ESA Foundation
ESA Foundation

Terms of Use

Last Updated: June 19, 2020

IMPORTANT – THIS IS A LEGAL AGREEMENT BETWEEN YOU (referenced herein as “YOU” or “USER” or “YOUR”) ON ONE HAND, AND THE ESA FOUNDATION AND ITS AFFILIATES (collectively, “ THE FOUNDATION”) ON THE OTHER HAND, WHICH APPLIES EACH TIME YOU USE OR ACCESS THE WEBSITE(S) PROVIDED BY THE FOUNDATION. YOU SHOULD READ CAREFULLY THE FOLLOWING TERMS AND CONDITIONS CONTAINED IN THIS TERMS OF USE AGREEMENT (“TOU”) AS THEY GOVERN YOUR ACCESS AND USE OF THE AVAILABLE INFORMATION, SERVICES, SOFTWARE FUNCTIONALITY, OR MATERIALS PROVIDED THROUGH THE FOUNDATION WEBSITES (individually, “WEBSITE” and collectively, “WEBSITES”). THE FOUNDATION IS WILLING TO AUTHORIZE YOUR USE OF THIS WEBSITE AND PROVIDE THE RELATED INFORMATION, SERVICES, SOFTWARE FUNCTIONALITY, OR MATERIALS TO YOU ONLY ON THE CONDITION THAT YOU ACCEPT AND AGREE TO ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS TOU. IF YOU DO NOT AGREE WITH THIS TOU, YOU ARE NOT GRANTED PERMISSION TO ACCESS OR OTHERWISE USE THIS WEBSITE AND ARE INSTRUCTED TO IMMEDIATELY EXIT THIS WEBSITE.

Terms and Conditions

  1. LICENSE GRANT. This TOU provides to you a personal, revocable, limited, non-exclusive, royalty-free, non-sublicenseable, non-transferable license to use the Website conditioned on your continued compliance with this TOU. You may print and download materials and information from the Website solely for your personal use, provided that all copies contain all copyright and other applicable notices contained in such materials and information. The content, layout, formatting, features of, and access privileges for the Website shall be as determined by THE FOUNDATION in its sole discretion. You also acknowledge and agree to the following:  (i) THE FOUNDATION has the right to control and direct the means, manner, and method by which the Website is provided; (ii) THE FOUNDATION may from time to time engage independent contractors, consultants, or subcontractors to aid THE FOUNDATION in providing the Website or use thereof; and (iii) THE FOUNDATION has the right to provide the Website to others.
  1. RESTRICTIONS. Notwithstanding the foregoing, you may not modify, translate, decompile, create derivative work(s) of, copy, distribute, disassemble, broadcast, transmit, publish, remove, or alter any proprietary notices or labels on, license, sublicense, transfer, sell, mirror, frame, exploit, rent, lease, private label, grant a security interest in, or otherwise use in any manner not expressly permitted herein, the Website or any content or materials made available on the Website. Specifically, and by way of illustration and not limitation, you may not separate and use any graphics, photographs, or other audio, visual, or video elements from the accompanying text or material appearing on the Website without the prior express written permission of THE FOUNDATION and/or its licensor(s). Moreover, you may not:  (i) use any “deep link,” “page scrape,” “robot,” “spider,” or other automatic device, program, script, algorithm, or methodology, or any similar or equivalent manual process, to access, acquire, copy, or monitor any portion of the Website or in any way reproduce or circumvent the navigational structure or presentation of the Website to obtain or attempt to obtain any materials, documents, or information through any means not purposely made available through the Website; (ii) attempt to gain unauthorized access to any portion or feature of the Website or any other systems or networks connected to the Website or to any FOUNDATION server or to any of the services offered on or through the Website, by hacking, password “mining,” or any other illegitimate or prohibited means; (iii) probe, scan, or test the vulnerability of the Website or any network connected to the Website, nor breach the security or authentication measures on the Website or any network connected to the Website; (iv) reverse look-up, trace, or seek to trace any information on any other user of or visitor to the Website; (v) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Website or THE FOUNDATION’s systems or networks or any systems or networks connected to the Website; (vi) use any device, software, or routine to interfere with the proper working of the Website or any transaction conducted on the Website, or with any other person’s use of the Website; (vii) forge headers, impersonate a person, or otherwise manipulate identifiers in order to disguise your identity or the origin of any message or transmittal you send to THE FOUNDATION on or through the Website; (viii) use the Website to harvest or collect e-mail addresses or other contact information; (ix) distribute any unauthorized materials or advertise or promote goods or services through the Website without THE FOUNDATION’s permission (including, without limitation, by sending spam or any other similar solicitation); or (x) use the Website in an unlawful manner or in a manner that could damage, disparage, or otherwise negatively impact THE FOUNDATION.
  1. USER OBLIGATIONS. By downloading, accessing, or using the Website in order to view any information and materials, register, enter into a transaction with or through THE FOUNDATION for any reason, or submit information of any kind, you represent that you are at least eighteen (18) years of age (or the legal age of majority (whichever is greater)) and will, at all times, provide true, accurate, current, and complete information when submitting information or materials on the Website, including, without limitation, when you provide information via a Website registration or submission form. If you provide any false, inaccurate, untrue, or incomplete information, THE FOUNDATION reserves the right to immediately terminate your access to and use of the Website. In addition, you agree to abide by all applicable local, state, national, and international laws and regulations with respect to your use of the Website. You also acknowledge and agree that use of the Internet and access to the Website is solely at your own risk. While THE FOUNDATION has endeavored to create a secure and reliable Website, you should understand that the confidentiality of any communication or material transmitted to or from the Website over the Internet or other form of global communication network cannot be guaranteed. Accordingly, THE FOUNDATION is not responsible for the security of any information transmitted to or from the Website. You must make your own determination as to such issues.
  1. PRIVACY POLICY. By accessing and using the Website, you acknowledge and consent to our use of your information as explained in THE FOUNDATION’s Privacy Policy located at http://www.esafoundation.org/privacy-policy
  1. USER NAME HANDLING POLICY. Registration as a User for access to certain areas of the Website may require both a user name and a password or adherence to other particular access requirements as designated by THE FOUNDATION. Only one user can use such user’s user name and password and, thus, one account. By limiting access, it helps prevent unauthorized usage by other persons, institutions, or entities because anyone with knowledge of both your user name and password can gain entry to the restricted portions of the Website and to your account. Accordingly, by using the Website, you agree to consider your user name and password as confidential information and to keep your user name and password confidential. You also agree not to use another user’s user name and password. You will immediately notify THE FOUNDATION if you become aware of any loss or theft of your password or any unauthorized use of your user name and password. THE FOUNDATION cannot and will not be liable for any loss or damage arising from your failure to comply with these obligations. THE FOUNDATION reserves the right to delete or change a user name or password at any time and for any reason. Notwithstanding the foregoing, nothing herein shall convey to you any further rights in your account or its information and any and all such content or information shall be subject to this TOU.
  1. Mobile Services. The Website may offer certain tools or services that are available to you via your mobile phone or other mobile device (collectively, “Mobile Services”). Please note that your mobile carrier’s normal messaging, data, and other rates and fees will apply to your use of Mobile Services. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your mobile carrier, and not all Mobile Services may work with all carriers or devices. Therefore, you are responsible for checking with your mobile carrier to determine if Mobile Services are available for your mobile devices, what restrictions, if any, may be applicable to your use of Mobile Services, and how much they will cost you. Nevertheless, all use of the Website and its Mobile Services must be in accordance with this TOU.
  1. POSTINGS. This Website may contain interactive features and functionality where users can share and post certain creative content. To the extent that the Website contains such interactive features (collectively, “Interactive Features”), you agree that by using the Website, you will not upload, post, display, or transmit any of the following materials on the Website’s Interactive Features:
  1. PROPRIETARY RIGHTS. This TOU provides only a limited license to access and use the Website. Accordingly, you expressly acknowledge and agree that THE FOUNDATION transfers no ownership or intellectual property interest or title in or to the Website to you or anyone else. All text, graphics, headers, icons, user interfaces, visual interfaces, photographs, sounds, artwork, computer code (including HTML, CSS, XML, and JavaScript code), programs, software, products, information, and documentation, as well as the design, structure, selection, coordination, expression, “look and feel,” and arrangement of any content contained on or available through the Website, unless otherwise indicated, are owned, controlled, and licensed by THE FOUNDATION and its successors and assigns or their licensors, and are protected by law, including, without limitation, United States copyright, trade secret, patent, and trademark law, as well as other state, national, and international laws and regulations. Except as expressly provided herein, THE FOUNDATION does not grant any other express or implied right to you or any other person in any intellectual or proprietary rights. Your unauthorized use of the Website may violate intellectual property or other proprietary rights laws as well as other laws, regulations, and statutes. THE FOUNDATION also owns a copyright in the contents of the Website as a collective work and/or compilation and in the selection, coordination, arrangement, and enhancement of the content of the Website. THE FOUNDATION, Entertainment Software Association, E3, Game Generation, and all other names, designs, logos, and icons identifying THE FOUNDATION, its affiliates, and any of their respective programs, events, solutions, and services, are proprietary trademarks of THE FOUNDATION, and any use of such marks, including, without limitation, as domain names, without the express written permission of THE FOUNDATION is strictly prohibited. Other products, associations, organizations, and company names mentioned herein may be the trademarks and/or service marks of their respective owners.
  1. FEEDBACK AND SUBMISSIONS. THE FOUNDATION welcomes your feedback and suggestions about THE FOUNDATION’s programs or services or with respect to how to improve the Website. By transmitting any suggestions, information, material, or other content (collectively, “Feedback”) to THE FOUNDATION, you represent and warrant that such Feedback does not infringe or violate the intellectual property or proprietary rights of any third party (including, without limitation, patents, copyrights, or trademark rights) and that you have all rights necessary to convey to THE FOUNDATION and enable THE FOUNDATION to use such Feedback. In addition, any Feedback received through the Website will be deemed to include a royalty-free, perpetual, irrevocable, transferable, non-exclusive, worldwide right and license for THE FOUNDATION to adopt, publish, reproduce, disseminate, transmit, distribute, copy, use, create derivative works, display (in whole or in part), and act on such Feedback without additional approval or consideration, in any form, media, or technology now known or later developed for the full term of any rights that may exist in such content, and you hereby waive any claim to the contrary.
  1. THIRD-PARTY PRODUCTS/SERVICES. THE FOUNDATION, in its sole discretion, may feature and/or post the advertisements of third parties on the Website and/or feature on the Website materials, programs, products, and services provided by third parties. THE FOUNDATION makes no representations with respect to nor does it guarantee or endorse the quality, non-infringement, accuracy, completeness, timeliness, reliability, or correct sequencing of such third-party materials, programs, products, and services or any other materials, programs, products, and services that such third-party materials, products, and services may access. Your correspondence or any other dealings with third parties found on the Website are solely between you and such third party. Accordingly, THE FOUNDATION expressly disclaims responsibility and liability for all third-party-provided materials, programs, products, and services contained on or accessed through the Website, and you agree that THE FOUNDATION shall not be responsible for any loss or damage of any sort incurred as a result of any such dealings or as the result of the presence of such third parties on the Website.
  1. LINKS TO OTHER WEBSITES. THE FOUNDATION, in its sole discretion, may provide links to other websites on the Internet for your convenience in locating or accessing related information, products, and services. These websites have not necessarily been reviewed by THE FOUNDATION and are maintained by third parties over which THE FOUNDATION exercises no control. Accordingly, THE FOUNDATION expressly disclaims any responsibility for the content, the materials, the accuracy of the information, and/or the quality of the products or services provided by, available through, or advertised on these third-party websites. Moreover, these links do not imply an endorsement with respect to any third party or any website or the products or services provided by any third party.
  1. DISCLAIMER. THE INFORMATION, SOFTWARE FUNCTIONALITY, AND MATERIALS AVAILABLE ON OR THROUGH THIS WEBSITE ARE PROVIDED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS AND MAY INCLUDE ERRORS, OMISSIONS, OR OTHER INACCURACIES. MOREOVER, THE FOUNDATION MAY MAKE MODIFICATIONS AND/OR CHANGES TO THIS WEBSITE OR IN THE PRODUCTS, SOFTWARE, MATERIALS, AND INFORMATION AVAILABLE ON THIS WEBSITE AT ANY TIME AND FOR ANY REASON. THE FOUNDATION MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, COMPLETENESS, TIMELINESS, RELIABILITY, LEGALITY, OR ACCURACY OF THE PROGRAMS, PRODUCTS, SERVICES, SOFTWARE, MATERIALS, AND INFORMATION AVAILABLE ON THIS WEBSITE FOR ANY PURPOSE, AND EXPRESSLY DISCLAIMS (TO THE FULLEST EXTENT OF THE LAW) ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OR ANY OTHER IMPLIED WARRANTY UNDER THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT AS ENACTED BY ANY STATE. THE FOUNDATION ALSO MAKES NO REPRESENTATION OR WARRANTY THAT THIS WEBSITE WILL OPERATE ERROR-FREE OR IN AN UNINTERRUPTED FASHION, OR THAT ANY MESSAGE, FILE, AND/OR INFORMATION WILL BE STORED, ARCHIVED, OR DOWNLOADED FROM THE WEBSITE IN A MANNER FREE OF VIRUSES, CONTAMINATION OR OTHER DESTRUCTIVE FEATURES.
  1. LIMITATION OF LIABILITY. You expressly absolve and release THE FOUNDATION and our subsidiaries and affiliates, and each of our or its respective directors, officers, employees, agents, members, and assigns, from any claim of harm resulting from a cause beyond our or its control, including, without limitation, failure of electronic or mechanical equipment or communication lines, telephone or other connection problems, computer viruses, unauthorized access, theft, operator errors, severe weather, earthquakes, or natural disasters, strikes, or other labor problems, wars, or governmental restrictions. MOREOVER, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE FOUNDATION AND OUR SUBSIDIARIES AND AFFILIATES, AND ANY OF OUR OR ITS RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, MEMBERS, AND ASSIGNS, BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THIS WEBSITE, WITH THE DELAY OR INABILITY TO USE THIS WEBSITE, THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY INFORMATION, SOFTWARE FUNCTIONALITY, AND MATERIALS AVAILABLE THROUGH THIS WEBSITE, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, TOTAL LIABILITY OF THE FOUNDATION AND OUR SUBSIDIARIES AND AFFILIATES,  AND ANY OF OUR OR ITS RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, MEMBERS, AND ASSIGNS, FOR ANY REASON WHATSOEVER RELATED TO USE OF THE WEBSITES SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU TO THE FOUNDATION IN CONNECTION WITH THE SUBJECT MATTER OF THE PARTICULAR DISPUTE OR $2,500 (U.S.), WHICHEVER IS LESS.
  1. INDEMNIFICATION.  You agree to indemnify, defend, and hold harmless THE FOUNDATION and our subsidiaries and affiliates, and each of our or its respective directors, officers, employees, agents, members, and assigns, from and against any and all loss, costs, expenses (including reasonable attorneys’ fees and expenses), claims, damages, and liabilities related to or arising out of your use of the Websites and any alleged violation by you of this TOU. We reserve the right to assume the exclusive defense of any claim for which we are entitled to indemnification under this Section. In such event, you shall provide us with such cooperation as we reasonably request.
  1. INFRINGEMENT.  THE FOUNDATION encourages you to report material or content you believe warrants removal from the Websites. In particular, if you believe that any material on the Websites infringes your work or the work of any third party in a manner that constitutes infringement, then you may notify THE FOUNDATION in accordance with this section. To notify THE FOUNDATION of copyright infringement on the Websites, please send THE FOUNDATION a written notice by e-mail to the address or e-mail below that includes all of the following information:

THE FOUNDATION Designated Agent for Copyright Notices:

ESA FOUNDATION

Attn.: IP Protection & Security

601 Massachusetts Avenue, NW, Suite 300 West

Washington, DC 20001

202-223-2400

notice@theesa.com

Please note that if you knowingly give false, misleading, or inaccurate information regarding the existence of infringing content, we may suspend your account and you may face other legal consequences.

THE FOUNDATION will treat notices that meet these requirements in accordance with the U.S. Digital Millennium Copyright Act of 1998 (“DMCA”). If THE FOUNDATION has taken down any material or content that you believe should not have been removed, you can send THE FOUNDATION a written counter-notice. Please be sure your counter-notice meets the DMCA requirements and THE FOUNDATION will follow the process set out in the DMCA. You may find out more about the DMCA at http://copyright.gov.

THE FOUNDATION will promptly terminate without notice the accounts of users who have been notified of infringing activity or have had Postings removed from the Websites at least three (3) times (“Repeat Infringers”). Repeat Infringers will not be tolerated on the Websites.

  1. GOVERNING LAW. This TOU has been made in and will be construed and enforced in accordance with the laws of the District of Columbia as applied to agreements entered into and completely performed in the District of Columbia and without regard to principles of conflicts of laws. You agree that any claim or dispute against us arising out of this TOU and/or the Websites must be resolved by the U.S. District Court for the District of Columbia, unless agreed upon in writing by all parties. You access the Website voluntarily and you are responsible for compliance with all applicable laws with respect to your access and use of the Website.
  1. ENFORCING SECURITY ON THE WEBSITE. Actual or attempted unauthorized use of the Website may result in criminal and/or civil prosecution, including, without limitation, punishment under the Computer Fraud and Abuse Act of 1986 under U.S. federal law. THE FOUNDATION reserves the right to view, monitor, and record activity on the Website without notice or permission from you, including, without limitation, by archiving notices or communications sent by you through the Website. Any information obtained by monitoring, reviewing, or recording is subject to review by law enforcement organizations in connection with investigation or prosecution of possible criminal or unlawful activity on the Website as well as to disclosures required by or under applicable law or related government agency actions. THE FOUNDATION will have the right to comply fully with any court orders or subpoenas involving requests for such information. In addition to the foregoing, THE FOUNDATION reserves the right, at any time and without notice, to modify, suspend, terminate, or interrupt operation of or access to the Website or any portion of the Website in order to protect the Website, THE FOUNDATION, or THE FOUNDATION’s business.
  1. INJUNCTIVE RELIEF. You acknowledge that any breach, threatened or actual, of this TOU, including, without limitation, with respect to unauthorized use of THE FOUNDATION proprietary assets, will cause irreparable injury to THE FOUNDATION, that such injury would not be quantifiable in monetary damages, and that THE FOUNDATION would not have an adequate remedy at law. You therefore agree that THE FOUNDATION shall be entitled, in addition to other available remedies, to seek and be awarded an injunction or other appropriate equitable relief from a court of competent jurisdiction restraining any breach, threatened or actual, of your obligations under any provision of this TOU. Accordingly, you hereby waive any requirement that THE FOUNDATION post any bond or other security in the event any injunctive or equitable relief is sought by or awarded to THE FOUNDATION to enforce any provision of this TOU.
  1. TERM AND TERMINATION. This TOU will take effect (or re-take effect) at the moment you register, respond to a request for information, and/or begin downloading, accessing, or using the Website, whichever is earliest. THE FOUNDATION reserves the right, at any time and on reasonable grounds, which shall include, without limitation, any reasonable belief of fraudulent or unlawful activity or actions or omissions that violate any term or condition of this TOU, to deny your access to the Website or to any portion thereof in order to protect its name and goodwill, its business, and/or other users, and this TOU will also terminate automatically if you fail to comply with its terms and conditions, subject to the survival rights of certain provisions identified below. Termination will be effective without notice. You may also terminate this TOU at any time by notifying us at the contact provided at the bottom of this TOU, but all applicable provisions of this TOU will survive termination as identified below and each re-access or use of the Website will reapply the TOU (then in effect) to you. Upon termination, you must destroy all copies of any aspect of the Website in your possession. The provisions concerning THE FOUNDATION’s proprietary rights, feedback and submissions, disclaimers of warranty and liability, admissibility of this TOU, waiver and severability, entire agreement, governing law, and any other provisions that by their nature should survive, will survive the termination of this TOU for any reason.
  1. WAIVER & SEVERABILITY. Failure to insist on strict performance of any of the terms and conditions of this TOU will not operate as a waiver of any subsequent default or failure of performance. No waiver by THE FOUNDATION of any right under this TOU will be deemed to be either a waiver of any other right or provision or a waiver of that same right or provision at any other time. If any part of this TOU is determined to be invalid or unenforceable pursuant to applicable law, including, without limitation, the warranty disclaimers and the liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most clearly matches the intent of the original provision, and the remainder of this TOU shall continue in effect.
  1. ENTIRE AGREEMENT. No joint venture, partnership, employment, affiliate, or agency relationship exists between you and THE FOUNDATION as result of this TOU or your use of the Website. This TOU and THE FOUNDATION’s Privacy Policy represent the entire agreement between you and THE FOUNDATION with respect to use of the Website, and they supersede all prior or contemporaneous communications and proposals, whether electronic, oral, or written, between you and THE FOUNDATION with respect to the Website. You may not assign or transfer any rights under this TOU without the prior written consent of THE FOUNDATION. Please note that THE FOUNDATION reserves the right to change the terms and conditions of this TOU by posting a revised TOU or mailing and/or e-mailing notice thereof to you. In addition, THE FOUNDATION may add, modify, or delete any aspect, program, or feature of the Website, but THE FOUNDATION is not under any obligation to add any upgrade, enhancement, or modification. Your continued use of the Website following any announced change will be conclusively deemed acceptance of any change to the terms and conditions of this TOU. Accordingly, please review the TOU found at this location on a periodic basis.

If you need to contact THE FOUNDATION regarding this TOU, please contact us at:

ESA FOUNDATION
Attn.:  Legal Department
601 Massachusetts Avenue, NW, Suite 300 West
Washington, DC 20001
202-223-2400
notice@theesa.com

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© 2020 ESA Foundation | EIN 06-1582325
601 Massachusetts Avenue NW, Suite 300 West Washington, DC 20001
202-223-2400 | ESAFInfo@TheESA.com
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