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BETA LICENSE AGREEMENT
Welcome to MKXL PC Enhanced (the “Game”) Online Beta. WB Games Inc., (“WB”) is offering you access to play the version of the Game through a Beta Test program (the “Beta Program”) to, among other things, allow a limited number of people to test the features, capabilities and performance of the Game and provide feedback to WB. Please carefully read this Beta License Agreement, which includes the Privacy Policy [<http://www.warnerbros.com/privacy/policy.html>], incorporated here by this reference (collectively, the “Agreement”). By using the Game, you represent that you (or your parent or legal guardian on your behalf if you are a minor) have read, understood and agree to the Agreement in its entirety, including the Privacy Policy. If you, or in the case that you are a minor, your parent(s) or legal guardian(s) do not agree with any of the Agreement, including the Privacy Policy, then please do not use or access the Game.
1. Agreement
(A) You represent and warrant that you are not a principal, employee, agent, independent contractor, officer or director of a developer or publisher of video or computer games (other than Warner Bros and Time Warner). You represent and warrant that you are entering into this Agreement on a completely voluntary basis with no expectation of any form of compensation whatsoever other than what is expressly provided for in this Agreement.
(B) In connection with the Beta Program, WB may provide you, on a temporary basis, access to the pre-release copy of the Game. You understand and agree that the pre-release copy and all other Materials (as defined below) provided to you are confidential or proprietary information of WB and are not intended for public release. You agree as a condition of participating in the Beta Program to (i) not copy or reproduce the pre-release copy of the Game, the Materials or any other confidential or proprietary information of WB, and (ii) safeguard access to the pre-release copy of the Game, the Materials and confidential and proprietary information and prevent unauthorized access to, reproduction of, disclosure of and/or unauthorized use of, the pre-release copy of the Game, the Materials and confidential and proprietary information of WB.
(C) You will carry out the testing in your home and will not provide access to the Game to any other person. You will not disclose any part of the Game to any third party, including but not limited to any trade or consumer press, news agency or any competitor of WB. You agree that a breach of the above obligations may cause irreparable harm to WB, and WB is entitled to (in addition to any other remedies available to it), ex parte injunctive relief without bond to prevent the breach or threatened breach of your obligations. ONCE THE COMMERCIAL VERSION OF THE GAME HAS BEEN RELEASED BY WB TO THE PUBLIC, YOUR CONFIDENTIALITY OBLIGATION (AS SET FORTH HEREIN) SHALL CONTINUE ONLY WITH RESPECT TO INFORMATION CONCERNING THIS BETA PROGRAM, INCLUDING ALL FEEDBACK AND COMMENTS (WHETHER FROM YOU, ANY OTHER PARTICIPANT, OR FROM WB EMPLOYEES).
(D) As a tester, you are invited to play the Game for the sole purpose of evaluating the Game and identifying errors. Nothing in this Agreement or your participation in the Beta Program shall be construed as granting you any rights or privileges of any kind with respect to the Game or rights to receive any other compensation of any kind for your participation and does not constitute an employment agreement or offer of such an agreement between you and WB. The Game is provided on an "as is" and "as available" basis and WB makes no warranty to you of any kind, express or implied. WB may, in its sole discretion for any reason and at any time without notice during the Beta Program terminate your participation therein without any form of compensation due to you whatsoever for this termination.
(E) When playing the Game, you may accumulate earned points, achievement points, or other value or status indicators and items acquired by such points, all of which are non-refundable, non-tradable and have no monetary value. You acknowledge and agree that WB reserves the right to add, remove or reset any such points, or other data at any time during the testing process (without any notice to you), and such items may be reset when the Game completes the Beta Program. In this case, all player history and data will be erased and each player will return to novice status at the end of the Beta Program.
(F) By playing the Game, you agree that: (i) WB is not providing you with any hardware to run the Game; (ii) playing the Game is at your own risk and you know that the Game may include known or unknown bugs, (iii) any value or status indicators that you achieve through game play may be erased at any time, (iv) WB has no obligation to make the Game available for play without charge for any period of time, nor to make it available at all, (v) this is a closed beta test, you will keep all information about the Game confidential as stated above and not disclose such information to any other person; and (vi) you will not use the Game or the Materials for any purpose that is unlawful or prohibited by the terms and conditions of this Agreement.
(G) Beta Program accounts are non-transferable under any circumstances. You may not share your log-in or access information with anyone.
2. Use of Content/Intellectual Property
All Game software, code, design, text, scripts, images, photographs, illustrations, audio clips, video clips, artwork, graphic material, programs, routines, objects, files, data, characters/avatars (including all attributes comprising or associated with any player account), players, or other copyrightable elements, and the selection and arrangements thereof, and trademarks, service marks and trade names (the "Material") are the property of WB and/or its subsidiaries, affiliates, assigns, licensors or other respective owners and are protected, without limitation, pursuant to U.S. and foreign copyright and trademark laws.
WB hereby grants to you a personal, limited, non-exclusive, revocable, non-assignable and non-transferable license to use and display the Game and the Materials for noncommercial and personal use and solely for purposes permitted by, and in a manner consistent with the terms of this Agreement. You agree not to reproduce, modify, create derivative works from, display, perform, publish, distribute, disseminate, broadcast or circulate any Material to any third party (including, without limitation, the display or distribution of the Material via a third party website) without the express prior written consent of WB. Use of WB’s and/or its licensors' Material is only permitted with their express written permission. You further agree that you will not, under any circumstances: (a) in whole or in part, translate, reverse engineer, derive source code from, disassemble, decompile the Game; and (b) use cheats, automation software, hacks, or any unauthorized third party software to modify the Game.
Any and all rights not specifically and expressly granted by WB herein are reserved, and no license, permission or right of access or use not granted expressly herein shall be implied. WB reserves the right to suspend or terminate operation of the Game at any time for any reason without any notice or liability to you. WB has the right to change or discontinue any aspect or feature of the Game, including, but not limited to, content, hours of availability, and equipment needed for access or use, at any time without any notice or liability to you. Any use of the Game not expressly authorized by WB is strictly forbidden and will be regarded as an infringement of WB’s and/or its subsidiaries’, affiliates’, assigns’, licensors’ copyrights in and to the Game.
YOU ACKNOWLEDGE AND AGREE THAT NOTHING IN THIS AGREEMENT SHALL HAVE THE EFFECT OF TRANSFERRING THE OWNERSHIP OF ANY COPYRIGHTS, TRADEMARKS, SLOGANS, SERVICE MARKS, TRADE NAMES, TRADE DRESS OR OTHER PROPRIETARY RIGHTS IN THE GAME OR MATERIALS OR ANY PART THEREOF TO YOU OR ANY THIRD PARTY NOR TO AUTHORIZE YOU TO CREATE DERIVATIVE WORKS BASED THEREON. You undertake not to do any act or thing which is inconsistent with or which is likely in any way to prejudice such rights.
3. Confidentiality
Confidential Information Defined. "Confidential Information" shall mean: (a) any and all information relating to or contained in the Game, the Materials, and/or the Beta Program, including, without limitation, information relating to: (i) the performance, capabilities, bugs and contents of the Game, (ii) your feedback and comments, (iii) any other Beta Program participant’s feedback and comments, and (iv) any WB’s employee’s feedback and comments, (b) the terms of this Agreement, and (c) any and all information relating to the future or proposed games, services or business operations of WB and/or its subsidiaries or affiliates. Confidential Information includes, without limitation, all such information disclosed to you prior to your accepting this Agreement. You acknowledge and agree that the Confidential Information constitutes valuable trade secrets of WB and/or its subsidiaries and affiliates.
Confidentiality Obligation. You shall keep the Confidential Information in confidence and shall not publish, disclose, or otherwise make available, directly or indirectly, any Confidential Information to any third party. However, you may disclose the Confidential Information in accordance with a judicial or governmental order; provided, however, that you shall give WB reasonable written notice prior to disclosure and shall comply with any applicable protective order or equivalent.
4. Submissions
Our License to Your Content/Intellectual Property. By uploading or otherwise submitting, posting, uploading, communicating or otherwise distributing (collectively, "Distribute") any texts, messages, ideas, concepts, pitches, suggestions, stories, screenplays, treatments, feedback, comments, and other similar materials (collectively, “Solicited Submissions”) to WB via any feature or activity related to the Game for WB’s review or display, you (and your parents, if you're under age 18) automatically grant (or warrant that the owner of such rights has expressly granted) to WB a perpetual, royalty-free, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, and distribute such materials or incorporate such materials into any form, medium, or technology (now known or hereafter developed or devised) throughout the universe. In addition, you warrant that all so-called "moral rights" and other rights recognized throughout the world (including without limitation, the European Economic Community) in those materials have been waived.
Our long-standing company policy does not allow us to accept or consider submissions that are not expressly requested or enabled through Game or related website (“Unsolicited Submissions”) so please do not Distribute any Unsolicited Submissions. We want to avoid the possibility of future misunderstandings when projects developed by us or under our direction might seem to others to be similar to their own creative work. We therefore ask that you not distribute any Unsolicited Submission. In any event, you agree that any Solicited Submissions and/or Unsolicited Submissions (collectively, “Submissions”) you make are not being made in confidence or trust and that no confidential or fiduciary relationship is intended or created between you and us in any way, and that you have no expectation of any review, compensation or consideration of any type.
The provisions of this Agreement apply equally to Unsolicited Submissions and Solicited Submissions. WB, its licensees, licensors, distributors, agents, representatives and other authorized users shall be entitled to exploit and/or disclose all Unsolicited Submissions and Solicited Submissions, and we shall not be liable to you or to any person claiming through you for any exploitation or disclosure of these Submissions.
5. Diagnostic Information/Monitoring.
As a condition to participation in the Beta Program, you grant WB the right to upload certain system and software information from your computer system, mobile device and/or tablet during your participation in the Beta Program, solely for the purpose of evaluating and improving the Game. You further acknowledge that any and all Game character data is stored and is resident on WB’s or its vendors/affiliates servers, and any and all communications that you make within the Game or as part of the Beta Program (including, but not limited to, messages solely directed at another player or players) traverse through WB’s or its affiliates’ servers, may or may not be monitored by WB’s or its affiliates’ personnel and, accordingly, you have no expectation of privacy in any such communication.
6. Miscellaneous
No Warranty. THE GAME ARE BEING DELIVERED TO YOU ON AN “AS AVAILABLE” AND "AS IS" BASIS AND WB (INCLUDING ITS SUBSIDARIES AND AFFILIATES) MAKE NO WARRANTY AS TO ITS USE, RELIABILITY OR PERFORMANCE. WB DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE GAME. WB MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO NONINFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE. YOU ASSUME ALL RISK ASSOCIATED WITH THE QUALITY, PERFORMANCE, INSTALLATION AND USE OF THE GAME INCLUDING, BUT NOT LIMITED TO, THE RISKS OF PROGRAM ERRORS, DAMAGE TO EQUIPMENT, LOSS OF DATA OR UNAVAILABILITY OR INTERRUPTION OF OPERATIONS. YOU ARE SOLELY RESPONSIBLE FOR DETERMINING THE APPROPRIATENESS OF USE OF THE GAME AND ASSUME ALL RISKS ASSOCIATED WITH ITS USE.
We are not responsible or liable for any infections or contamination of your system, or delays, inaccuracies, errors, or omissions arising out of your use of the Game or with respect to the information and material contained in the Game. The entire risk as to the quality, accuracy, adequacy, completeness, correctness and validity of any material rests with you.
Limitation of Liability. IN NO EVENT WILL WB (OR ITS AFFILIATES OR SUBSIDIARIES) BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, EXPEMPLARY, LIQUIDATED SPECIAL, PUNITIVE, CONSEQUENTIAL, OR OTHER DAMAGES WHATSOEVER WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER THEORY OF LIABIILTY ARISING FROM YOUR USE OF THE GAME. IN NO EVENT WILL WB (OR ITS AFFILIATES OR SUBSIDIARIES) BE LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND ARISING OUT OF OR RELATING TO THE GAME OR ANY USE THEREOF, INCLUDING WITHOUT LIMITATION, ANY LOSS OF REVENUE, DATA, USE, OR PROFITS, DISRUPTION OF SERVICE OR CLAIMS OF A THIRD PARTY REGARDLESS OF WHETHER THE CLAIM IS BASED UPON ANY CONTRACT, TORT OR OTHER LEGAL OR EQUITABLE THEORY. Some States do not allow the exclusion or limitation of incidental or consequential damages, or the exclusion of implied warranties or limitations on how long an implied warranty lasts, so the above limitations or exclusions may not apply to you. Notwithstanding the foregoing, in no event shall our liability to you for any and all claims, damages, losses, and causes of action (whether in contract, tort or otherwise) exceed the amount paid by you, if any, for accessing and playing the Game.
Termination of Game/Content. The privileges granted to you under this Agreement will terminate immediately and automatically without notice from us, if, in our sole discretion, you fail to comply with this Agreement. Further, use of any software, code, device or other mechanism that allows automated gameplay, expedited gameplay, or other manipulation of gameplay or game client will result in immediate termination of your account. WB reserves the right, in its sole and absolute discretion, to determine what constitutes manipulation of gameplay or game client. WB also reserves the right to terminate your access to the Game at any time. Finally, WB reserves the right to change and modify the Game or its respective content or features in its sole discretion.
Indemnification. You agree to indemnify, defend and hold harmless, WB and its affiliates and subsidiaries, and its and their respective officers, directors, employees, agents, licensors, representatives from and against all losses, expenses, damages and costs, including reasonable attorneys' fees, resulting from any violation of this Agreement by you. WB reserves the right to assume, at its sole expense, the exclusive defense and control of any matter subject to indemnification by you, in which event you will fully cooperate with us in asserting any available defenses.
Disputes / Arbitration.
If a dispute arises between you and WB, you agree to provide us with notice of the dispute via email to legal@wb.com. Upon our receipt of the notice, the parties will have a period of sixty (60) days to attempt to resolve the dispute informally before either may resort to the other alternatives described in this Section.
With the exception of class actions (further discussed below), claims to enforce intellectual property rights (patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights), and claims of piracy or unauthorized use of Game, any dispute of any kind between you and WB arising under this Agreement or in connection with your use of Game (“Dispute”), if unresolved through informal discussions within sixty (60) days of receipt of notice, will be resolved by binding arbitration in the state or country in which you reside.
WB reserves the right to seek a preliminary injunction or temporary restraining order from a federal or state court in the United States. However, after such request for relief has been heard by such court, the remainder of the Dispute will be resolved by binding arbitration as set forth herein. WB reserves the right to demand any remedy for violations of this Agreement.
Any arbitrator proceeding over a Dispute will be a retired judge or justice of any state or federal court with substantial experience in the subject matter relevant to the matter in dispute and will follow California law in adjudicating the dispute. The parties agree that an arbitrator proceeding over a Dispute will be instructed, whenever practicable, to resolve threshold legal issues by way of motions filed by the parties. The parties also agree that they will follow JAMS’ streamlined arbitration rules and procedures then in effect in arbitrating any Dispute, except to the extent that the JAMS rules are inconsistent with this Section or the class action waiver described below. The JAMS rules are available at www.jamsadr.com.
The arbitrator, and not any federal, state or local court or agency, will have exclusive authority to resolve all Disputes arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement, including, but not limited to, any claim that all or any part of this Agreement is void or voidable, or whether a claim is subject to arbitration. The arbitrator will be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award will be written, and binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
If the claim you wish to assert against us is less than $10,000, then, at your election, (i) the arbitration may proceed in-person, by telephone, or by written briefs or (ii) you may in lieu of arbitration bring your claim in small claims court. If either party files a claim in state or federal court that is required by this Agreement to have been brought to arbitration, then the other party will be entitled to his/her/its reasonable attorneys' fees incurred in successfully compelling arbitration.
To the extent the filing fee for the arbitration exceeds the cost of the filing fee for a lawsuit, WB will pay the additional cost of the filing fee.
Class Action Waiver. You and WB agree that Disputes will be resolved on an individual basis, and that any claims brought under this Agreement must be brought in the parties' individual capacity, and not as a plaintiff or class member in any purported class, collective, or representative proceeding. The parties further agree that they will not participate in any class action (existing or future) brought by any third party arising under this agreement or in connection with the Game. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then such class action is not subject to arbitration and must be litigated in state or federal court in Los Angeles County in the State of California.
Modification. We reserve the right, at any time and from time to time, for any reason in our sole discretion, to change the terms of this Agreement. Once we modify the Agreement, these changes become effective immediately and if you use the Game after they become effective it will signify your agreement to be bound by the changes. You should check back frequently and review the terms of this Agreement regularly so you are aware of the most current rights and obligations pursuant to your agreement with us.
International Transfer of Information. As we operate globally, we may need to transfer to, and process personally identifiable information about you, on our servers in the United States and we will use such information consistent with our Privacy Policy and by using the Game, you expressly consent to our Privacy Policy [<http://www.warnerbros.com/privacy/policy.html>].
General. This Agreement contains the entire understanding of the parties hereto relating to the subject matter hereof, and cannot be changed or terminated orally. This Agreement constitutes the entire agreement between you and WB and governs your use of the Game. If any provision of this Agreement is determined by a court or arbitrator to be invalid or unenforceable, such determination shall not affect any other provision of the Agreement, each of which shall be construed and enforced as if such invalid or unenforceable provision were not contained herein. You may not assign this Agreement, and any assignment of this Agreement by you will be null and void. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default.
Written Agreement. The Agreement constitutes a written agreement between you and WB. A printed version of the Agreement, and of any notice given in electronic form related to this Agreement, shall be admissible in judicial or administrative proceedings to the same extent, and subject to the same restrictions, as other business contracts, documents, or records originally generated and maintained in printed form.
This Agreement was last modified on August 19, 2016 and is effective immediately.
Welcome to MKXL PC Enhanced (the “Game”) Online Beta. WB Games Inc., (“WB”) is offering you access to play the version of the Game through a Beta Test program (the “Beta Program”) to, among other things, allow a limited number of people to test the features, capabilities and performance of the Game and provide feedback to WB. Please carefully read this Beta License Agreement, which includes the Privacy Policy [<http://www.warnerbros.com/privacy/policy.html>], incorporated here by this reference (collectively, the “Agreement”). By using the Game, you represent that you (or your parent or legal guardian on your behalf if you are a minor) have read, understood and agree to the Agreement in its entirety, including the Privacy Policy. If you, or in the case that you are a minor, your parent(s) or legal guardian(s) do not agree with any of the Agreement, including the Privacy Policy, then please do not use or access the Game.
1. Agreement
(A) You represent and warrant that you are not a principal, employee, agent, independent contractor, officer or director of a developer or publisher of video or computer games (other than Warner Bros and Time Warner). You represent and warrant that you are entering into this Agreement on a completely voluntary basis with no expectation of any form of compensation whatsoever other than what is expressly provided for in this Agreement.
(B) In connection with the Beta Program, WB may provide you, on a temporary basis, access to the pre-release copy of the Game. You understand and agree that the pre-release copy and all other Materials (as defined below) provided to you are confidential or proprietary information of WB and are not intended for public release. You agree as a condition of participating in the Beta Program to (i) not copy or reproduce the pre-release copy of the Game, the Materials or any other confidential or proprietary information of WB, and (ii) safeguard access to the pre-release copy of the Game, the Materials and confidential and proprietary information and prevent unauthorized access to, reproduction of, disclosure of and/or unauthorized use of, the pre-release copy of the Game, the Materials and confidential and proprietary information of WB.
(C) You will carry out the testing in your home and will not provide access to the Game to any other person. You will not disclose any part of the Game to any third party, including but not limited to any trade or consumer press, news agency or any competitor of WB. You agree that a breach of the above obligations may cause irreparable harm to WB, and WB is entitled to (in addition to any other remedies available to it), ex parte injunctive relief without bond to prevent the breach or threatened breach of your obligations. ONCE THE COMMERCIAL VERSION OF THE GAME HAS BEEN RELEASED BY WB TO THE PUBLIC, YOUR CONFIDENTIALITY OBLIGATION (AS SET FORTH HEREIN) SHALL CONTINUE ONLY WITH RESPECT TO INFORMATION CONCERNING THIS BETA PROGRAM, INCLUDING ALL FEEDBACK AND COMMENTS (WHETHER FROM YOU, ANY OTHER PARTICIPANT, OR FROM WB EMPLOYEES).
(D) As a tester, you are invited to play the Game for the sole purpose of evaluating the Game and identifying errors. Nothing in this Agreement or your participation in the Beta Program shall be construed as granting you any rights or privileges of any kind with respect to the Game or rights to receive any other compensation of any kind for your participation and does not constitute an employment agreement or offer of such an agreement between you and WB. The Game is provided on an "as is" and "as available" basis and WB makes no warranty to you of any kind, express or implied. WB may, in its sole discretion for any reason and at any time without notice during the Beta Program terminate your participation therein without any form of compensation due to you whatsoever for this termination.
(E) When playing the Game, you may accumulate earned points, achievement points, or other value or status indicators and items acquired by such points, all of which are non-refundable, non-tradable and have no monetary value. You acknowledge and agree that WB reserves the right to add, remove or reset any such points, or other data at any time during the testing process (without any notice to you), and such items may be reset when the Game completes the Beta Program. In this case, all player history and data will be erased and each player will return to novice status at the end of the Beta Program.
(F) By playing the Game, you agree that: (i) WB is not providing you with any hardware to run the Game; (ii) playing the Game is at your own risk and you know that the Game may include known or unknown bugs, (iii) any value or status indicators that you achieve through game play may be erased at any time, (iv) WB has no obligation to make the Game available for play without charge for any period of time, nor to make it available at all, (v) this is a closed beta test, you will keep all information about the Game confidential as stated above and not disclose such information to any other person; and (vi) you will not use the Game or the Materials for any purpose that is unlawful or prohibited by the terms and conditions of this Agreement.
(G) Beta Program accounts are non-transferable under any circumstances. You may not share your log-in or access information with anyone.
2. Use of Content/Intellectual Property
All Game software, code, design, text, scripts, images, photographs, illustrations, audio clips, video clips, artwork, graphic material, programs, routines, objects, files, data, characters/avatars (including all attributes comprising or associated with any player account), players, or other copyrightable elements, and the selection and arrangements thereof, and trademarks, service marks and trade names (the "Material") are the property of WB and/or its subsidiaries, affiliates, assigns, licensors or other respective owners and are protected, without limitation, pursuant to U.S. and foreign copyright and trademark laws.
WB hereby grants to you a personal, limited, non-exclusive, revocable, non-assignable and non-transferable license to use and display the Game and the Materials for noncommercial and personal use and solely for purposes permitted by, and in a manner consistent with the terms of this Agreement. You agree not to reproduce, modify, create derivative works from, display, perform, publish, distribute, disseminate, broadcast or circulate any Material to any third party (including, without limitation, the display or distribution of the Material via a third party website) without the express prior written consent of WB. Use of WB’s and/or its licensors' Material is only permitted with their express written permission. You further agree that you will not, under any circumstances: (a) in whole or in part, translate, reverse engineer, derive source code from, disassemble, decompile the Game; and (b) use cheats, automation software, hacks, or any unauthorized third party software to modify the Game.
Any and all rights not specifically and expressly granted by WB herein are reserved, and no license, permission or right of access or use not granted expressly herein shall be implied. WB reserves the right to suspend or terminate operation of the Game at any time for any reason without any notice or liability to you. WB has the right to change or discontinue any aspect or feature of the Game, including, but not limited to, content, hours of availability, and equipment needed for access or use, at any time without any notice or liability to you. Any use of the Game not expressly authorized by WB is strictly forbidden and will be regarded as an infringement of WB’s and/or its subsidiaries’, affiliates’, assigns’, licensors’ copyrights in and to the Game.
YOU ACKNOWLEDGE AND AGREE THAT NOTHING IN THIS AGREEMENT SHALL HAVE THE EFFECT OF TRANSFERRING THE OWNERSHIP OF ANY COPYRIGHTS, TRADEMARKS, SLOGANS, SERVICE MARKS, TRADE NAMES, TRADE DRESS OR OTHER PROPRIETARY RIGHTS IN THE GAME OR MATERIALS OR ANY PART THEREOF TO YOU OR ANY THIRD PARTY NOR TO AUTHORIZE YOU TO CREATE DERIVATIVE WORKS BASED THEREON. You undertake not to do any act or thing which is inconsistent with or which is likely in any way to prejudice such rights.
3. Confidentiality
Confidential Information Defined. "Confidential Information" shall mean: (a) any and all information relating to or contained in the Game, the Materials, and/or the Beta Program, including, without limitation, information relating to: (i) the performance, capabilities, bugs and contents of the Game, (ii) your feedback and comments, (iii) any other Beta Program participant’s feedback and comments, and (iv) any WB’s employee’s feedback and comments, (b) the terms of this Agreement, and (c) any and all information relating to the future or proposed games, services or business operations of WB and/or its subsidiaries or affiliates. Confidential Information includes, without limitation, all such information disclosed to you prior to your accepting this Agreement. You acknowledge and agree that the Confidential Information constitutes valuable trade secrets of WB and/or its subsidiaries and affiliates.
Confidentiality Obligation. You shall keep the Confidential Information in confidence and shall not publish, disclose, or otherwise make available, directly or indirectly, any Confidential Information to any third party. However, you may disclose the Confidential Information in accordance with a judicial or governmental order; provided, however, that you shall give WB reasonable written notice prior to disclosure and shall comply with any applicable protective order or equivalent.
4. Submissions
Our License to Your Content/Intellectual Property. By uploading or otherwise submitting, posting, uploading, communicating or otherwise distributing (collectively, "Distribute") any texts, messages, ideas, concepts, pitches, suggestions, stories, screenplays, treatments, feedback, comments, and other similar materials (collectively, “Solicited Submissions”) to WB via any feature or activity related to the Game for WB’s review or display, you (and your parents, if you're under age 18) automatically grant (or warrant that the owner of such rights has expressly granted) to WB a perpetual, royalty-free, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, and distribute such materials or incorporate such materials into any form, medium, or technology (now known or hereafter developed or devised) throughout the universe. In addition, you warrant that all so-called "moral rights" and other rights recognized throughout the world (including without limitation, the European Economic Community) in those materials have been waived.
Our long-standing company policy does not allow us to accept or consider submissions that are not expressly requested or enabled through Game or related website (“Unsolicited Submissions”) so please do not Distribute any Unsolicited Submissions. We want to avoid the possibility of future misunderstandings when projects developed by us or under our direction might seem to others to be similar to their own creative work. We therefore ask that you not distribute any Unsolicited Submission. In any event, you agree that any Solicited Submissions and/or Unsolicited Submissions (collectively, “Submissions”) you make are not being made in confidence or trust and that no confidential or fiduciary relationship is intended or created between you and us in any way, and that you have no expectation of any review, compensation or consideration of any type.
The provisions of this Agreement apply equally to Unsolicited Submissions and Solicited Submissions. WB, its licensees, licensors, distributors, agents, representatives and other authorized users shall be entitled to exploit and/or disclose all Unsolicited Submissions and Solicited Submissions, and we shall not be liable to you or to any person claiming through you for any exploitation or disclosure of these Submissions.
5. Diagnostic Information/Monitoring.
As a condition to participation in the Beta Program, you grant WB the right to upload certain system and software information from your computer system, mobile device and/or tablet during your participation in the Beta Program, solely for the purpose of evaluating and improving the Game. You further acknowledge that any and all Game character data is stored and is resident on WB’s or its vendors/affiliates servers, and any and all communications that you make within the Game or as part of the Beta Program (including, but not limited to, messages solely directed at another player or players) traverse through WB’s or its affiliates’ servers, may or may not be monitored by WB’s or its affiliates’ personnel and, accordingly, you have no expectation of privacy in any such communication.
6. Miscellaneous
No Warranty. THE GAME ARE BEING DELIVERED TO YOU ON AN “AS AVAILABLE” AND "AS IS" BASIS AND WB (INCLUDING ITS SUBSIDARIES AND AFFILIATES) MAKE NO WARRANTY AS TO ITS USE, RELIABILITY OR PERFORMANCE. WB DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE GAME. WB MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO NONINFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE. YOU ASSUME ALL RISK ASSOCIATED WITH THE QUALITY, PERFORMANCE, INSTALLATION AND USE OF THE GAME INCLUDING, BUT NOT LIMITED TO, THE RISKS OF PROGRAM ERRORS, DAMAGE TO EQUIPMENT, LOSS OF DATA OR UNAVAILABILITY OR INTERRUPTION OF OPERATIONS. YOU ARE SOLELY RESPONSIBLE FOR DETERMINING THE APPROPRIATENESS OF USE OF THE GAME AND ASSUME ALL RISKS ASSOCIATED WITH ITS USE.
We are not responsible or liable for any infections or contamination of your system, or delays, inaccuracies, errors, or omissions arising out of your use of the Game or with respect to the information and material contained in the Game. The entire risk as to the quality, accuracy, adequacy, completeness, correctness and validity of any material rests with you.
Limitation of Liability. IN NO EVENT WILL WB (OR ITS AFFILIATES OR SUBSIDIARIES) BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, EXPEMPLARY, LIQUIDATED SPECIAL, PUNITIVE, CONSEQUENTIAL, OR OTHER DAMAGES WHATSOEVER WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER THEORY OF LIABIILTY ARISING FROM YOUR USE OF THE GAME. IN NO EVENT WILL WB (OR ITS AFFILIATES OR SUBSIDIARIES) BE LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND ARISING OUT OF OR RELATING TO THE GAME OR ANY USE THEREOF, INCLUDING WITHOUT LIMITATION, ANY LOSS OF REVENUE, DATA, USE, OR PROFITS, DISRUPTION OF SERVICE OR CLAIMS OF A THIRD PARTY REGARDLESS OF WHETHER THE CLAIM IS BASED UPON ANY CONTRACT, TORT OR OTHER LEGAL OR EQUITABLE THEORY. Some States do not allow the exclusion or limitation of incidental or consequential damages, or the exclusion of implied warranties or limitations on how long an implied warranty lasts, so the above limitations or exclusions may not apply to you. Notwithstanding the foregoing, in no event shall our liability to you for any and all claims, damages, losses, and causes of action (whether in contract, tort or otherwise) exceed the amount paid by you, if any, for accessing and playing the Game.
Termination of Game/Content. The privileges granted to you under this Agreement will terminate immediately and automatically without notice from us, if, in our sole discretion, you fail to comply with this Agreement. Further, use of any software, code, device or other mechanism that allows automated gameplay, expedited gameplay, or other manipulation of gameplay or game client will result in immediate termination of your account. WB reserves the right, in its sole and absolute discretion, to determine what constitutes manipulation of gameplay or game client. WB also reserves the right to terminate your access to the Game at any time. Finally, WB reserves the right to change and modify the Game or its respective content or features in its sole discretion.
Indemnification. You agree to indemnify, defend and hold harmless, WB and its affiliates and subsidiaries, and its and their respective officers, directors, employees, agents, licensors, representatives from and against all losses, expenses, damages and costs, including reasonable attorneys' fees, resulting from any violation of this Agreement by you. WB reserves the right to assume, at its sole expense, the exclusive defense and control of any matter subject to indemnification by you, in which event you will fully cooperate with us in asserting any available defenses.
Disputes / Arbitration.
If a dispute arises between you and WB, you agree to provide us with notice of the dispute via email to legal@wb.com. Upon our receipt of the notice, the parties will have a period of sixty (60) days to attempt to resolve the dispute informally before either may resort to the other alternatives described in this Section.
With the exception of class actions (further discussed below), claims to enforce intellectual property rights (patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights), and claims of piracy or unauthorized use of Game, any dispute of any kind between you and WB arising under this Agreement or in connection with your use of Game (“Dispute”), if unresolved through informal discussions within sixty (60) days of receipt of notice, will be resolved by binding arbitration in the state or country in which you reside.
WB reserves the right to seek a preliminary injunction or temporary restraining order from a federal or state court in the United States. However, after such request for relief has been heard by such court, the remainder of the Dispute will be resolved by binding arbitration as set forth herein. WB reserves the right to demand any remedy for violations of this Agreement.
Any arbitrator proceeding over a Dispute will be a retired judge or justice of any state or federal court with substantial experience in the subject matter relevant to the matter in dispute and will follow California law in adjudicating the dispute. The parties agree that an arbitrator proceeding over a Dispute will be instructed, whenever practicable, to resolve threshold legal issues by way of motions filed by the parties. The parties also agree that they will follow JAMS’ streamlined arbitration rules and procedures then in effect in arbitrating any Dispute, except to the extent that the JAMS rules are inconsistent with this Section or the class action waiver described below. The JAMS rules are available at www.jamsadr.com.
The arbitrator, and not any federal, state or local court or agency, will have exclusive authority to resolve all Disputes arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement, including, but not limited to, any claim that all or any part of this Agreement is void or voidable, or whether a claim is subject to arbitration. The arbitrator will be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award will be written, and binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
If the claim you wish to assert against us is less than $10,000, then, at your election, (i) the arbitration may proceed in-person, by telephone, or by written briefs or (ii) you may in lieu of arbitration bring your claim in small claims court. If either party files a claim in state or federal court that is required by this Agreement to have been brought to arbitration, then the other party will be entitled to his/her/its reasonable attorneys' fees incurred in successfully compelling arbitration.
To the extent the filing fee for the arbitration exceeds the cost of the filing fee for a lawsuit, WB will pay the additional cost of the filing fee.
Class Action Waiver. You and WB agree that Disputes will be resolved on an individual basis, and that any claims brought under this Agreement must be brought in the parties' individual capacity, and not as a plaintiff or class member in any purported class, collective, or representative proceeding. The parties further agree that they will not participate in any class action (existing or future) brought by any third party arising under this agreement or in connection with the Game. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then such class action is not subject to arbitration and must be litigated in state or federal court in Los Angeles County in the State of California.
Modification. We reserve the right, at any time and from time to time, for any reason in our sole discretion, to change the terms of this Agreement. Once we modify the Agreement, these changes become effective immediately and if you use the Game after they become effective it will signify your agreement to be bound by the changes. You should check back frequently and review the terms of this Agreement regularly so you are aware of the most current rights and obligations pursuant to your agreement with us.
International Transfer of Information. As we operate globally, we may need to transfer to, and process personally identifiable information about you, on our servers in the United States and we will use such information consistent with our Privacy Policy and by using the Game, you expressly consent to our Privacy Policy [<http://www.warnerbros.com/privacy/policy.html>].
General. This Agreement contains the entire understanding of the parties hereto relating to the subject matter hereof, and cannot be changed or terminated orally. This Agreement constitutes the entire agreement between you and WB and governs your use of the Game. If any provision of this Agreement is determined by a court or arbitrator to be invalid or unenforceable, such determination shall not affect any other provision of the Agreement, each of which shall be construed and enforced as if such invalid or unenforceable provision were not contained herein. You may not assign this Agreement, and any assignment of this Agreement by you will be null and void. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default.
Written Agreement. The Agreement constitutes a written agreement between you and WB. A printed version of the Agreement, and of any notice given in electronic form related to this Agreement, shall be admissible in judicial or administrative proceedings to the same extent, and subject to the same restrictions, as other business contracts, documents, or records originally generated and maintained in printed form.
This Agreement was last modified on August 19, 2016 and is effective immediately.