Elements Terms of Service and Use
Effective Date: 3/12/2018
Most Recent Update: 1/28/2020
I. Introduction and Agreement to these Terms of Service
By accessing or using any of the software, code or components of Elements whether in binary, API, or source code form whether locally or your own servers or on our managed servers (collectively the "Elements" as more specifically defined below in Section III), you acknowledge that you have read, understood, and agree to the most recent version of these Terms of Service ("Terms"). “Elemental Computing”, "ECI", "we", "us", or "our" refer to Elemental Computing Inc., located at 2815 Camino Del Rio S. Street, #155, San Diego, CA 92108, and includes affiliates, which shall mean subsidiaries, parent companies, joint ventures and other corporate entities under common ownership. Namazu refers to an affiliate Namazu Studios LLC.
This agreement may not be otherwise amended except in a writing hand signed by you and Us. For purposes of this provision, "writing" does not include an e-mail message.
These Terms will cover your use of the ECI Elements, in association with the development or publishing of any application or game on any and all platforms, whether PC or Macintosh downloadable or browser based, Facebook, iOS, Google Play, Android, Xbox, PlayStation, or any other game platform (“Platforms”). The Terms will apply to all use whether online or locally.
II. Grant of a Limited License to Access and Use Elements
You are responsible for any and all fees that ECI charges you for use of the Elements. Failure to pay such fees when they become due will be grounds for revocation of the license granted herein and immediate termination of your access to and use of the Elements.
III. Description of ECI Elements
ECI Elements consists of several major components designed to house and manage the logic several applications in a multi-tenant fashion. To accomplish its task, this consists of the following major components:
A RESTful API used to manage various administrative functions such as user management, authentication, application management, matchmaking etc.
An application server which hosts custom logic on a per-application basis and dispatches incoming requests to a backend service for long-running script instances.
A worker node application which efficiently manages the lifecycle of long-running scripts which define the client application’s logic.
A code server which is used to manage deployments of the application code
Code and components used to enable inter-script communication, via network if necessary.
A code generator which allows for the generation of Unity3D client code based on server-side definitions.
Supporting documentation and example code.
Elements source code consists of the Following:
All Java source code files in the com.namazustudios.* package and subpackages
All Lua source code files in the ECI or Namazu package and subpackages
Custom-built modifications and extensions to various open source projects.Including, but not limited to:
jnLua - Lua Bindings for the Java Programming Language
The Lua Programming Language 5.3
Swagger.io/OpenAPI Code Generator
Ancillary supporting files including Build scripts, Makefiles, Docker definition files
Documentation and other supporting files bearing a ECI or Namazu Copyright notice
Any compiled binaries as a direct result of the above
IV. Ownership Rights
All of the Elements is owned, controlled, or licensed by ECI. All components of the Elements are copyrighted under United States copyright laws and/or similar laws of other jurisdictions, protecting it from unauthorized use. ECI, its logos, and the Elements name are trademarks of Elemental Computing, Inc. and may not be used without ECI's express written permission.
You agree that any and all changes, updates or modifications made to the Elements, including but not limited to modifications that you make to the source code, binaries, or API’s of the Elements, are the sole and exclusive property of Elemental Computing or its licensors. Elemental Computing may use the Elements, including any modifications that you make, for any purpose, including for commercial or promotional use without restriction or compensation to you. You agree not to copy, redistribute, publish or otherwise exploit any of the Elements in violation of the intellectual property rights of Elemental Computing or any other third party.
Any Third-Party content used by Elemental Computing has been with permission and commercial licenses. Please see Section XVI for third-party software credits.
By virtue of your license and use of Elements, you and we may have access to information that is confidential to one another. “Confidential Information” means any non-public information that relates to the actual or anticipated business and/or products (including without limitation the Elements), research or development of either you or us, or your or our affiliates or subsidiaries, or to either of you or us, your or our affiliates’ or subsidiaries’ technical data, trade secrets, or know-how, including, but not limited to, research, product plans, or other information regarding either you or us, your or our affiliates’ or subsidiaries’ current or future products or services and markets therefore, customer lists and customers, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, and other business information disclosed by either you or us, your or our affiliates or subsidiaries, either directly or indirectly, in writing, orally or by drawings or inspection of premises, parts, equipment, or other property of either you or us, your or our affiliates or subsidiaries. Notwithstanding the foregoing, Confidential Information shall not include any such information which the receiving party can establish (i) was publicly known or made generally available prior to the time of disclosure to the receiving party; (ii) becomes publicly known or made generally available after disclosure to the receiving party through no wrongful action or inaction of the receiving party; or (iii) is in the rightful possession of the receiving party, without confidentiality obligations, at the time of disclosure, all as shown by the receiving party’s then-contemporaneous written records. During and after the term of this Agreement, both parties will hold in the strictest confidence, and take all reasonable precautions to prevent any unauthorized use or disclosure of Confidential Information, and both parties will not (i) use the Confidential Information for any purpose whatsoever other than as necessary for the performance of its duties under this Agreement, or (ii) disclose the Confidential Information to any third party without the prior written consent of an authorized representative of the disclosing party. Either party may disclose Confidential Information to the extent compelled by applicable law; provided however, prior to such disclosure, the party so compelled shall provide prior written notice to the disclosing Party and seek a protective order or such similar confidential protection as may be available under applicable law. Both parties agree that no ownership of Confidential Information is conveyed to the recipient party. All Confidential Information furnished to a recipient shall remain solely the property of the discloser. Confidential Information, including all copies in any form, shall be returned to the discloser upon termination of your license to access and use Elements. Both parties agree that its obligations under this Section V shall continue after the termination of your license to access and use Elements.
VI. User Generated Content
It is possible you may choose to contribute to the Elements through the submission of user-generated content. User Generated Content may be defined as various kinds of content, that are produced by end users as well as any feedback, comments, or suggestions that you provide to us regarding the Elements.
You agree that such User Generated Content is wholly original to you and you exclusively own the rights to such User Generated Content, including the right to grant all of the rights and licenses in these Terms without Elemental Computing incurring any third-party obligations or liability arising out of its exercise of the rights granted herein by you.
To the extent that User Generated Content includes anything named, designed, or made by you using tools provided by us, Elemental Computing retains ownership over those items and the license to you is limited as granted in section II of this Terms of Service.
For any content that you generate that is not owned by ECI, you hereby grant to Elemental Computing a non-exclusive, worldwide, royalty-free, sublicenseable, and transferable license to use, only as part of the Elements on any Platform as well as any and all media now known or hereafter developed and to advertise, market and promote the same. To the extent permitted by applicable laws, you hereby waive any moral rights or rights of publicity or privacy you may have in such User Generated Content.
VII. User Code of Conduct
Your use of the Elements is governed by certain rules (the "Code of Conduct"), maintained and enforced by ECI. It is your responsibility to know, understand and abide by this Code of Conduct.
If Elemental Computing finds in its sole and exclusive discretion that you have violated the Code of Conduct, we can terminate your access to and use of the Elements. ECI may choose at its own sole discretion not to penalize you for a claimed violation of this Code of Conduct. Non-enforcement in one instant of any violation by you does not constitute a waiver of any other or subsequent violation by you or any other user.
You agree that your use of the Elements shall be lawful and you will not:
• violate the contractual, personal, intellectual property or other rights of any party, or promote, cause or create illegal activity;
• make improper use of ECI's support services;
• disseminate, transmit, or attempt to upload viruses, Trojan horses, keyboard loggers, time bombs, adware, spyware, or any other malicious or invasive code of program;
• reverse engineer, decompile, reverse assemble, modify or attempt to discover any software (source code or object code) that Elemental Computing created to generate binaries, web pages or any software or other products or processes accessible through the Elements;
• interfere with or circumvent any security feature of the Elements or any feature that restricts or enforces limitations on use of or access to the Elements;
• use the Service in order to design or assist in the design of cheats, automation software, bots, hacks, mods or any other unauthorized third party software designed to modify or interfere with the Elements;
• except Elemental Computing’ express written consent, modify or cause to be modified any files that are a part of the Elements;
• sell the Elements or any part thereof including access to them in exchange for real currency or items of monetary value;
• attempt to, or harass, abuse, or harm, or advocate or incite harassment, abuse or harm of another person, group, including ECI or Namazu employees or ECI’s or Namazu’s customer service representatives; or
• make available through the Elements any material or information that infringes any copyright, trademark, patent, trade secret, right of privacy, right of publicity, or other right of any person or entity or impersonates any other person, including without limitation an ECI employee.
VIII. Additional Restrictions
The following restrictions apply to the use of the Elements:
You shall not create an Account or access the Elements if you are under the age of 13; By accessing and using the Elements, you represent and warrant that you are at least 13 years old. If you are a minor over the age of 13, you must seek consent from a parent or legal guardian before accessing the Elements;
You shall monitor your Account to restrict use by minors, and you will deny access to children under the age of 13. You accept full responsibility for any unauthorized use of the Elements by minors in connection with your Account.
You shall not have an Account or use the Elements if you have previously been removed by ECI or previously been banned from using the Elements;
You shall not use the Elements if you are located in a country embargoed by the United States or if you are on the U.S. Treasury Department's list of Specially Designated Nationals.
You shall not use your Account to engage in any illegal conduct;
You shall not sublicense, rent, lease, sell, trade, gift, bequeath or otherwise transfer your Account to anyone without Elemental Computing’ written permission;
You shall not copy, modify or distribute rights or content from the Elements, or Elemental Computing’ copyrights or trademarks or use any method to copy or distribute the Elements except as specifically allowed in these Terms of Service
IX. UPDATES TO Elements
You understand that the Service is an evolving one. ECI may require that you accept updates to the Elements. You acknowledge and agree that ECI may update the Elements with or without notifying you and make any changes to the Elements or your Account at ECI’s sole discretion. You may need to update third party software from time to time in order to use the Elements.
Without limiting any other remedies, we reserve the right to limit, suspend, terminate, modify, or delete your account or access to any or all of the Elements or portions thereof if you are, or ECI suspects that you are, failing to pay license fees when due, failing to comply with any of these Terms or for any actual or suspected illegal or improper use of the Elements, with or without notice to you, at any time. It is within our sole discretion and determination to terminate your Account for what we deem to be a violation or breach of these Terms. In the event that we terminate or suspend your Account, you will have no further access to your Account or anything associated to it.
ECI reserves the right to stop offering and/or supporting the Elements or a particular part of the Elements at any time either permanently or temporarily, at which point your license to use the Games or a part thereof will be automatically terminated or suspended.
Termination of your Account can include disabling your access to the Elements or any part thereof including any User Generated Content you submitted or others submitted.
Upon Termination for any reason, you will be expected to discontinue use of the Elements and return to us any ECI Confidential Information including without limitation all software, code and documentation of the Elements.
Your information, and the contents of all of your online communications (including without limitation chat text, voice communications, IP addresses and your personal information) may be accessed and monitored as necessary to provide the Elements and may be disclosed: (i) when We have a good faith belief that We are required to disclose the information in response to legal process (for example, a court order, search warrant or subpoena); (ii) to satisfy any applicable laws or regulations (iii) where We believe that the Elements is being used in the commission of a crime, including to report such criminal activity or to exchange information with other companies and organizations for the purposes of fraud protection and credit risk reduction; (iv) when We have a good faith belief that there is an emergency that poses a threat to the health and/or safety of you, another person or the public generally; and (v) in order to protect the rights or property of Elemental Computing, including to enforce our Terms. By entering into these Terms, you hereby provide your irrevocable consent to such monitoring, access and disclosure.
XII.Disclaimer of Warranties and Limitation of Liability
ELEMENTS, ALL INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) AND SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU ARE PROVIDED BY ECI ON AN "AS IS" AND "AS AVAILABLE" BASIS, UNLESS OTHERWISE SPECIFIED IN WRITING. ECI MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE ELEMENTS OR THE INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE ELEMENTS, UNLESS OTHERWISE SPECIFIED IN WRITING. YOU EXPRESSLY AGREE THAT YOUR USE OF THE ELEMENTS IS AT YOUR SOLE RISK.
TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, ECI DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ECI DOES NOT WARRANT THAT THE ELEMENTS, ITS INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU; THEIR SERVERS; OR E-MAIL SENT FROM ECI ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ECI WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THE ELEMENTS, ITS INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING FOR LOSS OF PROFITS, GOODWILL OR DATA, IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
XIII. Applicable Law
By accessing and using the Elements, you agree that the laws of the state of California, without regard to principles of conflict of laws, will govern these Terms and any dispute of any sort that might arise between you and ECI. You agree that any claim or dispute you may have against ECI must be resolved exclusively by a state or federal court located in San Diego County. You agree to submit to the personal jurisdiction of the courts located within San Diego County, California for the purpose of litigating all such claims or disputes. You also agree that Company will be entitled to injunctive relief in addition to damages or any other remedies available to it, for any breach you make of Section IV Ownership or Section V Confidentiality.
You agree to defend, indemnify and hold harmless Elemental Computing, its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners harmless from all claims and expenses, including attorneys' fees and costs, arising out of your use the Elements and/or your breach or alleged breach of any term, condition, obligation, representation or warranty in these Terms. ECI reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify ECI, and you agree to cooperate with ECI’s defense of these claims. ECI will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
You agree that the provisions in this paragraph will survive any termination of your Account(s) or your use of the Elements.
XV. Third-Party Software Credits
This section contains a list of open source software projects and versions used in Elements.
XVI. Complaints and Notices
The Digital Millennium Copyright Act (DMCA) provides copyright owners who believe that their rights under the United States Copyright Act have been infringed by acts of third parties over the Internet with ways to protect their rights. If you believe that your copyrighted work has been copied without your authorization and is available in this game in a way that may constitute copyright infringement, you can provide notice of your claim to ECI’s address as listed below. For your notice to be effective, it must include the following information:
1. A physical or electronic signature of a person authorized to act on behalf of the owner of the intellectual property right that is allegedly infringed;
2. A description of the copyrighted work that you claim has been infringed upon;
3. A description of where the material that you claim is infringing is located in this game;
4. Information reasonably sufficient to permit Elemental Computing to contact the complaining party, such as address, telephone number, and, if available, an e-mail address at which the complaining party can be contacted;
5. A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
6. A statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.
Elemental Computing, Inc.
2815 Camino Del Rio S. Street, #155,
San Diego, CA 92108
XVIII. Supplemental Policies
ECI may publish additional policies related to specific services such as applications for mobile devices, forums, contests or loyalty programs. Your right to use such services is subject to those specific policies and these Terms of Service.
XIX. Language of the Terms of Service
In the event of a conflict between a translation of the ECI Policies and the English version, the English version of the ECI Policies will control.
The failure of Elemental Computing to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect.
You acknowledge that the rights granted and obligations made under these Terms to ECI are of a unique and irreplaceable nature, the loss of which shall irreparably harm ECI and which cannot be replaced by monetary damages alone. Accordingly, ECI shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety or proof of damages) in the event of any breach or anticipatory breach by you.
You irrevocably waive all rights to seek injunctive or other equitable relief, or to enjoin or restrain the operation of the Elements, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Elements or any content or other material used or displayed through the Elements and agree to limit your claims to claims for monetary damages, limited by Section XII (if any).
XX. Force Majeure
ECI shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of ECI, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond ECI’s control such as acts of Gods or Goddesses (living or dead, real or imagined), war, riots, fire, floods, natural disaster, disturbance in the Force, accident, alien invasion, act of government or terrorism, embargoes, network infrastructure failures, Zombie Apocalypse, strikes, robot ascension or artificial intelligence overthrow, shortages of material or supplies or shortages of transportation facilities, fuel, energy, labor or materials.
If any provision of these Terms is found invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in force.
XXII. Entire Agreement
These terms and conditions and any associated license agreement that explicitly reference these Terms (including any Statements of Work or Order Forms), constitute the entire and exclusive agreement between you and Elemental Computing concerning your use of the Elements and supersede any and all statements or other agreements, whether oral or written, between you and Elemental Computing regarding that use.