Thank you for using Games Create. Games Create is a website available at GamesCreate.com that enables the creation of Games and Stories (each referred to herein as a "Game") through the Service. It is also a digital software creation tool as well as a digital software and media distribution platform. It is owned and operated by New Alpha Media Pty Ltd ("Company", "We" or "Us").
This Agreement is a legal document that explains the terms and conditions under which you are provided access to the Service by Company.
1. Users and Publishers
1.1 Users: If you create, play, download, view or otherwise access Games or other content on or from the Service, with or without registering an account ("Account"), you agree to be bound to the terms of this Agreement as a User ("User"). Users affirm that they are over the age of 13 and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in this Agreement. The Service is not intended for children under 13.
1.2 Publishers: If you register an Account and you release, publish, distribute, upload or sell Games or other content on the Service, you agree to be bound to the terms of this Agreement as a Publisher ("Publisher"). Publishers affirm that they either possess legal parental/guardian consent or are more than 18 years of age, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in this Agreement.
2. Grant of a Limited License to Use the Service
Subject to the terms and conditions of this Agreement and your agreement to and continuing compliance with this Agreement, Company hereby grants you a revocable, non-sublicensable, non-transferable, and non-exclusive license to use the Service solely for your own commercial purposes and non-commercial entertainment purposes by accessing it with a web browser or an authorized, unmodified client.
3. Additional License Limitations
The license granted to you in Section 2 is subject to the limitations set forth in Sections 2 and 3 (collectively, the "License Limitations"). Any use of the Service or any Game in violation of the License Limitations will be regarded as an infringement of Company’s copyrights in and to the Service and/or Game. You agree that you will not, under any circumstances:
3.1 use cheats, create cheats, use automation software (bots), mods, hacks, or any other unauthorized third-party software designed to modify the Service, any Game or any Game experience;
3.2 exploit the Service, any part thereof for any commercial purpose, including without limitation (a) to facilitate or communicate any commercial advertisement or solicitation; (b) selling or trading Accounts for the Service;
3.3 make, create or assist in unauthorized connections to any Game or the Service;
3.4 emulate, intercept or redirect the communication protocols used by Company in any way, for any purpose;
3.5 disrupt or assist in the disruption of any Game experience, the Service, by means of disruption of any computer used to support the Service or Game;
3.6 use any unauthorized third-party software that "mines", "data-mines", intercepts, or otherwise collects information from or through any Game or the Service, including without limitation any software that reads areas of RAM used by any Game or the Service;
3.7 allow any third party to use your Account on the Service or for a Game;
3.8 modify, support or cause to be modified any files that are a part of the Service in any way not expressly authorized by Company;
3.9 use the service for commercial purposes other than the purpose of creating Games for sale or distribution.
5. Accessing the Service
5.1 You must be over the age of 13 and fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in this Agreement to use or access the Service, as the Service is not intended for children under 13.
5.2 You may only establish, use or access an Account on the Service if you are 13 years or older and you must not allow anyone under the age of 13 to use or access your Account or the Service. By accepting this Agreement, you hereby represent and warrant that you meet these Account Eligibility requirements. We reserve the right to, at any time, take steps and/or measures to suspend, terminate or otherwise "delete" any Account found to be in breach of these Account Eligibility requirements.
5.3 You may also be required to register an Account on the Service, or have a valid account on a social networking service ("SNS") through which you connected to the Service. By establishing an Account on the Service, you agree to the requirements of providing certain personal information, such as, but not limited to your name, address and e-mail address.
5.4 During the Account creation process, you may be required to submit and select a username and/or password (collectively referred to hereunder as "Login Information"). Your Login Information must not be shared with any third-party. You are responsible for the keeping your Login Information confidential, and in the event of an unauthorized or authorized third-party accessing your Account with your Login Information, you will be responsible for all use and any damages resulting from the use of the Login Information, including but not limited to purchases made.
5.5 You are responsible for any internet connection fees and other additional fees that may incur when using a Game with the Service or accessing the Service.
5.6 You are required to immediately notify Company through our contact e-mail address specified at https://gamescreate.com/contact of any breach of security that you reasonably suspect or become aware of, including without limitation any theft, loss or unauthorized disclosure of the Login Information.
6. Restrictions and Conditions of Use
6.1 You agree that you will not use any Account, Game or the Service to in any way violate any applicable law or regulation.
6.2 You may not misuse the Service. The Service must only be used in the ways expressly permitted by this Agreement. You agree that you will not, without limitation, institute, assist, become involved in or help with (a) any type of attack (such as, denial of service attacks) on the Service, (b) attempt to disrupt the Service, (c) attempt to disrupt any other person's use of the Service, or (d) attempt to gain unauthorized access to the Service, Accounts or computer systems or networks in connection to the Service.
6.3 You agree not to perform prohibited actions including but not limited to (a) uploading viruses or malicious code, (b) posting unlawful, malicious, misleading or discriminatory content, (c) violating copyright, trademark, intellectual property or other legal rights of others, (d) creating false identities or "fake" Accounts, (e) bullying, harassing, defaming, intimidating or threatening others and (f) spamming, repeating messages or uploading or distributing unsolicited messages, contests, surveys or junk email.
6.4 You agree to not "data mine" information or data. You agree that you will not, without limitation, institute, assist, become involved in or help with (a) the mining of any data from the Service, Games or any Account, (b) examine, intercept or observe any communications protocols used by the Service or Game client and (c) use any third-party software which collects data or information from any Game, Account or the Service, including, without limitation, information or data relating to characters, objects, virtual items or other Game data.
6.5 The Service provides interfaces and tools for Users and/or Publishers to upload and generate content and make it available to others, including Games, Media, ratings, reviews, communications, materials and information that is uploaded or transmitted through the Service ("User Generated Content" or "UGC"). You retain all ownership rights in your User Generated Content and grant to Company a perpetual, irrevocable, worldwide, non-exclusive, paid-up, royalty-free, sublicensable and transferable license to use, reproduce, distribute, prepare derivative works of, display, publish, adapt, make available online or electronically transmit, and perform such User Generated Content in connection with the Service and Company’s (and its successors' and affiliates') business. This includes all modified and derivative works thereof. You acknowledge and agree that, to the extent permitted by applicable laws, you hereby waive any moral rights you may have in any User Generated Content.
6.6 By uploading or creating User Generated Content, you represent and warrant that the User Generated Content does not infringe upon the copyright, trademark, patent, trade secret or other intellectual property and/or personality rights of any third party. You further represent and warrant that you will not use or contribute User Generated Content that is unlawful, tortious, defamatory, obscene, invasive of the privacy of another person, abusive, threatening, hateful, harassing, racist or otherwise objectionable or inappropriate. Company may remove any User Generated Content and any related content or elements from the Service at its sole discretion.
6.7 Prohibited content shall not be uploaded, created or distributed on the Service under any circumstances. You agree not to upload, create or distribute on the Service any prohibited content, including but not limited to, anything that would be deemed or rated as "X 18+", "Refused Classification" or "Prohibited Content" by law, or anything that is only sexually explicit content, such as Pornography.
6.8 In order to better serve you, Company may require certain "non-personal" information and will collect such "non-personal" information. You acknowledge and agree that Company has the right to obtain "non-personal" information, without any further notice to you.
6.9 Company does not accept any obligation to monitor, screen, pre-screen, review, flag, filter, moderate or remove any User Generated Content or other content from the Service, though we reserve the right to undertake such actions if necessary. If Company becomes aware of unlawful, harmful or illegal User Generated Content, it will be either denied access to, or deleted.
6.10 You may be able to rate and review User Generated Content or other content, and as such, all ratings and reviews must be provided honestly and constructively.
6.11 Except as otherwise permitted under this Agreement or under applicable law notwithstanding these restrictions, you may not, in whole or in part, copy, reproduce, publish, distribute, translate, reverse engineer, derive source code from, modify, disassemble, decompile or create derivative works based on the Service or any User Generated Content without the prior consent, in writing, of Company. You further agree not to bundle, repackage or create a "collection" of User Generated Content to be sold or redistributed without permission from the creators (the Users and/or Publishers) of the User Generated Content.
7.1 Company may, from time to time, change or modify this Agreement. In this case, Company may provide notice of any such changes or modifications through a special notice, or by contacting you. If you continue to use the Service after thirty (30) days following the aforementioned special notice, your continued use of the Service will mean that you accept the amended Agreement in entirety. If you object to the amended Agreement, you may not continue to use the Service. Please note that those changes or modifications will not likely affect the essential characteristics of the Service.
7.2 At times, updates or modifications to the Service and to the Games may be required, which may require you to download and install the updated Service and/or Games. You acknowledge and agree that Company may update or modify the Service, Games, including any download client software, with or without notifying you.
8. Third Party Features
8.1 A "Facebook Friends" feature may be available for those who register/link to the Service their "Facebook Account". This feature is subject to separate terms and conditions, provided by Facebook Inc. In order to use this feature, you must refer to, read, acknowledge and accept to their terms and conditions.
8.2 Other third-party may be included as features of the Service and/or Games. These features may include their own legal documentations which you must refer to, read, acknowledge and accept in order to use those features.
9.1 The Service is owned by Company. Company reserves all rights in connection with the Service. We also reserve the exclusive right to create derivative works of the Service.
9.2 Company owns all Accounts created on/for the Service. By using the Account, you acknowledge and agree that you have no ownership or other property interest in the Account. You may not purchase, sell, trade or "gift" any Account.
10. Publisher Content
10.1 Publishers are solely responsible for the content they release, publish, distribute, upload or sell on the Service.
10.2 Publishers affirm, represent, and warrant that they own or have the rights, licenses, permissions and consents necessary to publish, distribute, upload, sell and duplicate the submitted content.
10.3 Publishers retain all ownership rights to the submitted content.
10.4 By releasing, publishing, distributing, uploading or selling content on the Service, Publishers also grant a license to the Company for all patent, trademark, trade secret, copyright or other proprietary rights in and to the Content for publication on the Service, pursuant to this Agreement.
10.5 Company reserves the right to remove any content on the Service found to be infringing on copyrights, deemed harmful or unlawful, or otherwise non-compliant with this Agreement, with or without prior notice.
10.6 By Submitting content to the Service, Publishers hereby grant those who access the service, including but not limited to, Users and Publishers, a non-exclusive, perpetual license to access the content and to use, reproduce, distribute, display and perform such content as permitted through the functionality of the Service. Users shall retain a license to this content even after the content is removed from the Service.
10.7 By submitting content to the Service, Publishers hereby grant the Company a worldwide, non-exclusive, royalty-free, sublicensable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the content in connection with the Service, including without limitation for promoting, redistributing in any and all media formats. If you choose to remove your content from the Service and your request is acceptable, this license shall terminate within a commercially reasonable time after you remove your content from the Service.
10.8 By submitting Media (including but not limited to, Images and Video) and selecting the checkbox marking the Media as "public" or "publicly available", Publishers affirm that they grant Company and all Users and Publishers of the Service an irrevocable, worldwide, non-exclusive and royalty-free license to use, download, copy, modify or adapt the Media for any commercial or non-commercial purposes including the purposes of using the Media in Games created on the Service, and affirm, represent, and warrant that they own or have the rights, licenses, permissions and consents necessary to grant this license. Furthermore, Publishers also agree that they will no longer have the right to remove or delete the Media from the Service once the Media becomes "in use" by any Games on the Service, unless otherwise permitted by Company.
11. Games Create Editor
The Games Create Editor ("Games Create Editor" or "GCE") is an online tool powered by the Games Create Engine, enabling the creation of Games.
11.1 Free Usage: The Games Create Editor may be used for free, without charge, pursuant to this Agreement.
11.2 Free Trials: The Service may occasionally offer free trials for subscriptions or other aspects of the Service. Company reserves the right to revoke free trials with or without prior notice.
11.3 Subscriptions: Customers may license various subscriptions for creating Games on the Service. Company grants to the subscriber a non-exclusive, non-transferable, revocable, limited, worldwide licence for the licence duration specified at the time of purchase to create Games with the Games Create Editor with all extended features and functionality provided by the subscription, subject in each case to your full compliance with the terms of this Agreement and payment of all applicable fees.
11.4 Exporting Content: If you hold an appropriate subscription, you may be able to export/download your Game, without releasing it on the Service. You agree that any such exporting/downloading is at your own risk and that the content you are exporting/downloading is compliant with this Agreement.
12. Payments and Refunds
12.1 Payments: We may change, add or remove available payment methods over time at our discretion. You agree to pay all applicable amounts that are charged on your Account through the Service. Your use of any payment services will be subject to the terms and conditions of the relevant payment processor.
12.2 Refunds: If you would like to request a refund, please contact us through our contact e-mail address specified at https://gamescreate.com/contact. Please note though that all refund requests will be determined at Company’s sole discretion.
12.3 Statutory Refund Rights: If you are resident in the European Union, you have the right to withdraw from a purchase within 14 days of your purchase, without giving a reason. You hereby expressly acknowledge that you lose your right of withdrawal once the performance of our service has begun and your Account is provided with access to the relevant Service. You agree that the supply of Service and the performance of services begins immediately after you complete your purchase. Therefore, once access to the Service has been enabled on your Account, the contract has been fully performed by us.
13. Termination of Service
13.1 Term: The term of this Agreement commences on the date you first either use/access the Service or register an Account, and will continue in effect unless otherwise terminated in accordance with this Agreement.
13.2 Termination by Users: Users may terminate their Account at any time. You may cease to use your Account, or if you so choose, may request that the Company terminate your access to your Account. User Accounts may not be transferred, sold, or assigned to a third party, and such actions may result in Account termination. User Account termination does not entitle the User to any refunds.
13.3 Termination by Publishers: Publishers may terminate their Account at any time. Publishers may request the removal of content and the Company will comply within a commercially reasonable time. Publisher Account termination does not entitle the Publisher to any refunds.
13.4 Termination by Company: Upon failure to comply with any terms contained within this Agreement, Company may choose to provide you with a warning regarding your non-compliance. Whether or not a warning is issued, and especially in cases of a serious violation of this Agreement, Company reserves the right to immediately terminate your license to use the Service, and any Account you may have in relation to the Service, without any prior warning and without providing any refunds, benefits or compensation for (a) purchases made with, on, or through the Service, and/or Games; (b) any damages resulting from, caused either directly or indirectly, or arising from the termination of your license to use the Service and/or any Account terminated.
13.5 Survival: All sections that logically ought to survive any expiration or termination of this Agreement shall survive, including sections 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 19, 20, 21, 22, 24, 25, 26, 27 and 28.
14. Limitation of Liability
To the maximum extent permitted by applicable law, neither the Company or its Officers, Directors, Employees and Agents ("Affiliates") shall be liable in any way for your loss or damage of any kind resulting from the use or inability to use the Service, your Account, your submitted/purchased content, any downloaded content or User Generated Content, including but not limited to, work stoppage, loss of goodwill, loss of business opportunity, loss of profits, charges or expenses, loss of data, corruption or loss of information, computer failure or malfunction, or any and all other commercial damages or losses.
In no event will the Company or its Affiliates be liable for any indirect, incidental, consequential, special, punitive or exemplary damages, or other damages arising out of or in any way connected with GamesCreate.com, the services, or the content, even in the event of the Company’s or its Affiliates’ fault, tort (excluding negligence), strict liability, or breach of company’s warranty and even if it has been advised of the possibility of such damages. These limitations and liability exclusions apply even if any remedy fails to provide adequate recompense.
The exclusion or the limitation of liability for consequential or incidental damages may not be allowed in some states or jurisdictions, and as such, in those states or jurisdictions, each of the Company and its Affiliates’ liability shall be limited to the full extent permitted by law.
To the maximum extent permitted by applicable law, you agree to (on demand) defend, indemnify and hold harmless Company and its Officers, Directors, Employees and Agents ("Affiliates") (and keep them indemnified and held harmless) from and against all claims, damages, suits, actions, judgements, obligations, losses, liabilities, costs, debt, or expenses (including but not limited to attorneys’ fees) arising from:
- Your use and access of the Service and its contents.
- Your violation of any term of this Agreement.
- Your violation of any third party right, including without limitation any copyright, trademark, property or privacy right.
- Any claim that your submitted content caused damage to a third party.
If any claims are brought against us, then you agree to cooperate with us to the fullest of your ability. You agree that you will not settle any such claims without our prior written consent.
16. Warranty Disclaimer
You agree that use of the Service shall be at your own risk. To the fullest extent permitted by law, The Company, its Officers, Directors, Employees and Agents ("Affiliates") disclaim all warranties, express or implied, in connection with the Services and the use thereof.
Company makes no warranties or representations about the accuracy or completeness of the Service, its Games, the site’s content, the content of any publisher linked to this site or the content of any sites linked to this Service and assumes no liability or responsibility for any:
- Errors, mistakes or inaccuracies of content.
- Personal injury or property damage of any nature whatsoever resulting from your access to and use of the Services.
- Unauthorized access to or use of our services, servers and/or any and all personal information and/or financial information stored therein.
- Interruption or cessation of access to our services.
- Bugs, viruses, trojan horses, or the like which may be transmitted to or through our services by any third party.
- Errors or omissions in any content or for any loss or damage of any kind incurred as a result of the use of any content submitted, posted, emailed, transmitted, or otherwise made available via the services.
The Company does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through the services or any hyperlinked services or featured in any Game, User Generated Content, banner or other advertising, and the Company will not be a party to or in any way be responsible for monitoring any transaction between you and third-party providers of products or services.
17. Content Ratings and Content Descriptors Disclaimer
The Service provides several Content Ratings and Content Descriptors to rate the suitability of Games to its audience and to help viewers and Users make informed choices. These Content Ratings and Content Descriptors are not regulated by or associated with any government organization. Content Ratings and Content Descriptors are applied by the creator (the User and/or Publisher) of the content and as such we cannot guarantee the accuracy of the Content Ratings or Content Descriptors applied to/listed for any content. The available Content Ratings and Content Descriptors are intended as a guide, not as an absolute or accurate classification or recommendation. Company does not warrant, endorse, guarantee, or assume responsibility for any Content Rating or Content Descriptor applied to or used in any Game, or on the Service.
Company assumes no liability or responsibility for any:
- Errors, mistakes or inaccuracies of any Content Rating or Content Descriptor.
- Personal injury or property damage of any nature whatsoever resulting from your access to and use of any Content Rating or Content Descriptor.
- Errors or omissions in any Content Rating or Content Descriptor or for any loss or damage of any kind incurred as a result of the use of any Content Rating or Content Descriptor otherwise made available via the services.
18. Digital Millennium Copyright Act
It is our policy to respond to clear notices of alleged copyright infringement. Copyright owners or authorized agents who believe that any material on the Service infringes upon their copyrights may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing us with the following information in writing (please consult your legal counsel or see 17 U.S.C. Section 512(c)(3) to confirm these requirements):
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
- 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 the service provider to locate the material.
- Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
- A statement that the complaining party has 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.
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
DMCA notices may be directed to our contact e-mail address specified at https://gamescreate.com/contact. You acknowledge that failure to comply with the requirements of this section may invalidate your DMCA notice.
Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability. If you are unsure whether the material available online infringes your copyright, we suggest that you contact an attorney before sending us a notice.
A counter notice may be provided if you believe that your affected material does not infringe, or if you have legal standing to do so. You may send the counter notice containing, which must include the following information:
- Your physical or electronic signature.
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or disabled.
- A statement that you have a good faith belief that the material was removed or disabled as a result of mistake or a misidentification of the material.
- Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in San Francisco, California, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If Company receives a counter notice, it may send a copy to the original complaining party informing them the material may be replaced or removed in 10 business days. Unless the copyright holder files an action seeking a court order against the Publisher or User, the removed material may be replaced in 10 to 14 business days or after receipt of the counter notice, at Company’s sole discretion.
Please note that under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.
19. Governing Law/Jurisdiction
This Agreement shall be governed by the laws of Australia.
20. Class Action Waiver
You and Company agree not to bring or participate in a class, collective, or representative action, private attorney general action or collective arbitration, even if arbitration procedures or rules would otherwise allow one. You and Company also agree not to seek to combine any action with any other action without the consent of all parties to this Agreement and all other actions.
If the agreement in this Section not to bring or participate in a class, collective or representative action, private attorney general action or collective arbitration should be found illegal or unenforceable, you and Company agree that it shall not be severable, that this entire Section shall be unenforceable and any claim or dispute would be resolved in court and not in a class or collective action.
21. Attorneys' Fees
In the event any litigation is brought by either party in connection with this Agreement, the prevailing party in such litigation shall be entitled to recover from the other party all the reasonable costs, attorneys' fees and other expenses incurred by such prevailing party in the litigation.
22. Export Controls
The Service, files, programs, and any and all computer code contained or utilized by the Service may not be downloaded, re-exported or otherwise exported into (or to a national or resident of) any country to which the U.S. has embargoed goods, or to anyone on the U.S. Commerce Department's Denied Persons List or Entity List. You represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
As long as the assignment of this Agreement does not reduce your rights, Company reserves the right to assign this Agreement in whole, or in part, to any person or entity at any time, with, or without your consent. Any unauthorized assignment or assignment of this Agreement by you, without Company’s express written consent shall be null and void.
If any part of this Agreement is determined to be illegal or unenforceable in any given jurisdiction, then that part of this Agreement shall be severed, and the remainder of the Agreement shall be given full force and effect. If a conflict exists between a non-English version, or translated version of this Agreement, then the English version of this Agreement will take precedence. Translations of this Agreement are provided for information purposes only.
25. No Waiver
The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver of that provision, nor prevent that party thereafter from subsequently enforcing that provision of any other provision of this Agreement. The express waiver by us of any provision, condition or requirement of this Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
26. Force Majeure
Company is not liable for any delay or failure to perform resulting from causes outside the reasonable control of Company, including without limitation, acts of God, war, terrorism, riots, embargoes, acts of civil, legal or military authorities, fire, floods, accidents, shortage of transportation, energy, labor, or materials.
27. Equitable Remedies
You hereby agree that Company would be irreparably damaged if the terms of this Agreement were not specifically enforced, and therefore you agree that we shall be entitled, without bond, proof of damages, or other security, to appropriate equitable remedies with respect to breaches of the Agreement, in addition to such other remedies as we may otherwise have available to us under applicable laws.
28. Entire Agreement
Questions, Complaints and Further Information
If you have any questions, complaints or require further information, please contact us through our contact e-mail address specified at https://gamescreate.com/contact