LOTRO Daybreak TOS / EULA 2024 Analyzed
I like to copy EULAs and TOS and run them through ChatGPT for analysis. Here's the analysis related to LOTRO and the new owners of Daybreak Games. This is the third company that owns this product.
Analysis of EULA
Clause: Daybreak reserves the right to modify the EULA at any time without needing explicit consent from the user. The user is simply expected to check for updates periodically.
Issue: This places an undue burden on the user to stay informed about changes. It can result in significant modifications to the terms under which they initially agreed to use the service, potentially reducing their rights or imposing additional obligations.
License Termination:
Clause: Daybreak can terminate the user's license to use the game, including any purchased content, at any time, often without notice or refund.Issue: Users invest time and money into games, and Daybreak's ability to terminate access without refund is extremely consumer-unfriendly. It allows the company to revoke user access to content they have paid for without compensation.
No Warranty and Limitation of Liability:
Clause: The agreement disclaims all warranties and significantly limits Daybreak's liability, capping it at $100.Issue: This absolves Daybreak from responsibility for issues like game defects, server outages, or lost in-game purchases, placing all risk on the user despite the user paying for the service.
Consent to Monitoring:
Clause: Daybreak reserves the right to monitor your computer system or console for unauthorized third-party programs and to collect data if such programs are detected.Issue: This raises privacy concerns as users need more control over what is being monitored and how the data is used. The intrusive nature of this monitoring without clear limits can be seen as invasive and excessive.
Arbitration Clause and Class Action Waiver:
Clause: Disputes must be settled through binding arbitration, and users waive their right to participate in class action lawsuits.Issue: Arbitration often favors corporations and limits users' ability to seek collective redress. The class action waiver further weakens the user's ability to challenge unfair practices.
Non-Refundable Purchases:
Clause: All payments for in-game content are non-refundable, and Daybreak has broad discretion to change the cost or value of in-game items.Issue: This is problematic for consumers who may feel cheated if content is altered or devalued after purchase, especially since they cannot get a refund.
Ownership and Intellectual Property Rights:
Clause: Users have no ownership rights over the digital content they purchase or create in the game, and Daybreak retains the right to use, modify, or remove user-generated content without compensation.Issue: This can be seen as unfair since users invest time and creativity in generating content that Daybreak can exploit commercially without compensating the user.
Jurisdiction and Governing Law:
Clause: The agreement is governed by the laws of Delaware and California, which may not be favorable to the consumer, depending on their location.Issue: This can disadvantage users who live in jurisdictions with more consumer-friendly laws, forcing them into potentially less favorable legal environments.
These clauses collectively reflect a significant power imbalance between Daybreak and the consumer, where the company holds most of the rights and imposes most of the risks on the user.
Analysis of TOS
1. Unilateral Modification of Terms:
Issue: This allows Daybreak to unilaterally alter the contract, potentially imposing more restrictive or unfavorable terms on users without their explicit consent. Users need to be made aware of these changes, which could negatively impact their rights and obligations.
2. Non-Refundable Purchases and Limited Liability:
Issue: This is particularly consumer-unfriendly because users cannot get refunds for digital goods, even if they are dissatisfied or if Daybreak changes or discontinues the service. The limited liability for any "loss" of virtual goods leaves users with no recourse.
3. Termination of Accounts:
Issue: This clause gives Daybreak sweeping power to cut off user access without providing a reason or notice, which can result in users losing access to their purchased content without recourse or compensation. This is particularly harsh, given the non-refundable nature of virtual items and currency.
4. Monitoring and Privacy Concerns:
Issue: The extent of monitoring allowed by Daybreak can be seen as invasive, mainly since it includes monitoring your computer’s processes. The lack of privacy in communications and broad monitoring rights could concern users who value their privacy.
5. Broad License to User-Generated Content (UGC):
Issue: This clause allows Daybreak to profit from user-generated content without compensating the creator. Users effectively lose control over their content once it’s submitted. Daybreak can be used for any purpose, including commercial ones, without providing recognition or payment to the original creator.
6. Arbitration Clause and Class Action Waiver:
Issue: Arbitration clauses typically favor the company, as they limit the user's ability to pursue claims through the court system and restrict collective action (such as class-action lawsuits), which can be a powerful tool for consumers to challenge unfair practices. The class action waiver further limits users' legal options.
7. Limitation of Liability:
Issue: This severely limits the compensation users claim in issues like data breaches, unauthorized account access, or significant service disruptions. The liability cap of $100 is particularly consumer-unfriendly, considering that many users may have invested significantly more in virtual goods and services.
8. Non-Ownership of Virtual Goods:
Issue: This reinforces that users have no real ownership over the digital items they purchase, which can be revoked or altered at Daybreak's discretion. This can be particularly unfair if a user has spent significant money on virtual goods only to lose access due to account termination or changes in the game.
9. Inadequate Customer Service and Support:
Clause: Daybreak provides customer support mainly through an online self-help knowledge base, with live backing available only for billing issues and subscription-based customers.Issue: Limited customer support options can be frustrating for users, especially when they encounter problems that aren’t directly related to billing. The lack of accessible, comprehensive customer service is a poor practice that does not prioritize the user's experience or concerns.
These provisions collectively create a scenario where Daybreak retains significant control over the user experience while providing minimal recourse for users in the event of dissatisfaction, disputes, or service changes.
Full Daybreak End User License Agreement.
Last Updated on December 12, 2016
Thank you for choosing to play a game offered by Daybreak Game Company LLC (“Daybreak,” “we,” and “us,”). Each of our games is offered pursuant to this Daybreak End User License Agreement (“Agreement”). Along with our Terms of Service and Privacy Policy located on our family of websites including, without limitation, www.daybreakgames.com (“Sites,” each a “Site”), this Agreement describes the terms and conditions by which Daybreak offers you: (i) the right to download, install and/or use the game software client and related documentation, game content and mobile applications offered by Daybreak (collectively, the “Software”); (ii) the right to use the Software in conjunction with your registered account on your chosen platform (“Account”) (e.g. Daybreak Account, Sony Entertainment Network account, etc.) to access and play an online interactive entertainment game, including, without limitation, any and all Daybreak Game Assets (as defined in the Terms of Service), features, assets, or services associated therewith (collectively, the “Game”); and (iii) the right to make purchases in connection with any Game(s) using your Account.
Agreement Acceptance: Please carefully read this Agreement before accessing, downloading, and/or using the Software and/or any Game(s). By accessing, downloading and/or using the Software and/or any Game(s), you accept and agree to be legally bound by all of the terms and conditions of this Agreement, you represent that you are at least 18 years of age or have reached the legal age of majority in your jurisdiction, and you are accepting this Agreement on behalf of yourself or your minor child. If you do not accept and agree to be legally bound by all of the terms and conditions of this Agreement, click the “I Decline” button or do not access, download and/or use the Software and/or Game.
If you have any questions regarding this Agreement, please contact Daybreak customer service at accounts@daybreakgames.com.
SEIZURE WARNING: READ BEFORE PLAYING
Some individuals may have seizures triggered by certain light patterns or flashing lights like those on a screen or while playing video games. Seizures may occur even in persons who have no history of seizures or epilepsy.
Stop playing the Game immediately and consult your doctor if you experience any of the following symptoms during gameplay – dizziness, altered vision, eye or muscle twitches, loss of awareness, disorientation, any involuntary movement, or convulsions.
If you or anyone in your family has an epileptic condition, consult your doctor prior to playing.
Agreement Modification: Daybreak reserves the right to modify this Agreement in whole or in part, from time to time at its sole and absolute discretion. Daybreak may provide you with notice of such modifications by any reasonable means, including, without limitation, by making available the revised version available to you at the time you attempt to log in to any Game(s) on your Account and/or play the Game; however, you agree you will periodically check the Sites for updates. You can determine when the Agreement was last revised by referring to the “Last Updated” legend at the top of the Agreement. Your continued use of any Game(s) following our making available any revised version of the Agreement will mean that you accept the revised version. If you do not agree to any changes made to the Agreement, you may not access or use the Software, and you may not play the Game.
SERVICES AND CONTENT OF THE GAME
Agreements and Policies. Your use of any Game(s), the Software, and any Site(s) is subject at all times to the terms and conditions of this Agreement and the Terms of Service, and Privacy Policy, as well as any other applicable policies, terms and conditions set forth in-Game or on our Sites (“Rules”), and any third party platform (“Platform”) (e.g. consoles, digital distributors, etc.) terms and conditions. In the event of a conflict between the terms and conditions of this Agreement and any of the other foregoing terms and conditions, the terms and conditions of this Agreement shall control with regard to your access, download and use of the Software and any Game(s). Your use of the Software and any Game(s) on any Platform also is subject to the Platform’s terms and conditions.
For your use of the Software and any Game(s) on the “PlayStation Network” Platform in the Sony Computer Entertainment America region: Purchase and use of items are subject to the Network Terms of Service and User Agreement. This online service has been sublicensed to you by Sony Computer Entertainment America.
For your use of the Software and any Game(s) on the “PlayStation Network” Platform in the Sony Network Entertainment Europe Limited region: Any content purchased in an in-game store will be purchased from Sony Network Entertainment Europe Limited (“SNEE”) and be subject to Sony Entertainment Network Terms of Service and User Agreement which is available on the “PlayStation Store”. Please check usage rights for each purchase as these may differ from item to item. Unless otherwise shown, content available in any in-game store has the same age rating as the game.
Eligibility. You must have an Account with Daybreak or the applicable Platform in order to play any Game(s) or purchase items in the marketplace using virtual currency. The Daybreak Account registration procedure is fully described in the Terms of Service. Each Platform’s account registration procedure may vary; please see the applicable Platform’s documentation or website for instructions.
Software and Gameplay.
You must have, and where applicable pay for, the following to play any Game(s): (a) an Account in good standing; (b) a downloaded copy of or access to any Game(s) from a Site, or third party Platform; (c) required Platform hardware or minimum computer system requirements; and (d) an internet connection. Daybreak may, at any time and in its sole discretion, discontinue your access to any Game(s) through your Account and require you to create an account with a partner game site (e.g., territory-specific game site) in order to play the Game.
Online games evolve and change over time and you may need to update your system to play the Game. Daybreak has the unfettered right to make changes to its Games and Daybreak Game Assets. Daybreak may add, modify, remove, replace, eliminate and reintroduce any Game(s), and/or any of its features, at any time in its sole discretion.
With respect to each Game, this Agreement applies to updates, upgrades, patches, revisions, new versions, supplements, add-on components, and Internet-based services components thereof that Daybreak may provide or make available to you after the date you obtain your initial copy of such Game, unless Daybreak provides other terms and conditions along therewith. This Agreement does not grant you any rights to use any third party products or services.
Third Party Conduct. As a service provider, Daybreak cannot control the content and topics you may be exposed to while interacting with other users online. Daybreak does not control Communications (as defined in the Terms of Service) and will not be liable for Communications, as further discussed in the Terms of Service.
Scheduled and Unscheduled Service Interruptions. Unless otherwise stated, the Games are “online” games that must be played over the Internet. Daybreak reserves the right to interrupt, modify (including, without limitation, adding or removing servers), suspend, cancel or terminate the Software or any Game(s) with or without prior notice for any reason or no reason. You agree that neither Daybreak (nor its licensors, licensees and/or service providers, if applicable) will be liable for any interruption, delay and/or failure of the Software and/or any Game(s) to perform, and you understand that you shall not be entitled to any refund of fees for Paid Content (defined in Section 3 below) or other compensation for interruption to your use of the Software and/or any Game(s) or any failure of the Software and/or any Game(s) to perform.
LICENSE
The Software and Games are not sold to you, but licensed according to the terms and conditions of this Agreement. Subject to the terms and conditions of this Agreement and conditioned on your continued compliance with the Terms of Service, we hereby grant to you a non-exclusive, non-transferable, non-sublicenseable, revocable, limited right and license to: (a) install the Software solely for your personal, non-commercial use; (b) use the Software solely in connection with playing Games via an authorized Account; (c) use and display the Software (including, without limitation, source and object code) solely in connection with playing Games for your personal non-commercial use by any machine(s) of which you are the primary user and for which you have the right to use, and (d) access and utilize the Game's library of digital objects (e.g., Daybreak Game Assets, such as, weapons, ammunition, and other digital downloads) in order to play the Game. You will obtain a limited license for the right to use the Daybreak Game Assets, and you will not acquire any ownership interest in the Daybreak Game Assets.
OWNERSHIP
Daybreak Property. Daybreak and/or its licensors own and retain all right, title and interest relating to or residing in the Software, Games and Daybreak Game Assets, all data in connection therewith, and all copies thereof, including without limitation, any titles, computer code, themes, objects, characters, names, stories, dialog, locations, concepts, artwork, landscape designs, animations, sounds, musical compositions and recordings, audio-visual effects, character likenesses, methods of operation, moral rights, and any related documentation and user manuals (collectively, the “Daybreak Property"). The Daybreak Property incorporates and is protected by various intellectual property rights, including, without limitation, copyrights, trademarks, patents, trade secrets, moral rights, database rights and other intellectual property and proprietary rights (collectively, “Intellectual Property Rights”). Except for the revocable, limited license expressly granted above, you acknowledge and agree that you have not and will not acquire or obtain any Intellectual Property Rights, including, without limitation, any right of exploitation, of any kind in or to the Daybreak Property, and/or any compilation or copyrightable arrangement thereof, and that the Daybreak Property is exclusively owned by Daybreak. Daybreak reserves all rights not expressly granted to you in this Agreement. PLEASE NOTE THAT UNAUTHORIZED USE OF THE DAYBREAK PROPERTY MAY SUBJECT YOU TO MONETARY DAMAGES AND OTHER CIVIL AND CRIMINAL PENALTIES, INCLUDING, WITHOUT LIMITATION, FOR COPYRIGHT INFRINGEMENT.
User Voxel Content. In certain Games, such as Landmark, Daybreak provides in-game tools that allow you to design, create, build, modify, and share in-game virtual objects with other players using “building blocks” called “Voxels” (“User Voxel Content”). You own the copyright in your User Voxel Content, but you hereby grant to Daybreak an unlimited, worldwide, non-exclusive, transferable, sublicenseable (through multiple tiers), royalty-free, fully-paid up, perpetual, irrevocable right and license to use, reproduce, distribute, display and perform (whether publicly or otherwise), adapt (including, without limitation, the rights to edit, modify, translate, and reformat), create derivative works of, transmit, make, have made, sell, offer to sell, import and otherwise use and exploit (and have others exercise such rights on behalf of Daybreak) any and all such User Voxel Content, in any form or manner of media whether presently known or hereafter devised, including, without limitation, in all existing and future Games and related marketing and promotional materials, and for any other purpose whatsoever, commercial or otherwise, without compensation or credit. Daybreak may assign or sublicense any of the foregoing rights to third parties in its sole discretion. All game users with whom you share such User Voxel Content shall have the same rights to use your User Voxel Content as they do other Daybreak Game Assets in any Game(s), subject to the terms and conditions set forth in this Agreement and in the Terms of Service .
Daybreak may allow you to submit your User Voxel Content to its Player Studio program, which provides users with the opportunity to have their virtual objects added to the in-game marketplace and share in the revenue generated by sales of such items. To submit your User Voxel Content for consideration, you must first read and agree to the Player Studio Item Submission Agreement Player Studio Item Submission Agreement. The terms of Player Studio Item Submission Agreement supplement the terms of this Agreement and are incorporated herein by reference.
You hereby agree that your User Voxel Content shall not: (a) infringe any intellectual property, proprietary, publicity/privacy and/or other rights of any third party(ies), (b) violate any law or regulation, (c) be defamatory, profane, obscene, pornographic or harmful to minors, or (d) violate the Terms of Service. Except with the express written consent of Daybreak, your User Voxel Content shall not: (i) be inappropriate for the style or genre of the environment (e.g., a science fiction item in a fantasy setting), or (ii) depict any image, mark or brand of a commercial nature. Unless prohibited by law, you waive all moral rights that you may have in the User Voxel Content. To the extent your moral rights cannot be waived, you irrevocably agree to never bring any claim or suit against Daybreak and/or its affiliates, and/or its and/or their licensors, licensees, officers, directors, employees, agents, representatives or customers related to any moral rights you may claim to have in such User Voxel Content.
Daybreak reserves the right in its sole and absolute discretion to block or remove any User Voxel Content from any Game(s), for any reason or for no reason.
LIMITATIONS ON LICENSE; RESPONSIBILITY OF END USER
The license granted to you in Section 2 is limited. Any use of the Software, any Game(s), or any portion thereof in violation of this Agreement is beyond the scope of the license granted to you and, therefore, infringes Daybreak’s copyrights and other Intellectual Property Rights in and to the Software and/or Game(s). You shall not, without express advance written permission from Daybreak:
copy (except to make one necessary back-up copy), distribute, sell, auction, rent, lease, timeshare, loan, modify or create derivative works, adapt, translate, perform, display, sublicense or transfer all or any portion of the Software or any Game(s) on or through any medium;
reverse engineer, disassemble, decompile or otherwise reduce the Software (or any portion thereof) or any Game(s) to a human-readable form or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Software (or any portion thereof) by any means whatsoever, except to the extent that this restriction is expressly prohibited by applicable law;
create, facilitate, host, link to or provide any other means through which any Game(s) may be played by others through interception, emulation or redirection of the communication protocols used by Daybreak, including without limitation, through protocol emulation, tunneling, data mining, packet sniffing, modifying or adding components to any Game(s), use of a utility program, or any other technique now known or hereafter developed, for any purpose including, but not limited to, unauthorized network play over the Internet, network play utilizing commercial or non-commercial gaming networks, or as part of content aggregation networks;
create, facilitate, or maintain any unauthorized connection to any Game(s);
mine, decrypt, or modify any data transmitted between any client and server of any Game(s);
use, post, host or distribute cheats, hacks, mods, macros, "bots" or other programs which would allow unattended game play or which otherwise impact game play (including, without limitation, any program which enables or facilitates mining, character kills, or level increases) in connection with any Game(s);
incorporate the Software and/or any Game(s) or any portion thereof, including, without limitation, any Daybreak Game Assets(s), into any product or service;
take any action which imposes an unreasonable or disproportionately large load on our infrastructure;
except in connection with an auction in-Game that is run by Daybreak, or in connection with a service that is run by Daybreak or authorized in writing by Daybreak (an "Authorized Exchange") and subject to all of the provisions of the applicable terms and conditions of the applicable service agreement for such Authorized Exchange, buy, sell or auction (or host or facilitate the ability to allow others to buy, sell or auction) any Game(s), an Account, any characters, Paid Content (as defined in Section 7 below), Daybreak Game Assets, copyrighted material or any Daybreak Property;
remove, alter or obscure any copyright, trademark, trade name or other proprietary notices, legends, symbols or labels that appear in the Software or any Game(s); or
otherwise exploit any Game(s) or the Software for any commercial purpose (including, without limitation, the provision of Paid Content at a cyber cafe, computer gaming center or any other location-based gaming site).
CONSENT TO MONITOR
When running any Game(s), we may monitor your computer system or console for unauthorized third party programs running concurrently with any Game(s) which, in Daybreak's sole determination: (a) enable or facilitate cheating of any type; (b) allow users to modify or hack any Game interface, environment, and/or experience in any way not expressly authorized by Daybreak; or (c) intercept, "mine" or otherwise collect information from or through any Game(s) (an "Unauthorized Third Party Program"). In the event that we detect an Unauthorized Third Party Program: (i) the Game(s) may communicate information back to Daybreak, including, without limitation, your Account username, details about the Unauthorized Third Party Program detected and the activities or functions performed thereby, and/or (ii) Daybreak may exercise any or all of its rights and remedies under this Agreement or the Terms of Service without prior notice to the user linked to such Unauthorized Third Party Program. You acknowledge that any and all character data and other data that is stored and is resident on our servers, and any and all communications that you make within any Game(s) (including, but not limited to, messages solely directed at another player or group of players) traverse through our servers, may or may not be monitored by us or our agents, and that you have no expectation of privacy in any such communications and you expressly consent to such monitoring of communications you send and receive.
USER SUBMISSIONS
In connection with the Games and its related services, you may be able to upload or transmit Submissions (as defined and described in the Terms of Service) to our servers in various forms. In such a case, the Submissions will at all times comply with the Game's forum rules and the Rules of Conduct set out in the Terms of Service.
FEES AND BILLING PROCEDURES
While you may register for and you may, in some cases, be able to use some features of the Game(s) free of charge, certain aspects of the Game(s), including, but not limited to, membership levels, virtual currency and other Daybreak Game Assets are provided for a fee or other charge ("Paid Content"). We describe our fees, sales policies and billing procedures in the Terms of Service. In the event you elect to use such Paid Content, you agree to abide by the pricing, payment and billing policies applicable to such fees and charges contained in the Terms of Service, available at the point of purchase or otherwise posted on the Sites, Platform, including, without limitation, any applicable sub-site thereto. Daybreak may add new Paid Content, products and/or services for additional fees and charges, or amend fees and charges for existing products, services and/or Paid Content, at any time and in its sole discretion. All fees are stated in U.S. Dollars unless otherwise specified. All fees are prepaid and, unless otherwise expressly stated, nonrefundable in whole or in part. You are fully liable for all charges incurred in connection with your Account, including, without limitation, any unauthorized charges. In addition to any fees described herein, you are responsible for paying all applicable taxes (including, without limitation, those that we are not required to collect) and for all hardware, software, service fees and other costs you incur to access your Account and to use the Game. All payments for Paid Content and Daybreak Game Assets are non-refundable. Paid Content and Daybreak Game Assets shall not be tradable or transferable unless otherwise allowed by Daybreak. Neither this Agreement nor your Account entitles you to any Paid Content, Daybreak Game Assets or similar ancillary products, without paying applicable charges.
If you choose to redeem a promotional code or virtual currency in exchange for Paid Content, you acknowledge and agree that the applicable promotional code and/or virtual currency, as applicable, will then be permanently consumed and the resulting Paid Content will continue to be subject to the agreement and policies applicable to the product resulting from such redemption or conversion.
TERMINATION
Termination by Daybreak. We may terminate this Agreement (including, without limitation, your licenses to Games and/or your access to your Game account) and/or suspend your access to any Game(s) immediately and without notice if:
you violate any provision of this Agreement or the Terms of Service;
you infringe any Intellectual Property Rights of any third party;
we are unable to verify or authenticate any information you provide to us;
upon game play, chat or any player activity (including, without limitation, activity on Game forum postings) whatsoever which we, in our sole discretion, determine is inappropriate and/or in violation of the spirit of the Game; and/or
upon any violation of any of the Rules.
If we terminate this Agreement or suspend your Game account under these circumstances, you will lose access to your Game account for the duration of the suspension, or permanently in the event that your account is terminated, without any refund for any Paid Content that you may have purchased or otherwise redeemed. If your account is suspended or terminated for a violation of section 8.1.4 or for some other violation of the Rules not involving unlawful activity, Daybreak may in its sole discretion offer to reinstate your account with game access restricted to a limited rule-set server (e.g. Drunder in EverQuest II).
We may terminate this Agreement if and when we decide, in our sole discretion, to discontinue offering the Game. In such a case, all licenses set forth herein will immediately terminate without reimbursement or refund to you.
Termination by You. You may terminate this Agreement (including, without limitation, your licenses to any Game(s)) and/or your Account at any time in accordance with the termination section of the Terms of Service. We do not provide full or partial refunds for Paid Content that you have purchased.
Survival. Sections 3, 4, 6, 8.3, 9, 10, 11, 12 and 13 shall survive any termination of this Agreement. For the sake of clarity, Daybreak has the right to use your User Voxel Content pursuant to Section 3.2 even after this Agreement has been terminated.
INFORMATION PRIVACY AND COMMUNICATION
Our information collection and usage policies are fully described in our Privacy Policy. To the extent permitted by our Privacy Policy, you agree that we may communicate with you via telephone, e-mail, and any similar technology for any purpose relating to any Game(s), the Software and any services, products or software which may in the future be provided by us or on our behalf. We cannot ensure that your private communications and other personally identifiable information will not be disclosed to third parties. For example, we may be forced to disclose information to the government or third parties under certain circumstances, or third parties may unlawfully intercept or access transmissions or private communications. Since we do not control other web sites and/or privacy policies of third parties, different rules may apply to their use or disclosure of the personal information you disclose to others.
NO EXPRESS OR IMPLIED WARRANTIES; LIMITATION OF LIABILITY
TO THE EXTENT PERMITTED BY LAW, THE SOFTWARE AND GAMES ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. ACCESS TO AND USE OF THE DAYBREAK GAMES IS AT YOUR SOLE RISK. DAYBREAK DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE SOFTWARE AND GAMES, INCLUDING, WITHOUT LIMITATION, ALL STATUTORY AND IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. DAYBREAK MAKES NO WARRANTY WITH RESPECT TO THE QUALITY OR AVAILABILITY OF THE SOFTWARE AND GAMES, INCLUDING, WITHOUT LIMITATION, THAT ACCESS TO ANY OF THEM WILL BE UNINTERRUPTED, CONTINUOUS, FREE FROM CYBERATTACKS AND/OR HACKS AND/OR CRACKS,VIRUS-FREE, ERROR FREE, RELIABLE, SECURE AND/OR COMPATIBLE WITH ANY PARTICULAR HARDWARE AND/OR SOFTWARE OR THE CONTINUED OPERATION OR AVAILABILITY OF ANY GIVEN SERVER, FEATURE, SERVICE, CONTENT, OR GAME-PLAY. DAYBREAK MAY CHANGE, MODIFY, SUSPEND OR REMOVE ANY SUCH SERVER, FEATURE, SERVICE, CONTENT AND/OR GAME-PLAY IN ITS SOLE DISCRETION. DAYBREAK HEREBY DISCLAIMS ANY AND ALL OBLIGATIONS TO FURNISH ANY MAINTENANCE AND/OR SUPPORT SERVICES WITH RESPECT TO THE SOFTWARE AND GAMES.
IN NO EVENT WILL DAYBREAK AND ITS AFFILIATES, LICENSORS, LICENSEES, SUPPLIERS AND SERVICE PROVIDERS, AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “DAYBREAK ENTITIES”), BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE AND/OR GAMES. NONE OF THE DAYBREAK ENTITIES ARE RESPONSIBLE FOR ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF TRANSMISSIONS OR DATA OR FOR ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED. NONE OF THE DAYBREAK ENTITIES ARE RESPONSIBLE OR LIABLE FOR ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE OR ILLEGAL CONTENT OR CONDUCT OF ANY OTHER PARTY, OR ANY INFRINGEMENT BY A THIRD PARTY OF ANOTHER’S INTELLECTUAL PROPERTY, PRIVACY OR OTHER RIGHTS. IN ANY ACTION OR PROCEEDING AGAINST ANY DAYBREAK ENTITY(IES) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE USE OR INABILITY TO USE THE SOFTWARE AND GAMES, WHETHER IN CONTRACT, TORT, WARRANTY OR OTHERWISE, THE DAMAGES TO WHICH YOU MAY BE ENTITLED SHALL BE LIMITED TO $100.00. YOU HEREBY WAIVE YOUR RIGHT TO BRING ANY CAUSE OF ACTION YOU MAY HAVE AGAISNT ANY DAYBREAK ENTITY(IES) WITH RESPECT TO THE USE OF ANY SOFTWARE AND/OR GAMES ONE YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES.
You assume the entire risk as to the results and performance of the Software and any Game(s) in connection with your hardware and software, and you assume the entire cost of all servicing, repair and/or correction of your hardware and software. Daybreak makes no promise that the Software and/or any Game(s) will work properly with any unlicensed peripheral device. Always look for the applicable official Platform logo when purchasing a peripheral device.
Some states or other jurisdictions do not allow limitations as to how long an implied warranty lasts and/or exclusions or limitations of consequential damages, so the above limitations and/or exclusions of liability may not apply to you. In such states or other jurisdictions, liability is limited to the lowest amount permitted by applicable law. You may also have other legal rights which vary depending on your place of residence.
GOVERNING LAW; JURISDICTION
The validity, construction, interpretation and legal effect of this Agreement shall be construed in accordance with and governed by the judicial decisions and internal laws of the State of Delaware and the United States of America, without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of Delaware and the United States of America. Subject to the below provisions of Section 12, (a) you and Daybreak agree that any controversy, claim or dispute arising out of or relating to this Agreement or any aspect of the relationship between you and Daybreak (each, a “Dispute”) asserted by you against Daybreak or by Daybreak against you shall be exclusively brought in a state or federal court in the District of Delaware or Southern District of California, and (b) you and Daybreak each submit and consent to the personal jurisdiction of, and venue in, the state and federal courts located in the District of Delaware or Southern District of California.
DISPUTE RESOLUTION; ARBITRATION; CLASS ACTION WAIVER
Introduction. Any Dispute, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, shall be settled through Negotiation (as defined below in Section 12.2) or Arbitration (as defined below in Section 12.3); provided, however, with respect to Excluded Disputes (as defined below in Section 12.3) that you and Daybreak are unable to settle through Negotiation, you or Daybreak may apply to the applicable court in the District of Delaware or Southern District of California to bring any such Excluded Disputes in lieu of Arbitration.
If a Dispute arises, you and Daybreak first shall attempt in good faith to resolve it promptly by Negotiation as set forth below in Section 12.2, and neither you nor Daybreak may commence Arbitration with respect to any Dispute unless you and Daybreak first have unsuccessfully pursued Negotiation as provided below in Section 12.2 (i.e., the parties are unable to resolve the Dispute in writing within the below thirty (30) day period or if either party refuses to comply with the provisions of any written Negotiation settlement). All communications, whether oral, written or electronic, in any Negotiation or Arbitration (including, without limitation, any written Negotiation settlement or Arbitration award) pursuant to this Section 12 shall be treated as confidential, except as may be necessary to prepare for or conduct the Arbitration hearing on the merits, or except as may be necessary in connection with a court application in accordance with the above provisions of Section 11, or except to the extent otherwise required by applicable law. Notwithstanding the above provisions set forth in Section 11, (i) the Federal Arbitration Act applies to and governs the enforceability of this Section 12, and (ii) all communications, whether oral, written or electronic, in Negotiations shall also be treated as compromise and settlement negotiations for purposes of the Federal Rules of Evidence.
Negotiation. At any time after a Dispute arises, either you or Daybreak may initiate negotiation by providing written notice (the “Dispute Notice”) to the other party as follows (“Negotiation”): (a) you shall email Dispute Notices to Daybreak to disputenotice@daybreakgames.com and (b) Daybreak shall email Dispute Notices to you to the email address that Daybreak has on file for you. The Dispute Notice shall describe the nature and basis of the Dispute and sets forth the relief sought. You and a Daybreak representative shall speak by phone and/or communicate via email at a mutually acceptable time and thereafter as often as reasonable necessary, to attempt to resolve the Dispute. No party shall be obligated to continue to participate in Negotiation if the parties have not resolved the Dispute in writing within thirty (30) days after the non-complaining party’s receipt of the Dispute Notice.
Arbitration. If you and Daybreak are unable to resolve any Dispute through Negotiation or if either you or Daybreak refuses to comply with the provisions of any written Negotiation settlement, then, except for any Excluded Disputes (as hereinafter defined), SUCH DISPUTES WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR (“Arbitration”) INSTEAD OF IN A COURT BY A JUDGE OR JURY AND YOU AND DAYBREAK AGREE THAT YOU AND DAYBREAK ARE WAIVING THE RIGHT TO TRIAL BY A JURY. As used in this Agreement, “Excluded Dispute” collectively means: (a) any Dispute relating to the infringement, misappropriation and/or other misuse of intellectual property rights other than patent rights (including, without limitation, claims seeking injunctive relief); (b) any Dispute relating to the violation, misappropriation and/or other misuse of confidential information (including, without limitation, claims seeking injunctive relief); (c) any Dispute relating to the enforcement of an Arbitration award; and/or (d) any Dispute that qualifies for small claims court.
An Arbitration is a proceeding before a neutral arbitrator, instead of before a judge or jury. Arbitration is less formal than a lawsuit in court, and provides more limited discovery. It follows different rules than court proceedings, and is subject to very limited review by courts. The arbitrator will issue a written decision and provide a statement of reasons if requested by either party.
The Arbitration will be administered by the American Arbitration Association under its Consumer Arbitration Rules, as amended by this Daybreak Terms of Service. The Consumer Arbitration Rules are available online at https://www.adr.org/aaa/faces/rules/searchrules/rulesdetail?_afrWindowId=pay9lxinm_1&_afrLoop=691540015434269&doc=ADRSTAGE2021424&_afrWindowMode=0&_adf.ctrl-state=hf27f5iaa_4#%40%3F_afrWindowId%3Dpay9lxinm_1%26_afrLoop%3D691540015434269%26doc%3DADRSTAGE2021424%26_afrWindowMode%3D0%26_adf.ctrl-state%3Dpay9lxinm_79 . Additionally, the arbitrator shall follow applicable state and federal law.
If you seek $10,000 or less in any Arbitration initiated by you, Daybreak agrees to reimburse your filing fee and your share of the arbitration costs, including your share of arbitrator compensation, at the conclusion of the proceeding, unless the arbitrator determines your claims are frivolous or costs are unreasonable as determined by the arbitrator. If you seek more than $10,000 in any Arbitration initiated by you, the Arbitration costs, including arbitrator compensation, will be split between you and Daybreak according to the AAA Commercial Arbitration Rules and the AAA’s Supplementary Procedures.
YOU AND DAYBREAK AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU AND DAYBREAK ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION.
The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or Daybreak that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination shall be made by the AAA or by the arbitrator. The arbitrator’s decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in this Agreement will preclude you or Daybreak from bringing issues to the attention of federal, state or local agencies and, if the law allows, they can seek relief against us for you or against you for us, as applicable.
GENERAL TERMS
Compliance with Applicable Laws. You shall comply with all applicable laws, rules and regulations regarding your use of the Software, your access to your Account and your access to and use of any Game(s). Without limiting the foregoing, you may not download, use or otherwise export or re-export the Software except in full compliance with all applicable laws, rules and regulations, including, without limitation, the laws of the United States and the jurisdiction in which you reside.
Assignment.You may not assign, delegate and/or transfer this Agreement and/or any of your rights or obligations hereunder this Agreement. Daybreak may assign, delegate and/or transfer this Agreement and/or any of its rights or obligations hereunder without restriction.
California Complaint Assistance.Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice. If you have a question or complaint regarding any Game(s), please feel free to contact us by phone at (858) 537-0898 or by writing to us at Daybreak Game Company LLC, Attention: Office of the General Counsel, 15051 Avenue of Science, San Diego, CA 92128. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Suite N-112, Sacramento, California 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
For U.S. Government End Users. The Software and its 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. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, or any succeeding or similar regulations, all U.S. Government end users acquire the software and documentation with only those rights set forth herein. Contractor/manufacturer is Daybreak Game Company LLC, 15051 Avenue of Science, San Diego, CA 92128, Attn: Accounts.
Severability. Each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of the Agreement is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.
Waiver. Any failure of Daybreak to enforce or exercise any right or power under the Agreement shall not be construed as a waiver of, or a bar to, the exercise of such right or power on any other occasion.
Export Controls.Daybreak operates from its offices in California and Texas, in the United States of America. While most of the Games may be accessed online, Daybreak makes no representation that they will be available or appropriate for use outside of the United States. Our software is subject to United States export controls. None of our software may be downloaded, accessed, or exported into (or to a national or resident of) Cuba, North Korea, Iran, Syria, Sudan, or any other country to which the U.S. has embargoed goods, or to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By accessing or using our Games and Software, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
Force Majeure. Daybreak shall not be deemed to be in breach of this Agreement, nor shall you hold Daybreak responsible for, any cessation, interruption or delay in the performance of Daybreak’s obligations hereunder due to causes beyond Daybreak’s reasonable control including, but not limited to: earthquake, flood, fire, storm or other natural disaster, epidemic, accident, explosion, casualty, act of God, lockout, strike, labor controversy or threat thereof, riot, rebellion, insurrection, civil disturbance or commotion, boycott, disruption of the public markets, war or armed conflict (whether or not officially declared), sabotage, act of a public enemy, terrorism, cyberattack, embargo, delay of a common carrier, the inability to obtain sufficient material, supplies, labor, transportation, power or other essential commodity or service required in the conduct of Daybreak’s business, or any change in or the adoption of any law, ordinance, rule, regulation, order, judgment or decree.
Provision of Service. Except as expressly set forth in this Agreement, Daybreak has no obligation to furnish any maintenance and/or support services with respect to the Software and/or any Game(s).
Third Party Code. The Software and/or certain of the Game(s) contain(s) the third-party technology and software code listed on the web page located at https://www.daybreakgames.com/legal#thirdparty. The applicable (a) intellectual property right notices and legends and (b) terms and conditions set forth on such web page apply to such third-party technology and software code.
Miscellaneous .If any provision of this Agreement is deemed to be unlawful, void or for any reason unenforceable, then that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provisions. This Agreement does not, and will not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and us. Any heading, caption or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof. This Agreement, together with all agreements and statements referred to herein and incorporated herein by reference, is the entire agreement between you and us relating to the subject matter hereof and, except as otherwise provided herein, supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and us relating to such subject matter. Notices to you may be made by posting a notice (or a link to a notice) through any Game(s), by email, or by regular mail, at our sole and absolute discretion. Without limitation, you agree that a printed version of this Agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Nothing in this Agreement, express or implied, is intended to or will confer on any person (other than the parties and their respective successors or permitted assigns) any rights, remedies, obligations or liabilities.
BY CLICKING ON THE “I AGREE” BUTTON BELOW, YOU ACKNOWLEDGE THAT (A) YOU HAVE CAREFULLY READ AND REVIEWED THE TERMS AND CONDITIONS OF THIS AGREEMENT IN ITS ENTIRETY, (B) YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, (C) THE INDIVIDUAL SO CLICKING HAS THE POWER, AUTHORITY AND LEGAL RIGHT TO ENTER INTO THIS AGREEMENT AND, AND (D) BY SO CLICKING, THIS AGREEMENT CONSTITUTES BINDING AND ENFORCEABLE OBLIGATIONS ON YOU.
[I AGREE: I ACCEPT THE TERMS OF THIS AGREEMENT]
[I DECLINE: I DO NOT ACCEPT THE TERMS OF THIS AGREEMENT]
Full DAYBREAK TERMS OF SERVICE
(Last Updated: June 22, 2015)
ACCEPTANCE
Daybreak Game Company LLC (“Daybreak,” “we,” “us,” and “our”) thanks you for your interest in accessing and using the Daybreak websites listed at www.daybreakgames.com/websites, including, without limitation, the forums, chat rooms, accounts, apps, APIs, materials, information and/or products and services available thereon (collectively, the “Daybreak Websites”), as well as the games, game launchers, and other game materials and services made available or offered through the Daybreak Websites (collectively, with the Daybreak Websites, the “Daybreak Games”).
Your use of any Daybreak Game(s) is governed by these Terms of Service (the “Daybreak Terms of Service”), the Daybreak Privacy Policy located at www.daybreakgames.com/privacy (the “Daybreak Privacy Policy”) and the Daybreak End User License Agreement for each Daybreak Game that you play (the “Daybreak End User License Agreement”). Please carefully read the Daybreak Terms of Service, Daybreak Privacy Policy and applicable Daybreak End User License Agreement(s). By accessing and/or using any Daybreak Game(s), you agree to be bound by all of the terms and conditions of the Daybreak Terms of Service, Daybreak Privacy Policy and applicable Daybreak End User License Agreement(s). If you do not agree to all of the terms and conditions of the Daybreak Terms of Service, Daybreak Privacy Policy and applicable Daybreak End User License Agreement(s), you may not access and/or use any of the Daybreak Games.
You must be at least 18 years of age or have reached the age of majority under the applicable laws of the place where you reside or, if you are not, you must obtain parental or guardian consent to access and/or use any of the Daybreak Games. By accessing and/or using any of the Daybreak Games, you affirm that you are at least 18 years of age or have reached the age of majority under the applicable laws of the place where you reside or, if you are not, that you have obtained parental or guardian consent to enter into the Daybreak Terms of Service, Daybreak Privacy Policy and Daybreak End User License Agreement. If you are not of legal age to enter into the Daybreak Terms of Service, Daybreak Privacy Policy and Daybreak End User License Agreement or have not obtained parental or guardian consent to enter into the Daybreak Terms of Service, Daybreak Privacy Policy and Daybreak End User License Agreement, then you may not access and/or use any of the Daybreak Games and/or any part thereof.
The Daybreak Terms of Service, Daybreak Privacy Policy and Daybreak End User License Agreement are applicable only to the Daybreak Games, and do not apply to any other websites or products, including, without limitation, any website or product of any parent or affiliate of Daybreak.
Daybreak reserves the right to modify the Daybreak Terms of Service, Daybreak Privacy Policy and/or Daybreak End User License Agreement in whole or in part, from time to time at its sole and absolute discretion, and to provide you with notice of such modifications by any reasonable means, including, without limitation, by making available the revised version thereof through any Daybreak Game(s). You can determine when the Daybreak Terms of Service, Daybreak Privacy Policy and/or Daybreak End User License Agreement was/were last revised by referring to the “Last Updated” legend at the top of the applicable agreement. Your continued use of any Daybreak Game(s) following our making available any revised version of the applicable agreement(s) will mean that you accept that/those revised version(s) thereof; however, any material change to these agreements will not apply retroactively to any claim or dispute between you and us in connection with such agreements that arose prior to the “Last Updated” date applicable to that version of such agreement(s) in which we included such material change. If you do not agree to any changes made to the Daybreak Terms of Service, Daybreak Privacy Policy and/or Daybreak End User License Agreement, you may not access or use any of the Daybreak Games. We may, at any time, modify, suspend and/or discontinue all or part of any Daybreak Game(s); charge, modify or waive fees required to use any Daybreak Game(s); or offer opportunities to some or all users of any Daybreak Game(s).
PRIVACY
Daybreak’s collection, use and disclosure of end user information are subject to the Daybreak Privacy Policy which explains, among other things, how Daybreak collects, uses and stores your personal information. Your submission of information through or in connection with any Daybreak Game(s) is governed by the Daybreak Privacy Policy. To the extent that you submit any personally identifiable information to any third party in connection with any Daybreak Game(s), please note that (a) such third party’s collection, use and disclosure of such information will be governed by its own privacy policy and not by the Daybreak Privacy Policy, and (b) we are not responsible for the information collection, usage and disclosure practices of such third party or any other third parties.
ACCOUNTS GENERALLY
Before you can access or play any of the Daybreak Games, you will be required to create an account. To create an account you must be at least 18 years old, or at least 13 years old and have your parent’s or legal guardian’s permission, (see Section 4 below concerning restricted accounts for children under 13 years old). When creating an account you will be required to, among other things, (a) select a username and password and (b) provide your email address, country of residence and date of birth. You may not use (and we may refuse to grant you) any username that (i) already is being used by another person, (ii) may be construed as impersonating another person, (iii) violates the intellectual property or other rights of any person, (iv) is offensive or (v) Daybreak rejects for any other reason its sole and absolute discretion. You are responsible for maintaining the confidentiality of your username and password and for all interactions with any Daybreak Game(s) that occur in connection with and/or through your account. You represent and warrant that any information you provide in connection with your access to and use of any Daybreak Game(s) is true, accurate and complete, and that you will maintain and update such information as needed, such that the information remains true, accurate and complete. IF YOU CHOOSE TO MAKE ANY OF YOUR PERSONALLY IDENTIFIABLE INFORMATION OR OTHER INFORMATION PUBLICLY AVAILABLE THROUGH OR IN CONNECTION WITH YOUR ACCESS TO AND/OR USE OF ANY Daybreak GAME(S), YOU DO SO AT YOUR OWN RISK. You may not sell, transfer, or allow others to access and/or use your account. Please notify us immediately if you are aware of any unauthorized access to and/or use of your account. It is important that you remember your username and password, and that you provide answers to security questions for your account. If you forget your username or password and have not provided us with any answers to security questions, you may not be able to access and use your account. For security reasons, please do not use your real name as your username, password, or forum handle. We reserve the right in our sole and absolute discretion to suspend and/or terminate your account and restrict your access to the Daybreak Games if you do not comply with the Daybreak Terms of Service, Daybreak Privacy Policy, Daybreak End User License Agreement and/or any other terms and conditions that may apply to your access to and/or use of any Daybreak Game(s). In the event that your account has been suspended, Daybreak may request that you provide further verification of your identity, for example, by responding to an email or a text message, before your account may be reactivated. Daybreak is not liable for any loss or damage arising from your failure to comply with any of the foregoing obligations. You can access, edit and update your account information anytime by clicking on the “Account Management” button at the top of the home page of the applicable Daybreak Website. You acknowledge and agree that you (and not we) are responsible for obtaining and maintaining all telecommunications, broadband, and computer hardware, equipment, and services needed to access and use any Daybreak Game(s), and for paying all charges related thereto.
CHILDREN UNDER THE AGE OF 13
The Daybreak Websites are general audience websites and are not directed to children under the age of 13. We do not knowingly collect via the Daybreak Games personally identifiable information from children under the age of 13.
FREE TO PLAY YOUR WAY®
Most of the Daybreak Games are “Free to Play Your Way” meaning that end users can access such Daybreak Games for free, with optional content and features available for purchase. For example, you have the option to purchase the following items.
Virtual Currency
Game Cards
Digital Downloads
Virtual Items
Memberships
5.1. Virtual Currency. Virtual Currency is an online redeemable point system that can be used to obtain certain products and services offered by Daybreak through the Daybreak Games. Virtual Currency (a) can be purchased online or in-game, (b) can be acquired by redeeming a Game Card, and (c) may be awarded to end users for free in connection with certain Daybreak promotional offerings. Virtual Currency is sold in bundles and the price may vary depending on the amount you purchase and the location from which you purchase it. We may limit the amount of Virtual Currency that you can purchase or redeem over any given period of time. The purchase or redemption of Virtual Currency may be subject to sales tax in the United Sates. The purchase or redemption of Virtual Currency may be subject to VAT or GST in countries outside the United States. Where applicable, Daybreak will collect the required sales tax, VAT, or GST, and will remit the required amounts to the applicable taxing authority. All sales and redemptions of Virtual Currency are final. Virtual Currency does not expire, however all Virtual Currency is forfeited if your account is terminated or suspended for any reason. We reserve the right to terminate your access to the Virtual Currency in your account if we determine, after investigation, that you have used the Virtual Currency in connection with any fraudulent or illegal activity. Virtual Currency is not legal tender and does not constitute a personal property right. Virtual Currency is nonrefundable, non-transferable, has no cash value, and may not be redeemed, sold, or otherwise transferred for any sum of money or monetary value at any time. Daybreak may offer more than one type of Virtual Currency, for example, Daybreak Cash for its PC games and Marketplace Cash for DC Universe Online on the PlayStation Network. Each type of Virtual Currency is separate and cannot be converted into another Virtual Currency or redeemed in a Daybreak game and/or on a platform that does not use that Virtual Currency.
5.2. Game Cards. Daybreak Game Cards may be purchased from various retailers (see www.daybreakgames.com/gamecards/retailers/ for more information). Game Cards can be redeemed for membership time and/or Virtual Currency as stated on the front of each card. The use of a Game Card is subject to these Daybreak Terms of Service and the terms and conditions printed on the card. While you own the physical Daybreak Game Cards that you purchase, Daybreak Game Cards do not store legal tender, are nonrefundable and non-transferable, have no cash value, and may not be redeemed, sold, or otherwise transferred for any sum of money or monetary value at any time.
5.3. Digital Downloads. For some Daybreak Games, Daybreak may sell licenses to digital downloads, such as expansion packs, that provide additional gameplay, content, functionality and/or features. Please note that some or all of the gameplay, content, functionality and features in a digital download may be made available at a reduced price, or for free, in a later release of such Daybreak Game. Digital downloads are nonrefundable.
5.4. Virtual Items. Daybreak sells a variety of virtual items (“Virtual Items”), which are digital objects such as armor, weapons, adornments, furniture, pets, mounts, potions, etc. that end users can acquire and use for entertainment purposes in the Daybreak Games. Please note that Virtual Items are not chattel and you do not acquire any ownership rights in the Virtual Items. When you purchase or otherwise acquire any Virtual Item in any Daybreak Game(s), Daybreak is providing you a limited license to use the Virtual Item in such Daybreak Game for personal, non-commercial purposes. Daybreak may sell Virtual Items through an in-game marketplace, a website, and/or a mobile app. Virtual Items may be sold for Virtual Currency or real world money, at Daybreak’s sole and absolute discretion. Please note that not all Virtual Items are available for purchase. Some Virtual Items can be acquired only through gameplay (e.g., by completing quests, killing non-player characters (NPCs), crafting, spending certain points or in-game currency, etc.), or through certain promotions we offer. Daybreak reserves the right to add, modify, remove, suspend and reintroduce Virtual Items in the Daybreak Games, in-game marketplaces, and promotional offers, and to change the prices and/or difficulty of obtaining Virtual Items, at any time in its sole and absolute discretion. Such changes may impact the effectiveness, functionality, and/or commonalty of the Virtual Items. As a result, the value and desirability of a Virtual Item may significantly increase or diminish over time. By purchasing a Virtual Item license you assume the risk of any such changes and agree never to assert any claim against Daybreak based on the actual or perceived value, or change in value, of a Virtual Item. Some Virtual Items may be tradable to other end users as part of the Daybreak Game. However, except as may be expressly permitted by Daybreak in its sole and absolute discretion, selling or otherwise transferring Virtual Items in exchange for real world money or monetary value is not allowed. Virtual Items acquired through the in-game marketplace are nonrefundable, have no cash value and are not redeemable and/or refundable for any sum of money or monetary value from us.
5.5. Memberships. Some Daybreak Games offer membership levels for purchase that provide access to additional content, functionality and features. Some membership levels may require the purchase of a subscription. Subscriptions may be acquired by redeeming a Game Card, by redeeming a “Krono” (only available in some Daybreak Games), or by purchasing a recurring subscription. More information about Krono can be found at https://www.everquest2.com/krono). Recurring subscriptions will automatically renew for the same amount of time as the initial subscription period, and will be automatically charged to the payment method on your account unless you terminate the auto-renewal before the next renewal date. You can stop the automatic renewal of your subscription at any time by logging into your account and navigating to the membership page. Daybreak reserves the right to change the price and/or to modify the features and content provided by a game subscription at any time in its sole and absolute discretion. We will provide at least ten (10) days’ notice to you before changing subscription pricing. Subscriptions are nonrefundable.
You hereby agree not to assert and/or bring any cause of action, claim and/or suit against Daybreak, our affiliates, and/or our licensors and suppliers arising out of and/or related to (a) any claim that you own any Virtual Currency, digital downloads, or Virtual Items, (b) any claim for the "value" of any Virtual Currency, game cards, digital downloads, or Virtual Items, (c) any claim for the loss of any "value" of any Virtual Currency, game cards, digital downloads, or Virtual Items arising out of and/or related to any acts or omissions of Daybreak, our affiliates, our service providers, and/or our licensors and suppliers which is/are permitted under the Daybreak Terms of Service and/or any other Daybreak policy, and/or (d) any claim that the "value" of any Virtual Currency, game cards, digital downloads, or Virtual Items has diminished in value as a result of any modification that Daybreak, our affiliates, our service providers, and/or our licensors made to any Daybreak Game(s) or Daybreak Game(s) related services.
SALES POLICY
You must be at least 18 years old to make a purchase. If you are a minor, you must have your parent or guardian submit the payment information and authorize the transaction on your behalf. By submitting your payment information and making a purchase, you agree to pay all applicable transaction costs including sales taxes, credit card fees, mobile carrier fees, etc. Daybreak accepts many methods of payment, including credit cards, game cards, PayPal, SMS, etc. Daybreak reserves the right to add or remove any method of payment at any time in its sole and absolute discretion.
Daybreak does not ensure continuous or error-free access or availability of any Daybreak Game(s). Daybreak is constantly changing the Daybreak Games and may, in its sole and absolute discretion, add, modify, disable, suspend and/or remove any Daybreak Game(s), any portion thereof, including, without limitation, any computer code, games, characters, character names, storylines, titles, dialogue, catch phrases, digital downloads, Virtual Items, Virtual Currency, themes, objects, environments, artwork, maps, locations, likenesses, poses, models, textures, costumes, logos, emblems, powers, badges, achievements, sounds, voiceovers, musical compositions, concepts, artwork, animations, special effects, methods of operation, documentation, in-game chat transcripts, character profile information, video files, game engines, launch pads, and client and server side software, data, information, materials and other assets contained therein (collectively, the “Daybreak Game Assets”). Under no circumstance will Daybreak be liable for any claim that relates to or arises out of any such change that it makes to any Daybreak Game Assets. Daybreak may suspend, discontinue and/or terminate any Daybreak Game(s) and/or Daybreak Asset at any time in its sole and absolute discretion. If and when Daybreak ends a Daybreak Game, the Virtual Items that you have acquired in any Daybreak Game(s) will no longer be available. Any Virtual Currency remaining in your account for such Daybreak Game(s) will still be available for use in other Daybreak Games. No refunds will be made for purchases of Subscriptions, digital downloads, and/or Virtual Items.
In the event that you have purchased any packaged (i.e., physical) goods from Daybreak, you may return such packaged goods to us for any reason within thirty (30) days of shipment for a full refund, less shipping and handling charges. Prior to returning any such packaged goods, please send an e-mail to returns@daybreakgames.com to request a return authorization. Unless you have requested an exchange, you can expect a refund in the same form of payment originally used for purchase. All undeliverable or refused orders will be treated as a return, with the same policy applied as returned items.
If you wish to purchase any Subscriptions, Virtual Items, digital downloads, or Daybreak Games-related services (each such purchase, a “Transaction”), you may be asked to supply certain information relevant to your Transaction, including without limitation your credit card number, the expiration date of your credit card, your billing address, and your shipping information. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARD(S) UTILIZED IN CONNECTION WITH ANY TRANSACTION. You agree to pay all fees, payments and applicable taxes relating to the Game incurred by you or anyone else using your account. By submitting such information, you grant Daybreak the right to provide such information to third parties for purposes of facilitating the completion of Transactions initiated by you or on your behalf. Verification of information may be required prior to the acknowledgment or completion of any Transaction.
RULES OF CONDUCT
While playing or otherwise using any Daybreak Game(s), you agree to comply with all applicable laws, rules and regulations, and to respect the rights and dignity of others. Further, your access to and use of the Daybreak Games is conditioned on your complete and continued compliance with the following rules of conduct. The violation of any of these Rules of Conduct may lead to the suspension and/or termination of your account.
7.1. While playing or otherwise using the Daybreak Games, you agree not to:
Violate the game-specific rules of conduct posted in the Daybreak Knowledge Base and/or on the game forums
Post, link to, or transmit anything that is illegal, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, sexually explicit, obscene, hateful, or racially or ethnically offensive.
Impersonate or misrepresent your affiliation with Daybreak, our affiliates, our service providers, our licensors and/or any other person, company and/or group.
Post, link to, or transmit anything that infringes any patent, trademark, trade secret, copyright or other intellectual or proprietary rights of another person or company.
Delete any author attributions, legal notices or proprietary designations or labels that you upload to or through a Daybreak communication feature;
Post, link to, or transmit anything that contains a virus, corrupted data, trojan horse, bot, keystroke logger, worm, time bomb, cancelbot or other computer programming routines that are intended to and/or actually damage, detrimentally interfere with, surreptitiously intercept or mine, scrape or expropriate any system, data or personal information.
Do anything that might interfere with or adversely affect any Daybreak Game(s).
Attempt to disable or circumvent any measures that we use to prevent or restrict access to our accounts, servers, databases, data, computers, and networks.
Modify any part of any Daybreak Game(s), including, without limitation, any Daybreak Game client and/or server.
Arrange for the exchange and/or transfer of any pirated or illegal software and/or other intellectual property while using any Daybreak Game(s).
Attempt to interfere with, hack into, or decipher any transmissions to or from the servers from which any Daybreak Game(s) is/are operated.
Exploit any bug in any Daybreak Game(s) and to refrain from communicating the existence of any such exploitable bug (bugs that grant the end user unnatural or unintended benefits to the user), directly, indirectly and/or through public posting, to any other end user of such Daybreak Game(s). Additionally, you agree to promptly report any such bugs to Daybreak.
Attempt to play any Daybreak Game(s) on any server that is not controlled or authorized by Daybreak or its designees.
Create, use or provide any server emulator or other site where any Daybreak Game(s) may be played, and to refrain from posting or distributing any utilities, emulators or other software tools related to any Daybreak Game(s) without the express written permission of Daybreak.
Post, link to, or transmit any kind of unsolicited advertising , promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes” or any other form of solicitation.
Disclose your or any other person's personal information.
Interfere with, degrade, harm or disrupt the operation of any Daybreak Game(s), or the servers or networks used to make such websites and games available, or violate any requirements, procedures, policies or regulations of such networks.
Restrict or inhibit any other person from using any Daybreak Game(s) (including, without limitation, by hacking, cracking or defacing any portion of such websites or games).
Reproduce, copy, modify, adapt, translate, sell, resell, make available, link to or exploit for any commercial purposes, any portion of, use of, or access to, any Daybreak Game(s), or any portion thereof, including, without limitation, any Daybreak Game Assets.
Use any Daybreak Game(s) in connection with any commercial activity, including without limitation any “e-sports” or group competition, without Daybreak’s prior written consent.
COMMUNICATIONS
Daybreak provides many ways for you to communicate with your gaming friends, which may include online forums, in-game text, in-game voice chat, email and messenger-type functionality. All communications that you post or send through any Daybreak Game(s) (“Communications”) must comply with our Rules of Conduct (see Section 7 above). If you believe another end user has violated the Rules of Conduct, please contact a Daybreak customer service representative.
All of your Communications in-game and on the Daybreak Websites will pass through and be stored on our servers. You should therefore consider all Communications to be public with no expectation of privacy or confidentiality. Daybreak reserves the right, but undertakes no obligation, to monitor, filter, modify, block and/or remove content that does not comply with these Daybreak Terms of Service. Please keep in mind, however, that we cannot control or monitor every Communication between and/or among our end users. You therefore may be exposed to messages or other content created or conveyed by other end users that you find objectionable. You are also responsible for anything you say, print, or otherwise communicate to others through any Daybreak Game(s). Daybreak, as an online service provider, is not responsible for the content (including, without limitation, the accuracy, integrity and/or quality) of your Communications and is not liable for any harm that you or others may cause by communicating through any Daybreak Game(s).
SUBMISSIONS
By posting, transmitting or otherwise submitting any Communication or other message, photograph, artwork, video asset, audio asset, audiovisual asset, or other content, information and/or materials (each, a “Submission”) through any Daybreak Game(s), you hereby grant Daybreak a worldwide, non-exclusive, transferable, sublicenseable (through multiple tiers), royalty-free, fully-paid up, perpetual, irrevocable right and license to use, reproduce, distribute, display and perform (whether publicly or otherwise), adapt (including, without limitation, the rights to edit, modify, translate, and reformat), create derivative works of, transmit, make, have made, sell, offer to sell, import and otherwise use and exploit (and have others exercise such rights on behalf of Daybreak) any and all Submissions, for any purpose whatsoever, commercial or otherwise, in any media now known or hereafter developed, without compensation or credit. To the extent permitted by applicable laws, you also give up any claim that any use by Daybreak of the Submissions violates any of your rights, including but not limited to moral rights, privacy rights, rights to publicity, proprietary or other rights, and/or rights to credit for the material or ideas set forth therein.
For each Submission, you represent and warrant that you have all rights necessary for you to grant the license granted in this Section 9, and that such Submission, and your provision thereof to and through any Daybreak Game(s) complies with all applicable laws, rules and regulations. You further irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding each Submission that you may have under any applicable law under any legal theory as well as any and all other claims that any use of the Submissions by or on behalf of Daybreak violates any of your other rights, including but not limited to, privacy, publicity, proprietary, intellectual property and/or other rights. For purposes of clarity, you retain all other intellectual property rights that you may have in your Submissions, subject to the license and rights granted in this Section 9.
You acknowledge and agree that, subject to the Daybreak Privacy Policy, we reserve the right (but have no obligation) to do any or all of the following, at our sole and absolute discretion: (i) monitor Submissions and all other use thereof; (ii) monitor the play and use any Daybreak Game(s); (iii) alter, remove, or refuse to post or allow to be posted any Submission(s); and/or (iv) disclose any Submission(s) (and the circumstances surrounding their transmission) and any information regarding your use of any Daybreak Game(s) to any third party (including our customers) in order to operate any Daybreak Game(s); to protect Daybreak, our affiliates, our service providers and licensors, and ours and theirs shareholders, directors, officers, employees, agents, representatives, customers and end users; to comply with legal obligations or governmental requests; to enforce the Daybreak Terms Of Service; or to engage in any other business activity. Daybreak will also have the right, subject to the Daybreak Privacy Policy, to extract, compile, synthesize, analyze, use and disclose any Submission(s) (by itself or together with data and information of others) for the purpose of operating any Daybreak Game(s), improving, enhancing and modifying our services and products, providing customized services or technologies to you, developing new services or products, and/or any other lawful business purpose without further disclosure or accounting to you.
Virtual items submitted to Daybreak through the Player Studio program are not governed by this section 9. Rather, they are governed by Section 15 of these Terms of Service.
CHEATING
Maintaining the integrity of the Daybreak Games is extremely important to us. When an end user obtains an unfair advantage by cheating it can ruin the gaming experience for everybody else. You may not disassemble, reverse engineer, or modify any Daybreak Game(s) software in any way. You may not decrypt or modify any data transmitted between the game software and Daybreak’s game servers. You may not develop, share, or use any software, program, macro, or interface that modifies the game play in any way or that gives a user any kind of advantage over other end users, except as expressly authorized by Daybreak. All forms and methods of cheating, including hacks, bots, aimbots, and duping are expressly forbidden. The sale or exchange of accounts, Virtual Items, Virtual Currency, Krono and/or in-game currency for real world money or monetary value is prohibited, except when purchased from Daybreak or otherwise expressly permitted by Daybreak in its sole and absolute discretion. Daybreak reserves the right to suspend or permanently terminate the account of, and restrict access to the Daybreak Games by, any end user that engages in any form of cheating, or that attempts in any way to disable, circumvent, or tamper with any anti-hacking or anti-cheating components or features of any Daybreak Game(s).
COLLECTION AND USE OF INFORMATION ABOUT YOUR COMPUTER
We may collect certain information about your computer, such as the IP address, type of video card, size of hard drive, etc., and monitor the software and data on your computer, as reasonably necessary to assist us in optimizing the performance of our games and websites. We may also monitor the processes on your computer as reasonably necessary to detect unauthorized modifications to our game software and/or the use of software that enables or facilitates any kind of cheating.
PROPRIETARY RIGHTS AND LICENSE
Daybreak and its licensors own all right, title and interest in and to the Daybreak Games. Daybreak and its licensors are the sole and exclusive owner of all intellectual property rights, including, without limitation, all copyrights, trademarks, patent rights, trade secret rights, know-how, and other rights (“Intellectual Property”) in the Daybreak Games. The Daybreak Games are subject to copyright and trademark protections, as detailed in our Legal and Copyright Notices, available at www.daybreakgames.com/legal.
All trademarks and service marks in the Daybreak Games not owned by us are the property of their respective owners. Except as expressly set forth in these Daybreak Terms of Service, you may not use our trade names, trademarks or service marks. Additionally, you shall not, under any circumstances, use our trade names, trademarks or service marks in connection with any product or service that is not our product or service, or in any manner that is likely to cause confusion.
The Daybreak Games are licensed, not sold, to end users. Subject to your acceptance of and continued compliance with all the terms and conditions of the Daybreak Terms of Service and Daybreak End User License Agreement, during the period of time that you have an account for any Daybreak Game(s) or for a shorter period of time (as determined by Daybreak), Daybreak grants you a limited, personal, non-transferable, non-sublicenseable, revocable, non-exclusive right to load the client-side software of such Daybreak Game(s) solely in the format made available to you by Daybreak onto your personal computer, console, or other permitted device; provided that your installation of, access to and play of any Daybreak Game(s) are solely for your personal, non-commercial use and in accordance with each of the restrictions and limitations set forth in the Daybreak Terms of Service and Daybreak End User License Agreement. The client-side software may not be reproduced, transferred, distributed, sold, disassembled, reverse engineered, modified, used as a stand-alone game (without connecting to Daybreak’s game servers), or used in connection with non-Daybreak game servers. If you fail to comply with any of the terms or conditions set forth in the Daybreak Terms of Service and/or the Daybreak End User License Agreement, the Daybreak Terms of Service and Daybreak End User License Agreement (including, without limitation, the grant of permission to play any Daybreak Game(s)) will automatically terminate, whereupon you will immediately (y) cease using any Daybreak Game(s); and (z) remove (i.e., uninstall and delete) the Daybreak software from your computer system.
RESTRICTIONS ON USE
You are solely responsible for any violation of any applicable laws that results from your failure to abide by the Daybreak Terms of Use and/or Daybreak End User License Agreement. You hereby agree not to (a) rent, lease, timeshare, license, distribute, sublicense or otherwise transfer any Daybreak Game(s), in whole or in part, as a standalone product, in conjunction with other products, or otherwise; (b) make copies of the Daybreak Games, in whole or in part, except as necessary to install any Daybreak Game(s) in accordance with the Daybreak Terms of Use; (c) reverse engineer, decompile or disassemble any Daybreak Game(s), in whole or in part; (d) create derivative works of or from any Daybreak Game(s), in whole or in part; (e) incorporate any Daybreak Game(s), in whole or in part, into any product or service; (f) use any Daybreak Game(s), in whole or in part, for commercial purposes, except as expressly permitted herein; and (g) remove, alter or obscure any copyright, trademark, trade name or other proprietary notices, legends, symbols or labels that appear in any Daybreak Game(s), in whole or in part. All rights not expressly granted to you hereunder are reserved to Daybreak and Daybreak’s licensors.
USER GENERATED CONTENT
Daybreak encourages end users to increase their engagement with the Daybreak Games and share their gaming experiences by creating game-related videos, fan fiction and artwork, Fan Sites (as hereinafter defined) and Apps (as hereinafter defined) for others to view, use and enjoy (collectively, “User Generated Content” or “UGC”). Your creation and use of UGC must comply with the following guidelines. For purposes of clarity, UGC does not include any virtual items that you create for use within any Daybreak Game(s). Virtual items submitted to Daybreak through the Player Studio program are not governed by this Section 14. Rather, they are governed by Section 15 of these Terms of Service.
14.1. Videos. Daybreak encourages end users to create videos for their favorite Daybreak Games and share them with others through Fan Sites and video sharing sites like Twitch and YouTube. Videos can include Daybreak game content such as screenshots and game play footage, and can be edited anyway you like as long as you comply with the Daybreak Terms of Service. Videos that contain our game content only may be used for non-commercial purposes and may not be licensed or sold. Subject to your compliance with the Daybreak Terms of Service, you may monetize your videos through “partner programs” on sites like Twitch and YouTube.
14.2. Fan Fiction and Artwork. We enjoy the creativity of our end users and encourage them to create fan fiction and artwork such as short stories and drawings that are based on and/or inspired by Daybreak Game Assets like NPCs, deities, monsters, characters, cities, dungeons, etc. Fan fiction and artwork that contains or is based on Daybreak Game Assets only may be used for non-commercial purposes and may not be licensed or sold. We encourage end users to share fan fiction and artwork through Fan Sites, social media, and game forums.
14.3. Fan Sites and Apps. End users may create websites (“Fan Sites”) and mobile apps (“Apps”) to communicate with each other and share fan fiction, artwork, videos and information about any Daybreak Game(s). Daybreak may provide Daybreak Game Assets for end users to use in creating Fan Sites and Apps. Fan Sites and Apps may also include game data that is acquired via Daybreak’s API, subject to Daybreak’s API Policy. Daybreak’s API Policy is available at https://census.daybreakgames.com/, and is incorporated by reference into the Daybreak Terms of Service. Please note that Daybreak may, in its sole and absolute discretion, modify, revoke access to, or discontinue access to Daybreak’s API, and/or may remove access to any portion of the game data, or all of the game data, at any time without notice. Subject to your compliance with the Daybreak Terms of Service, you may (a) monetize your Fan Sites and Apps by displaying banners and other forms of advertising, (b) charge for premium functionality and content on your Fan Site(s), and (c) charge others to download your App(s). If you intend to charge a subscription or access fee to generate revenue from your Fansite and/or use your UGC for any other commercial purpose not expressly set forth in this Section 14, you first must execute a Fansite license agreement. The limited permission granted in the Daybreak Terms of Service with respect to use of Daybreak Game Assets in connection with Fansites does not cover such circumstances. Please contact us if you would like to request a copy of the Fansite license agreement. Fansites that quote an article or message from a Daybreak Website must limit the quote to a paragraph or less and provide a link back to the full article or message. Permission to link from the Fansite to the associated Daybreak Website is granted in such circumstances.
14.4. License Grant and Restrictions. Subject to your acceptance of and continued compliance with all the terms and conditions of the Daybreak Terms of Service and Daybreak End User License Agreement, during the period of time that you have an account for any Daybreak Game(s) or for a shorter period of time (as determined by Daybreak), Daybreak grants you a limited, personal, non-transferable, non-sublicenseable, revocable, non-exclusive right to use Daybreak Game Assets to create and distribute UGC as described in this Section 14. Daybreak expressly reserves all other rights in and to the Daybreak Games, including, without limitation, all Intellectual Property therein. Daybreak shall remain the sole and exclusive owner of the Daybreak Games, including, without limitation, all Intellectual Property therein, and your right to create, use and distribute UGC is subject to Daybreak’s ownership rights and the Daybreak Terms of Service and Daybreak End User License Agreement. Nothing in the Daybreak Terms of Service and/or Daybreak End User License Agreement shall be construed as allowing you to use, sell, distribute, license or otherwise exploit any Daybreak Asset or Intellectual Property therein for any other purpose or in any other manner other than as expressly provided in this Section 14. Your use of any Daybreak Game Asset(s) in UGC is subject to the usage guidelines that Daybreak may provide for those Daybreak Game Assets from time to time. You hereby agree not to (a) remove any trademark, copyright or other proprietary rights notices contained in any Daybreak Asset, (b) challenge Daybreak's or its licensors’ ownership of the Daybreak Game Assets and/or the Intellectual property therein, (c) use Daybreak’s name, trademarks, and/or the name of any Daybreak Game(s) in any Fan Site name, domain name or App name, and (d) use or adopt any names and/or trademarks that might be confusingly similar to the trademarks of Daybreak and/or its licensors. UGC must not include any material that is illegal or infringes on the rights of third parties or that is likely to harm the reputation of Daybreak, our affiliates, our service providers and licensors as well as the Daybreak Games. Your use and distribution of UGC must not suggest or imply any sponsorship by, affiliation with and/or endorsement by Daybreak and/or any of its affiliates. The creation and sale of merchandise based in whole or in part on any Daybreak Game(s) is expressly prohibited without Daybreak’s prior written permission. Daybreak reserves the right to require the removal, destruction and/or deletion of any UGC that does not comply with the Daybreak Terms of Service and/or Daybreak End User License Agreement.
Daybreak reserves all right, title and interest in and to the Daybreak Game Assets that are not expressly granted in this Section 14. You shall not rent, lease, reproduce, modify, translate or create derivative works of any Daybreak Game Asset(s) except as expressly permitted herein, nor create any derivative works (including, without limitation, fiction or visual art) from, or in any way exploit, any of the characters or content contained in any Daybreak Game(s) without the express written permission of Daybreak. Daybreak does not consent to the protection under the copyright law of any unauthorized derivative work. The creation and sale of merchandise based on any Daybreak Game(s) is expressly prohibited.
PLAYER STUDIO
Daybreak’s Player Studio program offers end users the opportunity to create and submit virtual items to Daybreak for consideration to be included in any Daybreak Game(s). If Daybreak selects a virtual item for inclusion in any Daybreak Game(s), the end user will share in the revenue (if any) generated by such virtual item. More information regarding Player Studio is available at www.daybreakgames.com/player-studio/. To submit a virtual item for consideration, you must first read and agree to the Player Studio Item Submission Agreement, which is available at https://player-studio.daybreakgames.com/terms. The Player Studio Item Submission Agreement is incorporated by reference into the Daybreak Terms of Service. Please note that Player Studio is the only approved method for submitting creative materials to Daybreak. With respect to any unsolicited creative materials that you send to us other than through the Player Studio program (collectively, “Unsolicited Material”), you hereby grant Daybreak a worldwide, non-exclusive, transferable, sublicenseable (through multiple tiers), royalty-free, fully-paid up, perpetual, irrevocable right and license to use, reproduce, distribute, display and perform (whether publicly or otherwise), adapt (including, without limitation, the rights to edit, modify, translate, and reformat), create derivative works of, transmit, make, have made, sell, offer to sell, import and otherwise use and exploit (and have others exercise such rights on behalf of Daybreak) any and all such Unsolicited Material, for any purpose whatsoever, commercial or otherwise, in any media now known or hereafter developed, without compensation or credit. To the extent permitted by applicable laws, you also give up any claim that any use by Daybreak of the Unsolicited Material violates any of your rights, including but not limited to moral rights, privacy rights, rights to publicity, proprietary or other rights, and/or rights to credit for the material or ideas set forth therein. Accordingly, please do not submit any artwork or other creative materials to us through other channels, such as the forums or by email, unless you wish to grant Daybreak the foregoing license with respect thereto.
END USER FEEDBACK
We may ask end users for ideas, suggestions, input, recommendations, information, comments and/or feedback (collectively, “End User Feedback”) to help improve the Daybreak Games. We may also ask for End User Feedback during the “beta” phase of any Daybreak Game to identify and fix bugs and other problems. You also may voluntarily provide End User Feedback to us through forums, email, social media sites and/or other means. By providing End User Feedback to Daybreak, whether solicited by Daybreak or not, you hereby grant Daybreak a worldwide, non-exclusive, transferable, sublicenseable (through multiple tiers), royalty-free, fully-paid up, perpetual, irrevocable right and license to use, reproduce, distribute, display and perform (whether publicly or otherwise), adapt (including, without limitation, the rights to edit, modify, translate, and reformat), create derivative works of, transmit, make, have made, sell, offer to sell, import and otherwise use and exploit (and have others exercise such rights on behalf of Daybreak) any and all End User Feedback, for any purpose whatsoever, commercial or otherwise, in any media now known or hereafter developed, without compensation or credit. To the extent permitted by applicable laws, you also give up any claim that any use by Daybreak of the End User Feedback violates any of your rights, including but not limited to moral rights, privacy rights, rights to publicity, proprietary or other rights, and/or rights to credit for the material or ideas set forth therein.
CLAIMS OF COPYRIGHT INFRINGEMENT
We respect the intellectual property rights of others and request that our end users do the same. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe that materials in any Daybreak Game(s) infringe your copyrighted work, please send a notice to our copyright agent (identified below) with the following information requesting that such materials be removed or access to it blocked: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive copyright that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works incorporated in any Daybreak Game(s) are covered by a single notification, a representative list of such works); (c) identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow Daybreak to locate the material on the applicable Daybreak Game(s); (d) the name, address, telephone number and email address (if available) of the complaining party; (e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) 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 an exclusive right that is allegedly infringed. If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send Daybreak a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see http://www.loc.gov/copyright for details. Such notices and counter-notices should be sent to:
Daybreak Game Company LLC
15051 Avenue of Science, San Diego, CA 92128
Office of the General Counsel
Fax: (858) 239-0852
E-mail: gcagent@daybreakgames.com
Among other things, Daybreak reserves the right to terminate the account of any person who, more than twice, posts or transmits content that is removed as the result of a notice under this section.
INTERNET ACCESS REQUIRED
You need a computer with Internet access to access and play Daybreak Games. Your computer and Internet equipment will need to meet the minimum specifications for the Daybreak Games you wish to play. All costs and fees associated with such equipment and related software are your responsibility. Please note that the Daybreak Games continuously evolve over time, and the minimum specifications for any Daybreak Game(s) may change. As a result, you may be required to upgrade your computer and/or Internet equipment in order to continue playing the Daybreak Game(s).
EPILEPSY WARNING
Please note that certain people are susceptible to epileptic seizures or loss of consciousness when exposed to certain flashing lights or light patterns in everyday life. Such people may have a seizure while watching certain monitor images or playing certain video games. This may happen even if the person has no medical history of epilepsy or has never had any epileptic seizures. If you or anyone in your family has ever had symptoms related to epilepsy (seizures or loss of consciousness) when exposed to flashing lights, consult your doctor prior to playing any Daybreak Game(s). We advise parents to monitor the use of video games by their children. If you or your child experience any of the following symptoms while playing a video game, immediately discontinue use of the video game and consult your doctor: dizziness, blurred vision, eye or muscle twitches, loss of consciousness, disorientation, any involuntary movement and/or convulsion.
LINKS TO OR FROM OTHER SITES
The Daybreak Game(s) may provide links to or feeds from websites and other online resources. Except as otherwise expressly stated by us in any of the Daybreak Game(s), we are not affiliated or associated with the operators of any third party websites or other resources that link to or are linked from any Daybreak Game(s). We expressly disclaim any responsibility for the accuracy, content, or availability of information found on third party websites or resources that link to or are linked from any Daybreak Game(s). We cannot ensure your satisfaction with any products or services that are available through any third party website or resource that links to or is linked from any Daybreak Game(s) because these third party websites and resources are owned and operated by independent entities. We do not endorse any of the products or services, nor have we taken any steps to confirm the accuracy or reliability of any of the information, made available through any third party websites or resources, and we make no representations or warranties as to the security of any information (including, without limitation, credit card and other personal information) that you may provide or be requested to provide to any third party, whether through such a third party website or resource, or otherwise.
YOU AGREE THAT YOUR USE OF THIRD PARTY WEBSITES AND RESOURCES AND ANY CONTENT, INFORMATION, DATA, ADVERTISING, PRODUCTS, SERVICES, OR OTHER MATERIALS ON OR AVAILABLE THROUGH SUCH WEBSITES AND RESOURCES IS AT YOUR OWN RISK AND IS SUBJECT TO THE TERMS AND CONDITIONS OF USE APPLICABLE TO SUCH WEBSITES AND RESOURCES.
CUSTOMER SERVICE
Daybreak has an online self-help knowledge base that is accessible online to all end users at https://help.daybreakgames.com/. Daybreak also offers live customer support for billing issues and to customers with subscription-based memberships.
DISCLAIMERS, LIMITATIONS OF LIABILITY
TO THE EXTENT PERMITTED BY LAW, THE DAYBREAK GAMES ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. ACCESS TO AND USE OF THE DAYBREAK GAMES ARE AT YOUR SOLE RISK. DAYBREAK DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE DAYBREAK GAMES, INCLUDING ALL STATUTORY AND IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. DAYBREAK MAKES NO WARRANTY WITH RESPECT TO THE QUALITY OR AVAILABILITY OF THE DAYBREAK GAMES, INCLUDING, WITHOUT LIMITATION, THAT ACCESS TO ANY OF THEM WILL BE UNINTERRUPTED, CONTINUOUS, VIRUS-FREE, ERROR FREE, RELIABLE, SECURE AND/OR COMPATIBLE WITH ANY PARTICULAR HARDWARE AND/OR SOFTWARE. DAYBREAK HEREBY DISCLAIMS ANY AND ALL OBLIGATIONS TO FURNISH ANY MAINTENANCE AND/OR SUPPORT SERVICES WITH RESPECT TO THE DAYBREAK GAMES.
IN NO EVENT WILL DAYBREAK AND ITS AFFILIATES, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS, AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “DAYBREAK ENTITIES”), BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES RELATED TO THE USE OF OR INABILITY TO USE ANY DAYBREAK GAME(S). NONE OF THE DAYBREAK ENTITIES ARE RESPONSIBLE FOR ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF TRANSMISSIONS OR DATA OR FOR ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED. NONE OF THE DAYBREAK ENTITIES ARE RESPONSIBLE OR LIABLE FOR ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE OR ILLEGAL CONTENT OR CONDUCT OF ANY OTHER PARTY, OR ANY INFRINGEMENT BY A THIRD PARTY OF ANOTHER’S INTELLECTUAL PROPERTY, PRIVACY OR OTHER RIGHTS. IN ANY ACTION OR PROCEEDING AGAINST ANY DAYBREAK ENTITY(IES) ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE OR THE USE OR INABILITY TO USE THE DAYBREAK GAMES, WHETHER IN CONTRACT, TORT, WARRANTY OR OTHERWISE, THE DAMAGES TO WHICH YOU MAY BE ENTITLED SHALL BE LIMITED TO $100.00. YOU HEREBY WAIVE YOUR RIGHT TO BRING ANY CAUSE OF ACTION YOU MAY HAVE AGAISNT ANY DAYBREAK ENTITY(IES) WITH RESPECT TO THE USE OF ANY DAYBREAK GAME(S) ONE YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES.
SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF STATUTORY OR IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. IN SUCH STATES OR JURISDICTIONS, THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS SECTION MAY NOT APPLY TO YOU. CONSEQUENTLY, IN SUCH STATES OR JURISDICTIONS, LIABILITY IS LIMITED TO THE LOWEST AMOUNT PERMITTED BY APPLICABLE LAW.
INDEMNIFICATION AND RELEASE
You agree to indemnify and hold harmless THE DAYBREAK ENTITIES from and against any and all liability, losses, damages, and expenses including, without limitation, attorneys’ fees and costs, incurred in connection with or in any way relating to any claim arising out of any breach by you of the DAYBREAK Terms of Service and/or DAYBREAK end user license agreement and/or your use of ANY DAYBREAK GAME(S). You also agree to release and discharge THE DAYBREAK ENTITIES from any and all existing and future claims you have or may have, known or unknown, relating in any way to your use of or inability to use ANY DAYBREAK GAME(S).
IN NO EVENT SHALL YOU HAVE ANY RIGHT TO RECOVER OR OBTAIN ANY RIGHTS IN OR TO ANY DAYBREAK GAME(S), OR TO ENJOIN OR OTHERWISE INTERFERE WITH DAYBREAK’S DEVELOPMENT, LICENSING, USE, PUBLISHING, MARKETING, SALE, DISTRIBUTION OR EXPLOITATION OF ANY DAYBREAK GAME(S), OR ANY RIGHTS ASSIGNED, TRANSFERRED OR RESERVED TO DAYBREAK UNDER THE DAYBREAK TERMS OF SERVICE.
GOVERNING LAW; JURISDICTION
The validity, construction, interpretation and legal effect of this Daybreak Terms of Service shall be construed in accordance with and governed by the judicial decisions and internal laws of the State of Delaware and the United States of America, without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of Delaware and the United States of America. Subject to the below provisions of Section 25, (a) you and Daybreak agree that any controversy, claim or dispute arising out of or relating to this Daybreak Terms of Service or any aspect of the relationship between you and Daybreak (each, a “Dispute”) asserted by you against Daybreak or by Daybreak against you shall be exclusively brought in a state or federal court in the District of Delaware or Southern District of California, and (b) you and Daybreak each submit and consent to the personal jurisdiction of, and venue in, the state and federal courts located in the District of Delaware or Southern District of California.
DISPUTE RESOLUTION; ARBITRATION; CLASS ACTION WAIVER
25.1. Introduction. Any Dispute, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, shall be settled through Negotiation (as defined below in this Section 25) or Arbitration (as defined below in this Section 25); provided, however, with respect to Excluded Disputes (as defined below in this Section 25) that you and Daybreak are unable to settle through Negotiation, you or Daybreak may apply to the applicable court in the District of Delaware or Southern District of California to bring any such Excluded Disputes in lieu of Arbitration.
If a Dispute arises, you and Daybreak first shall attempt in good faith to resolve it promptly by Negotiation as set forth below in this Section 25, and neither you nor Daybreak may commence Arbitration with respect to any Dispute unless you and Daybreak first have unsuccessfully pursued Negotiation as provided in this Section 25 (i.e., the parties are unable to resolve the Dispute in writing within the below thirty (30) day period or if either party refuses to comply with the provisions of any written Negotiation settlement). All communications, whether oral, written or electronic, in any Negotiation or Arbitration (including, without limitation, any written Negotiation settlement or Arbitration award) pursuant to this Section 25 shall be treated as confidential, except as may be necessary to prepare for or conduct the Arbitration hearing on the merits, or except as may be necessary in connection with a court application in accordance with the above provisions of Section 24, or except to the extent otherwise required by applicable law. Notwithstanding the above provisions set forth in Section 24, (i) the Federal Arbitration Act applies to and governs the enforceability of this Section 25, and (ii) all communications, whether oral, written or electronic, in Negotiations shall also be treated as compromise and settlement negotiations for purposes of the Federal Rules of Evidence.
25.2. Negotiation. At any time after a Dispute arises, either you or Daybreak may initiate negotiation by providing written notice (the “Dispute Notice”) to the other party as follows (“Negotiation”): (a) you shall email Dispute Notices to Daybreak to disputenotice@daybreakgames.com and (b) Daybreak shall email Dispute Notices to you to the email address that Daybreak has on file for you. The Dispute Notice shall describe the nature and basis of the Dispute and sets forth the relief sought. You and a Daybreak representative shall speak by phone and/or communicate via email at a mutually acceptable time and thereafter as often as reasonable necessary, to attempt to resolve the Dispute. No party shall be obligated to continue to participate in Negotiation if the parties have not resolved the Dispute in writing within thirty (30) days after the non-complaining party’s receipt of the Dispute Notice.
25.3. Arbitration. If you and Daybreak are unable to resolve any Dispute through Negotiation or if either you or Daybreak refuses to comply with the provisions of any written Negotiation settlement, then, except for any Excluded Disputes (as hereinafter defined), SUCH DISPUTES WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR (“Arbitration”) INSTEAD OF IN A COURT BY A JUDGE OR JURY AND YOU AND Daybreak AGREE THAT YOU AND Daybreak ARE WAIVING THE RIGHT TO TRIAL BY A JURY. As used in this Daybreak Terms of Service, “Excluded Dispute” collectively means: (a) any Dispute relating to the infringement, misappropriation and/or other misuse of intellectual property rights other than patent rights (including, without limitation, claims seeking injunctive relief); (b) any Dispute relating to the violation, misappropriation and/or other misuse of confidential information (including, without limitation, claims seeking injunctive relief); (c) any Dispute relating to the enforcement of an Arbitration award; and/or (d) any Dispute that qualifies for small claims court.
An Arbitration is a proceeding before a neutral arbitrator, instead of before a judge or jury. Arbitration is less formal than a lawsuit in court, and provides more limited discovery. It follows different rules than court proceedings, and is subject to very limited review by courts. The arbitrator will issue a written decision and provide a statement of reasons if requested by either party.
The Arbitration will be administered by the American Arbitration Association under its Consumer Arbitration Rules, as amended by this Daybreak Terms of Service. The Consumer Arbitration Rules are available online at https://www.adr.org/aaa/faces/rules/searchrules/rulesdetail?_afrWindowId=pay9lxinm_1&_afrLoop=691540015434269&doc=ADRSTAGE2021424&_afrWindowMode=0&_adf.ctrl-state=hf27f5iaa_4#%40%3F_afrWindowId%3Dpay9lxinm_1%26_afrLoop%3D691540015434269%26doc%3DADRSTAGE2021424%26_afrWindowMode%3D0%26_adf.ctrl-state%3Dpay9lxinm_79 . Additionally, the arbitrator shall follow applicable state and federal law.
If you seek $10,000 or less in any Arbitration initiated by you, Daybreak agrees to reimburse your filing fee and your share of the arbitration costs, including your share of arbitrator compensation, at the conclusion of the proceeding, unless the arbitrator determines your claims are frivolous or costs are unreasonable as determined by the arbitrator. If you seek more than $10,000 in any Arbitration initiated by you, the Arbitration costs, including arbitrator compensation, will be split between you and Daybreak according to the AAA Commercial Arbitration Rules and the AAA’s Supplementary Procedures.
YOU AND DAYBREAK AGREE THAT ANY ARBITRATION UNDER THIS DAYBREAK TERMS OF SERVICE WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU AND DAYBREAK ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION.
The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or Daybreak that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination shall be made by the AAA or by the arbitrator. The arbitrator’s decision will follow the terms of this Daybreak Terms of Service and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Daybreak Terms of Service, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in this Daybreak Terms of Service will preclude you or Daybreak from bringing issues to the attention of federal, state or local agencies and, if the law allows, they can seek relief against us for you or against you for us, as applicable.
GENERAL TERMS
26.1. California Complaint Assistance. Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice. If you have a question or complaint regarding any Daybreak Game(s), please feel free to contact us by phone at (858) 239-0500 or by writing to us at Daybreak Game Company LLC, Attention: Office of the General Counsel, 15051 Avenue of Science, San Diego, CA 92128. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Suite N-112, Sacramento, California 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
26.2. Termination. Your only remedy with respect to any dissatisfaction with any Daybreak Game(s) is to terminate your account. You may terminate any Daybreak Game subscription at any time, however, any subscription time already purchased will remain on your account until the end of your then-current billing cycle and will be nonrefundable. Daybreak reserves the right to suspend, restrict or terminate your access to or use of any Daybreak Game(s), at any time and for any reason, in its sole and absolute discretion. Upon any such termination, your right to use the Daybreak Games will immediately cease. You agree that any suspension, restriction or termination of your access to or use of any Daybreak Game(s) may be effected without prior notice and that we may immediately deactivate or delete any username and/or password used by or provided to you, and all access to your game accounts. You agree that we will not be liable to you or any third party for any suspension, restriction or termination of your access to any Daybreak Game(s) and we will not be required to make any of the Daybreak Game Assets associated with your account available to you after any such termination, suspension or restriction. All licenses that you grant under the Daybreak Terms of Services along with the terms and conditions of the following Sections shall survive the expiration or earlier termination of the Daybreak Terms of Service: Sections 9, 12, 16, 22, 23 and 26.
26.3. Assignment. You may not assign or transfer any of your rights or obligations under the Daybreak Terms of Service. Daybreak may assign or transfer any and/or all of its rights and/or obligations under the Daybreak Terms of Service without restriction.
26.4. Sweepstakes and Contests. Daybreak may provide end users the opportunity to participate in various sweepstakes and contests. In order to participate, you must meet the eligibility requirements and comply with all of the posted rules. You may be required to provide a tax identification number and to sign an affidavit and release in order to collect a prize. Daybreak may report the value of the prize to federal and state taxing authorities and you will be responsible for paying any taxes due to such authorities.
26.5. Export Controls. Daybreak operates from its offices in California and Texas, in the United States of America. While most of the Daybreak Games may be accessed online, Daybreak makes no representation that they will be available or appropriate for use outside of the United States. Our software is subject to United States export controls. None of our software may be downloaded, accessed, or exported into (or to a national or resident of) Cuba, North Korea, Iran, Syria, Sudan, or any other country to which the U.S. has embargoed goods, or to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By accessing or using our software, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
26.6. Distribution Partners. In some countries, Daybreak Games are offered through local partners in those countries. Some Daybreak Games may also be accessed through third party digital distributors, like Valve. These third parties may require you to create an account with them and agree to their terms of service. You will still be responsible for complying with the Daybreak Terms of Service to the extent that you use any Daybreak Game(s).
26.7. Severability. Each provision of the Daybreak Terms of Service shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of the Daybreak Terms of Service is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of these Terms of Service.
26.8. Waiver. Any failure of Daybreak to enforce or exercise any right or power under the Daybreak Terms of Service shall not be construed as a waiver of, or a bar to, the exercise of such right or power on any other occasion.
26.9. Filtering. Pursuant to 47 U.S.C. Section 230(d) as amended, we hereby notify you that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available at http://kids.getnetwise.org/ and http://onguardonline.gov/. Please note that Daybreak does not endorse any of the products or services listed at these sites.
26.10. Miscellaneous. If any provision of the Daybreak Terms of Service are deemed to be unlawful, void or for any reason unenforceable, then that provision will be deemed severable from the Daybreak Terms of Service and will not affect the validity and enforceability of any remaining provisions. The Daybreak Terms of Service does not, and will not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and us. Any heading, caption or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof. The Daybreak Terms of Service, together with all agreements and statements referred to herein and incorporated herein by reference, is the entire agreement between you and us relating to the subject matter hereof and, except as otherwise provided herein, supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and us relating to such subject matter. Notices to you may be made by posting a notice (or a link to a notice) through any Daybreak Game(s), by email, or by regular mail, at our sole and absolute discretion. Without limitation, you agree that a printed version of the Daybreak Terms of Service and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to the Daybreak Terms of Service to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Nothing in the Daybreak Terms of Service, express or implied, is intended to or will confer on any person (other than the parties and their respective successors or permitted assigns) any rights, remedies, obligations or liabilities.
© 2015 Daybreak Game Company LLC. All rights reserved.
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