps (collectively, “Disputes”), those Disputes will be
settled by binding arbitration. There are exceptions to this agreement to
arbitrate. Both you and OUYA retain the right: (i) to bring an individual
action in small claims court and (ii) to seek injunctive or other
equitable relief in a court of competent jurisdiction to prevent the actual or
threatened infringement, misappropriation or violation of your or OUYA’s copyrights,
trademarks, trade secrets, patents or other intellectual property rights (the
action described in the foregoing clause (ii), an “IP Protection Action”). The exclusive jurisdiction and venue of
any IP Protection Action will be the state and federal courts located in the
Northern District of California, and both you and OUYA waive any objection to
jurisdiction and venue in such courts. You acknowledge and agree that
you and OUYA are each waiving
the right to a trial by jury or to participate as a plaintiff or class member
in any purported class action or representative proceeding. Further, unless
both you and OUYA otherwise agree in writing, the arbitrator may not
consolidate more than one person's claims, and may not otherwise preside over
any form of any class or representative proceeding. If this specific paragraph
is held unenforceable, then the entirety of this “Dispute Resolution” section
will be deemed void. Except as provided in the preceding sentence, this
“Dispute Resolution” section will survive any termination of these Terms.
Arbitration Rules
The arbitration
will be administered by the American Arbitration Association
(“AAA”) in accordance with the Commercial
Arbitration Rules and the Supplementary Procedures for Consumer Related
Disputes (the “AAA Rules”) in effect at the time of the arbitration, except as
modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA
at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation
and enforcement of this section.
Arbitration
Process
Whoever wants to initiate
arbitration, either you or OUYA, must provide the other party with a written Demand
for Arbitration as specified in the AAA Rules. (The
AAA provides a form Demand for Arbitration at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_004175
and a separate form for California residents at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822.) The arbitrator will be either a retired judge or
an attorney licensed to practice law and will be selected by you and OUYA from
the AAA’s roster of arbitrators. If we’re unable to agree upon an arbitrator
within seven (7) days of delivery of the Demand for Arbitration, then the AAA
will appoint the arbitrator in accordance with the AAA Rules.
Arbitration
Location and Procedure
Unless
we together otherwise agree, the arbitration will be conducted in the county
where you reside. If your claim doesn’t exceed $10,000, then the arbitration
will be conducted solely on the basis of the documents that you and OUYA submit
to the arbitrator, unless you request a hearing or the arbitrator determines
that a hearing is necessary. If your claim exceeds $10,000, your right to a
hearing will be determined by the AAA Rules. Subject to the AAA Rules, the
arbitrator will have the discretion to direct a reasonable exchange of
information by the parties, consistent with the expedited nature of the
arbitration.
Arbitrator’s
Decision
The
arbitrator will render an award within the time frame specified in the AAA
Rules. The arbitrator’s decision will include the
essential findings and conclusions upon which the arbitrator based the award. Judgment on the
arbitration award may be entered in any court having jurisdiction over the
arbitration. The arbitrator’s award of
damages must be consistent with the terms of the “Limitation of Liability”
section in these Terms as to the types and amounts of damages for which you or
OUYA may be held liable. The arbitrator may award declaratory or
injunctive relief only in favor of the claimant and only to the extent
necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration
you will be entitled to an award of attorneys’ fees and expenses, to the extent
provided under applicable law. We won’t seek, and hereby waive
all rights we may have under applicable law to recover, attorneys’ fees and
expenses if we prevail in arbitration. We’re not trying to be jerks here.
Fees
Your responsibility to
pay any AAA filing, administrative and arbitrator fees will be solely as set
forth in the AAA Rules. However, if your claim for damages doesn’t exceed
$75,000, we’ll pay all such fees unless the arbitrator finds that either the
substance of your claim or the relief sought in your Demand for Arbitration was
frivolous or was brought for an improper purpose (as measured by the standards
set forth in Federal Rule of Civil Procedure 11(b)).
Changes
Notwithstanding the
provisions of the “Changes To Terms Or Marketplace” section above, if OUYA
changes this “Dispute Resolution” section after the date you first accepted
these Terms (or accepted any subsequent changes to these Terms), you may reject
any such change by sending us written notice (including by email to bettercallsaul@ouya.tv
within 30 days of the date such change became effective, as indicated in the
“Last Updated” date above or in the date of our email to you notifying you of
such change. By rejecting any change, you are agreeing that you will arbitrate
any Dispute between you and OUYA in accordance with the provisions of this
“Dispute Resolution” section as of the date you first accepted these Terms (or
accepted any subsequent changes to these Terms).
General
Terms
These Terms are the entire
and exclusive understanding and agreement between you and OUYA regarding the Marketplace
and Games and Apps, and these Terms supersede and replace any and all prior
oral or written understandings or agreements between OUYA and you regarding the
Marketplace and Games and Apps. If for any reason a court of competent
jurisdiction finds any provision of these Terms invalid or unenforceable, that
provision will be enforced to the maximum extent permissible and the other
provisions of these Terms will remain in full force and effect.
You may not assign or
transfer these Terms, by operation of law or otherwise, without our prior
written consent. Any attempt by you to assign or transfer these Terms without
such consent will be null and of no effect. We may freely assign or transfer
these Terms without restriction. Subject to the foregoing, these Terms will
bind and inure to the benefit of the parties, their successors and permitted
assigns.
Any notices or other
communications provided by OUYA under these Terms, including those regarding
modifications to these Terms, will be given by OUYA (i) via email; or (ii) by
posting to the Marketplace. For notices made by e-mail, the date of receipt
will be deemed the date on which such notice is transmitted.
Contact
Information
If you have any questions
about these Terms or the Marketplace please contact OUYA at bettercallsaul@ouya.tv
Got Feedback?
Gamers created OUYA, so we want to hear from you!
If you’d like to provide feedback to us about the Marketplace, please go
ahead by emailing us at feedback@ouya.tv.
You
Are Done!
Phew! You made it through our Terms - good for
you! Now go and enjoy OUYA!