1. Introduction, Acceptance, Definitions, and Modifications
Welcome to the LAST YEAR: THE NIGHTMARE website located at https://staging.elastic-games.com (the “Website”) which includes all subdomains present and future. We hope you enjoy your visit and / or use of the Website.
The Website is owned and operated by Elastic Games Inc. (“Elastic Games”), a Quebec corporation located at 5445 De Gaspé, 6th Floor, Unit 616, Montreal, Quebec, H2T 3B2, Canada. Where the present TOU refers to “Elastic Games” it may refer to by Elastic Games Inc. and / or its affiliates, and their respective shareholders, officers, directors, employees, agents, partners, principals, representatives, successors and assigns (collectively “Representatives”), depending on the context. Any reference to “we”, “our”, or “us” in these TOU shall also refer to Elastic Games and / or its Representatives. In these TOU, a Website visitor or user may be referred to as “you” or “your”.
Elastic Games reserves the right, at any time and without prior notice, to modify or replace any of the TOU. Any changes to the TOU can be found at this URL. It is your responsibility to check the TOU periodically for changes. Your use of the Website following the posting of any changes to the TOU constitutes acceptance of those changes. If we make any substantial changes to the TOU that materially affect your legal relationship with Elastic Games, we will use commercially reasonable efforts to notify you by posting a prominent notice when you arrive at the Website for the first time following those changes.
If you have any questions about the TOU, please contact: [email protected]
Elastic Games Legal Services
5445 De Gaspé, 6th Floor, Unit 616
2. General Code of Conduct for Use of the Website
In addition to the more specific rules found elsewhere in these TOU, you agree that by visiting and / or using the Website, you will:
(i) Not use the Website in any manner that in any way violates these TOU;
(ii) Not use the Website in any manner that violates any intellectual property rights of Elastic Games or any third party;
(iii) Not use the Website in any manner to propagate spam, including but not limited to unsolicited advertising or bulk electronic mail or messages, including to link to a spam or phishing website;
(iv) Not use the Website in any manner to propagate software viruses, Trojan horses, worms, or any other malicious or non-malicious computer code, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment in any form whether belonging to Elastic Games or a third party, or to damage or obtain unauthorized access to any system, data, password or other information (whether Personal Information or not) of Elastic Games, other Website users, or any other third party;
(v) Not: (1) take any action that imposes or may impose (as determined by Elastic Games in its sole discretion) an unreasonable or disproportionately large load on Elastic Games’ (or its third party providers’) infrastructures; (2) interfere or attempt to interfere with the proper functioning of the Website or any activities conducted on the Website; (3) bypass any measures Elastic Games may use to prevent or restrict access to the Website or any element thereof; (4) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Website; or (5) harvest or scrape any content from the Website in an unreasonable manner;
(vii) Not interfere with any third party’s use or enjoyment of the Website;
(viii) Not do anything or encourage conduct that would constitute a criminal offense or give rise to civil liability, or is any way unlawful, illegal, fraudulent or harmful to any third party;
(ix) Not attempt to do any of the foregoing prohibitions;
(x) Use the Website in good faith, and in compliance with all applicable local, state, provincial or state, national, and international laws.
3. Mature Content and Access
LAST YEAR: THE NIGHTMARE and this Website contain mature content that is not intended for minors. In order to use or access the content on the Website, you must affirm that you are at least eighteen (18) years of age or over, or the age of majority in the jurisdiction you reside and from which you access the Website where the age of majority is greater than eighteen (18) years of age. If you are under the age of 18 or under the age of majority in the jurisdiction you reside, then you are not permitted to use the Website or access the content on the Website.
Elastic Games takes all reasonable measures to implement filtering technologies that allow access to the Website to be restricted to visitors who are at least 18 years of age or over the age of majority jurisdictions where the age of majority is greater than 18 years of age. Elastic Games and its Representatives will not be held responsible for any damages, direct or indirect, pecuniary or non-pecuniary, arising out of the non-use, misuse or bypassing of technologies designed to restrict use of the Website to such visitors, or your inability to access the Website because you are under the age of 18 or the age of majority in your jurisdiction.
4. Copyright and Intellectual Property Rights
The content, arrangement and layout of the Website, including but not limited to the trademarks, photos, logos, videos, audio, images, text (in the form of plain text, HTML, or PDFs) and Computer Code are proprietary to Elastic Games, either owned or under license, and may not be copied, imitated, reproduced, displayed, distributed, transmitted, decompiled or otherwise used without the express permission of Elastic Games, or as permitted by the functionality of the Website or these TOU. Any unauthorized use of the content, arrangement or layout of the Website, Computer Code, images, logos, videos, audio or trademarks found in the Website or any derivative works thereof may violate civil or criminal laws, including but not limited to intellectual property laws, and Elastic Games may take action accordingly.
Without limiting the generality of the preceding paragraphs, LAST YEAR: THE NIGHTMARE is a trademark of Elastic Games. Elastic Games and the LAST YEAR: THE NIGHTMARE logos are registered trademarks of Elastic Games, in Canada, the United States and elsewhere.
LAST YEAR: THE NIGHTMARE uses the Unreal® Engine. Unreal® is a trademark or registered trademark of Epic Games, Inc. in the United States of America and elsewhere.
If you choose to communicate to Elastic Games suggestions for improvements to the Website, any service available on the Website, or any idea or proposal related to Elastic Games or its businesses or properties including but not limited to LAST YEAR: THE NIGHTMARE (collectively, “Feedback”), Elastic Games shall own all right, title, and interest in and to the Feedback and will be entitled to use the Feedback without restriction. You hereby irrevocably assign all right, title and interest in and to the Feedback to Elastic Games and waive in favor of Elastic Games, its successors and assigns all your moral rights in the Feedback; and agree to provide Elastic Games such assistance as Elastic Games may require to document, perfect, and maintain Elastic Games’ rights to the Feedback. You acknowledge and agree that, by providing any Feedback to Elastic Games, you are not entitled to any compensation or reimbursement of any kind from Elastic Games under any circumstances.
5. External Links
In no way will Elastic Games be held responsible for any damages, direct or indirect, pecuniary or non-pecuniary: (1) for your use of websites or other services that may be linked to from the Website or the information thereon; (2) for any virus, Trojan horse, worm or other similar destructive file received as a result of your use of those websites or services; (3) caused by or in connection with, use of or reliance on any content, or products or services (whether free or for purchase) available on or through any linked-to website or service; or (4) for the actions of the operators of any such website or service.
6. Interruption of Service
From time to time, the Website may be unavailable for periods of time for maintenance and / or modifications to the Website. While we will endeavour to make this unavailability as brief as possible, Elastic Games shall not be held liable for any losses or damages, pecuniary or non-pecuniary, resulting from the interruption of the normal functioning of the Website, and disclaims any responsibility thereto.
7. Termination of the Website or Your Access to the Website and the TOU
Elastic Games may also, in their sole discretion and at any time, discontinue providing the Website, or any part thereof, with or without notice. You agree that Elastic Games shall not be liable to you or any third party for any losses or damages, pecuniary or non-pecuniary, resulting from termination of your access to the Website, or from Elastic Games’ termination of the Website or any part thereof.
Termination of the Website or your access to the Website shall terminate the present TOU as between you and Elastic Games. All provisions of these TOU which by their nature should survive termination of these TOU shall survive termination, including without limitation, intellectual property provisions, disclaimers, indemnity and limitations of liability.
8. Disclaimer of Warranties
You expressly understand and agree that your use of the Website, the information thereon (whether provided by Elastic Games or third parties) or any activity arising from your use of the Website or the information thereon or the materials downloaded therefrom is at your sole risk. The Website, any materials downloaded therefrom, or any third party materials, are provided on an “as is” and “as available” basis, and you will be solely responsible for any damage to your computer system or loss of data that results from the download, stream or access of any material obtained through the use of the Website or any other functionalities of the Website, or losses or damages (financial or otherwise) resulting from your use of the Website, the information thereon, any materials downloaded therefrom, or any activity arising from the use of the Website, the information thereon or any materials downloaded therefrom.
The information or resources provided through the Website, written or produced by Elastic Games staff, freelance writers or other subcontractors hired by Elastic Games are expected to be as accurate as possible at the time of writing or production, and every effort has been made to ensure that the information from the Website is as accurate and up-to-date as possible. However, certain information may change, and errors or omissions may occur. Elastic Games shall not be responsible for any loss or damage, financial or otherwise, resulting from changes or errors in information, or any omission, on the Website or the information thereon, or your reliance on such information whether the information is correct or not.
Elastic Games expressly disclaims all warranties of any kind, whether express or implied, including but not limited to: warranties of title and non-infringement; warranties that the Website, the information thereon or any materials downloaded therefrom, and any third-party materials will be uninterrupted, error-free, accurate, reliable and free from virus and other harmful components; and the implied warranties of merchantability and fitness for a particular purpose. Elastic Games, its affiliates and their respective Representatives, do not warrant that: (i) the Website will be secure or available at any particular time or location; (ii) any defects or errors or omissions will be corrected; (iii) any content (whether provided by Elastic Games or third parties) available at or through the Website is free of viruses or other harmful components; or (iv) the results of using the Website or any content downloaded will meet your requirements.
Some of the content displayed on the Website may include elements that belong to or are provided by third parties. You acknowledge that we assume no responsibility for such content.
To the extent that the law does not permit a disclaimer of warranties, all content accessible on the Website, or any other website to which we link, and all operations on this Website are warranted only to the minimum amount legally required.
9. Limitation Of Liability
In no case will Elastic Games, its affiliates, or their respective Representatives or licensees be liable for any indirect, special, consequential, exemplary, punitive damages or other damages, or for any losses, damages, liabilities, costs and expenses arising out of or relating to (i) your access, use, misuse or inability to access or use the Website or (ii) the interruption, suspension or termination of any part of or all the Website; and in both cases (i) and (ii) regardless of the cause of action (whether in contract, warranty, delict, quasi-delict, tort, negligence, strict liability or any other theory of liability) and even if we have been advised of the possibility of such damages. Notwithstanding anything to the contrary in the TOU, in no event will our aggregate liability for any claims in connection with your use of the Website and exceed Cdn$ 100.
You expressly understand and agree that Elastic Games, its affiliates, or their respective Representatives or licensees shall not be liable for any direct, indirect, incidental, special, consequential, punitive or exemplary damages, including, but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses, in contract, tort, strict liability, negligence, general civil liability or any other cause of action under legal or equitable theory, relating to the Website, the information on the Website, your use of the Website, activities arising from your use of the Website, any third party materials on the Website, or any materials downloaded from the Website. This limitation of liability applies, without limitation, to any damages or injury caused by any error, omission or other failure of performance by Elastic Games or its Representatives; any interruption, defect or delay in operation or transmission, including communication line failure; any computer virus; and any theft, destruction or alteration of, or unauthorized access to or use of, any electronic records.
Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above exclusions and limitations may or may not apply to you.
11. Governing Law and Applicable Jurisdiction
These TOU and your use of the Website shall be governed by and construed in accordance with the laws of the Province of Quebec and the federal laws applicable therein in force at the time without regard to conflict of law provisions. You agree that any legal action or proceeding between you and Elastic Games shall be brought exclusively in the courts located in the Judicial District of Montreal, Quebec, Canada. Notwithstanding the foregoing, Elastic Games shall have the right to bring action against you in courts of competent jurisdiction in the jurisdiction in which you reside or are located: (i) to seek injunctive relief against you; (ii) to obtain a judgment against you where a judgment by the Montreal court will, or may not be, enforced by the jurisdiction in which you reside or are located; or (iii) to enforce in your jurisdiction a judgment obtained against you in the Montreal court.
12. Law Enforcement
Elastic Games reserves the right, without any limitation whatsoever, to: (i) investigate any suspected breaches of the Website security or its information technology or other systems or networks; (ii) investigate any suspected breaches of the TOU; (iii) involve and cooperate with law enforcement authorities in investigating any such matters; and (iv) prosecute violators of the TOU to the full extent permitted by applicable law.
13. Miscellaneous Provisions
(ii) Elastic Games shall not be liable for any failure to perform its obligations under the present TOU where such failure results from any cause beyond Elastic Games’ reasonable control, including, but not limited to, mechanical, electronic or communications failure or degradation, or any force majeure event.
(iv) The failure of Elastic Games to exercise or enforce any right or provision of these TOU does not constitute a waiver of such right or provision, which will still be available to Elastic Games.
© Elastic Games Inc. 2018