THIS DOCUMENT CONTAINS IMPORTANT TERMS AND CONDITIONS APPLICABLE TO YOUR ACCESS AND USE OF OUR WEBSITE AND SERVICES. PLEASE READ THESE TERMS CAREFULLY BEFORE YOU START TO USE THE WEBSITE AND OUR SERVICES. BY ACCESSING OR USING THIS WEBSITE OR DOWNLOADING ANY GAMES, YOU AGREE TO BE BOUND BY THE TERMS DESCRIBED HEREIN. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT USE THIS WEBSITE OR THE GAMES
Welcome to properties of Gearbox, which are operated by Gearbox Publishing San Francisco, Inc. (“Gearbox”, “We” or “Us”). This document contains the terms and conditions (“Terms”) for governing your access to, and use of, the Gearbox websites located at sf.gearboxpublishing.com, www.arcgames.com, www.torchlight1.com, www.torchlight2.com, www.torchlight3.com, www.haveanicedeath.com, www.hyperlightbreaker.com, www.iplayufogame.com and www.remnantgame.com (or any subsequent URL which may replace them) and all officially associated micro-sites, mobile sites, subdomains, directories and subdirectories of such sites (collectively, the “Website”), any games and game platforms, clients software, downloaded software or servers operated by Gearbox through the Website or otherwise supported by Gearbox on the Website (the “Games”), and all features, functions, software and services offered through this Website. The Website, the Games and the features, functions, software and services offered through this Website collectively constitute the “Service.”
1. Legal Agreement
1.1 These Terms constitute a binding legal agreement (“Agreement”) between you and Gearbox Publishing San Francisco, Inc., a California corporation.
1.2 In this Agreement, the terms “we/us/our” means Gearbox Publishing San Francisco, Inc. “You/your” means you as a user of the Service.
1.3 The Terms described herein apply to you if you visit our Website, use our Service and use the Games. Before using the Service or any part of the Service, you must review and agree to these Terms.
1.4 Your using the Service shall constitute your agreement to accept and be bound by the terms and conditions described in these Terms, and your agreement to comply with any Rules of Conduct posted on the Website or otherwise provided to you by Gearbox (the “Rules of Conduct”) applicable to our Game software or other software that we may provide in connection with the Service. All user identities created on the Website are governed by these Terms. This includes, but is not limited to, proper in-game and out-of-game conduct relating to the Game.
1.5 If you do not agree with any of the Terms, please do not access or otherwise use the Service.
1.6 You hereby represent that you have the legal capacity to enter into this Agreement and you are not barred from receiving the Service under the laws of the United States or any other applicable jurisdiction.
1.7 You understand and agree that the Service may include service announcements and administrative messages and you may not have the right to opt out of receiving them.
1.8 This Agreement is in addition to, and does not in any way replace or supplant any additional terms and conditions that may apply when you use or purchase certain other Gearbox products, services, affiliate services, third-party content or third-party software. In the event the content of this Agreement is contrary to one or more provisions of any other specific agreement or terms or conditions, the provision(s) of the specific Agreement, terms or conditions shall prevail.
2. Changes to terms
2.1 We may amend and/or modify these Terms and the Rules of Conduct at any time in our sole discretion.
2.2 Amendments and modifications to the Terms will be published on the Website and shall be effective immediately after publishing them on the Website, or a copy of amendments or modifications will otherwise be provided to you. You waive any right you may have to receive specific notice of such changes or modifications.
2.3 You are responsible for checking the Terms and the Rules of Conduct periodically so you will be familiar with their contents as they may be amended or modified from time to time. By continuing to use any portion of the Service, you are already signifying your acceptance of any revised or updated terms. If you do not agree to the amended terms, you must stop using the Service.
3. Description
3.1 Gearbox provides free-to-play, multi-player online Games to registered users and related features, functions and services available through the Website, such as community forums and other interactive areas. To access our Games, you may be required to download and install certain client software, and such access entails the use of hardware, software and Internet access (which you acknowledge play a crucial role in your user experience).
3.2 You agree that we are not responsible for any hardware, software or Internet access, quality, suitability or unavailability issues. We do not provide Internet access, and you are responsible for all fees relating to telephone and Internet access charges along with all necessary equipment, servicing, repair or correction incurred in maintaining connectivity to the servers.
4. Account
4.1 You may be required to create an account (an “Account”) to access our Service and to use certain features and functions of our Service.
4.2 IN ORDER TO USE OUR SERVICES, YOU NEED TO MEET CERTAIN AGE REQUIREMENTS STIPULATED IN THE JURISDICTION OF YOUR RESIDENCE, AND YOU HAVE TO HAVE THE POWER TO ENTER A BINDING AGREEMENT WITH US UNDER ANY APPLICABLE LAWS. For example, if you reside in the United States, you must be 13 years of age or older to create an Account and you must be 18 years of age or older to enter into a contract independently. If you are 13 or over, but are under the legal age to enter into a contract in the jurisdiction you reside in (“Legal Age”) and/or under 18 years of age, we require that you review these Terms with your parents or legal guardian to ensure they read and agree to them. If you are the parent or legal guardian of a user of our Website, Games and/or Service and you have questions about the Terms, please contact us at tos@gearboxsf.com.
4.3 By creating an Account or otherwise using the Service, you represent that you are of Legal Age or at least age 18 and agree to these Terms, or that you are over 13 years old and your parents or legal guardian have read and agreed to these Terms, and you understand and agree that we are relying upon that representation in allowing you to use the Service.
4.4 Notwithstanding the above, subject to applicable laws in certain jurisdictions, certain portions of our Service may contain mature contents not suitable for anyone younger than the Legal Age or 18 years of age. We will require that you confirm that you are of Legal Age or 18 years of age or older to access such content. If you enter any portion of the Service which is intended for or is marked for mature audiences only, you are certifying that you are of Legal Age or at least 18 years old and have the legal right to access such content. We shall not be responsible in any way for your failure to accurately confirm your age per the terms hereunder.
4.5 When creating an Account and a user identity (“User ID”) you agree to (i) provide true, accurate, current and complete information as requested in the required fields (the “Account Information”) and (ii) promptly maintain and update such User ID and your Account Information to keep it true, accurate, current and complete.
4.6 You, as creator of your Account and User ID, are solely responsible for your User ID and the profile picture uploaded in your User ID profile (the User ID and the profile picture in the User ID are collectively referred to as “User ID”). We will not tolerate offensive or obscene User IDs. If a User ID violates any part of these Terms, we may immediately, temporarily, or permanently ban such a User ID, remove or disabling of access to the problematic pictures, words or phrases, or disable access to such User IDs with or without notice. Removal or disabling of access to such User IDs shall be at our sole discretion, and we do not promise to remove or disable access to any specific User IDs.
4.7 Your Account may only to be used by yourself. We are not responsible for any misuse of your Account or your User ID, you agree to accept all risks of misuse of and unauthorized access to your Account and to hold us and our affiliates harmless from and against any misuse use of your Account or your User ID, including, but not limited to, improper or unauthorized use by someone to whom you revealed your password.
4.8 Please note that you are responsible for maintaining the confidentiality and security of your User ID and password at all times, and you agree to notify us if your password is lost, stolen, or disclosed to an unauthorized third party, or otherwise may have been compromised. You are solely responsible for all activities and transactions that occur under your Account, and we are not responsible for any misuse of your account, including without limitation in the event that your password is stolen or revealed to a third party and/or used for transactions. You agree to immediately notify us of any misuse of your Account or any other breach of security in relation to the Service known to you. We provide you with choice to change your password in order to safeguard your Account.
4.9 Your Account may be terminated if you do not use your Account within twelve months after the date that it was created or for any continuous period of twelve months. If you do not use your Account for any continuous period of twelve or more months, it may be terminated by us at our sole discretion.
4.10 We will attempt to notify you by email before we terminate your Account, unless we are terminating, deactivating or deleting your Account or User ID for a violation of these Terms or discontinuation of the Service. However, we will not be liable in any manner for any failure to give notice. If you advise us within five days of the notice that you want to keep your Account active, we will not terminate it. If you do not so notify us, your Account will be terminated and may be permanently deleted, along with your User ID, records, ranks and service information.
4.11 Termination of your Account also entails the termination of the license to use the Service and Proprietary Materials, or any part thereof.
4.12 Please note that regardless of any notice, we reserve the right to discontinue the Service or to terminate or suspend your Account at any time in our sole discretion, for any reason, or for no reason to the extent permissible under applicable law.
5. Proprietary Rights
5.1 The Website, the Games, and the Service and all Intellectual Property Rights therein are the property of Gearbox or Gearbox’s licensors, which are protected by U.S. and international law including but not limited to copyright laws. All current and future rights, interests and title in and to the Website, the Games, and the Service, all features and content thereof, including without limitation any user accounts, titles, computer code (source code, object code and preparatory design materials), files, game software, client and server software, tools, patches, updates, themes, objects, characters, character names, stories, storylines, objects, content, text, knowhow, dialogue, catch phrases, themes, locations, concepts, artwork, designs, graphics, pictures, video, animation, sounds, music, musical, compositions, sound recordings, audio-visual effects, information, data, documentation, “applets”, chat transcripts, character profile information, game play, recordings, in game items, in game activities, coin and Zen, artwork and compositions created by Artificial Intelligence (“AI created works”), and the selection and arrangement thereof (collectively the “Proprietary Materials”) are the proprietary property or interests of Gearbox or its licensors and are protected by U.S. and international copyright and other proprietary rights laws.
5.2 “Intellectual Property Rights” means and includes, without limitation, copyrights, patents, trademarks, moral rights, and trade secrets, all other intellectual property rights and intangible legal rights or interests recognized in any country or jurisdiction in the world, and including without limitation: (a) any concept, computer program, content, customer data, customer information, customer list, data, design, development, discovery, documentation, drawing, improvement, information, list, manual, mask work, material, model, note, object code, plan, procedure, product, prototype, report, schematic, software, source code, and specification, (b) works, works of authorship, and moral rights, including without limitation, any right to claim authorship of a work, any right to object to any distortion or other modification of a work, and any similar right, existing under the law of any country in the world, or under any treaty, (c) inventions, invention disclosures, know how, letters patent, means, methods, patents, provisional patent applications, provisional patents, techniques, and all foreign counterparts and foreign equivalents of same, and any and all divisions, continuations, continuations-in-part, revisions, renewals, reissues, extensions, and like of the foregoing, (d) service marks, trademarks, trade dress, and trade names, (e) trade secrets, with such term “trade secrets” being given the broadest possible definition, interpretation or meaning, and (f) any other similar rights, in each case, existing under the law of any country in the world, or under any treaty, all on a worldwide basis.
5.3 In the event that you make any modifications, adaptations or derivative works of any kind to the Proprietary Materials (the “Modifications”) notwithstanding paragraph 10.2, whether authorized or unauthorized, you understand and agree that you shall retain no rights of any kind in and to such Modifications and that all rights therein shall belong solely to Gearbox. You hereby irrevocably assign (and agree to assign) and transfer to Gearbox, free and clear of any restrictions or encumbrances, without any compensation beyond the consideration provided herein, any and all rights, title and interest that you may have in and to such Modifications. This assignment includes, without limitation, all worldwide copyrights and patent rights in and to such Modifications and the right to sue for past and future infringements. You hereby agree to cooperate with Gearbox in connection with the protection thereof and shall execute such documents (like further deed of transfer or assignment), if any, as needed by Gearbox to perfect its rights hereunder. You waive and agree not to assert any moral or similar rights you may have in the Modifications for as far as is possible by applicable mandatory law.
5.4 Further, to the extent the assignments mentioned in paragraph 5.3 do not transfer any ownership interest in or to the Modifications, you expressly grant to Gearbox, us and our licensors all consents, clearances and a non-exclusive, royalty-free, perpetual, worldwide, complete, fully sub licensable and irrevocable right to make, use, sell, offer for sale, import or otherwise exploit, re-post, publish, use, quote, adapt, translate, archive, store, reproduce, modify, create derivative works from, syndicate, license, print, sublicense, distribute, transmit, broadcast, otherwise communicate, and publicly display and perform the Modifications, or any portion thereof, in any manner or form and in any medium or forum, whether now known or hereafter devised, without notice, acknowledgment or compensation to you. You waive and agree not to assert any moral or similar rights you may have in the Modifications for as far as possible by applicable mandatory law.
6. Privacy
6.1 Please review our Privacy Policy (which can be found at https://www.arcgames.com/en/about/privacy) and Cookie Policy (which can be found at https://www.arcgames.com/en/about/cookie), for information regarding the collection, use and distribution of personal information. You understand and agree that we may collect, use and disclose information as described in the Privacy Policy and Cookie Policy.
6.2 You understand and agree that we may access, disclose or preserve personal information, including the content of your communications, in the good faith belief that we are lawfully authorized or required to do so, or that doing so is reasonably necessary or appropriate to comply with the law or with legal process or authorities, respond to any claims, or to protect the rights, property or safety of Gearbox, our users, our employees or the public, including without limitation to protect Gearbox or our users from fraudulent, abusive, inappropriate or unlawful use of our Service.
7. Game Updates
7.1 When we update or “patch” any of our Games, we may utilize a patch routine to verify whether the most recent version of the client software is installed on your computer or your device. If not, the most recent version may automatically be uploaded to your computer or your device, and you hereby consent to, and waive any further notice of, such upload.
8. Monitoring
8.1 You understand and agree that when you communicate with other players within a game or utilize any interactive features available on the Website, such as instant messaging, forums or chat rooms, such communications and postings are transmitted through our servers, and we may, but are not obligated to, monitor all such communications and postings, including those that are designated as “private” To the extent permitted by law. For further information on how we collect and process data about you, please review our Privacy Policy.
9. Push Notification & Local Notification
9.1 You understand and agree that we may, with your consent, send push notifications and local notifications to your mobile device to provide game updates and other relevant messages.
10. License granted to you
10.1 Subject to these Terms and your compliance with any Rules of Conduct, we grant to you, for your non-commercial and personal use only, a limited, non-exclusive, revocable, non-transferable and non-sublicensable permission to access and use the Website, the Service, the Games and the Proprietary Materials. To the extent that downloaded software or client software are licensed as part of the Service, we grant to you, for your non-commercial and personal use only, a limited, non-exclusive, revocable, non-transferable and non-sublicensable permission to install and use the downloaded software or client software, in object code form only, on one or more personal computing devices under your control solely to access and use the Service for your own personal, noncommercial entertainment use. Such permission remains in effect until and unless terminated by you or Gearbox. You promise and agree that you are using the Website, the Service, the Games and Proprietary Materials for your own personal, non-commercial use and that you will not engage in the conduct prohibited in these Terms. Any Gearbox Website, Service, Games, Proprietary Materials or downloaded software or client software that updates, supplements or replaces the original Website, Service, Games, Proprietary Materials or downloaded software or client software are governed by these Terms and are included within the definition of the term Service unless separate license terms accompany such update, supplement or replacement, in which case such separate terms will govern in the event of a conflict with these Terms or as otherwise provided in such separate terms.
10.2 The preceding paragraph 10.1 states the entirety of your rights with respect to the Website, the Service, the Games and the Proprietary Materials, and we reserve all rights not expressly granted to you in these Terms. Except as expressly permitted in these Terms, such license does not include, and you agree not to engage in, or authorize or permit any third party to engage in, any of the following: (a) sale, resale, license, sublicense, rent, lease, lending, transfer or commercial use of the Website, the Service, the Games or the Proprietary Materials; (b) distribution, public performance or public display of any of the the Website, the Service, the Games or the Proprietary Materials except in connection with game play in the ordinary course, (c) use of the Website, the Service, the Games or the Proprietary Materials for any commercial or business purposes or otherwise for any purpose other than your own personal entertainment use; (d) modifying, adapting, altering, enhancing, or otherwise making any derivative uses of any of the Website, the Service, the Games or the Proprietary Materials, or any portion thereof; (e) use of any data mining, robots or similar data gathering or extraction methods; (f) downloading (other than the page caching) of any portion of the Website, the Service, the Games or the Proprietary Materials or any information contained therein, except as expressly permitted by these Terms; (g) reverse engineering, decompilation, disassembly of the Website, the Service, the Games or the Proprietary Materials, or otherwise attempting to derive the source code from the Website, the Service, the Games or the Proprietary Materials; (h) any use of the Website, the Service, the Games or the Proprietary Materials other than for its intended purpose; (i) removal, alteration or obscuring any copyright, trademark or other proprietary rights notice on or in the Website, the Service, the Games or the Proprietary Materials or any other material given to you by Gearbox, (j) use any third party software to modify the Website, the Service, the Games or the Proprietary Materials or to change game play; (k) redirecting, intercepting or emulating any communication protocols used by Gearbox as part of the Website, the Service, the Games or the Proprietary Materials by any means, including but not limited to protocol emulation, reverse engineering, packet sniffing, or modifying or adding components to the Website, the Service, the Games or the Proprietary Materials; (l) providing, hosting, facilitating, linking to or using any private servers, emulators, “matchmaking” services or other means by which the Website, the Service, the Games or the Proprietary Materials may be played, accessed or used outside of the Service; or (m) creating, using or maintaining any unauthorized connections to the Website, the Service, the Games or the Proprietary Materials. All such connections may only be made through methods and means expressly approved by Gearbox, and the Website, the Service, the Games or the Proprietary Materials may only be played on or accessed or used through sites hosted by (or under the authority of) Gearbox.
10.3 You may not distribute or provide to any third party, post on any website, and/or publicly perform or publicly display any part of the Website, the Service, the Games or the Proprietary Materials, or any Confidential Information. You may not network the Website, the Service, the Games or the Proprietary Materials or use the Website, the Service, the Games or the Proprietary Materials in any other way on more than one computer or computer terminal simultaneously, except that you may connect online via the Internet to the Gearbox network that hosts the persistent game world. Gearbox has no obligation to give you the appropriate software and/or access codes to the Website, the Service, the Games or the Proprietary Materials. Access to the Website, the Service, the Games or the Proprietary Materials and any appropriate software are at Gearbox’s sole discretion.
10.4 Any use of the Service or the Proprietary Materials other than as specifically authorized herein, without the prior written permission of us is strictly prohibited and will, at Gearbox’s option, terminate the license granted herein. Such unauthorized use may also violate applicable laws including without limitation copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in these Terms shall be construed as conferring any license to or rights in intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time with or without cause.
10.5 The Games and the Service are not sold to or transferred to you, and you are not granted any right, title, or interest in the Website, the Service or the Games except for the rights expressly granted to you in section 10 herein, and Gearbox and its licensors retain ownership of all copies of the Game and Proprietary Materials even after the Game’s installation on your personal computers, consoles, mobile devices, tablets and/or other devices (“Devices”).
10.6 All trademarks, service marks, trade names, logos, domain names, and any other features of the Gearbox brand, the Website, the Games and the Service (“Gearbox Brand Features”) are the sole property of Gearbox or its licensors. You are not granted any rights to use any Gearbox Brand Features for commercial or non-commercial use.
10.7 You agree to abide by the Terms and not to use the Website, the Service, the Games or any part thereof in any manner not expressly permitted by these Terms.
11. Users’ Rules of Conduct
11.1 You must observe these Terms, all Rules of Conduct, all applicable laws and all basic rules of etiquette and common courtesy when using the Service. Any conduct that violates the law in an offline, real world community is also a violation of these Terms. We will not tolerate any illegal or offensive conduct.
11.2 Without limiting the foregoing, in addition to the User Content rules set forth in Section 12, you agree not to take any of the following actions:
11.3 We may take any actions and impose any penalties we deem necessary to discourage and punish any violation of these terms or any other illegal or inappropriate conduct, all without prior notice or warning. The determination as to whether a violation has occurred and who is responsible for such act is solely within our discretion, and is based on what we deem best for the community and the Service. By using the Service, you agree you will be bound by our determination as to whether a violation has occurred and any penalty we choose to implement.
12. User Content
12.1 The Service may include discussion forums, chat rooms, user feedback, messaging features, comments and other interactive areas or services (“Interactive Areas”) in which you or other users create, post, send or store any content, messages, materials, data, information, text, music, sound, pictures, photos, video, graphics, code or other items or materials on or through the Website as well as any other part of the Service (for example, in-game chat rooms, forums or organization of a guild)(the “User Content”). The User Content also includes User-generated Content as stipulated in section 13 herein.
12.2 User Content posted to the Website is publicly available and not confidential, and will become the sole property of Gearbox. We strongly recommend that you not publish any personal information about yourself or others.
12.3 You agree not to post, upload to, transmit, distribute, store, create or otherwise publish any of the following:
12.4 We take no responsibility and assume no liability for any User Content posted, stored or uploaded by you or any third party, or for any loss or damage thereto, nor are we liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter. Your use of the Service including the Interactive Areas is at your own risk. As a provider of interactive services, we are not liable for any statements, representations or User Content provided by users in any public forum, personal home page or other Interactive Area. Although we have no obligation to screen, edit or monitor any of the User Content, we reserve the right, and have absolute discretion, to remove, screen or edit any User Content posted or stored at any time and for any reason without notice.
12.5 You are solely responsible for creating backup copies of and replacing any User Content you post or store at your sole cost and expense. Any use of the Service including the Interactive Areas or other portions thereof in violation of the foregoing violates these Terms and may result in, among other things, termination or suspension of your rights to use the Service or any part thereof.
12.6 You are solely responsible for any and all User Content you post and for your use of the Service including Interactive Areas. You represent and warrant that (a) you own and control all of the (intellectual property) rights to the User Content that you post or you otherwise have the right to post such User Content to the Site; (b) the User Content is accurate and not misleading; and (c) use and posting of the User Content you supply does not violate these Terms, the Rules of Conduct, applicable laws or religious taboos and will not violate or infringe any publicity, personality or any third party rights or cause injury to any person or entity, or imply any affiliation with, or endorsement of you or the User Content by us. You shall be solely liable for all royalties, fees, damages and any other monies resulting from any infringement of such right or any other harm resulting from any User Content you provide.
12.7 In consideration of your use of the Service and for as far as is possible and permitted by applicable mandatory law, you hereby irrevocably transfer and assign (and agree to assign) to Gearbox all right, title and interest in and to the User Content you create, post, store or transmit on or through the Service, including all intellectual property rights therein. If said assignment and transfer to Gearbox is not possible according to applicable mandatory law, you hereby agree that all rights, title and interest are assigned and transferred to Gearbox. You hereby agree to cooperate with Gearbox in connection with the protection thereof and shall execute such documents (like further deeds of transfer or assignment), if any, as needed by Gearbox to perfect its rights hereunder.
12.8 To the extent the foregoing assignments do not transfer any ownership interest in or to the User Content, you expressly grant to us and our licensors all consents, clearances and a non-exclusive, royalty free, perpetual, worldwide, complete, fully sub licensable and irrevocable right to re-post, publish, use, quote, adapt, translate, archive, store, reproduce, modify, create derivative works from, syndicate, license, print, sublicense, distribute, transmit, broadcast, otherwise communicate, and publicly display and perform, make, use, sell, offer for sale, import or otherwise exploit the User Content, or any portion thereof, in any manner or form and in any medium or forum, whether now known or hereafter devised, without notice, acknowledgment or compensation to you. You waive and agree not to assert any moral or similar rights you may have in User Content.
12.9 If you believe that any User Content in the Service infringes upon any intellectual property rights which you own or control, please note first that we do not mediate IP disputes between parties. Accordingly, we encourage you to directly reach out to the party that created the User Content in question. If you cannot reach a mutual resolution with such party, then you may file a notification of such infringement to us at the contact information set out here:
13. User-generated Content
13.1 The Games may contain certain design, programming and processing utilities, tools, assets and other resources ("The Foundry") for use with the Game that allow you to create customized new game levels and other related game materials for personal use in connection with the Game ("User-generated Content"). You agree that your use of the Foundry is subject to these Terms and the following additional license restrictions:
13.2 User-generated Content may be created only if such User-generated Content can be used exclusively in combination with the online version of the Game. User-generated Content may not be designed to be used as a stand-alone product. User-generated Content you create using the Foundry are subject to the following rules and restrictions:
13.3 Other prohibited uses of User-generated Content published using the Foundry:
• You may not use User-generated Content to endorse or oppose any political party, association (e.g., Republican, Democrat, candidates, or otherwise) or any side of any issue.
• You may not use User-generated Content to depict a likeness of any real person (historical or present day). You may not use User-generated Content to advertise any businesses, products or services of any party.
• You may not publish web URLs in your content.
• You may not use User-generated Content to convey any profanity, vulgarity, hate language, explicit sexual language, derogatory references to race, gender, religion, age, mental or physical impairment, obesity or sexual orientation, or reference any drugs (legal or illicit) or medication.
• You may not make use of any copyrighted or trademarked material of third parties, without obtaining irrevocable, written licenses granted specifically for that purpose.
• You may not use User-generated Content to exploit the design of the Game.
• You may not use User-generated Content to infringe on the rights of privacy and or publicity of third parties.
13.4 Gearbox reserves the right to remove any User-generated Content for any reason at any time, without providing cause or recompense.
13.5 You understand and agree that you shall retain no rights of any kind in and to User-generated Content produced using the Foundry and that all User-generated Content and all rights therein shall belong solely to Gearbox, to use as it sees fit. You hereby irrevocably assign (and agree to assign) and transfer to Gearbox, free and clear of any restrictions or encumbrances, without any compensation beyond the consideration provided herein, any and all rights, title and interest that you may have in and to such User-generated Content. This assignment includes, without limitation, all worldwide copyrights and patent rights in and to such User-generated Content and the right to sue for past and future infringements. You hereby agree to cooperate with Gearbox in connection with the protection thereof and shall execute such documents (like further deed of transfer or assignment), if any, as needed by Gearbox to perfect its rights hereunder.
13.6 Further, to the extent the assignments mentioned herein do not transfer any ownership interest in or to the User-generated Content, you expressly grant to us and our licensors all consents, clearances and a non-exclusive, perpetual, worldwide, complete, sublicensable and irrevocable right to make, use, sell, offer for sale, import or otherwise exploit, re-post, publish, use, quote, adapt, translate, archive, store, reproduce, modify, create derivative works from, syndicate, license, print, sublicense, distribute, transmit, broadcast, otherwise communicate, and publicly display and perform the User-generated Content, or any portion thereof, in any manner or form and in any medium or forum, whether now known or hereafter devised, without notice, acknowledgment or compensation to you. You waive and agree not to assert any moral or similar rights you may have in the User-generated Content.
13.7 As a condition to your using the Foundry, you will not use or allow third parties to use the Foundry and the User-generated Content created by you for any commercial or non-commercial purposes, including but not limited to selling, renting, leasing, licensing, distributing, or otherwise transferring the ownership of such User-generated Content, whether on a standalone basis or packaged in combination with the User-generated Content created by others, through any and all distribution channels, including, without limitation, retail sales and on-line electronic distribution. You agree not to solicit, initiate or encourage any proposal or offer from any person or entity to create any User-generated Content for commercial distribution. You agree to promptly inform Gearbox in writing of any instances of your receipt of any such proposal or offer. If you decide to make available the use of the User-generated Content created by you to other gamers, you agree to do so solely without charge.
14. Designation of Agent to Receive Notification of Claimed Infringement of Copyright(s).
DMCA Notices.
14.1 If you believe that anything in the Service infringes upon any copyright which you own or control, you may file a DMCA notification of copyright infringement as stipulated in Section 14 herein, you may contact our Customer Service Team via:
Email: dmca@gearboxsf.com
Mail: Gearbox Publishing San Francisco Inc.
Attn: Customer Service Team
100 Redwood Shores Parkway, 2nd Floor
Redwood City, CA 94065
Telephone Number: +1 650-590-7700
14.2 The Notification of Claimed Infringement of Copyrights shall include the following information which is necessary for us to evaluate the claim:
14.3 If a Notification of Claimed Infringement is found reasonable in our sole discretion, we may give notice of a claim of copyright infringement to the infringing users by means of a general notice on the Website, electronic mail to a user's email address in our records, or by written communication sent by first-class mail to a user's address in our records. We may send a notice to the user as identified in your notification to request such user to remove the infringing content, or when the infringement is of a severe nature we may directly remove or restrict access to the infringing content and notifying such disposal to the infringing user. We will let you know the disposal result in due course with the contact information you leave with us.
14.4 In accordance with the Digital Millennium Copyright Act (DMCA) and other applicable law, we have adopted a policy of terminating, in appropriate circumstances and at our sole discretion, subscribers or account holders who are deemed to be repeat infringers. We may also at our sole discretion limit access to the Service and/or terminate the Accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
15. Hyperlinks
15.1 You are granted a limited, non-exclusive right to create a text hyperlink to the Website for non-commercial purposes, provided such link does not portray us or any of our products and services in a false, misleading, derogatory or otherwise defamatory manner and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable. This limited right may be revoked at any time for any reason. You may not use a Gearbox logo or other proprietary graphic of Gearbox or Gearbox Brand Features to link to this Website without the express written permission of us. Further, you may not use, frame or utilize framing techniques to enclose any Gearbox Brand Features, Gearbox trademark, logo or other proprietary information, including the images found at the Service, the content of any text or the layout/design of any page or form contained on a page on the Website without our express written consent. Except as noted above, you are not conveyed any right or license by implication, estoppel or otherwise in or under any patent, trademark, copyright or proprietary right of Gearbox or any third party.
15.2 We make no claim or representation regarding, and accept no responsibility for, the quality, content, nature or reliability of third-party websites accessible by hyperlink from the Website, or websites linking to the Website. Such sites are not under our control and we are not responsible for the contents of any linked website or any link contained in a linked website, or any review, changes or updates to such websites. We provide these links to you only as a convenience, and the inclusion of any link does not imply affiliation, endorsement or adoption by us of any site or any information contained therein. When you leave the Website, you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Website.
16. Mobile Software
16.1 Mobile Software. We make available software to access the Service via a mobile device (“Mobile Software”). To use the Mobile Software you must have a mobile device that is compatible with the mobile Service. We do not warrant that the Mobile Software will be compatible with your mobile device. We hereby grant you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Software for one account on one mobile device owned or leased solely by you, for your personal use. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Software, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Software to any third party or use the Mobile Software to provide time sharing or similar services for any third party; (iii) make any copies of the Mobile Software; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Software, features that prevent or restrict use or copying of any content accessible through the Mobile Software, or features that enforce limitations on use of the Mobile Software; or (v) delete the copyright and other proprietary rights notices on the Mobile Software. You acknowledge that we may from time to time issue upgraded versions of the Mobile Software, and may automatically electronically upgrade the version of the Mobile Software that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of this Agreement will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Software is covered by the applicable open source or third-party license, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Software or any copy thereof, and we or our third party partners or suppliers retain all right, title, and interest in the Mobile Software (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. We reserve all rights not expressly granted under this Agreement.
16.2 Mobile Software from iTunes. The following applies to any Mobile Software you acquire from the iTunes Store (“iTunes-Sourced Software”): You acknowledge and agree that this Agreement is solely between you and Gearbox, not Apple, and that Apple has no responsibility for the iTunes-Sourced Software or content thereof. Your use of the iTunes-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iTunes-Sourced Software. In the event of any failure of the iTunes-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the iTunes-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iTunes-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to Gearbox as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the iTunes-Sourced Software or your possession and/or use of the iTunes-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the iTunes-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to Gearbox as provider of the software. You acknowledge that, in the event of any third party claim that the iTunes-Sourced Software or your possession and use of that iTunes-Sourced Software infringes that third party’s intellectual property rights, Gearbox, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You and Gearbox acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement as relates to your license of the iTunes- Sourced Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to your license of the iTunes-Sourced Software against you as a third party beneficiary thereof.
17. Third Party Content
17.1 We may provide or make available third party content through the Service and may provide links to web pages and content of third parties (collectively the “Third Party Content”) as a service to those interested in this information. We do not monitor or have any control over any Third Party Content on third party websites. We do not endorse or adopt any Third Party Content and can make no guarantee as to its accuracy or completeness. We do not represent or warrant the accuracy of any information contained therein and undertake no responsibility to update or review any Third Party Content. Users use such Third Party Content contained therein at their own risk.
18. Advertisements and promotions; Third-party products and Services
18.1 We may run advertisements and promotions from third parties through the Service or may otherwise provide information about or links to third-party products or services through the Service. Your business dealings or correspondence with, or participation in promotions of, such third parties, and any terms, conditions, warranties or representations associated with such dealings or promotions are solely between you and such third party. We are not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or promotions or as the result of the presence of such non-Gearbox advertisers or third party information. If you access a third party website from the Service, you do so at your own risk, and you understand that this Agreement and our Privacy Policy do not apply to your use of such sites. You expressly relieve Company from any and all liability arising from your use of any third-party website, service, or content.
19. Official Service and Beta Testing
19.1 The Games are designed for play only as offered through our Service. You agree not to access, create or provide any other means through which the game may be played by others, such as through server emulators. You agree not to use any hardware or software, including but not limited to third party tools, or any other method of support which may in any way influence or give you an advantage in the use of the Service which is not authorized by us, including but not limited to the use of ‘bots’ and/or any other method by which the Service may be played automatically without human input. You acknowledge that you do not have the right to create, publish, distribute, create derivative works from or use any software programs, utilities, applications, emulators or tools derived from or created for the games, except that you may use the Software to the extent expressly permitted by these Terms. You may not take any action which imposes an unreasonable or disproportionately large load on our infrastructure. You do not have ownership of and may not sell, transfer, trade or auction any Accounts, characters, items, coin, Zen or Proprietary Materials, nor may you assist others in doing so, except as expressly authorized by us. We do not recognize any transfers occurring outside of the Service of anything related to the Service.
19.2 You may be given the opportunity to Beta test new games (“Beta Games”) and Website features. Your participation as a Beta tester is subject to the terms and conditions below.
19.3 You acknowledge that the you are using a preliminary, preview edition of the Websites features and the Beta Games and that you are participating in a beta test thereof (the “Beta Test”), and that the Beta Games site Website features may contain bugs, may not operate properly or perform all intended functions, may interfere with the functioning of other software applications, and may cause errors, data loss or other problems. Closed Beta Tests are confidential, and you agree to that all information about the Beta Games, the Service and the Beta Test, including without limitation any comments, ideas or other feedback (collectively the “Feedback”) you provide to Gearbox regarding the Beta Games, the Service or the Beta Test, shall be treated as confidential (the “Confidential Information”). You agree not to use the Confidential Information in any manner, except for your personal use for the sole purpose of testing the Beta Games and Website features, and you agree to prevent and protect the Confidential Information, or any part thereof, from disclosure to any person. You further agree to take all steps reasonably necessary to protect the secrecy of the Confidential Information and to prevent the Confidential Information from falling into the public domain or into the possession of unauthorized persons. All Confidential Information shall remain the sole property of Gearbox, and Gearbox may use such Confidential Information for any purpose without any obligation to you. You will carry out the testing personally and not provide access to Beta Games to any other person. You agree that breach of the above confidentiality obligations will cause irreparable harm to us, and we are 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. Your obligation to keep the Beta Games confidential will continue until we publicly distribute, or have otherwise disclosed to the public through no fault of yours, each of the games and the content that you are testing.
19.4 As a Beta tester, you are invited to play Beta Games for the sole purpose of evaluating the games and identifying errors. Nothing in these Terms, or on the Website or through the Service, shall be construed as granting you any rights or privileges of any kind with respect to the Beta Games or content that you find here. The Beta Games are provided for testing on an “as is,” “as available” basis and we make no warranty to you of any kind, express or implied. You understand and agree that playing Beta Games is at your own risk, that you know that the Beta Games may include known or unknown bugs, and that we have no obligations to you with respect to Beta Games, including without limitation any obligation to provide such games to you in the future at no charge.
19.5 When playing some Beta Games, you may accumulate treasure, experience points, equipment, or other value or status indicators within the Beta test. This data may be reset at any time during the testing process, and it may be reset when the particular game completes this testing phase. In this case, all player history and data will be erased and each player will return to novice status.
20. Fees
20.1 We may charge fees to access and acquire certain game items or participate in game activities through the Service and may allow the purchase of in game “points” that may be applied to the purchase of in game items or activities (“Zen”). After the purchase you will directly have the right to use Zen and be able to it in the way as is stipulated.
20.2 ANY APPLICABLE ZEN, FEES AND OTHER CHARGES ARE PAYABLE IN ADVANCE AND NON REFUNDABLE. THE BALANCE OF ZEN IN YOUR ACCOUNT DO NOT CONSTITUTE A PERSONAL PROPERTY RIGHT AND HAVE NO VALUE OUTSIDE THE SERVICE. ZEN HAVE NO MONETARY VALUE AND CANNOT BE REDEEMED FOR CASH. ZEN AND THE RIGHT TO USE APPLICABLE ZEN ARE NON-TRANSFERABLE, IN WHOLE OR PART. THE RIGHT TO USE ZEN IS AN INTEGRAL PART OF THE LICENSE TO USE THE SERVICE AND GAME.
20.3 You explicitly acknowledge and agree that the right to use (license) Zen starts from the moment fees have been paid and that you are able from that moment to use Zen for the intended purpose. You explicitly acknowledge and agree that you lose the right to withdraw from the purchase of Zen.
20.4 We may, from time to time, modify, amend, or supplement our fees, billing methods and terms applicable to Zen or to any purchases, and post those changes in these Terms, in separate Terms of Sale or in other terms or agreements posted on the Website or Service or otherwise provided to you by us. Such modifications, amendments, supplements or Terms of Sale shall be effective immediately upon posting on the Website or Service and shall be incorporated by reference into these Terms. If any change is unacceptable to you, you may terminate your account at any time.
20.5 If you claim a chargeback for any reason, we have the right to investigate and dispute such chargeback. If we believe that your chargeback requirement is spurious, unreasonable, or invalid, we may take the dispute to court. If your chargeback is deemed invalid in court, you agree to pay for all fees and costs resulting from the disputed chargeback, including but not limited to legal fees and expenses, damages, monies lost due to non-operation, and chargeback fees, or if applicable mandatory law dictates otherwise, to the maximum amount permitted.
20.6 You may pay for any applicable fees and charges or for Zen by major credit card, PayPal® or other such methods authorized by us.
20.7 We are not liable for “hacking” or loss of your virtual goods from your account, however, we may, in our sole discretion, reimburse virtual goods or Zen upon proof that such loss was not due to your inappropriate use. We may limit the quantity of any item or refuse to provide you with any virtual good. Verification of certain information applicable to a transaction may be required prior to our acceptance of your payment. Price and availability of virtual goods are subject to change with no notice. We have no liability with respect to virtual goods or Zen that is gifted to you or provided as an incentive.
21. Interruption of Service
21.1 We reserve the right to interrupt the Service or any part thereof from time to time on a regularly scheduled basis or otherwise with or without prior notice in order to perform maintenance. You agree that we will not be liable for any interruption of the Service or any part thereof, delay or failure to perform resulting from any causes whatsoever.
21.2 You acknowledge that the Service or any part thereof may be interrupted for reasons beyond our control, and we cannot guarantee that you will be able to access the Service whenever you may wish to do so. We shall not be liable for any interruption of the Service, delay or failure to perform resulting from any causes whatsoever.
21.3 We have the right at any time with or without reason to change and/or eliminate any aspect(s) of the Service as we see fit in our sole discretion.
21.4 We are not obligated to refund all or any portion of any Account fee (if any), by reason of any interruption of the Service by reason of any of the circumstances described in section 25.
22. Disciplinary Action / Account & Service Termination
22.1 FOR ANY REASON AND TO THE EXTENT PERMITTED BY LAW WE MAY SUSPEND, TERMINATE, MODIFY, BLOCK ACCESS TO OR DELETE THE SERVICE OR ANY ACCOUNT OR PART THEREOF, BY GIVING YOU NOTICE OF SUCH WITHIN THE TIME PERIOD SPECIFIED WHEN YOU CREATED AN ACCOUNT OR JOINED A SERVICE, OR IF NO SUCH TIME PERIOD WAS SPECIFIED, THEN WITHIN THIRTY (30) DAYS OF THE DATE SUCH NOTICE IS PROVIDED TO YOU BY EMAIL OR IS POSTED ON THE WEBSITE OR INTERACTIVE AREA BY US.
22.2 For user violations we may at our option issue warnings and temporary suspensions and permanent terminations of Accounts. We retain the sole discretion as to when and how to impose warnings, penalties and/or disciplinary actions. We consider the severity of the violation and the number of infractions in making our determination; however, any determination shall be under our absolute discretion.
22.3 For the avoidance of doubt, you hereby acknowledge that we have the sole discretion with respect to termination of your Account, even if there are credits remaining on your Account. The termination of your Account entails the termination of the license to use the Service or any part thereof (see section 10).
22.4 You have the right to terminate your Account at any time. You understand and agree that, unless applicable mandatory law dictates otherwise, the termination of your Account is your sole right and remedy with respect to any dispute, including, but not limited to, any related to, or arising out of: (i) any term of this Agreement or our enforcement or application of this Agreement; (ii) the User Contents; (iii) your ability to access and/or use the Service or the Website; or (iv) the amount or type of fees, surcharges, applicable taxes, billing methods, or any change to the fees, applicable taxes, surcharges or billing methods.
22.5 You may terminate your Account by delivering notice to us. We reserve the right to collect accrued fees and charges and costs incurred by us before your termination. In addition, you are responsible for any fees, charges and costs incurred to third-party vendors or content providers before termination of your Account.
22.6 In the event your Account is terminated, the balance of the Zen or virtual goods in your Account will not be refundable, non-transferrable to another person and do not accrue interest. Upon termination of our Account, no online time or other credits (e.g., points in an online game) will be credited to you or converted to cash or other form of reimbursement, and you will have no further access to your Account. Any delinquent or unpaid accounts or accounts with unresolved disputes must be settled before we may allow you to register again.
22.7 If you feel you have been unfairly warned or disciplined, please contact us with a full detailed explanation.
23. Indemnification
23.1 You agree to defend, indemnify and hold Gearbox, its independent contractors, service providers and consultants, and their respective directors, employees, agents, partners, affiliates, and subsidiaries, harmless from and against any claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or related to any User Content you post, store or otherwise transmit on or through the Website, your conduct, your violations of these Terms, any misuse of the Service, or your violation of the rights of any third party.
24. Acknowledgements
24.1 You hereby acknowledge and agree that:
25. Disclaimer of Warranties
25.1 YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
26. Dispute Resolution.
26.1 Before filing a claim against Gearbox, you agree to try to resolve the dispute informally by sending a notice of dispute via email to legal@gearboxsf.com with the subject line of “Attn: Legal”.
26.2 The notice must include your name, mailing address, and phone number (if any), and must describe the nature and basis of the claim or dispute, as well as set forth the specific relief sought. If a dispute is not resolved within one month after we receive your notice, either you or we may bring a formal arbitration proceeding in accordance with the JAMS International Arbitration Rules (“JAMS”).
27. Agreement to Arbitrate.
27.1 Arbitration. Please read the following sections carefully, as they affect your rights. You and Gearbox agree to resolve any claims relating to these Terms or the Service through final and binding arbitration. This agreement to arbitrate is intended to be broadly interpreted, and includes claims based in contract, tort, statute, fraud, misrepresentation, or any other legal theory. You acknowledge that these Terms evidence a transaction involving interstate commerce, and thus the United States Arbitration Act shall govern the interpretation, enforcement, and proceedings pursuant to the arbitration clause in these Terms.
27.2 Opting-Out of Arbitration. YOU MAY OPT-OUT OF THE AGREEMENT TO ARBITRATE BY PROVIDING GEARBOX WRITTEN NOTICE WITHIN THIRTY (30) DAYS OF FIRST ACCEPTING THESE TERMS. YOUR NOTICE MUST INCLUDE: (I) YOUR FULL NAME (FIRST AND LAST); (II) THE EMAIL ADDRESS YOU USED TO REGISTER YOUR ACCOUNT; AND (III) A CLEAR STATEMENT THAT YOU DECLINE THIS AGREEMENT TO ARBITRATE. EMAIL YOUR OPT-OUT NOTICE VIA EMAIL TO: legal@gearboxsf.com WITH THE SUBJECT LINE: “Attn: Legal”
27.3 Costs of Arbitration. Gearbox will pay all JAMS filing, administration, and arbitrator fees for any arbitration we initiate. You will pay the fees for any arbitration you initiate, in accordance with the JAMS Rules. However, if you initiate an arbitration after attempting to informally resolve a dispute in accordance with these Terms, and are seeking relief valued at $300 or less (both to you and us), Gearbox will pay all JAMS filing, administration, and arbitrator fees. If your claim is for greater than $300 but less than $10,000, Gearbox will pay all such fees in excess of $20. After Gearbox receives notice at the email address above that you have commenced such an arbitration, Gearbox shall promptly reimburse you for any portion of the filing fee you have paid that Gearbox has agreed to pay.
27.4 Frivolous Claims. If the arbitrator determines that either the substance of your claim or the relief sought is frivolous or brought for an improper purpose (as measured by the standards set forth in the Federal Rule of Civil Procedure 11(b)), then the payment of all JAMS filing, administration, and arbitrator fees shall be governed by the JAMS Rules and you agree to reimburse us for any amount we have paid on your behalf to the JAMS. Gearbox shall not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that either the substance of your claim or the relief sought was frivolous or brought for an improper purpose.
27.5 Arbitration Procedures. You agree that one arbitrator from the JAMS will arbitrate the dispute under the JAMS International Arbitration Rules, as modified by this arbitration provision. The award of the arbitrator shall be accompanied by a reasoned opinion. The arbitration will be held in the United States county where you live or work, or any other location that we mutually agree to.
27.6 No Class Actions. You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. You may not bring a claim as part of a class arbitration, class action, private attorney general action, or consolidation with other arbitrations.
27.7 Judicial Forum. In the event that this agreement to arbitrate is found not to apply to you or your claim, you and Gearbox agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of San Mateo County, California. Both you and Gearbox consent to venue and personal jurisdiction there, and waive any objection as to inconvenient forum.
27.8 Time Limitation to Bring Claims. Notwithstanding any statute or law to the contrary, any claim or cause of action arising out of or related to these Terms or your use of the Service must be filed within one (1) year after such claim or cause of action arose, otherwise that claim or cause of action will be barred forever.
27.9 Future Changes to Agreement to Arbitrate. Notwithstanding any provision in these Terms to the contrary, you agree that if Gearbox makes any future change to this arbitration provision (other than a change to the notice email address above, website links, or telephone numbers listed in this provision), any such changes will not affect disputes that arose before the effective date of the change.
28. Limitation of Liability
28.1 IN NO EVENT SHALL WE, GEARBOX, ITS DIRECTORS, MEMBERS, AFFILIATES, SUBSIDIARIES, EMPLOYEES OR AGENTS BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE WEBSITE, THE SERVICE, THE GAMES OR ANY OF THE CONTENT OR THE MATERIALS CONTAINED IN OR ACCESSED THROUGH THE WEBSITE OR THE SERVICE, INCLUDING WITHOUT LIMITATION ANY DAMAGES CASED BY OR RESULTING FROM RELIANCE BY USER ON ANY INFORMATION OBTAINED FROM US OR GEARBOX, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO GEARBOX’S RECORDS, PROGRAMS OR SERVICES.
28.2 IN NO EVENT SHALL THE AGGREGATE LIABILITY OF GEARBOX, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SERVICE, THE WEBSITE OR ANY OF THE GAMES EXCEED ANY COMPENSATION YOU PAY, IF ANY, TO GEARBOX FOR ACCESS TO OR USE THEREOF.
28.3 Some member states in the EU do not allow the foregoing limitations of liability by (mandatory) law, so they may not apply to you. In such case you explicitly agree that our (or any such other released parties) liability to you shall be limited to the maximum extent permitted by applicable mandatory law. You agree that we cannot be held responsible or liable for anything that occurs or results from accessing or subscribing to the Service.
29. General
29.1 Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches.
29.2 Except as otherwise permitted herein, you may not assign or transfer this Agreement or your rights hereunder, or the Games or any other software provided by us, and any attempt to the contrary is void.
29.3 If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.
29.4 The section headings used herein are for reference only and shall not be read to have any legal effect. The Schedule forms part of the Terms and shall have effect as if set out in full in the body of the Terms and any reference to these Terms includes the Schedule.
30. Remedies.
You agree that your obligations and representations, and the license limitations, stated herein, are necessary and reasonable in order to protect Gearbox, its business, and its licensors, and you expressly agree that monetary damages would be inadequate to compensate Gearbox fully for any breach of this Agreement, or for any misrepresentation made by you above. Accordingly, you agree and knowledge that any such violation or threatened violation will cause irreparable injury to Gearbox and that, in addition to any other remedies that may be available, in law, in equity or otherwise, Gearbox shall be entitled to obtain injunctive relief against the breach or threatened breach of this Agreement, or the continuation of any such breach by you, or to remedy any misrepresentation made by you, without the necessity of proving the inadequacy of any legal remedy or monetary damages, and without the need to post any bond.
31. Independent Contractors.
You acknowledge that you are not considered, and shall not present yourself as, an agent, employee, joint venturer, or partner of Gearbox (or any of its respective affiliates, publishing partners, licensors or licensees). Each party to this Agreement is an independent contractor with respect to the other, and nothing in this Agreement will be deemed to place the parties in the relationship of employer-employee, principal-agent, partners or joint venturers.
32. U.S. Export Controls
You acknowledge and agree that Games and other software provided through the Website or Service are subject to restrictions and controls imposed by the United States Export Administration Act (the “Act”) and the regulations promulgated thereunder. You agree and certify that neither the Games nor any other software provided through the Website or Service, nor any direct product thereof is being or will be acquired, shipped, transferred or re-exported, directly or indirectly, into any country prohibited by the Act and the regulations thereunder or will be used for any purpose prohibited by the same. You agree that you will comply with all applicable law in with regard to your possession, use and operation of the Games and other software provided through the Website or Service.
33. Contact us
Unless directed with other contacting method herein, if you have any questions, concerns, or complaints regarding our Games or our Service, you may contact our Customer Service Team via:
Email: tos@gearboxsf.com
Mail: Gearbox Publishing San Francisco Inc.
Attn: Customer Service Team
100 Redwood Shores Parkway, 2nd Floor
Redwood City, CA 94065
34. Platform Terms also apply
If you access to our Games via consoles, the ways in which you can use the Games may also be controlled by the relevant Console Platform provider’s rules and policies. To the extent required by such rules and policies, the console platform’s terms will apply in your use of the Games.
In general, you acknowledge that:
• Gearbox, not Console Platforms nor any of its affiliates, licenses the Game or Service to you in accordance with these terms;
• Gearbox is not responsible for Console Platform-related services and shall not be liable under for any action arising in contract, tort (including negligence) or otherwise related to the use or operation of such service;
• you shall be solely responsible for ensuring you use any Console Platform account that you use to access the Game or Service in accordance with the policies applicable to such account;
• Gearbox does not grant you a right to use any intellectual property rights, including trademarks, of Console Platforms or its affiliates. Your use of such intellectual property rights is granted (if applicable) in accordance with the Terms of Service and any other policies made available by Console Platforms or its affiliates from time to time in relation to use of the platform;
• Console Platforms or any of its affiliates makes available any Online products or services “as is” without any warranty;
• Gearbox may be required to change the Game or Service, or these terms, in order to comply with instructions of Console Platforms. You agree that we are permitted to make such changes immediately and without notice and shall have no liability to you or others with respect to such changes.
Please refer to the rules and policies of Console Platforms applicable to your use of the Game and the Service here.
Nintendo Switch
Your use of the Switch platform is subject to any policies that apply to the use of such service, including the Nintendo Terms of Use available at https://www.nintendo.com/terms-of-use.
PlayStation™ Network
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.
Xbox
Your use of the Xbox platform is subject to any policies that apply to the use of such service, including the Microsoft Services Agreement available at https://www.microsoft.com/en/servicesagreement/.
35. Closing.
Thank you again for visiting us. We hope you enjoy your stay and take full advantage of the online community we are developing. Please remember that you are a guest and act with the same courtesy and respect that you would expect from other guests.
Last updated: June 19, 2023.