THE TRAINING ARCADE® TERMS OF USE

Last modified:  December 18, 2019

PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE USING THE TRAINING ARCADE® SUBSCRIPTION SERVICE, THE GAME AUTHORING AND ADMINISTRATION TOOLS IN THE TRAINING ARCADE, AND/OR ONE OF THE GAMES FROM THE TRAINING ARCADE® (COLLECTIVELY THE “SERVICE“). YOUR USE OF THIS SERVICE INDICATES YOUR ACCEPTANCE OF THESE TERMS OF USE. IF YOU DO NOT ACCEPT THESE TERMS OF USE, THEN DO NOT USE THIS SERVICE.

Introduction

As described below, depending on whether you are a Subscriber, Subscriber Player, or Visitor to our Service (each, a “User”), different provisions of these Terms of Use apply. Please review these terms to determine whether you are a Subscriber, Subscriber Player, or Visitor:

Subscriber: The Service allows individuals and legal entities, each referred to as a “Subscriber,” to rapidly customize a library of fun, casual games with Subscriber’s content pursuant to an agreement between TGA and the Subscriber. A Subscriber includes its authorized agents who are granted certain administrative rights (e.g., to customize game and other content, access results data, invite and authorize Subscriber Players to play the games).

Publisher: Where a Subscriber acting as a “Publisher” uses the Service to create customized corporate training or marketing communication for its client (“Publisher Client”) pursuant to a written agreement between Publisher and Publisher Client, all references to “Subscriber” in these Terms of Use shall be deemed to include both “Publisher” and “Publisher Client” and  Publisher and Publisher Client shall be jointly and severally responsible for compliance with these Terms of Use; additionally, TGA is a third-party beneficiary of any agreement between a Publisher and Publisher Client with respect to the enforcement of TGA’s rights in the Service.

Subscriber Player: A Subscriber may permit use of the Service by its “Subscriber Players” in order to reinforce educational material and for marketing purposes (subject to the terms of the agreement between TGA and the Subscriber). For example, a company (as a Subscriber) may use the Service (i) to create customized corporate training for its employees (Subscriber Player), (ii) at tradeshows for its own marketing purposes to engage and collect contact information of visitors (also, Subscriber Players), or (iii) on Subscriber’s website to educate visitors (also, Subscriber Players) about its products, services, or mission.

Visitor: A Visitor is anyone who visits our website or otherwise uses our Service (e.g., to play a game or sign up for information about our services) who is not a Subscriber or Subscriber Player

Whether you are a Subscriber, Subscriber Player, or Visitor to the Service, you agree to the terms and conditions outlined in these Terms of Use (“Terms of Use”) with respect to this Service. These Terms of Use constitute the entire agreement between The Game Agency, LLC (“TGA,” “we,” “us,” or “our”) and you, and supersede all prior or contemporaneous agreements, representations, warranties, and understandings with respect to this Service (and the content, computer programs, and services provided by or through this Service), and the subject matter of these Terms of Use.

Notwithstanding the foregoing, if TGA has a license, subscription, or similar agreement with a Subscriber regarding TGA’s provision of Services to you (“Other Agreement”), in instances of direct conflict, the Other Agreement shall prevail to the extent of that conflict.

Use of the Service with EEA Personal Data Requires Separate Data Processing Agreement

Subscriber must contact TGA and enter into a separate data processing agreement prior to using the Service with any personal data that is subject to the EU Data Protection Legislation. “EU Data Protection Legislations” means the General Data Protection Regulation ((EU) 2016/679) and any applicable national implementing laws, regulations and secondary legislation in England and Wales relating to the processing of Personal Data and the privacy of electronic communications, as amended, replaced or updated from time to time, including the Privacy and Electronic Communications Directive (2002/58/EC) and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426).

Ownership

This Service is owned and operated by TGA. All right, title, and interest in and to the content, computer programs, and services provided by or through this Service, including, without limitation, design, compilation, information, documents, logos, graphics, sounds, and other materials related to this Service (collectively, “Content”) are owned either by TGA or by third-party providers (which includes Subscribers with respect to their Subscriber Content, defined below) (“Third-Party Providers”). Except as otherwise expressly provided by TGA, none of the Content may be copied, reproduced, republished, downloaded, uploaded, posted, displayed, transmitted, or distributed in any way and nothing on this Service shall be construed to confer any license under any of intellectual property rights, whether by estoppel, implication, or otherwise. TGA and Third-Party Providers, as applicable, reserve any rights not expressly granted herein.

Subscriber Content

The Service allows Subscribers (such as employers, educators, or marketers), as Third-Party Providers, to customize certain game Content by uploading and integrating Content, such as test questions and answers, (such Content is referred to as “Subscriber Content”). If you are a Subscriber you represent and warrant that all Subscriber Content and its use in the Service complies with all applicable laws, does not violate any intellectual property or other proprietary right, and complies with all of the requirements and prohibitions relating to User Communications, as stated below. Subject to additional license terms that may be provided in any Other Agreement with Subscriber, Subscriber hereby grants to TGA all rights reasonably required in the Subscriber Content in order to enable TGA to make available the Subscriber Content through the Service to Subscriber’s Subscriber Players. Without limiting the above obligations, in no event may the Service be used to upload or collect any information relating to: racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation.

Limited Permission to You

Except as otherwise set forth in the Other Agreement, TGA grants to you non-exclusive, non-transferable, revocable, limited permission to view the Content made available to you by TGA via the Service using a compatible standard Internet browser and compatible standard media player (which has been optimized for desktops and laptops, and which may also operate on many commonly used mobile devices solely for your personal, informational, non-commercial use, provided that (i) the copyright, trademark, and other proprietary notices appearing on any Content are not altered or removed, (ii) the Content is not used on any other service or in a networked computer environment (provided, however, that we may enable Subscriber Players to access Content through certain eLearning authoring tools, and learning management systems, and in iFrame, where the Service (and its Content) remains hosted and/or operated by TGA), and (iii) the Content is not modified in any way (except by Subscribers with respect to Subscriber Content). You may not resell our Service unless you are an authorized reseller who has entered into a written agreement with TGA. This permission terminates automatically without notice if you breach any of the terms or conditions of these Terms of Use. Any unauthorized use of any Content may violate copyright laws, trademark laws, laws of privacy and publicity, and communications regulations and statutes.

With respect to Subscriber Content, the above permission is granted to you only if you are accessing Subscriber Content through the Service as an authorized Subscriber Player of the Subscriber who provided the Subscriber Content.

User Communications

Other than personally identifiable information, which is subject to this Service’s Privacy Policy, and subject to terms in any Other Agreement, if applicable, with respect to any Subscriber confidential information, any material, information, suggestions, ideas, concepts, know-how, techniques, questions, comments, responses (including responses to training questions in games that are part of the Service) or other communication you transmit or post to this Service in any manner is and will be considered non-confidential and non-proprietary to you (“User Communications”). TGA and its designees may use any or all User Communications for any purpose whatsoever, including, without limitation, reproduction, transmission, disclosure, publication, broadcast, development, and marketing in any manner whatsoever for any or all commercial or non-commercial purposes. TGA may, but is not obligated to, monitor or review any User Communications. TGA shall have no obligations to use, return, review, or respond to any User Communications.

You are prohibited from posting or transmitting to or from this Service any User Communications that:

  • Is unlawful, threatening, libelous, defamatory, obscene, offensive, or pornographic, or
  • would violate any guidelines or policies of TGA (which TGA may issue or modify from time to time in its sole discretion) or any third- party rights, or
  • would interfere with the intended operation, safety, and security of the Service.

TGA will have no liability related to any such User Communications, whether or not arising under the laws of copyright, libel, privacy, obscenity, or otherwise. TGA retains the right to remove any or all User Communications that includes any material TGA deems inappropriate or unacceptable.

You shall not access, store, distribute, upload, spam, spoof, or transmit to or from the Service nor include in User Communications: anything (including any software, code, file, or program) which may prevent, impair, or otherwise adversely affect the operation of any computer software, hardware, or network, any telecommunications service, equipment, or network, or any other service or device; prevent, impair, cheat, or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering, or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses, and other similar things or devices; or any material that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive, discriminatory based on race, gender, color, religious belief, sexual orientation, or disability, facilitates illegal activity, promotes unlawful violence, is otherwise illegal, or causes damage or injury to any person or property.

No Obligation to Monitor; Enforcement and Termination

We reserve the right, in our sole discretion, to suspend, block, remove, ban, or terminate anyone from use of the Service (or portions thereof, including but not limited to User Communications) if we determine the person is tampering with the operation of the Service or acting in any manner we deem to be in violation of these Terms of Use, Privacy Policy, or applicable law; any Other Agreement; acting in any manner we deem to be disruptive, annoying, threatening, abusive, or harassing; or using the Service for competitive purposes.

We also reserve the right, in our sole discretion, to seek damages and other remedies, including without limitation, attorneys’ fees, from any such person to the fullest extent of the law, including criminal prosecution. Without limiting the foregoing, we have the right to take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Service and to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Service.

We do not undertake to review Subscriber Content or other Content from Third-Party Providers, User Communications, or other third-party material before it is posted on the Service and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications or content provided by any user or third-party (e.g., Subscribers and other Third-Party Providers). We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.

Links to Other Services

From time to time, this Service may contain links to other websites and online services. All such links are provided solely as a convenience to you. If you use these links, you will leave this Service. TGA is not responsible for any content, materials, or other information located on or accessible from any such service. TGA does not endorse, guarantee, or make any representations or warranties regarding any other service, or any content, materials, or other information located or accessible from such services, or the results that you may obtain from using such services. If you decide to access any other service linked to or from this Service, you do this entirely at your own risk.

Links to this Service

You may not create or maintain any link from another service to any page on this Service without TGA’s prior written permission. You may not run or display this Service or any Content displayed on this Service in frames or through similar means on another service or public communication without TGA’s prior written permission. Any permitted links to this Service must comply will all applicable laws. In the event you do link to our Service (as we may permit in our sole discretion), we disclaim any and all representations and warranties with respect to the Service including the functionality and relevance of the Service.

DISCLAIMER

TGA HEREBY WAIVES AND DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES REGARDING THIS SERVICE AND ASSOCIATED CONTENT AND THESE TERMS OF USE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OR IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE, THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS, THAT TGA’ SECURITY METHODS WILL BE SUFFICIENT, OR REGARDING

CORRECTNESS, ACCURACY, OR RELIABILITY. THIS SERVICE AND ASSOCIATED CONTENT ARE PROVIDED “AS IS” WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, COMPLETENESS, SUITABILITY, AND EFFORT IS WITH YOU. TGA IS, UNDER NO CIRCUMSTANCES, RESPONSIBLE FOR THE PRACTICES, ACTS, OR OMISSIONS OF ANY USERS, INCLUDING ANY SUBSCRIBER, USER, OR VISTOR TO THE SERVICE. IF AND TO THE EXTENT THAT ANY OR ALL OF THE SERVICE AND ASSOCIATED CONTENT ARE DELAYED, SUSPENDED, OR TERMINATED FOR REASONS BEYOND TGA’S REASONABLE CONTROL, INCLUDING THE INABILITY OR UNWILLINGNESS OF THIRD-PARTY PROVIDERS TO PROVIDE SUPPORTIVE SERVICES, TGA HEREBY DISCLAIMS ANY AND ALL LIABILITIES ASSOCIATED THEREWITH. ALL CONTENT PROVIDED BY THIRD-PARTY PROVIDERS INCLUDING ANY SUBSCRIBER CONTENT IS PROVIDED BY TGA TO USERS “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY SUCH CONTENT IS STRICTLY BETWEEN USERS AND THE THIRD-PARTY PROVIDERS (INCLUDING SUBSCRIBERS AND THEIR USERS). THE FOREGOING EXCLUSIONS OF IMPLIED WARRANTIES DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS.

LIMITATION OF LIABILITY

IN NO EVENT WILL TGA, ITS DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS, PARTNERS, REPRESENTATIVES, SUCCESSORS, ASSIGNS, NOR ANY PARTY INVOLVED IN THE CREATION, PRODUCTION, OR TRANSMISSION OF THIS SERVICE OR ASSOCIATED CONTENT BE LIABLE TO ANY PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THIS SERVICE, ASSOCIATED CONTENT, ANY SERVICES LINKED TO THIS SERVICE, OR THE MATERIALS, INFORMATION, OR SERVICES CONTAINED AT ANY OR ALL SUCH SITES, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING EXCLUSIONS OF IMPLIED WARRANTIES DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS. TO THE EXTENT THE FOREGOING LIMITATION OF LIABILITY IS PROHIBITED, TGA’S SOLE OBLIGATION TO YOU FOR DAMAGES WILL BE LIMITED TO US$100.00.

Indemnification

You, whether you are a Subscriber, Subscriber Player, or Visitor, agree to indemnify, defend, and hold TGA and its directors, officers, shareholders, employees, agents, partners, and representatives harmless from any liability, loss, claim, or expense, including attorneys’ reasonable fees, related to your use of this Service or associated Content, including Subscriber Content, any User Communications, or violation by you of these Terms of Use.

Applicable Laws; Jurisdiction

This Service is administered by TGA from its offices in Stamford, Connecticut U.S.A. These Terms of Use will be governed by and construed in accordance with the laws of the State of New York, exclusive of its choice of law rules. The exclusive jurisdiction of any arbitration or any other legal or court proceeding will be in the State of Connecticut. You hereby waive any jurisdictional, venue, or inconvenient forum objections.

Limitation on Time to File Claims

ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF USE OR THE SERVICE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

Notice for Claims of Intellectual Property Violations and Agent for Notice

If you have a good faith belief that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, please provide TGA’s designated agent with the following information:

  1. An electronic or physical signature of the person authorized to act on behalf of the copyright or other intellectual property owner;
  2. A description of the copyrighted work or other intellectual property that you claim has been infringed;
  3. A description of where the material that you claim is infringing is located on our Service;
  4. Your address, telephone number, and email address so that we can contact you;
  5. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or other intellectual property owner, its agent, or the law; and
  6. A statement by you, made under penalty of perjury, that the information in your notice to us is accurate and that you are the copyright or other intellectual property owner or authorized to act on the copyright or other intellectual property owner’s behalf.

TGA’s agent designated to receive claims of copyright or other intellectual property infringement may be contacted as follows:

By mail: TGA Registered Agent, The Game Agency, LLC, 470 West Avenue, Suite 2002, Stamford, CT 06902, U.S.A.

By email: tgaregisteredagent@thegameagency.com.

By Phone: (310) 863-8107. Claims provided under the Digital Millennium Copyright Act must be provided in writing as stated above.

Modifications to the Service and These Terms of Use

TGA reserves the right in its sole discretion to change, edit, or delete any or all features or other aspects of this Service and associated Content at any time and from time to time without specific notice to you. TGA will post the latest Terms of Use on this Service. You should review the then current Terms of Use prior to each use of this Service because they are binding on you. Certain provisions of these Terms of Use may be superseded by expressly designated legal notices or terms located on particular pages at this Service or Other Agreements, if any.

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