Phoenix Labs Terms of Service
Last Updated: 11-29-2016
The Dauntless game (the “Game”);
The software underlying the Game (the “Software”);
The locally-installed game software that we make available for you to download for purposes of updating and launching the Game (the “Game Client”);
The Dauntless website (www.playdauntless.com) (the “Site”); and
The Dauntless online forum (the “Forum”).
Agreement to Terms
By using our Services, you agree to be bound by these Terms. If you don’t agree to be bound by these Terms, do not use the Services.
Changes to Terms or Services
We may modify the Terms at any time, in our sole discretion. If we do so, we’ll let you know either by posting the modified Terms on the Site or through other communications. It’s important that you review the Terms whenever we modify them because if you continue to use the Services after we have posted modified Terms on the Site, you are indicating to us that you agree to be bound by the modified Terms. If you don’t agree to be bound by the modified Terms, then you may not use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
ARBITRATION NOTICE: UNLESS YOU OPT OUT OF ARBITRATION WITHIN 30 DAYS OF THE DATE YOU FIRST AGREE TO THESE TERMS BY FOLLOWING THE OPT-OUT PROCEDURE SPECIFIED IN THE “ARBITRATION” SECTION BELOW, AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE “ARBITRATION “SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND PHOENIX LABS WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
Who May Use the Services
The Services are intended solely for persons who are 13 or older. Any access to or use of the Services by anyone under 13 is expressly prohibited. By accessing or using the Services you represent and warrant that you are 13 or older.
Registration and Your Information
If you want to use certain features of the Services you’ll have to create an account (“Account”) via the Site. It’s important that you provide us with accurate, complete and up-to-date information for your Account and you agree to update such information, as needed, to keep it accurate, complete and up-to-date. If you don’t, we might have to suspend or terminate your Account. You agree that you won’t disclose your Account password to anyone and you’ll notify us immediately of any unauthorized use of your Account. You’re responsible for all activities that occur under your Account, whether or not you know about them.
We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You can submit Feedback by emailing us at [email protected] or by using the Feedback function within the Games. You grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
You may have the option to purchase in-Game currency (“Virtual Currency”) to use for acquisition of Virtual Goods(as further described below). We may change the Virtual Currency due for Virtual Goods and any other fees we charge at any time in our sole discretion. We, or our third-party payment processing provider(s), may charge your Account or credit card for such purchases. You agree to pay all applicable charges assessed to your Account.
While the general use of the Services is free of charge, certain digital features such as character skins and game enhancements (“Virtual Goods”) may only be obtained through the use Virtual Currency. Regardless of how your Virtual Currency or Virtual Items (collectively “Virtual Goods”) are acquired or any terminology used, your Virtual Goods have no cash value and, unless otherwise required by law or permitted by these Terms, are not redeemable or refundable for any “real world” money or anything of monetary value.
Virtual Goods are digital items only. Phoenix Labs grants to you a limited, non-exclusive, non-transferable, non-sublicenseable, revocable right and license to use such Virtual Goods solely within the Game for your personal and non-commercial entertainment use and for no other purpose. Except for the limited rights described herein, you have no property interest or right or title in or to any such Virtual Goods, which remain the exclusive property of Phoenix Labs. Virtual Goods are made available to you at our sole discretion. The existence of a particular offer of Virtual Goods is not a commitment by Phoenix Labs to maintain or continue to make the Virtual Goods available in the future. The scope, variety and type of Virtual Goods that you may obtain can change or be discontinued at any time. Phoenix Labs has the absolute right to manage, regulate, control, modify or eliminate such Virtual Goods as it sees fit in its sole discretion, and won’t be liable to you or anyone for the exercise of such rights.
Except where explicitly authorized within the Game, (i) transfers of Virtual Goods are strictly prohibited; (ii) outside of the Game, you may not buy or sell any Virtual Goods for “real world” money or otherwise exchange items for value; and (iii) Phoenix Labs does not recognize any such purported transfers of Virtual Goods, nor the purported sale, gift or trade in the “real world” of anything that appears in the Game. Any attempt to do any of the foregoing is in violation of these Terms and will result in an automatic termination of your rights to use the Virtual Goods and may result in termination of your Account. All Virtual Goods are forfeited if your Account is terminated or suspended for any reason, or if we discontinue providing the Services.
In the event you choose to use paid aspects of the Services (e.g., if you decide to purchase Virtual Currency), you agree to the pricing, payment and billing policies applicable to such fees and charges, as posted in the Game. All fees are non-refundable and non-transferable except as expressly provided in these Terms.
YOU AGREE THAT YOU WON’T ASSERT OR BRING ANY CLAIM AGAINST PHOENIX LABS, ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR LICENSORS RELATING TO (A) A CLAIM THAT YOU OWN ANY VIRTUAL GOODS; (B) A CLAIM FOR AN ALLEGED MONETARY VALUE OF VIRTUAL GOODS LOST UPON DELETION OR SUSPENSION OF YOUR ACCOUNT OR MODIFICATION, TERMINATION OR EXPIRATION OF THESE TERMS.
Content and Content Rights
For purposes of these Terms: (i) “Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services; and (ii) “User Content” means any Content that Account holders (including you) provide to be made available through the Forum. Content includes without limitation User Content.
Content Ownership, Responsibility and Removal
Phoenix Labs does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content. Subject to the foregoing, Phoenix Labs and its licensors exclusively own all right, title and interest in and to the Services and Content, including all associated intellectual property rights. You acknowledge that the Services and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content.
Rights in User Content Granted by You
By making any User Content available through Services you hereby grant to Phoenix Labs a non-exclusive, transferable, sublicenseable, worldwide, royalty-free license to use, copy, modify (for formatting purposes), distribute, publicly display, publicly perform and distribute your User Content in connection with operating and providing the Services and Content to you and to other Account holders.
You are solely responsible for all your User Content. You represent and warrant that you own all your User Content or you have all rights that are necessary to grant us the license rights in your User Content under these Terms. You also represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by Phoenix Labs on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
You can remove your User Content by specifically deleting it. However, in certain instances, some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the Services. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
Rights in Content Granted by Phoenix Labs
Subject to your compliance with these Terms, Phoenix Labs grants you a limited, non-exclusive, non-transferable, non-sublicensable license to access and view the Content solely in connection with your permitted use of the Services for your personal and non-commercial entertainment purposes.
Rights to Game Client
Rights in Games Granted by Phoenix Labs
Subject to your compliance with these Terms, Phoenix Labs grants you a limited non-exclusive, non-transferable, non-sublicenseable license to download and install a copy of the Game Client on a computer that you own or control and to use the Game Client solely to interact with the Game for your own personal non-commercial purposes. You may not copy Game Client, except for making a reasonable number of copies for backup or archival purposes.
Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the Game or Game Client; (ii) distribute, transfer, sublicense, lease, lend or rent the Games or Game Client to any third party; (iii) reverse engineer, decompile or disassemble the Game or Game Client; or (iv) make the functionality of the Game available to multiple users through any means. Phoenix Labs reserves all rights in and to the Game and Game Client not expressly granted to you under these Terms.
General Prohibitions and Phoenix Labs Enforcement Rights
Play Nice and Play Fair
We love games and we know you do too. To keep our community and the games fun and welcoming for everyone there are some things you’re not allowed to do. Don’t use language that is defamatory, obscene, pornographic, vulgar or offensive, promotes discrimination, bigotry, racism, hatred, harassment, bullying or harm against any individual or group, or is violent or threatening or promotes violence or actions that are threatening to any person or entity. Do not cheat in the Games or interfere with or modify our Services, including through bots, cheats, hacks, exploits, mods, local memory (RAM) monitoring, or any software that doesn’t come from Phoenix Labs and is capable of enabling cheating or otherwise interfering or modifying the Services or any of the Games.
In addition, you agree not to do any of the following:
Post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; or (iv) promotes illegal or harmful activities or substances.
Disrupt the flow of communication through “chat spamming”, whether through live communications in-Game or in posts or topics on the Forum;
Select an Account name or user name that suggests an affiliation with Phoenix Labs or any other company, contains personally-identifying information of you or any other Account-holder, is offensive, vulgar, obscene, sexually explicit, or is racially, ethnically or otherwise objectionable;
Log into or otherwise using another person’s account;
Disrupt other players’ enjoyment of the Services through action or inaction (e.g., “trolling”);
Use, display, mirror or frame the Services or any individual element within the Services, Phoenix Labs’ name, any Phoenix Labs trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Phoenix Labs’ express written consent;
Access, tamper with, or use non-public areas of the Services, Phoenix Labs’ computer systems, or the technical delivery systems of Phoenix Labs’ providers;
Attempt to probe, scan or test the vulnerability of any Phoenix Labs system or network or breach any security or authentication measures;
Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Phoenix Labs or any of Phoenix Labs’ providers or any other third party (including another user) to protect the Services or Content;
Attempt to access or search the Services or Content or download Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Phoenix Labs or other generally available third-party web browsers;
Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
Use any meta tags or other hidden text or metadata utilizing a Phoenix Labs trademark, logo URL or product name without Phoenix Labs’ express written consent;
Use the Services or Content, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
Forge any networking packets or any part of the header information in any email or newsgroup posting, or in any way use the Services or Content to send altered, deceptive or false source-identifying information;
Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services or Content;
Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
Impersonate or misrepresent your affiliation with any person or entity;
Violate any applicable law or regulation; or
Encourage or enable any other individual to do any of the foregoing.
Although we’re not obligated to monitor access to or use of the Services or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
Phoenix Labs respects copyright law and expects its users to do the same. It is Phoenix Labs’ policy to terminate in appropriate circumstances Account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see Phoenix Labs’ Copyright and IP Policy at www.phxlabs.ca/dmca-policy/, for further information.
Links to Third Party Websites or Resources
The Services and App may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.
We may terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you. You may cancel your Account at any time by sending an email to us at [email protected] Upon any termination, discontinuation or cancellation of Services or your Account, the following provisions will survive: Feedback, Purchases, Content and Content Rights, Content Ownership, Responsibility and Removal, Rights in User Content Granted by You, Termination, Warranty Disclaimers, Indemnity, Limitation of Liability, Dispute Resolution, and General Terms.
THE SERVICES AND CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any Content.
You will indemnify and hold harmless Phoenix Labs and its officers, directors, employee and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of the Services or Content, (ii) your User Content, or (iii) your violation of these Terms.
Limitation of Liability
NEITHER PHOENIX LABS NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT PHOENIX LABS HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
IN NO EVENT WILL PHOENIX LABS’ TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT EXCEED THE AMOUNTS YOU HAVE PAID OR ARE PAYABLE BY YOU TO PHOENIX LABS FOR USE OF THE SERVICES OR CONTENT OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO PHOENIX LABS, AS APPLICABLE.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PHOENIX LABS AND YOU.
These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions.
Agreement to Arbitrate
You and Phoenix Labs agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). Without limiting the preceding sentence, you will also have the right to litigate any other Dispute if you provide Phoenix Labs with written notice of your desire to do so by email at [email protected] within thirty (30) days following the date you first agree to these Terms (such notice, an “Arbitration Opt-out Notice”). If you don’t provide Phoenix Labs with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except as expressly set forth in clauses (i) and (ii) above. The exclusive jurisdiction and venue of any IP Protection Action or, if you timely provide Phoenix Labs with an Arbitration Opt-out Notice, will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Unless you timely provide Phoenix Labs with an Arbitration Opt-out Notice, you acknowledge and agree that you and Phoenix Labs are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Phoenix Labs otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a general Demand for Arbitration and a separate Demand for Arbitration for California residents.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure
Unless you and Phoenix Labs otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and Phoenix Labs submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Phoenix Labs will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Phoenix Labs will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Notwithstanding the provisions of the “Changes to Terms or Services” section above, if Phoenix Labs changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to [email protected]) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Phoenix Labs’ email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Phoenix Labs in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
These Terms constitute the entire and exclusive understanding and agreement between Phoenix Labs and you regarding the Services and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Phoenix Labs and you regarding the Services and Content. If any provision of these Terms is held invalid or unenforceable (either by an arbitrator appointed pursuant to the terms of the “Arbitration” section above or by court of competent jurisdiction, but only if you timely opt out of arbitration by sending us an Arbitration Opt-out Notice in accordance with the terms set forth above), that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. You may not assign or transfer these Terms, by operation of law or otherwise, without Phoenix Labs’ prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Phoenix Labs may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by Phoenix Labs under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
Phoenix Labs’ failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Phoenix Labs. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
If you have any questions about these Terms or the Services, please contact Phoenix Labs at [email protected].