Last Updated August 17, 2012
PLEASE READ THESE TERMS OF SERVICE. YOUR USE OF THE GAMEHUD SERVICE DESCRIBED HEREIN SHALL BE DEEMED TO BE YOUR ACCEPTANCE OF THESE TERMS OF SERVICE. ACCEPTANCE OF THESE TERMS OF SERVICE MEANS THAT YOU ARE BOUND BY ITS TERMS.
THESE TERMS OF SERVICE (these “Terms of Service”) constitute an agreement made between you (sometimes also referred to herein as “User”) and Ruby Tree Software, Inc. (hereinafter referred to as “Ruby Tree”), a corporation duly organized under the laws of the Commonwealth of Virginia.
means each application designated by you into which a Plug-In has been installed.
means the ultimate user of your Application about which Source Data is collected.
means an individual recording of a single event.
is defined in Section 7.2 below.
means information that refers or is related to, or otherwise associated with an identified or identifiable individual, including, without limitation, an individual’s first name or first initial and his or her last name in combination with one or more of the following: (i) Social Security Number; (ii) driver’s license number; or (iii) account number, credit or debit card number, in combination with any required security code, access code, or password that would permit access to an individual’s financial account.
means the software provided by Ruby Tree to be installed within the Application(s) for the purpose of collecting Source Data and sending such Source Data to the Servers.
(or such other URL as may be designated by Ruby Tree from time to time), and which is incorporated by reference into these Terms of Service.
means analysis generated from Source Data by Ruby Tree as a result of your use of the Service.
“Ruby Tree Site(s)”
means the website(s) operated by or on behalf of Ruby Tree that are made accessible to you by Ruby Tree in connection with the Service.
means the servers controlled by Ruby Tree, its subsidiaries, and/or its affiliates upon which Source Data is processed and maintained.
means Ruby Tree’s proprietary tracking and analysis solutions, including, without limitation, any online user interface, Plug-Ins, Other Software, API, or other related software or documentation.
means information, texts, data, graphics, photographs and any other materials or content provided by Ruby Tree, its subsidiaries and/or its affiliates. “Site Content” expressly excludes all Source Data.
means data transmitted by the Plug-Ins from Applications to the Servers.
2. ACCEPTANCE OF TERMS
Ruby Tree agrees to provide the Service to the User subject to these Terms of Service, which may be updated by Ruby Tree from time to time without notice to the User. The User acknowledges that the User has read these Terms of Service. THE USER AGREES TO REVIEW THESE TERMS OF SERVICE AND ANY CHANGES THERETO REGULARLY ENOUGH DURING THE PERIOD OF TIME IN WHICH THE USER ACCESSES THE SERVICE TO ENSURE THAT THE USER REMAINS FAMILIAR AND IN COMPLIANCE WITH THESE TERMS OF SERVICE. The User can review the most current version of these Terms of Service at any time at: http://www.mygamehud.com/terms_of_use
. If the User does not agree to these Terms of Service or any changes or revisions thereto, the User should terminate access to, and use of the Service immediately. The User’s use of the Service constitutes the User’s acceptance of these Terms of Service and any changes or revisions thereto.
3. THE SERVICE
3.1 The Service In General.
The Service is available only to individuals who are at least 18 years old. You represent and warrant that, if you are an individual, you are at least 18 years old. Unless explicitly stated otherwise, any new feature that augments or enhances the current Service shall be subject to these Terms of Service. Ruby Tree may change, suspend or discontinue any aspect of the Service at any time. Ruby Tree may also impose limits on certain features and services or restrict access to parts of or all of the Service without notice or liability. In order to use the Service, the User must obtain access to the World Wide Web, either directly or through devices that access Web-based content, and pay any service fees associated with such access. In addition, the User must provide all equipment necessary to make such connection to the World Wide Web, including a computer and modem or other access device. The User agrees that these Terms of Service are personal to the User and that the User may not resell, lease, license, assign or redistribute the Service, in whole or in part, to any third party. Ruby Tree also may offer other services from time to time, which are governed by different terms of service or use.
3.3 Fees for Service.
Ruby Tree offers different versions of its Service that will require the payment of fees, as notified to you at the time you sign up for such Service. Ruby Tree may change its fee structure and payment policies for the Service from time to time. The changes will be posted on the Ruby Tree Sites. If the User is using a version of the Service for which Ruby Tree charges a fee, the User shall indicate its continued acceptance of these Terms of Service by disclosing to and allowing Ruby Tree to charge User’s credit card on a recurring basis. Unless otherwise notified to you, all fees shall become due and payable immediately. Past due amounts shall bear a late payment charge, until paid, at the rate of one and one half percent (1.5%) per month or the maximum amount permitted by law, whichever is less. You agree to reimburse Ruby Tree for all costs (including attorneys’ fees) incurred by Ruby Tree in collecting late payments. In addition to its other rights and remedies, Ruby Tree may, at its option, suspend your access to the Service or terminate these Terms of Service in the event that you are not current in the payment of fees. In the event that any sales, use or similar taxes are imposed on Ruby Tree’s supply of Services under these Terms of Service, Ruby Tree may invoice you and you shall pay all such taxes.
The User shall notify Ruby Tree of the User’s desire to terminate its use of the Service. Ruby Tree reserves the right, without prejudice to its other rights, and without any liability whatsoever, to suspend, terminate or restrict any User’s access to the Service at any time, and without notice, when Ruby Tree has determined, in its sole discretion, that the use of the Service by the User is, or was, in breach of these Terms of Service or for any other reason that Ruby Tree determines, in its sole discretion. The foregoing provision is void where prohibited by law and the right to access or use the Service is revoked in such jurisdictions. Upon termination of these Terms of Service for any reason, User shall pay all amounts due Ruby Tree through and including the date of termination. If the User has provided a credit card number to Ruby Tree in connection with the use of the Service, the User hereby authorizes Ruby Tree to charge such credit card number for such final amounts due even though such charge may be processed after the date of termination. All provisions of the Terms of Service which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
4. LINKS TO OTHER WEBSITES
The Service may include hyperlinks to other World Wide Web sites which are not included as part of the Service (“Other Sites”). If the User uses the hyperlinks to access these Other Sites, the User will leave the Service and the User’s browser will be re-directed to the Other Sites. Ruby Tree may not have reviewed the content of any Other Site, and, regardless of whether it has reviewed the content of any Other Site, does not warrant or make any representation regarding any Other Site’s accuracy or authenticity. The hyperlinks to Other Sites do not constitute an endorsement by Ruby Tree of any Other Site or resources, or its content. Ruby Tree is only providing these links to the User as a convenience.
5. COPYRIGHT AND TRADEMARK
The Service is the sole property of Ruby Tree. The Service and Site Content are protected by copyright, beginning in 2012, pursuant to U.S. copyright laws, international conventions and other copyright laws. All rights are reserved. The Service and Site Content are owned or controlled by Ruby Tree. The User agrees to abide by any and all additional copyright notices, information, or restrictions contained in any part of the Service or Site Content. Copying or storing any part of the Service or Site Content is prohibited except as expressly provided in this Terms of Service or with prior written permission from Ruby Tree. “Ruby Tree Software, Inc.,” and variations thereof, "GAMEhud", http://www.mygamehud.com
, and other service marks, trademarks and logos displayed on the Service (the “Ruby Tree Trademarks”) are the property of Ruby Tree or its licensors. The User agrees not to display or use the Ruby Tree Trademarks in any manner. Permission to use the Service and Site Content is granted, provided that: (a) The copyright notice appears in all copies; (b) Use of the Service and Site Content is only for use by the User consistent with these Terms of Service and will not be copied or posted on any network computer or broadcast in any media; and (c) No modifications of the Service or Site Content are made. Elements of the Service and Site Content including, but not limited to, the “look and feel,” are protected by trade dress, trademark, unfair competition, and other laws and may not be copied or imitated in whole or in part. The User agrees not to take any action that would compromise the integrity of the Service or Site Content, or copy its content, style, look, format, structure or software, or copy, decompile, disassemble, or reverse engineer any software, programs, designs, pages or screens used in or in connection with the Service or Site Content except as expressly provided in this Terms of Service. Except as expressly provided, nothing shall be construed as conferring any license, expressed, implied, or by waiver or estoppel, under any of Ruby Tree’s or any third party’s intellectual property rights. The User agrees further not to use any of the intellectual property rights mentioned above for any purpose other than the purpose for which such rights are made available in association with the Service. No logo, graphic, sound or image from any of the Service may be copied or retransmitted unless expressly permitted by Ruby Tree.
6. REPRESENTATIONS AND WARRANTIES
6.1 Representations and Warranties In General.
The User represents, warrants and covenants that the User shall use the Service solely for the purposes intended and shall not use the Service in any manner which: (i) restricts or inhibits the proper working of the Service or any activities conducted on the Service; (ii) restricts or inhibits any other user from using and enjoying the Service; (iii) is unlawful or violates or infringes the rights of any third party including, without limitation, copyright, trademark, patent, rights of privacy or publicity, or any other right of any third party; (iv) contains a virus or other harmful or potentially harmful component; and/or (v) contains any unsolicited or unauthorized advertising, promotional materials, spam, or any other kind of solicitation.
6.2 Warranties Regarding Restrictions on Use.
Except as expressly provided in these Terms of Service, the User shall not: (i) use any devices or methodology to monitor or copy any Site Content found on the Service, without the prior written consent of Ruby Tree; (ii) duplicate, license, sublicense, publish, broadcast, transmit, distribute, perform, display, sell, rebrand, otherwise transfer or commercially exploit all or any part of the Service or Site Content; (iii) reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying intellectual property used to provide the Service, or any part thereof; (iv) utilize information, content or any data you view on and/or obtain from Ruby Tree to provide any service that is competitive, in Ruby Tree’s sole discretion, with the Service; (v) imply or state, directly or indirectly, that you are affiliated with or endorsed by Ruby Tree unless you have entered in to a separate written agreement with Ruby Tree; (vi) rent, lease, loan, trade, sell/re-sell access to the Service or any information therein, or the equivalent, in whole or part; (vii) attempt to or actually access the Service by any means other than through the interface provided by Ruby Tree; (viii) attempt to or actually override any security component included in or underlying the Service; (ix) use any information obtained from the Service or Ruby Tree to harass, abuse or harm another person; or (x) collect, use or transfer any information, including but not limited to, Personal Information, obtained from the Service or Ruby Tree except as the owner of such Personal Information may expressly permit.
All software and documentation related to each Plug-In (collectively referred to in this Section 7.1 as “Software”) is the copyrighted work of Ruby Tree, its subsidiaries and/or affiliates. The following notice is hereby given with respect to all Software:
Copyright (c) 2012 Ruby Tree Software, Inc. All rights reserved.
Permission is hereby granted, free of charge, to any person obtaining a copy of this Software to deal in such Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of such Software, and to permit persons to whom such Software is furnished to do so, subject to the following conditions: The above copyright notice and this entire permission notice shall be included in all copies or substantial portions of the Software. The permission and other rights granted in this notice will automatically terminate without any action by the above copyright holder(s) if you exceed the scope of such permission and/or other rights or violate any of the terms of this notice. Except as required by the terms of this notice, the name(s) of the above copyright holder(s) shall not be used in advertising or otherwise to promote the sale, use or other dealings in the Software without prior written authorization. SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHOR(S) OR COPYRIGHT HOLDER(S) BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH ANY SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.
7.2 Other Software.
Any software other than Plug-Ins that Ruby Tree makes available for download related to the Service (the “Other Software”) is the copyrighted work of Ruby Tree, its subsidiaries, and/or its affiliates and all rights are reserved. The notice in Section 7.1 shall not apply to Other Software. Without limiting the foregoing, the copying or reproduction of such Other Software to any other server or location for further reproduction or redistribution is expressly prohibited.
7.3 U.S. Government.
Any Software which is downloaded for or on behalf of the United States of America, its agencies and/or instrumentalities (“U.S. Government”), is provided with restricted rights. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights Act, 48 CFR 52.227-19, or any successors thereto, as applicable.
8. SITE CONTENT
8.1 In General.
The Site Content is provided for the User’s convenience and enjoyment. Third parties may provide some of the Site Content. The User should be aware that the Site Content might contain errors, omissions, inaccuracies, outdated information, and inadequacies and that the Site Content may be subject to terms and conditions which may be found on the Ruby Tree Sites or in the documents and policies of third parties. Ruby Tree makes no representations or warranties as to the completeness, accuracy, adequacy, currency or reliability of any Site Content and will not be liable for any lack of the foregoing.
Ruby Tree shall own and hereby retains all right, title and interest in and to Reports and all other results, data and/or information provided to you through the Service (collectively, “Results”), as well as all Site Content and Source Data. To the extent User has any right or interest in or to Source Data, User hereby grants Ruby Tree a non-exclusive, perpetual, royalty-free right and license to use, copy, modify, and disseminate such Source Data. Subject to the terms and conditions of these Terms of Service, Ruby Tree hereby grants you the limited, non-exclusive right and license (i) to use, copy, modify, and disseminate the Results; and (ii) to use and reproduce (but only to the extent expressly permitted by the Service) the Site Content solely in connection with your authorized use of the Service. You shall abide by all copyright notices, information, and restrictions contained in any Site Content, and shall retain all such notices in any copies of the Site Content. Except for the foregoing limited licenses, no other license is granted and no other use is permitted. Notwithstanding anything to the contrary contained herein, Ruby Tree agrees that it will not disclose any Results or Source Data in a manner that contains or reveals any Personal Information of End Users or is otherwise specifically attributable to you, the Applications or your End Users.
8.3 User’s Responsibility Regarding Use of the Service.
9. DISCLAIMER OF WARRANTIES
THE SERVICE, INCLUDING ALL CONTENT, SOFTWARE, DOCUMENTS, FUNCTIONS, MATERIALS, GRAPHICS, AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH OR SENT FROM THE SERVICE, ARE PROVIDED “AS IS.” TO THE FULLEST EXTENT PERMISSIBLE BY LAW, RUBY TREE AND ITS SUBSIDIARIES AND AFFILIATES MAKE NO REPRESENTATION OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER ABOUT: (A) THE CONTENT ON AND PROVIDED THROUGH THE SERVICE; (B) THE MATERIALS, INFORMATION AND FUNCTIONS MADE ACCESSIBLE BY THE SOFTWARE USED ON OR ACCESSED THROUGH THE SERVICE; (C) THE MATERIALS, MESSAGES AND INFORMATION SENT FROM THE SERVICE BY USERS; (D) ANY PRODUCTS OR SERVICES OFFERED BY OTHER USERS, THIRD PARTIES OR HYPERTEXT LINKS TO OTHER USERS OR THIRD PARTIES; AND/OR (E) ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION THROUGH THE SERVICE OR ANY LINKED SITE. RUBY TREE DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICE OR ANY MATERIALS OR CONTENT CONTAINED THEREIN WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SERVICE OR THE SERVERS THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. RUBY TREE DOES NOT WARRANT THAT ANY USER’S ACTIVITIES OR USE OF THE SERVICE IS LAWFUL IN ANY PARTICULAR JURISDICTION AND, IN ANY EVENT, SPECIFICALLY DISCLAIM SUCH WARRANTIES. RUBY TREE DOES NOT WARRANT THAT THE SERVICE WILL MEET ANY OF THE USER’S EXPECTATIONS. THE USER UNDERSTANDS THAT BY USING ANY OF THE FEATURES OF THE SERVICE, THE USER ACTS AT THE USER’S OWN RISK, AND THE USER REPRESENTS AND WARRANTS THAT THE USER’S ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE THE USER ACCESSES OR USES THE SERVICE. FURTHER, RUBY TREE AND ITS SUBSIDIARIES AND AFFILIATES DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, TITLE AND NONINFRINGEMENT. RUBY TREE AND ITS SUBSIDIARIES AND AFFILIATES SHALL NOT BE LIABLE FOR THE USE OF THE SERVICE INCLUDING, WITHOUT LIMITATION, THE CONTENT AND ANY ERRORS CONTAINED THEREIN.
10. LIMITATION OF LIABILITY
10.1 LIMITATION IN GENERAL.
UNDER NO CIRCUMSTANCES SHALL RUBY TREE, ITS OWNER(S), DIRECTORS, OFFICERS, AGENTS, EMPLOYEES, AND/OR CONSULTANTS BE LIABLE FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE, OR THE PERFORMANCE OF, THE SERVICE, OR FOR THE LOSS OF INFORMATION, DATA OR CONTENT, OR FOR DAMAGES CAUSED BY FAILURE OF THE INTERNET, COMPUTERS, STORAGE OR TRANSMISSIONS, OR FOR UPLOADING OR OTHERWISE POSTING THE USER’S CONTENT ON THE SERVICE, WHETHER OR NOT REQUESTED TO DO SO, EVEN IF FORESEEABLE OR RUBY TREE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION. IF A RELEVANT JURISDICTION DOES NOT PERMIT ANY OF THE EXCLUSIONS OF LIABILITY STATED HEREIN, THE EXCLUSIONS SHALL BE AMENDED ACCORDINGLY BUT ONLY TO THE EXTENT NEEDED TO PRESERVE THEIR EFFECT TO THE MAXIMUM EXTENT OF THE LAW IN THAT JURISDICTION. IN NO EVENT SHALL RUBY TREE’S TOTAL LIABILITY TO THE USER FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED ONE HUNDRED DOLLARS ($100).
10.2 APPLICABILITY OF LIABILITY LIMITATIONS.
SOME STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
The User agrees to defend, indemnify and hold harmless Ruby Tree, its owner(s), directors, officers, agents, employees, and consultants with respect to any and all costs, claims, demands, investigations, liabilities, losses, damages, judgments, settlements, costs and expenses, including attorneys’ fees arising out of or in connection with these Terms of Service, including, without limitation, the User’s use of the Service, the User’s violation of the terms of these Terms of Service, and/or the User’s infringement of any right of another. Notwithstanding the foregoing, Ruby Tree retains the exclusive right to settle, compromise and pay any and all claims, demands, proceedings, suits, actions or causes of actions which are brought against Ruby Tree herein under the terms and provisions of this Section and in no event shall the User settle any such claim without Ruby Tree’s prior written approval.
12. GOVERNING LAW; ARBITRATION
12.1 GOVERNING LAW.
THESE TERMS OF SERVICE AND THE INTERPRETATION OF ITS TERMS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF VIRGINIA, WITHOUT REGARD TO ITS CONFLICTS OF LAWS RULES. THE PARTIES IRREVOCABLY SUBMIT AND CONSENT TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE VIRGINIA STATE COURTS IN AND FOR THE COUNTY OF FAIRFAX, VIRGINIA AND THE FEDERAL COURTS IN AND FOR THE EASTERN DISTRICT OF VIRGINIA. THE PARTIES AGREE NOT TO RAISE THE DEFENSE OF FORUM NON CONVENIENS.
With the prior agreement of Ruby Tree, any claim, dispute or controversy arising out of, relating to or concerning the Service and/or these Terms of Service shall be decided by binding arbitration in accordance with the Rules of the American Arbitration Association and any such arbitration proceedings shall be brought and held in Fairfax County, Virginia. The decisions of the arbitrators shall be binding and conclusive upon all parties involved and judgment upon any award of the arbitrators may be entered by any court having competent jurisdiction. This provision shall be specifically enforceable in any court of competent jurisdiction. A printed version of these Terms of Service and any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms of Service to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
Whenever, under the provisions of these Terms of Service, the User is required or permitted to give notice to Ruby Tree, the User shall give the notice in writing. It shall be deemed given either when delivered personally, or by courier, or three (3) days after mailing, postage prepaid by registered or certified mail, return receipt requested, addressed to Ruby Tree at its current contact address found on the Ruby Tree Sites, with a copy of all such notices to the following address:
Ruby Tree Software, Inc.
8045 Leesburg Pike, 5th Floor
Vienna, VA 22182
Attn: Daniel H. Ruttenberg, Esq.
13.2 Form of Notice.
Whenever, under the provisions of these Terms of Service, Ruby Tree is required or permitted to give notice to the User, Ruby Tree may send an e-mail to the address provided by the User when the User registered with the Service. If the User has not provided an accurate e-mail address or if the User has not registered with the Service, Ruby Tree may, but is not obligated to, send a notice to the User in any reasonable way.
These Terms of Service contains the sole and entire agreement between the parties with respect to the use of the Service and supersedes any and all other prior written or oral agreements between them. Captions contained in these Terms of Service are inserted only as a matter of convenience or for reference and in no way define, limit, extend, or describe the scope of these Terms of Service or the intent of any provision of these Terms of Service. Ruby Tree and the User shall be independent of each other for all purposes and no relationship as partners, joint ventures, fiduciaries, employees or agents of the other shall be inferred or implied. The User may not assign or delegate any rights or obligations hereunder. Ruby Tree may assign and/or delegate all of its rights and/or duties, at its sole discretion, to any third party. It is the intent of the parties that neither these Terms of Service, nor any covenant in these Terms of Service, shall be construed against either party pursuant to the common law rule of construction against the drafter. It is the intent of the parties that said rule not be applicable to these Terms of Service. If any provision of these Terms of Service shall be held invalid or unenforceable by any court of competent jurisdiction or as a result of future legislative action, such holding or action shall be strictly construed and shall not affect the validity or effect of any other provision of these Terms of Service. The failure of Ruby Tree to insist upon or enforce strict performance of any provision of these Terms of Service shall not constitute a waiver of such provision. Neither a course of dealing or conduct between you and Ruby Tree nor any trade practices shall be deemed to modify these Terms of Service.