POWDER Terms and Conditions
Welcome to POWDER!
These terms and conditions (“Terms”) govern your (the “User”, “you”, or “your”) access to and use of Unique Entertainment Expérience SAS d/b/a POWDER (“POWDER”, "we," "us," "our") mobile phone application available for iOS (the “App”) and our online platform (collectively, the “Platforms”). If you have any questions, concerns, or comments on these Terms, you can contact us at: email@example.com
By accessing, viewing, and/or using the Platforms, you indicate that you have read, understand, agree to, and intend to be legally bound by these Terms.
POWDER may change these Terms from time to time. Please review these Terms periodically. Your continued access to, viewing, and use of the Platforms, and/or our Services means you accept any and all updates, changes, and modifications.
By accessing and viewing the Platforms, you represent that you are 13 years of age or older, and that you are of legal age to form a binding contract. If you are not of legal age to form a binding contract, you represent and warrant that you have received your parent’s and/or legal guardian’s permission to view, access, and use the Content and App, and that your parent and/or legal guardian agrees to these Terms on your behalf.
If you (1) don’t agree to these Terms, (2) are under 13 years of age, and/or (3) don’t have your parent’s and/or guardian’s permission where required, you are not granted permission to access, view, or use the Content or App and must exit immediately.
A. What We Do.
POWDER is video gaming fan site that allows Users to capture their video game play and share your gaming experiences with other users on our Platforms. Our Platforms, our Services, and your creation and use of the Game Content are only for your personal and non-commercial use and enjoyment.
We currently offer access to our Platforms and our services listed below (“Our Services”) for free!
B. Signing Up.
In order to access our Platforms and Services, you must sign up for an account (“Account”).
The Platforms will prompt you to provide various information to create your Account, including (1) a username, (2) a password, (3) your email address, (4) your phone number (for our App), and (5) various other related information.
Once you create your Account, you must accept any other permissions (such as access to your microphone for voice-over editing) prompted through the Platforms. After accepting these permissions, you will have immediate access to the Platforms’ technology and our Services.
You may also add a profile picture and/or a short personal biography to your account, at your option. You are not required to add these. If you do, you agree that your username, bio, and profile picture comply with this Agreement and our Community Guidelines. We may take down (and/or request that you change) your username, bio, and profile picture if we determine in our sole discretion that either violates these Terms and/or the Community Guidelines.
C. How to Create Your Game Content.
POWDER allows you to capture video clips and still images of your game play as you play various online, PC and console video games (the “Game Content”). Our technology allows you to import your Game Content from Xbox, PlayStation, Nintendo Switch, your mobile phone’s camera roll, PC, and Dropbox. The Game Content that you capture and import can be downloaded and saved to your computer and/or mobile phone (if you have installed, and registered on, the App). We provide various sets of instructions and import guidelines to help export your Game Content to our Platforms for editing, saving, and sharing.
You may store your Game Content on your “Camera Roll” on your mobile phone, or to your hard drive on your computer. You may save and keep your Game Content for as long as you want (even if you do not edit and/or share it).
D. Editing Your Game Content.
Once you capture your Game Content, you may then edit your Game Content in a variety of ways through our Platforms. Specifically, you may currently do the following:
1) Add various musical songs and soundtracks to your Game Content (“Soundtracks”), which are provided through various third party suppliers.
2) Add and arrange various emotes, emojis, stickers, and graphics provided on the Platforms to your Game Content.
3) Add various text overlay(s) to your Game Content.
4) Use various filters, visual effects, and shading to change and enhance the overall appearance of your Game Content.
5) Cut, splice, zoom in on, trim, combine, create montages from, and arrange the Video Content into new arrangements.
6) Add various sound effects and sound loops to your Game Content (“Sound Effects”). We currently provide you access to Sound Effects through various third party suppliers.
7) Add voice recordings over the Game Content once you capture the Game Content (but not in real time currently**).
When editing your Game Content, you agree to comply with the terms, conditions, and licensing agreements of each of any third party video game providers prior to posting your edited Game Content.
We may add to, change, modify, and/or remove various editing features at any time in our discretion.
E. Sharing Your Game Content.
Once you are happy with your Game Content edits, you may share your final Game Content both (1) on our Platforms, and/or (2) on your social media accounts (specifically, Instagram, Snapchat, YouTube, Discord, and TikTok) (“Social Media Accounts”). You may add captions to your Game Content on our Platforms as well your social Media Accounts.
Your Game Content will remain on our Platforms until you delete it, at your option.
You agree that you are solely responsible for complying with the terms and conditions and privacy policies governing each of your Social Media Accounts. You further agree that your Game Content, your Game Content captions, and comments will not violate any community guidelines related to your Social Media Accounts. We cannot monitor or control, and will not be liable for monitoring or controlling, your Game Content once it is posted to any of your Social Media Accounts.
F. Interacting With Other Users.
Once you publicly post your Game Content on our Platforms, all other Users may view, like, and/or comment on your Game Content. You may also comment on other Users’ Game Content as well. You agree that any of your comments on any other User’s Game Content will comply with our Community Guidelines at all times. We may remove and take down any of your comments that do not comply with these Terms and/or our Community Guidelines in our sole discretion.
We currently do not allow turning off commenting on our Platforms. We may add this feature in the future and will notify Users if we add this feature. However, you may disable commenting on your Social Media Account(s) where those social media platforms allow.
You may also subscribe to and/or unsubscribe from various other users’ profiles.
LICENSE TO THE PLATFORMS AND GAME CONTENT
The Platforms and the Game Content are for video game fans. Our Services and the Platforms are intended only for fan purposes, and not any commercial purpose(s) of any kind.
By viewing and/or accessing the Content and the Platforms, POWDER grants you a limited license only to (1) create and share your Game Content with other Users who are registered on our Platforms, (2) access, view, share, comment on, download, save, and screenshot other User’s Content through the Platforms (and your Social Media Account(s) for personal, non-commercial uses (the “License”). You may only use the Platforms for these fan, non-commercial purposes. We currently do not allow advertisements and/or sponsorships of any kind on the Platforms. We do not allow Content that is of a commercial or advertising nature. You may not use other Users’ Content for commercial purposes without their prior written consent and/or the consent of any third party that may own (or has Intellectual Property Rights in your Game Content).
You agree not to use any other User’s Game Content for any public and/or commercial reason other than as stated in these Terms.
NO FEES OR COSTS
Our Platforms and our Services are currently provided for free! This means that POWDER does not charge you any fees or costs of any kind to access, view, or use the Game Content and/or the Platforms.
However, we may at any time change this policy in our sole discretion (such as providing our Platforms and Services for a subscription fee). In the event that we charge any fees for access to and use of the Platforms, we will post an advance notification to the Platforms prior to charging you.
If you would like to delete your account, you must email us at: firstname.lastname@example.org. You may request that we delete your account at any time. We will directly delete your account as soon as possible, but in any case within fifteen (15) calendar days from your request. You will not be charged any fees for this process. Remember, you may delete your Game Content at any time, even before requesting that we delete your account.
A. Content Ownership.
POWDER does not own your Game Content or the Intellectual Property Rights to your Game Content.
Between You and POWDER, you own the Intellectual Property Rights in and to your own Game Content. However, you recognize that many video game providers will own your Game Content under their respective terms and conditions. “Intellectual Property Rights” means all trademarks, trade dress rights, copyrights, rights of publicity, design patents, and patents. You agree that it is your sole responsibility to read and comply with any third party video game provider’s terms and conditions related to your use of our Platforms and Services.
You represent and warrant that: (a) you either own all rights to your Game Content that you create, share, or post (or otherwise have the permission and license to share and post the Game Content on the Platforms or Social Media Accounts as a fan), (b) your Game Content does not infringe or violate any other person’s privacy or publicity rights, (c) your Game Content does not infringe or violate any other person’s Intellectual Property Rights, and (d) your creation, sharing, or posting of your Game Content doesn’t breach any contractual obligation that you have (including to any video game provider).
Other than as described above, you agree to not copy, distribute, display, sublicense, sell, rent, translate, publish, broadcast, transmit, perform, upload, modify, alter, edit, create derivative works from, and/or exploit other Users’ Content and/or any part of the Platforms (no matter the medium, anywhere in the world, for any reason – including for any commercial purpose).
B. License to Use Your Content.
By creating, sharing, and posting your Game Content through the Platforms, you grant us a non-exclusive, worldwide, fully paid and royalty-free, license to copy, publicly display, and distribute your Game Content in any media formats through any media channel(s) owned by us, including the Platforms. **
We may, from time to time, request use of your Game Content to advertise and promote POWDER, the Platforms, and our services and products. HOWEVER, WE WILL NOTIFY YOU FIRST TO AGREE TO SPECIFIC TERMS RELATED TO THIS. WE WILL NOT USE YOUR GAME CONTENT FOR ANY ADVERTISING PURPOSE WITHOUT YOUR PRIOR WRITTEN CONSENT.
C. Removal of Content
We encourage you to create and share as much Game Content as you want. However, we reserve the right to remove any Content at any time in our sole discretion for violation of these Terms or our Community Guidelines that we maintain. You may flag Content that you genuinely believe doesn’t meet our guidelines or is offensive for review by flagging it through our flagging system on the Platforms. We will review any flagging of any Content as soon as we can, but no later than within a fifteen (15) day period after being flagged. You may review our current Community Guidelines here[a] along with more details on flagging inappropriate Content.
D. Content Disclaimers.
You recognize and agree that any Game Content posted on the Platforms:
(1) Is made publicly available to anyone who is registered on our Platforms;
(2) Does not necessarily reflect POWDER’s opinions or beliefs;
(3) Is only intended for fans of videos games to enjoy and appreciate each others’ Game Content for entertainment and educational value;
(4) May not be suitable and/or enjoyable for you, or any specific audience; and/or
(5) May include opinions, humor, images, material, themes, and/or language that offend you.
If you violate this section or otherwise infringe on any other third party’s Intellectual Property Rights, we may, in our sole discretion, terminate or suspend your access to the Content and the Platforms.
E. Copyright Claims / DMCA.
If you believe in good faith that any of User’s Content infringes on and/or violates your copyrights to any materials, music, audio recordings, visual content, pictures, and/or videos (each, a “Claim”) please notify us by either (1) using our flagging feature in the Platforms, or (2) emailing us at email@example.com We take Claims seriously and will use commercially reasonable efforts to resolve such Claims. We will respond to all Claims, and may, in some cases, temporarily or permanently remove disputed or infringing material, and/or disable links to the infringing material until such Claims are resolved. We follow the Digital Millennium Copyright Act policies, which you can read more about here. You recognize and agree that we may not resolve all Claims and that you may, in certain cases, have to resolve such Claims on your own, independently of POWDER.
F. Including Other People’s Image or Likeness.
You agree to not use any other person’s image, picture, likeness, face, and/or voice on the Platforms without their prior written permission (including in your own Game Content). You agree that you are solely responsible for any liability for use of any third person’s image, picture, likeness, face, and/or voice without their prior written permission. You explicitly agree to hold POWDER harmless and not liable for any such unauthorized uses of any third person’s image, picture, likeness, face, and/or voice without their prior written permission.
G. Our Intellectual Property.
You agree that POWDER and its affiliates, partners, suppliers, parent company, and subsidiaries (“Suppliers”) own all right, title, and interest in and to all (1) the Platforms itself, (2) all of our own trademarks, logos, service marks, trade dress rights, or other source-identifying symbols or devices (whether registered or unregistered), such as the “POWDER” trademark; (3) our own copyrightable material (whether registered or registered) that makes up the Platforms (such as our proprietary software and coding); and (4) all design or utility patents in the Platforms (whether registered or registered) (collectively, “POWDER IP”).
You agree not to copy, use, distribute, reverse engineer, exploit, and/or infringe on the POWDER IP in any way.
A. User Restrictions.
When using and accessing the Platforms (or viewing, creating, and posting Content), you agree that you will not do any of the following:
(1) Restrict or inhibit any other User in any way from viewing, accessing, using and/or enjoying the Platforms, the Content, and/or our Services;
(2) Post or transmit any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities, investment schemes, or other unsolicited commercial communication, or engage in spamming or flooding through our App;
(3) Transmit any information, software, and/or material, which contains a virus, trojan horse, worm and/or other harmful component;
(4) Use or attempt to use any engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars or intelligent agents) to navigate, mine, scrape, and/or search the Platforms and/or the Content;
(5) Copy, distribute, display, sublicense, sell, rent, translate, publish, broadcast, transmit, perform, upload, modify, alter, edit, counterfeit, create derivative works from, and/or exploit the Content and/or POWDER IP;
(6) Attempt to decipher, decompile, disassemble, or reverse-engineer any of the software comprising or in any way making up the Platforms and/or the Services;
(7) Express or imply that any statements you make are endorsed by POWDER, without POWDER’ prior written consent;
(8) Impersonate any person or entity, whether actual or fictitious, including, but not limited to, any other User, or employee or representative of POWDER;
(9) Disparage, defame, and/or malign any other User and/or POWDER;
(10) Use the Content, our Services, and/or the Platforms to stalk, track, monitor, or harass any person for any reason; and/or
(11) Violate our Community Guidelines
B. Platform Monitoring.
You recognize and agree that POWDER has no obligation or duty to monitor the Platforms. However, you agree that POWDER and its Suppliers have the right to monitor the Platforms electronically, from time to time, and to disclose any information as necessary or appropriate to: (1) satisfy any law, regulation or other governmental request; (2) operate the Platforms and the Services properly; and/or (3) protect itself, its Suppliers and/or its Users.
USER REGISTRATION AND INFORMATION
A. Accurate Information.
To create and post your own Content, we will ask you to sign up and download the Platforms. To sign up, we may ask you to provide certain personal information, such as your name, a username, and various other information. You agree to: (1) provide true, accurate, current and complete information about yourself as prompted by any registration form(s), input page(s), and registration form(s) on the Platforms; and (2) to maintain and update all such information to keep it true, accurate, current, and complete.
If any information provided by you is untrue, inaccurate, not current, and/or incomplete, we have the right to prevent your access to the Platforms.
B. Microphone and Camera Access.
When you register on the Platforms to create and share your Game Content, we will ask you to grant POWDER access to your microphone(s) on your devices, such as your mobile phone. This is to allow you to record your voice over the Game Content only when you choose to do so, and we do not use this permission for any other reason or at any other time.
You may decline to give us access to your microphone; however, you will not be able to create voice-overs on your Game Video Content on the Platforms.
We currently do not ask for access to your camera(s) on your device(s), but may do so in the future for new and additional features. If we add this feature and ask for this permission, we will notify all users on the platform and ask for camera permissions at that time.
You agree we may verify your identity at any time during or after your use of the Platforms. You hereby authorize us to make any inquiries we consider necessary to validate your identity. This may include asking you for further information, and/or requiring you to take steps to confirm ownership of your email address, social media accounts, telephone number, and/or verifying information you provide against third party databases or through other sources.
If: (1) you do not provide any required information to login, as prompted, and/or (2) POWDER can’t verify your identity for login purposes, then you agree that POWDER may refuse to allow access to the Content and the Platforms.
C. Login and Password.
POWDER will require you to create a login and password to sign up to our Platforms and create and share Game Content. You agree that you are solely responsible for maintaining the confidentiality of your personal login and access information.
D. Use with Your Mobile Device.
Access to and use of our Services and the Platforms may be available through a compatible mobile device, Internet, and/or network access, and may require software and/or other equipment. You agree that you are solely responsible for these requirements, including any applicable changes, updates and fees as well as the terms of your agreement with your mobile device and telecommunications provider.
POWDER MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED AS TO: (1) THE AVAILABILITY OF TELECOMMUNICATION SERVICES FROM YOUR PROVIDER AND ACCESS TO THE PLATFORMS AND/OR OUR SERVICES AT ANY TIME, OR FROM ANY LOCATION; (2) ANY LOSS, DAMAGE, OR OTHER SECURITY INTRUSION OF TELECOMMUNICATION SERVICES; (3) ANY DISCLOSURE OF INFORMATION TO THIRD PARTIES OR FAILURE TO TRANSMIT ANY DATA, COMMUNICATIONS OR SETTINGS CONNECTED WITH THE PLATFORMS AND/OR OUR SERVICES. POWDER WILL NOT BE LIABLE TO YOU IN ANY WAY FOR ANY SUCH DELAYS, INTERRUPTIONS, AND/OR INNACCURACIES.
We may (1) provide you with a way to contact us through the Platforms, and/or (2) request that you give us your email address before, during, or after any registration process, so that we may communicate electronically.
You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on the Platforms. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communication be in writing.
All electronic communications will be received or otherwise recorded by POWDER, and are subject to archival, monitoring or review by and/or disclosure to, someone other than the recipient. All such electronic communications may involve the electronic transmission you provided to us of information that you may consider to be personal information. You agree and consent to such transmission of such information. You agree not to use e-mail to transmit any confidential personal information other than as requested by POWDER and its Suppliers.
In connection with your use of the Platforms and Services accessible through the Platforms, you acknowledge and consent to the taping or any form of recording of any communication (electronic or otherwise) between you and POWDER, its Suppliers, and/or their representatives or agents. You acknowledge and consent to the recording, retention and use by POWDER and its Suppliers of any and all information and data contained in (1) any communication with POWDER and its Suppliers, and (2) any information input posted on or through the Platforms and Services.
THIRD PARTY SERVICES
We may offer you other services, products, offers, and/or promotions provided through third parties, and not by POWDER (“Third Party Services”) from time to time. If you decide to use Third Party Services, you are responsible for reviewing and understanding the terms and conditions governing Third Party Services. You agree that the third party, and not POWDER or its Suppliers, is responsible for the performance of the Third Party Services. This may contain or reference links to third parties’ websites and platforms. Some of those links are provided as a convenience only. The inclusion of any link is not and does not necessarily imply an affiliation, sponsorship, endorsement, approval, investigation, verification, or monitoring by POWDER of any information contained in any third party’s website or platform. In no event will POWDER be responsible for the information contained in such third party website or platform or for your use of or inability to use such website or platform. Access to any other website or platform is at your own risk, and you should be aware that linked websites or platforms may contain terms and privacy policies that are different from those of POWDER. POWDER and its Suppliers are not responsible for such provisions and expressly disclaim any and all liability for the same.
You agree to defend, indemnify and hold POWDER and its Suppliers harmless from any and all claims, liabilities, costs and expenses (no matter how arising), including, but not limited to, reasonable attorneys' fees, arising in any way from (1) your use of the Platforms and our Services , (2) your experience on the Platforms and/or with our Services, whether by you or users of your account, and/or (3) any third party claims against you resulting from your use of any Content.
LIMITATION OF LIABILITY
THIS SECTION IS A LIMITATION OF OUR LIABILITY TO YOU. IT SPECIFICALLY LIMITS THE EXTENT TO WHAT WE MAY OWE YOU IN THE EVENT WE ARE LIABLE FOR ANY ACTION BY YOU AGAINST US. PLEASE READ THIS SECTION CAREFULLY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, POWDER AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR FOR DAMAGES RELATING TO TELECOMMUNICATION FAILURES, LOSS, CORRUPTION, SECURITY OR THEFT OF DATA, VIRUSES, SPYWARE, OR THE LIKE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF POWDER AND/OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN POWDER AND YOU. POWDER AND ITS SUPPLIERS WOULD NOT BE ABLE TO HAVE PROVIDED THE APP, THE CONTENT, AND/OR THE SERVICES WITHOUT SUCH LIMITATIONS. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, POWDER’S LIABILITY TO YOU FOR ANY CAUSE WHATEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF $250.00.
These Terms will be governed by the laws of the United States and the state of New York, without regard to its choice of law or conflicts of law principles that would require application of law of a different jurisdiction. Headings are included for convenience only.
IT IS IMPORTANT THAT YOU READ THIS ARBITRATION CLAUSE. IT PROVIDES THAT YOU MAY BE REQUIRED TO RESOLVE ANY CLAIM OR DISPUTE THROUGH ARBITRATION, EVEN IF YOU WOULD PREFER TO LITIGATE THE CLAIM IN COURT. YOU ARE GIVING UP THE RIGHTS YOU MIGHT HAVE TO LITIGATE SUCH CLAIMS BEFORE A JURY. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL THE DECISION, MAY NOT BE AVAILABLE IN ARBITRATION OR MAY BE MORE LIMITED. YOU SHOULD CONSULT LEGAL COUNSEL TO DETERMINE WHETHER THIS ARBITRATION CLAUSE IS APPROPRIATE FOR YOU.
Any dispute, controversy or claim arising out of, or relating to, in any way, these Terms and your access to and use of the Platforms and the Services, including without limitation any dispute concerning the construction, validity, interpretation, enforceability or breach of these Terms, shall be exclusively resolved by binding arbitration upon a party’s submission of the dispute to arbitration. The demand for arbitration shall be made within a reasonable time after the claim, dispute or other matter in question has arisen, and in no event shall it be made after two (2) years from when the aggrieved party knew or should have known of the controversy, claim, dispute or breach.
This agreement to arbitrate under this section shall be specifically enforceable. We may apply to any court with jurisdiction for interim or conservatory relief, including without limitation a proceeding to compel arbitration. The arbitration shall be conducted in accordance with the American Arbitration Association rules. The arbitrator shall have at least ten (10) years of experience in the field of online services and platforms and also shall have served as an arbitrator at least three (3) times prior to their service as an arbitrator in this arbitration. The arbitration shall be conducted in accordance with the then existing Commercial Rules of the American Arbitration Association
The arbitration shall be conducted in the state, county, and city of New York, USA. The laws of the state of New York shall be applied in any such arbitration proceedings, without regard to principles of conflict of laws.
All arbitration proceedings will be conducted in English.
Except as may be required by law, you nor your representatives may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of POWDER. The arbitrator shall not be entitled to issue injunctive or other equitable relief.
The cost of the arbitration proceeding and any proceeding in court to confirm or to vacate any arbitration award, as applicable (including, without limitation, reasonable attorneys’ fees and costs), shall be borne by the unsuccessful party, as determined by the arbitrators, and shall be awarded as part of the arbitrator’s award. It is specifically understood and agreed that any party may enforce any award rendered pursuant to the arbitration provisions of this section by bringing suit in any court of competent jurisdiction. The parties agree that the arbitrator shall have authority to grant injunctive or other forms of equitable relief to any party. This section shall survive the termination or cancellation of these Terms.
Each party to an arbitration proceeding shall pay its own proportionate share of arbitrator fees and expenses and the arbitration fees and expenses of the American Arbitration Association. The arbitrator shall be entitled to award the foregoing arbitration and administrative fees and expenses as damages in his or her sole discretion.
INTERPRETATION OF THESE TERMS
If any provision of the Terms is invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect.
[a]POWDER: Hyperlink to Code of Conduct (attached as a separate document.