DUNGEON OVERLORD™ USER/FANSITE AGREEMENT DECEMBER 29, 2011

THIS AGREEMENT, WHICH MAY BE REFERRED TO ON THE FACEBOOK^TM “Request for Permission” SCREEN AS “TERMS OF SERVICE,” IS THE DUNGEON OVERLORD^TM USER AGREEMENT AND IS NOT TO BE CONFUSED WITH ANY AGREEMENT TITLED “TERMS OF SERVICE” ON ANY NOG WEBSITE AS DEFINED BELOW.

YOU MUST READ, UNDERSTAND AND ACCEPT THE PROVISIONS OF THIS DUNGEON OVERLORD^TM USER AGREEMENT BEFORE ACCEPTING ITS TERMS (WHICH MAY BE DONE BY CLICKING “ALLOW” ON THE FACEBOOK^TM “Request for Permission” SCREEN, LOGGING IN TO FACEBOOK^TM WHILE FOLLOWING A LINK RELATED TO DUNGEON OVERLORD^TM, OR OTHERWISE). IF YOU DO NOT READ, UNDERSTAND OR ACCEPT THE TERMS OF THIS AGREEMENT, DO NOT PERFORM ANY ACT THAT INDICATES YOU ARE ACCEPTING ITS TERMS.

This agreement is entered into by and between NOG and You (as defined below) due to an act that indicates You are accepting its terms, and the following provisions are agreed upon:

1. DEFINITIONS

(a)    NOG – Night Owl Games, L.P., a Texas Limited Partnership.
(b)    You / Your – A person who may, according to Section 9 below, perform an act that indicates they accepting the terms of this agreement.
(c)    Game – Service, Content or Software related to the game whose title appears above.
(d)    Account – Any database with information related to Your use of the Game to which this agreement and/or other agreements between You and NOG may apply.
(e)    Rules of Conduct – NOG rules related to use of the Service as set forth herein. If modified, the current version will be found at https://dungeonoverlord.com/user-agreement/#RoC.
(f)     Privacy Statement – NOG policy regarding privacy. The current version is found at http://nightowlgames.net/privacy-policy/. It may also be referred to on the FACEBOOK^TM “Request for Permission” screen, or the like, as a “Privacy Policy.”
(g)    Message Board – Any electronic source of information related to the Game, whether or not provided by NOG, including but not limited to any website, wiki, forum, thread, post, bulletin board, chat room, Usenet network, or other electronic information distribution mechanism.
(h)   Account ID – An Account designation that NOG can use to identify an Account.
(i)     Message Board ID – A Message Board designation that can be used to identify the source of a user or a post related to a Message Board.
(j)      Player ID – A designation that can be used to identify a player of the Game.
(k)    Team – Multiple Player ID’s that are associated on a temporary, semi-permanent, or permanent basis, including but not limited to any form of in-Game alliance, group, guild, class, race, legion, league, super-group, house, pledge, faction, guild or the like.
(l)     IP right – Any intellectual property right, including but not limited to any copyright, trademark, patent, trade secret, industrial design right, database right, software, idea, concept, method, invention, Content, Item, or combinations thereof.
(m) Software – Any software provided by NOG related to the Game, including but not limited to software temporarily or permanently installed on a computer owned by You or someone else, software temporarily or permanently executed on a computer owned by You or someone else, and any subsequent versions, enhancements, modifications, upgrades or patches to such software.
(n)   Service – Any online service provided by NOG for the Game.
(o)    Content – Any material related to the Game that is neither Software nor Service, including but not limited to any communication, Item, Team, Message Board and/or Dungeon Marks™.
(p)    Item – Digital material related to the Game which is used in connection with Content or a Player ID, including but not limited to any in-Game boost, tile, article, furniture, creature, currency, inventory space, or resource.
(q)    Dungeon Marks – Digital material NOG may make available under certain restrictions.
(r)     Notice Contact – Attn: Customer Support by email to .

2. LIMITED LICENSE – SERVICE, CONTENT AND SOFTWARE LICENSED NOT SOLD

(a) The Game requires Service, Content and Software from NOG. You acknowledge that NOG Software is required to use the Game. You also acknowledge that NOG service is required to use the Game. And You acknowledge that You are responsible for supplying any necessary communications connections (such as Internet access) and hardware to use the Game, as well as any costs or expenses related to the foregoing. You further acknowledge that NOG may, in its sole and absolute discretion, allow You full or partial access to Content, including one or more Message Boards, Teams or Items, and may condition such full or partial access upon Your compliance with the provisions in Section 4 below as well as other provisions related to the foregoing.

(b) Service, Content and Software License Pre-Conditions – You acknowledge that any NOG license to use Service, Content or Software is pre-conditioned upon Your agreement to comply with all provisions of this agreement. Accordingly, You also acknowledge that any NOG license to use such Service, Content or Software would not exist without Your agreement to comply with all provisions of this agreement. You further acknowledge that use of the Software may require additional licenses, such as a license to any applicable operating system or other third-party software/services, including but not limited to an Internet browser as well as a FACEBOOK^TM account, and that You are responsible for obtaining and agreeing to any applicable third-party license before You enter into this agreement.

(c) License Grant – Any Service, Content or Software supplied by NOG is licensed, not sold, by NOG. All title and rights not expressly granted in this agreement, including but not limited to any IP right and the display thereof, are retained by NOG and/or third-parties under agreement with NOG. NOG hereby grants You a revocable, non-exclusive, license for personal and non-commercial use of Service, Content and Software that is non-transferable except as permitted under Section 9(c). YOU ACKNOWLEDGE THAT ANY SUCH LICENSE TERMINATES IMMEDIATELY IF YOU BREACH, VIOLATE, OR OTHERWISE FAIL TO COMPLY WITH EACH AND EVERY PROVISION OF THIS AGREEMENT AND HEREBY WAIVE ANY RIGHTS YOU MAY HAVE HAD TO NOTICE OF TERMINATION FROM NOG. IN THE EVENT OF TERMINATION OF ANY SUCH LICENSE NOG MAY, IN ITS SOLE AND ABSOLUTE DISCRETION, MODIFY OR DELETE YOUR ACCOUNT, ALL RELATED CONTENT, AND ANY PLAYER ID.

(d) The Game may also require at least one Player ID whose characteristics (e.g., name or any other characteristic) You might, in part, be allowed to select subject to restrictions imposed in the sole and absolute discretion of NOG, including but not limited to the provisions of Section 5(e) below. You acknowledge that: 1) Your license to use any Player ID, to select any characteristic (e.g., name or any other characteristic) related to a Player ID, NOG Message Board ID, Team and/or Team designation, or to provide any Content or information on any NOG Message Board, shall be within the sole and absolute discretion of NOG; 2) that the foregoing may be modified for any reason, at any time, and in any way by NOG in its sole and absolute discretion; and 3) that the foregoing are under license, not sold, by NOG. You further acknowledge that NOG may, in its sole and absolute discretion, choose to modify or to delete, or choose not to modify or not to delete, any Account or Player ID if You are not in compliance with the provisions in Section 4 below or any other provisions related to the foregoing. You additionally acknowledge that NOG has no ongoing and/or future duty to You regarding any license related to an unmodified, modified or deleted Account or Player ID.

(e) Player ID Pre-Conditions – You acknowledge that any NOG license to any Player ID is pre-conditioned upon Your agreement to comply with all provisions of this agreement. Accordingly, You also acknowledge that any NOG license to use such Player ID would not exist without Your agreement to comply with all provisions of this agreement. You additionally acknowledge You may not, and You will not, select any Player ID that would require any license from any third-party.

(f) Additional License Restrictions – You acknowledge You will not directly or indirectly:

(f)(i)reverse engineer, translate, adapt, disassemble, decompile, or reduce to any human-perceivable form, any Software or parts thereof;

(f)(ii) copy, distribute or reproduce any Service, Content, Software, or parts thereof;

(f)(iii) modify, or create a derivative work of, any Service, Content, Software, or parts thereof;

(f)(iv) sell, sub-license, rent, lease, grant a security interest in, borrow, lend, loan, network or engage in any activity that could in any way transfer or provide others access to any Service, Content, Software, or parts thereof.

3. DURATION OF AGREEMENT, ACCOUNT TERMINATION, REFUND REQUESTS

(a) Duration – Unless modified or amended by NOG, this agreement and its provisions shall remain in effect. Termination of any license granted by NOG under this agreement does not affect any other provisions of this agreement.

(b) Discretionary Account Termination – You may notify NOG that You wish to terminate an Account by notifying the Notice Contact of Your desire to do so. Any such request must be made to the Notice Contact and include Your name, address, contact information, and a reason for the request. NOG may also, in its sole and absolute discretion, provide other means by which You may choose to so notify NOG. Whether or not You wish to terminate an Account, NOG may at any time or for any reason, both of which shall be conclusively determined in the sole and absolute discretion of NOG, modify or delete Your Account as well as any other Account, NOG Message Board ID, Player ID, Team, and/or characteristics related to a Player ID. Termination of an Account under this provision also terminates any license granted by NOG under this agreement but does not affect any other provisions of this agreement.

(c) Account Termination for Cause – NOG may delete Your Account for cause (e.g., You breach, violate, or otherwise fail to comply with each and every provision of, this agreement) as well as any other Account, NOG Message Board ID, Player ID, Team, and/or characteristics related to a Player ID. Any termination under this Section 3(c), as well as the timing thereof, shall be conclusively determined in the sole and absolute discretion of NOG. Termination of an Account under this provision also terminates any license granted by NOG under this agreement but does not affect any other provisions of this agreement.

4. ACCOUNT AND PAYMENTS TO NOG

(a) Account – The Game requires at least one Account from NOG. You acknowledge that is it Your responsibility to comply with any NOG provisions for establishing and maintaining such Account. You are responsible for any use and related liabilities with respect to any Account for which You accept this Agreement, whether or not such use and related liabilities were in any way authorized by You, and it is Your responsibility to safeguard any access control mechanisms You may have related to an Account, including but not limited to any FACEBOOK^TM password.

(b) Periodic Payments Related to Accounts, Service and Content – Some of the Content or other offerings provided by NOG may require payment. Accordingly, You acknowledge that NOG may, in its sole and absolute discretion, require You to pay to establish or maintain any Account, to use any Service, or to use any Content. You also acknowledge that if You are required to make such a payment, but do not, then NOG may not allow You to use certain content or, in some cases, NOG may, in its sole and absolute discretion, terminate Your Account under Section 3(b). You additionally acknowledge that NOG may require such payments on any basis it deems appropriate in its sole and absolute discretion, including but not limited to any per-use or periodic basis (such as a number of hours, days or months). And You acknowledge that NOG may, it its sole and absolute discretion, establish the timing and form in which such payment must be made, including but not limited to credit cards or online payment services. YOU ALSO ACKNOWLEDGE THAT NOG HAS NO OBLIGATION TO REFUND ANY PAYMENTS, IN WHOLE OR IN PART, RELATED TO AN ACCOUNT WHETHER OR NOT SUCH PAYMENTS WERE MADE OR AUTHORIZED BY YOU, FOR ANY REASON WHATSOEVER, INCLUDING BUT NOT LIMITED TO INTERRUPTION OR UNAVAILABILITY OF SERVICE (SEE ALSO SECTION 10). YOU ACKNOWLEDGE, AND FURTHER AGREE, THAT NOG MAY, IN ITS SOLE AND ABSOLUTE DISCRETION, TERMINATE UNDER THE PROVISIONS OF SECTION 3(c) ANY ACCOUNT RELATED TO ANY ATTEMPT TO OBTAIN A REFUND OF ANY PAYMENTS, WHETHER SUCH ATTEMPTS ARE MADE BY CONTACTING AN ISSUER OF CREDIT CARDS OR OTHERWISE (e.g., FACEBOOK^TM or PAYPAL^TM) AND THAT NOG MAY TAKE ANY OTHER ACTION IT DEEMS APPROPRIATE UNDER THE CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO RECOURSE BY WAY OF ANY COLLECTION AGENCY AND/OR CREDIT REPORTING AGENCY WHEN A REFUND HAS BEEN OBTAINED WITHOUT SIGNED WRITTEN CONSENT FROM A LEGALLY AUTHORIZED REPRESENTATIVE OF NOG.

(c) NOG Game Enhancements, Modifications, Upgrades and Patches – In addition to any initial payment You may have made, if any, related to the Software, NOG may provide subsequent versions, enhancements, modifications, upgrades or patches related to the Software. NOG may, in its sole and absolute discretion, require You to pay for the foregoing or to be making payments under Section 4(b).

(d) Dungeon Marks – Dungeon Marks may be required to use an Item or to access other specific forms of Content not otherwise available without Dungeon Marks.

(d)(i) NOG may, in its sole and absolute discretion, determine the availability of Dungeon Marks with respect to any Account, the time period applicable to such availability, and the availability and time period applicable to any Item or other specific forms of Content not otherwise available without Dungeon Marks, including but not limited to Item characteristics or characteristics related to a Player ID such as an in-Game boost, tile, article, furniture, creature, currency, inventory space, or resource.

(d)(ii) NOG may, in its sole and absolute discretion, require You to pay for Dungeon Marks and establish the timing and form in which such payment must be made, including but not limited to credit cards or online payment services.

(d)(iii) If Dungeon Marks are made available for the Game, Dungeon Marks related to an Account will be deleted immediately upon termination of such Account, or as such Dungeon Marks are exchanged as required to use an Item or to access other specific forms of Content not otherwise available without Dungeon Marks.

(d)(iv) If Dungeon Marks are made available to You for the Game, they may be obtained in quantities of 11 Dungeon Marks for every US dollar or any other amount determined in the sole and absolute discretion of NOG.

(d)(v) NOG may also choose, in its sole and absolute discretion, to make any quantity of Dungeon Marks available in connection with any Account on a limited and promotional basis, including but not limited to Your attendance at events, virtual or otherwise, as well as occasional gifts from NOG or third-parties.

(d)(vi) NOG may in its sole and absolute discretion choose to make available Dungeon Marks only for those Accounts in compliance with all provisions of this agreement, and to limit the amount of Dungeon Marks – including promotional Dungeon Marks – that may be obtained in connection with an Account, for any reason or for no reason whatsoever.

(d)(vii) You acknowledge that Dungeon Marks are digital material with no cash value, that no interest is paid or earned with respect to Dungeon Marks, that Dungeon Marks are not personal property, that the quantity of Dungeon Marks in Your Account may be increased or decreased by NOG in its sole and absolute discretion for any reason or no reason whatsoever, that You have no right to a refund related to Dungeon Marks, that there is no right to transfer of Dungeon Marks between Accounts, and that NOG may limit Your license to use Dungeon Marks with respect to any Item / Content or time period related thereto. You further acknowledge that additional restrictions related to Dungeon Marks, as determined in the sole and absolute discretion of NOG, may be applicable if, and when, Dungeon Marks are made available to You or thereafter.

(e) Other payments related to the Game – You acknowledge that NOG has no responsibility with respect to any payments or “donations” related to the Game that You make to any third-party. For example, such payments or “donations” could be with respect to information, services, or an Item offered or provided by any third-party, including but not limited to in game resources. You further acknowledge that attempting to make, or making, such payments or “donations” may also fall within the provisions of Section 8 below.

5. CONDUCT

(a) It is Your responsibility to read, understand and accept the Rules of Conduct in effect each and every time You use the Service. You acknowledge that NOG may make changes to the Rules of Conduct at any time. You also acknowledge that each and every time You use the Game You warrant and represent that You did read, understand and accept the most recent version of the Rules of Conduct in effect at that time. Until modified by NOG (see Section 1(e)), the Rules of Conduct are as follows:

You will not transmit or facilitate the transmission of any Content 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;
You will not transmit or facilitate the transmission of any Content that contains 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;
You will not transmit or facilitate the transmission of any Content that You do not have a right to transmit, under any law or under contractual or fiduciary relationships (such as nondisclosure agreements);
You will not transmit or facilitate the transmission of any Content infringing any IP right;
You will not transmit or facilitate the transmission of any unsolicited advertising, promotional materials, “junk mail”, “spam”, “chain letters”, “pyramid schemes” or any other form of solicitation;
You will not transmit any Content related to the personal information of others;
You will not 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 to or through any Service;
You will not adversely affect the availability of Content to other users (e.g., flooding (continuous posting of repetitive text) or use of excessively large embedded images);
You will not intentionally or unintentionally violate any applicable local, state, national or international law, rule or regulation; and
You will not transmit or facilitate the transmission of any content to an email address, messenger-feature address or other location that is not Yours or to which You do not have the expressly authorized right to use without securing the prior authorization of such other person or entity.
You will not send any Item to another in a way that disadvantages others (e.g., a lower level player sending resources to a higher level player).
You will not harass others. (e.g., attacking the same player more than 5 times a day).

(b) If You violate the Rules of Conduct then NOG may, in its sole and absolute discretion, take any action it deems appropriate under the circumstances, including but not limited to terminating Your Account under Section 3(b).

(c) If You help another user of the Game violate the Rules of Conduct then NOG may, in its sole and absolute discretion, terminate Your Account under Section 3(b) or Section 3(c).

(d) NOG has no obligation under any circumstances to review any communications regarding violations of the Rules of Conduct related to any Account. NOG may, in its sole and absolute discretion, choose to review communications made to the Notice Contact regarding violations of the Rules of Conduct related to any Account. NOG may also, in its sole and absolute discretion, provide other means by which it may choose to review communications regarding violations of the Rules of Conduct related to any Account.

(d)(i) Reported violations of Rules of Conduct that have merit – NOG may take any action, or no action whatsoever, based on communications regarding violation of the Rules of Conduct related to any Account, including but not limited to termination of an Account under Section 3(b) or Section 3(c). NOG has no obligation to explain any decision to take any action, or no action whatsoever, based on communications regarding violation of the Rules of Conduct related to any Account.

(d)(ii) Reported violations of Rules of Conduct that lack merit – If NOG, in its sole and absolute discretion, determines that You are associated with any communication regarding violations of the Rules of Conduct that lacks merit, NOG may take any action it deems appropriate under the circumstances, including but not limited to termination of Your Account under Section 3(b) or Section 3(c).

(e) In addition to the Rules of Conduct, You acknowledge that there are restrictions on Your ability to select any NOG Message Board ID, Player ID and/or Team designation, or provide any Content or information on any Message Board, including but not limited to any NOG IP right and/or any third-party IP right. If You violate these restrictions then NOG may, in its sole and absolute discretion, take any action it deems appropriate under the circumstances, including but not limited to altering the foregoing, terminating Your Account under Section 3(b) or Section 3(c), and/or modifying or deleting any Content or information on any NOG Message Board. That list of restrictions follows:

(e)(i) You may not provide NOG any inaccurate information regarding an Account or select a Player ID that represents You are another person;

(e)(ii) You may not select a NOG Message Board ID, Player ID and/or Team designation that would require any license from any third-party;

(e)(iii) You may not select a NOG Message Board ID, Player ID and/or Team designation that implies any affiliation with NOG;

(e)(iv) You may not select a NOG Message Board ID, Player ID and/or Team designation, or provide any Content or information on any Message Board, that NOG, in its sole and absolute discretion, deems to be vulgar, threatening, racist, sexist or otherwise offensive, including but not limited to references related to any religion or deity;

(e)(v) You may not select a NOG Message Board ID, Player ID and/or Team designation, or provide any Content or information on any Message Board, that NOG, in its sole and absolute discretion, deems to be confusing, gibberish or slang (e.g., Asdf, ROFL, InYourFace); and

(e)(vi) You may not select a NOG Message Board ID, Player ID and/or Team designation, or provide any Content or information on any Message Board, that NOG, in its sole and absolute discretion, deems affiliated with a rank, title or position (e.g., Colonel) that is not related to the Game.

6. INTELLECTUAL PROPERTY

(a) You acknowledge, and further agree, that You have no IP right related to any Service, Content, Software, or any combination of the foregoing or parts thereof except those expressly provided in Section 2 above.

(b) You acknowledge, and further agree, that You have no IP right related to any Player ID, any Account ID, any NOG Message Board ID, any Content or information on any NOG Message Board provided by You or anyone else, any information, feedback or communication related to the Game, any Player ID or characteristics related to a Player ID, any combination of the foregoing or parts thereof, or any combination of the foregoing with any Service, Content, Software, or parts thereof. To the extent You may claim any such IP right(s), 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 such IP right(s), 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 the provisions of Section 13 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.

7. PRIVACY

(a) It is Your responsibility to read, understand and accept the Privacy Statement in effect each and every time You use the Service. UNLESS SET FORTH OTHERWISE IN THE PRIVACY STATEMENT REFERENCED IN 1(f), BY ACCEPTING THIS AGREEEMENT 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 Game You warrant and represent that You did read, understand and accept the most recent version of the Privacy Statement in effect at that time.

(b) NOG has no obligation under any circumstances to review any information, feedback or communication related to the Game. NOG may, in its sole and absolute discretion, choose to review any information, feedback or communication related to the Game. NOG may take any action, or no action whatsoever, based on any information, feedback or communication related to the Game, including but not limited to publicly commenting upon or publishing the foregoing. NOG has no obligation to explain any decision to take any action, or no action whatsoever, based on any information, feedback or communication related to the Game. You acknowledge, and further agree, that You have no obligation to provide NOG any information, feedback or communications related to the Game. In addition to the provisions of Section 13 below, You further agree to defend, indemnify and hold harmless NOG with respect to any claim related to any information, feedback or communications You provide under this Section 7(b).

(c) NOG has no obligation under any circumstances to monitor Conduct or other activities related to the Game. NOG may, in its sole and absolute discretion, choose to monitor Conduct or other activities related to the Game. You consent to the foregoing monitoring and acknowledge that NOG may conduct such monitoring, including but not limited to monitoring Message Boards provided by NOG as well as third-party Message Boards and the like. You also acknowledge that NOG may take any action, or no action whatsoever, based on such monitoring, including but not limited to action under Section 5, and that NOG has no obligation to explain any decision to take any action, or no action whatsoever, based on such monitoring.

(d) NOG HAS THE RIGHT, BUT NO OBLIGATION, TO MONITOR OPERATION OF ANY SERVICE, CONTENT OR SOFTWARE AT ANY TIME AND IN ANY MATTER, INCLUDING BUT NOT LIMITED TO MONITORING COMMUNICATIONS AND COMMUNICATIONS INTERFACES, STORAGE DEVICES, RANDOM ACCESS MEMORY OR CPU PROCESSES RELATED TO HARDWARE YOU USE WITH THE GAME. SUCH MONITORING MAY ALSO INCLUDE, BUT IS NOT LIMITED TO, MONITORING FOR THE PURPOSES OF DETECTING SOFTWARE UNDER SECTION 8(c) or 8(e). YOU CONSENT TO THE FOREGOING MONITORING AND ACKNOWLEDGE THAT NOG MAY, AT ANY TIME, AND IN ANY MANNER, COMMUNICATE ANY INFORMATION BETWEEN HARDWARE YOU USE WITH THE GAME AND ANY MECHANISM NOG MAY CHOOSE FOR SUCH COMMUNICATIONS. YOU ALSO ACKNOWLEDGE THAT AS A RESULT OF SUCH MONITORING NOG MAY IN ITS SOLE AND ABSOLUTE DISCRETION TAKE ANY ACTION, OR NO ACTION WHATSOEVER, INCLUDING BUT NOT LIMITED TO:

(d)(i) CHANGING ANY PORTION OF THE SERVICE, CONTENT OR SOFTWARE;

(d)(ii) SEEKING RECOURSE AGAINST YOU BY WAY OF ANY PROCEEDING NOG DEEMS APPROPRIATE UNDER THE CIRCUMSTANCES; AND/OR

(d)(iii) DETERMINING THAT YOU ARE NOT IN COMPLIANCE WITH ALL PROVISIONS OF THIS AGREEMENT AND TERMINATING YOUR ACCOUNT UNDER SECTION 3(b) OR SECTION 3(c). NOG HAS THE RIGHT, BUT NO OBLIGATION, TO PROVIDE YOU WITH NOTICE BEFORE SUCH TERMINATION.

8. PROHIBITED AND IRREPARABLY HARMFUL ACTIVITIES CONCERNING NOG

You acknowledge that You may not, without signed written consent from a legally authorized representative of NOG, do any of the following:

(a) Misappropriate, violate or infringe any third-party IP right;

(b) Use any NOG IP right except as permitted under this agreement;

(c) Use, or provide others with, any software related to the Game that has not been authorized by NOG, including any automation software (a.k.a. “bot”) or software designed to change or modify operation of the Game;

(d) Use, or provide others with, any “hack,” “cheat,” “exploit” or “mod”;

(e) Use, or provide others with, any service related to the Game, including but not limited to:

(e)(i) any service that interacts with the Software; or

(e)(ii) any service that that would change characteristics related to a Player ID, such as increasing the level or attributes thereof (a.k.a. power-leveling);

(f) Engage in any activity prohibited under Section 2(e) above;

(g) Knowingly affect Service, Content or Software via 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;

(h) Be a party to any commercial activity related to the Game, including but not limited to:

(h)(i) providing or obtaining any Item; or

(h)(ii) use of Service, Content or Software at an Internet café, cyber café or computer gaming center except where such commercial activity is solely the payment of the usual and customary fees for use of the resources at such facility;

(i) Use, obtain or provide data related to operation of the Game, including but not limited to:

(i)(i) software that reads areas of computer memory or storage devices related to the Game;

(i)(ii) software that intercepts or otherwise collects data from or through the Game;

(i)(iii) software that redirects communications from any Software or Service; or

(i)(iv) software not provided by NOG which creates or maintains any communication to the Software or Service, including but not limited to any software that emulates the Software or any part thereof as well as any server that emulates the Service or any part thereof;

(j) Violate any law or governmental regulation related to the Game;

(k) Violate or infringe the Digital Millennium Copyright Act, including but not limited to 17 U.S.C. §1201 et seq., in any way such as circumventing any NOG technological measure intended to effectively control access to the Service, Content, Software, or any other NOG IP right, circumventing any protection afforded by an NOG technological measure to any NOG IP right, or engaging in any trafficking related to the foregoing;

(l) Institute any arbitration or other proceeding against NOG except as permitted under this agreement, including any legal proceeding in court or before an administrative agency; or

(m) Provide anyone whose Account was terminated under Section 3(c) any access to Service, Content or Software;

(n) Help others violate this agreement;

(o) Create, access, operate or otherwise use more than one Account related to the Game.

9. ACCOUNT ACCESS AND PERMISSIBLE ASSIGNMENT

(a) By accepting this Agreement You 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 Game; or 3) are a minor age 13-17 that has been authorized to accept this Agreement under the provisions of Section 9(c) below. YOU ARE HEREBY FOREWARNED THAT NOG MAY, IN ITS SOLE AND ABSOLUTE DISCRETION, EXERCISE ITS SECTION 3(c) RIGHT TO TERMINATE BASED ON FAILURE TO COMPLY WITH THE CRITERIA ABOVE.

(b) Each Account may only be used by one person. If a minor has been allowed access to a Account under Section 9(c) below, only that minor may use the Account thereafter. Except as provided in Section 9(c) below, You may not make any assignment or transfer of rights, obligations or liabilities related to this agreement and any attempt by You to do so is null and void.

(c) 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 Game, you can choose to allow use of your Account by that minor instead of yourself subject to the following provisions:

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

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

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

(c)(iv) You acknowledge, and further agree, that each and every time that minor uses the Game 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;

(c)(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 9 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 the definition of “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 Game.

(c)(vi) In consideration for NOG allowing access to the Game 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.

(c)(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.

(d) You acknowledge that the Game is not intended for minors under age 13, and You will not allow access to the Game, or the viewing of any display thereof, by any minor under age 13.

10. SERVICE AND AVAILABILITY

(a) You acknowledge that NOG may in its sole and absolute discretion provide subsequent versions, enhancements, modifications, upgrades or patches related to any part of the Service.

(b) You acknowledge that Service may be interrupted for reasons within or beyond the control of NOG, that NOG cannot and does not guarantee You will be able to use Game or any Account whenever You wish to do so, that NOG will interrupt the Service on a regular basis for purposes on maintenance or updates and may do so without providing You with notice before such interruption, and that NOG may provide subsequent versions, enhancements, modifications, upgrades or patches related to the Software that You must accept and/or install before You will be able to use Game.

11. ADDITIONAL WARRANTIES AND REPRESENTATIONS BY YOU

(a) You acknowledge that the Game is designed and intended to be used for entertainment purposes only and:

(a)(i) You warrant and represent that You understand the Game sets forth a virtual world and not the real world, that You understand the distinction between a virtual world and the real world, that You understand that You have no fundamental right whatsoever to use the Game, and that You understand that NOG may in its sole and absolute discretion terminate Your ability to use of the Game for any reason or for no reason whatsoever;

(a)(ii) You warrant and represent that You understand that Your privacy, as well as the privacy of others who do not know each other personally in the real world, is well served by keeping interactions in a virtual world separate from those in the real world. You warrant and represent that You will not use any Service, Content or Software to provide any information that could be used, directly or indirectly, by another user of the Game to identify You in the real world. You warrant and represent that You will not use any Service, Content or Software to obtain any information that could be used, directly or indirectly, to identify another user of the Game in the real world.

(a)(iii) You warrant and represent that You understand that there may be communications or information on any NOG Message Board as well as parts of the Game, known or unknown to NOG, that may be considered objectionable by some persons, including yourself;

(a)(iv) You warrant and represent that You have no history, or patterns of behavior, that would lead to use of the Game in an addictive or compulsive manner; and

(a)(v) You warrant and represent that You have no economic, physical, emotional, psychological or privacy related considerations that would be adversely impacted by Your use of the Game.

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, or 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 warrant and represent that You understand the foregoing shall survive any expiration or termination of any license, agreement or use related to the Game.

12. 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 GAME.

(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 GAME, 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 GAME.

13. INDEMNITY

(a) In addition to the provisions of Sections 6(b), 7(b) and 9(c)(vi), 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 Game and any person or entity that becomes aware of Your use of the Game 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:

(a)(i) The provisions of Section 8(a) – 8(n) above;

(a)(ii) Your failure to comply with any provision of this agreement;

(a)(iii) Your use of the Game, including but not limited to economic, physical, emotional, psychological or privacy related considerations; and

(a)(iv) Your actions to knowingly affect Service, Content or Software via 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).

(b) You acknowledge, and further agree, that NOG has no obligation to defend, indemnify or hold harmless You in any way related to this agreement including, but not limited to, Your use of the Game, use of the Game by any person, or any connection between the foregoing and any other person or entity that becomes aware of Your use of the Game at any time.

14. DISPUTE RESOLUTION

(a) Informal Resolution – With respect to the resolution of any controversy related to this agreement (hereinafter “Dispute”) (except as provided under Section 14(c) below), You agree to try to resolve any Dispute informally for at least thirty (30) days before initiating any arbitration or other proceeding, including any legal proceeding in court or before an administrative agency. You agree to notify NOG that You wish to resolve a Dispute by notifying the Notice Contact of Your desire to do so. Any such request must be made to the Notice Contact and include Your name, address, contact information, an explanation of Your side of a Dispute, and at least one reason why a Dispute should be resolved in Your favor. NOG may also, in its sole and absolute discretion, provide other means by which You may choose to so notify NOG. Based on communications regarding a Dispute, NOG may take any action, as conclusively determined in the sole and absolute discretion of NOG, or no action whatsoever, including but not limited to termination of an Account under Section 3(b) or Section 3(c). NOG has no obligation to explain any decision to take any action, or no action whatsoever, based on communications regarding any Dispute. If You are not satisfied with a decision by NOG regarding a Dispute, You agree to try to resolve that Dispute informally for at least another thirty (30) days by submitting a request to the Notice Contact and include Your name, address, contact information, an explanation of Your side of a Dispute, and at least one reason why a Dispute should be resolved in Your favor. You further agree that NOG may extend the time to try to resolve a Dispute informally for successive thirty (30) day periods, not to exceed a total of ninety (90) days, by notifying You using the contact information You provided under this Section 14(a).

(b) Mandatory Binding Arbitration – Except as provided under Section 14(c) below, if You are not able to satisfactorily resolve a Dispute informally within a total of ninety (90) days or if NOG, in its sole and absolute discretion, determines that it will not be possible to satisfactorily resolve that Dispute informally within a total of ninety (90) days, You agree that either You or NOG may request resolution by final and fully binding arbitration conducted under the Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be conducted by a single arbitrator who shall be an impartial attorney. The arbitrator shall complete all proceedings instituted hereunder within six (6) months of initial presentment. The arbitration may be conducted in person, in Houston, Texas, through the submission of documents, by phone or online as allowed by the arbitrator and the rules of the American Arbitration Association. The arbitrator’s written opinion (if any) shall be limited to 3,000 words or less. The arbitrator shall have the authority to award the costs of arbitration, including attorney’s fees, to the prevailing party. Except as otherwise provided in this agreement, You and NOG may seek to – compel arbitration, stay other proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on an award entered by the arbitrator – by recourse to any other proceeding, including any legal proceeding in court or before an administrative agency. YOU UNDERSTAND, AND FURTHER AGREE, THAT YOU HAVE THE RIGHT TO CONSULT WITH INDEPENDENT LEGAL COUNSEL OF YOUR OWN CHOOSING REGARDING THIS AND ANY OTHER PROVISION IN THIS AGREEMENT, AND THAT IF YOU ACCEPT THIS AGREEMENT THEN THIS BINDING ARBITRATION PROVISION WILL ELIMINATE YOUR LEGAL RIGHT TO A SUE IN COURT AND/OR HAVE A JURY TRIAL WITH RESPECT TO ANY SUCH DISPUTE. You and NOG further acknowledge and agree that this Section 14(b) may only be used with respect to a Dispute between You and NOG. Accordingly, You and NOG agree that neither shall attempt to have any other Dispute related to any other party, including but not limited to any class action, joined to any arbitration in which You are involved. Thus, to the fullest extent permitted by law no arbitration proceeding shall be joined with any other or decided on a class-action basis.

(c) Prohibited Activities / Exceptions to Informal Discussions and Arbitration – You acknowledge, and further agree, the provisions of Sections 14(a) and 14(b) above are not applicable to: 1) any activity related to Section 8 above; 2) any Dispute that may arise under, from or in any way relate to invasion of privacy, theft, piracy, or other criminal activity by You or any person(s) other acting in concert with You; and 3) any claim for injunctive relief. YOU ARE HEREBY FOREWARNED THAT NOG MAY COOPERATE WITH LAW ENFORCEMENT AUTHORITIES TO ANY EXTENT NOG DEEMS PROPER, IN ITS FULL AND ABSOLUTE DISCETION, AND THAT YOU HAVE NO LEGAL RIGHTS OR RECOURSE AGAINST 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, RELATED TO SUCH COOPERATION.

(d) Claims That Cannot Be Made – You further agree that You have no right with respect to, and thus no right to base any claim related to: 1) ownership of any Content; (b) the “value” of Content or Dungeon Marks; (c) the “value” of reporting any issues related to the game; or (d) any communication related to the Game made with respect to any FACEBOOK^TM account.

15. FANSITES

If you wish to operate a fan site for the Game, you must also agree to abide by any NOG fan site guidelines. To indicate your agreement to, and acceptance of, the NOG fan site guidelines, you must sign a copy of this agreement, sign a copy of the NOG fan site guidelines, and send signed copies of both to the Notice Contact. You may not operate a fan site for the Game until you have done so and subsequently received NOG’s written confirmation that you may operate a fan site. You further agree and understand that NOG may at any time, and for any reason, in its sole and absolute discretion, revoke its written confirmation that you may operate a fan site.

16. OTHER PROVISIONS

(a) It is Your responsibility to read, understand and accept this agreement each and every time You use the Service. 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 Game You warrant and represent that You did read, understand and accept the provisions in effect at that time.

(b) 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.

(c) Force Majeure – Both You and NOG shall 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 You or NOG, as applicable under the circumstances.

(d) Waiver – 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.

(e) No Rule of Strict Construction – 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 the agreement will continue in effect.

(f) Injunctive Relief – You and NOG acknowledge that breach of this agreement may result in irreparable harm and loss, and upon a breach of this agreement the non-breaching party (i.e. You and/or 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.

(g) Governing Law and Venue – 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 (see Sections 14(a) and 14(b) above), 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.

(h) Export Controls – You acknowledge that it is Your responsibility to fully comply with all relevant export laws and regulations of the United States (“Export Laws”) so that no part of the game is exported, directly or indirectly, in violation of Export Laws or intended to be used for any purposes prohibited by the Export Laws.

(i) Government Use – 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., , Attn:

(j) Notices – Unless otherwise stated in this agreement, all notices must be made to the Notice Contact.

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, 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).

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 email 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: ;

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 DungeonOverlord.com. We also own or control other domain names such as www.nightowlgames.com. The Websites at www.nightowlgames.com and 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 .

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 . 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:
Mail: Night Owl Games, Privacy Officer, 1250 Wood Branch Park Dr.,
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