This Agreement constitutes a binding agreement between Industrial Toybox, LLC (“Industrial Toybox”, “we”, “us”, or “our”) and each end user (“you” or “your”) regarding your use of Midnight Star™.
Industrial Toybox hereby grants to you a limited, non-exclusive, non-transferable license to install, operate, and use Midnight Star on any iPhone, iPod touch, or iPad that you own or control and as permitted by Apple, Inc. (“Apple”). Midnight Star is licensed, not sold, to you for use only under the terms of this Agreement. We reserve all rights not expressly granted to you in this Agreement.
We grant you permission to use Midnight Star, provided that: (a) your use is solely for your personal, noncommercial use; (b) you will not copy or distribute any part of Midnight Star in any medium without our prior written consent; (c) you will not alter or modify any part of Midnight Star other than as may be reasonably necessary to use Midnight Star for its intended purpose; and (d) you will otherwise comply with the terms of this Agreement. We may change the terms of this Agreement from time to time with or without notice to you. However, no change to this Agreement will apply to a dispute of which we had actual notice on the date of such change. We will notify you of any changes to this Agreement by posting them on our website. You agree that you will periodically check our website for updates to this Agreement. You agree that you will be deemed to have notice of any modifications once we post them to our website and that your continued use of the Midnight Star after such notice shall be deemed an acceptance of any changes.
We reserve the right to discontinue Midnight Star or to change the content of Midnight Star in any way and at any time, with or without notice to you, without liability. Upon termination for any reason, all licenses granted herein will immediately terminate and you must immediately and permanently destroy all copies of Midnight Star in your possession and control.
You are responsible for supplying any necessary telecommunications connections (such as internet access) or hardware that is necessary to access MidnightStar. You are responsible for complying with applicable terms of any third parties that are used in connection with the use of Midnight Star.
In order to access some features of Midnight Star, you must create an Account. You are not allowed to use another user’s Account without the other user’s permission. When creating your Account, you must provide accurate and complete information. If any of your information changes, you agree to update your registration information as soon as possible.
To obtain an Account, you must be at least 13 years of age. Midnight Star is not intended for use by children under the age of 13.
You are solely responsible for the activity that occurs on your Account, and you must keep your account password secure. You may change your password at any time by updating your account profile page. In addition, you agree to immediately notify us of any unauthorized use of your password or account or any other breach of security. We cannot and will not be liable for any loss or damage arising from your failure to comply with this paragraph. We reserve the right to terminate your access to all or part of Midnight Star at any time in our sole discretion and without prior notice. If you are a parent, legal guardian or other adult responsible for children in your care, you are fully responsible for any use of your credit card or other payment instrument by the children in your care. Parents, legal guardians or other adults who provide Midnight Star to their children should take precautions to prevent unintended purchases within Midnight Star.
You may notify us if you wish to terminate an Account by notifying Customer Support at email@example.com of your desire to do so. Any such request must include your name, address, contact information, and a reason for the request. We may also, in our absolute and sole discretion, provide other means by which you may choose to provide such notice. Whether or not you wish to terminate an Account, we may at any time or for any reason, in our absolute and sole discretion, delete, modify, or suspend your Account, Avatar, Forum ID, Callsign, or Team, or any characteristic of any of the foregoing. Termination of an Account under this paragraph also terminates any license granted by us under this Agreement but does not affect any other provisions of this Agreement.
Midnight Star may require at least one Callsign that you may be allowed to select, subject to any restrictions imposed by us. You acknowledge that your license to use or select any Account ID, Avatar, Forum ID, Callsign, or Team, to select characteristics related to any of the foregoing, or to provide any communication or information on any Forum, shall be within our absolute and sole discretion. You further acknowledge that we may, in our absolute and sole discretion, choose to modify or to delete your Account ID, Avatar, Forum ID, Callsign, Team, any characteristic related to any of the foregoing, or any communication or information on any Forum if you are not in compliance with the provisions of this Agreement
You may not in whole or in part, reproduce, copy, reverse engineer, decompile, disassemble, translate, adapt, redistribute or create derivative works based onMidnight Star, any update, or any part thereof, or attempt to do any of the foregoing, except as expressly permitted by this Agreement. Any attempt to do so is a violation of the rights of Industrial Toybox and its licensors. If you breach this restriction, this license shall terminate automatically and you may be subject to prosecution and damages.
Prices, if any, including but not limited to fees for Midnight Star, are subject to change. Such notice may be provided at any time by posting the changes toMidnight Star itself or at http://midnightstargame.com. We may require you require you to pay for updates, upgrades or newer versions of Midnight Star. We may require payments to your Account per-use or per-subscription as we deem appropriate and will establish in our sole discretion the timing and amount of such payments. We will not be liable to you or to any third party for any modification, price change, suspension or discontinuance of any part or all of MidnightStar. You acknowledge that your failure to make required payments may result in the termination of your Account.
Midnight Star allows you to purchase Virtual Currency to purchase Virtual Items for use in Midnight Star at our sole discretion and pricing. Virtual Currency has no monetary value and is not currency or property. Your balances of Virtual Currency do not constitute anything of real-world value and cannot be exchanged for anything other than Virtual Items. Virtual Currency is non-refundable even if your Account is terminated or Midnight Star is discontinued. We may remove Virtual Currency from your Account at any time for any reason. You have no rights to or in Virtual Currency. Virtual Items purchased with Virtual Currency made be deleted or discontinued by us at our sole discretion.
We will provide e-mail support to you for current versions of Midnight Star, contingent upon proper use of Midnight Star and full compliance with this Agreement. Maintenance and support may be requested at (provide website address here). We do not provide a guaranteed response time, but will make a good faith effort to answer questions within five business days or less during weekdays, excluding holidays. You acknowledge and agree that Apple has no obligation to furnish any maintenance and support services with respect to Midnight Star.
You agree not to use or launch any automated system, including without limitation, “robots,” “spiders,” or similar technological devices or programs that access Midnight Star or our website in a manner that sends more request messages to servers supporting Midnight Star in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser. Notwithstanding the foregoing, we grant the operators of public search engines permission to use spiders to copy materials from our website for the sole purpose of creating publicly available searchable indices of the materials, but not caches or archives of such materials. We reserve the right to revoke these exceptions either generally or in specific cases, in our sole discretion.
Midnight Star may allow you to chat or participate in blogs, message boards, online forums, contests and other functionality and may provide you with the opportunity to provide us with ideas, suggestions, opinions, comments, observations, text, data, photos, graphics, video, music, sound, chat, messages, files or other material (collectively “User Submissions”). You agree that any material you provide to us, other than Personally Identifiable Information you provide to us upon creating a user account with us or that we otherwise agree is confidential in writing, will be treated as non-confidential and nonproprietary. You agree not to collect or use User Submissions or any Personally Identifiable Information, including account names or email addresses, of other end users fromMidnight Star, nor use the communication systems provided by us for any commercial solicitation purposes.
You grant to us a non-exclusive, transferable, sub-licensable, worldwide, perpetual, royalty-free license to use, in any manner whatsoever, all or any portion of your User Submissions in connection with Midnight Star. You represent and warrant that you have the right to grant the license of your User Submissions granted in this Agreement. You are still the owner of your User Submissions and are still free to use them in any manner you choose.
We have no obligation to monitor or enforce any intellectual property rights that may be associated with your User Submissions, however, you grant us the right to enforce such rights through any means we see fit, including bringing and controlling actions on your behalf. Unless we explicitly state in writing, we do not endorse any User Submissions, and we make no representations or warranties regarding User Submissions. You acknowledge that you will evaluate and bear any risks related to your use of any User Submissions. You shall be solely responsible for your own User Submissions and the consequences of posting or publishing them. As such, your sole recourse for any damage you may suffer as a result of User Submissions shall be to pursue the originator of such User Submissions.
Should a third party claim that Midnight Star, or your possession and use of Midnight Star infringe upon that third party’s intellectual property rights, we, and not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such infringement claim.
We have no obligation to accept, display, review, monitor, or maintain any User Submissions. We reserve the right to delete User Submissions from MidnightStar without notice for any reason at any time. You acknowledge that you do not rely on us to monitor or edit Midnight Star and that Midnight Star may contain content which you find offensive and you hereby waive any objections you might have with respect to viewing such content.
Midnight Star may contain links to third party websites that are not owned or controlled by us. We assume no responsibility for, the content, privacy policies, or practices of any third party websites. By using the Midnight Star, you specifically release us from any and all liability arising from your use of any third party website.
The content on the Midnight Star including the text, graphics, and photos created by and for us (“Content”) and the trademarks, service marks and logos contained therein (“Marks”), are owned by or licensed to us, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. Content on Midnight Star is provided to you AS IS for your information and personal use only and may not be used for any other purpose whatsoever without the prior written consent of us or as expressly provided herein.
You agree to not use any of the Content other than expressly permitted herein. If you download or print a copy of the Content for personal or other non-infringing use, you must retain all copyright and other proprietary notices contained on such Content. You agree not to circumvent, disable or otherwise interfere with security related features of Midnight Star or features that prevent or restrict use or copying of any Content or enforce limitations on use ofMidnight Star or the Content therein.
We may, at our sole discretion, monitor Midnight Star in any manner for any purpose.
In addition to agreeing to abide by our Rules of Midnight Star, You agree to adhere to generally accepted rules of etiquette and standards of behavior. The following rules of conduct apply to your use of Midnight Star and to any of your User Submissions. You may not, in connection with the use of Midnight Star upload, post, email or otherwise transmit any User Submission or use Midnight Star in a way that:
misrepresents your identity or information provided in your Account;
uses third party software or provides third party software to others for use in Midnight Star not provided by us;
aids or assists the use of a Gaming Bot by others including the relaying or storing Virtual Currency or other Content obtained by the Gaming Bot;
cheats or allows others to cheat Midnight Star;
uses or provides others with any service that interacts with Midnight Star not provided by us;
is libelous or defamatory, pornographic, sexually explicit, unlawful or plagiarized;
infringes or violates any patent, copyright, trademark, trade secret or other property right;
breaches a duty of confidentiality by which you are bound due to a contractual or fiduciary relationship (such as inside information, or proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
a reasonable person would consider harassing, abusive, threatening, harmful, vulgar, profane, obscene, excessively violent, racially, ethnically or otherwise objectionable or offensive in any way;
constitutes a breach of any person’s privacy or publicity rights, a misrepresentation of facts, or hate speech;
violates or encourages others to violate any applicable law, statute, ordinance or regulation;
promotes software or services that deliver unsolicited e-mail;
contains viruses, Trojan horses, worms, time bombs, cancelbots or other similar harmful programming routines;
provides any telephone numbers, last names, URLs or email addresses of another person;
engages in commercial activities;
harms minors in any way;
solicits Personally Identifying Information from anyone;;
provides false or deceptive information;
deletes, adds or otherwise changes other people’s entries or other Content when you have not been granted the privileges to do so; or
allows usage by others in such a way as to violate this Agreement.
Please report any other violations of this Agreement, including objectionable User Submissions or behavior, to firstname.lastname@example.org. Please state the reasons for your concern and provide a link to the User Submissions or, if appropriate, the behavior in question. Upon receiving such a report of a possible violation, we may, in our sole discretion, investigate the matter and take such action as we determine to be appropriate. If you are a copyright owner and believe that your work has been copied or posted on the Midnight Star in a way that constitutes copyright infringement, you will need to send us a written communication that includes substantially the following (please consult legal counsel or see 17 U.S.C. 512(c)(3) of the Copyright Act for further detail or to verify these requirements):
your physical or electronic signature or the physical or electronic signature of your agent (if authorized to act on your behalf as the owner of the copyright’s exclusive right that is allegedly infringed);
identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works exist at one location are covered by a single notification, a single representative list of such works at that location;
identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material (providing URLs in the body of an email is the easiest way for us to locate content quickly);
information reasonably sufficient for us to contact you (such as address, telephone number or email address if available);
a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by you, your agent or the law; and
a statement that the information in the notification is accurate, and under penalty of perjury, that you, as the complaining party, are the owner of the copyrighted interest or authorized to act on the owner’s behalf.
Such written notice should be emailed to our designated agent at email@example.com or sent by mail to us at:
Industrial Toybox, LLC
233 1/2 E. Colorado Blvd.
Pasadena, CA 91101
YOU USE MIDNIGHT STAR AT YOUR OWN RISK. WE ARE PROVIDING MIDNIGHT STAR “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE DO NOT GUARANTEE THAT MIDNIGHT STAR WILL BE SAFE OR SECURE. WE ARE NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION, OR DATA OF THIRD PARTIES, AND YOU RELEASE US, OUR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES. WE WILL NOT BE LIABLE TO YOU FOR ANY LOST PROFITS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT, OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF MIDNIGHT STAR EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR AGGREGATE LIABILITY ARISING FROM YOUR USE OF MIDNIGHT STAR WILL NOT EXCEED THE AMOUNT YOU HAVE PAID US IN THE NINETY DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOUR CLAIM AROSE. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, OUR LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
To the extent that Midnight Star fails to conform to any applicable warranty, you may notify Apple and Apple will refund the purchase price for Midnight Star. To the maximum extent permitted by law, Apple will have no other warranty obligation whatsoever with respect to Midnight Star. Any additional claims, losses, liabilities, damages, costs, or expenses attributable to a failure to conform to any applicable warranty will be Industrial Toybox’s sole responsibility.
You agree to defend us, indemnify us and hold us harmless from and against all claims and expenses, including attorneys’ fees and costs, arising out of your use of Midnight Star and/or your breach or alleged breach of this Agreement. You agree that the provisions in this paragraph will survive any termination of your accounts with us or your use of Midnight Star. For the purposes of the disclaimers and limitation of liability in the preceding paragraph and the indemnification in this paragraph you agree that all references to us includes our managers, members, affiliates, agents and employees.
Industrial Toybox is solely responsible for addressing your claims, including, but not limited to (a) product liability claims; (b) claim that Midnight Star fails to conform to any applicable legal or regulatory requirement; or (c) any claim arising under consumer protection laws.
You may not use or otherwise export or re-export Midnight Star except as authorized by United States law and the laws of the jurisdiction in which MidnightStar was obtained. In particular, but without limitation, Midnight Star may not be exported or re-exported (a) into any U.S. embargoed countries, (b) any country that has been designated by the U.S. Government as a “terrorist supporting” country or (c) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using Midnight Star, You represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.
Midnight Star and related documentation are “Commercial Items”, as that term is 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. §1 2.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.21 2 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights are reserved under the copyright laws of the United States.
This Agreement shall be governed by and construed in accordance with the internal laws of the United States and the State of California without regard to conflict of laws provisions. You agree not to commence or prosecute any action in connection with this Agreement other than in the state and federal courts located in Los Angeles County, California, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in the state and federal courts located in Los Angeles County, California.
You acknowledge that the rights granted and obligations made hereunder to us are of a unique and irreplaceable nature, the loss of which shall irreparably harm us and which cannot be replaced by monetary damages alone so that we shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief and agree to limit your claims to claims for monetary damages (if any).
To expedite resolution and control the cost of any dispute, controversy or claim related to this Agreement (“Dispute”), The parties agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least thirty days before initiating any arbitration or court proceeding. Such informal negotiations commence upon written notice from one person to the other.
You will send your notice to:
Industrial Toybox, LLC
233 1/2 E. Colorado Blvd.
Pasadena, CA 91101
ATTENTION: LEGAL DEPARTMENT
The parties agree that any arbitration shall be limited to the Dispute between the parties. To the full extent permitted by law, (a) no arbitration shall be joined with any other; (b) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
The parties agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (a) any Disputes seeking to enforce or protect, or concerning the validity of, any of your or our intellectual property rights; (b) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (c) any claim for injunctive relief.
Our failure to require or enforce strict performance by you of any provision of this Agreement or to exercise any right under it shall not be construed as a waiver or relinquishment of our right to assert or rely upon any such provision or right in that or any other instance.
The parties agree that if any portion of this Agreement is found illegal or unenforceable, in whole or in part by any court of competent jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of this Agreement, which shall continue to be in full force and effect.
This Agreement, and any rights and licenses granted hereunder, may not be assigned, transferred, delegated, and sublicensed by you, but may be assigned, transferred, delegated, and sublicensed by us without restriction.
This license does not allow you to use Midnight Star on any iPhone, iPod touch, or iPad that you do not own or control, and you may not distribute or makeMidnight Star available over a network where it could be used by multiple devices at the same time. You acknowledge and agree that Apple and its subsidiaries are third party beneficiaries of this Agreement and that there are no other third party beneficiaries, and upon your acceptance of this Agreement, Apple will have the right to enforce this Agreement against you as a third party beneficiary thereof.