GameSpy Open Terms and Conditions
Version November 1, 2011
This GameSpy Open Terms and Conditions (these "Terms") is between IGN Entertainment, Inc. and its subsidiaries, including GameSpy Industries, Inc. (collectively, “IGN”), located at 625 Second Street, San Francisco, CA 94107, USA, and the person/entity submitting its application for GameSpy Open (“Licensee”).
IGN has developed its own proprietary software tools and licenses certain third party software tools (together and as further defined below, “GameSpy Open Software”) that support online gaming functionality as identified from time to time at http://www.poweredbygamespy.com or such other location of which IGN may give notice (“GameSpy Functionality”). These Terms apply to all of Licensee’s use of the GameSpy Open Software. Licensee must submit to IGN an application to participate in GameSpy Open via an online form available through the GameSpy Open website (the “GS Open Site”). In addition, in order to use the GameSpy Functionality, Licensee must submit to IGN via an online form (the “Game Form”) additional information about specific Games (defined below) relating to its license of the GameSpy Open Software. GameSpy will charge usage fees for use of the GameSpy Open Software and GameSpy Functionality as set forth in the GameSpy Open fee schedule at http://www.poweredbygamespy.com/pricing (the “Fee Schedule”) as it may be modified from time to time. The Game Form incorporates by reference these Terms and the Fee Schedule (or such other updated Terms and Fee Schedule as IGN may post from time to time), and the Game Form(s) (as and when submitted) together with these Terms and the Fee Schedule are referred to collectively as the “Agreement”. By using the GS Open Site Licensee is agreeing to comply with a separate User Agreement currently located at http://corp.ign.com/user-agreement.html (the “User Agreement”). In the event of any conflict between these Terms and the User Agreement, these Terms will govern.
1. GAMESPY OPEN SOFTWARE LICENSE
1.1. License Grant. Subject to the terms and conditions of the Agreement, IGN grants to Licensee a worldwide, non-transferable, non-sublicensable (except as expressly permitted below), royalty-free, non-exclusive limited right and license during the Term to (a) use, modify, compile and copy IGN’s software tools which enable Licensee to implement the GameSpy Functionality (including modifications, “GameSpy Open Software”) and associated documentation, for the limited purpose of incorporating the GameSpy Functionality into the Game; (b) link the compiled GameSpy Open Software to the Game; and (c) copy and distribute via any of Licensee’s digital distribution channels the GameSpy Open Software as incorporated into the Game. Licensee may sublicense the rights granted in Section 1.1(c) to a third party providing distribution services to Licensee (“Distributor”), provided that Licensee will be responsible and liable for any violation of the terms of the Agreement by any Distributor as if such violation were Licensee’s own violation. “Game” means the retail version of an interactive software product for a platform compatible with the GameSpy Open Software, that is distributed through digital download, via physical media or other means of distribution and incorporates any GameSpy Functionality, including all localized versions of such product, all add-ons, updates, patches, and fixes thereto, along with all associated documentation developed or published by Licensee. Licensee’s rights under clause (a) above may be exercised at any time after completing the GameSpy Open registration, however, Licensee must submit a completed Game Form for each Game in order to use the rights granted in clauses (b) and (c). Licensee may share its modifications to the GameSpy Open Software with the GameSpy Open community by posting them to the GS Open Site; provided that nothing will alter GameSpy’s full ownership of the modifications as part of the GameSpy Open Software.
1.2. Additional Restrictions. Licensee acknowledges that the GameSpy Open Software and its structure, organization and underlying source code constitutes valuable trade secrets of IGN, and Licensee will take all steps reasonably necessary to protect IGN’s rights in the GameSpy Open Software. Except as expressly provided in Section 1.1, Licensee may not use or otherwise exploit the GameSpy Open Software. Without limiting the foregoing, Licensee will not (a) remove, omit, or obscure any copyright or other proprietary notices or labels on or in the GameSpy Open Software; or (b) use the GameSpy Open Software for the purpose of building a competitive product, or for purposes of product evaluation, benchmarking or other comparative analysis.
1.3. GameSpy Functionality Requirements. Licensee should refer to http://docs.poweredbygamespy.com/wiki/GameSpy_Open_Usage_Requirements_Start_Page, for details on the required steps and certification necessary before IGN will permit a Game to go live using the GameSpy Functionality, including without limitation, requirements for privacy policy, Registration Data, and Game Play Data. “Registration Data” means all personally identifiable data and other data provided by an end user as part of the registration process for use of GameSpy Functionality within a Game, including, without limitation, nickname, password and valid email address. “Game Play Data” means non-personally identifiable data relating to an end user’s game play statistics regarding a Game that is (x) created and collected in-game within a Game by the GameSpy Open Software as structured by Licensee (within the parameters of the GameSpy Open Software); and (y) otherwise created or collected during any session in which a Game is being played by end-users. Registration Data is not Game Play Data. Registration Data will be collected pursuant to IGN’s privacy policy. Licensee will ensure that the Licensee privacy policy includes users’ consent to IGN’s use of the Game Play Data in connection with GameSpy Open.
1.4. Licensee Marks. Licensee grants IGN a license to use trade names and trademarks associated with Licensee and the Game to promote participation in GameSpy Open, and IGN may briefly describe Licensee’s business, in IGN’s marketing materials and web sites.
2. SUPPORT.
Support (if any) for the GameSpy Open Software shall be as described from time to time in the Fee Schedule.
3. PAYMENT OBLIGATIONS.
3.1 Use of GameSpy Open, the GameSpy Open Software and the GameSpy Functionality in connection with any Game is subject to fees based on the levels of usage for such Games. The current fees are stated in the Fee Schedule at http://www.poweredbygamespy.com/pricing. You are responsible for paying any and all charges relating to your GameSpy Open account, including without limitation, periodic usage fees. You grant IGN permission to charge your credit card (or other approved facility) to pay for all such charges. The monthly usage fee will be billed for a particular Game beginning with the first calendar month after a Game Form for such Game is submitted to GameSpy in which such Game exceeds the “free” threshold set forth on the Fee Schedule, and on each month thereafter, unless you notify GameSpy of your desire to terminate the Agreement or such Game at least 10 days prior to the first day of the next calendar month by clicking on the “Billing/Title Inquiry ” button and requesting termination by completing and submitting the form. IGN will terminate your account or the applicable Game(s) upon receipt of such notification from you. IGN reserves the right upon prior notice to Licensee to modify the fees charged for GameSpy Open from time to time as described in Section 3.2.
3.2 IGN RESERVES THE RIGHT, AT ANY TIME, TO CHANGE ITS FEES AND BILLING METHODS, INCLUDING THE ADDITION OF SUPPLEMENTAL FEES OR SEPARATE CHARGES FOR CONTENT, OR SERVICES PROVIDED BY IGN, EFFECTIVE THIRTY (30) DAYS AFTER AN ONLINE POSTING AT THE “FEE SCHEDULE” PAGE OF THE GS OPEN SITE. IGN MAY ADDITIONALLY PROVIDE NOTICE OF FEE CHANGES VIA EMAIL. If any such change is unacceptable to you, you must terminate your participation in and access to GameSpy Open by following the process described in Sections 3.1 and 8. YOUR CONTINUED USE OF THE GAMESPY OPEN SERVICE FOLLOWING THE EFFECTIVE DATE OF A CHANGE TO THE FEES OR BILLING METHODS SHALL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGE. IGN IS NOT RESPONSIBLE FOR FAILURE TO TERMINATE YOUR ACCOUNT. Submission of a termination form for your entire account or for specified Games will not immediately terminate access to your GameSpy Open account or specified Games; termination will occur effective upon expiration of the period for which you had paid as of the time IGN received your termination form and IGN will not refund any portion of your fees.
3.3 No refunds, credits or adjustments are permitted, except in demonstrated cases of credit card fraud (as determined by IGN at its sole discretion) or under the terms agreed to when purchasing a product or service as agreed to during the payment process. You understand and agree that as a result of processing a refund IGN incurs certain administrative costs, and that the fees below are a fair and accurate assessment of those costs. Should a refund be permitted, all refunds (except those due to demonstrated instances of credit card fraud) are subject to a handling fee of $5 per charge refunded. YOU AGREE AND ACKNOWLEDGE THAT IGN SHALL NOT BE RESPONSIBLE FOR ANY ADJUSTMENTS, REFUNDS OR ACCOUNT OVERSIGHTS THAT YOU HAVE NOT SUBMITTED TO IGN THROUGH THE SUPPORT CENTER WITHIN 60 DAYS OF SUCH OCCURRENCE OR LACK THEREOF.
4. CREDIT CARD AUTHORIZATION
4.1 You grant IGN permission to automatically continue your participation in the GameSpy Open program and charge your account up to five (5) days prior to the end of each calendar month. All fees, charges and sales are final. Once charged to your credit card, the payments are nonrefundable, except in cases of demonstrated fraud, which will be determined at IGN's sole discretion. You acknowledge that terminating your account in its entirety or with respect to specified Game(s) will result in termination of access to the GameSpy Open services at the end of the calendar month for all of your Games (if you elect to terminate your account in its entirety) or with respect to those Game(s) identified in your termination request. Your participation in the GameSpy Open program will remain open and the Games will have continued access to the GameSpy Open services until the paid period expires. You acknowledge and agree that the authorization to charge your credit card or other payment mechanism for GameSpy Open shall automatically transfer to any successors or assigns of the GameSpy Open service for substantially similar services at the same website. You may not assign or transfer your GameSpy Open account or rights to any other person or entity. You must be at least 18 years old (or have the permission of a credit card holder who is) to participate in GameSpy Open.
4.2 Payment must be made by a major credit card accepted by IGN. Payment by any other means, including by check or money order, is not accepted unless in IGN’s discretion it specifically agrees with you in writing to accept those payment methods. If IGN does not receive timely payment, you acknowledge IGN will have the right to suspend or terminate providing the GameSpy Functionality and the GameSpy Open services for your Games. Your card issuer agreement governs your use of your designated card in connection with GameSpy Open, and you must refer to that agreement and not this Agreement or the User Agreement to determine your rights and liabilities as a cardholder. YOU, AND NOT IGN, ARE RESPONSIBLE FOR PAYING ANY AMOUNTS BILLED TO YOUR CREDIT CARD BY A THIRD PARTY EVEN IF THEY WERE NOT AUTHORIZED BY YOU.
5. REPRESENTATIONS AND WARRANTIES.
5.1 General. Each party represents and warrants to the other that: (a) it has the right, power and authority to enter into these Terms, to grant the rights granted hereunder and to perform its obligations herein; and (b) when agreed to and submitted by Licensee, the Agreement will constitute the legal, valid and binding obligation of such party enforceable against it in accordance with its terms, and will not violate or conflict with any agreement to which such party is bound.
5.2 Licensee. Upon submission of each Game Form, Licensee further represents and warrants that: (a) there are no lawsuits or proceedings pending in any forum or any claims asserted concerning any aspect of any Game or materials related thereto, such as the Licensee Marks, and Licensee will promptly notify IGN of any such claim during the Term; (b) neither the Game nor materials related thereto, such as the Licensee Marks, does or will violate, infringe or misappropriate any copyright, trademark, trade secret, patent or other proprietary or other right of any third party (such as, without limitation, privacy, publicity, literary, artistic, dramatic, music synchronization, or music performance rights); and (c) the collection, storage and use of the Game Play Data (and Licensee’s grant of rights with respect thereof) will in each case comply with this Agreement and will not violate any applicable laws, rules or regulations, the terms of the applicable privacy policy, EULA, or any other third party rights.
5.3 DISCLAIMER. THE LIMITED WARRANTIES IN SECTIONS 5.1 – 5.2 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES BY EITHER PARTY. THE GAMESPY OPEN SOFTWARE (INCLUDING ALL MODIFICATIONS), GAMESPY FUNCTIONALITY AND IGN’S RELATED SERVICES ARE EACH PROVIDED ON AN “AS IS” “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR GUARANTEE OF ANY KIND. EXCEPT AS EXPRESSLY STATED IN SECTIONS 5.1 – 5.2, NEITHER PARTY MAKES, AND EACH PARTY HEREBY DISCLAIMS, ANY AND ALL STATUTORY, EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.
6. INDEMNITY. Licensee agrees to indemnify, defend and hold harmless IGN, its affiliates and their respective officers, directors, employees and agents (collectively, “IGN Entities”) from and against any and all losses, judgments, damages, liabilities, settlements, costs and expenses (including reasonable attorneys’ fees)arising from or related to any third party claim, suit or proceeding brought against any IGN Entity (a “Claim”) which arises from or is related to (a) allegations of Licensee’s breach of any representation, warranty or obligation in this Agreement; (b) the failure of any Distributor to comply with any applicable terms of this Agreement; (c) any Game; or (d) any Game Play Data. Licensee will not, without the prior written consent of IGN, settle any Claim unless such settlement either (a) includes an unconditional release of IGN from all liability on all claims that are the subject matter of such Claim, or (b) is consented to by IGN (which consent will not be unreasonably withheld, conditioned or delayed).
7. LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO INDEMNIFICATION OBLIGATIONS, ANY BREACH OF CONFIDENTIALITY, THE SCOPE OF ANY LICENSE GRANT OR OBLIGATIONS REGARDING PRIVACY DISCLOSURE OR THE EULA, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IGN’S MAXIMUM AGGREGATE LIABILITY TO LICENSEE IN CONNECTION WITH OR IN ANY MANNER RELATED TO THE AGREEMENT (WHETHER IN AN ACTION IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) WILL BE LIMITED TO THE GREATER OF TOTAL AMOUNT PAID TO IGN BY LICENSEE UNDER THE AGREEMENT, AND $100. THE FOREGOING ALLOCATION OF RISK IS REFLECTED IN THE AMOUNT OF THE COMPENSATION CONTEMPLATED UNDER THE AGREEMENT. The parties acknowledge that each has entered into the Agreement in reliance upon the limitations and exclusions of liability, the disclaimers of warranties and damages and the indemnity obligations set forth herein, and that the same form an essential basis of the bargain between the parties. The parties agree that the limitations and exclusions of liability and disclaimers specified in the Agreement will survive and apply even if other provisions of the Agreement are found to have failed of their essential purpose.
8. TERM AND TERMINATION
8.1 Term. The term of this Agreement begins on the Effective Date and, subject to earlier termination as permitted in Section 8.2, will end on the last day of the calendar month in which either party gives the other party notice of non-renewal at least ten (10) days’ prior to the renewal date.
8.2 Suspension; Termination. IGN has the right to decline or cease to make the GameSpy Functionality available and otherwise suspend its performance with respect to your account and/or one or more Games if (a) Licensee is not in full compliance with the terms and conditions of the Agreement, (b) IGN receives notice of any actual or alleged infringement by the Game of any third party intellectual property right; (c) in IGN’s reasonable discretion the Game is obscene, defamatory or otherwise violates any third party’s rights or any laws or regulations; or (d) IGN determines in its reasonable discretion that the Game is causing a material impairment, modification, or disabling of (i) IGN’s or any other party’s computer systems, or (ii) IGN’s ability to perform any services. Each party may terminate the Agreement or the license grants with respect to a Game immediately on notice to the other party if, at any time: (x) the other party (including with respect to Licensee, any Distributor) is in material breach of any term, condition or covenant of the Agreement and fails to cure such breach within thirty (30) days of notice thereof, provided that any breach of Sections 1 or 10 will have a ten (10) day cure period; or (y) the other party (i) becomes insolvent; (ii) admits in writing its insolvency or inability to pay its debts or perform its obligations as they mature; (iii) makes or attempts an assignment for the benefit of creditors; or (iv) files a petition for reorganization, readjustment or rearrangement of its business or affairs under any laws or governmental regulations relating to bankruptcy or insolvency, or is adjudicated bankrupt or if a receiver is appointed for such other party and such action is not dismissed within sixty (60) days. Licensee may terminate all rights with respect to a Game at any time by clicking on the “Billing/Title Inquiry” button and requesting termination by completing and submitting the form. IGN will terminate your account or the specified Games upon receipt of a completed termination form. Submission of a termination form for your entire account or for specified Games will not immediately terminate access to your GameSpy Open account or specified Games; termination will occur effective upon expiration of the period for which you had paid as of the time IGN received your termination form and IGN will not refund any portion of your fees. IGN may terminate the Agreement and your rights hereunder on at least sixty (60) days’ notice in the event it ceases generally to provide the GameSpy Open Software to its customers. IGN will have no obligation to determine whether a breach of the Agreement arose from the actions or failures to act by a Distributor or Licensee.
8.3 Effect of Termination. Upon termination of this Agreement, IGN’s obligation to provide the GameSpy Functionality will cease and Licensee will promptly cease all use of the GameSpy Open Software. Licensee will have the limited right to include the object code of the GameSpy Open Software within the Game to the same extent it was included prior to termination for the life of the Game; provided that the GameSpy Open Software is not otherwise distributed, and provided further that Licensee remains in compliance with Section 1 of these Terms. Licensee acknowledges that the GameSpy Functionality for the Game will not be operable and Licensee will include an error message viewable by users who attempt to use the GameSpy Functionality within the Game in a form acceptable to IGN and Licensee. Within ten (10) business days after termination, each Receiving Party will deliver to each Disclosing Party all Confidential Information in its possession or will destroy the same at the request of the Disclosing Party. At IGN’s request, Licensee will promptly provide an officer’s certificate attesting to its compliance with this section. Sections 1.2, 3.2, 3.3, 4-7, this Section 8.3, and 9-12 will survive any termination of this Agreement, as well as any other provisions which by their terms or sense are intended to survive. Termination of this Agreement will not relieve the parties of any obligation accruing prior to such termination. Any Game Play Data which Licensee structures the GameSpy Open Software to deliver to Licensee will be Licensee’s responsibility to store and maintain and IGN will not have any separate obligation to deliver Licensee any Game Play Data.
9. OWNERSHIP.
9.1 Licensee. As between IGN and Licensee, Licensee retains all right, title and interest in and to the Game (and all associated documentation), the Game Play Data, including all intellectual property rights and other proprietary rights related thereto and embodied therein, excluding in each case, all rights in and to the Registration Data, GameSpy Functionality, GameSpy Open Software and associated documentation. Licensee will, at its sole expense, be responsible for protecting each Game and any intellectual property right embodied therein, under all intellectual property laws in the applicable countries, including without limitation by making any required filings or payment of applicable fees. IGN will at no time have any duty or obligation to enforce Licensee’s rights in the Game against any third party.
9.2 IGN. IGN retains all right, title and interest in and to the (i) GameSpy Open Software (including any Modifications thereto), all associated documentation, the GameSpy Functionality, the backend servers, databases and other computing and storage applications that IGN uses to operate the GameSpy Functionality through the GameSpy Software (“GameSpy Systems”); (ii) the Registration Data; (iii) the IGN websites, such as the GS Open Site (including, without limitation, source and object code, end-user interfaces, navigational structures, appearance, commerce technology, HTML formatting code, scripts, software, text, graphics, audio, video, artwork and designs) and any derivatives thereof; (iv) IGN’s trademarks, service marks, and logos; (v) any works of authorship conceived, used, reduced to practice or created by IGN in connection with its performance of its obligations hereunder (including, without limitation, documents, text, photographs, video, pictures, animation, sound recordings, computer programs, and source code); and (vi) any and all intellectual property rights or proprietary rights embodied in any of the foregoing.
9.3 Reservation of Rights. All rights not specifically and expressly granted by a party to the other party are hereby reserved.
10. CONFIDENTIAL INFORMATION
10.1 “Confidential Information” means: (i) business or technical information of a party, including but not limited to, any information relating to a party's product plans, designs, costs, prices, or names, source code, finances, marketing plans, business opportunities, personnel, research, development or know-how; (ii) any information designated by any party as “confidential” or which, under the circumstances taken as a whole, would reasonably be deemed to be confidential; (iii) any login credentials, password or other information Licensee may acquire allowing Licensee to access IGN’s systems; and (iv) this Agreement. Confidential Information includes proposed platforms, game titles and other proposed products or services of Licensee as well as pre-release versions of any of the foregoing. Registration Data is Confidential Information of IGN.
10.2 Non-Disclosure. Any Confidential Information provided by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) pursuant to this Agreement will remain the exclusive property of the Disclosing Party. The Receiving Party agrees that any Confidential Information of the Disclosing Party (a) will be kept confidential by it and its agents, representatives and employees (collectively, “representatives”), (b) will not be disclosed by it or its representatives in any manner whatsoever, in whole or in part, and (c) will not be used by it or its representatives, directly or indirectly, for any purpose at any time other than for the purpose provided hereunder. The Receiving Party will transmit such Confidential Information only to those of its representatives who need to know such Confidential Information, who are informed of the confidential nature of the Confidential Information and who agree to be bound by the confidentiality obligations in this Agreement. In any event, each party will be responsible for any breach of this Agreement by its representatives.
10.3 Exceptions. Section 10.2 will not apply to any information which: (i) is or becomes generally available to the public other than as a result of disclosure by the Receiving Party in breach of this Agreement; (ii) was in the Receiving Party’s possession prior to its disclosure to it by or on behalf of the Disclosing Party, provided that the Receiving Party did not know the source to be bound by any confidentiality obligation to the Disclosing Party with respect to such information; (iii) becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party, provided that such source is not known by the Receiving Party to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Disclosing Party with respect to such information; or (iv) is developed independently by the Receiving Party, as demonstrated by the written records of the Receiving Party, without use of such information. In the event a Receiving Party becomes legally compelled to disclose any Confidential Information, such Receiving Party will promptly notify the Disclosing Party prior to such disclosure and will assist such Disclosing Party (at the Disclosing Party’s expense) in obtaining a protective order or other appropriate remedy and/or waive compliance with the confidentiality provisions of this Agreement.
11. NOTICES. Licensee consents to receiving all correspondence and notices in connection with this Agreement at the email address identified in the GameSpy Open application form. Correspondence and notices to IGN will be in writing and sent to the address set forth at the top of this Agreement, Attn: GameSpy Tech. Each party may give notice of another address for notices in accordance with this Section.
12. GENERAL. This Agreement, together with all terms referred to herein, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous understandings or agreements of the parties related thereto. IGN may modify this Agreement upon notice to Licensee (including by posting such changes to the GS Open Site) and such changes will be binding on Licensee fifteen (15) days after posting (or thirty (30) days for changes to the Fee Schedule), unless Licensee gives IGN notice of termination with such time period. Except as provided in the preceding sentence, this Agreement may be amended only by a writing signed by the parties. A failure or delay in exercising any right hereunder will not be considered a waiver unless waived in writing signed by the waiving party. No single waiver will be considered a continuing or subsequent waiver. If a court of competent jurisdiction finds any provision of this Agreement unenforceable, all other provisions will remain in full force and effect and the unenforceable provision will be replaced with an enforceable provision that most nearly achieves the intent and economic effect of the unenforceable provision. This Agreement will be governed by the laws of the State of California, without reference to conflict of law principles. Each party irrevocably consents to the exclusive jurisdiction and venue of the state and federal courts situated in San Francisco County, CA, USA in connection, or otherwise arising under or by reason of this Agreement. Neither the United Nations Convention on Contracts for the International Sale of Goods nor any adopted version of the Uniform Computer Information Transactions Act apply to this Agreement. Licensee will not, export or re-export, or allow the export or re-export of, the GameSpy Open Software in violation of any applicable restrictions, laws or regulations of the United States or other applicable jurisdiction. The relationship of the parties pursuant to this Agreement is that of independent contractors and not as employees, agents or fiduciaries, and neither party will have the right to make any commitments for or on behalf of the other party. Nothing in this Agreement will create any association, partnership or joint venture between the parties. Licensee may not assign this Agreement (by operation of law or otherwise) without IGN’s prior written consent. Any purported assignment in violation of the foregoing sentence will be null and void from the beginning. The rights and liabilities of the parties will bind and inure to the benefit of their respective permitted successors, executors and administrators, as the case may be. The parties agree that (a) if unauthorized use, reproduction, distribution or disclosure of the GameSpy Open Software occurs due to some act or omission of Licensee, IGN may not have an adequate remedy at law, and, (b) in the event of a breach or threatened breach of Sections 9 or 10 of the Terms, the non-breaching party may not have an adequate remedy at law. Therefore, IGN will have the right to seek injunctive or other equitable relief, without the obligation of posting a bond or other security or of proving irreparable harm. This Agreement will be interpreted fairly in accordance with its terms and conditions and without any strict construction in favor of or against either party. Neither party will be liable to the other for any failure to perform, or delay in the performance of, any obligation under the Agreement caused by circumstances beyond its reasonable control, including but not limited to: acts of God, fire, labor difficulties, governmental action, or network or telecommunications failures.