NERD KINGDOM, INC.

THE UNTITLED GAME

TERMS OF SERVICE

1. Introduction

Welcome to Nerd Kingdom, Inc.! These Terms of Service (the “Terms of Service” or “Terms”) govern your use of the products and services (the “Service”) provided by Nerd Kingdom, Inc. (“Nerd Kingdom,” “us,” “we,” or “our”) for The Untitled Game (“TUG” or the “Game”). By using our Services, you are agreeing to these Terms.

These Terms also include and incorporate by reference the following other agreements, which we will refer to as the “Nerd Kingdom Agreements”:

  • The Untitled Game’s Privacy Policy, found [here];
  • The Untitled Game’s End User License Agreement, found [here]; and
  • Any other legal notices and policies posted by Nerd Kingdom from time to time relating to the Service.

To the extent these Terms conflict with any Nerd Kingdom Agreement, the terms contained in these Terms will govern. Defined terms not defined in a particular Nerd Kingdom Agreement will have the meaning given in the other Nerd Kingdom Agreements.

2. Updates to the Terms of Service

Nerd Kingdom has the right to change these Terms of Service at any time by posting the amended Terms on or within the Service. We may, in our sole discretion, provide additional notice of any changes, but it is your responsibility to periodically check the Terms of Service for changes. You will be deemed to have accepted any changes to the Terms by continuing to use the Service. Unless otherwise stated, all amended terms shall be effective immediately after they are initially posted.

If at any point you do not agree to any portion of the then-current version of our Terms of Service, you must immediately stop using the Service.

3. Use of the Service

You may only use the Service if you are over the age of 13 and are not barred from using the Service by law. If you are between 13 and 17 years of age, you must show your parent or guardian these Terms and they must agree before you may use the Service. You may be required to register an account to use certain aspects of the Service, for example, to register as a developer, to purchase products, or for other purposes (an “Account”). You are responsible for maintaining the confidentiality of your Account login information, and you are solely responsible for anything that happens through your Account. You may cancel any Account registered to you at any time by contacting our support team at [email protected].

When creating or updating an Account on the Service, you may be required to provide Nerd Kingdom with certain personal information, which may include your name, birth date, e-mail address, and, in some cases, payment information. This information may include personally identifiable information, and will be held and used in accordance with Nerd Kingdom’s Privacy Policy. You agree that you will supply accurate and complete information to Nerd Kingdom, and that you will update that information promptly after it changes.

These rules apply to your use of the Service:

  • You may not use the Service for any commercial purpose unless expressly authorized by Nerd Kingdom in these Terms or other Nerd Kingdom Agreement
  • You may not abuse, hack, attack, interfere with, or otherwise disrupt the Service or Game or do anything contrary to these Terms
  • You may not access the Service or Game in any manner not expressly authorized by Nerd Kingdom under these Terms or in a separate written agreement
  • You may not use the Service or Game to advertise, solicit, or transmit any commercial advertisements, including chain letters, junk e-mail or repetitive messages (spim and spam)
  • You may not use the Service or Game to infringe on the intellectual property rights of others, to obtain personal information of others without authorization, or to otherwise violate the law
  • You may not use the Service or Game to harass, threaten, or abuse others
  • You may not collect or post anyone else’s personal information, including personally identifiable information, in any form on the Service or Game

You understand that while at times you may “earn,” “buy” or “purchase” (a) virtual currency, including but not limited to virtual coins, cash, tokens, or points, for use in the Service; or (b) virtual in-game items (together with virtual currency, “Virtual Items”); these real world terms are only being used as shorthand. You do not in fact “own” the Virtual Items; rather, you hold a limited license to use the Virtual Items in connection with the Service. The amounts of any Virtual Item do not refer to any credit balance of real currency or its equivalent. The purchase and sale of the limited license to use Virtual Items referred to in these Terms of Service is a completed transaction upon receipt of your direct payment or redemption of a Nerd Kingdom approved virtual currency. Any “virtual currency” balance shown in your Account does not constitute a real-world balance or reflect any stored value, but instead constitutes a measurement of the extent of your license.

You understand that if you use our tools, systems, utilities, platform, etc. (“Tools”) to create or sell Modded Content within the Service, you agree that Nerd Kingdom is entitled to thirty percent (30%) of revenue you receive from that Modded Content and that Nerd Kingdom will be entitled to deduct its percentage before you receive any portion of such revenues. Nerd Kingdom may change the foregoing percentage in its sole discretion at any time by posting a notice thereof in accordance with these Terms.

4. Suspension and Termination of Account and Service

Nerd Kingdom has the right to suspend or revoke your access to and use of the Service and Game if Nerd Kingdom suspects you have violated these Terms. Any violation of these Terms shall automatically terminate the End User License Agreement, and you will have no further right to use the Service or Game, or to receive any payments or credits relating thereto.

Nerd Kingdom has the right to stop offering and/or supporting the Service or Game or a particular part thereof at any time either permanently or temporarily. If this happens, Nerd Kingdom will not be liable for discontinued elements of the Service or Game, and will not be required to provide refunds, benefits or other compensation to users.

5. Proprietary Rights

The Service and Game, including patents, trademarks, software including source and object code, and other copyrightable materials incorporated in or displayed on the Service or Game, is owned by Nerd Kingdom. Nerd Kingdom owns all intellectual property rights and proprietary rights in connection with the Service and Game. You agree not to modify, rent, lease, loan, sell, assign, distribute, reverse engineer, or create derivative works based on any element of the Service or Game except as expressly authorized by Nerd Kingdom in these Terms, in an additional agreement applicable to a specific part of the Service or Game, or in a separate written agreement.

Subject to the Terms, Nerd Kingdom will grant you a license to use the Service and Game as stated in Nerd Kingdom’s End User License Agreement.

6. User Content

“User Content” means any information, data, text, images, sounds, software (including source and object code), or other material created, posted, uploaded, stored, or transmitted on the Service or Game by you, including without limitation Modded Content.

By submitting any User Content while using the Service or Game, you agree that the submission (a) is accurate and not confidential; (b) does not violate any laws, contractual restrictions or other third party rights; (c) is free of viruses, adware, spyware, worms or other malicious code; (d) you acknowledge and agree that any of your personal information within such User Content will be handled by Nerd Kingdom in accordance with its Privacy Policy; and (e) you represent that the User Content does not infringe on any third party’s intellectual property rights or violate applicable law.

Nerd Kingdom does not claim ownership of your User Content. By submitting User Content through the Service or Game, you grant Nerd Kingdom a nonexclusive, perpetual, irrevocable, sublicensable license to use, reproduce, modify, publish, distribute, sell, and exploit the User Content for any purpose worldwide.

7. Responsibility for User Content

You are responsible for the User Content you transmit through the Service and Game. You understand that by using the Service and Game you may be exposed to content that is offensive, indecent or objectionable. You also acknowledge that Nerd Kingdom does not guarantee the security of any User Content you transmit to the Service or Game; if you wish to keep any aspect of your User Content a secret, do not post it to the Service or Game. You agree that Nerd Kingdom is not responsible for deleting or failing to store any User Content posted, stored, or transmitted through the Service or Game.

8. Monitoring of User Content

Nerd Kingdom has the right, but not the obligation, to monitor all content, including User Content, appearing on the Service and Game, and Nerd Kingdom has the right to edit, remove, or refuse any User Content for any reason in its sole discretion. Nerd Kingdom reserves the right to limit the storage capacity of User Content that you post on, through or in connection with the Service or Game.

9. Submissions

If you submit suggestions, proposals, comments or other materials within the Service or Game, including but not limited to all correspondence and communication with Nerd Kingdom support personnel (collectively “Submissions”), you understand and agree that Nerd Kingdom (1) shall have no obligation to keep your Submissions confidential; (2) shall have no obligation to return your Submissions or respond in any way; and (3) may use your Submissions for any purpose in any way without notice or compensation to you.

10. Disclosure of Information

Your User Content, and the contents of all of your online communications (including without limitation chat text, voice communications, IP addresses and your personal information) may be accessed and monitored as necessary to provide the Service and may be disclosed: (i) when we have a good faith belief that we are required to disclose the information in response to legal process (for example, a court order, search warrant or subpoena); (ii) to satisfy any applicable laws or regulations (iii) where we believe that the Service or Game is being used in the commission of a crime, including to report such criminal activity or to exchange information with other companies and organizations for the purposes of fraud protection and credit risk reduction; (iv) when we have a good faith belief that there is an emergency that poses a threat to the health and/or safety of you, another person or the public generally; and (v) in order to protect the rights or property of Nerd Kingdom, including to enforce these Terms of Service or to exercise our rights under these Terms. By entering into these Terms of Service, you hereby provide your irrevocable consent to such monitoring, access and disclosure.

11. Third Party Advertising and Links

You understand that the Service and Game may feature advertisements from Nerd Kingdom or third parties. Nerd Kingdom’s disclosure of information for third party advertising is addressed in Nerd Kingdom’s Privacy Policy.

Nerd Kingdom may provide links on the Service or Game to third party websites or vendors who may invite you to participate in a promotional offer in return for receiving an optional component of the Service or Game and/or upgrades. Any charges or obligations you incur in your dealings with these third parties are your responsibility. Nerd Kingdom makes no representation or warranty regarding any content, goods and/or services provided by any third party even if linked to from our Service or Game, and will not be liable for any claim relating to any third party content, goods and/or services. The linked sites are not under the control of Nerd Kingdom and may collect data or solicit personal information from you. Nerd Kingdom is not responsible for their content, business practices or privacy policies, or for the collection, use or disclosure of any information those sites may collect. Further, the inclusion of any link does not imply endorsement by Nerd Kingdom of these linked sites.

12. Copyright Notices and Complaints

It is Nerd Kingdom’s policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act (“DMCA”).

If you believe that your copyrighted work has been copied, reproduced, displayed, duplicated, performed, distributed, or otherwise infringed without your authorization and is available on the Service or Game in a way that may constitute copyright infringement, you may provide notice of your claim to Nerd Kingdom at the address listed below. For your notice to be effective, it must include the following information:

  • A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
  • A description of the copyrighted work that you claim has been infringed upon;
  • A description of where the material that you claim is infringing is located;
  • Information reasonably sufficient to permit Nerd Kingdom to contact you, such as an address, telephone number, and, if available, an e-mail address at which you may be contacted;
  • 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; and
  • A statement that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Please send all copyright claim notices to: Nerd Kingdom, Inc., Attn: Designated Copyright Agent, 2900 Gateway Dr, Suite 600, Irving TX 75063; Email: [email protected].

If your user content or other information has been affected by reason of a notification under the DMCA, you may make a counter-notification pursuant to sections 512(g)(2) and (3) of the DMCA. You will be liable for damages (including costs and attorneys' fees) if you materially misrepresent that your User Content or your activity is not infringing the copyrights of others. When we receive a counter-notification, we may reinstate the material in question.

To file a counter-notification with us, you must provide us with a written communication sent to Nerd Kingdom at the address indicated above setting forth the following items:

  • An identification of the URLs or other unique identifying information or material that Nerd Kingdom has removed or to which Nerd Kingdom has disabled access;
  • Your name, address, telephone number, email address, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located (or Los Angeles County, California if your address is outside of the United States), and that you will accept service of process from the person who provided notification under the DMCA or an agent of such person;
  • A statement, under penalty of perjury, that you have a good faith belief that content at issue was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
  • Your physical or electronic signature.

Nerd Kingdom reserves the right to terminate without notice any user’s access to the Service or Game if that user is determined by Nerd Kingdom, in its sole discretion, to be a “repeat infringer.” In addition, Nerd Kingdom accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials.

13. Updates to the Service

You understand that the Service and Game is evolving. Nerd Kingdom may require that you accept updates to the Service or Game, and may automatically update the Service or Game at any time with or without notifying you. You may need to update third party software from time to time in order to receive the Service or Game and use Nerd Kingdom’s software.

14. Indemnity

You agree to indemnify, save, and hold Nerd Kingdom, its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners (the “Nerd Kingdom Parties”) harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Service or Game, any violation by you of these Terms of Service, or any breach of the representations, warranties, and covenants made by you herein. Nerd Kingdom reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Nerd Kingdom, and you agree to cooperate with Nerd Kingdom’s defense of these claims. Nerd Kingdom will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.

You agree that the provisions in this paragraph will survive any termination of your Account(s) or of the Service or Game.

15. No Warranty

The Service and Game are provided “as is.” Nerd Kingdom does not make any warranty that the Service or Game will be error-free, that defects will be corrected, or that the Service or Game are free of viruses or other harmful components. Nerd Kingdom expressly disclaims all warranties, express or implied, including without limitation the warranties of merchantability or fitness for any particular purpose or use, and non-infringement. Nerd Kingdom does not warrant or make any representations regarding the use, validity, accuracy or reliability of, or the results of the use of, or otherwise respecting, the materials in the Service or Game.

16. Limitation of Liability

You agree that Nerd Kingdom will not be held liable in any way for damage or loss of any kind, whether for breach of contract, tortious behavior, negligence or any other cause of action resulting from (a) the use of or inability to use the Service or Game; (b) the breach of any representation or warranty; (c) the downloading of any software owned or operated by Nerd Kingdom or any third party provider; (d) personal injury or property damage of any nature whatsoever resulting from your access to and use of the Service or Game; or (e) interruptions of service, including without limitation software or hardware failures or any other event which may result in a loss of data or disruption of service. You also agree that Nerd Kingdom will not be held liable to you or anyone else for any indirect, incidental, special, exemplary, consequential or any other damages resulting from the use of or inability to use the Service or Game. Some jurisdictions may not allow the limitation or exclusion of certain warranties or disclaimers in which case some of the warranties or disclaimers provided in this agreement may not be applicable. To the extent that the limitation of liability set forth in this section is prohibited or fails of its essential purpose, Nerd Kingdom’s total liability arising from this agreement and sole obligation with respect to damages shall not exceed one hundred United States Dollars (US$100.00).

17. Dispute Resolution

  1. Arbitration. If a dispute arises between you and Nerd Kingdom, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, we strongly encourage you to first contact us directly to seek an informal resolution through our customer support team. If any dispute cannot be settled informally, you and Nerd Kingdom agree to resolve any claim or controversy at law or equity relating to this Agreement or the Service or Game (a “Claim”) through binding non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, and the specific manner shall be chosen by the party initiating the arbitration; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) any judgment on the award rendered by the arbitrator shall be final and may be entered in any court of competent jurisdiction.
  2. Applicable Law. This Agreement and any dispute arising out of or related to it or the Service or Game shall be governed in all respects by the laws of the State of California as they apply to agreements entered into and to be performed entirely within California between California residents, without regard to conflict of law provisions. You agree to submit to the personal jurisdiction of the courts located within Los Angeles County, California in connection with any entrance of an arbitrator’s judgment or decision or any dispute with respect to the arbitration process or procedure or Nerd Kingdom’s exercise of its equitable rights or remedies set forth herein.
  3. Improperly Filed Claims. All claims you bring against Nerd Kingdom must be resolved in accordance with these terms. All claims filed or brought contrary to these terms shall be considered improperly filed. Should you file a claim contrary to these terms, Nerd Kingdom shall be entitled to recover attorneys’ fees and costs up to $5,000, provided that Nerd Kingdom has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.

18. General Provisions

  1. Assignment.
    1. Nerd Kingdom may assign or delegate these Terms of Service, in whole or in part, to any person or entity at any time with or without your consent. You may not assign or delegate any rights or obligations under the Terms of Service or Privacy Policy without Nerd Kingdom’s prior written consent, and any unauthorized assignment and delegation by you is void and ineffective.
  2. Supplemental Policies.
    1. Nerd Kingdom may publish additional policies related to specific services such as applications for mobile devices, forums, contests or loyalty programs. Your right to use such services is subject to those specific policies and these Terms of Service.
  3. Third Party Policies.
    1. Nerd Kingdom may make the Service or Game available through third party sites, platforms or services, including Amazon, Apple, Facebook, Google, or others. In order to access the Service or Game through those third parties, you may be required to agree to their separate terms and conditions. If such consent is required and you choose to withhold it, then you may be denied use of the Service or Game through those third parties notwithstanding your agreement to abide by Nerd Kingdom’s Terms of Service. Moreover, if we provide the Service or Game solely through such third party sites, platforms or services and you withhold your consent to their terms and conditions, then your right to use the Service or Game under Nerd Kingdom’s Terms of Service may terminate.
  4. Entire Agreement.
    1. These Terms of Service, including the Nerd Kingdom Agreements which are incorporated herein, contain the entire understanding of you and Nerd Kingdom, and supersede all prior understandings of the parties hereto relating to the subject matter hereof, whether electronic, oral or written, or whether established by custom, practice, policy or precedent, between you and us with respect to the Service and Game.
  5. No Waiver.
    1. The failure of Nerd Kingdom to require or enforce strict performance by you of any provision of these Terms of Service or the Nerd Kingdom Privacy Policy or failure to exercise any right under them shall not be construed as a waiver or relinquishment of Nerd Kingdom’s right to assert or rely upon any such provision or right in that or any other instance.
    2. The express waiver by Nerd Kingdom of any provision, condition, or requirement of these Terms of Service or the Nerd Kingdom Privacy Policy shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
    3. Except as expressly and specifically set forth in this these Terms of Service, no representations, statements, consents, waivers, or other acts or omissions by Nerd Kingdom shall be deemed a modification of these Terms of Service nor be legally binding, unless documented in physical writing, hand signed by you and a duly appointed officer of Nerd Kingdom.
  6. Notices.
    1. We may notify you via postings on www.nerdkingdom.com and via e-mail or any other communications means to contact information you provide to us. If you are a user in the United States, all notices given by you or required from you under these Terms of Service or the Nerd Kingdom Privacy Policy shall be in writing and addressed to: Nerd Kingdom, Inc., 2900 Gateway Suite 600, Irving, Texas 75063.
    2. Any notices that you provide without compliance with this Section on Notices shall have no legal effect.
  7. Equitable Remedies.
    1. Notwithstanding the binding arbitration provisions hereof and any contrary provisions herein, Nerd Kingdom has the following equitable rights and remedies.
    2. You acknowledge that the rights granted and obligations made under these Terms of Service to Nerd Kingdom are of a unique and irreplaceable nature, the loss of which shall irreparably harm Nerd Kingdom and which cannot be replaced by monetary damages alone. Accordingly, Nerd Kingdom shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety or proof of damages) in the event of any breach or anticipatory breach by you.
    3. You irrevocably waive all rights to seek injunctive or other equitable relief, or to enjoin or restrain the operation of the Service or Game, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Service or Game or any content or other material used or displayed through the Service or Game and agree to limit your claims to claims for monetary damages, limited by Section 7.2 (if any).
  8. Severability.
    1. You and Nerd Kingdom agree that if any portion of these Terms of Service is found to be unenforceable by any court of competent jurisdiction, such provision shall, as to such jurisdiction, be ineffective solely to the extent of such unenforceability, and the remaining Terms shall continue in full force and effect.
  9. No Third Party Beneficiaries.
    1. Except as otherwise expressly provided in the Terms, there shall be no third party beneficiaries to these Terms.