Welcome to the Fenomen Games ("FG") Internet websites. FG operates Fenomen-Games.com, MelonGames.com (each, a "FG Web Site," and collectively, the "FG Web Sites").
This is an agreement ("Agreement") between you and FG. This Agreement governs your use of any Web site or Web page operated by FG.
FG OFFERS THE FG WEB SITES TO YOU CONDITIONED ON YOUR ACCEPTANCE WITHOUT MODIFICATION OF THIS AGREEMENT. YOUR USE OF THE FG WEB SITES CONSTITUTES YOUR ACCEPTANCE OF THIS AGREEMENT.
THIS AGREEMENT CONTAINS AN ASSUMPTION OF THE RISK REQUIREMENT, DISCLAIMERS OF WARRANTIES AND LIABILITY (See Sections 8, 9, 10, and 11); AND AN EXCLUSIVE REMEDY (See Section 9). THESE PROVISIONS FORM AN ESSENTIAL BASIS OF OUR BARGAIN.
- FG MAY MODIFY THIS AGREEMENT
FG reserves the right to change the terms, conditions, and notices under which it offers the FG Web Sites, including any charges associated with the use of the FG Web Sites. You are responsible for regularly reviewing these terms, conditions and notices, and any additional terms posted on any FG Web Site. Your continued use of the FG Web Sites after the effective date of such changes constitutes your acceptance of and agreement to such changes.
- ADDITIONAL TERMS
Any FG Web Site may itself contain additional terms (for example, codes of conduct or guidelines) that further govern use of that FG Web Site, including without limitation, particular features or offers. If any terms contained in this Agreement conflict with any terms contained within a FG Web Site, then the terms in this Agreement shall control.
- NO COMMERCIAL, UNLAWFUL OR HARMFUL USE OF THE FG WEB SITES
The FG Web Sites are only for your personal use, and FG grants you the limited right to view and use the FG Web Sites only for the purposes of viewing or playing content such as games or films, placing product orders, or for accessing information, software ("Applications") and services. You may not use the FG Web Sites for commercial purposes. You may not use the FG Web Sites in any way that is unlawful, or harms FG, its affiliates, and/or partners (each, a "FG Party" and collectively, the "FG Parties") or any customer of a FG Party, as determined in FG's sole discretion. Without limiting the generality of this section, you may not use the FG Web Sites in any manner that could damage, disable, overburden, or impair any FG Web Site (or the network(s) connected to any FG Web Site) or interfere with any other party's use and enjoyment of the FG Web Sites. Further, unless you have received specific written permission from FG, you may not (1) "frame" or otherwise impose editorial comment, commercial material or any information or content on, or in proximity to, content displayed on the FG Web Sites or (2) alter or modify any content on the FG Web Sites. Without limiting other restrictions, you agree not to reproduce, transmit, sell, or otherwise exploit the FG Web Sites and/or Applications for any commercial purpose.
- MATERIALS YOU POST OR PROVIDE; COMMUNICATIONS MONITORING
For materials you post or otherwise provide to FG related to the FG Web Sites (a "Submission"), you grant FG permission to (1) use, copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, modify, translate and reformat your Submission, each in connection with the FG Web Sites, and (2) sublicense these rights, to the maximum extent permitted by applicable law. Unless otherwise agreed by FG in writing, FG will not pay you for your Submission. FG may remove your Submission at any time. For each Submission, you represent that you have all rights necessary for you to make the grants in this section.
Your use of any software associated with the FG Web Sites will be governed by the terms and conditions of the end user license agreement ("EULA") accompanying such software. If you receive any software that is not accompanied by a EULA, then FG grants to you only a limited license to download and/or use the Application from a single computer for personal and non-commercial purposes. Such software is protected by copyright and other intellectual property laws and treaties. FG or its licensors own the title, copyright, and other intellectual property rights in such software, and such software is licensed, not sold. You may not make copies of or distribute the Application or electronically transfer the Application from one computer to another or over a network, nor may you separate any content from an associated Application. You may not decompile, reverse engineer, disassemble or otherwise reduce the Application to human perceivable form. You may not rent, lease or sublicense the Application. You may not create derivative works of the Application and you may not export the Application in violation of any U.S. or foreign law, rule or regulation. FG reserves all rights to such software not expressly granted to you in this Agreement.
- DIGITAL RIGHTS MANAGEMENT SYSTEMS
Applications you use or download from the Sites may contain third party digital rights management systems ("DRMS") which may allow for communication between your software and the third party and utilize security features (e.g., preventing distribution of or access to the applications in the event of unauthorized use). These DRMS are subject to their own license agreements and you agree that FG shall not be responsible for any loss or damage of any sort relating to the use of the DRMS or your dealings with such third parties. The Applications may also contain DRMS produced by FG which allow for communication between the applications you use or download and our systems and which collect information describing your computer system in order to prevent illegal or unauthorized use of the applications. The DRMS for subscription services and Applications licensed from the Site may transmit the following pieces of information, along with other information, when you either enter a purchase key or sign in with your subscription service user name and password: Operating System, CPU Version Information (including serial number from a serial-number-enabled Pentium III), BIOS Version Information, NetBIOS Computer Name, DOS HD Serial Number, Hard Drive Size / Geometry, S.M.A.R.T. IDE HD Serial Number, Network Card MAC Address, IP Address and Size of Physical Memory.
- FG MAKES NO WARRANTY
FG PROVIDES THE FG WEB SITES "AS IS," "WITH ALL FAULTS" AND "AS AVAILABLE," AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE FG PARTIES MAKE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED. THE FG PARTIES DISCLAIM ANY AND ALL WARRANTIES OR CONDITIONS, EXPRESS, STATUTORY AND IMPLIED, INCLUDING WITHOUT LIMITATION (1) WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, ACCURACY, TITLE, QUIET ENJOYMENT, AND NON-INFRINGEMENT, (2) WARRANTIES OR CONDITIONS ARISING THROUGH COURSE OF DEALING OR USAGE OF TRADE, (3) WARRANTIES OR CONDITIONS THAT ACCESS TO OR USE OF THE FG WEB SITES WILL BE UNINTERRUPTED OR ERROR-FREE, AND (4) LACK OF VIRUSES, WORMS, TROJAN HORSES, OR OTHER CODE THAT MANIFESTS CONTAMINATING OR DESTRUCTIVE PROPERTIES. THERE ARE NO WARRANTIES THAT EXTEND BEYOND THE FACE OF THIS AGREEMENT.
- LIABILITY LIMITATION; YOUR EXCLUSIVE REMEDY
(a) IF YOU ARE DISSATISFIED WITH THE FG WEB SITES OR ASSOCIATED SOFTWARE, YOU DO NOT AGREE WITH ANY PART OF THIS AGREEMENT, OR YOU HAVE ANY OTHER DISPUTE OR CLAIM WITH OR AGAINST ANY FG PARTY WITH RESPECT TO THIS AGREEMENT OR THE FG WEB SITES, THEN YOUR SOLE AND EXCLUSIVE REMEDY IS, AT FG'S OPTION, (1) TO DISCONTINUE USE OF THE FG WEBSITES; (2) SUBSTITUTION OR REPLACEMENT OF ALL OR PART OF THE APPLICATION OR PRODUCT THAT GIVES RISE TO DAMAGES INCURRED BY YOU; OR (3) REFUND OF THE AMOUNT THAT YOU PAID TO FG. YOU AGREE THAT THE DAMAGE EXCLUSIONS IN THESE TERMS SHALL APPLY EVEN IF ANY REMEDY FAILS TO ACHIEVE ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT WILL ANY FG PARTY BE LIABLE FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF, BASED ON, OR RESULTING FROM THIS AGREEMENT OR YOUR USE OF THE FG WEB SITES, EVEN IF SUCH FG PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION OF DAMAGES UNDER THIS SECTION 9 IS INDEPENDENT OF YOUR EXCLUSIVE REMEDY AND SURVIVES IN THE EVENT SUCH REMEDY FAILS TO ACHIEVE ITS ESSENTIAL PURPOSE OR IS OTHERWISE DEEMED UNENFORCEABLE.
(c) THESE LIMITATIONS AND EXCLUSIONS APPLY WITHOUT REGARD TO WHETHER THE DAMAGES ARISE FROM (1) BREACH OF CONTRACT, (2) BREACH OF WARRANTY, (3) NEGLIGENCE, OR (4) ANY OTHER CAUSE OF ACTION, TO THE EXTENT SUCH EXCLUSION AND LIMITATIONS ARE NOT PROHIBITED BY APPLICABLE LAW.
- ASSUMPTION OF RISKS
YOU ASSUME ALL RISKS THAT THE SITE, APPLICATIONS, AND RELATED INFORMATION ARE SUITABLE OR ACCURATE FOR YOUR NEEDS AS WELL AS ANY RISK THAT THEY WILL NOT BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE. ANY APPLICATIONS DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE SITE ARE AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER OR LOSS OF DATA. BY PARTICIPATING IN MULTI-PLAYER GAMES OR VISITING USER FORUMS YOU MAY BE EXPOSED TO RUDE, CRUDE, INDECENT, OR OTHER OFFENSIVE LANGUAGE OR REFERENCES. YOU AGREE THAT FG SHALL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE OF ANY SORT RELATING TO YOUR DEALINGS WITH ANY THIRD PARTY ADVERTISER OR CONTENT PROVIDER ON THE SITE.
- CHANGES TO THE FG WEB SITES; ADDITIONAL LIABILITY LIMITATION
THE FG PARTIES MAY CHANGE THE FG WEB SITES OR DELETE FEATURES IN ANY WAY, AT ANY TIME AND FOR ANY REASON. As you use the FG Web Sites, you should expect to receive, access or use information, materials, graphics, software, data and content (collectively, "Content") originated by FG and persons other than FG (any such person is referred to as a "Third Party"). WITHOUT LIMITING THE GENERALITY OF SECTIONS 8, 9, 10, AND 11, YOU ACKNOWLEDGE AND AGREE THAT THE FG PARTIES ARE NOT RESPONSIBLE OR LIABLE FOR (1) ANY CONTENT, INCLUDING WITHOUT LIMITATION, ANY INFRINGING, INACCURATE, OBSCENE, INDECENT, THREATENING, OFFENSIVE, DEFAMATORY, TORTIOUS, OR ILLEGAL CONTENT, OR (2) ANY THIRD PARTY CONDUCT, TRANSMISSIONS OR DATA. IN ADDITION, WITHOUT LIMITING THE GENERALITY OF SECTIONS 8, 9, 10, AND 11, YOU ACKNOWLEDGE AND AGREE THAT FG IS NOT RESPONSIBLE OR LIABLE FOR (1) ANY VIRUSES OR OTHER DISABLING FEATURES THAT AFFECT YOUR ACCESS TO OR USE OF THE FG WEB SITES, (2) ANY INCOMPATIBILITY BETWEEN THE FG WEB SITES AND OTHER SERVICES, SOFTWARE AND HARDWARE, (3) ANY DELAYS OR FAILURES YOU MAY EXPERIENCE IN INITIATING, CONDUCTING OR COMPLETING ANY TRANSMISSIONS OR TRANSACTIONS IN CONNECTION WITH THE FG WEB SITES IN AN ACCURATE OR TIMELY MANNER, OR (4) ANY DAMAGES OR COSTS OF ANY TYPE ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF ANY SERVICES AVAILABLE FROM THIRD PARTIES THOUGH LINKS CONTAINED ON THE FG WEB SITES. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN SECTIONS 8, 9, 10, AND 11 OF THIS AGREEMENT APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND ARE NOT INTENDED TO DEPRIVE YOU OF ANY MANDATORY PROTECTIONS PROVIDED TO YOU UNDER APPLICABLE LAW.
- TERMINATION; ACCESS RESTRICTION
FG may terminate this Agreement, or terminate or suspend your access to the FG Web Sites at any time, with or without cause, with or without notice. Upon such termination or suspension, your right to use the FG Web Sites will immediately cease.
- DISPUTE RESOLUTION, CHOICE OF LAW, AND LOCATION FOR RESOLVING DISPUTES
CHOICE OF LAW: All Claims or Disputes arising out of or relating to this Agreement will be adjudicated under the laws of the State of California, without reference to conflict of laws principles.
JURISDICTION AND VENUE: You hereby irrevocably consent to the exclusive jurisdiction and venue of the state or federal courts in Los Angeles, California, USA in all Disputes arising out of or relating to the use of the FG Web Sites.
- YOU HAVE LIMITED TIME TO BRING YOUR CLAIM
YOU AND FG AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE FG WEB SITES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
- INTERPRETING THE AGREEMENT; ASSIGNMENT
If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect. FG may assign this Agreement, in whole or in part, at any time with or without notice to you. You may not assign this Agreement, or assign, transfer or sublicense your rights, if any, in the FG Web Sites. Except as expressly stated herein, this Agreement constitutes the entire agreement between you and FG with respect to the FG Web Sites and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and FG with respect to the FG Web Sites. The section titles in the Agreement are solely used for the convenience of the parties and have no legal or contractual significance.
- LINKS; ADVERTISERS
The FG Websites contain links to third party sites that are not under the control of FG and FG is not responsible for any content on any linked site. If you access a third party site from the FG Websites, then you do so at your own risk. FG provides links only as a convenience and the inclusion of the link does not imply that FG endorses or accepts any responsibility for the content on those third party sites. Additionally, your dealings with or participation in promotions of advertisers found on the FG Websites, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that FG shall not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.