Terms of Use - Desura

Please read the terms and conditions ("Terms") set out below carefully. They govern your use of: the Desura Pty Ltd ("Desura") website and associated client software and other software or content related to either of them available from http://www.desura.com/ ("System") and your purchase through the System of Subscriptions for applications (including games, game mods, or other downloadable content) ("Applications").

By using the System you have agreed to be bound by these Terms as they then read. Desura may modify these Terms at any time by making available through the System a new version of them. You must not use any part of the System after these revised Terms have been posted unless you agree to be bound by the revised Terms and your continued use of the System after revised Terms have been posted constitutes your acceptance of the revisions to those terms.

1. Your Account, use of the System

If you have an Account (described below) you may purchase Subscriptions to Applications which are available through the System. Where you have purchased a Subscription, you may access the relevant Application through the use of your Account while that Application remains available on the System. A Subscription does not permit you to make copies of the Application or to use the Application separately from the System. Your use of an Application is also subject to any licence terms included with the Application.

You are bound by any instructions that Desura receives through your Account including from any person logged in to your Account, whether or not the instructions are given by you or with your authority.

You may request to register with the System. If Desura accepts your request, you will be given an account and an associated username and password ("Account"). Desura may in its discretion, but is not obliged to, require verification of the identity of a person requesting to register with the System, or attempting to access the System through an Account. Certain parts of the System are only accessible to persons when they have logged in to an Account. You must not: disclose any login name or password for any Account to any other person; nor allow any other person access any part of the System through your Account.

The System (including all content, graphics, and other intellectual property and elements incorporated into the System) is the property of Desura and/or others, and is protected by all international copyright, trademark and other laws. Your use of the System does not transfer to you any ownership nor create any other rights in the System or its content.

The System may not be used for unlawful or commercial purposes; it is for your lawful, personal use only. You must not use the System except as expressly permitted in these Terms. You must comply with all applicable laws. The System and its content may not be copied, reproduced, modified, disassembled, decompiled or distributed in any way without the express prior written consent of Desura. You must not sell or resell any part of the System or access to it. You must not use any part of the System except in accordance with these Terms.

You may use System only if: (a) you have reached the age of 18 or, if the age of legal capacity is higher in any applicable jurisdiction, that age; or (b) you are 13 years of age or older and this agreement is entered into on your behalf by a person of majority who is capable of entering into such agreements and making them binding upon you ("Guardian"). In the second case Guardian agrees to be bound by, and must ensure that you comply with, these terms and conditions. Desura may request proof of identification and age (for example, proof of your ability to purchase certain Subscriptions).

2. Use and ownership of user provided content

If you send to Desura, or upload to the System, any content of any type ("Content"), including forum posts, commentary, ideas or suggestions whether or not solicited, then: by uploading the Content you license the Content to Desura as set out in this clause 2; and you must ensure that you are the owner or creator of that content or have received permission from the owner or creator to make such submissions and to licence that content as set out in this clause 2.

You expressly authorise and permit Desura to exercise and to authorise others to exercise all of the rights comprised in copyright and all other intellectual property rights which subsist in the Content and you irrevocably consent to all such exercises. Desura is not required to compensate you or any other person in any manner for any such exercise or authorisation. In particular, Desura may use, reproduce, modify, create derivative works from, distribute, transmit, broadcast, and otherwise communicate, and publicly display and perform the Content and other works which are based on them (including by way of adaptation or derivative works) in any form, anywhere, with or without attribution to you, whether or not such use would otherwise be a breach of any person's moral rights, and without any notice or compensation to you of any kind. This clause does not limit Desura's privacy obligations under clause 10.

All Content and Applications added and managed by Publishers is governed by the terms and conditions agreement which they must accept prior to publishing their Applications on the System.

3. Third Party and unofficial content

Modifications, addons and other content ("Mods") which are made by third party and unofficial providers are available as Subscriptions to download and install via the System. The installation of Mods can affect other Applications and existing games, programs and files you own. In regard to all Mods, Desura acts purely as an intermediary service provider enabling their installation. Desura does not screen Mods available on Desura or through other sources. Desura does not assume any responsibility or liability for Mods you begin a Subscription to.

4. Information must be accurate

You must ensure that all information provided to Desura through the System (including registration information, payment information, and transaction-related information) is true, accurate and complete. You are solely responsible and liable for any and all loss, damage, and additional costs that you, Desura or any other person incur as a result of any false, incorrect or incomplete information provided by you or through your Account, or if the details of your Account are not updated as soon as practicable after (and in any case, within 30 days of) any change.

To the extent permitted by law, Desura may at any time, without any prior notice or liability to any person: (a) correct any error, inaccuracy or omission; (b) change the Applications available through the System, or the prices, fees, and specifications of such Applications, or any promotional offers and any other content; (c) reject, correct, cancel or terminate any order, including accepted orders, for any reason.

The advertisements on the System are invitations to you to make offers to purchase Subscriptions on the System and are not offers to sell. All prices and other amounts appearing on the System are quoted in US dollars unless otherwise specified.

5. Billing, payment and other subscriptions

When you provide credit card information to Desura, you represent to Desura that you are the authorized user of the credit card and authorize Desura to charge your credit card for any Subscription or other fees incurred through your Account (whether or not authorised by you). For recurring monthly subscriptions, each month that the subscription remains current, you agree and reaffirm that Desura is authorized to charge your credit card for the relevant fee. You must notify Desura promptly of any changes to your credit card account number, its expiration date and/or your billing address, and you must notify Desura promptly if your credit card expires or is cancelled for any reason. Desura may suspend the provision of services under this Agreement during any time there is no valid credit card associated with your Account.

You must not cause any chargeback of any purchase you make through the System without having reasonable cause and explaining that cause to Desura. Where you cause such a chargeback, Desura may suspend your Account until such time as you demonstrate to Desura reasonable cause for that chargeback. You may request Desura to cancel an order by email to: support@desura.com

ALL DESURA FEES ARE PAYABLE IN ADVANCE. DESURA DOES NOT GIVE REFUNDS IF YOU CHANGE YOUR MIND.

6. Online conduct

You agree that you will be personally responsible and liable for the use of your Account and the communication and activity on the System that results from use of your Account. Your online conduct and interaction with other Account holders should be guided by common sense and basic etiquette. In particular:

• You must not add content or information, including files and images that infringe any copyright, trademark, patent, trade secret, or other proprietary right of any person;
• You must not add content or information, including files, images and scripts that contain viruses, trojan horses, worms, spyware, cracks, keygens, javascript injection or any other similar software or programs that may damage the operation of another's computer or property of another;
• You must not add content or information, including files and images that displays, links to, encourages or enables pornography, gambling or otherwise illegal or unacceptable practices;
• You must not attempt to harm, disrupt, or otherwise engage in activity that diminishes, the System's availability, or that of any other computer system or network;
• You must not attempt to gain access to any account, computers or networks related to the System without authorization. You must not use the System with any third party software not provided or authorized by Desura, and must not reroute the System or any portion thereof through any third party software;
• You must not attempt to obtain any data through any means from the System, except if we intend to provide or make it available to you;
• You must not abuse, harass, stalk, threaten, defame or otherwise violate the legal rights (such as rights of privacy and publicity) of others in any form;
• You must not attempt to interfere with or inhibit another's person's use and enjoyment of the System;
• You must not harvest or otherwise collect information about others, including e-mail addresses;
• You must not create a false identity, multiple identities or impersonate another;
• You must not violate any applicable laws or regulations.

If you believe that your Account information has been lost or stolen or become known to or used by any other person, you will immediately notify Desura by email to: support@desura.com

7. Trademarks/logos

Desura^TM and other names and logos that are displayed through the System (the "Marks") are registered or unregistered trademarks, service marks, trade names and logos owned or licensed by Desura or their respective owners or licensees. Any use of the Marks (other than as permitted by these Terms) is prohibited. Nothing in the System shall grant, or is intended to grant, any license or right to use any of the Marks.

8. Contests

Desura may make contests available to users of the System and others. All contests are governed by these Terms and the applicable contest rules. By participating in a contest through the System, you are agreeing to these Terms and the applicable contest rules.

9. Disclaimers, liability exclusions/limitations on liability and indemnity

A. Disclaimers

Your access to and use of the System is at your own risk. Subject to this clause 9, to the fullest extent permitted by law the System is provided on an "as is" and "as available" basis, without any representations, warranties or conditions of any kind, whether express or implied, and including without limitation implied representations, warranties or conditions of or relating to accuracy, accessibility, fitness for a particular purpose, merchantability, performance or durability.

B. Liability exclusions

Subject to this clause 9, Desura and its providers will never be liable to you or any other person for any indirect, incidental, consequential, special, punitive or exemplary loss or damage arising from, connected with, or relating to the System or these conditions of use including but not limited to loss of data, business, markets, savings, income, profits, use, production, reputation or goodwill, anticipated or otherwise, or economic loss, under any theory of liability (whether in contract, tort, strict liability or any other theory of law or equity), regardless of any negligence or other fault or wrongdoing (including without limitation gross negligence and fundamental breach) by Desura or any person for whom Desura is responsible, and even if Desura has been advised of the possibility of such loss or damage being incurred.

C. Warranty exclusions, liability

To the extent permitted by law Desura excludes all implied warranties in relation to the supply of any goods or services through the System. To the extent permitted by law, Desura limits its liability for the breach of any warranty to (at its option): a refund; the resupply of the relevant good or service; or the payment of the cost of the resupply of the good or service. Subject to Desura's obligations in relation to a breach of such a warranty, to the extent permitted by law Desura's total aggregate liability for all loss or damage arising out of this Agreement or the relationship contemplated by it is limited to the total amount of all fees received from you by Desura in the first twelve months following the commencement of this Agreement.

D. NO GUARANTEES.

DESURA DOES NOT GUARANTEE CONTINUOUS, ERROR-FREE, VIRUS-FREE OR SECURE OPERATION AND ACCESS TO THE SYSTEM, YOUR ACCOUNT AND/OR YOUR SUBSCRIPTION(S).

10. Personal information; Privacy Policy

Desura collects, uses and discloses personal information in accordance with Desura's Privacy Policy as it exists from time to time. The Privacy Policy is available from this link. By accepting these Terms, and each time you use the System, you consent to Desura's collection, use and disclosure through the System of any information relating to you or your Account in accordance with Desura' Privacy Policy as it then reads.

11. Term and termination

Either you or Desura has the right to terminate or cancel your Account or a particular Subscription at any time. You may request your Account be terminated by contacting us at support@desura.com. Desura may remove your Account if it receives a request in relation to it, and that request complies with all verification processes that Desura has in place. In the event that your Account and Subscriptions is terminated or cancelled by Desura for a violation of this Agreement or improper or illegal activity, no refund, including any fees, will be granted.

Sections 1, 2, 9, 11, 13, and 14 will survive any expiration or termination of these Terms.

12. Links to other websites/resources

The System may include links to other Internet websites or resources, and to businesses operated by other persons. These other websites are not operated or controlled by Desura. Accordingly, Desura is not responsible for, and will have no liability for, these other websites, their business, goods, services, or content. If you link to or use any of these other websites, your dealings with the owners or operators of these websites is at your own risk, and you agree that you will not make any claim against Desura arising from your use of any of these other websites.

13. Governing law and dispute resolution

These Terms, your access to and use of the System, and all related matters are governed solely by the laws of Victoria, Australia and applicable federal laws of Australia. Any dispute between you and Desura or any other person arising from, connected with or relating to the System, these Terms, or any related matters (collectively "Disputes") must be resolved before the Courts of Victoria, sitting in Melbourne, and you hereby irrevocably submit to the original and exclusive jurisdiction of those courts in respect of all Disputes.

14. Other matters

If any provision of these Terms is held to be invalid or unenforceable for any reason, then the provision will be deemed to be severed from these Terms and the remaining provisions will continue in full force and effect.

These Terms ensure to the benefit of and are binding upon each of Desura and its successors, assigns and related persons, and you and your heirs, executors, administrators, successors, permitted assigns and personal representatives. You may not assign any rights or obligations that you have under these Terms. Desura may assign its rights and obligations under these Terms without your consent.

No consent or waiver by any party to or of any breach or default by any other party in its performance of its obligations under these Terms will be: (a) deemed or construed to be a consent to or waiver of a continuing breach or default or any other breach or default of those or any other obligations of that party; or (b) effective unless in writing and signed by all parties.

Any rights not expressly granted by these Terms are reserved to Desura.

15. Contact information

You may contact us by telephone or email:

Desura Pty Ltd
ACN 144 497 030
Fax: +1 310 694 9084
support@desura.com

Last Updated: November 8, 2010