 |
Marketplace Agreement
Welcome to the Playspan Marketplace, the marketplace for virtual goods in multiplayer games. This Marketplace Agreement (this "Agreement") describes the terms and conditions for your use of the software and services provided by Playspan in connection with the PlaySpan Client software and Marketplace.
By registering for or using the Marketplace, you agree to this Agreement. If you are an individual using the Services on behalf of a company, you represent and warrant that you have all necessary authority to bind your company to the terms and conditions of this Agreement.
This Agreement was posted on March 13, 2008. It is effective for you: on March 13, 2008 if you are an existing user as of March 13, 2008; and, otherwise, upon your use or registration for the Marketplace.
1. The Marketplace and Virtual Goods
Playspan, Inc. ("Playspan") provides a marketplace ("Marketplace") through which users can buy and sell Virtual Goods, and services related to the Marketplace ("Services", which include the service of providing the Marketplace). A "Virtual Good" is any item that exists within a multiplayer electronic game for which Playspan has been authorized to provide the Marketplace. Virtual Goods include characters, weapons, in-game money, and other in-game items. A Virtual Good is a set of rights to electronic in-game items, as licensed by the Publisher and subject to the Publisher's user agreement.
Playspan does not create or own any Virtual Goods, it merely provides a platform through which to trade them. Each Publisher gives Playspan the right to control transfers of Virtual Goods for real-world money, pursuant to which Playspan provides instructions to publishers to terminate a seller's rights in the transferred Virtual Good and grants those rights to the applicable buyer.
Nothing in this Agreement affects the rights established by the Publisher in Virtual Goods. As used in this Agreement and the Marketplace: to "sell" a Virtual Good means to transfer the licensed right to the Virtual Good in accordance with this Agreement; to "buy" a Virtual Good means to receive the licensed right to the Virtual Good in accordance with this Agreement; to "own" a Virtual Good means to hold the rights granted by the Publisher in the Virtual Good. Regardless of the shorthand use of the terms "buy", "sell", and "own" in this Agreement or in the Marketplace, you do not own any Virtual Goods, you have only a license (granted by the Publisher) to the rights represented by the Virtual Goods.
You acknowledge that you may find content available through the Marketplace to be objectionable, and you agree that Playspan will have no liability for any content not provided by Playspan.
2. Playspan Obligations
Playspan's Services obligations related to the transfer of a Virtual Good are limited to the following:
(1) Playspan's systems will instruct the Publisher's systems to move the Virtual Good (in the state in which it exists at the time of the transfer) from the seller's inventory to the buyer's inventory in the Publisher's systems.
(2) Playspan will charge the buyer's credit card (or other payment method) the applicable amount.
(3) Playspan will retain its fee applicable to the transaction and pay the seller in accordance with the Fees policy described in Section 7.
Playspan will be recorded as the merchant of record with the credit card system for the transfer of the Virtual Good. However, you agree that your agreement to purchase or sell Virtual Goods with another user is solely between you and that other user; Playspan is merely providing the means for the exchange to take place and the payment to be transferred.
3. Points
Playspan may provide to you or otherwise allow you to acquire points. "Points" are a virtual currency that are redeemable by you for Virtual Goods elect to make available in exchange for points. If you obtain points, you agree to the terms and conditions in this Agreement, as well as any additional terms which Playspan may provide when you acquire the points. If you acquire points, you may review how many points you have by checking your points balance via the Client software.
You may obtain points in a variety of ways, including, without limitation, by purchasing points, or by receiving points for using the Playspan service. You can earn points only for actions you actually complete. You may redeem points by using them to purchase Virtual Goods. You remain solely responsible for any tax consequences that may result from your receipt, purchase, acceptance, or control of points.
You do not own points, and points are not your (or any other person's) personal property. Instead, when you obtain points, you have only received a limited license to a digital product. Points have no monetary value. Any points in your account will automatically terminate upon termination of this Agreement. You may not obtain any cash or money in exchange for points, regardless of how you acquired those points. Besides collecting points, the only other use for points is to exchange points for Virtual Goods that Playspan offers for points redemption. Due to local laws or regulations, Playspan may further restrict your points redemption offers based on your state or country of residence.
The Virtual Goods that Playspan makes available to you for redemption of points can change at any time, and Playspan has no obligation to continue making Virtual Goods available for points redemption.
Playspan may cancel, suspend or otherwise limit your access to your points balance if we suspect you have acted in a fraudulent, abusive or unlawful manner with regard to your points. Once points are removed from a user's points balance, Playspan will not reinstate them, except at our discretion. When we cancel, suspend or otherwise limit access to your points balance, your right to use your points balance immediately ceases. In addition, we may, in our discretion, limit your use of points, including applying limits to: the number of points you may have credited to your points balance at one time, the number of points you may redeem within a given time period, and the number of promotion points you may obtain in a single event.
If points are credited to your balance for a transaction or activity that is subsequently voided, canceled or involves a returned item, then Playspan will remove those points from your balance. You are responsible for ensuring that we properly credit points to your points balance. If you believe that you have validly acquired points that have not been credited to your points balance, we will only consider posting those points if you contact us within 6 months after the date you believe you have acquired those points. We may require reasonable documentation to support your claim.
4. Playspan Software
License. When you register for or use the Services, you consent to computer software (hereafter referred to as the "Client") being installed onto your computer or device (your "Hardware"). Subject to the terms and conditions of this Agreement, Playspan grants you a limited, non-exclusive license to download, install, and execute the Client, on one or more items of Hardware under your legitimate control, as necessary to use the Services.
Patches. Playspan may develop patches, updates and modifications to the Client ("Patches"). You acknowledge that you may be required to install Patches to access your Account or the Services. You agree to promptly install any Patches Playspan provides. You hereby consent to Playspan updating the Client remotely (including via an automatic update that does not require additional consent).
Monitoring. You expressly consent to Playspan scanning your Hardware during Patch installs, when the Client is running, and when using the Services, solely to check whether your Hardware is running any programs (including any "addon", "mod", "hack", "sniper", or "cheat") that, in Playspan's sole judgment, (i) enables or facilitates cheating of any type; (ii) allows users to modify or hack the Client or Services in any way not expressly authorized by Playspan; or (iii) intercepts, "mines", or otherwise collects information from or through the Client or Services. In the event that we detect such a program, we may collect (consistent with our Privacy Policy) information about your Hardware and the program, including without limitation your Account name, IP address, details about the program detected, and the time and date the program was detected. Running such a program on your Hardware during Patch installs, when the Client is running, or when using the Services is a material breach of this Agreement.
5. Eligibility and Registration
You may establish an account (your "Account"), and conduct transactions through, the Marketplace if you (i) have an active game account in good standing, (ii) register with a valid credit card on which you are authorized to make charges (or other payment method which Playspan may, at its discretion, make available in the future), (iii) are at least 18 years of age, and (iv) provide Playspan with your name, a valid email address and any other information which Playspan may request in connection with the Marketplace registration and transaction process. Additionally, in order to sell and receive payment through the Marketplace, you must provide Playspan with your valid PayPal® account information.
You agree that you will conduct transactions through the Marketplace solely through Account(s) registered by you and that no other person or entity will have any claim or interest in any Virtual Goods you buy or sell through the Marketplace.
You are not eligible to register for an Account or conduct any transaction through the Marketplace (other than for testing and evaluation purposes) if: (1) you are an employee or contractor (or a member of the immediate family of an employee or contractor) of Playspan or a Publisher that works with Playspan, or (2) you are using an "exempt" account (e.g., an account that is flagged as "no charge") for any Publisher game.
6. Account Security
Your password is the key to your Account. Use unique numbers, letters, and special characters. You are solely responsible for maintaining the security of your Playspan Account(s) and your payment processor accounts. You take full responsibility for all activities that take place through your Account(s). You will keep your password(s) confidential, and safeguard access to your Account(s). You shall not share your Account with any one else, it is personal to you alone. If your password has been compromised for any reason, you should immediately notify Playspan and change your password.
7. Marketplace Policies
All policies and rules posted by Playspan in the Marketplace ("Policies") are hereby incorporated into this Agreement. You agree to all such Policies, including without limitation the following:
Fees. You authorize Playspan to charge you the applicable trading fees (in U.S. Dollars), a current description of which can be accessed at: www.playspan.com/faq/selling_transaction_faq.html. Playspan reserves the right to change the trading fees or charge a listing fee at any time; changes will be applicable to all listings placed on and after the date of any such change. All listing fees are nonrefundable.
Upon Playspan's collection of the sale amount from the buyer for a successful listing, Playspan will deduct its fees and applicable taxes on the service fee, and remit the remainder to the seller in accordance with the following. Playspan will give the seller a choice between receiving: (1) a credit of Marketplace points (and if the seller opts for points, Playspan will credit the points to the seller's Playspan Account), or (2) a cash payment to the seller's PayPal account (and if the seller opts for a cash payment, Playspan or will effect a payment to the seller's PayPal account on the next cycle in Playspan's systems).
Unless otherwise required by law, Playspan will compute and deduct such taxes only on the Playspan fees - not on the full transaction amount. Other than any taxes collected by Playspan, the Seller is responsible for paying all taxes (if any) applicable to the transaction.
Listings. You represent and warrant that you have the Virtual Goods that you list for sale on the Marketplace. Initially, Playspan will offer set-price listings, but may make an auction format available. Depending on the game, you may choose to list Virtual Goods for various durations (as allowed by the Marketplace). Playspan reserves the right to change the listing duration options from time to time. If the Playspan service is down or unavailable when any listing is scheduled to end, the listing will be extended an appropriate amount of time.
Playspan may, in its discretion, limit the number of concurrent active listings for any Playspan Account. The maximum selling price for any listing on the Marketplace is set forth on the fee schedule; Playspan may, in its discretion, change that maximum selling price at any time.
Any Virtual Good that does not sell within the applicable listing period will be returned to your holding area or inventory; you may then return them to the game, or relist them.
Playspan may terminate or suspend any listing at any time, for any reason or for no reason, and without any notice to you or any other person.
When listing a Virtual Good for sale, you promise to sell the Virtual Good for that price, less any amounts deducted by Playspan as described in the fees policies.
As a buyer of a Virtual Good on the Marketplace, you promise that you will pay the applicable amounts for the Virtual Good. You will not to deny or decline any such charge. You must have space in your game account to receive that Virtual Good. If you do not have room for your newly bought Virtual Good, you will need to make room to receive it.
Privacy. Our privacy policy, which is incorporated by reference into this Agreement, can be found at www.playspan.com/privacypolicy.
Outages. Playspan's highest priority is to keep the Marketplace operational, enabling you to access the Marketplace at all times. In cases where the Marketplace experiences an outage or is temporarily unavailable, Playspan will endeavor to restore service as soon as possible. Playspan will attempt to restore all buyers' and sellers' place in the Marketplace, however, Playspan will not be responsible for lost activity during the service outage, including, but not limited to, lost offers, expired items, and failure to sell.
Refunds/Returns. As a Buyer, you agree that there will no refunds or returns, except in exceptional circumstances as determined in PlaySpan's sole discretion. As a Seller you agree that you will accept returns of the Virtual Goods and refund the payment to PlaySpan at the sole discretion of PlaySpan.
8. Restrictions
Marketplace Activity. You promise that (i) you will comply with all provisions of this Agreement, (ii) you will not use or manipulate the Marketplace for any fraudulent activity or purpose, (iii) neither you nor anyone acting on your behalf will engage in any manipulative transaction practices (including, but not limited to, so-called "shill" transactions, using an account to artificially inflate any listing price or the value of any type of Virtual Good, or hoarding Virtual Goods), (iv) you will not interfere with any other user's listing or transaction, (v) you will not use Playspan in violation of any law, regulation or ordinance, (vi) you will not use an invalid or unauthorized credit card, or other payment account (vii) you will not use someone else's account in connection with Playspan, (viii) you will not buy or sell any Virtual Goods for real money or any other real world consideration outside of the Marketplace, or attempt to circumvent paying the Playspan fees, (ix) you will not list or sell any Virtual Goods that are part of a "guild bank" or similar guild or group arrangement, (x) you will not trade, or attempt to trade, any Virtual Goods that the Publisher has designated as non-transferable, and (xi) you will not engage in any fraud or misrepresentation.
Reverse Engineering. Except as expressly provided in Section 4, you may not reproduce, distribute, translate, rent, reverse engineer, derive source code from, modify, disassemble, decompile, or create derivative works based on the Client or any software related to the Services, or remove any proprietary notices or labels on the Client or any software related to the Services. You will not host, provide or develop matchmaking services for the Client or the Services or intercept, emulate or redirect the communication protocols used by Playspan in any way, including without limitation through protocol emulation, tunneling, packet sniffing, modifying or adding components to the Client or the Services, use of a utility program or any other techniques now known or hereafter developed, for any purpose, including without limitation unauthorized network services over the Internet. You will not facilitate, create or maintain any unauthorized connection to the Client or the Services, including without limitation any connection to any unauthorized server that emulates, or attempts to emulate, the Services. All connections to the Client and/or the Services, whether created by the Client or by other tools and utilities, may only be made through methods and means expressly approved by Playspan. Under no circumstances may you connect, or create tools that allow you or others to connect, to the Playspan's proprietary interface other than those expressly provided by Playspan for public use.
Information available through the Marketplace. Although you may keep track of the transactions in which you have been involved, you must give other users a chance to remove themselves from your database and a chance to review what information you have collected about them. You agree to use user information only for: (i) Playspan transaction-related purposes that are not unsolicited commercial messages; (ii) using services offered through Playspan, or (iii) other purposes that a user expressly chooses.
No spam. You are not licensed to add other Playspan users, even a user who has completed a transaction with you, to your mail list (email or physical mail) without their express consent. To report spam or spoof emails to Playspan, please forward the email to support@Playspan.com. You may not use our communication tools to send spam or otherwise send content that would violate this Agreement.
9. Interference With The Marketplace
You agree that you will not (i) use any automated method of accessing, searching or placing offers on the Marketplace, (ii) take any action that imposes or may impose an unreasonable load on Playspan or its infrastructure, (iii) take any action that interferes or attempts to interfere in any manner whatsoever with the operation of the Marketplace, (iv) attempt to bypass methods Playspan may use to prevent or restrict access to the Marketplace, or (v) attempt to access the Services or Playspan's systems beyond the express authorization granted by Playspan.
10. Ownership
All title, ownership rights and intellectual property rights in and to the Client and the software related to the Services and all copies thereof (including without limitation any titles, computer code, themes, objects, concepts, artwork, designs, animations, sounds, musical compositions and recordings, audio-visual effects, methods of operation, moral rights, and any related documentation) are owned or licensed by Playspan. Such software is protected by the copyright laws of the United States, international treaties and conventions, and other laws. Such software may contain materials licensed by third parties, and the licensors of those materials may enforce their rights in the event of any violation of this Agreement.
11. User Breach
You agree that if you do not comply with any of the provisions of this Agreement, Playspan can take any action which it believes is appropriate, including but not limited to suspending or terminating your access to and participation in the Marketplace, suspending or terminating your Account entirely, reporting your conduct to other users or to any Publishers Playspan works with. You hereby consent to Playspan monitoring any activity on the Marketplace, and investigating any suspected breach of this Agreement, and reporting activity to other users, Publishers, or government authorities. In case of fraudulent activity occuring Playspan will hold the seller to account, the sellers of any stolen/hacked/sold item will receive a invoice or Playspan will hold back their payments and refunds
12. Limitation of Liability
In no event shall Playspan, its licensor(s) and each of our and their respective officers, directors, employees and agents, be liable to you or to any third party:
(a) for any lost profits or special, incidental, indirect or consequential damages (however arising, including negligence) arising out of or related to the marketplace, services, your account, or this agreement, to the extent permitted by applicable law, even if we have been advised of the possibility of such damages or loss;
(b) for any misrepresentation or fraud of any seller with respect to virtual goods transferred on the marketplace;
(c) for any loss or damages caused to any Virtual Goods as a result of any action or omission of the applicable Publisher; or
(d) in excess of the greater of (i) $100 and (ii) the amounts paid by you to Playspan in the twelve (12) months prior to any claim.
13. Governing Law
This Agreement shall be governed in all respects by the laws of the state of California in the United States of America, without giving effect to any principles that may provide for the application of the law of another jurisdiction. The U.N. Convention on Contracts for the International Sale of Goods is hereby expressly disclaimed.
14. Disputes between You and Playspan
If a dispute arises between you and Playspan our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and Playspan agree that we will resolve any claim or controversy, at law or equity, that arises out of or relates to this Agreement or our Services (a "claim") in accordance with this section. This Section (Resolution of Disputes) shall not apply to the extent prohibited by applicable law.
Subject to the next paragraph, the parties agree that any claim or dispute one party has against the other party arising under or relating to this Agreement must be resolved exclusively by a court of competent jurisdiction, federal or state, located in the City and County of San Francisco, California, and no other court. Each party agrees to submit to the personal jurisdiction of such courts and to accept service of process from them.
For any claim (excluding claims for injunctive or other equitable relief) where the total amount sought is less than $10,000, the party requesting relief must elect to resolve the claim in a cost effective manner through binding, non-appearance based arbitration. In the event a party elects arbitration, such party shall initiate arbitration through the National Arbitration Forum ("NAF"). NAF and the parties must comply with the following rules: (1) the arbitration shall be conducted by telephone and/or be solely based on written submissions; (2) the arbitration shall not involve any personal appearance by the parties or witnesses unless mutually agreed by the parties; (3) any judgment or award rendered by the arbitrator may be entered in any court of competent jurisdiction. The procedural rules and fees for NAF can be found at: http://www.arb-forum.com/main.aspx?itemID=609&hideBar=False&navID=162&news=3 Playspan will pay for your arbitration fees to the extent those fees exceed the fees that would otherwise be incurred by you for a complaint filed in court.
All claims filed or brought contrary to this Section shall be considered improperly filed. Should you file a claim contrary to this Section, Playspan may recover attorneys' fees and costs up to $1,000, provided that Playspan has notified you in writing of the improperly filed claim, and you fail to promptly withdraw the claim. Similarly, should Playspan file a claim contrary to this Section, you may recover attorneys' fees and costs up to $1,000, provided that you have notified Playspan in writing of the improperly filed claim, and Playspan fails to promptly withdraw the claim. The remedies in this paragraph will not limit any other remedies that either party may have in law or in equity.
15. Disputes between You and other Users
Assistance with Disputes. Playspan may, in its discretion and on a case by case basis, offer to assist users to resolve their disputes. However, you agree that Playspan will have no obligation to do so, and will not be liable to you for any action it takes to help resolve any dispute.
Indemnity of Playspan. You agree to defend, hold harmless, and indemnify Playspan, its subsidiaries, affiliates, officers, agents, and other partners and employees, from any damage, loss, liability, cost, or expense resulting from or relating to any claim by another user related to any action of omission by you.
Release. As a condition of access to the Service, you release Playspan (and Playspan's shareholders, partners, affiliates, directors, officers, subsidiaries, employees, agents, suppliers, licensees, distributors) from claims, demands and damages (direct and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with any dispute (or resolution thereof) you have or claim to have with one or more users of the Services. If you are a California resident, you waive California Civil Code §1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
16. Term and Termination
This Agreement is effective until terminated. You may terminate this Account at any time upon notice to Playspan, in which case, Playspan will use reasonable efforts to terminate your Account within 24 hours. Playspan has the right, at any time for any reason or no reason to suspend your Account or terminate this Agreement without liability to you. If your Account is suspended or terminated for your breach of this Agreement (including delinquent payment), Playspan may suspend or terminate the Account associated with such breach and any or all other Accounts held by you or your affiliates, and your breach shall be deemed to apply to all such Accounts.
Upon any termination of this Agreement, you much delete all copies of the Client, and Sections 12-17 will survive.
17. General
Comply with Laws. You agree to comply with all applicable laws. The Client is subject to applicable export restrictions. You must comply with all export and import laws and restrictions and regulations of any United States or foreign agency or authority relating to the Client and its use. Playspan makes no representation that any aspect of the Service is appropriate or available for use in your jurisdiction.
Waiver. Playspan's failure to act with respect to a breach by you or others does not waive Playspan's right to act with respect to that breach or subsequent or similar breaches. No consent or waiver by Playspan under this Agreement shall be deemed effective unless delivered in a writing signed by a duly authorized officer of Playspan.
Assignment. All or any of Playspan's rights and obligations under this Agreement may be assigned to a subsequent owner or operator of the Services in a merger, acquisition or sale of all or substantially all of Playspan's assets. You may not assign or transfer this Agreement or any or all of your rights hereunder without the prior written consent of Playspan, and any attempt to do so is void.
Interpretation/Severability. The section headings used herein are for convenience only and shall not affect the interpretation of this Agreement. If any provision of this Agreement shall be held to be unlawful, void, or for any reason unenforceable, then in such jurisdiction that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of the remaining provisions.
Notices. Playspan may give legal notice to you by means of a general notice on the Marketplace, electronic mail to your e-mail address on our records for your Account, or by written communication sent by first class mail, postage prepaid, or overnight courier to your address on record for your Account. All legal notices given by you or required under this Agreement shall be mailed to: Playspan, 2953 Bunker Hill Lane, Suite 400, Santa Clara, CA 95054.
Entire Agreement. This Agreement (including all incorporated documents and policies) sets forth the entire understanding and agreement between you and Playspan with respect to the subject matter hereof.
Amendments. We may amend this Agreement from time to time. If we make material changes to the Agreement, we will notify you by sending you an e-mail address to the e-mail address specified in your Account. You agree that such amended Agreement will be effective thirty (30) days after being sent to you, and your continued use of the Services after that time shall constitute your acceptance of the amended Agreement.
Disclosures. The Services are controlled and operated by Playspan from its offices at 2953 Bunker Hill Lane, Suite 400, Santa Clara, CA 95054, United States of America. You may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210. Parental control protections (such as computer hardware, software, or filtering services) that may assist you in limiting access to material that is harmful to minors are commercially available - see [link to Google or Yahoo search results for filtering technologies].
Relationship. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement. There are no third party beneficiaries (including other users) under this Agreement.
No Warranty. The Services are provided on an "as-is" and as available basis. Playspan expressly disclaims any warranties and conditions of any kind, whether express or implied, including, but not limited to, the warranties or conditions of merchantability, fitness for a particular purpose, title, quiet enjoyment, accuracy, or non-infringement.
|
 |
