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Last Updated: November 1, 2004

GAMEFIESTATM Terms and Conditions

Welcome to the GameFiestaTM website (the "Website"). By using or accessing the Website and our computer games downloading service (the "Service"), you are agreeing to comply with and be bound by the following terms and conditions (the "Agreement"). Please review the following provisions of this Agreement carefully. If you do not agree to all the terms and conditions contained in this Agreement in its entirety, you are not authorized to use this Website or the Service in any manner or form. GameFiestaTM is not available to individuals under the age of 18 and if you are under the age of 18, you may not access or use the Website and/or Service in any manner whatsoever. In addition to this Agreement, anyone downloading a game is required to agree to the specific end user license agreement ("EULA") associated with that game.

  1. Acceptance of Agreement. You agree to the terms and conditions contained within this Agreement. This Agreement constitutes the entire and only agreement between you and us, and supersedes all prior or contemporaneous agreements, representations, warranties and understandings with respect to the Website and access to the Service. We may amend this Agreement from time to time in our sole discretion, without specific notice to you. The latest Agreement will be posted at the Website, and you should review this Agreement prior to using the Website and Service. By your continued use of the Website and Service, you hereby agree to all the terms and conditions contained within the Agreement in effect at the time. Therefore, you should regularly check this page for any and all updates and changes.

  2. Registration. Registration with GameFiestaTM is necessary to become a member ("Member") and access Games at the Service. Games may be obtained through downloading and/or purchasing a single Game title, through a monthly membership subscription ("Monthly Membership") or through promotional points. When you register to become a Member, you agree to provide accurate, current and complete information about yourself (the "Registration Data") as prompted by our registration form. You also represent that we may rely on your Registration Data as accurate, current and complete. In addition, we may ask for credit card information or employ some other age verification measure. The preceding information, except for credit card information to the extent that such information may be used to charge any Monthly Membership fees or Game fees, will be used solely for proving your age. You agree to maintain and update your Registration Data to keep it accurate, current and complete at such time that you access the Service. GameFiestaTM reserves the right, in its sole discretion, to terminate your membership for inaccurate, untrue, deceptive and/or incomplete Registration Data.

  3. The Service. GameFiestaTM is an Internet-based games downloading service. There are four (4) ways to obtain games through the Service (each, a "Game"): via a one-time payment to unlock a single Game, a Monthly Membership, promotional points ("Points") and online bundles ("Bundles"). The Games available through the Service can change at any given time, based on business circumstances and the sole discretion of GameFiestaTM. Accordingly, we encourage everyone to take advantage of an available Game as they appear if you so desire, as they may be removed in the future.

    Single Game Purchases. For most Games, a complete time-limited version of each Game is available for download through the Service at no cost. This is, for the most part, a full version, with substantially all the functionality of the unlocked version, albeit the Game will cease working after a certain period of time. In most cases this trial time period is sixty (60) minutes. In addition to, or instead of, downloading, Games may be available through a web-version which will be playable through a pop-up window. A web-version of a Game may not have all the features and functionality of the unlocked version. We also supply a link enabling the purchase of a full, unlocked version of the Game. Each Game shall set forth the cost of the unlocked version. Once purchased, the Member will have the end user license and right to continually use the unlocked version. Please see below for our cancellation/refund policy.

    Monthly Memberships. Members may elect to pay for Monthly Memberships. Under the Monthly Membership, a Member can choose from one (1) full unlocked Game per month from a select group of Games. Member understands and agrees that not every Game is available through the Monthly Membership. The cost of Monthly Memberships may change from time to time, as reflected at the Website. At this time, the cost of a Monthly Membership is $9.99 US per month (subject to change at any time, in GameFiesta's sole discretion). A member under a Monthly Membership may purchase additional unlocked Games at the per-Game cost. Please see below for our cancellation/refund policy.

    Points. GameFiestaTM may offer a Points plan, whereby Members can obtain Points based on a certain action (such as referring a friend to the Service or purchasing two (2) or more Games per month). GameFiestaTM may make a select group of Games available for purchase through Points.

    Bundles. From time to time, GameFiestaTM may offer a select group of Games bundled together at a special discounted price.

  4. Username and Password. As part of the registration process, you will be asked to select a username and password. We may refuse to grant any username, in our sole discretion, if the username you select is invalid and/or inappropriate. Invalid and/or inappropriate usernames include, but are not limited to, usernames that impersonate another person, are protected by trademark law or other proprietary rights, those that may cause confusion or those that are vulgar or otherwise offensive. You are solely responsible for the confidentiality and use of your username and password. You agree not to transfer or resell your username and/or password, or otherwise provide access to the Website and/or Service to any third party. If you have reason to believe that your account is no longer secure, you must promptly change your password by updating your account information and immediately notify GameFiestaTM by e-mailing us at info@GameFiesta.com. HOWEVER, YOU ARE SOLELY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF YOUR USERNAME AND PASSWORD, AND FOR ANY AND ALL ACTIVITIES THAT ARE CONDUCTED THROUGH YOUR ACCOUNT, EVEN UNAUTHORIZED ACTIVITIES.

  5. Editing, Deleting and Modification. We reserve the right, in our sole discretion, to add, modify or delete any documents, information and/or other content appearing on the Website and Service. In addition, we may add or discontinue the availability of a Game at any time, in our sole discretion.

  6. Fees/Termination. You agree to pay for all charges incurred by you to obtain a Membership or Game through the Service, via the payment method you specify and supply. GameFiestaTM's Games' costs and fees are provided to you at the Website and/or at the point you download a locked version of a Game, and may change from time to time in GameFiesta's sole discretion. These changes are effective when changed at the Website. Notice may be provided to you via e-mail or by any other means we deem reasonable, in our sole discretion. GameFiestaTM reserves the right to terminate your access to the Website for any reason or no reason, in our sole discretion. GameFiestaTM may terminate your membership via any reasonable means including, without limitation, by sending notice to you at the e-mail address you provide in your registration or such other e-mail address(es) as you may later provide to us. Such termination is effective upon transmittal to your e-mail address(es) by GameFiestaTM. If GameFiestaTM terminates your membership for breach of this Agreement, you will not be entitled to any refund of any unused Monthly Membership fees, if any. Your purchase will be billed under the name "GameFiesta." Monthly Membership fees are billed on a recurring basis to the payment device supplied at the time of registration, once per month commencing on the date of purchase until cancelled by the respective Member. Members explicitly authorize GameFiestaTM to bill on such a continual basis by signing up for Monthly Memberships, until such time the respective Member cancels such authorization.

  7. Cancellation/Refund Policy. If you have a Monthly Membership, you may cancel your membership at any time and you will no longer be billed for monthly membership after the date of cancellation. However, GameFiestaTM WILL NOT REFUND MONTHLY MEMBERSHIPS PREVIOUSLY PAID AND/OR CHARGED as of your cancellation date and your Monthly Membership will remain active until the end of the applicable monthly period. With respect to Games obtained through the Monthly Membership, GameFiestaTM will not give exchanges or refunds. Once downloaded, your sole remedy is replacement with the SAME GAME TITLE and only if such GAME is defective or inoperative.

    THERE ARE NO REFUNDS FOR FEES PAID TO OBTAIN AN UNLOCKED VERSION OF A SINGLE GAME. Once downloaded, your sole remedy is replacement with the SAME GAME TITLE and only if such GAME is defective or inoperative.

    GameFiesta's cancellation/refund policy is disclosed to Members at the time of registration and may be changed from time to time, in the sole discretion of GameFiestaTM. These changes are effective upon posting at the Website and/or the provision of notice to a Member. Notice may be provided to the Member via e-mail or any other means that GameFiestaTM deems appropriate, in GameFiestaTM's sole discretion.

  8. Online Content/Conduct. As a Member, you agree that you are solely responsible for the content and/or information that you publish, transmit and/or post on the Website, as well as your conduct in general at the Website and Service. You agree to use the Service in a manner consistent with any and all applicable laws, rules and regulations and with the highest regard to the intellectual property rights of GameFiestaTM and its licensors.

    To the extent GameFiestaTM permits Members to communicate online at the Website through a forum-like environment, opinions, advice, statements, offers or other information or content made available through the Website are those of the respective Member-author(s) and not of GameFiestaTM. Such Members are solely responsible for the accuracy, completeness or usefulness of such content. GameFiestaTM does not guarantee the accuracy, completeness or usefulness of any information on the Website and/or Service and neither adopts nor endorses, nor is responsible for the accuracy, completeness or reliability of any opinion, advice or statement made on the Website. You understand and agree that GameFiestaTM will not be responsible for any loss or damage resulting from a third party's reliance on information or other content posted on the Website by you.

    In addition, without limitation, you agree not to:

    • Use, or attempt to use, any method or technique to access and/or obtain unlocked Games without payment thereof;
    • Impersonate any other person or entity;
    • "Stalk" or otherwise harass any person via the Website;
    • Engage in advertising to, or solicitation of, other Members to buy or sell any products or services through the Website;
    • Transmit any chain letters, "spam" or junk e-mail to other Members;
    • Express or imply that any statements you make are endorsed by GameFiestaTM;
    • Harvest or collect personal information about other Members whether or not for commercial purposes;
    • Use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, "data mine," or in any way reproduce or circumvent the navigational structure or presentation of the Website and/or the Service;
    • Post, distribute or reproduce in any way any copyrighted material, trademarks, or other proprietary information without obtaining the prior consent of the owner of such proprietary rights;
    • Remove any copyright, trademark or other proprietary rights or notices contained on the Website;
    • Interfere with or disrupt the Website and/or Service or the servers and/or networks connected to the Website and/or Service;
    • Post, e-mail or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
    • Forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted through the Website or Service;
    • "Frame" or "mirror" any part of the Website or Service;
    • Use metatags or code or other devices containing any reference to GameFiestaTM or the Website or Service in order to direct any person to any other website for any purpose; and/or
    • Modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Website, Service, any Game, any software used on or for the Website and/or Service, or cause others to do so.

    GameFiestaTM reserves the right, but has no obligation, to reject any posting that does not comply with these prohibitions or for any reason at all. Engaging in any of the aforementioned prohibited practices shall be deemed a breach of this Agreement and may result in termination of your membership, in the sole discretion of GameFiestaTM, pursuant to the terms of this Agreement. GameFiestaTM reserves the right to pursue any and all legal remedies against individuals who engage in the aforementioned prohibited conduct.

    Any attempt by any individual, whether or not a Member, to damage, destroy, tamper with or vandalize this Website and/or Service, or any portion therein, or otherwise interfere with the operation of the Website and/or Service, is a violation of criminal and civil law and GameFiestaTM will diligently pursue all remedies in this regard against any offending individual or entity to the fullest extent permissible by law.

  9. Member Disputes. GameFiestaTM does not control the information provided by other Members that are made available through our system. You may find other Member's information to be offensive, harmful, inaccurate, or deceptive. Please use caution, common sense, and safety when using the Website. You are solely responsible for your interactions with other Members. Because GameFiestaTM is not directly involved in Member interactions, in the event that you have a dispute with one or more members or those who have posted, viewed or used information on the Website, you hereby release GameFiestaTM and its Affiliated Parties, as defined hereinbelow, from any and all claims, demands and damages (actual, indirect and/or otherwise consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes and/or arising out of your use of the Website and/or Services. GameFiestaTM reserves the right, but has no obligation, to monitor disputes between you and other Members.

  10. Use of Your Information. W. We reserve the right, and you authorize us, to use and assign all information regarding your Website and Service use, and any and all other personal information provided by you, in any manner consistent with our Privacy Policy, as amended from time to time, which is hereby made a part of this Agreement. We may monitor your Website and Service usage and use this information as required by any law, regulation or court order.

  11. License Grant. You are granted a non-exclusive, non-transferable, revocable and limited license to access and use the Website, the Service and associated content in accordance with this Agreement. GameFiestaTM may terminate this license at any time for any reason.

    You may use the Website and/or Service on one computer for your own personal, non-commercial use. No part of the Website and/or Service may be reproduced in any form or incorporated into any information retrieval system, electronic or mechanical. You may not use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, reverse engineer or transfer the Website and/or Service, its associated content, or any portion thereof. GameFiestaTM reserves any rights not explicitly granted in this Agreement. You may not use any device, software or routine to interfere or attempt to interfere with the proper working of the Website and/or Service. You may not take any action that imposes an unreasonable or disproportionately large load on the GameFiestaTM infrastructure.

    Your right to use the Website and/or Service is not transferable. Access to, and use of, the Service may be through a combination of user name and password ("Login"). If you access the Service through a Login, you must keep your Login strictly confidential. For security reasons, we will not release passwords for any reason, other than to a Member upon request and when specifically required by law or court order. Unauthorized access to the Website and/or Service is a breach of this Agreement and a violation of applicable law.

    IN ADDITION, YOU UNDERSTAND AND AGREE THAT EACH GAME IS SUBJECT TO ITS OWN EULA, TO WHICH YOU MUST AGREE TO PRIOR TO DOWNLOADING AND/OR ACCESSING SUCH GAME.

  12. Proprietary Rights. The content, organization, graphics, design, compilation, magnetic translation, digital conversion, software, services and other matters related to the Website, Service, and each and every Game are protected under applicable copyrights, trademarks and other proprietary (including, but not limited to, intellectual property) rights. The copying, redistribution or publication by you of any part of the Website, Service and/or a Game is strictly prohibited. You do not acquire ownership rights to any Game, content, document, software, services or other materials viewed, accessed and/or obtained at or through the Website, Service. The posting of information or material at the Website does not constitute a waiver of any right in such information and materials by GameFiestaTM. Any rights not explicitly set forth herein is reserved by GameFiestaTM and its licensors.

  13. External Links. The Website may provide, links to other Internet websites and/or resources. Because GameFiestaTM has no control over such websites and/or resources, you hereby acknowledge and agree that GameFiestaTM is not responsible for the availability of such third party websites and/or resources. Furthermore, GameFiestaTM does not endorse, and is not responsible or liable for, any content, advertising, products and/or other materials at or available from such third party websites or resources, or for any possible damages and/or losses arising therefrom.

  14. Indemnification. You agree to indemnify, defend and hold harmless GameFiestaTM, its parents, subsidiaries, affiliates, officers, directors, employees, agents, shareholders, licensors and suppliers (collectively, "Affiliated Parties") from and against all losses, expenses, damages and costs, including reasonable attorneys' fees, in-house counsel time and settlement costs, resulting from any violation of this Agreement and/or your use of the Website and/or Service. The provisions of this paragraph are for the benefit of GameFiestaTM and its Affiliated Parties. Each of these individuals and entities shall have the right to assert and enforce these provisions directly against you on its own behalf.

  15. WARRANTIES/LIMITATION OF LIABILITY. THE WEBSITE, SERVICE AND EACH AND EVERY GAME, IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. EXCEPT AS EXPLICITLY CONTAINED IN THIS AGREEMENT, ALL WARRANTIES, EXPRESS OR IMPLIED, ARE DISCLAIMED (INCLUDING, BUT NOT LIMITED TO, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). THE WEBSITE, SERVICE AND EACH AND EVERY GAME MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. WE AND OUR AFFILIATED PARTIES HAVE NO LIABILITY WHATSOEVER FOR YOUR USE OF, OR INABILITY TO USE, THE WEBSITE, SERVICE OR A GAME. IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, WE AND/OR OUR AFFILIATED PARTIES ARE NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE NEGATION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND US. THE WEBSITE, THE SERVICE, EACH AND EVERY GAME AND INFORMATION CONTAINED THEREIN, WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US THROUGH THE WEBSITE, THE SERVICE OR A GAME SHALL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT.

    WE AND OUR AFFILIATED PARTIES ARE NOT RESPONSIBLE FOR ANY INCORRECT OR INACCURATE CONTENT POSTED ON THE WEBSITE OR PROVIDED IN CONNECTION WITH THE SERVICE, WHETHER CAUSED BY INDIVIDUALS, MEMBERS OR BY ANY OF THE EQUIPMENT OR PROGRAMMING ASSOCIATED WITH OR UTILIZED IN THE WEBSITE AND SERVICE, NOR FOR THE CONDUCT OF ANY INDIVIDUAL AND/OR MEMBER OF THE SERVICE, WHETHER ONLINE OR OFFLINE. WE ASSUME NO RESPONSIBILITY FOR ANY ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO OR ALTERATION OF, INDIVIDUAL AND/OR MEMBER COMMUNICATIONS.

    UNDER NO CIRCUMSTANCES WILL WE AND/OR OUR AFFILIATED PARTIES BE RESPONSIBLE FOR ANY LOSS OR DAMAGE RESULTING FROM ANYONE'S USE OF THE WEBSITE OR SERVICE AND/OR ANY CONTENT POSTED ON THE WEBSITE OR TRANSMITTED TO ANY MEMBERS. WE CANNOT GUARANTEE, AND DO NOT PROMISE, ANY SPECIFIC RESULTS FROM USE OF THE WEBSITE AND/OR SERVICE.

    WE AND/OR OUR AFFILIATED PARTIES ARE NOT RESPONSIBLE FOR ANY PROBLEMS OR TECHNICAL MALFUNCTION OF ANY TELEPHONE NETWORK OR LINES, COMPUTER ONLINE SYSTEMS, SERVERS, COMPUTER EQUIPMENT, SOFTWARE OR FAILURE OF E-MAIL ON ACCOUNT OF TECHNICAL PROBLEMS OR TRAFFIC CONGESTION ON THE INTERNET OR AT ANY WEBSITE OR ANY COMBINATION THEREOF INCLUDING, BUT NOT LIMITED TO, INJURY OR DAMAGE TO AN INDIVIDUAL'S, MEMBER'S OR TO ANY OTHER PERSON'S COMPUTER RELATED TO, OR RESULTING FROM, PARTICIPATING OR DOWNLOADING GAMES AND/OR MATERIALS CONTAINING VIRUSES OR OTHER MALICIOUS CODE IN CONNECTION WITH THE WEBSITE OR SERVICE.

    OUR MAXIMUM LIABILITY TO YOU UNDER ANY AND ALL CIRCUMSTANCES WILL BE EQUAL TO THE PURCHASE PRICE THAT YOU HAVE PAID FOR ANY GAMES, MEMBERSHIPS, OTHER SERVICES, GOODS OR INFORMATION AVAILABLE FROM GAMEFIESTATM AT THE WEBSITE. NOTWITHSTANDING THE FOREGOING, WE AND/OR OUR AFFILIATED PARTIES SHALL NOT BE LIABLE TO YOU FOR ANY SERVICES, GOODS OR INFORMATION AVAILABLE FROM THIRD PARTIES, EVEN IF OBTAINED AT OR THROUGH THE WEBSITE, SERVICE OR A GAME.

  16. Miscellaneous. You are solely responsible for providing all personal computer and communications equipment necessary to gain access to the Website and Service, and to use the Games downloaded or accessed herein.

    This Agreement shall be treated as though it were executed and performed in New York, New York and shall be governed by and construed in accordance with the laws of the State of New York (without regard to its conflict of law principles).

    Should a dispute arise concerning the terms and conditions of this Agreement, or the breach of same by any party hereto, the parties agree to submit their dispute for resolution by arbitration before the American Arbitration Association in New York City, in accordance with the current Commercial Arbitration rules of the American Arbitration Association then in effect. Any award rendered shall be final and conclusive to the parties and a judgment thereon may be entered in any court of competent jurisdiction.

    Should any part of this Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect.

    To the extent that anything in or associated with the Website, Service and/or a Game is in conflict or inconsistent with this Agreement, this Agreement shall take precedence. Our failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision.

    GameFiestaTM does not guarantee continuous, uninterrupted or secure access to the Website, Service and/or a Game, and operation of the Website, Service and/or a Game may be interfered with by numerous factors outside of GameFiestaTM's control.

    This Agreement sets forth the entire understanding and agreement between you and GameFiestaTM with respect to the subject matter hereof.

    This Agreement sets forth the entire understanding and agreement between you and GameFiestaTM with respect to the subject matter hereof.

    Our Contact Information:

    GameFiesta
    654 Malenfant Blvd
    Dieppe, NB
    E1A 5V8, Canada
    1-888-910-0800

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