End User License Agreement (EULA)
End User And Seller Agreement
Orebyte, and its affiliates and related companies (collectively "Orebyte"), operate Orebyte.com. The terms and conditions set forth herein (the "Terms") constitute a legally binding agreement between Orebyte and you ("You" or "Your") regarding the terms on which Orebyte offers You access to its Website and Service. Your use of the Website or Service constitutes acceptance of these Terms.
1. "Client Application" refers to Orebyte software available for download at the Orebyte web site or any other authorized download site, which allows Members to purchase and download all Content published at Orebyte. Client Application also refers to any software application that allows Members to download, purchase, create, alter or otherwise modify Content for use within a video game.
2. "Content" refers to any material published at Orebyte including but not limited to wire files, models, textures, plug-ins, video games, video game modifications, motion files, collections, packages, materials, scripts, shapes, custom UI skins, tutorials, frequently asked questions, words, music, films, images, and software.
3. "For Sale" includes all Content that requires a purchase of license rights.
4. "Incorporated Content" refers to Content that cannot be extracted from an application or product and used as stand-alone Content without the use of reverse engineering tools or techniques. For avoidance of doubt, Incorporated Content is the use of Content that is not intended to allow further distribution of the Content outside of the application or product containing the Incorporated Content.
5. "Member" refers to any person who creates a user account at Orebyte.
6. "Service" refers to transmission, license, or purchase of Content to and from Orebyte via the Orebyte Website, a Client Application, or any approved web portal either currently in existence or in the future.
7. "Valid Sale" refers to a sale of license rights in Content or other property via Orebyte.
8. "Seller" refers to Orebyte.
II. License Agreement Between Seller and Member
A. License Grant for transmission of Content from Seller to Member
For any transmission of Content from a Seller to another Member, whether the transmission was the result of a license or free sample download, the following terms apply unless more restrictive terms are specified in the area provided by Orebyte for custom license terms:
Unless explicitly provided for in custom license terms set forth in the area provided by Orebyte and which must be subject to acceptance by Member before or at the point of sale, the Seller retains, subject to any license agreement between the Seller and Orebyte, copyright in Content purchased or downloaded by any Member via Orebyte. In using the Orebyte systems and Website, you agree that any additional EULA, license, custom license, or Seller requirements inserted into Seller products in any area outside that explicitly provided by Orebyte are invalid, void ab initio, and without effect as they relate to those purchases effective November 11, 2013.
2. Valid License.
Any license rights relating to Content For Sale via Orebyte are contingent upon the transfer of money from the Member to the Seller. All license rights terminate immediately and without notice if a sale is reversed for any reason.
3. Rights Granted.
For any Member who purchases or obtains any type of Content from Orebyte, for free distribution or by sale, the following terms apply:
Seller hereby grants Members, by the act of delivering Content to Members, grant a non-exclusive, worldwide, license in any medium now known or hereinafter invented to: (a) reproduce, set prices for, sell, and distribute net proceeds from any sale, in whole or in part on Seller’s behalf; and to publicly perform, publicly display, digitally perform, or transmit for promotional and commercial purposes; (b) create and use samples of the Content for the purpose of demonstrating or promoting Seller products or services or those of Orebyte; (c) use any trademarks, service marks or trade names incorporated in the Content in connection with Seller material; and (d) use the name and likeness of any individuals represented in the Content only in connection with Your material.
The Seller grants to the Member who either purchases license rights to Content via a Valid Sale, or downloads freely available Content by the Seller, a non-exclusive, worldwide, license in any medium now known or hereinafter invented to: (a) reproduce, post, promote, license, sell, publicly perform, publicly display, digitally perform, or transmit for promotional and commercial purposes; (b) use any trademarks, service marks or trade names incorporated in the Content in connection with Seller material; and (c) use the name and likeness of any individuals represented in the Content only in connection with Your material. The Member license to Content in this paragraph is limited to Incorporated Content. Such use or republication, including sale or distribution of Content that is not Incorporated Content is prohibited. For illustration, approved distribution or use of Content as Incorporated Content includes, but is not limited to:
(i) As rendered imagery (still or moving), except as limited by II(A)(4)(b); distributed as part of a feature film, broadcast, or stock photography or other stock media; that contain multiple elements such that the Content is a minority part of the overall composition..
(ii) As purchased by a game’s creators as part of a game if the Content is contained inside a proprietary format and displays inside the game during play, but not for users to re-package as goods distributed or sold inside a virtual world.
(iii) As Content published within a book, poster, t-shirt or other item.
(iv) As part of a physical object such as a toy, doll, or model.
Member understands and agrees that certain Content may contain third party copyrighted or trademarked material and will require additional licensing, permissions, releases, or rights clearance for any non-editorial use. Member and their legal advisors should consider this and obtain such rights, if necessary, before purchasing, downloading or using any Content.
4. Rights Not Granted.
Member understands and agrees that Member is prohibited from:
(a) resale or redistribution by the Member of any Content obtained from Orebyte, whether For Sale or freely available for download, whether part of a Valid Sale or not, unless it is used as Incorporated Content as licensed above;
(b) selling, distributing, or licensing stock photography or stock media (or collection thereof) that features any Incorporated Content, whether For Sale or freely available for download, through an online stock photography/stock content clearinghouse website;
(c) any other distribution that would require a written grant of rights greater than that contained in paragraph 3 above. Member understands that all other rights or sub-divisions of rights generally included in copyright are excluded from this license and remain the property of Seller.
5. Returned Content.
In the event a Member returns any Content, whether acquired by Valid Sale or freely available for download, all license rights granted herein terminate and the Member must immediately destroy any and all copies contained on any type of media under the control or possession of the Member.
B. General Terms
In addition to the above terms that apply to certain contexts, the following terms apply to all types of Content.
Seller retains ownership of the copyrights and all other rights in Seller Content, subject to the non-exclusive rights granted to us under this agreement. Seller is free to grant similar rights to others during and after the term of this agreement.
The license grant contained in this agreement can be terminated using the guidelines below. Orebyte reserves the right, notwithstanding the guidelines below, to terminate this agreement at any time and without. This agreement may be terminated at any time by either party upon written notice via email. Nothing in this agreement shall be construed to mean that the Seller may not modify or delete Content from the website or client application, as part of general maintenance, which may include Members accounts.
3. Representations and Warranties.
Seller represents and warrants that: (a) the Content is original work, and contains no copyrighted material of any kind that Seller is not the exclusive owner of, including but not limited to: music and/or synchronization rights, images (moving or still) of any kind, writings of any kind, and model clearances/releases; (b) Seller has full right and power to enter into and perform this agreement, and have secured all third party consents necessary to enter into this agreement; (c) the Content does not and will not infringe on any third party's copyright, patent, trademark, trade secret or other proprietary rights, rights of publicity or privacy, or moral rights; (d) the Content does not and will not violate any law, statute, ordinance or regulation; (e) the Content is not and will not be defamatory, libelous, pornographic, obscene or evocative of racial hatred of any kind; (f) the Content does not and will not contain any viruses or other programming routines that detrimentally interfere with computer systems or data; (g) the Content does not contain any material that, as a condition of use, requires additional license restrictions such as requiring the publication of source code or Content that limits commercial exploitation of Incorporated Content; and (h) all factual assertions that Seller has made and will make to us are true and complete. Seller agrees to execute and deliver documents to us, upon our reasonable request, that evidence or effectuate our rights under this agreement.
4. Determining Type of Content.
Orebyte implements and maintains business practices which enable us to accurately categorize Content. If Orebyte makes an error in good faith, however and consequently exceed our license rights, Seller’s sole and exclusive remedy will be for us to take all reasonable steps to promptly correct the error as soon as Orebyte becomes aware of the error.
5. Confidential Marketplace Information.
Member may have access to certain reports, records, and other business information available only to Members. Such information is the confidential information of Orebyte and should be treated as confidential. Member should not disclose such confidential information and should use reasonable physical and electronic security measures to safeguard such confidential information.
III. Orebyte Website and Orebyte Client Application's End User License Agreement
YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE USING THE OREBYTE WEBSITE AND/OR A OREBYTE CLIENT APPLICATION, WHICH CAN BE DOWNLOADED FROM THE OREBYTE WEB SITE OR AFFILIATE’S SITE, ALONG WITH ANY ACCOMPANYING DOCUMENTATION, AND THE TERMS AND CONDITIONS OF THE OREBYTE SERVICES.
YOUR USE OF OREBYTE SERVICES MEANS THAT YOU ACCEPT THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS YOU SHOULD NOT USE THE OREBYTE SERVICES. BY INSTALLING, DOWNLOADING, COPYING A OREBYTE CLIENT APPLICATION, OR OTHERWISE USING OREBYTE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS AND CONDITIONS, UNDERSTAND THEM, AND AGREE TO BE BOUND BY THEM. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU SHOULD NOT USE THIS CLIENT APPLICATION OR OREBYTE SERVICES.
1. LICENSE TO WEBSITE AND OREBYTE CLIENT APPLICATION.
The Orebyte Client Application and Website are copyrighted and protected by law and international treaty. You may download the Orebyte Client Application through a web browser or install onto a single computer and use the Website for Your personal, non-commercial internal use only, unless specifically licensed to do otherwise by Orebyte. This is a license, not a transfer of title, and You may not nor permit anyone else to (a) modify the Website or Orebyte Client Application or use either for any commercial purpose or public display, performance, sale or rental; (b) de-compile, reverse engineer, or disassemble, modify, or create derivative works based on the Orebyte Client Application, Website, Service or the associated documentation in whole or in part; (c) remove any copyright or other Orebyte proprietary notices; (d) transfer the Orebyte Client Application to another person; (e) mine, hack, spider, or survey the Website, Orebyte Client Application, or Service; (f) use the Service for market research, or similar activity; (g) copy any proprietary information or ideas; (h) transmit spam, bulk or unsolicited communications; (i) pretend to be Orebyte or someone else, or spoof Orebyte's or someone else's identity; (j) forge headers or otherwise manipulate identifiers (including URLs) in order to disguise the origin of any Content transmitted through the Services; (k) misrepresent Your affiliation with a person or entity; (l) disrupt the normal flow of dialogue or otherwise act in a manner that negatively affects other users' ability to use the Website or Client Application; (m) engage in activities that would violate any fiduciary relationship, any applicable local, state, national or international law, or any regulations having the force of law, including but not limited to attempting to compromise the security of any networked account or site, operating an illegal lottery or gambling operation, stalking, or making threats of harm; (n) collect or store personal data about other users unless specifically authorized by such users; or (o) collect or store Website or Client Application data for any other purpose except as explicitly allowed herein.
You agree to prevent any violations of these Terms, including the licensing terms for the Orebyte Client Application, Website, or Service. Any violation of Terms, including the licensing terms above can lead to account cancellation and a revocation of all licenses.
The Orebyte Client Application and all Orebyte information on the Website is copyrighted proprietary material of Orebyte and may not be copied, reproduced, modified, published, uploaded, posted, transmitted, or distributed in any way, without Orebyte's prior written permission. Except as expressly provided herein, Orebyte and its suppliers do not grant any express or implied right to You under any patents, copyrights, trademarks, or trade secret information of Orebyte or its suppliers.
3. ACCOUNT INFORMATION.
In consideration of Your use of the Client Application or Website, You agree to: (a) provide accurate, current, and complete Member account information about You as may be prompted by the registration and/or login form on the Website (the "Registration Data"); (b) maintain the security of Your password and identification; (c) maintain and promptly update the Registration Data, and any information You provide to Orebyte, to keep it accurate, current and complete; and (d) accept all risks of unauthorized access to information and Registration Data. You have sole responsibility for adequate protection and backup of data and/or equipment used in connection with the Client Application and Website.
4. FORUMS AND POSTINGS.
You are entirely responsible for all Content that You upload, post or otherwise transmit via the Client Application or Website. You must at all times comply with the Forums Code of Conduct. In addition to the Code of Conduct, and without limiting same, You agree not to upload, post or otherwise transmit via the Client Application or Website Content that: (a) is inaccurate, harmful, obscene, pornographic, defamatory, racist, violent, offensive, harassing, or otherwise objectionable to Orebyte or other users of the Website; (b) includes unauthorized disclosure of personal information; (c) violates or infringes anyone's intellectual property rights; or (d) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment. Orebyte reserves the right to edit or remove Content that violates these Terms or that contains third-party commercial advertisements.
You agree that for Content posted on the Website Forums, Orebyte shall be free to use or disseminate such Content on an unrestricted basis for any purpose, and You grant Orebyte and all other users of the Website an irrevocable, worldwide, royalty-free, nonexclusive license to use, reproduce, modify, distribute, transmit, display, perform, adapt, resell and publish such Content (including in digital form). You represent and warrant that You have proper authorization for the worldwide transfer and processing among Orebyte, its affiliates, and third-party providers of any information that You may provide on the Website.
5. TERMINATION OF THIS LICENSE.
Orebyte may terminate this license at any time if You are in breach of these terms and conditions of use, as judged in its sole discretion. Termination of this license is in addition to its other rights and remedies available at law or equity and those rights are reserved. Upon such termination You must agree to immediately destroy all copies of the Orebyte Client Application and all of its accompanying documentation.
IV. General Terms Applicable to all Members and other Parties Using Orebyte in Any Way
You agree to indemnify and hold Orebyte and its subsidiaries, affiliates, shareholders, officers, directors, agents, licensors, licensee, suppliers, alliance members, other partners, employees and representatives ("Orebyte Parties") harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to, or arising out of Your Content, Your use of or connection to the Website (including any use by You on behalf of Your employer), Your use of the Orebyte Website or Orebyte Client Application, Your violation of the Terms, or Your violation of any rights of another.
2. MODIFICATION AND TERMINATION OF SERVICES; AMENDMENT OF TERMS.
Orebyte reserves the right at any time to modify, suspend or terminate the Services (or any part thereof), and/or Your use of or access to them, with or without notice. Orebyte may also delete, or bar access to or use of, all related information and files. Orebyte will not be liable to You or any third-party for any modification, suspension, or termination of the Services, or loss of related information. Orebyte may amend these Terms at any time without notice, as all terms and conditions will be posted on this URL and should be consulted by You prior to use.
3. DISCLAIMER OF WARRANTIES.
YOUR USE OF THE WEBSITE AND THE OREBYTE CLIENT APPLICATION ARE AT YOUR SOLE RISK UNLESS OTHERWISE EXPLICITLY STATED. THE WEBSITE AND CLIENT APPLICATION, INCLUDING THE INFORMATION, SERVICES AND CONTENT (AS DEFINED ABOVE), ARE PROVIDED ON AN "AS IS" "AS AVAILABLE" AND "WITH ALL FAULTS" BASIS. OREBYTE DISCLAIMS ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES OF ANY KIND, INCLUDING ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. OREBYTE MAKES NO REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES AS TO THE USEFULNESS QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF THE WEBSITE OR CLIENT APPLICATION.
OREBYTE MAKES NO WARRANTY OR REPRESENTATION THAT: (a) THE WEBSITE OR CLIENT APPLICATION WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (b) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE OR USE OF CLIENT APPLICATION WILL BE ACCURATE OR RELIABLE; (c) THE QUALITY OF ANY PRODUCTS, SERVICES, CONTENT, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED FROM THE WEBSITE OR WITH THE CLIENT APPLICATION WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS; OR (d) ANY ERRORS IN THE WEBSITE OR CLIENT APPLICATION WILL BE CORRECTED.
OREBYTE MAKES NO WARRANTIES EITHER EXPRESS OR IMPLIED IN CONJUNCTION WITH ANY CONTENT PUBLISHED AT OREBYTE. OREBYTE WILL NOT BE LIABLE TO A MEMBER OR ANY OTHER THIRD PARTY CLAIMING THROUGH IT FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR RELATING TO THE USE OF EITHER THE OREBYTE WEBSITE, THE OREBYTE CLIENT APPLICATIONS OR ANY CONTENT PUBLISHED AT OREBYTE, WHETHER FRAMED AS A BREACH OF WARRANTY, IN TORT, CONTRACT, FAILURE OF ESSENTIAL PURPOSE, OR OTHERWISE.
OREBYTE DOES NOT GUARANTEE THE ACCURACY OR COMPLETENESS OF SPECIFICATIONS ASSOCIATED WITH THE CONTENT, INCLUDING BUT NOT LIMITED TO, MEASUREMENTS, WEIGHT, DURABILITY, STRENGTH, MATERIALS, GENERAL PHYSICAL PROPERTIES, GENERAL CHEMICAL PROPERTIES, REGULATORY COMPLIANCE, OR OTHER ENGINEERING OR CONSTRUCTION ATTRIBUTES.
YOU ASSUME ALL RISK FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM USE OF THE WEBSITE OR CLIENT APPLICATION OR BY OBTAINING ANY CONTENT FROM THE WEBSITE, INCLUDING ANY DAMAGES RESULTING FROM COMPUTER VIRUSES.
4. LIMITATION OF LIABILITY.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE OREBYTE PARTIES SHALL NOT LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, USE, DATA, ELECTRONICALLY TRANSMITTED ORDERS, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR IN CONNECTION WITH THE CLIENT APPLICATION OR WEBSITE, EVEN IF THE OREBYTE PARTIES HAVE PREVIOUSLY BEEN ADVISED OF, OR REASONABLY COULD HAVE FORESEEN, THE POSSIBILITY OF SUCH DAMAGES, HOWEVER THEY ARISE, WHETHER IN BREACH OF CONTRACT OR IN TORT (INCLUDING NEGLIGENCE), INCLUDING WITHOUT LIMITATION DAMAGES DUE TO: (a) THE USE OF OR THE INABILITY TO USE THE CLIENT APPLICATION OR WEBSITE; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED, OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO, THROUGH OR FROM THE CLIENT APPLICATION OR WEBSITE; (c) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE WEBSITE, INCLUDING WITHOUT LIMITATION UNAUTHORIZED ACCESS TO OR ALTERATION OF TRANSMISSIONS OR DATA, MALICIOUS OR CRIMINAL BEHAVIOR, OR FALSE OR FRAUDULENT TRANSACTIONS; OR (d) CONTENT OR INFORMATION YOU MAY DOWNLOAD, USE, MODIFY OR DISTRIBUTE.
TO THE EXTENT THAT ANY JURISDICTION DOES NOT ALLOW THE EXCLUSION OR LIMITATION OF DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, PORTIONS OF THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY.
5. OTHER TERMS GENERALLY APPLICABLE TO ALL.
A. The Terms constitute the entire agreement between You and Orebyte relating to their subject matter, and cancel and supersede any prior versions of the Terms. No modification to the Terms will be binding, unless in writing and signed by an authorized Orebyte representative. You must not assign or otherwise transfer the Terms or any right granted hereunder. You also may be subject to additional terms and conditions that may apply when You use Orebyte or third-party products or services.
B. You agree that any material breach of these Terms will result in irreparable harm to Orebyte for which damages would be an inadequate remedy and, therefore, in addition to its rights and remedies otherwise available at law, Orebyte will be entitled to equitable relief, including both a preliminary and permanent injunction, if such a breach occurs. You waive any requirement for the posting of a bond or other security if Orebyte seeks such an injunction.
C. Services, Content, and product derived or obtained from this Website may be subject to the U.S. export laws and the export or import laws of other countries. You agree to comply strictly with all such laws and, in particular, shall: (a) obtain any export, re-export, or import authorizations required by U.S. or Your local laws; (b) not use Services, Content, or direct product from this Website to design, develop or produce missile, chemical/biological, or nuclear weaponry; and (c) not provide Services, Content, or direct product from this Website to prohibited countries and entities identified in the U.S. export regulations.
D. You agree to refrain from the practice commonly referred to as "deep linking" whereby You use the Content from Orebyte with any other web site via active linking or data mining.
E. This agreement will be governed by New York law, excluding conflict of law principles. Any action or proceeding arising out of or related to this agreement must be brought in a state or federal court located in New York, New York, and both parties irrevocably submit to the exclusive jurisdiction of such courts. All notices, requests and other communications under this agreement must be in writing (e-mail messages shall be deemed writings).
F. Any notice required by this Agreement or given in connection with it, shall be in writing and delivered by email.
G. Orebyte reserves the right to change the terms of this agreement with or without notice at any time.
H. Member accounts may only be used by the licensee. They may not be transferred or accessed by any other party without the explicit written permission of Orebyte.