OnLive

ONLIVE TERMS OF SERVICE Effective as of August 17, 2012 Welcome to the OnLive® Game Service and OnLive™ Desktop, collectively referred to in these Terms of Service as the “Services.” The Services are owned and operated by OL2, Inc. (“OnLive” or “ONLIVE” or "we" or "us"). The OnLive Terms of Service (the “Terms”) govern our relationship with anyone who accesses the Services by any method or means, including but not limited to accessing the Services through the OnLive Game System (“OGS”), which includes the MicroConsole™ TV adapter (the “MicroConsole”) and the OnLive Gamepad Controller (including the Universal OnLive Wireless Controller) (“Controller”), or a Mac®, PC, iPad® or other tablet, or a mobile device such as a smartphone, or any other connected device. Please read the Terms, the Privacy Policy and the OnLive Acceptable Use Guidelines (“Guidelines”) carefully. Your use of the Services constitutes your agreement to the Terms, the OnLive Privacy Policy, and the Guidelines. If you are using the Services on behalf of an organization, you are agreeing to these Terms for that organization and promising that you have the authority to bind that organization to these Terms. In that case, “you” and “your” will refer to that organization. Your use of the Services is only for purposes that are permitted by these Terms. Any use or access of the Services by any means other than those authorized by these Terms is prohibited unless specifically agreed in writing with OnLive. On an ongoing basis, OnLive makes changes and additions to the Services including but not limited to: new games, features, and functionality. Your continued use of the Services after these new changes and additions are made will indicate your acceptance of any such changes and additions and your continued acceptance of the Terms, the OnLive Privacy Policy, and the Guidelines. You may not use the Services if you do not agree to be, or are unable to be, bound by the Terms, the OnLive Privacy Policy, and the Guidelines. 1. Privacy The OnLive Privacy Policy, which is incorporated herein by reference, tells you about the way we handle and protect your Personal Information (as defined in the OnLive Privacy Policy) when you use the Services. We ask that you review and agree to the OnLive Privacy Policy before sharing Personal Information on the Services. 2. Acceptable Use Guidelines In order to provide a safe and welcoming environment for all of our users, we have established certain ground rules regarding your behavior on the OnLive Game Service that are specified in the Guidelines, which is incorporated herein by reference. The Guidelines apply to your use of the OnLive Game Service and to any and all Game Service User Generated Content and Your Desktop Content (as defined in Section 9 below) that you contribute to the Services. OnLive reserves the right to close or suspend your OnLive Services Account (“Account”) if you breach the Guidelines. 3. Eligibility In order to register for an Account on the Services, you must be at least 18 years of age or have reached the age of majority in your province, territory or state of residence, and be a current resident of the United States or Canada (“Account Holder”). As an Account Holder, you represent and warrant to OnLive that you meet the eligibility criteria in the preceding sentence. 4. Accepting and Changing the Terms You will be deemed to have accepted the Terms by (a) downloading to a desktop, laptop, iPad or other tablet, mobile device, or obtaining through any other means on any other device or medium, the OnLive Application Software; (b) installing the OnLive Application Software; (c) clicking to agree to the Terms; or (d) accessing the Services. If you do not accept the Terms prior to accessing the Services, you will be deemed to have accepted the Terms upon any access of the Services. We may change the Terms at any time in our sole discretion. All changes to the Terms will come into effect 15 days after the posting of such changes unless we choose to secure your immediate acceptance of revised Terms via a click-through confirmation or acceptance button. We will notify you of any material changes to the Terms by presenting the new Terms when you start the Services or we may choose to inform users of changes via email. Continued use of the Services after the 15-day notice period, regardless of whether we have contacted you regarding such changes and regardless of whether you have read the changes we have made available to you, will constitute acceptance of the Terms. 5. Third Party Terms Buying or accessing certain third party content on the Services may require you to review and accept or decline certain third party disclosures, policies, and agreements including but not limited to third party end user license agreements, privacy policies, and terms of service (“Third Party Terms”). In all Third Party Terms, the user agreeing to, and/or the user presented with Third Party Terms will in all cases continue to be the consumer end user of the third party content. Unless expressly agreed by OnLive, OnLive shall not be the intended or actual licensee, user, or recipient of any Third Party Terms. Subject to the above clarification, all other terms and conditions of any Third Party Terms shall continue to apply and be fully enforceable against users of such third party content. A. OnLive Game Service. You may be presented with Third Party Terms prior to your purchase or use of third party content on the OnLive Game Service, or wherever OnLive, in its sole discretion, deems presentation of Third Party Terms is reasonably necessary or legally required to provide proper notice to you. You can accept Third Party Terms by (a) entering your password to purchase access to or to use the third party content on the OnLive Game Service, (b) accessing the purchased or selected third party content through the OnLive Game Service, or (c) any other reasonable means by which OnLive, in its sole discretion, deems appropriate. If you do not accept Third Party Terms in the manner described in clause (a) but you nevertheless access the OnLive Game Service, you will be deemed to have accepted Third Party Terms upon such access of the third party content. If you choose to decline any Third Party Terms, you may do so by not purchasing the third party content referenced by the Third Party Terms or otherwise declining the Third Party Terms as provided by OnLive or the third party providing the Terms. Please be advised that some Third Party Terms for some games on the OnLive Game Service may state or imply you have certain rights to a physical product, rights to download, or install third party content to a local machine, and/or other rights associated with physical possession or control of third party content. Such statements within Third Party Terms are not applicable to use of the third party content on the Services. B. OnLive Desktop. The following additional terms shall apply to the Microsoft products that you access and/or use through OnLive Desktop: You may not remove, modify or obscure any copyright, trademark or other proprietary rights notices that are contained in or on the Microsoft products; or reverse engineer, decompile or disassemble the Microsoft products, except to the extent that such activity is expressly permitted by applicable law. Microsoft and its suppliers retain all right, title and interest in and to the Microsoft products made available as part of OnLive Desktop. Technical support relating to OnLive Desktop, if any, will be provided by OnLive and not Microsoft or its suppliers. To the extent permitted by applicable law, Microsoft disclaims all warranties and any liability for any damages, whether direct, indirect or consequential, arising from OnLive Desktop. The Microsoft products are not fault-tolerant. The Microsoft products are not designed or intended for use in any situation where failure or fault of any kind of the Microsoft Products could lead to death or serious bodily injury of any person, or to severe physical or environmental damage (“High Risk Use”). You may not use the Microsoft products in, or in conjunction with, High Risk Use. High Risk Use is strictly prohibited. High Risk Use includes, for example, the following: aircraft or other modes of human mass transportation, nuclear or chemical facilities, and Class III medical devices under the Federal Food, Drug, and Cosmetic Act. You agree not to use the Microsoft products in, or in connection with, any High Risk Use. 6. Accounts By using the parental controls feature on the OnLive Game Service (the “Parental Controls”), the Account Holder may make his or her Account or a separate Account available for a user(s) who is at least 13 and younger than 18 years of age (a “Minor”). The Account Holder assumes responsibility for all activity on the Account, including user activity when Parental Controls are enabled. Account Holders who set up Parental Controls and allow Minors to use an Account are liable for all activities of such Minor and all public disclosures of information made by such Minor. Except as expressly stated in the preceding paragraph, you do not have the right to share your Account with any third party. You are solely responsible for all activity on your Account, including violations of the Terms by any third party that accesses the Services through your Account, and for the security of your Account. You also agree to the following: * You agree to provide and maintain an active email address through which you can be reached for the duration of your Account. You agree to provide accurate and up-to-date email address, contact and billing information to OnLive. * You agree to use the Services only for purposes that are permitted by (a) the Terms and (b) any applicable law, regulation, or generally accepted practices or guidelines in the relevant jurisdictions. * You agree to notify OnLive of any unauthorized use of your Account, any impending or threatened event that may negatively impact the Services, security of the Services, or any other violation of the Terms known to you, including by third parties that have accessed the Services through your Account. * You agree to not make any attempt to access the Services via any means or interface other than those which have been provided to you by OnLive, unless you have been granted explicit written permission by an authorized representative of OnLive to do otherwise. * You agree to not engage in any activity that interferes with or disrupts, degrades, harms or threatens to harm the Services, security of the Services, our equipment, use of the Services by any of our users. * You agree to not represent to any third party that you are an OnLive employee or authorized representative of OnLive. * You agree to not register a Player Tag on the OnLive Game Service or a Screen Name on OnLive Desktop that is vulgar, offensive, libelous, slanderous, discriminatory or obscene or that violates any law, or otherwise breaches the Terms. * You agree to not transfer or share your Account with any other party. You may not transfer or share your OnLive Services login information with any other party. * You agree to not tamper with in any manner, disassemble, reverse engineer, or otherwise modify any hardware or software of the Services made available to you. You agree that you will not use the Services including but not limited to any browser functionality in the Services to do any of the following: * Upload, post, transmit, distribute, or otherwise make available material that advocates illegal activity or discusses illegal activities with the intent to commit them; * Forge headers, manipulate identifiers, or otherwise disguise the origin of any content transmitted through the Services; * Upload, post, email, transmit, distribute, or otherwise make available any material that infringes patent, trademark, copyright, trade secret, or other proprietary rights of any party or that you do not otherwise have a right to make available under any law or contractual relationships; * Upload, post, transmit, distribute, or otherwise make available any material containing malware or any other files, programs, or computer code designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment. * Upload, post, email, transmit, distribute, or otherwise make available any unsolicited advertising (e.g., “spam,”); * Upload, post, email, transmit, distribute, or otherwise make available any material that is unlawful, vulgar, offensive, libelous, slanderous, discriminatory, defamatory, threatening, harassing, invasive of another’s privacy, obscene, or otherwise objectionable; * Impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity; * Stalk or otherwise harass another; * Harm minors in any way; or * provide material support or resources or disguise the nature, location, source, or ownership of material support or resources provided to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act. The listing of any prohibited activities above is not exhaustive. OnLive reserves the right to determine that any conduct that is or could be harmful to the Services, our equipment, or use of the Services by any of our users, is in violation of the Terms and to exercise any or all of the remedies contained in the Terms. 7. OnLive Application Software The OnLive Application Software and other related materials (collectively, the “Materials”) made accessible to you in connection with the Services will be licensed under, and subject to, the terms and conditions of the OnLive End User License Agreement (“OnLive EULA”). Your download, installation, and/or use of the Materials will constitute your acceptance of such terms and conditions of the OnLive EULA. 8. OnLive Content With the exception of Game Service User Generated Content and Your Desktop Content (as defined in Section 9 below), as between you and OnLive or its affiliates, subsidiaries, licensors, or suppliers (collectively for purposes of this Section, “OnLive”), OnLive has licensed or retains title to and ownership of everything on or used in connection with the Services, including, but not limited to, text; images; graphics; logos; audio and video content; visual, auditory, tactile, and motion user interfaces, and any hardware, software, or computer code (collectively, “OnLive Content”). OnLive Content also includes, without limitation, the structure, design, animation, video, effects, overall “look and feel” and arrangement of OnLive Content on the Services. With regard to all gaming statistics like scores, rankings, log in/log out times, length of gameplay, and your presence on the OnLive Game Service, OnLive owns that content exclusively and/or shares ownership of that content with third party content providers and may grant any of our affiliates, subsidiaries, licensors, partners, or suppliers permission to use such content, including the use and display of such content publicly for the purposes of leaderboards, enhancing multiplayer gameplay, tournaments, and marketing and promotion efforts. Subject to license restrictions and these Terms, certain of OnLive Content on the Services may not be available to users accessing the Services through certain devices (certain smartphones or certain tablets, for example). Any such limitations will be specified prior to your purchase. OnLive owns patents, copyrights, trademarks, service marks, trade names, trade secrets, domain names and other intellectual property, and proprietary rights throughout the world in, or to, or associated with the OnLive Content and/or the Services (the "IP Rights"), and the OnLive Content and the Services are protected by the IP Rights and all other applicable intellectual property rights and laws. Subject to your compliance with the Terms (which incorporates by reference the OnLive Privacy Policy and the Guidelines), OnLive grants you a limited, personal, non-exclusive, non-transferable, non-sublicensable, revocable license under the IP Rights to use the Services in accordance with the Terms, for the duration of your membership and/or access to the Services, solely for your personal and non-commercial use. You may not modify, reproduce, distribute, create derivative works or adaptations of, publish, perform, display, transmit or in any way exploit any of the OnLive Content in whole or in part except as expressly authorized by OnLive. You may not, in whole or in part, reverse engineer, derive (or attempt to derive) any source code, modify, disassemble, decompile, or remove any proprietary notices or labels from the Services or any hardware or software associated or used in connection with the Services. Except as expressly and unambiguously provided herein, OnLive does not grant you any express or implied rights in or to the Services, any OnLive Content or any software associated or used in connection with the Services. You may not transfer, publish, display, disclose or make available any reproductions of the Services or the OnLive Content to any other parties in any way, including, without limitation, by uploading videos or images to file sharing sites, sharing or making available screen captures of the Services or any OnLive Content, or sharing or making available any source code or executable code of any software associated or used in connection with the Services. You may not rent, lease, license or sublicense the Services to others, or use the Services in any manner for the benefit of any third party. 9. User Content In placing content on the Services through the OnLive Game Service and/or OnLive Desktop, you acknowledge that OnLive is a provider of an interactive computing service as set forth in the Communications Decency Act, 47 U.S.C. §230 and expressly reserves its rights to not be treated as the publisher or speaker of any information provided by another information content provider on the Services. We may choose to review content to the extent necessary to determine compliance with the Guidelines, but you acknowledge that OnLive has no obligation to monitor any information on the Services. We are not responsible for the accuracy, completeness, appropriateness, or legality of files, user posts, or any other information you may be able to access using the Services. A. OnLive Game Service Any time you post a message or communication on an OnLive sponsored forum, or create, post, upload, submit, share or distribute any content through the use of the OnLive Game Service including but not limited to any public forums on the OnLive Game Service or play a game on the OnLive Game Service, including any screen name, tag, handle, motto, avatar video or still, and including contributions via video, voice and text chat, text messaging, forums, message boards, whether within or outside a game (any such message, communication, content or play, collectively, “Game Service User Generated Content or Game Service UGC”), you grant OnLive a non-exclusive, worldwide, perpetual, irrevocable, unrestricted, royalty-free, fully paid-up license (with the right to sublicense) to use, reproduce, distribute, display, perform, transmit, modify, edit, create derivative works from, and otherwise exploit such Game Service UGC, in any form, format, or medium now known or later developed. You represent and warrant that you have the right to grant these rights to OnLive and that you will not post any content or links, user-generated or otherwise, that infringe, misappropriate or violate any privacy, intellectual property, or any other rights of any party, or which violates the Guidelines, or that is vulgar, offensive, libelous, slanderous, discriminatory or obscene or that violates any law. You hereby waive all “moral rights” with respect to all Game Service UGC and all copyrights therein to the extent such moral rights can be waived under the existing law of any jurisdiction, and all uses thereof, and consent to any action of OnLive that would violate such moral rights in the absence of such waiver or consent. Game Service UGC specifically excludes all gaming and OnLive Game Service usage statistics like scores, rankings, log in/log out times, length of gameplay, and your presence on the OnLive Game Service. OnLive owns gaming and OnLive Game Service usage statistics exclusively and/or shares ownership of that content with third party content providers and may grant any of our affiliates, subsidiaries, licensors, partners, or supplier’s permission to use such content, including the use and display of such content publicly for the purposes of leaderboards, enhancing multiplayer gameplay, tournaments, and marketing and promotion efforts. OnLive reserves the right to pre-screen, monitor, moderate, and delete any Game Service UGC that you or other OnLive users submit to the OnLive Game Service, including, but not limited to, posts made to any forums within the OnLive Game Service. However, we have no obligation to do so, and you may be exposed to content you find vulgar, offensive, libelous, slanderous, discriminatory, obscene or is in violation of a law. B. OnLive Desktop While accessing or using OnLive Desktop, you may create or download information, such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images that you place on OnLive Desktop (“Your Desktop Content”). Your Desktop Content remains your content. We also do not control, verify, or endorse the content that you and others make available on OnLive Desktop. You control who may access Your Desktop Content. If you share Your Desktop Content in public areas of the Services or in shared areas available to others, then you agree that anyone you have shared Your Desktop Content with may use that content. When you give others access to Your Desktop Content on the Services, you grant them free, nonexclusive permission to use, reproduce, distribute, display, transmit, and communicate to the public the content solely in connection with the Services and other products and services made available by OnLive. If you do not want others to have those rights, do not use the Services to share Your Desktop Content. You understand that OnLive may need, and you hereby grant OnLive the right, to use, modify, adapt, reproduce, distribute, and display Your Desktop Content posted on the Services solely to the extent necessary to provide OnLive Desktop. You understand that we collect and store the files you upload, download, or access with OnLive Desktop. If you add a file to Your Desktop Content that has been previously uploaded by you or another user, we may associate all or a portion of the previous file with your Account rather than storing a duplicate. You represent and warrant that you have all the rights necessary for you to grant the rights described in this Section and the use of Your Desktop Content does not violate any copyright or other law, and that Your Desktop Content does not contain any viruses or malware. We will not pay you for Your Desktop Content. We may refuse to publish Your Desktop Content for any or no reason. We may remove Your Desktop Content from the Services at any time if you are in violation of the Terms or if we cancel or suspend OnLive Desktop. We are not responsible for deletion or overwriting of Your Desktop Content or other data or files, or accidental loss of Your Desktop Content or other data or files, or actions of any application that may be operating on OnLive Desktop. We strongly advise users to back up Your Desktop Content to other locations. As set forth in Sections 13 and 14 below, if your Account is closed, we may permanently delete Your Desktop Content from our servers. In addition, we have no obligation to return Your Desktop Content to you if your Account is closed as set forth in Sections 13 and 14 below, or if OnLive discontinues OnLive Desktop. OnLive Desktop provides cloud-accelerated web browsing with up to gigabit Ethernet speed connections to the Internet for extremely fast, but brief, data transfers. These connections are shared with other OnLive users. Sustained high-speed data transfers that excessively impact these shared connections are not permitted. Please be reasonable. Your Internet usage may be limited by OnLive in its sole discretion. OnLive will limit PC applications that may be added. Malware or other applications that may compromise security or reliability are not permitted. OnLive may, at its sole discretion, limit Internet usage, limit OnLive Desktop usage, and limit the applications that can be used with OnLive Desktop. Subject to the terms of Sections 13 and 14 below (“Suspending Your Account” and “Closing Your Account”), you can always access Your Desktop Content through the free OnLive service; however, such, access depends upon availability of shared connections. Users with paid membership plans will have priority access ahead of users utilizing the free service C. Other Content The Services may contain links to third-party websites or resources. OnLive does not endorse and is not responsible or liable for their availability, accuracy, the related content, products, or services. You are solely responsible for your use of any such websites or resources. 10. Voice Chat Voice Chat communications within the Services should not be considered private. Voice Chat communications may be heard by others as part of gameplay or during Spectating. OnLive is under no obligation to monitor user communications but reserves the right to act on reports of misconduct or abuse of such privileges at OnLive’s sole discretion. Because Voice Chat and other communications may be widely viewed and/or heard, OnLive cautions users to avoid revealing any personally identifiable information through such communications. 11. OnLive Purchases and Billing ALL SALES ARE FINAL. ALL FEES ARE PAYABLE IN ADVANCE AND ARE NOT REFUNDABLE, TRANSFERABLE, OR REDEEMABLE IN WHOLE OR IN PART. NO RETROACTIVE DISCOUNTS. Offers are only valid within the United States and Canada. Offers cannot be combined unless expressly stated. Some game purchases may not be available for all platforms and different prices may be charged for different platforms (e.g., PC, Mac, iPad and other tablets, and the MicroConsole). Promotion codes and coupons have no cash value. Subject to any OnLive promotional offers you may accept, OnLive may require payment of fees for the Services membership offer you select (the “Membership Plan”), third party content, any additional items and services that may be available through the Services, and any applicable taxes. You must register for an Account and you may be required to sign up for a Membership Plan in order to access the various features of the Services and pay for any third party content. All purchases are charged in U.S. dollars. By registering for an Account on the Services, you represent that you are at least 18 years of age and have reached the age of majority in your province, territory or state of residence. A. Free Accounts OnLive allows you to store up to 2 GB of Your Desktop Content free of charge. OnLive reserves the right to terminate free Accounts at any time, with or without notice. Without limiting the generality of the forgoing, if a free Account is inactive for ninety (90) days, then OnLive may delete any or all of Your Desktop Content without providing additional notice as provided in Sections 13 and 14 below. B. Membership Plans A credit card may not be required to sign up for the Services. However, if you select a Membership Plan that requires a credit card, you represent that you are authorized to use that credit card. You must also be authorized to use any subsequent credit card in the event you change or update the credit card you used to register. By signing up for a Membership Plan and/or providing a credit card to OnLive whether or not under a specific Membership Plan, you expressly authorize OnLive to charge you for services and products purchased under your Account including but not limited to required or optional fees associated with maintaining an active Membership Plan in good standing (the “Membership Fees”), third party content, any additional items and services that may be available through the Services, and any applicable taxes. Membership Plans may require one-time or recurring Membership Fees. If so, OnLive will bill you in accordance with the terms of your Membership Plan. Prices for any third party content are subject to change at any time without notice. OnLive reserves the right to change the pricing, billing, Membership Plans and Membership Fees for the Services at any time. In the event OnLive makes any such changes to the Services, we will provide you with at least thirty (30) calendar days’ notice via the email address you have provided in your Account. If you do not consent to these changes, you must stop using the Services and may close your Account. In the event your Account is closed or suspended for any reason, OnLive reserves the right to charge you for any costs, surcharges, or debts still pending on your Account. You may not register a new OnLive Account until all costs, surcharges, and debts are settled for any prior OnLive Account that you have used, or have been used with the same credit card or email address. 12. MicroConsole and Controller The Terms also apply to use of the MicroConsole and Controller and from time to time other hardware that may be provided with them such as a wireless adapter. Use of the MicroConsole or Controller or other such ancillary hardware provided confirms your agreement to: * Accept the Terms, any Third Party Terms and any subsequent changes. * Accept any software updates and upgrades sent to the MicroConsole and/or Controller. * Accept any different or additional terms applicable to the third party components included with the MicroConsole and/or Controller. * Not tamper with in any manner, disassemble, reverse engineer, or otherwise modify the MicroConsole and/or Controller. * Save as permitted by law, not derive (or attempt to derive), modify, decompile, or remove any software code from the MicroConsole and/or Controller. * Not remove any proprietary notices or labels from the MicroConsole and/or Controller. * Use any software in the MicroConsole or Controller only in executable form and solely in conjunction with the MicroConsole or Controller. Basic information relating to setup, installation and support is shipped with the MicroConsole and Controller, and further details are found in the Support section of the OnLive website. 13. Suspending Your Account The data associated with your Account is stored separately based on whether the data is Game Service User Generated Content or whether the data is Your Desktop Content. We store your login credentials (your Player Tag, Screen Name, password and email address (“Login Credentials”) and Game Service User Generated Content for up to 12 (twelve) months during any suspension of your Account (as described below), so that you can go back to gaming on the OnLive Game Service as if your Account was never suspended. We store Your Desktop Content for your free Account up to ninety (90) days following suspension of your Account and under all circumstances, may delete Your Desktop Content after ninety (90) days of inactivity using OnLive Desktop as described below. You may suspend (i.e., temporarily deactivate) your Account at any time, for any or no reason, for up to twelve (12) months by contacting OnLive CS from the Support section of the OnLive website. The advantage in suspending your Account is that you can save your Login Credentials for the Services and Game Service User Generated Content. OnLive may suspend an Account, or resume a suspended Account, if you fail to follow all of the conditions specified in the Terms, including, for example, the expiration or non-renewal of your Services membership term as provided in Section 11 herein. OnLive may also suspend your Account if it is inactive. For the OnLive Game Service, “inactive” means that you have not logged in and interacted with the OnLive Game Service. For OnLive Desktop, “inactive” means that you have not logged in and interacted with OnLive Desktop. You or OnLive may resume (i.e., reactivate) a suspended Account, if the Account is in good standing and any outstanding concerns have been addressed to OnLive’s satisfaction at any time during the suspension. Suspending your Account will temporarily disable your access to the Services using the suspended Account, and temporarily disable your access to all content or services on the Services that the Account would otherwise have access to, if any, whether purchased or not. Resuming your Account will restore your access to the suspended Account, and restore your access to content and services that are still available to you after the time that has elapsed during the suspension period or provide access to content and services that became available to you during the suspension. During this time, OnLive will retain your Game Service UGC, including your Personal Information, just as if the Account is in active use so as to enable OnLive to (a) keep track of any content or service expirations or activations during the suspension period, and (b) reactivate your Account if it is resumed during that twelve (12) month period. During the suspension period you, or OnLive under certain conditions specified in the Terms, may close your Account, per the terms described below in Closing Your Account. OnLive will close your Account if it not resumed within twelve (12) months of the last suspension. If you decide to suspend your Account, please contact OnLive CS from the Support section of the OnLive website. The Terms will continue to apply to you in full from the time you accept the Terms, as set forth in the “Accepting and Changing the Terms” section herein, throughout your Account suspension and until your Account is closed by either you or OnLive. 14. Closing Your Account CLOSING YOUR ACCOUNT WILL RESULT IN PERMANENT LOSS OF ACCESS, CONTENT, SERVICES AND VALUE ON THE ONLIVE SERVICES. ONLIVE URGES YOU TO CONSIDER SUSPENDING YOUR ACCOUNT, PER THE “SUSPENDING YOUR ACCOUNT” SECTION ABOVE. RATHER THAN CLOSING YOUR ACCOUNT, PLEASE READ THIS “CLOSING YOUR ACCOUNT” SECTION CAREFULLY BEFORE PROCEEDING WITH CLOSURE. You may close your Account at any time, however, OnLive may close an Account if the Account is suspended and not resumed within the twelve (12) month maximum suspension period, as detailed in the “Suspending Your Account” section, above, or under certain conditions specified in the Terms. Closing your Account will immediately and permanently terminate your access to the Services using the closed Account; immediately and permanently terminate your access to all content, messages, services on the Services that the closed Account would otherwise have access to or could derive value from; and result in your immediate and permanent forfeiture of any coupons, access passes, credits, Game Service UGC, Your Desktop Content, or anything that may be of value directly or indirectly associated with the Account, if any, whether purchased or not. Any remaining payments due on the Account will remain due and collectable after the Account is closed until they are paid. If you decide to close your Account, please contact OnLive CS from the Support section of the OnLive website. Within six (6) months after closing your Account or after any payments due on the Account are paid, whichever is later, we will either delete or securely encrypt your Personal Information except your email address, which we will keep in order to determine whether to send further marketing-related emails. We will also keep all financial and transactional records that are required for accounting, revenue-reporting and tax-reporting purposes. Your non-Personal Information, such as your Player Tag, Screen Name and password, will not be deleted. We will also keep information about your use of the Services or Websites including, but not limited to, data about your gameplay, session times and durations, and use of the Services, though we will disassociate such information from your Personal Information. Please note that even after you remove information from your Account or delete your Account entirely, information that was shared with other users may continue to exist on the Services. If you engage in any repeated or objectionable misconduct, to be determined within OnLive’s sole discretion, OnLive reserves the right to either suspend or close your Account, in OnLive’s sole discretion, immediately and without notice as set forth in the “Suspending Your Account” and “Closing Your Account” sections herein. Please also refer to the Guidelines for examples of objectionable conduct on the Services. The Terms will continue to apply to you in full from the time you accept the Terms, as set forth in the “Accepting and Changing the Terms” section herein, until your Account is closed by either you or OnLive. 15. Survival Sections 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, and 25 of the Terms shall survive any expiration or termination of the Terms or your Account. The Privacy Policy will survive termination of the Terms or your Account, in accordance with its terms. 16. Copyright Policy OnLive respects the intellectual property of others and we expect our users to do the same. If you are a copyright owner or authorized to act on behalf of a copyright owner and believe that any content or material provided through or in connection with the Services infringes any copyright you own or for which you are authorized to act on behalf of the copyright owner, please provide OnLive’s Agent for Notice with written or electronic notice containing the following: DMCA Notice of Alleged Infringement ("Notice") 1. A description of the copyrighted work(s) you claim has been infringed. 2. A description of the allegedly infringing content or material, including the location on the Services of the allegedly infringing content or material with sufficient detail to enable us to locate it on the Services. 3. Your address, telephone number, and email address. 4. Both of the following statements outlined in the Notice: a. “I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law.” b. “I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner of, or authorized to act on behalf of the owner of, an exclusive right that is allegedly infringed.” 5. Your full legal name and your electronic or physical signature. Please send all of the above to: Copyright Agent c/o OnLive 1091 N Shoreline Blvd, Suite 100 Mountain View, CA 94043 Main: (650) 543-5500 Fax: (650) 543-5595 Or by email to: copyrightenforcement@onlive.com 17. Disputes You agree to handle any disputes between you and OnLive in accordance with the policy outlined below, the OnLive Privacy Policy or as otherwise agreed in writing between you and OnLive. As an alternative to litigation, we will consider reasonable requests to resolve any dispute through dispute resolution procedures such as arbitration or mediation. Governing Law and Jurisdiction The Terms shall be governed by and construed under the laws of the State of California as they apply to agreements entered into and to be performed entirely within California between California residents, without regard to conflict of law provisions. Any action or proceeding brought to adjudicate any dispute related to the Terms, OnLive Privacy Policy, the Guidelines, or the Services shall be brought in the County of Santa Clara, California (if under State law) or the Northern District of California (if under Federal law), except as otherwise agreed by the parties in writing. For residents of Canada, any action or proceeding brought to adjudicate any dispute related to the Terms, OnLive Privacy Policy, the Guidelines, or the Services shall be brought in the Province of Ontario, except as otherwise agreed by the parties in writing. Arbitration For residents of the United States, OnLive will make a confidential binding arbitration option available for any claim (excepting injunctive relief and specific performance) where the total amount of the award sought is less than $10,000. Any such arbitration shall take place before an arbitrator from the Judicial Arbitration Mediation Service (“JAMS”) as mutually agreed upon by you and OnLive and shall proceed in accordance with the then current rules and procedures of JAMS mutually agreed upon by you and OnLive in writing. The arbitration shall take place in Palo Alto, California. 18. Injunctive Relief If you breach or indicate your intention to breach the Terms (including, without limitation, in a manner that infringes, misappropriates or violates any intellectual property or privacy rights or may cause irreparable or continuing harm), OnLive may seek injunctive relief against you or any other remedy available under applicable law. 19. Representations and Warranties You represent and warrant that (i) you have the full power and authority to enter and perform under the Terms, (ii) the execution and performance of your obligations under the Terms does not constitute a breach of or conflict with any other agreement or arrangement by which you are bound, and (iii) the Terms are a legal, valid, and binding obligation of you, enforceable in accordance with its terms and conditions. 20. Indemnification You agree to defend, indemnify and hold OnLive, its directors, officers, employees, contractors, affiliates, suppliers, and licensors (collectively “OnLive Indemnified Parties”) harmless from any liability, damage, settlement, loss, or expense (including, without limitation, attorneys’ fees and costs) incurred in connection with any third-party claim, demand or action (“Claim”) brought or made against any of the OnLive Indemnified Parties arising out of or relating to (a) any violation by you of any of the Terms, (b) any act or omission by or on behalf of you or arising out of your use of the Services, (c) any unauthorized modification or alteration of any hardware or software made available to you in connection with the Services and/or (d) any information, content or materials (including, without limitation, any Feedback (as defined below), Game Service UGC or Your Desktop Content) provided or made available by you. If you have to indemnify any of the OnLive Indemnified Parties under this Section, OnLive and/or the relevant OnLive Indemnified Parties will have the right to control the defense, settlement, and resolution of any Claim at your sole expense. You may not settle or otherwise resolve any Claim without OnLive’s prior express written permission. 21. DISCLAIMER ONLIVE PROVIDES THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ONLIVE DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR THEIR USE (I) WILL BE UNINTERRUPTED, (II) WILL BE FREE OF INACCURACIES OR ERRORS, OR (III) WILL BE FREE OF VIRUSES OR OTHER HARMFUL SOFTWARE COMPONENTS. ONLIVE UTILIZES THE INTERNET, WHICH BY ITS VERY NATURE CAN BE UNRELIABLE AND UNPREDICTABLE. INTERNET CONNECTION AND RELIABILITY PROBLEMS MAY REDUCE SERVICE QUALITY AND IN SOME CASES MAKE THE SERVICES UNAVAILABLE. ONLIVE DISCLAIMS ANY LIABILITY ASSOCIATED WITH PROVISION OF THE SERVICES OR FAILURE TO PROVIDE THE SERVICES ASSOCIATED WITH INTERNET CONNECTION AND RELIABILITY PROBLEMS. IN ADDITION TO AN INTERNET CONNECTION, THE SERVICES ALSO REQUIRE SUITABLE, CAPABLE, RELIABLE, AND FULLY OPERATIONAL DEVICES AND SOFTWARE, WHICH ARE ALL OUTSIDE OF ONLIVE’S CONTROL. ONLIVE DISCLAIMS ANY LIABILITY ASSOCIATED WITH PROVISION OF THE SERVICES OR FAILURE TO PROVIDE THE SERVICES ASSOCIATED WITH DEVICES AND SOFTWARE OUTSIDE OF ONLIVE’S CONTROL SUCH AS COMPUTERS, DISPLAYS, TELEVISIONS, INPUT DEVICES, SWITCHES, ROUTERS, FIREWALLS, OPERATING SYSTEMS, AND BROWSERS. ONLIVE DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED REPRESENTATIONS OR WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE, STATEMENTS OR INFORMATION OBTAINED BY YOU FROM ONLIVE OR ANY OF ITS REPRESENTATIVES OR FROM ANY THIRD PARTY OR THROUGH THE SERVICES SHALL CREATE ANY REPRESENTATION OR WARRANTY NOT EXPRESSLY STATED IN THE TERMS. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS UNDER APPLICABLE LAW. ONLIVE IS NOT RESPONSIBLE FOR ANY INTERNET, TELEPHONE, WIRELESS, OR OTHER FEES ASSOCIATED WITH YOUR USE OR ACCESS OF ANY SERVICES, PRODUCT, OR CONTENT THROUGH THE SERVICES, INCLUDING YOUR USE OR ACCESS OF ANY FREE SERVICE, PRODUCT, OR CONTENT THROUGH THE SERVICES. 22. LIMITATION OF LIABILITY IN NO EVENT WILL ONLIVE OR ANY OF ITS AFFILIATES, SUPPLIERS OR LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU OR FOR ANY LOSS OF PROFIT, LOSS OF GOODWILL, WORK STOPPAGE, LOSS OR CORRUPTION OF DATA, SOFTWARE OR HARDWARE (INCLUDING, WITHOUT LIMITATION, COMPUTER) FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER DAMAGES OR LOSSES ARISING FROM OR RELATING TO ANY USE OF THE SERVICES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY AND EVEN IF ONLIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU UNDERSTAND THAT ONLIVE WILL IN NO EVENT BE LIABLE FOR ANY CHANGES WHICH ONLIVE MAY MAKE TO THE SERVICES OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES OR ANY OF ITS FEATURES, EVEN IN THE EVENT OF, WITHOUT LIMITATION, FAULT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT, OR BREACH OF ANY REPRESENTATION OR WARRANTY. THESE LIMITATIONS AND EXCLUSIONS REGARDING DAMAGES AND LOSSES APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN DAMAGES, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS UNDER APPLICABLE LAW. 23. Severability If any provision of the Terms is held invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it valid and enforceable. This shall, in no way, affect the validity and enforceability of all other provisions in the Terms. 24. Miscellaneous You and OnLive are independent parties, and nothing in the Terms constitutes a partnership or joint venture between you and OnLive or makes either party the agent of the other. Unless otherwise specified herein, the Terms, the OnLive Privacy Policy, and the Guidelines constitute the entire agreement between you and OnLive with respect to the subject matter hereof and supersede all prior or contemporaneous communications, negotiations and proposals with respect to such subject matter. You may not assign or transfer the Terms or any of your rights or obligations under the Terms (whether by operation of law or otherwise) without the prior written consent of OnLive. 25. Beta Program OnLive may from time-to-time establish a Beta program (“Beta”) to give certain users an opportunity to test and experience additional new features of the Services, pay for and use third party content, and gather feedback on the new features and content on the Services. Any and all information made available to you by virtue of your participation in a Beta, whether furnished to you directly by OnLive or learned by you through your access to a Beta, is confidential to OnLive. For example, you may not do any Tweets, Facebook posts, or other online posting of details, and you may not post or otherwise communicate screenshots, or videos, or any other content whatsoever about your participation in a Beta. You may disclose that you are a participant in a Beta, but you may not discuss with or disclose to any third party any information you learn through a Beta including your opinions regarding a Beta. If you are chosen to participate in a Beta, you will: * Carry out the testing in connection with a Beta personally. You will not display or provide access to the Services to any other person. * Use your best efforts to secure your system and the Beta against unauthorized access or disclosure. * Never disclose any information about a Beta, including, without limitation, any information about the Services provided or made available by OnLive or any hardware, software, screenshots, video, or other code or scripts to any third party. * Never discuss gameplay, quality of service, or bugs encountered while using a Beta anywhere outside of OnLive’s provided in-site forums and customer support. * Delete and destroy all information related to a Beta in your possession or control immediately upon the request of OnLive, and confirm deletion and destruction of such information if requested to do so by OnLive. You agree that any breach by you of this confidentiality provision will cause irreparable harm to OnLive, and OnLive is entitled to seek ex parte injunctive relief to prevent the breach or threatened breach of your obligations. As a Beta user, you agree to: * Test and evaluate a Beta and/or devices to be used with the Beta, including, but not limited to, audiovisual content, features, functionality, capabilities, operation, Service performance and device performance. * Inform OnLive of any bugs or other defects you encounter in connection with the Services. * Receive all software updates and upgrades, if any that OnLive sends to the MicroConsole, to your computer, or to any hardware or software associated or used in connection with the Services, including the Controller. * Comply with reasonable requests and instructions from OnLive in connection with Beta, which may be provided from time to time during a Beta, including, but not limited to, requests and instructions to test or evaluate specific aspects of the Services. * Provide OnLive with your comments, feedback, evaluations, analyses, suggestions and recommendations regarding a Beta (“Feedback”), all as voluntarily provided by you or as may otherwise be requested by OnLive. Your participation in a Beta is strictly voluntary and for your enjoyment. While your participation in a Beta is helpful, you understand that it is not a vital part of the development of the Services so as to give you any right to compensation. Participation in one phase of a Beta does not entitle you to participation in any other phase of a Beta, if any, or to any compensation with respect to the Services. You acknowledge and agree that your participation in a Beta (or any phase of a Beta) does not give you any claim of ownership to any part of the Services. All Feedback that you provide or make available to OnLive during a Beta, however communicated by you and whether at OnLive’s request or not, shall be the sole and exclusive property of OnLive, and you hereby irrevocably assign to OnLive all of your right, title and interest in and to such Feedback, including, without limitation, any and all intellectual property rights in or to any such Feedback. Without limiting the generality of the preceding sentence, you agree that OnLive and its successors, assigns and licensees shall have the perpetual and irrevocable right to reproduce, modify and otherwise use and exploit all of the Feedback (and any and all portions and derivatives thereof) in any manner now known or hereafter devised for any purposes, including, but not limited to, in connection with the development and exploitation of the Services or any other product or service, without any compensation or the provision of any credit to you. You hereby waive all “moral rights” with respect to all Feedback and all copyrights therein to the extent such moral rights can be waived under the existing law of any jurisdiction, and all uses thereof, and consent to any action of OnLive that would violate such moral rights in the absence of such waiver or consent. All other terms in the Terms continue to apply to your participation in a Beta.