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<center>End User Game License Agreement
For Dungeons & Dragons Neverwinter™
(Last Update: April 2013)</center>
NOTICE TO PARTICIPANTS AND USERS: PLEASE READ THIS END USER GAME LICENSE AGREEMENT (“AGREEMENT”) FOR THE MULTI-PLAYER ONLINE COMPUTER GAME ENTITLED DUNGEONS & DRAGONS NEVERWINTER™ (“GAME”) CAREFULLY. IT IS IMPORTANT THAT YOU UNDERSTAND THIS AGREEMENT. BY CLICKING THE “I AGREE” BUTTON, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT OR OTHERWISE DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, PLEASE CLICK THE “CANCEL” BUTTON. IF YOU DO NOT AGREE TO THIS AGREEMENT, DO NOT INSTALL, COPY, OR USE THE GAME SOFTWARE. IF YOU DO NOT ACCEPT THIS AGREEMENT, THEN: (A) THE GAME WILL NOT BE INSTALLED ON YOUR COMPUTER, AND (B) IF YOU HAVE OBTAINED A COPY OF THE CLIENT SOFTWARE FOR THE GAME, YOU ARE REQUIRED TO DELETE IT IMMEDIATELY. IN ADDITION, BY USING ALL OR ANY PORTION OF THE GAME OR GAME SOFTWARE, YOU ACCEPT, ON AN ONGOING BASIS, ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. THIS AGREEMENT IS ENFORCEABLE AGAINST YOU AND ANY THIRD PARTY OR PERSON ON WHOSE BEHALF IT IS USED. THIS AGREEMENT IS BETWEEN YOU AND PERFECT WORLD ENTERTAINMENT INC., A DELAWARE CORPORATION (“PERFECT WORLD”), PUBLISHER OF THE GAME. PERFECT WORLD PUBLISHES THE GAME UNDER LICENSE FROM CRYPTIC STUDIOS, INC., A CALIFORNIA CORPORATION AND HASBRO, INC., A RHODE ISLAND CORPORATION. THIS AGREEMENT IS ALSO LEGALLY ENFORCEABLE AGAINST YOU BY PERFECT WORLD’S LICENSORS, AS THIRD PARTY BENEFICIARIES OF THIS AGREEMENT, CRYPTIC STUDIOS, INC., A CALIFORNIA CORPORATION AND HASBRO, INC., A RHODE ISLAND CORPORATION. THIS AGREEMENT IS A CONTRACT AND LEGALLY BINDING AGAINST YOU.
PERFECT WORLD MAY AMEND OR MODIFY THIS AGREEMENT (AND THE TERMS OF SERVICE AND ANY OTHER RELATED AGREEMENTS OR TERMS) AT ANY TIME IN OUR SOLE DISCRETION. AMENDMENTS AND MODIFICATIONS WILL BE EFFECTIVE IMMEDIATELY AFTER PUBLISHING THEM ON THE WEBSITE OR OTHERWISE PROVIDING YOU A COPY THEREOF, AND YOU WAIVE ANY RIGHT YOU MAY HAVE TO RECEIVE SPECIFIC NOTICE OF SUCH CHANGES OR MODIFICATIONS. PERFECT WORLD WILL INDICATE AT THE TOP OF THIS AGREEMENT THE DATE IT WAS LAST UPDATED. YOU AGREE TO AND ARE RESPONSIBLE FOR CHECKING THIS AGREEMENT PERIODICALLY SO YOU WILL BE FAMILIAR WITH ITS CONTENTS, AS IT MAY BE AMENDED OR MODIFIED FROM TIME TO TIME. BY CONTINUING TO USE THE GAME SOFTWARE, YOU ARE SIGNIFYING YOUR ACCEPTANCE OF ANY REVISED OR UPDATED TERMS. IF YOU DO NOT AGREE TO THE AMENDED TERMS, YOU MUST STOP USING THE GAME SOFTWARE.
1. Limited License & Consents.
1.1. Subject to all other terms and conditions of this Agreement, the Perfect World Terms of Service that governs your use of the Service (defined below), the Perfect World Privacy Policy, and your compliance with any Rules of Conduct posted on the Website (as defined below) or otherwise provided to you by Perfect World (the "Rules of Conduct"), Perfect World hereby grants You a limited, non-exclusive, non-transferable, non-sublicensable, revocable license and right to access, download, install, and operate, one copy of the object code format of the client software of the Game made accessible to You periodically by Perfect World, on one or more personal computing devices under your control solely to access and use the Service for your own personal, noncommercial entertainment use. Any Perfect World Game software that updates, supplements or replaces the original Game software is governed by this Agreement and is included within the definition of the term Game 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 this Agreement or as otherwise provided in such separate terms. As used herein, the term "Service" means collectively the Perfect World website located at (or any subsequent URL which may replace it) and all officially associated websites and micro-sites (collectively, the "Website") and all features, functions, software and services offered through the Website.
1.2. Limitations. The preceding states the entirety of your rights with respect to the Game software, and Perfect World reserves all rights not expressly granted to you in this Agreement. Without limiting the foregoing, you will not do, or authorize or permit any third party to do, any of the following: (a) distribute, license, rent, lease, sell or transfer the Software; (b) use the Game software for any commercial or business purposes or otherwise for any purpose other than your own personal entertainment use; (c) reverse engineer, decompile, disassemble or attempt to discover the source code for the Game software; (d) modify, alter or create any derivative works of the Game software; (e) remove, alter or obscure any copyright, trademark or other proprietary rights notice on or in the Game software, (f) use any third party software to modify the Game software or the Service or to change game play; (g) redirect, intercept or emulate any communication protocols used by Perfect World as part of the Service by any means, including but not limited to protocol emulation, reverse engineering, packet sniffing, or modifying or adding components to the Game software; (h) provide, host, facilitate, link to or use any private servers, emulators, "matchmaking" services or other means by which the Games may be played outside of the Service; or (i) create, use or maintain any unauthorized connections to the Game software or the Service. All such connections may only be made through methods and means expressly approved by Perfect World, and Games may only be played on sites hosted by (or under the authority of) Perfect World. 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 Game or any Confidential Information. You may not network the Game or use the Game in any other way on more than one computer or computer terminal simultaneously, except that You may connect online via the Internet to the Perfect World network that hosts the persistent Game world. Perfect World has no obligation to give You the appropriate software and/or access codes to the Game; access to the Game and any appropriate software are at Perfect World’s sole discretion.
1.3. A SMALL PERCENTAGE OF USERS MAY EXPERIENCE EPILEPTIC SEIZURES WHEN EXPOSED TO CERTAIN LIGHT PATTERNS OR BACKGROUNDS ON A COMPUTER SCREEN OR WHILE USING THE GAME SOFTWARE. CERTAIN CONDITIONS MAY INDUCE PREVIOUSLY UNDETECTED EPILEPTIC SYMPTOMS EVEN IN USERS WHO HAVE NO HISTORY OF PRIOR SEIZURES OR EPILEPSY. IF YOU, OR ANYONE IN YOUR FAMILY, HAVE AN EPILEPTIC CONDITION, CONSULT YOUR PHYSICIAN PRIOR TO USING THE SERVICE. IMMEDIATELY DISCONTINUE USE OF THE GAME SOFTWARE AND CONSULT YOUR PHYSICIAN IF YOU EXPERIENCE ANY OF THE FOLLOWING SYMPTOMS WHILE USING THE SERVICE: DIZZINESS, ALTERED VISION, EYE OR MUSCLE TWITCHES, LOSS OF AWARENESS, DISORIENTATION, ANY INVOLUNTARY MOVEMENT, OR CONVULSIONS.
1.4. You understand and agree that Perfect World may update, enhance or otherwise modify in any manner the Game software and/or the Service at any time without notice. When Perfect World updates or "patches" the Game software, We may utilize a patch routine to verify whether the most recent version of the Game is installed on Your computer. If not, You agree hereby and consent to the most recent version being automatically uploaded to and installed on Your computer, modifying or replacing any prior version of the Game software that may be installed on Your computer, and You waive any further notice of, such upload and installation. However, You understand that We have no obligation to furnish any updates or patches to You pursuant to this Agreement.
1.5. You understand and agree that the Game software may monitor and communicate information from Your computer, including without limitation information relating to hardware capacity, modifications and the presence of unauthorized third party programs, including programs that enable or facilitate cheating or obtaining an unfair advantage of any kind, allow users to modify or hack any portion of the Game software or the Service (other than as expressly authorized by Perfect World) or intercept or collect any information from or through the Game software or the Service ("Unauthorized Programs"). If the Game software detects an Unauthorized Program, then the Game software may also communicate further information back to Perfect World regarding the user and the Unauthorized Program, including without limitation information about the users account and User ID and about the Unauthorized Program and its use. Further, You understand and agree that when You communicate with other players within a game or utilize any interactive features available through the Game software or Service, 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." You acknowledge that You have no expectation of privacy with respect to any such communications or postings, and You expressly consent to the monitoring and information collection described in this Section
1.6. You shall comply with all applicable laws regarding Your use of the Game software, the Service and Your playing of the Games. Without limiting the foregoing, You may not download, use or otherwise export or re-export the Game software except in full compliance with all applicable laws and regulations, including, without limitation, the laws of the United States.
2. Term. This Agreement begins on the day You agree to these terms and conditions and continues in effect up until it is terminated by You or Perfect World. This Agreement is terminable at will at any time by Perfect World, solely within its discretion. Perfect World may, within its sole discretion, terminate the use, play, and/or operation of the Game and/or this Agreement, for any reason, at any time, or for no reason, with or without notice to You. Perfect World may, within its sole discretion, deny You access or the ability to play the Game, at any time. Perfect World may, at any time, for any reason and in its sole discretion, terminate this License, deactivate your account(s), and/or discontinue the Service with or without notice to you. In addition, Perfect World may, within its sole discretion, immediately terminate this License and deny you access to the Game, the Service, and/or your account(s) at any time without notice if: (a) you breach any provision of this License; (b) you infringe any third party intellectual property rights; (c) Perfect World is unable to verify or authenticate any information you provide to Perfect World; (d) You engage in any gameplay, chat or any player activity whatsoever which is, in Perfect World’s sole discretion, deemed inappropriate and/or in violation of the spirit of the Game or Service as set forth in the Website; (e) You fail to promptly pay amounts due Perfect World from you; or (f) You violate Perfect World's Terms of Service, Privacy Policy, or any game rules or codes of conduct set forth on the Website. At any time, You can end Your use of the Game through permanently deleting Your copy of the client software from the computer on which it is installed. When this Agreement is terminated, You must delete all copies of the Game and its related documentation as well as all of the Confidential Information in Your possession, custody, or control, and remove all portions of the Game from any hard drives upon which You installed it. Upon termination of the License, for any reason or no reason whatsoever, by either you or Perfect World: (w) You shall immediately discontinue use of the Game, the Service, and Your account(s); (x) all license and rights granted to You under this License will immediately terminate; (y) You will promptly delete all copies of the Game software; and (z) You will immediately forfeit the right to use any and all of Your virtual goods for the Game. Any fees associated with Your use of the Game and the Service are payable in advance and are not refundable, returnable or exchangeable in whole or in part. Your obligation to pay accrued charges and fees will survive any termination of the License. Your obligations under Paragraphs 1-2, 4-13, and the rights of Perfect World (and its affiliates, publishing partners, licensors and licensees) under this Agreement will survive notwithstanding any termination of this Agreement.
3. Facilities. You are solely responsible for, and shall supply, all needed facilities and supplies, such as appropriate computer equipment and Internet connections, all at Your own expense.
4. Ownership.
4.1. The Game software is the valuable property of Perfect World and its licensors and is protected by copyright and other intellectual property laws and treaties. The Game software and documentation are provided to You solely in accordance with this Agreement and are licensed, not sold. This Agreement and the license rights provided to You hereunder are not a sale and do not transfer to You any title or ownership interest in or to the Game or to any other Intellectual Property Rights (defined below). Except for the license rights expressly granted herein, Perfect World and its licensors and suppliers retain all of their respective rights, title and interest in and to the Game.
4.2. (a) "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.
(b) You hereby agree to assign, and do hereby assign to Perfect World all right, title, and interest in and to any and all feedback, suggestions for game improvement, and any all inventions regarding an improvement of or other change or addition to the Game formulated or produced, in whole or in part, as a result of Your feedback or what You have created or made (collectively “Feedback”), and all Intellectual Property Rights embodied therein, or resulting from, such Feedback and inventions. You agree that Perfect World will be and is hereby the sole and exclusive the owner of such Feedback and inventions including all Intellectual Property Rights embodied therein, or resulting from such Feedback and inventions; You hereby agree to cooperate with Perfect World in connection with the protection thereof and shall execute such documents, if any, as needed by Perfect World to perfect its rights hereunder. All rights, title, and interest in and to the Game remains the property of Perfect World, Cryptic and Hasbro, Inc. (and/or their licensors or assigns), and is protected by trade secret, trademark, copyright, patent, and/or other laws protecting Intellectual Property Rights.
(c) You agree that all Feedback may be used by Perfect World to improve or enhance the Game and its products and, accordingly, to the extent the foregoing assignments do not transfer any ownership interest in or to the Feedback and the results thereof to Perfect World, You hereby grant to Perfect World and Cryptic an exclusive, perpetual, irrevocable, fully sublicensable, transferable, royalty free, worldwide right and license to copy, reproduce, modify, create derivative works of, publicly perform, publicly display, distribute, market, offer for sale, sell, have sold, import, have imported, make, have made, use, have used, and commercially exploit the Feedback and all of the information and contents of any and all such Feedback without restriction. Perfect World may, at its option and in its sole discretion, correct software errors or bugs confirmed by Perfect World to exist in the Game without any requirement of payment of any fee or royalty to You.
5. No Alterations/Return of Material. You will not change or remove any proprietary legend or notice from any Confidential Information, the Game, or any other material given to You by Perfect World, or (except to the extent that these actions are expressly permitted by applicable law) try to transfer, copy, modify, decompile, or reverse engineer any Confidential Information, the Game, or other such material. Upon Perfect World’s request during the period of this Agreement, and upon termination of this Agreement, You agree to hand over to Perfect World all copies of the Feedback and all copies of documents or other media in any form, written or electronic, that contain Confidential Information, whether created by You or provided to You by Perfect World.
6. Remedies. You agree that Your obligations and representations, and the license limitations, stated herein, are necessary and reasonable in order to protect Perfect World, its business, and its licensors, and You expressly agree that monetary damages would be inadequate to compensate Perfect World fully for any breach of this Agreement, or for any misrepresentation made by You above. Accordingly, You agree and acknowledge that any such violation or threatened violation will cause irreparable injury to Perfect World and that, in addition to any other remedies that may be available, in law, in equity or otherwise, Perfect World 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.
7. DISCLAIMER OF WARRANTIES.
(A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO THE EXPRESS PROVISIONS OF THIS AGREEMENT: (A) THE GAME SHALL BE AND IS FURNISHED TO YOU ON AN “AS IS” BASIS ONLY WITH ALL FAULTS, DEFECTS AND ERRORS; (B) NEITHER PERFECT WORLD, CRYPTIC STUDIOS, INC., HASBRO, INC., NOR ANY OF THEIR RESPECTIVE AFFILIATES, LICENSORS, PUBLISHING PARTNERS OR SUPPLIERS PROVIDE TO YOU OR TO ANY THIRD PARTY ANY WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, WITH REGARDS TO THE GAME, ITS USE AND/OR OPERATION; AND (C) ALL WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY THAT THE GAME IS APPROPRIATE FOR A PARTICULAR PURPOSE, ANY IMPLIED WARRANTY OF MERCHANTABILITY, ANY IMPLIED WARRANTY OF NONINFRINGEMENT, AND ANY IMPLIED WARRANTY OF TITLE ARE EXPRESSLY AND SPECIFICALLY DISCLAIMED. NEITHER PERFECT WORLD, CRYPTIC STUDIOS, INC., HASBRO, INC., NOR ANY OF THEIR RESPECTIVE AFFILIATES, LICENSORS, PUBLISHING PARTNERS OR SUPPLIERS PROVIDE TO YOU OR TO ANY THIRD PARTY ANY WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, THAT THE GAME WILL OPERATE ERROR-FREE OR BE BUG-FREE OR WITHOUT VIRUSES OR OTHER DEFECTS, TRANSMIT DATA IN A SECURE MANNER, OR FUNCTION PROPERLY WITH THE SERVICE. PERFECT WORLD SHALL HAVE NO LIABILITY OF ANY KIND FOR THE USE OF OR INABILITY TO USE THE GAME SOFTWARE OR THE SERVICE, INCLUDING WITHOUT LIMITATION ANY LOSS OF DATA OR SOFTWARE.
(B) SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR IMPLIED WARRANTIES SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN THAT EVENT, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO THIRTY (30) DAYS FROM THE DATE OF DELIVERY OF THE GAME SOFTWARE. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE.
8. LIMITATION OF LIABILITIES. NEITHER PERFECT WORLD, CRYPTIC STUDIOS, INC., HASBRO, INC., NOR ANY OF THEIR RESPECTIVE AFFILIATES, LICENSORS, PUBLISHING PARTNERS OR SUPPLIERS SHALL BE LIABLE TO YOU OR TO ANY THIRD PARTY, FOR ANY REASON WHATSOEVER, FOR ANY DAMAGES OF ANY KIND, INCLUDING CONTRACT, INCIDENTAL, TORT, CONSEQUENTIAL, OR ANY DIRECT OR GENERAL DAMAGES, THAT YOU MAY SUSTAIN AS A RESULT OF YOUR USE OF THE GAME OR OTHERWISE UNDER OR IN CONNECTION WITH THIS AGREEMENT. THE FOREGOING LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS OF ITS PURPOSE. NEITHER PERFECT WORLD, CRYPTIC STUDIOS, INC., HASBRO, INC., NOR ANY OF THEIR RESPECTIVE AFFILIATES, LICENSORS, PUBLISHING PARTNERS OR SUPPLIERS SHALL BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER, RELATING TO THE GAME, THE MAINTENANCE OR OPERATION OF THE GAME, THE EXERCISE OF ANY OF THE LICENSE RIGHTS CONTEMPLATED OR PERMITTED HEREUNDER, OR IN ANY WAY RELATED TO OR ARISING FROM THE THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOSS OF USE, OR LOST GOODWILL, AND WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, NEGLIGENCE OR STRICT LIABILITY, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR IF SUCH DAMAGE COULD HAVE BEEN REASONABLY FORESEEN. IF, NOTWITHSTANDING THE FOREGOING, ANY LIABILITY FOR MONEY DAMAGES IS IMPOSED ON PERFECT WORLD, CRYPTIC STUDIOS, INC., HASBRO, INC., OR ANY OF THEIR RESPECTIVE AFFILIATES, LICENSORS, PUBLISHING PARTNERS OR ANY SUPPLIERS (COLLECTIVELY “PERFECT WORLD AFFILIATES”), THEN THE AGGREGATE LIABILITY OF THE PERFECT WORLD AFFILIATES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT WITH RESPECT TO ANY AND ALL CLAIMS OR CAUSES OF ACTIONS SHALL BE LIMITED TO THE LESSER OF (X) TEN UNITED STATES DOLLARS (USD$10.00) OR (Y) THE TOTAL AMOUNT OF MONEY PAID BY YOU TO PERFECT WORLD IN THE THIRTY (30) DAYS PRECEDING THE FILING OF YOUR CLAIM.
9. Miscellaneous.
9.1. Prohibited Uses. You shall not use, or authorize the use of, the Game or engage in any Feedback: (a) in connection with the promotion, provision or endorsement of any products, services, forums (including on a website) or activities that are illegal (in any country in which You use or play the Game), or (b) in a way that (i) is defamatory or demeans, ridicules or attacks individuals on the basis of age, color, national origin, race, religion, sex, sexual orientation or disability, (ii) is pornographic, lewd or obscene, (iii) includes threats or graphic violence, (iv) is harmful to children, (v) promotes or endorses illegal drug use, (vi) constitutes or includes unlawful or extreme political or social activism, or (vii) promotes or endorses tobacco use or alcoholic beverages.
9.2. Additional Provisions. You acknowledge that You are not considered, and shall not present Yourself as, an agent, employee, joint venturer, or partner of Perfect World (or any of its respective affiliates, publishing partners, licensors or licensees). This Agreement shall be binding upon and used to the benefit of Perfect World (and its successors and assigns); however, You cannot assign this Agreement, in whole or in part, without the prior written consent of Perfect World. No waiver of any default, condition, or violation of this Agreement shall comprise a waiver of any other default, condition, or violation of this Agreement, whether of a similar nature or otherwise. If any provision of this Agreement be held to be void, invalid or inoperative, then such provision shall be enforced to the extent permissible and the remaining provisions of this Agreement shall not be affected. This Agreement, together with the Terms of Service and all other agreements, terms and policies incorporated herein by reference, sets forth our entire agreement with respect to the Game software and the subject matter hereof and supersedes all prior and contemporaneous understandings and agreements whether written or oral.
9.3. Governing Law & Choice of Forum. This Agreement shall be governed by the laws of the State of California, U.S.A. as applied to contracts entered into and to be performed entirely within the State of California, U.S.A.; the laws of the State of California shall be applicable and shall govern, to the exclusion of the law of any other forum, without regard to the jurisdiction in which the action or special proceeding may be instituted. The state courts located within San Mateo County, or federal courts located in the Northern District of California shall have exclusive jurisdiction and venue of all disputes arising in connection with or out of this Agreement or to otherwise enforce or seek damages for breach of this Agreement, and/or relating to the subject matter hereof; You and each party to this Agreement expressly agree to and do hereby submit to the jurisdiction and venue of such courts. You and each party to this Agreement hereby irrevocably waive any and all claims and defenses anyone might otherwise have in any action or proceeding in any of such courts based upon any alleged lack of personal jurisdiction, improper venue, forum non conveniens or any similar claim or defense. The U.N. Convention on Contracts for the International Sale of Goods or any successor thereto is expressly disclaimed and does not apply to this Agreement.
9.4. Independent Contractors. 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.
9.5. Export Restrictions and Use Outside of the United States. You acknowledge and agree that the Game software is 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 Game software nor any direct product thereof is being or will be acquired, shipped, transferred or reexported, 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 Game software.
9.6. INDEMNITY. YOU AGREE TO DEFEND, INDEMNIFY AND HOLD PERFECT WORLD, CRYPTIC STUDIOS, INC., HASBRO, INC., AND THEIR RESPECTIVE AFFILIATES, INDEPENDENT CONTRACTORS, AND SERVICE PROVIDERS, AND EACH OF THEIR RESPECTIVE MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS ("PERFECT WORLD PARTIES"), HARMLESS FROM AND AGAINST ALL CLAIMS, DAMAGES, COSTS, LIABILITIES AND EXPENSES (INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEYS' FEES) ARISING OUT OF OR RELATED TO YOUR USE OF THE GAME SOFTWARE.
9.7. Arbitration. You agree that the exclusive forum for all disputes and claims relating in any way to, or arising out of, this Agreement and/or the Game (including the arbitrability of any claim or dispute and the enforceability of this paragraph) will be final and binding arbitration. The arbitration will be conducted under the Commercial Arbitration Rules of the American Arbitration Association ("AAA") before a panel of three arbitrators and conducted in the State of California. The parties also agree that the AAA Optional Rules for Emergency Measures of Protection will apply to the proceedings. The parties may only litigate in court only to compel arbitration under this Agreement or to confirm, modify, vacate or enter judgment on the award rendered by the arbitrators. Notwithstanding the foregoing, to the extent that You have breached or indicated Your intention to breach this Agreement in any manner which violates or may violate Perfect World’s, Cryptic Studios’, Hasbro’s and/or their respective licensors’ intellectual property rights, or may cause continuing or irreparable harm to Perfect World, Cryptic Studios, Hasbro and/or their respective licensors (including, but not limited to, any breach that may impact Perfect World’s, Cryptic Studios’, Hasbro’s and/or any of their respective licensors’ intellectual property rights, or a breach due to reverse engineering), Perfect World, Cryptic Studios, Hasbro and/or their respective licensors may seek and shall be entitled injunctive relief, or any other appropriate relief, in any court of competent jurisdiction with the requirement to post a bond or establish the insufficiency of any legal remedy. You must commence an arbitration by filing a demand for arbitration with the AAA within ONE (1) YEAR after the date giving rise to the claim; and there will be no right to any remedy for any claim not asserted within that time period; if applicable law prohibits a one-year limitations period for asserting claims, the claim must be asserted within the shortest time period in excess of one year that is permitted by applicable law. To the fullest extent permitted by applicable law: no arbitration under this Agreement will be joined to an arbitration involving any other current or former customer, end user or licensee of Perfect World, whether through class arbitration proceedings or otherwise; no finding or stipulation of fact in any other arbitration, judicial or similar proceeding may be given preclusive or collateral estoppel effect in any arbitration hereunder (unless determined in another proceeding between the parties); and no conclusion of law in any other arbitration may be given any weight in any arbitration hereunder (unless determined in another proceeding between the parties). This Agreement will be governed by the laws of the State of California and the Federal Arbitration Act, without regard to conflicts of law provisions, and You hereby consent to the exclusive jurisdiction of the state and federal courts sitting in the State of California as set forth above.
10. Notices. All rights and licenses not expressly stated herein are expressly reserved by Perfect World, Cryptic Studios, Inc., and Hasbro, Inc. and their respective licensors. DUNGEONS & DRAGONS, D&D, NEVERWINTER, the FORGOTTEN REALMS, WIZARDS OF THE COAST, and all related titles, logos and characters are trademarks of Wizards of the Coast LLC in the U.S.A. and other countries and are used with permission. HASBRO and its logo are the trademarks of Hasbro, Inc. and are used with permission.” ©2011-2013 Hasbro, Inc. ©2011-2013 Perfect World Entertainment Inc. ©2011-2013 Cryptic Studios, Inc. All Rights Reserved By All Copyright Holders.
For Dungeons & Dragons Neverwinter™
(Last Update: April 2013)</center>
NOTICE TO PARTICIPANTS AND USERS: PLEASE READ THIS END USER GAME LICENSE AGREEMENT (“AGREEMENT”) FOR THE MULTI-PLAYER ONLINE COMPUTER GAME ENTITLED DUNGEONS & DRAGONS NEVERWINTER™ (“GAME”) CAREFULLY. IT IS IMPORTANT THAT YOU UNDERSTAND THIS AGREEMENT. BY CLICKING THE “I AGREE” BUTTON, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT OR OTHERWISE DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, PLEASE CLICK THE “CANCEL” BUTTON. IF YOU DO NOT AGREE TO THIS AGREEMENT, DO NOT INSTALL, COPY, OR USE THE GAME SOFTWARE. IF YOU DO NOT ACCEPT THIS AGREEMENT, THEN: (A) THE GAME WILL NOT BE INSTALLED ON YOUR COMPUTER, AND (B) IF YOU HAVE OBTAINED A COPY OF THE CLIENT SOFTWARE FOR THE GAME, YOU ARE REQUIRED TO DELETE IT IMMEDIATELY. IN ADDITION, BY USING ALL OR ANY PORTION OF THE GAME OR GAME SOFTWARE, YOU ACCEPT, ON AN ONGOING BASIS, ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. THIS AGREEMENT IS ENFORCEABLE AGAINST YOU AND ANY THIRD PARTY OR PERSON ON WHOSE BEHALF IT IS USED. THIS AGREEMENT IS BETWEEN YOU AND PERFECT WORLD ENTERTAINMENT INC., A DELAWARE CORPORATION (“PERFECT WORLD”), PUBLISHER OF THE GAME. PERFECT WORLD PUBLISHES THE GAME UNDER LICENSE FROM CRYPTIC STUDIOS, INC., A CALIFORNIA CORPORATION AND HASBRO, INC., A RHODE ISLAND CORPORATION. THIS AGREEMENT IS ALSO LEGALLY ENFORCEABLE AGAINST YOU BY PERFECT WORLD’S LICENSORS, AS THIRD PARTY BENEFICIARIES OF THIS AGREEMENT, CRYPTIC STUDIOS, INC., A CALIFORNIA CORPORATION AND HASBRO, INC., A RHODE ISLAND CORPORATION. THIS AGREEMENT IS A CONTRACT AND LEGALLY BINDING AGAINST YOU.
PERFECT WORLD MAY AMEND OR MODIFY THIS AGREEMENT (AND THE TERMS OF SERVICE AND ANY OTHER RELATED AGREEMENTS OR TERMS) AT ANY TIME IN OUR SOLE DISCRETION. AMENDMENTS AND MODIFICATIONS WILL BE EFFECTIVE IMMEDIATELY AFTER PUBLISHING THEM ON THE WEBSITE OR OTHERWISE PROVIDING YOU A COPY THEREOF, AND YOU WAIVE ANY RIGHT YOU MAY HAVE TO RECEIVE SPECIFIC NOTICE OF SUCH CHANGES OR MODIFICATIONS. PERFECT WORLD WILL INDICATE AT THE TOP OF THIS AGREEMENT THE DATE IT WAS LAST UPDATED. YOU AGREE TO AND ARE RESPONSIBLE FOR CHECKING THIS AGREEMENT PERIODICALLY SO YOU WILL BE FAMILIAR WITH ITS CONTENTS, AS IT MAY BE AMENDED OR MODIFIED FROM TIME TO TIME. BY CONTINUING TO USE THE GAME SOFTWARE, YOU ARE SIGNIFYING YOUR ACCEPTANCE OF ANY REVISED OR UPDATED TERMS. IF YOU DO NOT AGREE TO THE AMENDED TERMS, YOU MUST STOP USING THE GAME SOFTWARE.
1. Limited License & Consents.
1.1. Subject to all other terms and conditions of this Agreement, the Perfect World Terms of Service that governs your use of the Service (defined below), the Perfect World Privacy Policy, and your compliance with any Rules of Conduct posted on the Website (as defined below) or otherwise provided to you by Perfect World (the "Rules of Conduct"), Perfect World hereby grants You a limited, non-exclusive, non-transferable, non-sublicensable, revocable license and right to access, download, install, and operate, one copy of the object code format of the client software of the Game made accessible to You periodically by Perfect World, on one or more personal computing devices under your control solely to access and use the Service for your own personal, noncommercial entertainment use. Any Perfect World Game software that updates, supplements or replaces the original Game software is governed by this Agreement and is included within the definition of the term Game 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 this Agreement or as otherwise provided in such separate terms. As used herein, the term "Service" means collectively the Perfect World website located at (or any subsequent URL which may replace it) and all officially associated websites and micro-sites (collectively, the "Website") and all features, functions, software and services offered through the Website.
1.2. Limitations. The preceding states the entirety of your rights with respect to the Game software, and Perfect World reserves all rights not expressly granted to you in this Agreement. Without limiting the foregoing, you will not do, or authorize or permit any third party to do, any of the following: (a) distribute, license, rent, lease, sell or transfer the Software; (b) use the Game software for any commercial or business purposes or otherwise for any purpose other than your own personal entertainment use; (c) reverse engineer, decompile, disassemble or attempt to discover the source code for the Game software; (d) modify, alter or create any derivative works of the Game software; (e) remove, alter or obscure any copyright, trademark or other proprietary rights notice on or in the Game software, (f) use any third party software to modify the Game software or the Service or to change game play; (g) redirect, intercept or emulate any communication protocols used by Perfect World as part of the Service by any means, including but not limited to protocol emulation, reverse engineering, packet sniffing, or modifying or adding components to the Game software; (h) provide, host, facilitate, link to or use any private servers, emulators, "matchmaking" services or other means by which the Games may be played outside of the Service; or (i) create, use or maintain any unauthorized connections to the Game software or the Service. All such connections may only be made through methods and means expressly approved by Perfect World, and Games may only be played on sites hosted by (or under the authority of) Perfect World. 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 Game or any Confidential Information. You may not network the Game or use the Game in any other way on more than one computer or computer terminal simultaneously, except that You may connect online via the Internet to the Perfect World network that hosts the persistent Game world. Perfect World has no obligation to give You the appropriate software and/or access codes to the Game; access to the Game and any appropriate software are at Perfect World’s sole discretion.
1.3. A SMALL PERCENTAGE OF USERS MAY EXPERIENCE EPILEPTIC SEIZURES WHEN EXPOSED TO CERTAIN LIGHT PATTERNS OR BACKGROUNDS ON A COMPUTER SCREEN OR WHILE USING THE GAME SOFTWARE. CERTAIN CONDITIONS MAY INDUCE PREVIOUSLY UNDETECTED EPILEPTIC SYMPTOMS EVEN IN USERS WHO HAVE NO HISTORY OF PRIOR SEIZURES OR EPILEPSY. IF YOU, OR ANYONE IN YOUR FAMILY, HAVE AN EPILEPTIC CONDITION, CONSULT YOUR PHYSICIAN PRIOR TO USING THE SERVICE. IMMEDIATELY DISCONTINUE USE OF THE GAME SOFTWARE AND CONSULT YOUR PHYSICIAN IF YOU EXPERIENCE ANY OF THE FOLLOWING SYMPTOMS WHILE USING THE SERVICE: DIZZINESS, ALTERED VISION, EYE OR MUSCLE TWITCHES, LOSS OF AWARENESS, DISORIENTATION, ANY INVOLUNTARY MOVEMENT, OR CONVULSIONS.
1.4. You understand and agree that Perfect World may update, enhance or otherwise modify in any manner the Game software and/or the Service at any time without notice. When Perfect World updates or "patches" the Game software, We may utilize a patch routine to verify whether the most recent version of the Game is installed on Your computer. If not, You agree hereby and consent to the most recent version being automatically uploaded to and installed on Your computer, modifying or replacing any prior version of the Game software that may be installed on Your computer, and You waive any further notice of, such upload and installation. However, You understand that We have no obligation to furnish any updates or patches to You pursuant to this Agreement.
1.5. You understand and agree that the Game software may monitor and communicate information from Your computer, including without limitation information relating to hardware capacity, modifications and the presence of unauthorized third party programs, including programs that enable or facilitate cheating or obtaining an unfair advantage of any kind, allow users to modify or hack any portion of the Game software or the Service (other than as expressly authorized by Perfect World) or intercept or collect any information from or through the Game software or the Service ("Unauthorized Programs"). If the Game software detects an Unauthorized Program, then the Game software may also communicate further information back to Perfect World regarding the user and the Unauthorized Program, including without limitation information about the users account and User ID and about the Unauthorized Program and its use. Further, You understand and agree that when You communicate with other players within a game or utilize any interactive features available through the Game software or Service, 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." You acknowledge that You have no expectation of privacy with respect to any such communications or postings, and You expressly consent to the monitoring and information collection described in this Section
1.6. You shall comply with all applicable laws regarding Your use of the Game software, the Service and Your playing of the Games. Without limiting the foregoing, You may not download, use or otherwise export or re-export the Game software except in full compliance with all applicable laws and regulations, including, without limitation, the laws of the United States.
2. Term. This Agreement begins on the day You agree to these terms and conditions and continues in effect up until it is terminated by You or Perfect World. This Agreement is terminable at will at any time by Perfect World, solely within its discretion. Perfect World may, within its sole discretion, terminate the use, play, and/or operation of the Game and/or this Agreement, for any reason, at any time, or for no reason, with or without notice to You. Perfect World may, within its sole discretion, deny You access or the ability to play the Game, at any time. Perfect World may, at any time, for any reason and in its sole discretion, terminate this License, deactivate your account(s), and/or discontinue the Service with or without notice to you. In addition, Perfect World may, within its sole discretion, immediately terminate this License and deny you access to the Game, the Service, and/or your account(s) at any time without notice if: (a) you breach any provision of this License; (b) you infringe any third party intellectual property rights; (c) Perfect World is unable to verify or authenticate any information you provide to Perfect World; (d) You engage in any gameplay, chat or any player activity whatsoever which is, in Perfect World’s sole discretion, deemed inappropriate and/or in violation of the spirit of the Game or Service as set forth in the Website; (e) You fail to promptly pay amounts due Perfect World from you; or (f) You violate Perfect World's Terms of Service, Privacy Policy, or any game rules or codes of conduct set forth on the Website. At any time, You can end Your use of the Game through permanently deleting Your copy of the client software from the computer on which it is installed. When this Agreement is terminated, You must delete all copies of the Game and its related documentation as well as all of the Confidential Information in Your possession, custody, or control, and remove all portions of the Game from any hard drives upon which You installed it. Upon termination of the License, for any reason or no reason whatsoever, by either you or Perfect World: (w) You shall immediately discontinue use of the Game, the Service, and Your account(s); (x) all license and rights granted to You under this License will immediately terminate; (y) You will promptly delete all copies of the Game software; and (z) You will immediately forfeit the right to use any and all of Your virtual goods for the Game. Any fees associated with Your use of the Game and the Service are payable in advance and are not refundable, returnable or exchangeable in whole or in part. Your obligation to pay accrued charges and fees will survive any termination of the License. Your obligations under Paragraphs 1-2, 4-13, and the rights of Perfect World (and its affiliates, publishing partners, licensors and licensees) under this Agreement will survive notwithstanding any termination of this Agreement.
3. Facilities. You are solely responsible for, and shall supply, all needed facilities and supplies, such as appropriate computer equipment and Internet connections, all at Your own expense.
4. Ownership.
4.1. The Game software is the valuable property of Perfect World and its licensors and is protected by copyright and other intellectual property laws and treaties. The Game software and documentation are provided to You solely in accordance with this Agreement and are licensed, not sold. This Agreement and the license rights provided to You hereunder are not a sale and do not transfer to You any title or ownership interest in or to the Game or to any other Intellectual Property Rights (defined below). Except for the license rights expressly granted herein, Perfect World and its licensors and suppliers retain all of their respective rights, title and interest in and to the Game.
4.2. (a) "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.
(b) You hereby agree to assign, and do hereby assign to Perfect World all right, title, and interest in and to any and all feedback, suggestions for game improvement, and any all inventions regarding an improvement of or other change or addition to the Game formulated or produced, in whole or in part, as a result of Your feedback or what You have created or made (collectively “Feedback”), and all Intellectual Property Rights embodied therein, or resulting from, such Feedback and inventions. You agree that Perfect World will be and is hereby the sole and exclusive the owner of such Feedback and inventions including all Intellectual Property Rights embodied therein, or resulting from such Feedback and inventions; You hereby agree to cooperate with Perfect World in connection with the protection thereof and shall execute such documents, if any, as needed by Perfect World to perfect its rights hereunder. All rights, title, and interest in and to the Game remains the property of Perfect World, Cryptic and Hasbro, Inc. (and/or their licensors or assigns), and is protected by trade secret, trademark, copyright, patent, and/or other laws protecting Intellectual Property Rights.
(c) You agree that all Feedback may be used by Perfect World to improve or enhance the Game and its products and, accordingly, to the extent the foregoing assignments do not transfer any ownership interest in or to the Feedback and the results thereof to Perfect World, You hereby grant to Perfect World and Cryptic an exclusive, perpetual, irrevocable, fully sublicensable, transferable, royalty free, worldwide right and license to copy, reproduce, modify, create derivative works of, publicly perform, publicly display, distribute, market, offer for sale, sell, have sold, import, have imported, make, have made, use, have used, and commercially exploit the Feedback and all of the information and contents of any and all such Feedback without restriction. Perfect World may, at its option and in its sole discretion, correct software errors or bugs confirmed by Perfect World to exist in the Game without any requirement of payment of any fee or royalty to You.
5. No Alterations/Return of Material. You will not change or remove any proprietary legend or notice from any Confidential Information, the Game, or any other material given to You by Perfect World, or (except to the extent that these actions are expressly permitted by applicable law) try to transfer, copy, modify, decompile, or reverse engineer any Confidential Information, the Game, or other such material. Upon Perfect World’s request during the period of this Agreement, and upon termination of this Agreement, You agree to hand over to Perfect World all copies of the Feedback and all copies of documents or other media in any form, written or electronic, that contain Confidential Information, whether created by You or provided to You by Perfect World.
6. Remedies. You agree that Your obligations and representations, and the license limitations, stated herein, are necessary and reasonable in order to protect Perfect World, its business, and its licensors, and You expressly agree that monetary damages would be inadequate to compensate Perfect World fully for any breach of this Agreement, or for any misrepresentation made by You above. Accordingly, You agree and acknowledge that any such violation or threatened violation will cause irreparable injury to Perfect World and that, in addition to any other remedies that may be available, in law, in equity or otherwise, Perfect World 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.
7. DISCLAIMER OF WARRANTIES.
(A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO THE EXPRESS PROVISIONS OF THIS AGREEMENT: (A) THE GAME SHALL BE AND IS FURNISHED TO YOU ON AN “AS IS” BASIS ONLY WITH ALL FAULTS, DEFECTS AND ERRORS; (B) NEITHER PERFECT WORLD, CRYPTIC STUDIOS, INC., HASBRO, INC., NOR ANY OF THEIR RESPECTIVE AFFILIATES, LICENSORS, PUBLISHING PARTNERS OR SUPPLIERS PROVIDE TO YOU OR TO ANY THIRD PARTY ANY WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, WITH REGARDS TO THE GAME, ITS USE AND/OR OPERATION; AND (C) ALL WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY THAT THE GAME IS APPROPRIATE FOR A PARTICULAR PURPOSE, ANY IMPLIED WARRANTY OF MERCHANTABILITY, ANY IMPLIED WARRANTY OF NONINFRINGEMENT, AND ANY IMPLIED WARRANTY OF TITLE ARE EXPRESSLY AND SPECIFICALLY DISCLAIMED. NEITHER PERFECT WORLD, CRYPTIC STUDIOS, INC., HASBRO, INC., NOR ANY OF THEIR RESPECTIVE AFFILIATES, LICENSORS, PUBLISHING PARTNERS OR SUPPLIERS PROVIDE TO YOU OR TO ANY THIRD PARTY ANY WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, THAT THE GAME WILL OPERATE ERROR-FREE OR BE BUG-FREE OR WITHOUT VIRUSES OR OTHER DEFECTS, TRANSMIT DATA IN A SECURE MANNER, OR FUNCTION PROPERLY WITH THE SERVICE. PERFECT WORLD SHALL HAVE NO LIABILITY OF ANY KIND FOR THE USE OF OR INABILITY TO USE THE GAME SOFTWARE OR THE SERVICE, INCLUDING WITHOUT LIMITATION ANY LOSS OF DATA OR SOFTWARE.
(B) SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR IMPLIED WARRANTIES SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN THAT EVENT, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO THIRTY (30) DAYS FROM THE DATE OF DELIVERY OF THE GAME SOFTWARE. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE.
8. LIMITATION OF LIABILITIES. NEITHER PERFECT WORLD, CRYPTIC STUDIOS, INC., HASBRO, INC., NOR ANY OF THEIR RESPECTIVE AFFILIATES, LICENSORS, PUBLISHING PARTNERS OR SUPPLIERS SHALL BE LIABLE TO YOU OR TO ANY THIRD PARTY, FOR ANY REASON WHATSOEVER, FOR ANY DAMAGES OF ANY KIND, INCLUDING CONTRACT, INCIDENTAL, TORT, CONSEQUENTIAL, OR ANY DIRECT OR GENERAL DAMAGES, THAT YOU MAY SUSTAIN AS A RESULT OF YOUR USE OF THE GAME OR OTHERWISE UNDER OR IN CONNECTION WITH THIS AGREEMENT. THE FOREGOING LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS OF ITS PURPOSE. NEITHER PERFECT WORLD, CRYPTIC STUDIOS, INC., HASBRO, INC., NOR ANY OF THEIR RESPECTIVE AFFILIATES, LICENSORS, PUBLISHING PARTNERS OR SUPPLIERS SHALL BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER, RELATING TO THE GAME, THE MAINTENANCE OR OPERATION OF THE GAME, THE EXERCISE OF ANY OF THE LICENSE RIGHTS CONTEMPLATED OR PERMITTED HEREUNDER, OR IN ANY WAY RELATED TO OR ARISING FROM THE THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOSS OF USE, OR LOST GOODWILL, AND WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, NEGLIGENCE OR STRICT LIABILITY, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR IF SUCH DAMAGE COULD HAVE BEEN REASONABLY FORESEEN. IF, NOTWITHSTANDING THE FOREGOING, ANY LIABILITY FOR MONEY DAMAGES IS IMPOSED ON PERFECT WORLD, CRYPTIC STUDIOS, INC., HASBRO, INC., OR ANY OF THEIR RESPECTIVE AFFILIATES, LICENSORS, PUBLISHING PARTNERS OR ANY SUPPLIERS (COLLECTIVELY “PERFECT WORLD AFFILIATES”), THEN THE AGGREGATE LIABILITY OF THE PERFECT WORLD AFFILIATES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT WITH RESPECT TO ANY AND ALL CLAIMS OR CAUSES OF ACTIONS SHALL BE LIMITED TO THE LESSER OF (X) TEN UNITED STATES DOLLARS (USD$10.00) OR (Y) THE TOTAL AMOUNT OF MONEY PAID BY YOU TO PERFECT WORLD IN THE THIRTY (30) DAYS PRECEDING THE FILING OF YOUR CLAIM.
9. Miscellaneous.
9.1. Prohibited Uses. You shall not use, or authorize the use of, the Game or engage in any Feedback: (a) in connection with the promotion, provision or endorsement of any products, services, forums (including on a website) or activities that are illegal (in any country in which You use or play the Game), or (b) in a way that (i) is defamatory or demeans, ridicules or attacks individuals on the basis of age, color, national origin, race, religion, sex, sexual orientation or disability, (ii) is pornographic, lewd or obscene, (iii) includes threats or graphic violence, (iv) is harmful to children, (v) promotes or endorses illegal drug use, (vi) constitutes or includes unlawful or extreme political or social activism, or (vii) promotes or endorses tobacco use or alcoholic beverages.
9.2. Additional Provisions. You acknowledge that You are not considered, and shall not present Yourself as, an agent, employee, joint venturer, or partner of Perfect World (or any of its respective affiliates, publishing partners, licensors or licensees). This Agreement shall be binding upon and used to the benefit of Perfect World (and its successors and assigns); however, You cannot assign this Agreement, in whole or in part, without the prior written consent of Perfect World. No waiver of any default, condition, or violation of this Agreement shall comprise a waiver of any other default, condition, or violation of this Agreement, whether of a similar nature or otherwise. If any provision of this Agreement be held to be void, invalid or inoperative, then such provision shall be enforced to the extent permissible and the remaining provisions of this Agreement shall not be affected. This Agreement, together with the Terms of Service and all other agreements, terms and policies incorporated herein by reference, sets forth our entire agreement with respect to the Game software and the subject matter hereof and supersedes all prior and contemporaneous understandings and agreements whether written or oral.
9.3. Governing Law & Choice of Forum. This Agreement shall be governed by the laws of the State of California, U.S.A. as applied to contracts entered into and to be performed entirely within the State of California, U.S.A.; the laws of the State of California shall be applicable and shall govern, to the exclusion of the law of any other forum, without regard to the jurisdiction in which the action or special proceeding may be instituted. The state courts located within San Mateo County, or federal courts located in the Northern District of California shall have exclusive jurisdiction and venue of all disputes arising in connection with or out of this Agreement or to otherwise enforce or seek damages for breach of this Agreement, and/or relating to the subject matter hereof; You and each party to this Agreement expressly agree to and do hereby submit to the jurisdiction and venue of such courts. You and each party to this Agreement hereby irrevocably waive any and all claims and defenses anyone might otherwise have in any action or proceeding in any of such courts based upon any alleged lack of personal jurisdiction, improper venue, forum non conveniens or any similar claim or defense. The U.N. Convention on Contracts for the International Sale of Goods or any successor thereto is expressly disclaimed and does not apply to this Agreement.
9.4. Independent Contractors. 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.
9.5. Export Restrictions and Use Outside of the United States. You acknowledge and agree that the Game software is 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 Game software nor any direct product thereof is being or will be acquired, shipped, transferred or reexported, 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 Game software.
9.6. INDEMNITY. YOU AGREE TO DEFEND, INDEMNIFY AND HOLD PERFECT WORLD, CRYPTIC STUDIOS, INC., HASBRO, INC., AND THEIR RESPECTIVE AFFILIATES, INDEPENDENT CONTRACTORS, AND SERVICE PROVIDERS, AND EACH OF THEIR RESPECTIVE MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS ("PERFECT WORLD PARTIES"), HARMLESS FROM AND AGAINST ALL CLAIMS, DAMAGES, COSTS, LIABILITIES AND EXPENSES (INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEYS' FEES) ARISING OUT OF OR RELATED TO YOUR USE OF THE GAME SOFTWARE.
9.7. Arbitration. You agree that the exclusive forum for all disputes and claims relating in any way to, or arising out of, this Agreement and/or the Game (including the arbitrability of any claim or dispute and the enforceability of this paragraph) will be final and binding arbitration. The arbitration will be conducted under the Commercial Arbitration Rules of the American Arbitration Association ("AAA") before a panel of three arbitrators and conducted in the State of California. The parties also agree that the AAA Optional Rules for Emergency Measures of Protection will apply to the proceedings. The parties may only litigate in court only to compel arbitration under this Agreement or to confirm, modify, vacate or enter judgment on the award rendered by the arbitrators. Notwithstanding the foregoing, to the extent that You have breached or indicated Your intention to breach this Agreement in any manner which violates or may violate Perfect World’s, Cryptic Studios’, Hasbro’s and/or their respective licensors’ intellectual property rights, or may cause continuing or irreparable harm to Perfect World, Cryptic Studios, Hasbro and/or their respective licensors (including, but not limited to, any breach that may impact Perfect World’s, Cryptic Studios’, Hasbro’s and/or any of their respective licensors’ intellectual property rights, or a breach due to reverse engineering), Perfect World, Cryptic Studios, Hasbro and/or their respective licensors may seek and shall be entitled injunctive relief, or any other appropriate relief, in any court of competent jurisdiction with the requirement to post a bond or establish the insufficiency of any legal remedy. You must commence an arbitration by filing a demand for arbitration with the AAA within ONE (1) YEAR after the date giving rise to the claim; and there will be no right to any remedy for any claim not asserted within that time period; if applicable law prohibits a one-year limitations period for asserting claims, the claim must be asserted within the shortest time period in excess of one year that is permitted by applicable law. To the fullest extent permitted by applicable law: no arbitration under this Agreement will be joined to an arbitration involving any other current or former customer, end user or licensee of Perfect World, whether through class arbitration proceedings or otherwise; no finding or stipulation of fact in any other arbitration, judicial or similar proceeding may be given preclusive or collateral estoppel effect in any arbitration hereunder (unless determined in another proceeding between the parties); and no conclusion of law in any other arbitration may be given any weight in any arbitration hereunder (unless determined in another proceeding between the parties). This Agreement will be governed by the laws of the State of California and the Federal Arbitration Act, without regard to conflicts of law provisions, and You hereby consent to the exclusive jurisdiction of the state and federal courts sitting in the State of California as set forth above.
10. Notices. All rights and licenses not expressly stated herein are expressly reserved by Perfect World, Cryptic Studios, Inc., and Hasbro, Inc. and their respective licensors. DUNGEONS & DRAGONS, D&D, NEVERWINTER, the FORGOTTEN REALMS, WIZARDS OF THE COAST, and all related titles, logos and characters are trademarks of Wizards of the Coast LLC in the U.S.A. and other countries and are used with permission. HASBRO and its logo are the trademarks of Hasbro, Inc. and are used with permission.” ©2011-2013 Hasbro, Inc. ©2011-2013 Perfect World Entertainment Inc. ©2011-2013 Cryptic Studios, Inc. All Rights Reserved By All Copyright Holders.