Nightdive Studios logo in white
Store

Terms of Service

Last Modified: February 18, 2021

Welcome to Nightdive Studios, LLC’s (“Nightdive”) website located at https://nightdivestudios.com (or any successor URL) (“Site”). Please review the following terms and conditions of use, which govern your use of the Site (“Terms”). Access to and use of the Site is conditioned upon acceptance of and compliance with these Terms. By accessing the Site, you are signifying that you have read, understand, and agree to be bound by all of the terms and conditions set forth in these Terms. If you do not agree with any part of these Terms, then you do not have permission to access the Site. By using the Site, you represent and warrant that you are of legal age to form a binding contract or have the consent of a parent or guardian who is of legal age.  Your use of the Site is also subject to our Privacy Policy.  Throughout the Site and these Terms the use of “we,” “us” and “our” refers to Nightdive and “you” and “your” refer to you.

THE SITE AND ITS FUNCTIONS

Nightdive has created a Site offering news and links to purchase independently developed and remastered classic video games, with 100 titles across multiple digital platforms.

 

END USER LICENSE

Nightdive grants you a personal, non-exclusive, non-transferable, non-sublicensable, limited and revocable license to download and use the Site for personal use only in accordance with these Terms (“User License”). Nightdive does not grant you any other rights whatsoever in relation to the Site or the material contained therein. All other rights are expressly reserved by Nightdive. Any use of the Site in any other manner, including, without limitation, resale, reverse-engineering, disassembling, redistribution, transfer, modification, or distribution of the Site or Nightdive Content (as defined in the Content Section herein) is strictly prohibited. You may not rent, lease, lend, sell, transfer, redistribute or sublicense the Site. You may not copy (except as expressly permitted by these Terms), decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Site, any updates, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law). If you breach any of these restrictions, you may be subject to prosecution and damages.

 

RIGHT TO CHANGE THE SITE

We reserve the right to modify or suspend the Site, or any service, content, feature, information, link, or product offered through the Site, or terminate your right to access or use any portion or feature of the Site, with or without notice, at any time in our sole discretion. You agree that we shall not be liable to you or to any third party for any modification, suspension, or restriction of the Site or any portion thereof. You acknowledge that there is no guarantee of any perpetual continuation of any portion of the Site or otherwise to offer any of the products or features or perform any part of the services offered through the Site at any given time.  We make no promise to store or display all of the information and User Content you submit and/or post, if and as applicable. We have no obligation to provide you with a copy of the information you submit and/or post (except as may be noted in our Privacy Policy or as required by applicable law).

ACCOUNTS, REGISTRATION, ACCESS TO, AND USE OF THE SITE

To use the Site you are not required to process any account registration. If you elect to submit information to us you may provide your first name and email address to us to sign up to receive updates and marketing and other communications from Nightdive. You may elect to log in through an account you create through Shopify. When you create an account, you represent and warrant that you will follow the terms and conditions and requirements of Shopify and that the information you provide us is accurate, complete, and current at all times. To create an account on the Site you must enter the required information, such as your first name, last name, email address, and create a password. You can check out to purchase products either as a guest or via account registration and login on the Site. By using the Site to submit such information, you consent to the transmission of all information (including Personal Information (as defined in our Privacy Policy  Which includes, but is not limited to, your first and last name and email address and the required credit card information)) to Nightdive, including its agents and third-party partners, and to them receiving, collecting, storing, processing, transmitting, and using such information or Personal Information for the Site’s functionality, including processing payment, if and as applicable.

You may only have one single account in the Site. Multiple accounts are prohibited and violate the User License granted herein.

You may be asked to supply certain information relevant to the account and/or account registration you place through the Site, including, without limitation, as applicable, your name; your contact information; address and phone number; your credit card number; the expiration date of your credit card; and your billing address. We may use third parties such as Shopify to process your payment or process your account registration. By submitting your information, you grant us the right to provide the information to these third parties subject to our Privacy Policy.

Nightdive will also collect non-personal information − data in a form that does not permit direct association with any specific individual. Nightdive may collect, use, transfer, and disclose non-personal information for any purpose. Such information may include a unique device identifier, operating system, Site performance data, location, and the time zone where the Site is used so that Nightdive can better understand user behavior and improve our Site.

Subject to these Terms, our Privacy Policy, and applicable law, Nightdive will retain your data and Personal Information as necessary to comply with its legal obligations, resolve disputes, and enforce its agreements. Nightdive has appropriate physical, administrative, and technical procedures in place, which are designed to protect and safeguard your data and Personal Information. Of course, although Nightdive uses standard industry practices to protect and safeguard your data and Personal Information, it cannot guarantee that your communications with Nightdive or Personal Information will never be unlawfully intercepted or accessed by unauthorized third parties.

By submitting your first and last name and email address on our Site, you agree to subscribe to newsletters, marketing or promotional materials and receive notices or other information we may elect to send if you opt in to elect to receive such communications. However, you may at any point in time opt-out of receiving any, or all, of these communications from us by following the unsubscribe link or instructions provided in any email we send.  You agree that you will keep your contact information up to date.  If such contact information is not up to date, you may miss out on important notices. Unless you opt-out you agree that we can provide notices through the Site and/or via the email address you used when you submitted it to our Site.

You may not submit to us the name or email address of another person or entity or that is not lawfully available for you to use, a name or trademark that is subject to any rights of another person or entity other than you, without appropriate authorization. You may not submit to us any name, email address, or other content that is offensive, vulgar, or obscene.

You are responsible for maintaining the confidentiality of your account and password, including, but not limited to, restricting access to your computer or account, if applicable. You may not share your account information or password with any other party or use the account information or password of any other party. Your password needs to be strong and secure. Unless you close your account or report misuse to us in writing, you will be solely responsible for all activities undertaken and all obligations made by you or through your account (including, but not limited to, any purchases made through your account). You must notify us in writing immediately upon becoming aware of any breach of security or unauthorized use of your account.

 

WHAT YOU AGREE TO DO AND NOT DO

You agree to access or use the Site solely for legal purposes as allowed by these Terms. By accessing or otherwise in any way using the Site and the Site’s functionality you amongst other things, represent and warrant as applicable that:

  • You have all necessary legal capacity or parental consent, right, power, and authority to enter into and be bound by these Terms;
  • You will not hack into the Site, or modify another website so as to falsely imply that it is associated or affiliated with the Site;
  • You will only access and use the Site for legal purposes and you may not use our products for any illegal or unauthorized purpose;
  • You will not damage, disable, overburden, transmit any worms or viruses or any code of a destructive nature, or interfere with any other party’s use and enjoyment of the Site;
  • You are 13 years of age or older;
  • You will only have one (1) account;
  • You are not restricted from using the Site;
  • You have the legal right to use the payment method provided;

 

  • You will provide all required information and complete all required aspects of the account registration process if you elect to create an account;
  • All information provided in connection with such account and/or registration is true, accurate, and complete and your real name is used on your account registration;
  • You will keep your account information secure if a Shopify account is created;
  • You will abide by all requirements of Nightdive, including, but not limited to, these Terms;
  • You will comply with any applicable third-party terms of agreement when using the Site (e.g. you must ensure your use of the Site is not in violation of your internet access provider’s service agreement or the applicable third party entities that you may use for log-in to your account);
  • You will abide by all applicable laws when submitting your account and/or account registration information and while engaging in all other activities that flow from your access to the Site and use of the Nightdive products and Site;
  • You will not violate any applicable laws, rules or regulations in your jurisdiction (including, but not limited to, trademark and copyright laws); and
  • You will not access or attempt to access any password-protected, secure, or non-public areas of the Site without our express permission.

Further, you may not in any way use the Site or if the Site functionality allows, post or submit to us or to the Site anything which in any respect:

  • Is in breach of any law, statute, regulation, code, governmental order, or bylaw of any applicable jurisdiction;
  • Is fraudulent, criminal, or unlawful;
  • Is inaccurate or out-of-date;
  • May be obscene, indecent, pornographic, vulgar, profane, racist, sexist, discriminatory, offensive, derogatory, harmful, harassing, threatening, embarrassing, malicious, abusive, hateful, menacing, defamatory, untrue or political;
  • Impersonates any other person or body or misrepresents a relationship with any person or body;
  • May infringe any rights of us or any third party;
  • Is contrary to any specific rule or requirement that we stipulate on the Site or in these Terms; or
  • Involves your use, delivery or transmission of any viruses, unsolicited emails, trojan horses, trap doors, back doors, easter eggs, worms, time bombs, cancelbots or computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.

 

CONTENT, PRODUCTS, AND ACCURACY OF CONTENT OF THE SITE

Unless otherwise noted, the Site, and all materials on the Site, including but not limited to, text, images, illustrations, designs, icons, photographs, and video clips, and the copyrights, trademarks, trade dress, or other intellectual property in such materials (collectively the “Nightdive Content”), are owned, controlled or licensed by Nightdive. The Nightdive brand name and logo are trademarks of Nightdive. The Site and the Nightdive Content are intended solely for personal, non-commercial use. You may download or copy the Nightdive Content and other downloadable materials displayed on the Site for your personal use only. No right, title or interest in any downloaded Nightdive Content is transferred to you as a result of any such downloading or copying. You may not reproduce (except as noted above), publish, transmit, distribute, display, modify, create derivative works from, sell or exploit in any way any of the Nightdive Content or the Site.

Any third-party content, products, information, or services posted on, transmitted through, or linked from the Site are the sole responsibility of the third-party originator. If you choose to access any third-party content, you do so at your own risk. WE ARE NOT RESPONSIBLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS A RESULT OF ACCESSING A THIRD-PARTY WEBSITE OR ANY THIRD-PARTY CONTENT, INFORMATION, PRODUCTS, OR SERVICES.

We have made every effort to accurately display our products, but images on the Site may not exactly match the actual product.  All prices displayed on the Site or in connection with your registration and license fees are in U.S. dollars unless otherwise noted. We will add applicable sales taxes or other similar fees as necessary. All purchases are returnable or refundable only pursuant to our refund policy.  You agree to abide by any additional terms and conditions indicated at the time of purchase.

Occasionally there may be information on our Site that contains typographical errors, inaccuracies, or omissions that may relate to product descriptions, pricing, promotions, offers, and availability. We reserve the right to correct any errors, inaccuracies or omissions and to change or update information or cancel orders if any information on the Site is inaccurate at any time without prior notice.

We reserve the right to limit the sales of our products to any person, geographic region or jurisdiction. We reserve the right to limit the quantities of any products or services that we offer. We reserve the right to discontinue any product at any time. Any offer for any product or service made on the Site is void where prohibited.

All features, specifications, information, links, and other information if and as described on our Site are subject to change at any time, without notice. There may be information on our Site that contains typographical errors, inaccuracies, or omissions that may relate to including, but not limited to, links or information contained on third-party websites. We reserve the right to correct any errors, inaccuracies or omissions and to change or update information if any information on the Site is inaccurate at any time without prior notice, but are not obligated to and cannot ensure the correction of any errors, inaccuracies or omissions or the status of any information on the Site or third-party websites linked to.

 

PAYMENT INFORMATION AND SHOPIFY, Google Pay, PayPal, AND AMAZON PAY, BACKERKIT, and refunds

You agree to honor your payment obligations and acknowledge and agree that our third-party processor will store your payment information. If there are additional terms and conditions for payments, such additional terms and conditions will need to be agreed to prior to completing your purchase.  You may be subject to foreign transactions fees depending on your location. You can access your purchase history through managing your account settings.

The Site is hosted on Shopify Inc. They provide us with the online e-commerce platform that allows us to provide our services and sell our products to you. Your information and Personal Information are stored through Shopify’s data storage, databases and the general Shopify application. They store your data on a secure server behind a firewall. Shopify’s Privacy Policy is here, and applies to all data they collect. It is encrypted according to the requirements of the Payment Card Industry Data Security Standard (PCI-DSS). Your purchase transaction data is stored only as long as is necessary to complete your purchase transaction. After that is complete, your purchase transaction information is deleted.  For additional information, you can review Shopify’s terms of service here.  You may also elect to process your order via Google Pay, PayPal, or Amazon Pay.  Google Pay’s Privacy Policy is here and the terms of service are here. Pay Pal’s Privacy Policy is here and the account user agreement is here. Amazon Pay’s Privacy Policy is here and the conditions of use are here. We also use BackerKit on the Site for System Shock pledges.  BackerKit is a backer survey and data management platform that helps crowdfunding creators send surveys, sell add-ons and pre-orders, and manage backer data for rewards fulfillment. BackerKit’s Privacy Policy is here and the terms of service are here. These policies would apply to all data collected and processed by the applicable third-party payment or crowdfunding processor.

We have no relationship with Shopify, Google Pay, PayPal, Amazon Pay, or BackerKit other than utilizing their online e-commerce platforms and payment or crowdfunding processing and we have no responsibility for or control over such companies (or their products or services) nor do we endorse them.

Refunds

For products sold through third-party retailers, all refunds and exchanges should be handled directly through the applicable third- party retailer that the product was purchased from and pursuant to their specific terms and instructions. Products purchased through Shopify are according to their terms and conditions, policies, and any instructions.

YOUR USE OF THE SITE

Your use of the Site is completely voluntary and for your own benefit. You shall not be entitled to compensation of any kind from Nightdive for such use. Your use of the Site requires appropriate telecommunication links. We shall not have any responsibility or liability with respect to any costs you may incur due to your use of the Site. You are solely responsible for all of costs involved in your use of the Site, including, but not limited to, computer costs and any other costs that flow directly or indirectly from your use of the Site.

 

You agree to access or use the Site solely for legal purposes as allowed by these Terms. Amongst other things, you agree not to:

  • Hack into the Site, or modify another website or mobile application so as to falsely imply that it is associated or affiliated with the Site;
  • Damage, disable, overburden, transmit any worms or viruses or any code of a destructive nature, or interfere with any other party’s use and enjoyment of the Site;
  • Violate any applicable laws, rules or regulations in your jurisdiction (including but not limited to trademark and copyright laws);
  • Use or copy any material from the Site, including, but not limited to, onto other websites or into mobile applications; or
  • Frame any of the Site onto your own or another person’s website or mobile application.

CONTENT YOU PROVIDE AND DISCORD

The Site may offer the ability to submit and may offer the ability to share content generated by you or other users (“User Content”). You are responsible for the User Content that you post or submit on or through the Site, including its legality, reliability, and appropriateness and you should have no expectation of privacy or confidentiality in any User Content you submit or post. We take no responsibility and assume no liability for User Content you or any third-party posts on or submits through the Site.

You represent and agree that any User Content you post or submit will abide by the terms and conditions herein. You may not use a false e-mail address, pretend to be someone other than yourself, or otherwise mislead us or any third parties regarding the source of any User Content. We take no responsibility and assume no liability for any User Content posted or submitted by you or any third party.

By submitting User Content to the Site, you grant, and you represent and warrant that you have the right to grant and hereby do grant, Nightdive (and its affiliates (entities controlled by, controlling, or under common control with us), partners, agents, licensees, successors and assigns) a perpetual, non-exclusive, fully paid, worldwide license to use, copy, perform, display, reproduce, publish, distribute, sublicense, and otherwise disclose, prepare derivative works of, or incorporate into other works, the User Content, for any purpose without restriction and without providing any notice, consent, approval, attribution, or compensation to you. If you do not want us to use your User Content, please do not post or submit it to the Site.  You may encounter Nightdive Content or User Content that is in some way offensive, inaccurate, illegal, incomplete, or otherwise objectionable. Your only remedy is to stop viewing such Nightdive Content or User Content. You may also submit a report to us at support@nightdivestudios.com. We maintain the right, but not the obligation, to monitor and edit all User Content posted on or submitted to the Site. We are not obligated to review or publish any User Content and may remove it in our sole discretion, with or without notice.

The Site allows you to link to Discord. Discord an American VoIP, instant messaging and digital distribution platform designed for creating communities. Users communicate with voice calls, video calls, text messaging, media and files in private chats or as part of communities called “servers.”  All account registration and use of Discord is pursuant to Discord’s Terms of Service and Privacy Policy. If you use Discord’s service or if you elect to join Nightdive Studio’s community, all such uses of Discord are pursuant to Discord’s Terms of Service and Privacy Policy.

CONTESTS, SWEEPSTAKES, AND PROMOTIONS

Any contests, sweepstakes, or other promotions (collectively, “Promotions”) made available through the Site may be governed by rules that are separate from these Terms. If you participate in any Promotions, please review the applicable rules as well as our Privacy Policy. If the rules for a Promotion conflict with these Terms, the Promotion rules will apply.

PRIVACY

We respect the privacy of your personal information. Please view our Privacy Policy for more information.

DISCLAIMER OF WARRANTIES AND LIMITATION ON DAMAGES

THE SITE AND PRODUCTS ARE OFFERED ON AN “AS IS” AND “AS AVAILABLE” BASIS, DISCLAIMING ALL WARRANTIES, INCLUDING SPECIFICALLY THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OF DATA, AND NON-INFRINGEMENT. WE ASSUME NO LIABILITY FOR PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SITE, PRODUCTS, INFORMATION OR ANY THIRD-PARTY WEBSITE(S) OR INFORMATION, OR FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SITE. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR USE OF THE SITE AND PRODUCTS AND THE MATERIALS INCLUDING, WITHOUT LIMITATION, ANY OF THE INFORMATION CONTAINED THEREIN OR LINKED TO.

Nightdive does not warrant that: a) The Site will function uninterrupted, secure, or available at any particular time or location; b) Any errors or defects will be corrected; c) The Site is free of viruses or other harmful components; or d) The results of using any information provided by the Site will meet your requirements.

Some states or jurisdictions do not allow the limitation or exclusion of certain warranties, or the exclusion or limitation of certain damages. If you reside in one of these states or jurisdictions, the above limitations or exclusions may not apply to you.

YOU ASSUME ALL RESPONSIBILITY AND RISK FOR USE OF THE SITE, PRODUCTS, AND THE MATERIALS INCLUDING, WITHOUT LIMITATION, ANY OF THE INFORMATION CONTAINED THEREIN. TO THE FULLEST EXTENT ALLOWABLE UNDER APPLICABLE LAW, In no event shall NIGHTDIVE or ITS AFFILATES, OR EACH OF ITS AND ITS AFFILIATES’  OFFICERS, directors, employees, partners, agents, CONTRACTORS, suppliers, OR REPREPESENTATIVES, be liable for any indirect, incidental, special, consequential or punitive damages, including without limitation, loss of profits, data, use, goodwill, or other intangible losses, resulting from (i) YOUR USE OF, RELIANCE UPON, ACCESS TO (OR LACK THEREOF), OR EXPLOITATION OF THE SITE, PRODUCTS, THE MATERIALS OR ANY PART THEREOF; (II) your access to or use of or inability to access or use the Site; (iIi) any conduct or content of any third party on the Site; (iV) any content obtained from the Site; and (v) unauthorized access, use, or alteration of your transmissions or content, whether based on warranty, contract, tort (including negligence) or any other legal theory, whether or not we have been informed of the possibility of such damage, and even if a remedy set forth herein is found to have failed of its essential purpose. YOUR SOLE REMEDY IS TO CEASE USE OF THE SITE.  NOTWITHSTANDING SUCH LIMITATION AND WITHOUT IN ANY WAY INTENDING TO REVISE THE FOREGOING, UNDER NO CIRCUMSTANCES SHALL NIGHTDIVE’s MAXIMUM AGGREGATE LIABILITY TO YOU BE MORE THAN one HUNDRED DOLLARS ($100.00).

INDEMNITY

You shall defend, indemnify, and hold harmless Nightdive, its affiliates, and each of its and its affiliates’ officers, directors, employees, partners, agents, contractors, suppliers, and representatives from all liabilities, claims, and expenses, including reasonable attorneys’ fees and other legal costs, that arise from or relate to (i) Your use or misuse of the Site and products offered on the Site, including, but not limited to, use of any information contained on the Site or websites linked to; (ii) Violation of these Terms or our Privacy Policy; (iii) Infringement by you or anyone using your account, or any third party submitting User Content on your behalf, of any law or intellectual property or other right of any person or entity; or (iv) Any User Content you submit. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses.

REMEDIES

In addition to any other available remedies, if you breach any of the terms or conditions listed within these Terms, Nightdive may immediately terminate these Terms and pursue legal action and/or equitable injunctions in order to compensate Nightdive for all injuries caused by such breach.  You also further agree to forfeit any compensation earned by you in connection with your breach(es) of these Terms.

EQUITABLE REMEDIES

You hereby agree that if the terms of these Terms are not specifically enforced, Nightdive will be irreparably damaged, and therefore you agree that Nightdive shall be entitled, without bond, other security, proof of damages, to appropriate equitable remedies with respect any of these Terms, in addition to any other available remedies.  You hereby expressly waive all rights to injunctive relief.

COPYRIGHT POLICY

We respect intellectual property rights and will remove or disable access to any material on the Site that infringes any copyright after being properly notified by the copyright owner or the copyright owner’s legal agent. If you believe that any content on the Site violates your copyright, please provide our copyright agent with the written information specified below:

  • An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
    • A description of the copyrighted work that you claim has been infringed;
    • A description of where the material that you claim is infringing is located on the Site;
    • Your address, telephone number, and e-mail address;
    • A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
    • A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

Our Copyright Agent for notice of claims of copyright infringement on the Site can be reached as follows:

Nolan Heimann, LLP

Attn: David Schnider

Re: Nightdive Studios, LLC

16133 Ventura Blvd.,

Ste. 820

Encino, CA 91436

CHANGES TO TERMS

We reserve the right, at our sole discretion, to modify or replace these Terms at any time. If a revision is material, we will provide written notice prior to any new terms taking effect. What constitutes a material change will be determined at our sole discretion. By continuing to access or use the Site after any revisions become effective, you agree to be bound by the revised terms. If you do not agree to the new terms, you are no longer authorized to use the Site.

TERMINATION

These Terms and the User License are effective until terminated by Nightdive, with or without written notice. Your rights under the User License will terminate automatically without notice from Nightdive if you fail to comply with any terms or conditions of the User License. Upon termination of the User License, you shall cease all use of the Site. Upon termination you may no longer access the Site. All terms herein intended to survive termination (including, without limitation, limitations of liability and dispute resolution), shall so survive.  Without in any way limiting any other language elsewhere in these Terms, Nightdive shall in no way be liable to you for any termination as described in this Section.

GENERAL LEGAL PROVISIONS

These Terms are governed by the laws of the State of Washington, U.S.A., without regard to conflicts of laws principles, as if this were a contract wholly entered into and wholly performed within the State of Washington. Any disputes or differences between the parties arising out of these Terms which the parties are unable to resolve themselves shall be submitted to and resolved by arbitration as provided herein below.  Notwithstanding the arbitration obligations, Nightdive shall be entitled to seek injunctive or other equitable relief in any court of competent jurisdiction located in the State of Washington and you consent to personal jurisdiction of any court of competent jurisdiction in the State of Washington. Access to or use of this Site is unauthorized in any jurisdiction that does not give effect to all provisions of these Terms, including, without limitation, this paragraph.

If any provision in these Terms is invalid or unenforceable under applicable law, the remaining provisions will continue in full force and effect, and the invalid unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision.

No waiver of any breach of any provision of these Terms 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. All rights not expressly granted herein are hereby reserved. You may not assign your rights under these Terms to any party; we may assign our rights under these Terms without condition. These Terms will be binding upon and will inure to the benefit of the parties, their successors, and permitted assigns. All rights not expressly granted herein are hereby reserved to Nightdive.

These Terms (and our Privacy Policy and any other terms and conditions that may be provided by us to you when you engage with certain features of the Site) contain all the terms agreed between us and you regarding their subject matter and supersedes and excludes any prior terms and conditions, understanding or arrangement between us and you, whether oral or in writing.

ARBITRATION

This Agreement requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions, and also limits the remedies available to you in the event of a dispute. Please read this carefully. It affects your rights.

Except for a claim by Nightdive of infringement or misappropriation of its patent, copyright, trademark, or trade secret and/or Nightdive ’s ability to seek injunctive or other equitable relief, any and all disputes between you and Nightdive arising under or related in any way to these Terms must be resolved through binding arbitration as described in this section. This agreement to arbitrate is intended to be interpreted broadly. It includes, but is not limited to, all claims and disputes relating to your use of the Site. You agree that by entering into these Terms, you and Nightdive are each waiving the right to trial by jury or to participate in a class action. You and Nightdive 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. Any arbitration will take place on an individual basis; class arbitrations and class actions are not permitted.

The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (“AAA”), as modified by this section. For any claim where the total amount of the award sought is $10,000 or less, the AAA, you and Nightdive must abide by the following rules: (a) the arbitration shall be conducted solely based on written submissions; and (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. If the claim exceeds $10,000, the right to a hearing will be determined by the AAA rules, and the hearing (if any) must take place in the State of Washington. The arbitrator’s ruling is binding and may be entered as a judgment in any court of competent jurisdiction. In the event this agreement to arbitrate is held unenforceable by a court, then the disputes that would otherwise have been arbitrated shall be exclusively brought in the state or federal courts located in the State of Washington.  Any arbitration proceedings held hereunder shall be confidential.

 

 

ATTORNEY’S FEES AND COSTS

Should it become necessary for any party to these Terms to bring a claim in arbitration and/or litigation to enforce any provision herein, or for damages on account of any breach of these Terms, the prevailing party shall be entitled to recover from the other party or parties all costs and expenses incurred in the arbitration and/or litigation, which includes but is not limited to the recovery of reasonable attorney’s fees and court costs.

EMAIL

Feel free to email Nightdive at support@nightdivestudios.com. However, any communication may be lost, intercepted or altered. Nightdive is not liable for any damages related to communications to or from the Site. You agree with respect to any information provided by you to us through the Site or via e-mail that:

  • Nightdive has no obligation concerning such information;
  • The information is non-confidential;
  • Nightdive may use, disclose, distribute or copy the information and may use any ideas, concepts or know-how contained in the information for any purpose without compensation (for purposes of clarification, all submissions, suggestions, corrections, additions, modifications, etc. you submit are owned outright, solely, and exclusively by Nightdive without any consent, approval, notice, or compensation to you); and
  • The information is truthful and disclosure of the information does not violate the legal rights of others.

CONTACT

If you have concerns relating to the Site or these Terms, please contact Nightdive at support@nightdivestudios.com.

Loading...