OnLive EMEA S.à r.l
TERMS OF SERVICE
Last Updated 7 December 2011
Welcome to the OnLive® Game Service (the
“Service” or “SERVICE”), a service of OnLive EMEA s.à r.l (collectively,
“OnLive” or “ONLIVE” or “we” or “us”). The OnLive Terms of Service (the
“Terms”) govern our relationship with anyone who accesses the Service
by any method or means, including but not limited to access of the
Service through the OnLive Game System (“OGS”), which includes the
MicroConsole™ TV adapter (the “MicroConsole TV adapter”) and the Gamepad
and the OnLive Community Guidelines carefully. By clicking “I Agree,”
OnLive Community Guidelines.
Your use of the Service is only for purposes
that are permitted by these Terms. Any use or access of the Service by
any means other than those authorised by these Terms is prohibited
unless specifically agreed with OnLive.
On an ongoing basis, OnLive makes changes
and additions to the Service including but not limited to: new games,
features, and functionality. OnLive will provide reasonable notice of
all material changes and additions to the Service. Your continued use of
the Service after such notification will indicate your acceptance of
any such changes and additions and your continued acceptance of the
You may not use the Service if you do not
agree to be, or are unable to be, bound by the Terms, the OnLive Privacy
Policy, and the OnLive Community Guidelines.
the way we handle and protect your Personal Information (as defined in
Information on the Service.
2. Community Guidelines
In order to provide a safe and welcoming
environment for all of our users, we have established certain ground
rules regarding your behavior on the Service that are specified in the
OnLive Community Guidelines. The OnLive Community Guidelines apply to
your use of the Service and any and all User Generated Content (as
defined in Section 9 below) that you contribute to the Service. OnLive
reserves the right to terminate or suspend your OnLive Service Account
(“Account”) if you breach the OnLive Community Guidelines.
In order to register for an Account on the
Service, you must be at least 18 years of age, be an emancipated minor
or have reached the age of majority in your country of residence, and be
a current resident of the United Kingdom (“Account Holder”). As an
Account Holder, you represent and warrant to OnLive that you meet the
eligibility criteria in the preceding sentence.
4. Accepting and Changing the Terms
You become bound by the Terms by (a)
clicking to agree to the Terms; (b) downloading to a desktop, laptop,
mobile device or obtaining through any other means on any other device
or medium, the OnLive Application Software without the authorization of
OnLive; (c) installing the OnLive Application Software without the
authorization of OnLive; or (d) otherwise accessing the Service without
the authorization of OnLive.
We may change the Terms at any time in our
sole discretion. We will provide you with reasonable notice of any
changes to the Terms. Continued use of the Service after the notice
period will constitute acceptance of the Terms.
5. Third Party Terms
Buying or accessing certain third party
content on the Service may require you to review, and accept or decline
certain third party disclosures, policies, and agreements including but
not limited to third party end user license agreements, privacy
policies, and terms of service (“Third Party Terms”).
You may be presented with Third Party Terms
prior to your purchase or use of third party content, or wherever
OnLive, in its sole discretion, deems presentation of Third Party Terms
is reasonably necessary or legally required to provide proper notice to
you. You can accept Third Party Terms by (a) entering your password to
purchase access to or to use the third party content on the Service or
(b) accessing the purchased or selected third party content through the
Service having been given reasonable notice of the Third Party Terms.
If you do not accept Third Party Terms in the manner described but you
nevertheless gain unauthorized access to the Service, you will be deemed
to have accepted Third Party Terms upon such access of the third party
content. If you choose to decline any Third Party Terms, you may do so
by not purchasing the third party content referenced by the Third Party
Terms or otherwise declining the Third Party Terms as provided by OnLive
or the third party providing the Terms.
Please be advised that some Third Party
Terms may state or imply you have certain rights to a physical product,
rights to download, or install third party content to a local machine,
and/or other rights associated with physical possession or control of
third party content. Such statements within Third Party Terms may not be
applicable to use of the third party content on the Service.
In all Third Party Terms, the user agreeing
to, and/or the user presented with Third Party Terms, will in all cases
continue to be the consumer end user of the third party content. Unless
expressly agreed by OnLive, OnLive shall not be the intended or actual
licensee, user, or recipient of any Third Party Terms.
You do not have the right to share your
Account with any third party, except as you provide pursuant to the
Parental Controls features. You are solely responsible for all activity
on your Account, including violations of the Terms by any third party
that accesses the Service through your Account, and for the security of
your Account. You also agree to the following:
• You agree to provide and maintain an
active email address through which you can be reached for the duration
of your Account. You agree to provide accurate and up-to-date email
address, contact and billing information to OnLive.
• You agree to use the Service only for
purposes that are permitted by (a) the Terms and (b) any applicable law,
regulation, or generally accepted practices or guidelines in the
• You agree to notify OnLive of any
unauthorized use of your Account, any impending or threatened event that
may negatively impact the Service, security of the Service, or any
other violation of the Terms known to you, including by third parties
that have accessed the Service through your Account.
• You agree to not make any attempt to
access the Service via any means or interface other than those which
have been provided to you by OnLive, unless you have been granted
explicit written permission by an authorized representative of OnLive to
• You agree to not engage in any activity
that interferes with or disrupts, degrades, harms or threatens to harm
the Service, security of the Service, our servers, or the use of the
Service by any of our users.
• You agree to not represent to any third
party that you are an OnLive employee or authorized representative of
• You agree to not register a Player Tag
(i.e. OnLive user name) that is vulgar, offensive, libelous, slanderous,
discriminatory or obscene or that violates any law, or otherwise
breaches the Terms or Community Guidelines.
• You agree to not transfer or share your
Account with any other party except as permitted by the Parental
Controls features as explained below.
• You agree not to transfer or share your
OnLive Service login information with any other party.
• You agree to not tamper with in any
manner, disassemble, reverse engineer, or otherwise modify any hardware
or software of the Service made available to you.
• The Service includes parental controls
features (“Parental Controls”) which restrict access to certain content
and features which may be deemed inappropriate for Minors (youth between
13 and up to 18). The Parental Controls can only be accessed with a
parental control passcode, and you agree not to share this parental
control passcode with any third parties (including the Minor for whom
the Parental Controls are activated).
You may provide access to your Account to
any member of your household (each an “Authorised User”), provided the
following conditions are met:
• You do not allow access to your Account to
any person under the age of 13 years old;
• You do not provide the details of your
parental control passcode to any third party, including any Authorised
• You expressly bring the OnLive Privacy
Policy to the attention of each Authorised User; and expressly inform
each Authorised User that their personal data, which may be disclosed
through OnLive Friends and Voice Chat features, may be collected by
OnLive and disclosed to other users while on the Service.
You, as the Account Holder, assume
responsibility for all activity on the Account from Authorised Users,
including Authorised User activity when Parental Controls are enabled.
Account Holders who set up Parental Controls and allow Minors to use an
Account are liable for all activities of such Minor and all public
disclosures of information made by such Minor.
OnLive reserves the right to terminate or
suspend your Account for breach of the account guidelines set out in
this Section 6.
7. OnLive Application Software
The OnLive Application Software and other
related materials (collectively, the “Materials”) made accessible to you
in connection with the Service will be licensed under, and subject to,
the terms and conditions of the OnLive End User License Agreement
8. Our Content
With the exception of User Generated Content
(as defined in Section 9 below), as between you and OnLive or its
affiliates, subsidiaries, licensors, or suppliers retain title to and
ownership of everything on or used in connection with the Service,
including, but not limited to, text; images; graphics; logos; audio and
video content; visual, auditory, tactile, and motion user interfaces,
and any OnLive hardware, software, or computer code (collectively,
“Content”). This also includes, without limitation, the structure,
design, animation, video, effects, overall “look and feel” and
arrangement of Content on the Service. With regard to any gaming
statistics like scores, rankings, log in/log out times, length of
gameplay, and your presence on the Service, OnLive owns that content
exclusively and/or shares ownership of that content with third party
content providers and may grant any of our affiliates, subsidiaries,
licensors, partners, or suppliers permission to use such content,
including the use and display of such content publicly for the purposes
of leaderboards, enhancing multiplayer gameplay, tournaments, and
marketing and promotion efforts. Subject to license restrictions and
these Terms, certain Content on the Service may not be available to
users accessing the Service through specific client devices (e.g.
Macintosh, Windows PC, MicroConsole™ TV adapter, cell phones, tablet
computers, Internet TVs, and set-top boxes). Such limitations will be
specified in the Content descriptions provided prior to your purchase of
any such Content, during the purchase process and/or in the EULA for
any particular piece of Content which has such restrictions.
OnLive owns patents, copyrights, trademarks,
service marks, trade names, trade secrets, domain names and other
intellectual property, and proprietary rights throughout the world in,
or to, or associated with the Content and/or the Service (the “IP
Rights”), and the Content and the Service are protected by the IP Rights
and all other applicable intellectual property rights and laws. Subject
OnLive Community Guidelines, OnLive grants you a limited, personal,
non-exclusive, non-transferable, non-sublicensable, revocable license
under the IP Rights to use the Service in accordance with the Terms, for
the duration of your membership and/or access to the Service, solely
for your personal and non-commercial use.
You may not modify, reproduce, distribute,
create derivative works or adaptations of, publish, perform, display,
transmit or in any way exploit any of the Content in whole or in part
except as expressly authorized by OnLive. You may not, in whole or in
part, reverse engineer, derive (or attempt to derive) any source code,
modify, disassemble, decompile, or remove any proprietary notices or
labels from the Service or any hardware or software associated or used
in connection with the Service. Except as expressly and unambiguously
provided herein, OnLive does not grant you any express or implied rights
in or to the Service, any Content or any software associated or used in
connection with the Service. Except as expressly provided herein (or in
make available any reproductions of the Service or the Content to any
other parties in any way, including, without limitation, by uploading
videos or images to file sharing sites, sharing or making available
screen captures of the Service or any Content, or sharing or making
available any source code or executable code of any software associated
or used in connection with the Service. You may not rent, lease, license
or sublicense the Service to others, or use the Service in any manner
for the benefit of any third party.
9. User Generated Content
Any time you post a message or communication
on an OnLive sponsored forum, or create, post, upload, submit, share or
distribute any content through the use of the Service, including the
OnLive User Community Forums, or play a game on the Service, including
any user name, tag, handle, motto, avatar video or still, and including
contributions via video, voice and text chat, text messaging, forums,
message boards, whether within or outside a game (any such message,
communication, content or play, collectively, “User Generated Content”
or “UGC”), you grant OnLive a non-exclusive, worldwide, perpetual,
irrevocable, unrestricted, royalty-free, fully paid-up license (with the
right to sublicense) to use, reproduce, distribute, display, perform,
transmit, modify, edit, create derivative works from, and otherwise
exploit such UGC, in any form, format, or medium now known or later
developed. You represent and warrant that you have the right to grant
these rights to OnLive and that you will not post any content or links,
user-generated or otherwise, that infringe, misappropriate or violate
any privacy, intellectual property, or any other rights of any party, or
which violates our Community Guidelines, or that is vulgar, offensive,
libelous, slanderous, discriminatory or obscene or that violates any
law. You hereby waive all “moral rights” with respect to all UGC and all
copyrights therein to the extent such moral rights can be waived under
the existing law of any jurisdiction, and, to the extent such moral
rights cannot be waived, you warrant that you will not seek to enforce
such moral rights against OnLive.
UGC specifically excludes any gaming and
Service usage statistics like scores, rankings, log in/log out times,
length of gameplay, and your presence on the Service. OnLive owns gaming
and Service usage statistics exclusively and/or shares ownership of
that content with third party content providers and may grant any of our
affiliates, subsidiaries, licensors, partners, or supplier’s permission
to use such content, including the use and display of such content
publicly for the purposes of leaderboards, enhancing multiplayer
gameplay, tournaments, and marketing and promotion efforts.
OnLive reserves the right to pre-screen,
monitor, moderate, and delete any UGC that you or other OnLive users
submit to the Service, including, but not limited to, posts made to
public forums. However, we have no obligation to do so, and you may be
exposed to content you find vulgar, offensive, libelous, slanderous,
discriminatory, obscene or is in violation of a law.
You acknowledge that OnLive is not an
author, publisher or editor of any UGC posted on the Service or of any
information provided by another content provider on the Service.
10. Voice Chat
Voice chat communications within the Service
should not be considered private. Voice chat communications may be
heard by others as part of gameplay or in other contexts, for example,
as part of Spectating. OnLive is under no obligation to monitor user
communications but reserves the right to act on reports of misconduct or
abuse of such privileges at OnLive’s sole discretion. Because voice
chat and other communications may be viewed and/or heard, users should
avoid revealing any personally identifiable information.
11. OnLive Purchases and Billing
Offers are only valid within the United
Kingdom. Offers cannot be combined unless expressly stated. Some game
purchases may not be available for all platforms and different prices
may be charged for different platforms (e.g., PC, Mac, and MicroConsole
TV adapter). Promotion codes and coupons have no cash value.
Subject to any OnLive promotional offers you
may accept, OnLive may require payment of fees for the Service
membership offer you select (the “Membership Plan”), third party
content, and any additional items and services that may be available
through the Service. You may have to register for an Account and sign up
for a Membership Plan in order to access the various features of the
Service and pay for any third party content. All purchases are charged
By registering for an Account on the
Service, you represent that you are at least 18 years of age and have
reached the age of majority in your country of residence. A credit card
is not required to sign up for the Service. However, if you select a
Membership Plan that requires a credit card, you represent that you are
authorized to use that credit card. You must also be authorized to use
any subsequent credit card in the event you change or update the credit
card you used to register. By signing up for a Membership Plan, you
expressly authorize OnLive to charge you for services and products
purchased under your Account including but not limited to required or
optional fees associated with maintaining an active Membership Plan in
good standing (the “Membership Fees”), third party content, and any
additional items and services that may be available through the Service.
Membership Plans may require one-time or recurring Membership Fees. If
so, OnLive will bill you in accordance with the terms of your
You acknowledge that the Service (including
the sale of a right to play games through it) is a supply of services to
you by OnLive, which commences once you register for the Service and
pay the Membership Fees or once you purchase the right to play a
particular game. OnLive will have commenced the supply of services to
you by granting you access to the Service or the relevant game, and you
will lose your right to cancel the purchase under Directive 97/7/EC as
implemented in your country of residence. Notwithstanding the above, the
purchase of an OGS or any other hardware will constitute the supply of
goods, and you will have seven days (beginning the day after you receive
the goods) in which you may choose to cancel the contract. If you
provide notice of such cancellation to OnLive, and return the
merchandise and we will provide you with a full refund for the purchase.
Prices for any third party content are
subject to change at any time without notice. OnLive reserves the right
to change the pricing, billing, Membership Plans and Membership Fees for
the Service at any time. In the event OnLive makes any such changes to
the Service, we will provide you with at least thirty (30) calendar days
notice via the email address you have provided in your Account. If you
do not consent to these changes, you must stop using the Service and may
close your Account.
In the event your Account is closed or
suspended for any reason, including because you do not consent to the
changes to the changes to the pricing, billing, Membership Plans and
Membership Fees for the Service, OnLive reserves the right to charge you
for any costs, surcharges, or debts still pending on your Account. You
may not register a new OnLive Account until all costs, surcharges, and
debts are settled for any prior OnLive Account that you have used, or
have been used with the same credit card or email address.
12. OnLive Game System: MicroConsole TV
Adapter and OnLive Gamepad Controller
The Terms also apply to use of the OnLive
Game System, which includes the MicroConsole TV adapter and OnLive
Gamepad Controller (“Controller”) to access the Service. Use of the
MicroConsole TV adapter or Controller confirms your agreement to:
• Accept any software updates and upgrades
sent to the MicroConsole TV adapter and/or Controller.
• Accept any different or additional terms
applicable to the third party components included with the MicroConsole
TV adapter and/or Controller.
• Not tamper with in any manner,
disassemble, reverse engineer, or otherwise modify the MicroConsole TV
adapter and/or Controller.
• Save as permitted by law, not derive (or
attempt to derive), modify, decompile, or remove any software code from
the MicroConsole TV adapter and/or Controller.
• Not remove any proprietary notices or
labels from the MicroConsole TV adapter and/or Controller.
• Save as permitted by law, use any software
in the MicroConsole TV adapter only in executable form and solely in
conjunction with the MicroConsole TV adapter.
Basic information relating to setup,
installation and support is shipped with the MicroConsole TV adapter and
Controller, and further details are found in the Support section of the
13. Suspending Your Account
You may suspend (i.e. temporarily
deactivate) your Account at any time, for any or no reason, for up to
twelve (12) months by contacting OnLive CS from the Support section of
the OnLive website. Also, OnLive may suspend an Account, or resume a
suspended Account, under certain conditions specified in the Terms,
including, for example, the expiration or renewal of your Service
membership term. OnLive may suspend your Account if it is inactive (i.e.
you have not successfully logged in to the Service using your Account,
or you have not made any transactions associated with your Account) for
twelve (12) months. You or OnLive may resume (i.e. reactivate) a
suspended Account, if the Account is in good standing and any
outstanding concerns have been addressed, at any time during the
Suspending your Account will temporarily
disable your access to the Service using the suspended Account, and
temporarily disable your access to all content or services on the
Service that the Account would otherwise have access to, if any, whether
purchased or not. Resuming your Account will restore your access to the
suspended Account, and restore your access to content and services that
are still available to you after the time that has elapsed during the
suspension period or provide access to content and services that became
available to you during the suspension. During this time, OnLive will
retain all of your information, including your Personal Information,
just as if the Account is in active use so as to enable OnLive to (a)
keep track of any content or service expirations or activations during
the suspension period, and (b) reactivate your Account if it is resumed
during that twelve (12) month period. During the suspension period you,
or OnLive under certain conditions specified in the Terms of Service,
may close your Account per the terms described below in Closing Your
Account. OnLive will close your Account if it not resumed within twelve
(12) months of the last suspension. If you decide to suspend your
Account, please contact OnLive CS from the Support section of the OnLive
The Terms will continue to apply to you in
full from the time you accept the Terms, as set forth in the “Accepting
and Changing the Terms” section herein, throughout your Account
suspension and until your Account is closed by either you or OnLive.
14. Closing Your Account
CLOSING YOUR ACCOUNT WILL RESULT IN
PERMANENT LOSS OF ACCESS, CONTENT, SERVICES AND VALUE ON THE ONLIVE
SERVICE. ONLIVE URGES YOU TO CONSIDER SUSPENDING YOUR ACCOUNT, PER THE
“SUSPENDING YOUR ACCOUNT” SECTION ABOVE. RATHER THAN CLOSING YOUR
ACCOUNT, PLEASE READ THIS “CLOSING YOUR ACCOUNT” SECTION CAREFULLY
BEFORE PROCEEDING WITH CLOSURE.
You may close your Account at any time,
however, OnLive may close an Account if the Account is suspended and not
resumed within the twelve (12) month maximum suspension period, as
detailed in the “Suspending Your Account” section, above, or under
certain conditions specified in the Terms of Service. Closing your
Account will immediately and permanently terminate your access to the
Service using the closed Account; immediately and permanently terminate
your access to all content, messages, services on the Service that the
closed Account would otherwise have access to or could derive value
from; and result in your immediate and permanent forfeiture of any
coupons, access passes, credits, or anything that may be of value
directly or indirectly associated with the Account, if any, whether
purchased or not. Any remaining payments due on the Account will remain
due and collectable after the Account is closed until they are paid. If
you decide to close your Account, please contact OnLive CS from the
Support section of the OnLive website. Within six (6) months after
closing your Account or after any payments due on the Account are paid,
whichever is later, we will either delete or securely encrypt your
Personal Information except your email address, which we will keep in
order to determine whether to send further marketing-related emails. We
will also keep all financial and transactional records that are required
for accounting, revenue-reporting and tax-reporting purposes. Your
non-Personal Information, such as your Player Tag and password, will not
be deleted. We will also keep information about your use of the
Services or Websites including, but not limited to, data about your
gameplay, session times and durations, and use of the Service, though we
will disassociate such information from your Personal Information.
Please note that even after you remove information from your Account or
delete your Account entirely, information that was shared with other
users may continue to exist on the Service.
If you engage in any repeated or
objectionable misconduct, to be determined in accordance with these
Terms and the OnLive Community Guidelines, OnLive reserves the right to
either suspend or close your Account, in OnLive’s sole discretion,
immediately and without notice as set forth in the “Suspending Your
Account” and “Closing Your Account” sections herein. Please refer to the
OnLive Community Guidelines for examples of objectionable conduct.
The Terms will continue to apply to you in
full from the time you accept the Terms, as set forth in the “Accepting
and Changing the Terms” section herein, until your Account is closed by
either you or OnLive.
Sections 8, 9, 10, 11, 12, 13, 14, 15, 16,
17, 18, 19, 20, 21, 22, 23, and 24 of the Terms shall survive any
expiration or termination of the Terms, or your Account. Expiration or
termination of the Terms or your Account will not affect any accrued
termination of the Terms, or your Account in accordance with its terms.
16. Copyright Policy
OnLive respects the intellectual property of
others and we expect our users to do the same. If you are a copyright
owner or authorized to act on behalf of a copyright owner and believe
that any content or material provided through or in connection with the
Service infringes any copyright you own or for which you are authorized
to act on behalf of the copyright owner, please provide OnLive’s Agent
for Notice with written or electronic notice containing the following:
Notice of Alleged Infringement
1. A description of the copyrighted work(s)
you claim has been infringed.
2. A description of the allegedly infringing
content or material, including the location on the Service of the
allegedly infringing content or material with sufficient detail to
enable us to locate it on the Service.
3. Your address, telephone number, and email
4. Both of the following statements outlined
in the Notice:
a. “I hereby state that I have a good faith
belief that the disputed use of the copyrighted material is not
authorized by the copyright owner, its agent, or the law.”
b. “I hereby state that the information in
this Notice is accurate and that I am the owner of, or authorized to act
on behalf of the owner of, an exclusive right that is allegedly
5. Your full legal name and your electronic
or physical signature.
Please send all of the above to:
c/o OnLive, Inc.
181 Lytton Ave.
Palo Alto, CA 94301
Main: (650) 543-5500
Fax: (650) 543-5595
Or by email to:
Any Personal Information provided to OnLive
pursuant to this section 16 shall be held and processed by OnLive in
17. Disputes and Governing Law and
You agree to handle any disputes between you
and OnLive in accordance with the policy outlined below, the OnLive
As an alternative to litigation, we will consider reasonable requests
to resolve any dispute through dispute resolution procedures such as
arbitration or mediation.
The construction, validity and performance
of these Terms and all non-contractual obligations arising from or
Community Guidelines or the Service shall be governed by English law.
Any action or proceeding brought to adjudicate any dispute related to
Service shall be subject to the non-exclusive jurisdiction of the
English courts, except as otherwise agreed by the parties in writing.
18. Injunctive Relief
If you breach or indicate your intention to
breach the Terms (including, without limitation, in a manner that
infringes, misappropriates or violates any intellectual property or
privacy rights or may cause irreparable or continuing harm), OnLive may
seek injunctive relief against you, or any other remedy available under
19. Representations and Warranties
You represent and warrant that (i) you have
the full power and authority to enter and perform under the Terms, (ii)
the execution and performance of your obligations under the Terms does
not constitute a breach of or conflict with any other agreement or
arrangement by which you are bound, and (iii) the Terms are a legal,
valid, and binding obligation of you, enforceable in accordance with its
terms and conditions.
You agree to defend, indemnify and hold
OnLive, its directors, officers, employees, contractors, affiliates,
suppliers, and licensors (collectively “OnLive Indemnified Parties”)
harmless from any liability, damage, settlement, loss, or expense
(including, without limitation, attorneys’ fees and costs) incurred in
connection with any third-party claim, demand or action (“Claim”)
brought or made against any of the OnLive Indemnified Parties arising
out of or relating to any actions by you that infringes any copyright,
trademark, trade secret, patent or other intellectual property right of
any person or defames any person or violates their rights of publicity
or privacy. If you have to indemnify any of the OnLive Indemnified
Parties under this Section, OnLive and/or the relevant OnLive
Indemnified Parties will have the right to control the defense,
settlement, and resolution of any Claim at your sole expense. You may
not settle or otherwise resolve any Claim without OnLive’s prior express
21. INFORMATION NOTICE
OnLive provides the Service on an “as is”
and “as available” basis, though OnLive will provide the Service to you
with reasonable skill and due care.
OnLive does not represent or warrant that
the Service or its use (i) will be uninterrupted; or (ii) will be free
of inaccuracies or errors. OnLive utilizes the internet, which by its
very nature can be unreliable and unpredictable. Internet connection and
reliability problems may reduce service quality and in some cases make
the service unavailable. In addition to an internet connection, the
service also requires suitable, capable, reliable, and fully operational
devices and software, which are all outside of OnLive’s control.
OnLive is not responsible for any internet,
telephone, wireless, or other fees associated with your use or access of
any service, product, or content through the OnLive Service, including
your use or access of any free service, product, or content through the
22. LIMITATION OF LIABILITY
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO
EVENT SHALL ONLIVE (OR ANY OF ITS AFFILIATES OR LICENSORS) NOR ANY OF
THE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, LICENSORS, CUSTOMERS,
AGENTS OR REPRESENTATIVES OF ONLIVE HAVE ANY LIABILITY OF ANY KIND OR
NATURE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL,
CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING, BUT
NOT LIMITED TO, DAMAGES FOR ANY LOSS OF PROFITS OR LOSS OF ANY
CONFIDENTIAL OR OTHER INFORMATION OR FOR BUSINESS INTERRUPTION) ARISING
OUT OF OR IN ANY WAY RELATING TO YOUR USE OF OR INABILITY TO USE THE
MATERIALS OR THE SERVICE OR OTHERWISE WITH RESPECT TO THIS AGREEMENT,
WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT
LIABILITY OR OTHERWISE, WHETHER OR NOT YOU HAVE ADVISED OF THE
POSSIBILITY OF ANY SUCH LOSS OR DAMAGE.
OnLive will not be liable for any liability
associated with provision of the service or failure to provide the
Service associated with infrastructure (including, without limitation,
the internet), devices and software outside of OnLive’s control such as
computers, displays, televisions, input devices, switches, routers,
firewalls, operating systems, and browsers.
Nothing in these Terms will exclude or limit
either party’s liability for (i) fraud or fraudulent misrepresentation;
(ii) death or personal injury caused by its negligence (iii) under the
indemnity in section 19; or (iv) any other liability which cannot be
excluded by law.
If any provision of the Terms is held
invalid or unenforceable, in whole or in part, such provision shall be
modified to the minimum extent necessary to make it valid and
enforceable. This shall, in no way, affect the validity and
enforceability of all other provisions in the Terms.
You and OnLive are independent parties, and
nothing in the Terms constitutes a partnership or joint venture between
you and OnLive or makes either party the agent of the other. Unless
the OnLive Community Guidelines constitute the entire agreement between
you and OnLive with respect to the subject matter hereof and supersede
all prior or contemporaneous communications, negotiations and proposals
with respect to such subject matter. You may not assign or transfer the
Terms or any of your rights or obligations under the Terms (whether by
operation of law or otherwise) without the prior written consent of
25. Beta Program
OnLive may from time-to-time establish a
Beta program (“Beta”) to give certain users an opportunity to test and
experience additional new features of the Service, pay for and use third
party content, and gather feedback on the new features and content on
the Service. Any and all information made available to you by virtue of
your participation in a Beta, whether furnished to you directly by
OnLive or learned by you through your access to a Beta, is confidential
to OnLive. For example, you may not do any Tweets, Facebook posts, or
other online posting of details, and you may not post or otherwise
communicate screenshots, or videos, or any other content whatsoever
about your participation in a Beta. You may disclose that you are a
participant in a Beta, but you may not discuss with or disclose to any
third party any information you learn through a Beta including your
opinions regarding a Beta. If you are chosen to participate in a Beta,
• Carry out the testing in connection with a
Beta personally. You will not display or provide access to the Service
to any other person.
• Use your best efforts to secure your
system and the Beta against unauthorized access or disclosure.
• Never disclose any information about a
Beta, including, without limitation, any information about the Service
provided or made available by OnLive or any hardware, software,
screenshots, video, or other code or scripts to any third party.
• Never discuss gameplay, quality of
service, or bugs encountered while using a Beta anywhere outside of
OnLive’s provided in-site forums and customer support.
• Delete and destroy all information related
to a Beta in your possession or control immediately upon the request of
OnLive, and confirm deletion and destruction of such information if
requested to do so by OnLive.
OnLive notes that any breach by you of this
confidentiality provision will cause irreparable harm to OnLive, and
OnLive may seek injunctive relief to prevent the breach or threatened
breach of your obligations.
As a Beta user, you agree to:
• Test and evaluate a Beta and/or devices to
be used with the Beta, including, but not limited to, audiovisual
content, features, functionality, capabilities, operation, Service
performance and device performance.
• Inform OnLive of any bugs or other defects
you encounter in connection with the Service.
• Receive all software updates and upgrades,
if any that OnLive sends to the MicroConsole TV adapter, to your
computer, or to any hardware or software associated or used in
connection with the Service, including the OnLive Gamepad Controller.
• Comply with reasonable requests and
instructions from OnLive in connection with Beta, which may be provided
from time to time during a Beta, including, but not limited to, requests
and instructions to test or evaluate specific aspects of the Service.
• Provide OnLive with your comments,
feedback, evaluations, analyses, suggestions and recommendations
regarding a Beta (“Feedback”), all as voluntarily provided by you or as
may otherwise be requested by OnLive.
Your participation in a Beta is strictly
voluntary and for your enjoyment. While your participation in a Beta is
helpful, you understand that it is not a vital part of the development
of the Service so as to give you any right to compensation or payment.
Participation in one phase of a Beta does not entitle you to
participation in any other phase of a Beta, if any, or to any
compensation or payment with respect to the Service. You acknowledge and
agree that your participation in a Beta (or any phase of a Beta) does
not give you any claim of ownership to any part of the Service.
All Feedback that you provide or make
available to OnLive during a Beta, however communicated by you and
whether at OnLive’s request or not, shall be the sole and exclusive
property of OnLive, and you hereby irrevocably assign to OnLive all of
your right, title and interest in and to such Feedback, including,
without limitation, any and all intellectual property rights in or to
any such Feedback. Without limiting the generality of the preceding
sentence, you agree that OnLive and its successors, assigns and
licensees shall have the perpetual and irrevocable right to reproduce,
modify and otherwise use and exploit all of the Feedback (and any and
all portions and derivatives thereof) in any manner now known or
hereafter devised for any purposes, including, but not limited to, in
connection with the development and exploitation of the Service or any
other product or service, without any compensation or the provision of
any credit to you. You hereby waive all moral rights with respect to all
Feedback and all copyrights therein to and, the extent such moral
rights cannot be waived, you warrant that you will not enforce such
moral rights against OnLive.
All other terms in the OnLive Terms of
Service continue to apply to your participation in a Beta.