Terms of Service | Night Owl Games®

Terms of Service for Websites at:
(Revised August 31, 2012)
www.nightowlgames.net
www.nightowlgames.com
www.dungeonoverlord.com

PLEASE NOTE THAT OTHER OFFERINGS SUCH AS GAMES BY NOG (AS DEFINED BELOW) MAY HAVE ADDITIONAL TERMS AND CONDITIONS THAT MAY APPLY

Introduction

Night Owl Games, L. P., a Texas Limited Partnership with its principal place of business located at 1250 Wood Branch Park Dr., Suite 625, Houston, Texas 77079 (“NOG”), thanks you for visiting this NOG Website (“Site”). In return for gaining access to the Site and using it, you agree to be bound by the following Agreement without limitation or qualification, so please carefully review this Agreement before proceeding. If you do not intend to be legally bound by these terms and conditions, do not access or use the Site. NOG reserves the right to change this Agreement and to make changes to any of the products or programs described in the Site at any time without notice or liability. Any such revisions are prospectively binding on you and therefore you should periodically visit this page when you use the Site to review the then current Agreement that binds you. NOG also reserves the right in its sole and unfettered discretion to deny you access to the Site at any time. NOG enters into agreements with third-parties from time to time to provide opportunities to obtain services, products or promotions offered by the third-party.

Use of information you provide NOG

We may ask you to provide us with certain information. You agree that when you provide such information, the information will be accurate. Under no circumstances will you provide false or misleading information. UNLESS SET FORTH OTHERWISE IN THE PRIVACY STATEMENT AT http://nightowlgames.net/privacy-policy/, YOU CONSENT TO NOG USING ANY AND ALL INFORMATION RELATED TO YOU IN ANY WAY NOG (IN ITS SOLE AND ABSOLUTE DISCRETION) DEEMS APPROPRIATE, INCLUDING PROVIDING SUCH INFORMATION TO THIRD-PARTIES FOR ANY REASON. You further acknowledge that NOG may make changes to the Privacy Statement at any time. You also acknowledge that each and every time you use the Site you warrant and represent that you did read, understand and accept the most recent version of the Privacy Statement in effect at that time. NOG will not treat as confidential any communications you send to us by electronic mail, or by other means, unless set forth otherwise in the Privacy Statement. NOG has no obligation to refrain from publishing, reproducing, or otherwise using your communications in any way or for any purpose unless set forth otherwise in the Privacy Statement.

NOG does not accept or consider unsolicited proposals related to its business, including but not limited to proposals for product enhancements or modifications, advertising campaigns, logos, names, processes, products, promotions, services, slogans, and technologies. NOG therefore requests that you not send such proposals, original creative artwork, blueprints, demonstratives, designs, layouts, photographs, or samples. NOG has adopted this policy to prevent claims that we have copied such unsolicited material without authorization. If you do send NOG any of the foregoing, you do so with the understanding that NOG may use any original creative artwork, concepts, ideas, inventions, know-how, or techniques that you disclose in those communications for any purpose, including the developing, manufacturing, and/or marketing of goods, products, or services. NOG may do so free of any obligation to compensate you for therefore. This includes, but is not limited to any “user generated content” you provide to NOG, such as “fan art.” To the extent you choose to send such material to NOG, you hereby grant NOG a worldwide, non-exclusive, no-charge, royalty-free, sub-licensable, perpetual and irrevocable license and full authorization to exercise all rights of any kind or nature associated with any and all IP right(s) related to what you send, along with any and all ancillary and subsidiary rights thereto, in any languages and media now known or not currently known. Your license to NOG includes, but is not limited to, all necessary trademark licenses, all copyright licenses needed to reproduce, display, publicly perform, distribute and prepare derivative works of any such IP right, and all patent licenses needed to make, have made or otherwise transfer, use, offer to sell, sell, export and import related to such IP right(s). In addition to your indemnity obligation set forth below, you further agree to defend, indemnify and hold harmless NOG with respect to any claim by third-parties that any such license to any such IP right(s) misappropriates, violates or infringes any third-party IP right or other proprietary right.

Intellectual property notifications

Unless otherwise noted, all information, including but not limited to documents, articles, data, images, passwords, screens, text, user names, Web pages, or other materials (collectively “Content”) appearing on the Site are the exclusive property of NOG, or NOG parents, subsidiaries and affiliates:

All information, products, services and software contained on or used in the Site (“Content”) is Copyright 2007-2011 by NOG. All rights reserved. You are to assume that everything you see or read on the Site is copyrighted to, or used with permission by, NOG unless otherwise noted.

All trademarks, logos, service marks, and trade dress (collectively the “Trademarks”) displayed on the Site are registered and unregistered Trademarks of NOG or others.

Images of people, objects, or places displayed on the Site are either the property of, or used with permission by NOG.

NOG owns or uses by permission all software contained on the Site, including without limitation all HTML code and Active X controls. Copyright and other laws and international treaty provisions protect this software, and expressly prohibits any modification, redistribution, or reproduction of the software. Such actions could result in severe civil and criminal penalties, and NOG will seek and support prosecuting violators to the maximum extent possible.

You may not copy, display, distribute, download, license, modify, publish, re-post, reproduce, reuse, sell, transmit, use to create a derivative work, or otherwise use the content of the Site for public or commercial purposes. Nothing on the Site shall be construed to confer any grant or license of any intellectual property rights, whether by estoppel, by implication, or otherwise.

Your representations and warranties

You acknowledge, warrant and represent that you understand that the Site is not intended for minors under age 13, and that you will not allow access to the Site, or the viewing of any display thereof, by any minor under age 13.

By using the Site, warrant and represent that you: 1) are at least 18 years of age and otherwise legally competent to read, understand and accept the provisions of this Agreement on behalf of yourself; 2) are at least 18 years of age and otherwise legally competent to read, understand and accept the provisions of this Agreement on behalf of yourself and a minor age 13-17 for whom you are legally permitted to allow access to the Site; or 3) are a minor age 13-17 that has been authorized to use the Site as set forth below.

If you are at least 18 years of age and otherwise legally competent to read, understand and accept the provisions of this Agreement on behalf of yourself and a minor age 13-17 for whom you are legally permitted to allow access to the Site, you can choose to allow use of the Site by that minor subject to the following provisions:

(i) You acknowledge, and further agree, that each and every time that minor uses the Site they are entering into an agreement with your consent;

(ii) You acknowledge, and further agree, that each and every time that minor uses the Site they are entering into an agreement on your behalf;

(iii) You acknowledge, and further agree, that each and every time that minor uses the Site you are responsible for all the provisions they have agreed to on your behalf;

(iv) You acknowledge, and further agree, that each and every time that minor uses the Site you are legally responsible for all actions of that minor, including but not limited to any payments, damages and/or liabilities related to the actions of that minor;

(v) It is acknowledged and further agreed by the adult that both the adult and the minor are bound by any agreement which that minor accepts and that the adult has explained the provisions of this section to the minor, including the fact that both the adult and the minor are jointly and severally responsible under all the provisions of this Agreement. In addition, the adult hereby waives all rights to any and all notices under this Agreement that may be provided to the minor, and agrees to pay any and all costs, interests or attorney’s fees NOG may be entitled to obtain under this Agreement. Accordingly, it is acknowledged and further agreed that any reference to “you” under this Agreement includes both the adult at least 18 years of age and otherwise legally competent to read, understand and accept the provisions of this Agreement on behalf of themselves, as well as the minor age 13-17 for whom the adult is legally permitted to allow access to the Site.

(vi) In consideration for NOG allowing access to the Site by a minor, and in addition to the provisions of Section 13 below, the foregoing adult hereby guarantees and agrees to pay for any and all liabilities of any nature whatsoever incurred under this Agreement and to defend, indemnify and hold harmless NOG with respect thereto.

(vii) The foregoing adult acknowledges and understands that this guarantee is a continuing, unconditional, and irrevocable guarantee to pay for and to defend, indemnify and hold harmless NOG with respect to any claim related to such liabilities. All rights, remedies, and recourses afforded NOG by reason of this guarantee or otherwise are separate, cumulative, and non-exclusive. Such rights, remedies, and recourses may be pursued separately, successively, or concurrently, and any action taken by NOG with respect to such rights, remedies, and recourses shall in no way limit or prejudice any other legal or equitable right, remedy, or recourse which NOG may have.

You acknowledge, warrant and represent that you will comply with all applicable laws and regulations regarding export-controlled items, including, but not limited to, the requirement to register with the United States Department of State in accordance with the International Traffic in Arms Regulations (ITAR) found at Code of Federal Regulations Title 22, Part 120 et. seq. You acknowledge, warrant and represent that you will consult with the Department of State regarding any questions relating to compliance with the ITAR and will consult with the Department of Commerce regarding any questions relating to compliance with the Export Administration Regulations (EAR) found at Code of Federal Regulations Title 15, Part 730 et. seq. You acknowledge, warrant and represent that you are not precluded under the EAR from obtaining any goods or services from NOG.

Your indemnity obligation

You agree to defend, indemnify and hold harmless NOG, any third-parties under agreement with NOG, any parent, subsidiary or affiliate of NOG, and any employee, agent, supplier, licensee, customer, distributor, shareholder, director or officer of any of the foregoing, as well as any person using the Site and any person or entity that becomes aware of your use of the Site at any time, with respect to any and all claims, liabilities, injuries, damages, losses or expenses (including but not limited to attorney’s fees and costs) that arise under, from or in any way, directly or indirectly, relate to the Site (such as but not limited to any and all claims, demands, proceedings, suits and actions, including any related liabilities, obligations, losses, damages, deficiencies, penalties, taxes, levies, fines, judgments, settlements, expenses (including legal and accountants’ fees and disbursements) and costs (collectively “Claims”)), including without limitation any Claims alleging facts that if true would constitute your breach of this Agreement or any other agreement between you and NOG.

Limitations on your use

NOG provides the Site solely to permit you to determine the availability of goods and services offered by NOG or to otherwise make legitimate business transactions with NOG, and for no other purposes. The Site is for your personal, non-commercial use. You agree that you will use the Site’s services only to make legitimate business transactions for you or for another person for whom you are authorized to act both legally and under the terms of this Agreement. You agree to abide by the terms and conditions of purchase NOG imposes including, but not limited to, payment of all amounts when due and compliance with all rules regarding availability of goods and services. You are completely responsible for all charges, assessments, duties, fees, and taxes arising out of your use of the Site.

You agree that you will not misuse the Site. “Misuse” includes, but is not limited to, using the Site to do any of the following:

Distribute, disseminate, post, or publish any information or material that is unlawful, degrading, embarrassing, humiliating, intimidating, harmful, threatening, abusive, harassing, stalking, tortuous, defamatory, vulgar, obscene, libelous, that may be invasive of another’s right of privacy or publicity, or that is hateful, racially, ethnically or otherwise objectionable to any individual or to any individual or group of individuals on the basis of their age, ancestry, color, ethnicity, marital status, medical condition, mental or physical disability, national origin, race, sex, sexual orientation, union or nonunion affiliation, or any other basis protected by federal, state, or local law or ordinance;
Transmit or facilitate the transmission of any bloatware, malware, computer virus, worm, Trojan horse, spyware, adware, crimeware, scareware, rootkit, corrupted data, bot, keystroke logger, time bomb, cancelbot, or any other computer programming routines (or any program installed in a way that executable code of any program is scheduled to utilize or utilizes processor cycles during periods of time when such program is not directly or indirectly being used) that are intended to and/or actually hamper, damage, interfere with, intercept, mine, scrape or expropriate any computing system, any data or any personal information;
Transmit or facilitate the transmission of any material that you do not have a right to transmit, under any law or under contractual or fiduciary relationships (such as nondisclosure agreements);
Transmit or facilitate the transmission of any material infringing any IP right;
Transmit any Content related to the personal information of others;
Impersonate any person or entity, forum or Message Board leader, guide or host or falsely state or otherwise misrepresent your affiliation with a person or entity, including NOG;
Misrepresent or omit the origin or source of any material, including the deletion of any author attributions, legal notices or proprietary designations or labels relating to any upload or download;
Adversely affect the availability of the Site;
Engage in any commercial purpose including but not limited to: 1) transmitting or facilitating the transmission of any unsolicited advertising, promotional materials, “junk mail”, “spam”, “chain letters”, “pyramid schemes”, “Ponzi schemes” or any other form of solicitation; 2) otherwise advertising or offering to sell any goods or services, business opportunities, direct sales opportunities, employment, independent contractor positions, multi-level marketing opportunities, or securities; or 3) conducting contests or surveys;
Post, send, or otherwise disclose confidential information, trade secrets, or other confidential and/or protected proprietary data of any entity or person, including but not limited to NOG;
Upload, download, or otherwise export or re-export software from the Site: (1) to a national or resident of or into any country the U.S. has embargoed, including without limitation, Cuba, Iran, Iraq, Libya, North Korea, or Syria; (2) to anyone on the U.S. Treasury Department’s Specially Designated Nationals list; (3) to anyone on the U.S. Commerce Department’s Table of Denial Orders; or (4) that would constitute any other form of violation of U.S. export control laws.
Monitor or copy any portion, or all, of the Site by using any manual process, or any robot, spider, or other automatic device, without first obtaining NOG’ prior written and signed consent;
Take any action that will or could impose an unreasonable or disproportionately large load on Site infrastructure;
Copy or create derivative works from, display, distribute, license, perform, publish, recreate, reproduce, sell, transfer, or transmit any information, products, services, or software obtained by, from, or through the Site;
Engage in any other conduct that is, or that NOG deems to be, in conflict with this Agreement.

NOG forbids any and all such Misuse, and access of the Site for such Misuse or other similar purposes is an unauthorized use of the Site.

NOG DISCLAIMER OF WARRANTIES, LIMITATION OF LIABILITY AND RELEASES

(a) ANY SERVICE, CONTENT OR SOFTWARE FROM NOG, ANY THIRD-PARTIES UNDER AGREEMENT WITH NOG, ANY PARENT, SUBSIDIARY OR AFFILIATE OF NOG, OR ANY EMPLOYEE, AGENT, SUPPLIER, LICENSEE, CUSTOMER, DISTRIBUTOR, SHAREHOLDER, DIRECTOR OR OFFICER OF ANY OF THE FOREGOING, IS PROVIDED AT YOUR OWN RISK ON AN “AS AVAILABLE” “AS IS” BASIS IN ITS CURRENT CONDITION AND WITHOUT ANY REPRESENTATION, GUARANTEE, OR WARRANTY OF ANY KIND OR IN ANY WAY RELATED TO SERVICE, SUPPORT, INDEMNITY, ERROR FREE OR UNINTERRUPTED OPERATION, UPDATES, CORRECTION OF DEFECTS, OR THAT IT IS FREE FROM DEFECTS OR VIRUSES OR HARMFUL COMPONENTS OF ANY FORM WHATSOEVER. ALL SUCH OBLIGATIONS ARE HEREBY DISCLAIMED AND YOU HEREBY ACKNOWLEDGE THAT NOG, ANY THIRD-PARTIES UNDER AGREEMENT WITH NOG, ANY PARENT, SUBSIDIARY OR AFFILIATE OF NOG, AND ANY EMPLOYEE, AGENT, SUPPLIER, LICENSEE, CUSTOMER, DISTRIBUTOR, SHAREHOLDER, DIRECTOR OR OFFICER OF ANY OF THE FOREGOING, EXPRESSLY DISCLAIM ALL WARRANTIES OR CONDITIONS OF ANY KIND, WRITTEN OR ORAL, EXPRESS OR IMPLIED, STATUTORY OR BY OPERATION OF LAW, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, ACCURACY, COMPLETENESS, OPERABILITY, QUALITY OF SERVICE, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE. SOME STATES DO NOT ALLOW ALL SUCH DISCLAIMERS OF IMPLIED WARRANTIES, SO THEY MAY NOT ALL APPLY TO YOU. BY ENTERING THIS AGREEMENT TO USE NOG SERVICE, CONTENT OR SOFTWARE YOU ACCEPT THE FOREGOING DISCLAIMER OF WARRANTIES / ALLOCATION OF RISK AND AGREE TO RELEASE NOG, ANY THIRD-PARTIES UNDER AGREEMENT WITH NOG, ANY PARENT, SUBSIDIARY OR AFFILIATE OF NOG, AND ANY EMPLOYEE, AGENT, SUPPLIER, LICENSEE, CUSTOMER, DISTRIBUTOR, SHAREHOLDER, DIRECTOR OR OFFICER OF ANY OF THE FOREGOING, FROM ANY AND ALL WARRANTIES AND OBLIGATIONS TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE FOREGOING ARE ESSENTIAL TERMS OF THIS AGREEMENT AND, IF ANY OF THESE TERMS ARE CONSTRUED AS UNENFORCEABLE, FAIL IN ESSENTIAL PURPOSE, OR BECOME VOID OR DETRIMENTAL TO NOG, ANY THIRD-PARTIES UNDER AGREEMENT WITH NOG, ANY PARENT, SUBSIDIARY OR AFFILIATE OF NOG, AND ANY EMPLOYEE, AGENT, SUPPLIER, LICENSEE, CUSTOMER, DISTRIBUTOR, SHAREHOLDER, DIRECTOR OR OFFICER OF ANY OF THE FOREGOING, THEN ANY LICENSE YOU MAY HAVE UNDER THIS AGREEMENT SHALL TERMINATE IMMEDIATELY. MOREOVER, YOU ACKNOWLEDGE THE FOREGOING SHALL SURVIVE ANY EXPIRATION OR TERMINATION OF ANY LICENSE, AGREEMENT OR USE RELATED TO THE SITE.

(b) IN NO EVENT SHALL NOG, ANY THIRD-PARTIES UNDER AGREEMENT WITH NOG, ANY PARENT, SUBSIDIARY OR AFFILIATE OF NOG, OR ANY EMPLOYEE, AGENT, SUPPLIER, LICENSEE, CUSTOMER, DISTRIBUTOR, SHAREHOLDER, DIRECTOR OR OFFICER OF ANY OF THE FOREGOING BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, LIQUIDATED, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, REVENUE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED OR BASED ON ANY THEORY OF LIABILITY (INCLUDING BUT NOT LIMITED TO CONTRACT, STRICT LIABILITY, TORT OR ANY FORM OF NEGLIGENCE) ARISING IN ANY WAY RELATED TO THIS AGREEMENT OR USE OF THE SITE, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. SOME STATES DO NOT ALLOW ALL SUCH LIMITATIONS OF LIABILITY, SO THEY MAY NOT ALL APPLY TO YOU. BY ENTERING THIS AGREEMENT TO USE NOG SERVICE, CONTENT OR SOFTWARE YOU ACCEPT THE FOREGOING LIMITATION OF LIABILITY / ALLOCATION OF RISK AND AGREE TO RELEASE NOG, ANY THIRD-PARTIES UNDER AGREEMENT WITH NOG, ANY PARENT, SUBSIDIARY OR AFFILIATE OF NOG, AND ANY EMPLOYEE, AGENT, SUPPLIER, LICENSEE, CUSTOMER, DISTRIBUTOR, SHAREHOLDER, DIRECTOR OR OFFICER OF ANY OF THE FOREGOING, FROM ANY AND ALL LIABILITIES, OBLIGATIONS, CLAIMS, OR DEMANDS THAT MAY ARISE UNDER, FROM OR IN ANY WAY RELATE TO THIS AGREEMENT, DIRECTLY OR INDIRECTLY, IN EXCESS OF AN ENTIRE AND AGGREGATE MAXIMUM AMOUNT WHOSE TOTAL SHALL NOT EXCEED THE LESSER OF: 1) ONE HUNDRED (100) US DOLLARS; OR 2) THE AMOUNT PAID BY YOU IN CONNECTION WITH ONE ACCOUNT. THE FOREGOING SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE FOREGOING ARE ESSENTIAL TERMS OF THIS AGREEMENT AND, IF ANY OF THESE TERMS ARE CONSTRUED AS UNENFORCEABLE, FAIL IN ESSENTIAL PURPOSE, OR BECOME VOID OR DETRIMENTAL TO NOG, ANY THIRD-PARTIES UNDER AGREEMENT WITH NOG, ANY PARENT, SUBSIDIARY OR AFFILIATE OF NOG, AND ANY EMPLOYEE, AGENT, SUPPLIER, LICENSEE, CUSTOMER, DISTRIBUTOR, SHAREHOLDER, DIRECTOR OR OFFICER OF ANY OF THE FOREGOING, THEN ANY LICENSE YOU MAY HAVE UNDER THIS AGREEMENT SHALL TERMINATE IMMEDIATELY. MOREOVER, YOU ACKNOWLEDGE THE FOREGOING SHALL SURVIVE ANY EXPIRATION OR TERMINATION OF ANY LICENSE, AGREEMENT OR USE RELATED TO THE SITE.

Links to other sites and to the Site

The Site may provide hyperlinks or references to other sites. While NOG endeavors to provide links only to sites that are reputable and safe, we take no responsibility for the information, products, or services obtained on such other sites and will not be liable for any damages arising from your access to such sites. NOG provides any such links to other sites merely for your convenience and our inclusion of such links or frames in the Site does not imply an endorsement of the linked or framed sites, their content, or the persons or entities operating those sites. Therefore, you assume sole responsibility for using links or pointers to third-parties.

NOG specifically denies you permission to hyperlink or provide references to the Site, unless you are allowed to do so under a separate written and signed agreement with NOG. You are also denied permission to use any trademarked or copyrighted material to provide such hyperlinks or references, unless you are allowed to do so under a separate written and signed agreement with NOG. NOG bears no responsibility for sites that provide hyperlinks or references to the Site unless those sites are operated by NOG.

Your use of any Message Board

Your use of any electronic source of information related to the Site (including but not limited to any website, wiki, Message Board, thread, post, bulletin board, chat room, Usenet network, or other electronic information distribution mechanism) (“Message Board”) shall be solely to send and receive material and messages that are not a Misuse, that are proper and related to that Message Board, and that are in compliance with the terms of Agreement and all applicable laws.

NOG reserves the right to remove at will and without notice any material on the Site, including anything you post in a Message Board. You understand that any use by you of a Message Board constitutes a public communication. You understand that NOG owns any and all information or material that you post on a Message Board. You agree that you waive all of the rights you have to any information or material that you post on a Message Board. NOG has the right to do whatever it wishes with that information or material, including but not limited to deleting or editing for any reason any posting by you. You further acknowledge that NOG does not endorse or sponsor any information or material posted by any user of a Message Board, and that NOG has no responsibility to approve, review, or screen such information or material.

Other terms

This Agreement constitutes the entire agreement governing your access to, dealings with, and use of the Site. Of course, separate agreements may attach to any goods, products, or services you obtain, purchase, or use related to the Site. In the case of a conflict between this Agreement and any agreement specific to any goods, products, or services that you obtain, purchase, or use from the Site, the terms of the specific agreement shall govern.

It is your responsibility to read, understand and accept this Agreement each and every time you use the Site. You acknowledge that NOG may make changes to the provisions of this Agreement at any time and that section headings in this Agreement are for purposes of convenience only. You also acknowledge that each and every time you use the Site, you warrant and represent that you did read, understand and accept the provisions in effect at that time.

You acknowledge that any Uniform Resource Identifier, including but not limited to the www.nightowlgames.net Uniform Resource Locator (URL) is, in the sole and absolute discretion of NOG, subject to change at any time.

You and NOG shall both be excused from any failure to perform any obligation under this Agreement to the extent such failure is caused by war, terrorism, acts of public enemies, strikes or other labor disturbances, fires, floods, acts of God, or any causes of like or different kind beyond the control of NOG or you, as applicable under the circumstances.

Signed written consent from a legally authorized representative of NOG is required to waive any provisions of this Agreement. Any waiver of any provision of this Agreement, intentional or otherwise, shall not be deemed a waiver of any other provisions of this Agreement.

Notwithstanding the fact NOG drafted this Agreement, no rule of strict construction shall be applied against NOG. If any provision of this Agreement is determined to be unenforceable as a result of any proceeding (e.g., any arbitration or other proceeding, including any legal proceeding in court or before an administrative agency), that provision shall be deemed to be modified to the extent necessary to allow it to be enforced to the extent permitted by law, or if it cannot be so modified, that provision will be severed and deleted from this Agreement, and the remainder of this Agreement will continue in effect.

You acknowledge that your breach of this Agreement may result in irreparable harm and loss to NOG, and upon a breach of this Agreement NOG shall be entitled to immediate injunctive relief from a court of competent jurisdiction, which is in addition to, not in lieu of remedies at law and/or any other remedies set forth in this Agreement.

This Agreement and any controversy related to this Agreement shall be interpreted in accordance with and governed by the laws of the state of Texas, or, as appropriate, by federal law as applied by a federal court sitting in Texas, both without regard to Texas choice of law rules. You and NOG expressly agree that the United Nations Convention on Contracts for the International Sale of Goods do not apply to this Agreement or to transactions processed under the Agreement. To the extent not otherwise precluded by any other provision of this Agreement or any other agreement between you and NOG, any and all Dispute(s) and litigation(s) arising out of or related to this Agreement, including without limitation matters connected with its performance, shall be subject to the exclusive jurisdiction of the courts of Texas, sitting in Houston, Texas, and/or the Federal courts sitting therein. You and NOG hereby irrevocably submit to the personal jurisdiction of such courts and irrevocably waive all objections to such venue.

All Software, Content and any documentation are “commercial items” as defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, or any successor or similar regulations, all U.S. Government end users acquire the software and documentation with only those rights set forth herein. Contractor/manufacturer is Night Owl Games L. P., 1250 Wood Branch Park Dr., Suite 625, Houston, Texas 77079, Attn: support@nightowlgames.net

APPENDIX

Privacy Statement

(Revised December 29, 2011)

Night Owl Games, L.P.

This privacy statement applies to any service or Website of Night Owl Games, L.P. (“NOG” or “we” or “our“) that collects data or displays these terms, as well as our offline product support services. It does not apply to any Website, service or product that does not display or link to this privacy statement or that has its own privacy statement. Your use of any Night Owl Games, L.P. service or Website is pre-conditioned upon your review and acceptance of this privacy statement, as well as any applicable user agreement and/or terms of service (“Terms of Service”).

We collect information as part of operating our services and Websites. We may ask you for personal information (such as Facebook® account related information (including, but not limited to, the name associated with that account, profile picture, gender, networks, user ID, list of friends, and any other information available via that account, public or otherwise), age, birth date, e-mail address, name, home or work address, and telephone number, as well as the foregoing information related to any of your personal contacts (such as your friends)). If you make any purchase, we may ask for additional information (such as your name, credit card number, credit card expiration date, credit card ZIP code, credit card billing address, and credit card security/verification code(s)). We may also collect demographic information (such as your age, birth date, gender, ZIP code, preferences, interests, favorites, IP address, access times (or any other times related to use or non-use), entering Website address(es), exiting Website address(es), referring Website address(es), search engines used to find our Website, keywords used to find our Website, pages viewed in our Website, browser type, browser language, browser add-ons, browser width and browser height).

You may be required to obtain and provide a user identification or other login information (such as a password or Facebook® account) in order to access any NOG service or Website, and we may also use that information to access third-party Websites and services (such as those related to a Facebook® account). In doing so, we may utilize “Web Identifiers” (such as “cookies,” “single-pixel GIFs,” or “clear GIFs”) to collect information about any pages you view, links you click, and other activities you may engage on using any Website.

You may also receive advertisements, newsletters or promotional e-mail from NOG, for which we may obtain information from, or provide information to, third-parties which could include any of the information referenced above – including but not limited to Web Identifiers. We may also contact you regarding specific issues related to our services and Websites (such as issues related to a purchase you have made or your login information).

For additional details, please note the following:

Your Privacy
The Websites and services covered by this privacy statement
Our policies concerning children
What information we collect from you or about you
Information on cookies and related technology
How we use and share the information that we collect from you
Information about co-provided Websites and services
Information about links and third parties related to any NOG Website or service
How you may access, change or delete the information you have provided to us
Other important agreements that govern your use of any NOG Website or service
Information for persons outside the United States
Our commitment to secure the information we have collected
Notice of changes to this privacy statement

Your Privacy

As further discussed in this privacy statement, we may from time to time provide you with the opportunity to receive information about products and services offered by NOG and/or our third parties. You can prevent future use of your information by NOG for marketing purposes, at no charge, by “opting out” as follows:

1. You can expressly request to “opt out” via email to: support@nightowlgames.net;

2. If one is available, you can access your user profile and modify your privacy preferences for “opting out “of direct marketing communications from NOG and/or our third parties; or

3. If one is available, you can click on a link in an electronic marketing communication from NOG that will allow you to “unsubscribe” from future marketing communications from NOG.

If you choose to “opt out,” NOG may in its sole and absolute discretion choose not to permit you access, in whole or in part, to any NOG Website or service.

The Websites and services covered by this privacy statement

We currently operate the Website located at www.nightowlgames.net, including all of its subsites (typically web pages whose URL ends with “nightowlgames.net,” including the examples set forth below) and all software, hardware, products, features, games, services and other offerings made available, displayed, or offered by or through our Website or subsites (collectively, “NOG Game(s)”).

In addition, we own the domain name www.DungeonOverlord.com. We also own or control other domain names such as www.nightowlgames.com. The Websites at www.nightowlgames.com and www.DungeonOverlord.com are covered by this privacy statement, and any other Websites and subsites at domain names we own or control are also considered part of NOG for purposes of this privacy statement (unless that Website does not display or link to this privacy statement or has its own privacy statement).

Examples of subsites include:

dungeonoverlord.nightowlgames.net

support.nightowlgames.net

forum.nightowlgames.net

From time to time, we may add new NOG Websites or subsites that may not initially be listed above, but such Websites and subsites will provide a link to this privacy statement and will be governed by these Terms of Service (unless stated otherwise) and by this privacy statement (unless that Website does not display or link to this privacy statement or has its own privacy statement).

Our policies concerning children

NOG Games, Websites and subsites are not directed towards children under the age of 13. Children younger than 13 should not access, register, view or otherwise interact with NOG’s Websites, subsites, or NOG Games. We do not knowingly or intentionally collect information from children under the age of 13. If we are made aware of any inadvertent collection of such information, we will work to promptly erase the information from our records. At any time, a parent may request that we cease further collection of information from their child under the age of 13 and can also request that any information we have collected be changed or deleted from our records, in accordance with applicable law. A parent can contact us with a request to access, change or delete his or her child’s information or to cease collecting and/or using information about or collected from the child under 13 by sending an email to support@nightowlgames.net.

NOG Games, Websites and subsites are not directed towards children between the ages of 13 and 18. Children between the ages of 13 and 18 should not access, register, view or otherwise interact with NOG Games, Websites and subsites unless they have advised, and obtained consent from, a parent or guardian that has reviewed and accepted this privacy statement and all applicable agreements on behalf of the minor.

Our Policies Concerning Users Generally

What information we collect from you or about you

A. General

We may collect information about you, including but not limited to personal information (such as Facebook® account related information (including but not limited to the name associated with that account, profile picture, gender, networks, user ID, list of friends, and any other information available via that account, public or otherwise), age, birth date, email address, name, home or work address, and telephone number, as well as the foregoing information related to any of your personal contacts (such as your friends)). If you make any purchase, we may ask for additional information (such as your name, credit card number, credit card expiration date, credit card ZIP code, credit card billing address, and credit card security/verification code(s)). We may also collect demographic information (such as your age, birth date, gender, ZIP code, preferences, interests, favorites, IP address, access times (or any other times related to use or non-use), entering Website address(es), exiting Website address(es), referring Website address(es), search engines used to find our Website, keywords used to find our Website, pages viewed in our Website, browser type, browser language, browser add-ons, browser width and browser height).

If you refuse to provide information requested by NOG, or provide NOG with inaccurate information, you may not be allowed access to NOG services and Websites, either in whole or in part. See the NOG Terms of Service for details regarding account registration procedures.

B. Email Newsletters and Friend to Friend Promotions

NOG services and Websites may allow you to submit information about other people. For example, we may offer “Send to a Friend” promotions, like electronic postcards. In these situations, you may wish to provide the Facebook ID, email address and/or the name of a friend. You are not to provide any information about other people without their consent. We may store such information for current or future business or marketing purposes, and may use that information in the same manner as the information we collect about you.

C. Sweepstakes, Contests, Surveys and Other Promotions

To participate or obtain the benefits that may be available from any NOG sweepstakes, contests, surveys, or other promotions, you may be asked to provide additional information (such as information required for tax purposes). This information, along with information we already have about you, may be collected by NOG or by third parties such as co-sponsors or vendors related to the foregoing, or it may be shared between NOG and third parties. If you become aware of the identity of such third parties in any way, it is your responsibility to review their privacy statements to see how they may use any information that they collect.

D. Online Purchases and Technical Support

When you make any online purchase from NOG (including but not limited to any subscription or in-game purchase), we may require additional information (such as your name, credit card number, credit card expiration date, credit card ZIP code, credit card billing address, and credit card security/verification code(s)) in order to fulfill the purchase according to our provisions and conditions.

E. Online Websites or Services

When use any NOG Website or service, your IP address may be stored in our records. When any NOG Website or service is updated or “patched,” a software routine may check your computer to see that you have the most recent version of necessary software. When you communicate within any NOG Website or service or any other communication feature related to any NOG Website or service, even if such communication is labeled as somehow “private” with another person, you do so with the understanding that those communications may go through our servers and may be monitored by NOG or third parties. You are expressly waiving any expectation or right of privacy and confidentiality (if any) that you may have in and to your communications when using any NOG Website or service communication features, and you expressly consent to the monitoring and storage of these communications by us.

F. Third-Party Services

Certain NOG services may be provided to you in conjunction with a third party. During the registration process for any such Websites or services, you may be notified that a third party wishes to access some of your information. You may be given an opportunity to decline to share that information with that third party before any such information is shared. If you decline to share such information with that third party, you may not be able to use the relevant Website or service, or in the event of Sweepstakes, Contests, Surveys or Other Promotions, you may not be allowed to participate in the foregoing (including but not limited an NOG Game tournament). Any third party use of such information is governed by the privacy statement (if any) that such third party may have in place, and may differ substantially from this privacy statement.

G. Consent to Monitor

When using any NOG Game, Website or service, your system specifications (such as OS, RAM, video card, monitor, system configuration, crash data etc.) may be reviewed/recorded by us for any purposes we deem appropriate (such as analyzing and optimizing your any NOG Game, Website or service). An NOG Game, Website or services may monitor the contents or other details related to computer’s random access memory (“RAM“), hard drive(s), or media access control (“MAC“) address. We may do the foregoing for any reason we deem appropriate, including the detection of third party programs running concurrently with an NOG Game, Website or service which, in NOG’s sole determination: (i) enable or facilitate cheating of any type; (ii) allow users to modify or hack the applicable NOG Game, Website or service; or (iii) intercept, “mine” or otherwise collect information from or through an NOG Game, Website or service (an “Unauthorized Third Party Program“). In the event that NOG detects an Unauthorized Third Party Program, NOG may be notified in any manner available and may obtain any information we deem appropriate (such as details about the Unauthorized Third Party Program detected and the activities or functions performed thereby, additional details about your computer, and additional information we have not previously collected about you), and NOG may exercise any or all of its rights and remedies under any applicable NOG Game, Website or service user agreement, or contact prosecutorial authorities, without prior notice. You are expressly waiving any expectation or right of privacy and confidentiality (if any) that you may have related to such monitoring and the actions may take related to such monitoring when using any NOG Game, Website or service communication features, and you expressly consent to such monitoring and storage of information related to such monitoring.

Information on cookies and related technology

Any NOG Website or service, and some services and advertisements displayed or made available thereon, may utilize “cookies,” “single-pixel GIFs,” “clear GIFs,” “frames,” server log analysis and other technology. A cookie is a piece of data that is sent to your browser, which will store the cookie on your computer if your browser is enabled to accept cookies.

NOG uses cookies, single-pixel GIFs, clear GIFs, frames, server log analysis and other technology to:

store information about your preferences related to NOG Websites, subsites and services;
estimate our audience size and usage patterns;
speed up searches; and
recognize you when you return to an NOG Website.

Certain cookies are required to allow or facilitate electronic communications or are necessary to allow the provision of online services at the request of the user. NOG does not control cookies in third party ads, and visitors are encouraged to check the privacy statements of advertisers and/or ad services to learn about their use of cookies and other technology.

How we use and share the information that we collect from you

A. How we use information that we collect from you

We may use the information we collect from you to enable us to:

provide you with technical support, customer service, and account maintenance;
learn what you like;
tailor your experience on any NOG Website, subsite or service;
to improve an NOG Website, subsite or service and our other products and services;
provide services or products you request;
provide you or third parties with marketing related information or other information;
allow you to participate in or use NOG communication features;
allow you to play an NOG game (fee-based or otherwise) or download some other game;
allow you to benefit from any other offerings, as the case may be, such as sweepstakes, contests, surveys, or other promotions;
manage NOG information, including information you provide, and respond to your potential orders, requests and online purchases;
inform you of any changes made to any NOG Game, Website, subsite or service; and
inform you of products, services, promotions and offers which you may find interesting.

B. Information we provide to third parties

Where, and to the extent, permitted by applicable laws, you hereby expressly consent to your information being shared with or otherwise transferred by NOG to third parties. We may provide any or all of your information to third parties for any purpose we deem appropriate, including but not limited to marketing purposes. We may also provide any or all of your information to law enforcement or other appropriate third parties in connection with criminal investigations, investigation of fraud, infringement of intellectual property rights, or other suspected illegal activities, or as otherwise may be required by applicable laws or court orders, or, as we deem necessary in our sole discretion, in order to protect the rights, property or safety of NOG, our customers or others.

We may provide any or all of your information to third parties that assist us in fulfilling user requests. This may include, but is not limited to, fulfillment houses, billing services, transaction managers, credit verification services, and other third party service providers.

We may provide any or all of your information to third party processors so that it can be administered and processed as set forth in this privacy statement and the NOG Terms of Service, and we may also share details with third parties (such as auditors or legal advisors) in order to obtain professional advice. If you don’t want us to share your information with third parties, you can “opt-out” in the manner discussed under “Your privacy.” If you choose to “opt out,” NOG may in its sole and absolute discretion choose not to permit you access, in whole or in part, to any NOG Website or service.

You are deemed to have consented to the disclosure to, and use by, any subsequent owner or operator of any NOG Website or service with respect to any information contained in any NOG database. If NOG or one of its related companies may assign all of its rights and obligations regarding the use of your information at the time of a bankruptcy, merger, acquisition, sale of all or substantially all of the Website’s assets to a subsequent owner or operator, or similar event.

Information about co-provided NOG Websites or services

Certain NOG Websites, subsites or services (including games) may be provided to you in conjunction with a third party. During the registration process for such Websites or services, you may be notified that such third party wishes access to some of your information. In such a situation, may be given an opportunity to consent to the sharing of that information before such information is disclosed to the applicable third party.

Information about links and third parties related to any NOG Website or service

This privacy statement applies only to information collected online by NOG through an NOG Website or service maintained by NOG and affiliated companies that NOG may own or control. From time to time, we may provide links to third party Websites. This privacy statement does not apply to third party Websites, whether we provide a link to such Websites or not, so we encourage you to review the policies of all such Websites carefully, as your rights will be governed by those third party policies and not by NOG. Additionally, there may be unauthorized third party Websites that may be providing links from their Websites to an NOG Website or service without our knowledge or control. We are not responsible for the content of any third party Websites, expressly disclaim any statements or assertions made on such Websites, and deny all liability associated with your use of, and the content on, such other Websites or advertisements contained therein.

How you may access, change, or delete the information you have provided to us

You may send an email to us at support@nightowlgames.net. NOG may also give you the ability to access, change, delete and/or update your information and communications preferences. If you ask to have your information removed from our active databases, we will do so within a reasonable time after your request and we will take reasonable steps to ensure that your information is not used (except as may be required by law) by NOG after your notification to us. NOG is not responsible for the use of any information you have provided that has already been obtained by third parties.

Other important agreements that govern your use of an NOG Website or service

In addition to this privacy statement, your rights and obligations concerning an NOG Website or service are governed by the NOG Terms of Service, and where appropriate, the applicable subsite terms of service or terms of sale, as well as any other applicable agreement, terms of use, policies, guidelines, FAQ’s and requirements. When you sign up to use a NOG Website or service, you are to review each agreement carefully, as you must agree to be bound by each such agreement before you may use the relevant NOG Website or service.

Information for persons outside the United States

For persons in the European Union (“EU“) as used herein, “information” may refer to “personal data” as defined by the EU Data Protection Directive and applicable local laws.

Your personal data may be transferred to, stored at, used and processed in the United States (and/or other non- European Economic Area (“EEA“) jurisdictions). Please note that the level of legal protection provided in the United States or other non-EEA countries where any NOG Website or service operates may not be as stringent as that under EEA privacy standards. By using an NOG Website or service, you agree that we may transfer, store, use and process your personal data outside the EEA in connection with the purposes stated in this privacy statement.

In certain countries other than the United States, some of our Websites or services may be provided or controlled by third parties. To the extent that a third party is providing and Website or service to you, you understand and agree that each such third party will collect and use your information in accordance with its own privacy statement (if any). To the extent that NOG collects or retains any of your information, it will be governed by this privacy statement.

Our commitment to secure the information we have collected

In order to provide a degree of protection, NOG employs a security technology known as a secure-socket-layer (“SSL“) to protect the transmission of payment information to NOG. While NOG takes reasonable precautions against possible breaches of its databases, no Website or Internet transmission is completely secure. Consequently, NOG cannot and does not guarantee that unauthorized access, hacking, data loss, or other breaches will never occur. NOG urges you to take steps to keep your information safe by memorizing passwords or keeping them in a safe place (separate from any account information), logging out of your accounts, and closing your web browser(s). NOG also urges you not to provide us with any information you do not want third parties to obtain, whether that information is provided to third parties by us, voluntarily or otherwise, or whether that information is further distributed by such third parties.

Notice of changes to this privacy statement

NOG reserves the right to change this privacy statement at any time by notifying registered users via email of the existence of a new privacy statement and/or posting the new privacy statement on an NOG Website or service. All changes to the privacy statement will be effective when posted, and your continued use of any NOG Website or service after the posting will constitute your acceptance of, and agreement to be bound by, those changes.

Contact

Questions, comments and requests regarding this privacy statement are welcomed and should be addressed to:

Email: support@nightowlgames.net
Mail: Night Owl Games, Privacy Officer, 1250 Wood Branch Park Dr., Suite 625, Houston, Texas 77079
Non-English speaking users are required to follow our Terms of Service and are solely responsible for obtaining assistance in understanding and complying with all legal obligations related to any interaction(s) with NOG