Terms of Service - Penny Arcade

Version: 1.3

Effective Date: October 10, 2023

Introduction

PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY ACCESSING OR USING THE SERVICE (AS DEFINED BELOW), YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS DESCRIBED HEREIN AND ALL TERMS, POLICIES, GUIDELINES AND DISCLOSURES INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT USE THE SERVICE.

Acceptance of Terms of Service

These Terms of Service (the “Terms”) govern your (“you” or “user”) access to and use of the services, programs, websites, and software applications, including, without limitation, the websites for Penny Arcade (https://www.penny-arcade.com/), Acquisitions Incorporated (https://www.acq-inc.com/), Penny Arcade Store (https://store.penny-arcade.com), Penny Arcade Forum (https://forums.penny-arcade.com), PMC Fulfillment (https://www.pmcfulfillment.com), (collectively, the “Service”) provided by Penny Arcade, Inc. (“PA,” “we,” or “us”). These Terms do not alter in any way the terms or conditions of any prior written agreement you may have with PA.

By subscribing to, accessing, creating an account on, or otherwise using the Service, and/or accessing any content or material that is made available by PA through the Service, you agree to be bound by these Terms. If you do not agree to these Terms, you must immediately discontinue use of the Service. If you are accessing the Service on behalf of an entity, you represent that you have the authority to, and hereby do, enter into these Terms on behalf of that entity. Your access to and use of the Service and any account you establish in connection with the Service is conditioned on your compliance with these Terms. If PA, in its sole discretion, determines you have failed to comply with any of these Terms, it shall have the right to terminate your access to and use of the Service and any associated account(s) therewith immediately and without notice.

Please note that some features of the Service may be provided under additional and separate legal agreements. If that is the case, when you first participate in or use those Service features, you will be provided an opportunity to review and agree to the terms that govern those Service features. If there is a conflict between these Terms and the specific terms of service for a particular Service feature, the specific, applicable terms will apply.

PA reserves the right to change or modify these Terms or any policy or guideline incorporated herein at any time and in its sole discretion. Any changes or modifications will be effective immediately upon posting of the revisions on the Service. Your continued use of the Service following the posting of such changed or modified Terms will constitute your acceptance of such changes or modifications.

The Penny Arcade Privacy Policy (the “Privacy Policy”), which can be found here: Privacy Policy, describes how PA collects, uses, discloses, and protects your information, including any personally identifiable information, in connection with the Service. The Privacy Policy is hereby incorporated by reference into these Terms and your acceptance of the Terms shall constitute your acceptance of the Privacy Policy.

Ownership of Service and Materials

The Service, and all designs, text, graphics, pictures, videos, information, data, and software contained in or comprising the Service except for the User Content as defined below (collectively, the “Materials”), are the property of PA or PA’s licensors and are protected by U.S. and international copyright, trademark, patent, and other intellectual property laws.

Limited License to Use Service

Subject to your compliance with these Terms, PA grants you a limited, non-exclusive, worldwide, revocable license to make personal, non-commercial use of the Service and the Materials. This license shall remain in effect until and unless terminated by you or PA. You promise and agree that you are using the Service for your own personal, non-commercial use and that you will not redistribute or transfer the Service, the Materials, or any part thereof without express written permission from PA. You agree to abide by these Terms and not to use the Service, the Materials, or any part thereof in any manner not expressly permitted by these Terms. Except for the rights expressly granted to you in these Terms, PA grants no right, title, or interest to you in the Service or the Materials.

Any PA software applications of the Service are licensed, not sold, to you, and PA and its licensors retain ownership of all copies of the PA software applications even after installation on your personal computers, mobile handsets, tablets, and/or other relevant devices. Third party software (for example, open source software libraries) included in the PA Service are licensed to you either under these Terms or under the relevant third-party software library’s license terms as published in the help or settings section of the application and/or on our website.

Conditions of Use

In order to use the Services, you must (a) be at least 18 years old or the legal age of majority, whichever is greater, or (b) if you are under the legal age majority in your country of residence, only use the Services under the supervision of a parent or legal guardian who agrees to be bound by these Term.

When you register for an account you must (a) provide accurate and complete information, and (b) update such information from time to time as necessary to keep your registration information current and accurate. By establishing an account, you represent and warrant that you have the right to, and are authorized to, provide the information you provide when you register for the account. You are responsible for maintaining the confidentiality of your account information and password and for restricting access to such information and to your computer. All activities that occur under your account or password will be your responsibility.

In using the Service, you agree not to engage in any of the following activities: (a) any resale or commercial (non-personal) use of the Service or the Materials therein; (b) the distribution, public performance or public display of any of the Materials; (c) any modification or derivative use of the Service or the Materials, or any portion thereof; (d) any use of automated means, including spiders, robots, crawlers, data mining tools, or the like to download data from the Service; (e) the download (other than page caching) of any portion of the Service, the Materials, or any information contained therein, except as expressly permitted; (f) any attempt to gain unauthorized access to PA’s servers or computer systems or to engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of, any part of the Service; (g) the collection or harvesting of any personally identifiable information, including, but not limited to, company names, domain names or account names, from the Service, or the use of communication systems provided by the Service for any commercial solicitation purposes; (h) the use of any portion of the Service as a destination linked from any unsolicited bulk messages or unsolicited commercial messages; (i) any use of the Service or the Materials other than for their intended purpose; or (j) making the Service available to third parties without permission.

User Content

Some features of the Service may include functionality enabling you to post content, such as posts, profiles, notes, messages, photos, and videos (“User Content”) that may be made available to PA and/or other users of the Service. PA has the right to refuse any User Content. You agree that PA, at its sole discretion, has the right to screen, reject, or remove any User Content, or any portion thereof, posted using the Service that infringes PA’s or any third party’s intellectual property or other rights, violates these Terms or our other policies, or is otherwise objectionable. PA reserves the right to disclose any User Content as necessary to satisfy any applicable law, regulation, legal process or governmental request. PA has the right to suspend or terminate the Service at any time without preserving your User Content.

In using the Service, you agree not to post any User Content that (a) is false, deceptive, deceitful, misleading, unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, harmful to minors, fraudulent or otherwise objectionable; (b) would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law; (c) may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party; (d) impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity; (e) contains private or confidential information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers; (f) contains viruses, spyware, malware, corrupted data or other harmful, disruptive or destructive files; (g) in the sole judgment of PA, may expose PA to any harm or liability of any type; or (h) harasses, degrades, intimidates or is hateful toward an individual or group of individuals for any reason and especially on the basis of religion, gender, sexual orientation, race, ethnicity, age or disability.

By posting User Content, you grant PA and its affiliates a perpetual, irrevocable, worldwide, royalty-free, freely transferable and sub-licensable (through unlimited levels of sublicense) non-exclusive right to use, reproduce, modify, transmit, publish, display, distribute, and create derivative works of such User Content. You represent and warrant that: (a) you own and control all of the rights to the User Content that you post or you otherwise have the right to post such User Content and to grant the rights granted herein; (b) the User Content is accurate and not misleading; and (c) distribution of the User Content you supply in accordance with your direction does not violate these Terms of Use and will not violate any rights of or cause injury to any person or entity. You hereby waive any moral rights you may have in such User Content under the laws of any jurisdiction. You hereby agree that User Content is provided on a non-proprietary and non-confidential basis.

Charges and Billing

PA makes certain merchandise available for purchase via its online store. PA also charges a fee for certain products and program services associated with the Service. You must provide a valid credit card number when you order a paid PA product or service. You represent and warrant that you are authorized to use such credit card, and you agree to pay all charges incurred using your account. You agree that we may pass your credit card information and related personally identifiable information to our designated service provider(s) for their use in charging you for the merchandise or other products you order. All charges are exclusive of sales and other taxes and you are responsible for payment of any applicable taxes (other than taxes on PA income). We reserve the right to accept or reject orders for any reason. Price and availability of products and services are subject to change without notice (unless you have purchased an ongoing subscription to a PA product or service, in which case the subscription price paid by you for such service shall apply during the term of such subscription). You agree that any payment submitted by you for PA products or services is submitted on behalf of yourself, without expectation of any reimbursement by third-party payers.

PA may offer paid service plans which provide for ongoing services over a specified period of time (for example, annually). Any such plan shall automatically renew at the end of the stated service period (and again at the end of any subsequent renewal period) at the then-current renewal price until cancelled. You agree that we may charge any unpaid fees to you through the payment method you provided during registration, and/or we may send you a bill for such unpaid fees.

Trademarks

All PA trademarks, service marks, trade names, logos, domain names, and any other features of the PA brand are the sole property of PA or its licensors. These Terms do not grant you any rights to use any PA trademarks or brand features whether for commercial or non-commercial use.

PA respects the intellectual property rights of others and expects users of the Service to do the same. We will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to us. If you believe that your copyrighted materials have been copied in a way that constitutes copyright infringement, please provide us with the following information: (i) a physical or electronic signature of the copyright owner or a person authorized to act on their behalf; (ii) identification of the copyrighted work claimed to have been infringed; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (iv) your contact information, including your address, telephone number, and an email address; (v) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) 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 copyright owner.

We reserve the right to remove content alleged to be infringing without prior notice and at our sole discretion. In appropriate circumstances, PA will also terminate a user’s account if the user is determined to be a repeat infringer. Our designated copyright agent for notice of alleged copyright infringement appearing in connection with the Service is:

Beth Damis

Penny Arcade, Inc.

9660 153rd Ave NE
Redmond, WA 98052

Phone: 425-553-1377

Email: dmca@penny-arcade.com

Third Party Content

PA or its users or vendors may provide links to web pages and content of third parties as a service to those interested in such links and content, and PA may post third-party content or allow users to post their content. PA does not monitor or have any control over any third-party content or third-party web sites. PA does not endorse or adopt any third-party content or third-party website and can make no guarantee as to its accuracy or completeness. PA does not represent or warrant the accuracy of any information contained therein and undertakes no responsibility to update or review any third-party content or third-party websites. You understand that by using the Services you may be exposed to content that you may find offensive, indecent or objectionable and that you use links, third party content and third-party websites at your own risk. When you leave the PA Services, you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any website or services to which you navigate from the PA Services.

PA is not the publisher or author of third-party content. It is a passive service for storage and dissemination of the ideas and opinions that PA users and vendors may choose to post. PA does not screen works before they are posted, and no prior approval is required for posting. PA’s activities are subject to the protections of Section 230 of the Communications Decency Act and the safe harbor provisions of Section 512 of the Digital Millennium Communications Act.

Warranty and Disclaimers

THE SERVICE IS PROVIDED FOR INFORMATIONAL AND ENTERTAINMENT PURPOSES ONLY. THE SERVICE IS NOT INTENDED FOR ANY PARTICULAR PURPOSE. RELIANCE ON ANY INFORMATION PROVIDED BY THE SERVICE IS SOLELY AT YOUR OWN RISK AND YOU ASSUME FULL RESPONSIBILITY FOR THE USE OF THE INFORMATION.

THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. PA DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE INFORMATION, CONTENT OR MATERIALS OF THE SERVICE. PA DOES NOT REPRESENT OR WARRANT THAT MATERIALS, INCLUDING THE INFORMATION AVAILABLE IN OR ON THE SERVICE, ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. PA IS NOT RESPONSIBLE FOR ERRORS OR OMISSIONS IN ANY INFORMATION OR MATERIALS CONTAINED IN OR ON THE SERVICE OR ACCESSED THROUGH THE SERVICE. WHILE PA ATTEMPTS TO MAKE YOUR ACCESS AND USE OF THE SERVICE SAFE, PA CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICE OR ITS SERVER(S), OR ANY CONTENT OR MATERIALS OF THE SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND NEUTRALIZE VIRUSES, SPYWARE, MALWARE, AND OTHER HARMFUL OR OTHERWISE UNDESIRABLE COMPONENTS WHEN ACCESSING THE SERVICE.

Limitation of Liability

IN NO EVENT SHALL PA OR ANY OF ITS AFFILIATES, INDEPENDENT CONTRACTORS, SERVICE PROVIDERS OR CONSULTANTS, OR ANY OF THEIR RESPECTIVE DIRECTORS, EMPLOYEES OR AGENTS, BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY RELATED TO OR CONNECTED WITH ANY USE OF THE SERVICE OR THE MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SERVICE, INCLUDING WITHOUT LIMITATION ANY DAMAGES, LOSS OR INJURY CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM PA, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO PA’S SERVICE OR PA’S RECORDS. THE AGGREGATE LIABILITY OF PA, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING IN ANY MANNER TO THE USE OF THE SERVICE, SHALL NOT EXCEED ANY FEES YOU PAID, IF ANY, TO PA FOR ACCESS TO OR USE OF THE SERVICE WITHIN THE LAST TWELVE (12) MONTH PERIOD.

IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 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.”

Indemnification

You agree to defend, indemnify and hold harmless PA, its affiliates, independent contractors, service providers and consultants, and each of their respective directors, employees, and agents, from and against any claims, damages, costs, liabilities, and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or related to your access or use of the Service, including without limitation any actual or threatened suit, demand, or claim arising out of or relating to the User Content, the information supplied to you by PA, your conduct, your violation of these Terms, or your violation of the rights of any third party.

Dispute Resolution

Any controversy or claim between the parties arising out of these Terms or any use of the Service shall be determined by one disinterested arbitrator in binding arbitration pursuant to the Commercial Arbitration Rules and the Supplementary Procedures for Online Arbitration of the American Arbitration Association (the “AAA”). The selected arbitrator shall be experienced in agreements for information technology services, either as an attorney or as an information technology professional. If the parties fail to appoint an arbitrator within forty-five (45) days of the institution of the arbitration, the AAA shall select the arbitrator promptly thereafter. Any requests for accelerated, emergency, or preliminary relief shall be submitted pursuant to the AAA’s Optional Rules for Emergency Measures of Protection. If any such requests are made before an arbitration panel is empaneled, the AAA shall appoint one disinterested arbitrator as an arbitration panel to immediately hear and decide such request. The arbitration panel shall have the right to grant interim awards. Testimony shall be permitted by telephone, video conference and other forms of real-time communications. If the arbitrator requires in-person hearings, the hearings shall be held in Seattle, Washington. The arbitral award will be final and binding, and may be entered and enforced in any court of competent jurisdiction. In no event shall any claim, action or proceeding related in any way to the Service be instituted more than two (2) years after the cause of action arose.

Consent to Receive Emails and Notice

As long as you maintain an account, you may not "opt out" of receiving account-related emails from PA. The parties hereto may give legal notice by means of email, which email shall be considered delivered when sent. PA’s email address for purposes of notice shall be cs@penny-arcade.com or such other address as is provided by PA to you via email at your notice address and your address for the receipt of notices pursuant to these Terms shall be the current email address listed in your account profile or any email address specified by you upon purchasing PA merchandise or products. You also agree, unless you opt out, to receive marketing emails related to the Services. You may opt out of receiving marketing emails related to the Services at any time.

Waiver of Jury Trials and Class Actions

BY ENTERING INTO THESE TERMS, YOU AND PA ACKNOWLEDGE AND AGREE TO WAIVE CERTAIN RIGHTS TO RECEIVE A JURY TRIAL OR TO PARTICIPATE AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLAIM ON A CLASS OR CONSOLIDATED BASIS OR IN A REPRESENTATIVE CAPACITY.

Applicable Law

These Terms and the resolution of any dispute related to these Terms or the Service shall be governed by and construed in accordance with the laws of the State of Washington, United States of America, without giving effect to that state’s principles of conflicts of laws. The federal and state courts of the State of Washington shall have exclusive jurisdiction over all claims, and you hereby consent to the personal jurisdiction and venue of these courts for such claims.

Severability

If any of these Terms should be determined to be invalid, illegal or unenforceable for any reason by any court of competent jurisdiction then such term shall be enforced only to the extent it is enforceable and the remaining terms shall survive and remain in full force and effect and continue to be binding and enforceable.

Non-assignment

Neither party may assign this agreement without the written consent of the other and any attempt to do so shall be void, except that this agreement may be assigned by either party as part of a merger or acquisition of substantially all of the assets or stock of the assigning party without such written consent.

Relationship

You agree that no joint venture, partnership, employment, or agency relationship exists between you and PA.

Waiver

No waiver of any term, provision or condition of these Terms, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by the party making the waiver.

Force Majeure

If the performance of any part of these Terms by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either party, that party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes.

Entire Agreement

These Terms, together with the Privacy Policy, constitutes the complete and exclusive statement of the agreement between the parties with respect to the use of the Service and any acts or omissions of PA, and supersedes any and all prior or contemporaneous communications, representations, statements and understandings, whether oral or written, between the parties with respect to the subject matter thereof.