MAGIC THE GATHERING ONLINE END USER LICENSE AGREEMENT AND SOFTWARE LICENSE
UPDATED May 31, 2022
PLEASE READ THIS END USER LICENSE AGREEMENT AND SOFTWARE LICENSE ("AGREEMENT") CAREFULLY AND IN ITS ENTIRETY. THIS AGREEMENT CONSTITUTES A LEGAL AGREEMENT BETWEEN YOU AND DAYBREAK GAME COMPANY LLC ("DAYBREAK") AND GOVERNS YOUR USE OF MAGIC THE GATHERING ONLINE (THE "GAME"), AS WELL AS YOUR ACCOUNTS AND THE SOFTWARE (“THE GAME SERVICES”). BY CLICKING "I ACCEPT," YOU: (A) ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT IN ITS ENTIRETY; (B) AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS; AND (C) ARE AUTHORIZED AND ABLE TO ACCEPT THIS AGREEMENT.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD THE SOFTWARE, CREATE AN ACCOUNT OR PLAY THE GAME.
If you have any questions regarding this Agreement, please contact Daybreak customer service at email@example.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.
1. Game Description. The Game Services allow you to play the Game when you: (a) download and install a copy of the Game client from Daybreak's website or a designated partner site ("Download") which includes software and associated media, printed materials and/or electronic documentation; (b) log in to the Game client using your user name and password from your Magic: The Gathering Onlineaccount ("MTGO Account") via the Game Services ("Account")(MTGO Account and Account collectively referenced hereafter as your "Accounts"); and (c) utilize any software programs provided to you as an Account holder through the Game Services (together with the Download, hereinafter, "Software"). Daybreak may, at any time and in its sole discretion, discontinue your access to the Game 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.
In the Game, you will receive access to a library of licensed digital objects that depict physical Magic: The Gathering trading cards ("Digital Objects"). By playing the Game, you receive a limited license for the right to use such Digital Objects solely for the purpose of playing the Game.
3.1 General. The Game and Game Services are available only to individuals eighteen (18) years of age and older. If you are between the ages of thirteen (13) and eighteen (18), your parent or guardian must complete the registration process, in which case the parent or guardian will take full responsibility for all obligations under this Agreement. By clicking the "I Accept" button you represent that you are at least eighteen (18) years of age and are either accepting this Agreement on behalf of yourself or on behalf of your child. Your Accounts are personal to you and may not be transferred, sold or used by anyone else unless you are a parent or guardian, in which case you may permit one child to use the Account instead of yourself. Regardless, you are liable for all activities conducted through your Accounts.
3.2 Features. Some Game and Game Services features may not be available to all Accounts or Account types. Availability of certain features is determined by Account type, Account standing, and/or other eligibility restrictions. Violations of Daybreak’s Rules of Conduct set out in the Daybreak Terms of Service, of the Game’s forum rules, or this Agreement may also result in feature restrictions.
3.3 Tournaments and Events.
(a) Availability and Adjudication. The Game Services may offer many types of events, leagues, tournaments, formats, promotions, and game types. However, certain types of events, promotions, leagues, tournaments, formats, and game types may not be available in all locations or jurisdictions. By playing the Game or using the Game Services, you acknowledge and agree that Daybreak may, in its sole discretion, start, end, modify, or limit any event, league, tournament, format, promotion or game type at any time and for any reason with no liability to you. Additionally, Daybreak reserves the right, at its sole discretion, to adjudicate any game, match, tournament, or event result. In addition to compliance with the Rules of Conduct set out in the Daybreak Terms of Service (https://www.daybreakgames.com/terms-of-service?locale=en_US#section6), your participation in Game tournaments and events is subject to your compliance with the following:
(i) Bribery. Players may neither offer nor accept booster packs, rewards, or any other objects in exchange for modifying the outcome of a game or match. For example, during round two of a three round Swiss event, if player A says to player B "Concede to me for 2 tickets," this is bribery and subject to conduct action. The only exception to this is discussed in "Prize Splitting."
(ii) Prize Splitting. In the final round of an event, two players matched against each other may negotiate their match result to split whatever prizes are at stake between them, including (but not limited to) Qualifier Points and invitations. If an event cuts to a Top 8 playoff, the final round is defined as the last round of that playoff. For league events, the final round is defined as a match between players who are both in the last possible match of their current league course. Offering prizes outside those normally offered by the Game based upon the outcome of that match is still considered bribery, as is offering a prize split prior to the final round of an event.
All prize splits are done at the players' own risk, and neither Daybreak nor any party related to the Game will enforce any agreed-upon splits in any situation.
(iii) Cheating and Collusion. Players may neither exploit defects in the Game Services nor collaborate with other players in an attempt to gain an unfair competitive advantage in an event. An unfair advantage includes, but is not limited to, purposefully exploiting a game system or defect to affect the outcome of a match; purposefully exploiting a game system or defect to access information not normally available to players; or purposely collaborating with another player to access information not normally available to players.
(b) Eligibility. You are subject to all laws of the state, province and country in which you reside and from which you access the Game Services and you are solely responsible for obeying those laws. You must be physically located in a jurisdiction in which participation in the tournaments offered through the Game Services is permitted by law. You agree that Daybreak shall not be held liable if laws applicable to you restrict or prohibit your participation. Daybreak makes no representations or warranties, implicit or explicit, as to your legal right to participate in any tournament offered on or through the Game Services, nor will any person affiliated with or claiming affiliation with Daybreak have authority to make any such representations or warranties.
(d) Proof of Eligibility. Daybreak may require any participant receiving any prize to provide proof that they are eligible to participate and/or receive such prize.
(e) Taxes. It is the policy of Daybreak, in compliance with United States Internal Revenue Service regulations, to send a Form 1099 to any person who wins in excess of $600.00 USD in any given year. You remain solely responsible for paying all federal and other state taxes that apply in your state, province, and/or country of residence.
4. Contests; Promotions; Redemption Codes. The Game and Game Services may allow you to participate in contests, promotions or similar events (including, without limitation, organized play events) that may offer prizes or require you to provide additional information about yourself. Each contest, promotion or other such event may have its own rules, which you must read and agree to before you participate. Additionally, Daybreak may distribute promotional codes that you may redeem for licenses to Digital Objects ("Promotional Codes", each a "Promotional Code"). Promotional Codes may be valid for a limited time only. Some Promotional Codes may have additional terms and conditions that will govern the use and availability of such Promotional Codes. Promotional Codes are personal to you, are non-transferable, and have a value limited to $0.001 U.S.D. The use of Promotional Codes in unauthorized advertising, marketing, sweepstakes, or for other promotional purposes is strictly prohibited.
5. Streaming. Although Daybreak encourages you to stream and share Magic Onlinegameplay and content, you are solely responsible for your own content including obtaining permission from third party intellectual property owners and ensuring the content does not violate the Rules of Conduct. All videos and streams must be freely accessible and may not feature or promote competing games or services. Matches may be impacted by live streaming gameplay; if you choose to live stream your play, it is at your own risk.
6. Physical Redemption.
(a) The Game Services may provide a promotion whereby players can voluntarily terminate a portion of their limited license to redeem certain Digital Objects for a corresponding set of physical Magic: The Gathering cards ("Physical Redemption"). Physical Redemption is only available in certain markets and may only be available for specific sets as determined by Daybreak in its discretion. Available sets may change from time to time and rotate in availability. DAYBREAK MAKES NO REPRESENTATION OR WARRANTY THAT A CERTAIN SET WILL BE ELIGIBLE FOR PHYSICAL REDEMPTION OR THAT THE PHYSICAL REDEMPTION PROMOTION WILL BE AVAILABLE TO YOU. In order to participate in the Physical Redemption program, you must: (i) obtain the right to use all of the Digital Objects in a redeemable set, where such Digital Objects are in your Accounts; (ii) ensure your Accounts have access to the Physical Redemption feature and request Physical Redemption for such redeemable set during its eligibility period as listed here: https://www.mtgo.com/en/gameinfo/products/magiconline/redemption and (iii) pay all shipping and handling and other fees assessed by Daybreak. The Digital Objects will then be removed from your Accounts and the license granted by Daybreak to you for those Digital Objects will terminate and all rights to said Digital Objects will revert to Daybreak. A partial license termination of Digital Objects may only be redeemed for physical Magic: The Gathering Cards in a full set. A "full set" means one of each card from the expansion or base set to which it relates that has been defined by Daybreak as redeemable.
(b) Daybreak reserves the right to cancel or modify the Physical Redemption program at any time including by limiting the number of sets that can be exchanged, limiting the number of Digital Objects released for use, or charging additional fees for this service. If the Physical Redemption program is canceled, Daybreak will notify you via email of such cancellation along with the last date in which you can effectuate a Physical Redemption.
7. Fees and Payments. While you may register for and you may, in some cases, be able to use some of the features of the Game free of charge, prices and fees apply to the purchase or redemption of some Game products including, without limitation, Account upgrades, Digital Objects, booster packs, theme decks, tournament packs, and tournament tickets (“Paid Content”). Daybreak describes its fees, sales policies, and billing procedures in the Terms of Service. In the event you elect to purchase 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, including, without limitation, any applicable sub-site thereto. All fees are non-refundable, unless otherwise expressly stated for the product. 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. Upon your acceptance of this Agreement, you authorize Daybreak to charge your designated payment account for any applicable fees plus taxes. If your payment cannot be processed at any time, your Accounts, and this Agreement, may be immediately terminated. The Game Services may also offer special tournament events with special features of offerings such as using specific Digital Objects or a Promotional Code for a period of time (a "Special Event"). Specific details and terms regarding a Special Event are detailed in applicable point of sale information and are incorporated by this reference. Daybreak uses third party payment providers (e.g., PayPal (https://www.paypal.com/) and Adyen (https://www.adyen.com/)) to authenticate payment. When you purchase Game products, you are not interacting with Daybreak, but rather Daybreak’s third-party partners. Please read the terms and conditions and privacy policies of applicable third-party partners to understand their terms and conditions.
You are solely responsible for reviewing the payment information section of the Daybreak Terms of Service to obtain timely notice of such changes as well as any point of sale information for a Special Event; no refunds will be given unless based upon a technical issue inherent in the Game Services or fraud (after a complete review) and only in Daybreak’s sole discretion. If any such change is unacceptable to you, you may terminate your Accounts as provided in Section 16. Your continued use of the Game and Game Services after posting of the changes to the payment information section of the Daybreak Terms of Service will indicate acceptance of such changes. You are fully liable for all charges under your Account including 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. When you pay for any charges by credit card, you represent to Daybreak that you are the authorized user of such payment method. You agree to promptly notify Daybreak of any changes to your payment information and/or your billing address, and you agree to promptly notify Daybreak if your payment information expires or is canceled for any reason.
8. Security and Passwords. You are solely responsible and liable for all activity occurring under your Accounts. Daybreak will never ask you for your password; as such, you should never disclose your password to anyone. Although Daybreak may offer a feature that allows you to "save" or "remember" your password on your hard drive, this feature makes it possible for third parties to access your computer and thus your Accounts. Should you choose to utilize the password memory feature, it is at your own risk. Any attempt to deceive another user for the purposes of illicitly obtaining cards, passwords, account information etc. (aka "scamming") is prohibited and may result in the immediate deactivation of your Accounts.
9. Beta Releases. In the event the Game, the Game Services, your Accounts, the Download, the Software and/or the Forums (or any portions and/or features thereof) are released as "beta" releases, as designated by Daybreak (each a "Beta"), this Section 9 applies. You acknowledge and agree that a Beta may contain more or fewer features than the final release of the same or similar product that Daybreak intends to release. Daybreak may choose not to release a final release of a Beta or, if released, to alter features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics. You agree that Beta release versions may not be suitable for production use and may contain errors affecting proper operation and functionality.
10. Licenses. Subject to your compliance with the terms of this Agreement, Daybreak hereby grants you a non-exclusive, non-transferable, non-assignable, revocable limited license to use the Game, Software, Game Services, Digital Objects and Game related products or services for your personal use via your Accounts for the sole purpose of playing the Game. This Agreement includes the right to trade the online Digital Objects you receive as part of the Game. Notwithstanding anything to the contrary contained in this Agreement, you acknowledge and agree that you currently do not and will not acquire ownership in your Accounts and/or Digital Objects, and you further acknowledge and agree that all rights in and to the same shall forever be owned by and inure to the benefit of Daybreak (and its successors and assigns).
You grant to Daybreak a perpetual, unrestricted and irrevocable right (at no fee) to use, copy, modify, publish, perform, transmit, and display any content you submit via any media to Daybreak and waive any moral rights you may have in such content.
11. Intellectual Property Rights. Daybreak and/or its licensors own all rights, title, and interest in and to the Game Services, Software, and Game related products or services, including, without limitation, all Digital Objects, and all aspects thereof (the "Daybreak Property"), notwithstanding that rights, title, and interest in and to the Game itself and all related artwork, logos, trade dress, themes, characters, character names, stories, dialog, catch phrases, locations, concepts, artwork, structural or landscape designs, animations, sounds, audio-visual effects, methods of operation, moral rights, any related documentation and user manuals, storylines, and character likeness are specifically the property of Wizards of the Coast LLC and are used by Daybreak in the Game Services and Software with explicit permissions. For the avoidance of doubt, "Daybreak Property" may be read as including those rights and permissions granted to Daybreak by Wizards of the Coast LLC.
The Daybreak Property incorporates and is protected by various intellectual property rights, including, without limitation, trademarks, copyrights, patents, trade secrets, moral rights, database rights and other intellectual property and proprietary rights (collectively, “Intellectual Property Rights”).
Your Accounts and your use of the Game and Game Services do not grant you any ownership interest in the Daybreak Property or in its Intellectual Property Rights. The Daybreak Property is protected by the laws of the United States and international treaties, conventions and other laws. All rights are reserved. Neither this Agreement nor your Account entitles you to any subsequent releases of the Software, or to any Game products including, without limitation, online trading cards, booster packs, theme decks, tournament packs and tournament tickets. From time to time, Daybreak may release such Game products, which may be obtained for a separate fee. Daybreak may update or otherwise enhance the Software at any time and in doing so incurs no obligation to furnish such updates to you pursuant to this Agreement.
12.1 The Game, Game Services, Software and any Game related products or services are made available solely for use by Accounts holders according to the terms of this Agreement. Any use, reproduction or redistribution of the Game, Game Services, Software or Game related products or services (including without limitation, Digital Objects) not expressly authorized by this Agreement is expressly prohibited and may result in severe civil and criminal penalties. You are strictly prohibited from engaging in, or assisting others to engage in, conduct that would damage or impair the property of Daybreak including, without limitation, the following:
(a) copying, distributing, selling, renting, leasing, transmitting, displaying, performing, framing, linking, hosting, caching, reproducing, publishing, licensing, or creating derivative works from any information, software, products or services obtained from the Game, Game Services or Software;
(b) modifying, reverse engineering, disassembling or decompiling the Game, Game Services or Software 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;
(c) creating, facilitating, hosting, linking to or providing any other means through which the Game 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 the Game, 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;
(d) taking actions that impose an unreasonable or disproportionately large load on Daybreak's network infrastructure or that could damage, disable, overburden, or impair any of Daybreak's websites or other services;
(e) interfering with any other party's use and enjoyment of the Game, Game Services and/or Software (including cheating, collusion, or exploiting software defects to gain an unfair advantage over other players) and any Daybreak's websites or services;
(f) attempting to gain unauthorized access to third party Accounts, the Game, the Game Services or Software via any means;
(g) misrepresenting the nature of your Account or creating any misrepresentative or misleading in-Game communications (including chat, incident reporting, or trade posts);
(h) using, posting, hosting or distributing 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 the Game;
(i) incorporating the Software and/or the Game or any portion thereof, including, without limitation, any Digital Objects into any product or service;
(j) removing, altering or obscuring any copyright, trademark, trade name or other proprietary notices, legends, symbols or labels that appear in the Software or the Game;
(k) otherwise exploiting the Game 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); and
(l) violating Daybreak’s Rules of Conduct set out in the Terms of Service (https://www.daybreakgames.com/terms-of-service?locale=en_US#section6).
12.2 Daybreak does not recognize any purported transfers or sales of Digital Objects, event tickets or other virtual assets outside of the Software. Accordingly, you are strictly prohibited from selling, gifting (except as permitted herein) or exchanging Digital Objects, event tickets or other virtual Game items for currency or other value outside of the Game.
Players may organize community sponsored events in the Game Services, but Daybreak does not recognize or sanction such events and is not liable for any issues that may occur during such an event including, without limitation, match disputes and arbitration, or prize fulfillment. Community sponsored events cannot require an entry fee or donation for participation, but can specify format or deck building requirements as desired by the event organizer.
12.3 IN ADDITION TO ANY OTHER RIGHTS AND REMEDIES AVAILABLE TO DAYBREAK, IF DAYBREAK BELIEVES YOU HAVE ENGAGED, OR WILL ENGAGE, IN ANY OF THE ABOVE CONDUCT IN THIS SECTION 12, IT MAY, IN ITS SOLE DISCRETION AND WITHOUT NOTICE, TERMINATE YOUR ACCESS TO THE GAME AND GAME SERVICES, AND SUSPEND OR DEACTIVATE YOUR ACCOUNTS WITH NO LIABILITY TO IT RELATING THERETO.
14. Automatic Game Communications and Monitoring.Playing the Game requires an internet connection to Daybreak's servers via the Game Services. As part of playing the Game and using the Game Services, you hereby explicitly consent to the extraction of hardware system profile data, internet connection data and any other data related to the operation of the Game, Game Services and Software through the Game Services from any computer that logs on to the Game Services using your Account. Daybreak may automatically deploy or provide patches, updates and modifications to the Game that must be installed to continue to play the Game. Daybreak may update the Game remotely including, without limitation, the Game client residing on your machine, without your knowledge. You hereby expressly grant to Daybreak your consent to deploy and apply such patches, updates and modifications to the Game.
Daybreak may also monitor your computer system or console for unauthorized third party programs running concurrently with the Game 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 the Game (an "Unauthorized Third Party Program"). In the event that Daybreak detects an Unauthorized Third Party Program: (i) the Game 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.
Additionally, Daybreak does not, and cannot, pre-screen or monitor all content on the Game Services. However, its representatives may monitor and record your communications (including, without limitation, forum postings and chat logs) when you are playing the Game or using the Game Services. You hereby provide your irrevocable consent to such monitoring and recording and you expressly consent to such monitoring of communications you send and receive. You acknowledge and agree that you have no expectation of privacy in playing the Game or using the Game Services. Furthermore, Daybreak also reserves the right, at all times and in its sole discretion, to use or disclose any content or information for any reason including, without limitation: (a) to satisfy any applicable law, regulation, legal process or governmental request; (b) to enforce the terms of this Agreement or any other agreement; (c) to protect Daybreak’s legal rights and remedies; (d) where someone's health or safety may be threatened; (e) to report a crime or other offensive behavior; or (f) to investigate breaches of Daybreak Rules of Conduct set out in the Terms of Service (https://www.daybreakgames.com/terms-of-service?locale=en_US#section6). Please take care to not provide any personally identifiable information in chats or forums.
In connection with the Game and its related Services, you may be able to upload or transmit Submissions (as defined and described in the Terms of Service) to Daybreak’s 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.
Sections 4, 5, 6, 7, 8, 11, 12, 13, 14, 16, 17, 18, 19, 20, and 21 will survive termination for any reason.
17. Disclaimer of Warranties. THE GAME, GAME SERVICES, YOUR ACCOUNTS, THE DOWNLOAD, THE SOFTWARE, AND THE FORUMS ARE PROVIDED "AS IS." ACCESS TO AND USE OF THE GAME IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DAYBREAK HEREBY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, GUARANTEES AND CONDITIONS WITH REGARDS TO THE SAME AND ANY AND ALL OTHER SERVICES RELATED THERETO INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, USE, ACCURACY AND ANY WARRANTY AGAINST INFRINGEMENT THAT MAY BE PROVIDED IN SECTION 2-312(3) OF THE UNIFORM COMMERCIAL CODE AND/OR IN ANY OTHER COMPARABLE STATE STATUTE. FURTHER, DAYBREAK MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE WITH RESPECT TO THE QUALITY OR AVAILABILITY OF THE SOFTWARE AND GAME, INCLUDING THAT THE GAME, GAME SERVICES, YOUR ACCOUNTS, THE DOWNLOAD, THE SOFTWARE, AND/OR THE FORUMS WILL BE SECURE, VIRUS-FREE, UNINTERRUPTED OR ERROR-FREE, OR THAT THE SAME WILL FUNCTION PROPERLY IN COMBINATION WITH ANY THIRD PARTY COMPONENT, TECHNOLOGY, HARDWARE, SOFTWARE OR SYSTEM. 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 GAME.
FOR YOUR CONVENIENCE, DAYBREAK MAY MAKE AVAILABLE AS PART OF THE GAME, GAME SERVICES, YOUR ACCOUNTS, THE DOWNLOAD, THE SOFTWARE, AND/OR THE FORUMS, CERTAIN TOOLS AND UTILITIES. DAYBREAK DOES NOT MAKE ANY WARRANTIES, ASSURANCES OR REPRESENTATIONS WITH REGARD TO THE ACCURACY OF THE RESULTS OR OUTPUT THAT DERIVES FROM USE OF ANY SUCH TOOLS AND UTILITIES. YOU AGREE TO RESPECT THE INTELLECTUAL PROPERTY RIGHTS OF OTHERS WHEN USING ANY SUCH TOOLS AND UTILITIES.
You assume the entire risk as to the results and performance of the Software and the Game 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 the Game will work properly with any unlicensed peripheral device. Always look for the applicable official Platform logo when purchasing a peripheral device. Some states do not allow the disclaimer of implied warranties; as such, the foregoing disclaimer may not apply to you in its entirety.
18. Limitation of Liability; Indemnification.IN NO EVENT WILL DAYBREAK, ITS PARENT AND/OR 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 TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS), WHETHER IN AN ACTION FOR CONTRACT, NEGLIGENCE, OR OTHER TORTIOUS ACTION, ARISING OUT OF THIS AGREEMENT, THE USE OF OR INABILITY TO USE THE GAME, GAME SERVICES, YOUR ACCOUNTS, THE SOFTWARE, OR THIRD PARTY CLAIMS ARISING FROM OR RELATED THERETO, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE DAYBREAK ENTITIES WILL NOT BE LIABLE FOR ANY FAILURE TO PERFORM ANY RESPECTIVE OBLIGATIONS UNDER THIS AGREEMENT DUE TO ISP INTERRUPTIONS, SOFTWARE OR HARDWARE FAILURES, DELAYS AND/OR OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, OR FOR ANY OTHER DAMAGES BEYOND DAYBREAK'S REASONABLE CONTROL. ADDITIONALLY, 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.
YOUR EXCLUSIVE REMEDY AND DAYBREAK'S (INCLUDING ITS PARENT AND/OR AFFILIATES) TOTAL AGGREGATE LIABILITY RELATING TO OR ARISING OUT OF THE AGREEMENT FOR ANY REASON WILL BE LIMITED TO THE ACTUAL DIRECT DAMAGES INCURRED BY YOU UP TO ONE HUNDRED U.S. DOLLARS ($100.00). THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE FOR ANY REASON. SOME STATES DO NOT ALLOW THE FOREGOING LIMITATIONS OF LIABILITY; AS SUCH, THEY MAY NOT APPLY TO YOU IN THEIR ENTIRETY. YOU AGREE TO DEFEND, INDEMNIFY AND HOLD THE DAYBREAK ENTITIES HARMLESS FROM ANY CLAIM, ACTION, SUIT, DEMAND, OR DAMAGES INCLUDING, WITHOUT LIMITATION REASONABLE ATTORNEYS' FEES, ASSERTED BY ANY THIRD PARTY ARISING IN CONNECTION WITH THE USE OF YOUR ACCOUNTS, THE GAME, GAME SERVICES, SOFTWARE OR THE FORUMS.
Some states or other jurisdictions do not allow 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.
20. DISPUTE RESOLUTION; ARBITRATION; CLASS ACTION WAIVER; NEW ZEALAND EXCEPTION
20.1 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 20.2) or Arbitration (as defined below in Section 20.3); provided, however, with respect to Excluded Disputes (as defined below in Section 20.3) 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 20.2, 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 20.2 (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 20 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 19, or except to the extent otherwise required by applicable law. Notwithstanding the above provisions set forth in Section 19, (i) the Federal Arbitration Act applies to and governs the enforceability of this Section 20, 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.
20.2 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 firstname.lastname@example.org 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.
20.3 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 Daybreak for you or against you for Daybreak, as applicable.
Should any portion of this Section be found illegal or unenforceable, you agree that such portion shall be severed and the remainder of this Section shall be given full force and effect.
21. General Terms.
21.1. Equitable Remedies. You hereby agree that Daybreak would be irreparably damaged if the terms of this Agreement were not specifically enforced. Therefore, you agree that Daybreak will, in addition to any other remedy it may have under this Agreement, at law or in equity, be entitled without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this Agreement.
21.2. Modification. Daybreak may, at its sole discretion, change, amend, alter, modify, add to, supplement or delete any of the terms and conditions of this Agreement. Daybreak may provide you with notice of such modifications by any reasonable means, including, without limitation, by making available the revised version of this Agreement 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. If any future changes to this Agreement are unacceptable to you or cause you to no longer be in compliance with this Agreement, you must terminate this Agreement pursuant to Section 16 and you may not further access or use the Software or play the Game. The continued use of the Game by you following notice of changes to this Agreement will mean you accept any and all such changes. Daybreak may change, modify, suspend, or discontinue any aspect of the Game at any time. Daybreak may also impose limits on certain features or restrict your access to parts or all of the Game without notice or liability. You have no interest, monetary or otherwise, in any feature, content or availability of the Game.
21.3. 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.
21.4. No Assignment. This Agreement is personal to you and may not be assigned. Daybreak may transfer or assign this Agreement, the Game, Game Services Your Account, or the Software, in whole or in part, to third parties of its choosing, without restriction.
21.5. 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 Daybreak by phone at (858) 537-0898 or by writing to Daybreak at Daybreak Game Company LLC, Attention: Office of the General Counsel, 13500 Evening Creek Drive North, Suite 300, 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.
21.6. U.S. Government Restricted Rights and Export Restrictions. The Download, the Software, the Game Services, and the Game are provided with RESTRICTED RIGHTS. Use, duplication or disclosure is subject to restrictions set forth in subparagraphs (a) through (d) of the Commercial Computer Software--Restricted Rights at FAR 52.227-19 when applicable, or in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, and in similar clauses in the NASA FAR supplement, as applicable. Manufacturer is Daybreak Game Company LLC, 13500 Evening Creek Drive N. Ste. 300, San Diego, CA 92128. You are responsible for complying with all trade regulations and laws both foreign and domestic. You acknowledge that none of the Download, the Software, the Game Services, and the Game or underlying information or technology may be downloaded or otherwise exported or re-exported (a) into (or to a national or resident of) Cuba, Iraq, Libya, Sudan, North Korea, Iran, Syria or any other country subject to a U.S. embargo; or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Denied Parties List or Entity List. By using the Download, the Software, the Game Services, or the Game you are agreeing to the foregoing and are representing and warranting that: (x) no U.S. federal agency has suspended, revoked, or denied you export privileges; (y) you are not located in or under the control of a national or resident of any such country or on any such list; and (z) you will not export or re-export the Download, the Software, the Game Services, and the Game to any prohibited county, or to any prohibited person, entity, or end-user as specified by U.S. export controls.
21.7. Language. The parties hereby declare, and by these presents confirm, their express desire that this contract be written in English.
21.8. 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, pandemic, lockdowns, 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.
21.9. Third Party Code. The Software and/or the Game may contain 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.
21.10. Miscellaneous. This Agreement, together with its incorporated references, constitutes the complete and final agreement between you and Daybreak with respect to its subject matter. Use of the Game or Game Services is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions of this Agreement. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty, disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement will continue in effect. 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. 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 Daybreak. 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 Daybreak 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 Daybreak relating to such subject matter. Notices to you may be made by posting a notice (or a link to a notice) through the Game, by email, or by regular mail, at Daybreak’s sole and absolute discretion. 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. Any and all terms and conditions of this Agreement which should by their nature survive termination of this Agreement will survive the termination of this Agreement. 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.
COPYRIGHT AND TRADEMARK NOTICES. The Game and Game Services are operated by Daybreak under license from Wizards of the Coast LLC. Magic: The Gathering Online, Magic Online, Magic, the Wizards of the Coast logo, the Magic: The Gathering logo, artwork, cards, and characters and creatures' distinctive likenesses, the Mana and Tap symbols, the expansion names and symbols, the play level symbols, the Game's trade dress or "look and feel" and the Pentagon of Colors are trademarks owned by Wizards of the Coast LLC in the U.S.A. and other countries. Any rights not expressly granted herein are reserved.