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Daybreak End User License Agreement
Last Updated on February 21, 2018
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.
1. SERVICES AND CONTENT OF THE GAME
1.1 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 Interactive 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 Interactive Entertainment America.
For your use of the Software and any Game(s) on the PlayStation™Network Platform in the Sony Interactive Entertainment Network Europe Limited region: Any content purchased in an in-game store will be purchased from Sony Interactive Entertainment Network Europe Limited ("SIENE") and be subject to PlayStation™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.
1.2 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.
1.3 Software and Gameplay.
1.3.1 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.
1.3.2 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.
1.3.3 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.
1.4 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.
1.5 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.
2. 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.
3. OWNERSHIP
3.1 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.
3.2 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.
4. 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:
4.1 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;
4.2 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;
4.3 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;
4.4 create, facilitate, or maintain any unauthorized connection to any Game(s);
4.5 mine, decrypt, or modify any data transmitted between any client and server of any Game(s);
4.6 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);
4.7 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;
4.8 take any action which imposes an unreasonable or disproportionately large load on our infrastructure;
4.9 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;
4.10 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
4.11 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).
5. 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.
6. 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.
7. 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.
8. TERMINATION
8.1 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:
8.1.1 you violate any provision of this Agreement or the Terms of Service;
8.1.2 you infringe any Intellectual Property Rights of any third party;
8.1.3 we are unable to verify or authenticate any information you provide to us;
8.1.4 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
8.1.5 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.
8.2 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.
8.3 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.
9. 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.
10. 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 AGAINST 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.
11. 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.
12. DISPUTE RESOLUTION; ARBITRATION; CLASS ACTION WAIVER
12.1 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 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.
12.2 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.
12.3 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 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 www.adr.org . 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.
13. GENERAL TERMS
13.1 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.
13.2 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.
13.3 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.
13.4 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.
13.5 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.
13.6 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.
13.7 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.
13.8 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.
13.9 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).
13.10 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.
13.11 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.
Last Updated on February 21, 2018
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.
1. SERVICES AND CONTENT OF THE GAME
1.1 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 Interactive 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 Interactive Entertainment America.
For your use of the Software and any Game(s) on the PlayStation™Network Platform in the Sony Interactive Entertainment Network Europe Limited region: Any content purchased in an in-game store will be purchased from Sony Interactive Entertainment Network Europe Limited ("SIENE") and be subject to PlayStation™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.
1.2 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.
1.3 Software and Gameplay.
1.3.1 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.
1.3.2 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.
1.3.3 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.
1.4 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.
1.5 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.
2. 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.
3. OWNERSHIP
3.1 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.
3.2 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.
4. 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:
4.1 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;
4.2 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;
4.3 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;
4.4 create, facilitate, or maintain any unauthorized connection to any Game(s);
4.5 mine, decrypt, or modify any data transmitted between any client and server of any Game(s);
4.6 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);
4.7 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;
4.8 take any action which imposes an unreasonable or disproportionately large load on our infrastructure;
4.9 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;
4.10 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
4.11 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).
5. 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.
6. 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.
7. 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.
8. TERMINATION
8.1 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:
8.1.1 you violate any provision of this Agreement or the Terms of Service;
8.1.2 you infringe any Intellectual Property Rights of any third party;
8.1.3 we are unable to verify or authenticate any information you provide to us;
8.1.4 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
8.1.5 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.
8.2 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.
8.3 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.
9. 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.
10. 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 AGAINST 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.
11. 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.
12. DISPUTE RESOLUTION; ARBITRATION; CLASS ACTION WAIVER
12.1 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 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.
12.2 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.
12.3 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 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 www.adr.org . 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.
13. GENERAL TERMS
13.1 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.
13.2 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.
13.3 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.
13.4 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.
13.5 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.
13.6 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.
13.7 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.
13.8 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.
13.9 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).
13.10 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.
13.11 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.