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Thanks for joining us for the Project 1v1 Closed Technical Test! We know you might be excited to share your experiences, but as a friendly reminder, taking or posting screenshots, videos, and livestreaming is not allowed during this test. However, you're more than welcome to share your thoughts and join the discussion at http://forums.gearboxsoftware.com/c/project-1v1/
THIS TERMS OF USE AGREEMENT, NON-DISCLOSURE AGREEMENT AND PRIVACY POLICY CONSTITUTES AN AGREEMENT (THE “AGREEMENT”) BETWEEN YOU AND THE UNITED STATES COMPANY GEARBOX SOFTWARE, LLC, ITS PARTNERS AND AFFILIATES, (COLLECTIVELY THE “COMPANY,” “WE,” “US,” OR “OUR”) GOVERNING THE RELATIONSHIP BETWEEN YOU (“YOU,” ‘YOUR,” OR “USER”) AND THE COMPANY WITH RESPECT TO THE CLOSED BETA TEST AND LICENSED WORKS DIRECTLY RELATED THERETO (“TEST”). THE COMPANY PROVIDES ACCESS TO THE TEST SUBJECT TO YOUR COMPLIANCE WITH THIS AGREEMENT. THUS, IT IS IMPORTANT THAT YOU CAREFULLY REVIEW, AND ACCEPT THIS AGREEMENT AS A CONDITION TO USE. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT PARTICIPATE IN THE TEST.
TRADEMARK & COPYRIGHT INFORMATION
All content, software and materials relating thereto, are the property of Gearbox or its master licensor(s), and are protected by copyright, trademark, and other intellectual property rights (“Licensed Works”).
DISCLOSURE
As a condition to accessing and using software and services distributed by Company, User agrees to (a) never publicly disclose the Confidential Information of Company, (b) keep the Confidential Information of Company secured against unauthorized access, (c) never copy or reproduce the Confidential Information without express permission, and (d) never independently exploit the Confidential Information. It is presumed that all information exchanged is confidential in nature and will be treated as Confidential Information, whether or not reduced to writing or designated as confidential. Notwithstanding the foregoing, Confidential Information shall not include any trade secrets or information which (i) Company voluntarily made publicly known and generally available in the public domain prior to the time of disclosure; (ii) becomes publicly known and made generally available after disclosure through no action or inaction of the receiving party in violation of this Agreement; or (iii) is in the possession of the receiving party, without confidentiality restrictions, at the time of disclosure, as shown by the receiving party’s files and records; (iv) is lawfully obtained by the receiving party from a third party who is not known by the receiving party to have obligations of confidentiality regarding such information; (v) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession. Should either Party (or any of its affiliates) receive a request to disclose any Confidential Information, the party receiving such request(s) shall immediately provide the other party with prompt notice so that appropriate steps may be taken to protect against disclosure before it happens.
LIMITED LICENSE BY THE COMPANY
Company grants its authorized Users a limited, non-exclusive, non-sublicensable, non-transferable, non-assignable, terminable, revocable license to access and participate in the Test pursuant to the terms herein. Such license is subject to this Agreement and specifically conditioned upon User compliance with the Terms of Use.
Except as expressly permitted above, any use of any portion of the game without the prior written permission of the Company is strictly prohibited. Any such unauthorized use may also violate applicable laws, including copyright and trademark laws, applicable communications regulations and statutes, and the like. Unless explicitly stated herein, nothing in this Agreement may be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. The limited license provided by Company is revocable at any time, for any reason.
You represent and warrant that your Test use of the game will be consistent with this license and any other applicable agreements or policies, will not infringe or violate the rights of any other party or breach any contract or legal duty to any other parties, or otherwise violate any applicable law or Company standard. You expressly agree to indemnify Company against any liability to any party arising out of Test.
RELATIONSHIP
Nothing in this Agreement is intended to create any employment, partnership, agency, or joint venture relationship. Company retains all right, title and ownership to Confidential Information. Company does not grant User any license to Confidential Information.
REMEDIES
User agrees that Company would foreseeably suffer irreparable harm upon User’s breach of this Agreement. Accordingly, in addition to any other remedies available at law or in equity, Company will be entitled to such preliminary and permanent injunctive relief that Company deems necessary, with no bond required. User agrees to promptly reimburse Company for all costs and fees associated with the enforcement of this Agreement. For this reason, User agrees that Company shall be entitled to seek injunctive relief (temporary and/or permanent) to further prevent use and/or disclosure in addition to any other remedies available to it at law or in equity including damages, restitution, coercive remedies, declaratory remedies, and provisional remedies for breach of this Agreement.
VOID WHERE PROHIBITED
Not all products or services are available to all persons or in all geographic locations. Company reserves the right to limit, in its sole discretion, the provision and quantity of any product or service to any person or geographic area it so desires. All offers, products, terms and services are void where prohibited.
DISCLAIMER OF WARRANTIES
THE TEST IS PROVIDED BY COMPANY ON AN "AS IS" AND “AS AVAILABLE” BASIS. YOU EXPRESSLY ACKNOWLEDGE THAT YOU ARE PARTICIPATING IN THE TEST AT YOUR SOLE RISK. COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND—AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS AND WARRANTIES—INCLUDING BUT NOT LIMITED TO ANY WARRANTY REGARDING (1) THE PERFORMANCE OR AVAILABILITY OF THE TEST; (2) THE ABSENCE OF ANY VIRUSES OR OTHER HARMFUL CODE IN THE TEST; (3) THE RESULTS OBTAINED OR TO BE OBTAINED FROM THE TEST; AND (4) SATISFACTION OR DISSATISFACTION OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY AND LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUIET ENJOYMENT, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, IN CONNECTION WITH THE TEST, CONTENT AND GAME. CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, AND ACCORDINGLY, THE LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU. IF YOU ARE A CONSUMER, ANY STATUTORY RIGHTS THAT CANNOT BE WAIVED BY YOU ARE UNAFFECTED BY THIS SECTION. YOU AGREE AND ACKNOWLEDGE THAT THE LIMITATIONS OF WARRANTY PROVIDED IN THIS AGREEMENT ARE FAIR AND REASONABLE.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL COMPANY OR ITS LICENSORS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR LOST REVENUES OR PROFITS, ARISING OUT OF OR RELATED TO THE TEST, THE GAME OR THE CONTENT HEREIN OR THEREIN, WHETHER BASED ON WARRANTY, CONTRACT, TORT, DELICT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
WITHOUT LIMITATION OF THE FOREGOING, AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOUR SOLE REMEDY IN THE EVENT OF ANY DEFICIENCY, DEFECT, FAILURE, DISSATISFACTION, ERROR OR INTERRUPTION IN THE TEST SHALL BE TO DISCONTINUE USE OF THE TEST.
INDEMNIFICATION
You agree to indemnify, defend, and hold harmless Company and each of its officers, directors, employees, agents, licensors, and suppliers from and against all claims, losses, expenses, judgments, fines, penalties, liabilities, damages and costs, including reasonable attorneys’ fees, resulting from any violation by you of this Agreement or any breach of any representation or warranty by you. Company reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you.
DISPUTE RESOLUTION
This Agreement shall be exclusively governed by, and construed in accordance with, the laws of the State of Texas, notwithstanding its choice of law rules. For any and all legal disputes involving the terms of this Agreement, you agree to submit to the exclusive jurisdiction of the state and federal courts sitting in Dallas County, Texas, and waive any jurisdictional, venue, or inconvenient forum objections to such courts. You also agree to attempt in good faith to resolve any claim or dispute with Company before commencing arbitration. Any claim or dispute notice regarding the Test must be sent via email to dispute@gearboxsoftware.com as well as by U.S. Mail to Gearbox Software, LLC, ATTN: Legal Department, 5757 Main St., Suite 500, Frisco, Texas 75034, and must contain a written statement accurately setting forth (1) your name, address and contact information; (2) your email address; (3) all facts giving rise to the claim or dispute; and (4) the relief you seek.
You and Company further agree as follows: (1) any claim or dispute brought to enforce this Agreement must be commenced within one (1) year of the event giving rise to the alleged claim or dispute; (2) the prevailing party will be entitled to costs and attorneys’ fees; and (3) any claim or dispute must be brought individually and not consolidated as part of a group or class action complaint.
The only disputes not covered by this Agreement to negotiate informally and arbitrate are disputes enforcing, protecting, or concerning the validity of any intellectual property rights asserted by the Company, its partners and affiliates.
BINDING ARBITRATION & CLASS ACTION WAIVER
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS CONCERNING ANY DISPUTES REGARDING USE OF THE LICENSED WORKS OR TEST BETWEEN YOU AND THE COMPANY, ITS PARTNERS, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS.
(a) Dispute. As used in this Agreement, “Dispute” means any dispute, claim, demand, action, proceeding, or other controversy between you and the Company concerning the Test or Licensed Works, whether based in contract, warranty, tort (including, without limitation, fraud, misrepresentation, fraudulent inducement, concealment, omission, negligence, conversion, trespass, strict liability, and product liability), statute (including, without limitation, consumer protection and unfair competition statutes), regulation, ordinance, or any other legal or equitable basis or theory. “Dispute” will be given the broadest possible meaning allowable under law.
(b) Informal Resolution Option. You and Company agree to attempt in good faith to resolve any Dispute before commencing arbitration. Unless you and Company otherwise agree in writing, the time for informal resolution will be 60 days from the date on which you or the Company mails a notice of the Dispute (“Notice of Dispute”) as specified in Paragraph(c). You and Company agree that neither party will commence arbitration before the end of the 60-day period provided for informal resolution.
(c) Dispute Notices. Notice of any Dispute with Company regarding use of the Licensed Works or the Test must be sent via email to dispute@gearboxsoftware.com as well as by U.S. Mail to Gearbox Software, LLC, ATTN: LEGAL DEPT/ARBITRATION NOTICE, 5757 Main St., Suite 500, Frisco, Texas 75034, and must contain a written statement setting forth (1) your name, address, and contact information; (2) your email address; (3) all facts giving rise to the Dispute; and (4) the relief you seek. Notice of a Company Dispute with you will be sent to your registered email address and by U.S. Mail to the known mailing address.
(d) BINDING ARBITRATION. IF YOU LIVE IN THE UNITED STATES, YOU AND COMPANY AGREE THAT IF YOU AND COMPANY DO NOT RESOLVE ANY DISPUTE BY INFORMAL NEGOTIATION UNDER PARAGRAPH (b) ABOVE, ANY EFFORT TO RESOLVE THE DISPUTE WILL BE CONDUCTED EXCLUSIVELY BY BINDING ARBITRATION IN ACCORDANCE WITH THE ARBITRATION PROCEDURES IN PARAGRAPH (g) BELOW. YOU UNDERSTAND AND ACKNOWLEDGE THAT BY OPTING TO USE THE LICENSED WORKS OR THE TEST, YOU ARE AGREEING TO BINDING ARBITRATION WHICH FORFEITS ANY RIGHTS YOU MAY HAVE TO LITIGATE (OR PARTICIPATE IN AS A PARTY OR CLASS MEMBER) ALL DISPUTES IN COURT BEFORE A JUDGE OR JURY. INSTEAD, YOU UNDERSTAND AND AGREE THAT ALL DISPUTES WILL BE RESOLVED BEFORE A NEUTRAL ARBITRATOR, WHOSE AWARD (DECISION) WILL BE BINDING AND FINAL, EXCEPT FOR A LIMITED RIGHT OF APPEAL UNDER THE FEDERAL ARBITRATION ACT. ANY COURT WITH JURISDICTION OVER THE PARTIES MAY ENFORCE THE ARBITRATOR'S AWARD.
THE ONLY DISPUTES NOT COVERED BY THIS AGREEMENT TO NEGOTIATE INFORMALLY AND ARBITRATE ARE DISPUTES ENFORCING, PROTECTING, OR CONCERNING THE VALIDITY OF ANY OF COMPANY’S (OR ANY OF YOUR OR COMPANY’S LICENSORS’) INTELLECTUAL PROPERTY RIGHTS.
(e) Small Claims Option. Notwithstanding Paragraph (d), you may also have the right to litigate any Dispute regarding your use of the Licensed Works or the Test in small claims court, subject to satisfying all requirements of the small claims court, including any limitations on jurisdiction and the disputed amount at issue.
(f) CLASS ACTION WAIVER. YOU AND THE COMPANY AGREE THAT ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE, WHETHER IN ARBITRATION, IN COURT, OR OTHERWISE, WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS, AND THAT NEITHER YOU NOR COMPANY WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION, A REPRESENTATIVE ACTION, A COLLECTIVE ACTION, A PRIVATE ATTORNEY-GENERAL ACTION, OR IN ANY PROCEEDING IN WHICH YOU OR THE COMPANY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. YOU AND COMPANY FURTHER AGREE THAT NO ARBITRATION OR PROCEEDING WILL BE JOINED, CONSOLIDATED, OR COMBINED WITH ANOTHER ARBITRATION OR PROCEEDING WITHOUT THE PRIOR WRITTEN CONSENT OF YOU, COMPANY, AND ALL PARTIES TO ANY SUCH ARBITRATION OR PROCEEDING. YOU AND COMPANY AGREE THAT NO ARBITRATOR SHALL HAVE THE AUTHORITY TO FASHION A PROCEEDING AS A CLASS OR COLLECTIVE ACTION OR TO AWARD RELIEF TO A GROUP OR CLASS OF USERS IN ANY ARBITRATION PROCEEDING.
(g) Arbitration Procedure. Subject to the terms herein, the arbitration of any Dispute will be conducted by, and according to the rules and procedures of, the American Arbitration Association (the “AAA”). Information about the AAA, and how to commence arbitration before it, is available at www.adr.org or by calling 1-800-778-7879. The Commercial Arbitration Rules of the AAA will govern the arbitration. If you are an individual consumer and use the Licensed Works or Test for personal or household use, or if the value of the Dispute is $75,000 or less, the Supplementary Procedures for Consumer-Related Disputes of the AAA will also apply. If the AAA rules or procedures conflict with the provisions of this Agreement, the provisions of this Agreement will govern. You may request a telephonic or in-person hearing by following the AAA rules and procedures. Where the value of a Dispute is $10,000 or less, any hearing will be via electronic communications unless the arbitrator finds good cause to instead hold an in-person hearing.
(h) Arbitration Location. You agree to commence arbitration only in Dallas County, Texas. Company agrees to commence arbitration only in your county of residence.
(i) Costs & Fees. In any arbitration you commence, Company reserves its right to seek its expenses associated with the arbitration process. In a Dispute involving more than $75,000, the AAA rules will govern payment of filing and AAA administrative fees and arbitrator's fees and expenses. You and Company agree that fees and expenses are not counted in determining how much a Dispute involves.
(j) Enforceability. If the class action waiver (which includes a waiver of private attorney-general actions) in Paragraph (f) is found to be illegal or unenforceable as to all or some parts of a Dispute, whether by judicial, legislative, or other action, then this Section and its subsections will not apply to those parts. Instead, those parts of the Dispute will be severed and proceed in a Texas court of law, with the remaining parts proceeding in arbitration. The definition of “Dispute” in Paragraph (a) will still apply to this Agreement.
(k) Rejection Rights. If Company makes a material change to this Section (other than an administrative change or revision to the notice address in Paragraph (c)) while you are authorized to use the Licensed Works or the Test, you may seek to reject the change by sending the Company written notice (in English, please) within 30 days of the basis for rejection by email to privacy@gearboxsoftware.com and via U.S. Mail to the address contained in Paragraph (c). You agree that you will informally negotiate and arbitrate any Dispute between us in accordance with the most recent version of this Section prior to the change you rejected and that Company reserves all lawful rights irrespective of such rejection.
(l) Severability. If any provision of this Section and its subsections, other than Paragraph (f) (i.e., class action waiver), is found to be illegal or unenforceable, that provision shall be limited or eliminated only to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.
(m) Survival. The provisions of this Section will survive termination of this Agreement and the provision of the Test and Licensed Works.
TERMINATION
Company may terminate or suspend your access to the Test, without prior notice or liability, for any reason. Upon termination, your right to access the Test will immediately cease. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, limitations of liability and the like.
TESTER RESPONSIBILITIES
When the Test is completed or earlier on Publisher’s request, Tester will delete or otherwise destroy all Confidential Information and all copies of it and any related information that Tester received from Company, and on Company’s request will certify its destruction.
MISCELLANEOUS
In the event that any of the provisions of this Agreement are held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall only be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect. This Agreement, the Privacy Policy, and the Non-Disclosure Agreement, constitute the entire agreement between you and Company pertaining to the subject matter hereof, and any and all written or oral agreements heretofore existing between you and Company with respect to the subject matter of this Agreement are expressly canceled
THIS TERMS OF USE AGREEMENT, NON-DISCLOSURE AGREEMENT AND PRIVACY POLICY CONSTITUTES AN AGREEMENT (THE “AGREEMENT”) BETWEEN YOU AND THE UNITED STATES COMPANY GEARBOX SOFTWARE, LLC, ITS PARTNERS AND AFFILIATES, (COLLECTIVELY THE “COMPANY,” “WE,” “US,” OR “OUR”) GOVERNING THE RELATIONSHIP BETWEEN YOU (“YOU,” ‘YOUR,” OR “USER”) AND THE COMPANY WITH RESPECT TO THE CLOSED BETA TEST AND LICENSED WORKS DIRECTLY RELATED THERETO (“TEST”). THE COMPANY PROVIDES ACCESS TO THE TEST SUBJECT TO YOUR COMPLIANCE WITH THIS AGREEMENT. THUS, IT IS IMPORTANT THAT YOU CAREFULLY REVIEW, AND ACCEPT THIS AGREEMENT AS A CONDITION TO USE. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT PARTICIPATE IN THE TEST.
TRADEMARK & COPYRIGHT INFORMATION
All content, software and materials relating thereto, are the property of Gearbox or its master licensor(s), and are protected by copyright, trademark, and other intellectual property rights (“Licensed Works”).
DISCLOSURE
As a condition to accessing and using software and services distributed by Company, User agrees to (a) never publicly disclose the Confidential Information of Company, (b) keep the Confidential Information of Company secured against unauthorized access, (c) never copy or reproduce the Confidential Information without express permission, and (d) never independently exploit the Confidential Information. It is presumed that all information exchanged is confidential in nature and will be treated as Confidential Information, whether or not reduced to writing or designated as confidential. Notwithstanding the foregoing, Confidential Information shall not include any trade secrets or information which (i) Company voluntarily made publicly known and generally available in the public domain prior to the time of disclosure; (ii) becomes publicly known and made generally available after disclosure through no action or inaction of the receiving party in violation of this Agreement; or (iii) is in the possession of the receiving party, without confidentiality restrictions, at the time of disclosure, as shown by the receiving party’s files and records; (iv) is lawfully obtained by the receiving party from a third party who is not known by the receiving party to have obligations of confidentiality regarding such information; (v) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession. Should either Party (or any of its affiliates) receive a request to disclose any Confidential Information, the party receiving such request(s) shall immediately provide the other party with prompt notice so that appropriate steps may be taken to protect against disclosure before it happens.
LIMITED LICENSE BY THE COMPANY
Company grants its authorized Users a limited, non-exclusive, non-sublicensable, non-transferable, non-assignable, terminable, revocable license to access and participate in the Test pursuant to the terms herein. Such license is subject to this Agreement and specifically conditioned upon User compliance with the Terms of Use.
Except as expressly permitted above, any use of any portion of the game without the prior written permission of the Company is strictly prohibited. Any such unauthorized use may also violate applicable laws, including copyright and trademark laws, applicable communications regulations and statutes, and the like. Unless explicitly stated herein, nothing in this Agreement may be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. The limited license provided by Company is revocable at any time, for any reason.
You represent and warrant that your Test use of the game will be consistent with this license and any other applicable agreements or policies, will not infringe or violate the rights of any other party or breach any contract or legal duty to any other parties, or otherwise violate any applicable law or Company standard. You expressly agree to indemnify Company against any liability to any party arising out of Test.
RELATIONSHIP
Nothing in this Agreement is intended to create any employment, partnership, agency, or joint venture relationship. Company retains all right, title and ownership to Confidential Information. Company does not grant User any license to Confidential Information.
REMEDIES
User agrees that Company would foreseeably suffer irreparable harm upon User’s breach of this Agreement. Accordingly, in addition to any other remedies available at law or in equity, Company will be entitled to such preliminary and permanent injunctive relief that Company deems necessary, with no bond required. User agrees to promptly reimburse Company for all costs and fees associated with the enforcement of this Agreement. For this reason, User agrees that Company shall be entitled to seek injunctive relief (temporary and/or permanent) to further prevent use and/or disclosure in addition to any other remedies available to it at law or in equity including damages, restitution, coercive remedies, declaratory remedies, and provisional remedies for breach of this Agreement.
VOID WHERE PROHIBITED
Not all products or services are available to all persons or in all geographic locations. Company reserves the right to limit, in its sole discretion, the provision and quantity of any product or service to any person or geographic area it so desires. All offers, products, terms and services are void where prohibited.
DISCLAIMER OF WARRANTIES
THE TEST IS PROVIDED BY COMPANY ON AN "AS IS" AND “AS AVAILABLE” BASIS. YOU EXPRESSLY ACKNOWLEDGE THAT YOU ARE PARTICIPATING IN THE TEST AT YOUR SOLE RISK. COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND—AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS AND WARRANTIES—INCLUDING BUT NOT LIMITED TO ANY WARRANTY REGARDING (1) THE PERFORMANCE OR AVAILABILITY OF THE TEST; (2) THE ABSENCE OF ANY VIRUSES OR OTHER HARMFUL CODE IN THE TEST; (3) THE RESULTS OBTAINED OR TO BE OBTAINED FROM THE TEST; AND (4) SATISFACTION OR DISSATISFACTION OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY AND LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUIET ENJOYMENT, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, IN CONNECTION WITH THE TEST, CONTENT AND GAME. CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, AND ACCORDINGLY, THE LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU. IF YOU ARE A CONSUMER, ANY STATUTORY RIGHTS THAT CANNOT BE WAIVED BY YOU ARE UNAFFECTED BY THIS SECTION. YOU AGREE AND ACKNOWLEDGE THAT THE LIMITATIONS OF WARRANTY PROVIDED IN THIS AGREEMENT ARE FAIR AND REASONABLE.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL COMPANY OR ITS LICENSORS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR LOST REVENUES OR PROFITS, ARISING OUT OF OR RELATED TO THE TEST, THE GAME OR THE CONTENT HEREIN OR THEREIN, WHETHER BASED ON WARRANTY, CONTRACT, TORT, DELICT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
WITHOUT LIMITATION OF THE FOREGOING, AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOUR SOLE REMEDY IN THE EVENT OF ANY DEFICIENCY, DEFECT, FAILURE, DISSATISFACTION, ERROR OR INTERRUPTION IN THE TEST SHALL BE TO DISCONTINUE USE OF THE TEST.
INDEMNIFICATION
You agree to indemnify, defend, and hold harmless Company and each of its officers, directors, employees, agents, licensors, and suppliers from and against all claims, losses, expenses, judgments, fines, penalties, liabilities, damages and costs, including reasonable attorneys’ fees, resulting from any violation by you of this Agreement or any breach of any representation or warranty by you. Company reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you.
DISPUTE RESOLUTION
This Agreement shall be exclusively governed by, and construed in accordance with, the laws of the State of Texas, notwithstanding its choice of law rules. For any and all legal disputes involving the terms of this Agreement, you agree to submit to the exclusive jurisdiction of the state and federal courts sitting in Dallas County, Texas, and waive any jurisdictional, venue, or inconvenient forum objections to such courts. You also agree to attempt in good faith to resolve any claim or dispute with Company before commencing arbitration. Any claim or dispute notice regarding the Test must be sent via email to dispute@gearboxsoftware.com as well as by U.S. Mail to Gearbox Software, LLC, ATTN: Legal Department, 5757 Main St., Suite 500, Frisco, Texas 75034, and must contain a written statement accurately setting forth (1) your name, address and contact information; (2) your email address; (3) all facts giving rise to the claim or dispute; and (4) the relief you seek.
You and Company further agree as follows: (1) any claim or dispute brought to enforce this Agreement must be commenced within one (1) year of the event giving rise to the alleged claim or dispute; (2) the prevailing party will be entitled to costs and attorneys’ fees; and (3) any claim or dispute must be brought individually and not consolidated as part of a group or class action complaint.
The only disputes not covered by this Agreement to negotiate informally and arbitrate are disputes enforcing, protecting, or concerning the validity of any intellectual property rights asserted by the Company, its partners and affiliates.
BINDING ARBITRATION & CLASS ACTION WAIVER
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS CONCERNING ANY DISPUTES REGARDING USE OF THE LICENSED WORKS OR TEST BETWEEN YOU AND THE COMPANY, ITS PARTNERS, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS.
(a) Dispute. As used in this Agreement, “Dispute” means any dispute, claim, demand, action, proceeding, or other controversy between you and the Company concerning the Test or Licensed Works, whether based in contract, warranty, tort (including, without limitation, fraud, misrepresentation, fraudulent inducement, concealment, omission, negligence, conversion, trespass, strict liability, and product liability), statute (including, without limitation, consumer protection and unfair competition statutes), regulation, ordinance, or any other legal or equitable basis or theory. “Dispute” will be given the broadest possible meaning allowable under law.
(b) Informal Resolution Option. You and Company agree to attempt in good faith to resolve any Dispute before commencing arbitration. Unless you and Company otherwise agree in writing, the time for informal resolution will be 60 days from the date on which you or the Company mails a notice of the Dispute (“Notice of Dispute”) as specified in Paragraph(c). You and Company agree that neither party will commence arbitration before the end of the 60-day period provided for informal resolution.
(c) Dispute Notices. Notice of any Dispute with Company regarding use of the Licensed Works or the Test must be sent via email to dispute@gearboxsoftware.com as well as by U.S. Mail to Gearbox Software, LLC, ATTN: LEGAL DEPT/ARBITRATION NOTICE, 5757 Main St., Suite 500, Frisco, Texas 75034, and must contain a written statement setting forth (1) your name, address, and contact information; (2) your email address; (3) all facts giving rise to the Dispute; and (4) the relief you seek. Notice of a Company Dispute with you will be sent to your registered email address and by U.S. Mail to the known mailing address.
(d) BINDING ARBITRATION. IF YOU LIVE IN THE UNITED STATES, YOU AND COMPANY AGREE THAT IF YOU AND COMPANY DO NOT RESOLVE ANY DISPUTE BY INFORMAL NEGOTIATION UNDER PARAGRAPH (b) ABOVE, ANY EFFORT TO RESOLVE THE DISPUTE WILL BE CONDUCTED EXCLUSIVELY BY BINDING ARBITRATION IN ACCORDANCE WITH THE ARBITRATION PROCEDURES IN PARAGRAPH (g) BELOW. YOU UNDERSTAND AND ACKNOWLEDGE THAT BY OPTING TO USE THE LICENSED WORKS OR THE TEST, YOU ARE AGREEING TO BINDING ARBITRATION WHICH FORFEITS ANY RIGHTS YOU MAY HAVE TO LITIGATE (OR PARTICIPATE IN AS A PARTY OR CLASS MEMBER) ALL DISPUTES IN COURT BEFORE A JUDGE OR JURY. INSTEAD, YOU UNDERSTAND AND AGREE THAT ALL DISPUTES WILL BE RESOLVED BEFORE A NEUTRAL ARBITRATOR, WHOSE AWARD (DECISION) WILL BE BINDING AND FINAL, EXCEPT FOR A LIMITED RIGHT OF APPEAL UNDER THE FEDERAL ARBITRATION ACT. ANY COURT WITH JURISDICTION OVER THE PARTIES MAY ENFORCE THE ARBITRATOR'S AWARD.
THE ONLY DISPUTES NOT COVERED BY THIS AGREEMENT TO NEGOTIATE INFORMALLY AND ARBITRATE ARE DISPUTES ENFORCING, PROTECTING, OR CONCERNING THE VALIDITY OF ANY OF COMPANY’S (OR ANY OF YOUR OR COMPANY’S LICENSORS’) INTELLECTUAL PROPERTY RIGHTS.
(e) Small Claims Option. Notwithstanding Paragraph (d), you may also have the right to litigate any Dispute regarding your use of the Licensed Works or the Test in small claims court, subject to satisfying all requirements of the small claims court, including any limitations on jurisdiction and the disputed amount at issue.
(f) CLASS ACTION WAIVER. YOU AND THE COMPANY AGREE THAT ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE, WHETHER IN ARBITRATION, IN COURT, OR OTHERWISE, WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS, AND THAT NEITHER YOU NOR COMPANY WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION, A REPRESENTATIVE ACTION, A COLLECTIVE ACTION, A PRIVATE ATTORNEY-GENERAL ACTION, OR IN ANY PROCEEDING IN WHICH YOU OR THE COMPANY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. YOU AND COMPANY FURTHER AGREE THAT NO ARBITRATION OR PROCEEDING WILL BE JOINED, CONSOLIDATED, OR COMBINED WITH ANOTHER ARBITRATION OR PROCEEDING WITHOUT THE PRIOR WRITTEN CONSENT OF YOU, COMPANY, AND ALL PARTIES TO ANY SUCH ARBITRATION OR PROCEEDING. YOU AND COMPANY AGREE THAT NO ARBITRATOR SHALL HAVE THE AUTHORITY TO FASHION A PROCEEDING AS A CLASS OR COLLECTIVE ACTION OR TO AWARD RELIEF TO A GROUP OR CLASS OF USERS IN ANY ARBITRATION PROCEEDING.
(g) Arbitration Procedure. Subject to the terms herein, the arbitration of any Dispute will be conducted by, and according to the rules and procedures of, the American Arbitration Association (the “AAA”). Information about the AAA, and how to commence arbitration before it, is available at www.adr.org or by calling 1-800-778-7879. The Commercial Arbitration Rules of the AAA will govern the arbitration. If you are an individual consumer and use the Licensed Works or Test for personal or household use, or if the value of the Dispute is $75,000 or less, the Supplementary Procedures for Consumer-Related Disputes of the AAA will also apply. If the AAA rules or procedures conflict with the provisions of this Agreement, the provisions of this Agreement will govern. You may request a telephonic or in-person hearing by following the AAA rules and procedures. Where the value of a Dispute is $10,000 or less, any hearing will be via electronic communications unless the arbitrator finds good cause to instead hold an in-person hearing.
(h) Arbitration Location. You agree to commence arbitration only in Dallas County, Texas. Company agrees to commence arbitration only in your county of residence.
(i) Costs & Fees. In any arbitration you commence, Company reserves its right to seek its expenses associated with the arbitration process. In a Dispute involving more than $75,000, the AAA rules will govern payment of filing and AAA administrative fees and arbitrator's fees and expenses. You and Company agree that fees and expenses are not counted in determining how much a Dispute involves.
(j) Enforceability. If the class action waiver (which includes a waiver of private attorney-general actions) in Paragraph (f) is found to be illegal or unenforceable as to all or some parts of a Dispute, whether by judicial, legislative, or other action, then this Section and its subsections will not apply to those parts. Instead, those parts of the Dispute will be severed and proceed in a Texas court of law, with the remaining parts proceeding in arbitration. The definition of “Dispute” in Paragraph (a) will still apply to this Agreement.
(k) Rejection Rights. If Company makes a material change to this Section (other than an administrative change or revision to the notice address in Paragraph (c)) while you are authorized to use the Licensed Works or the Test, you may seek to reject the change by sending the Company written notice (in English, please) within 30 days of the basis for rejection by email to privacy@gearboxsoftware.com and via U.S. Mail to the address contained in Paragraph (c). You agree that you will informally negotiate and arbitrate any Dispute between us in accordance with the most recent version of this Section prior to the change you rejected and that Company reserves all lawful rights irrespective of such rejection.
(l) Severability. If any provision of this Section and its subsections, other than Paragraph (f) (i.e., class action waiver), is found to be illegal or unenforceable, that provision shall be limited or eliminated only to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.
(m) Survival. The provisions of this Section will survive termination of this Agreement and the provision of the Test and Licensed Works.
TERMINATION
Company may terminate or suspend your access to the Test, without prior notice or liability, for any reason. Upon termination, your right to access the Test will immediately cease. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, limitations of liability and the like.
TESTER RESPONSIBILITIES
When the Test is completed or earlier on Publisher’s request, Tester will delete or otherwise destroy all Confidential Information and all copies of it and any related information that Tester received from Company, and on Company’s request will certify its destruction.
MISCELLANEOUS
In the event that any of the provisions of this Agreement are held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall only be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect. This Agreement, the Privacy Policy, and the Non-Disclosure Agreement, constitute the entire agreement between you and Company pertaining to the subject matter hereof, and any and all written or oral agreements heretofore existing between you and Company with respect to the subject matter of this Agreement are expressly canceled