Terms of Service
Terms of Service for MisBits (the “Game”) Beta Test
BY INSTALLING, USING OR ACCESSING THE BETA (as defined below) IN ANY WAY, YOU AGREE TO THESE TERMS OF SERVICE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, YOU MAY NOT INSTALL, USE OR ACCESS THE BETA. PLEASE NOTE THAT USE OF THE BETA IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED BELOW IN PARAGRAPH 10.
Before accessing or using the Beta, you agree to the Terms, which may be updated at any time at 3BD’s sole discretion. You may be required to register an account with 3BD to access the Beta (an « Account »). You must be age 13 or older to use the Beta or create an Account. If you are younger than 18, you must have the permission of your parents or legal guardians to use the Beta, and you represent that your parents or legal guardians have reviewed and agreed to these Terms on your behalf.
3BD reserves the right, at its sole discretion, to update, modify, or change the Terms, or any parts thereof, at any time, without notice to you. 3BD will release updated Terms of Service, and you will be deemed to have accepted such changes by continuing to use the Beta. If, at any time, you do not agree to the Terms or any other applicable 3BD policies, rules or codes of conduct, you must cease using the Beta, and any licenses granted by 3BD pursuant to the Terms shall terminate automatically.
1. License and Restrictions
1.1. Grant of a Limited License to Use the Beta
Subject to your acceptance of and continuing compliance with the Terms, 3BD grants you a non-exclusive, non-transferable, non-sublicensable, revocable and limited license to access and use the Beta solely for your own non-commercial entertainment purposes (the “License”). You agree not to, and shall not, use the Beta for any other purpose.
1.2. Restrictions and Conditions
The Beta is the sole and exclusive property of 3BD which 3BD is entitled to protect. You shall only use the Beta for your own personal entertainment purposes. You shall use reasonable efforts to protect your copy of the Beta from any harm, tampering, unauthorized access, sabotage, access, exploitation, manipulation, modification, interference, misuse, misappropriation, copying, dissemination or disclosure.
You shall not, without the prior written consent of 3BD, do any of the following:
- Post or share screen-capture(s), image(s), video(s), streaming footage, or any other type of audio-visual content from the Game and/or the Beta publicly or privately through any means anywhere in the world of, or during, the first Beta weekend (beginning at 12pm Pacific Time Oct. 31st to 12pm Pacific Time Nov 2nd);
- Post or share a review, whether positive or negative, of the Game and/or the Beta publicly or privately through any means anywhere in the world of, or during, the first Beta weekend (beginning at 12pm Pacific Time Oct. 31st to 12pm Pacific Time Nov 2nd);
- Reverse engineer, decompile, or otherwise derive the source code for any part of the Beta or other intellectual property used to provide the Beta, obtain any information about the Beta or 3BD by using any method not expressly permitted by 3BD, or modify, hack or gain unauthorized access to the Beta or other users’ Accounts or circumvent any 3BD security measures;
- Disparage the Game, the Beta, 3BD, or any of its employees, officers, affiliates, developers, or associates; or
- Access the Beta other than as proscribed in these Terms, or as otherwise communicated to you by 3BD
The provisions in this Agreement are necessary to protect the trade, commercial and financial interests of 3BD. You acknowledge and agree that any breach whatsoever of the covenants, provisions and restrictions contained herein shall constitute a breach of your obligations to 3BD which may cause serious damage and injury to 3BD which cannot be fully or adequately compensated by monetary damages. Recipient accordingly agrees that in addition to claiming damages, 3BD may seek interim and permanent equitable relief, including, without limitation, interim, interlocutory and permanent injunctive relief, in the event of any breach of these Terms. All such rights and remedies shall be cumulative and in addition to any and all other rights and remedies whatsoever to which either party may be entitled.
Further, any use of the Beta in violation of the Terms shall result in immediate and automatic revocation of your License and may subject you to liability for violations of any applicable law.
In addition to any of the other provisions contained herein, you agree that you will behave courteously towards other people, including 3BD personnel, and will not, and will not incite others to, under any circumstances (including attempts to):
- Abuse, harass, bully anyone in any manner or form or otherwise disrupt their game experience.
- Post or link to anything illegal, dangerous, abusive, obscene, defamatory, racially, sexually, religiously, or engage in otherwise objectionable behavior.
- Cheat at the game (by yourself, or with others) or interfere with the Beta in any way, including disrupting or exploiting errors in the Beta, or modifying or using third-party software or services designed to modify or interfere with the Beta.
- Impersonate anyone else, or obtain anyone else’s Login Information, personal or financial information.
3BD reserves the right to determine whether any conduct is a violation of, or outside the intent or spirit of the Terms. 3BD may take any action it deems necessary to address or resolve any such violations, which can include terminating your Account and prohibiting your use of the Beta.
2.1. Creation and Use
In order to access the Beta, you may be required to create an account (“Account”) that requires a user name and password (“Login Information”), or you may need to provide your name and email address (“Your Info”). You must be over the age of 13 to create an Account or provide Your Info, or have an Account created for you, or Your Info provided to us, by your parents or legal guardian, and you must not allow anyone under the age of 13 to access your Account or the Beta. You are prohibited from sharing your Account Login Information with anyone else, and must keep your Account and Login Information secure. You may have only one Account per game and 3BD has the right to remove or reclaim any Accounts and Login Information at any time, for any reason, including claims that a user name violates any third party rights. Accounts may not be used for any commercial or harassing purpose, including advertising, soliciting, sending junk or spam email or messages.
If you become aware, or reasonably suspect, that there have been any breaches of security such as hacking, theft, or unauthorized disclosure of Login Information, you must notify 3BD immediately and change your Login Information. You must maintain the security and confidentiality of your Account and are responsible for any and all actions that occur under your Account, including purchases and any use of credit card or other payment instruments, whether or not made or authorized by you.
You shall not, and shall not attempt to, purchase, sell, rent or give away your or someone else’s Account. You shall not create an Account using a false, or someone else’s, identity. You are not eligible to, and shall not, create an Account if you have been banned by 3BD from playing any 3BD game or using the Beta.
2.2. Termination; Suspension; Consequences
IN ADDITION TO ANY OTHER REMEDIES THAT MAY BE AVAILABLE AT LAW OR OTHERWISE, if you are, or 3BD believes that you are, violating or failing to comply with, or acting inconsistently with the letter or spirit of any of these Terms, 3BD may, without notice, restrict, suspend, terminate, modify, delete, or remove anything related to accounts or the Beta such as game items, privileges, personas, or benefits, access to the Beta, or any portions thereof. 3BD has no obligation to compensate you for any such losses or any such actions by 3BD. 3BD may also, at its sole discretion, terminate or suspend, or take technical or legal action against users for infringing third party intellectual property rights or creating risk, financial, or legal liability for 3BD. 3BD may terminate accounts that have been inactive longer than 30 days at any time.
3BD may, at any time, at its sole election, stop offering and/or supporting the Beta or a particular part of it, at which point your license to use the Beta or such part shall terminate automatically. In such an event, 3BD shall have no obligation to provide refunds, benefits or other compensation in connection with such discontinuation. Termination or suspension of the Beta and Accounts can result in loss of your ability to access the Beta or any part thereof, including content that you or others may have submitted.
You may terminate your Account at any time and for any reason by informing 3BD via email at that you wish to terminate your Account.
3.1. Games and Service
All right, title and interest in and to the Beta (including without limitation any games, titles, computer code, themes, objects, characters, character names, stories, dialogue, catch phrases, concepts, artwork, animations, sounds, musical compositions, audio-visual effects, methods of operation, moral rights, documentation, in-game chat transcripts, character profile information, recordings of games played using a 3BD game client, and the 3BD game clients and server software) are owned by 3BD. 3BD reserves all rights, including without limitation, all intellectual property rights or other proprietary rights, in connection with the Game and the Beta.
The Beta may not be complete or error-free and you are encouraged to provide 3BD with feedback such as bugs and technical or gameplay issues or ideas. You hereby grant to 3BD a perpetual, irrevocable, royalty-free, sublicensable, transferable license to use any feedback that you provide to 3BD, for any purpose or use and in any form or manner throughout the universe.
NOTWITHSTANDING ANYTHING IN THESE TERMS, ALL RIGHTS IN AND TO ANY ACCOUNTS ARE OWNED BY, AND INURE TO THE BENEFIT OF, 3BD. YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE NO OWNERSHIP RIGHTS OR OTHER PROPERTY INTERESTS IN AND TO YOUR ACCOUNT.
3.3. Virtual Items
3BD owns or otherwise has rights to use all content that appears in the Beta including game items or currency. Notwithstanding anything to the contrary herein, except for licenses granted to you by 3BD in connection with the purchase of Items, you agree that you have no right or title in or to any such content, whether earned, received, or purchased via the Beta, or any other attributes associated with an Account or stored on the Beta.
4. User Content
3BD has the right, in its sole discretion and without notice, to remove, delete, modify, edit, refuse, ignore, or change in any way any User Content. Nothing contained in these Terms shall create any obligations or liabilities for 3BD with respect to User Content.
4.1. Screening and Monitoring
3BD cannot screen or monitor all User Content and assumes no responsibility or liability for any User Content. Your use of the Beta and encounter with User Content is at your own risk. You may be exposed to User Content that you find offensive or inappropriate, and you bear all risks associated with User Content.
3BD may, but does not have the obligation to, monitor and/or record user interaction with the Beta, including in-game communications. By using the Beta, you agree and provide irrevocable consent to such monitoring and recording. You acknowledge and agree that you have no expectation of privacy with respect to any User Content that you transmit. Even if 3BD does monitor the Beta from time to time, you understand, acknowledge, and agree that 3BD nonetheless bears no responsibility for User Content and has no obligation to modify or remove any inappropriate User Content.
4.2. Public Posting
There are many users who are accessing the Beta and included features such as forums, in-game communications, and email. 3BD cannot and does not guarantee that others will not misappropriate any of your ideas or information that you make available to other users. If you have any ideas or information that you wish to keep confidential, do not disclose it on the Beta. 3BD has no responsibility to evaluate, use or compensate you for any ideas or information posted by you to the Beta, whether directly intended for 3BD or not. You are solely responsible for any User Content or other things that you transmit to the Beta.
4.3. Your License to 3BD
You hereby grant to 3BD an irrevocable, perpetual, transferable, fully paid-up, royalty-free, worldwide license (including the right to sublicense and assign to third party) and right to use, in any way, including the creation of derivative works, your User Content. You also hereby grant to 3BD the right to authorize others to exercise any of the rights granted to 3BD under these Terms. You further hereby grant to 3BD the unconditional, irrevocable right to use and exploit your name, likeness and any other information or material included in any User Content, without any obligation to you. Except as otherwise required or prohibited by law, you waive any rights of attribution and/or any moral rights you may have in your User Content, regardless of whether your User Content is modified in any manner. 3BD does not claim any ownership rights in your User Content and nothing in these Terms is intended to restrict any rights that you may have to use and exploit your User Content. 3BD has no obligation to monitor or enforce your intellectual property rights in or to your User Content.
4.4. User Interactions
You understand that your interactions with other users of the Beta occur at your own risk, and you assume such risk by using the Beta. You are solely responsible and liable for all of your conduct with respect to other users. 3BD has no obligation to become involved in any disputes you may have with other users, but reserves the right to do so at its sole discretion. If the security of your Account becomes compromised, or your Account is involved in any unlawful or fraudulent activity, whether through your action or another’s, you agree to cooperate fully with 3BD in the event 3BD decides, at its sole discretion, whether any investigation or further action is necessary.
5. Purchases and Payments
When you make a purchase of virtual game items or other goods and services offered by 3BD or its authorized partners (“Items”) through the Beta, for money, 3BD grants you a limited, personal, non-transferable, non-sublicensable, revocable license to use such Items in the Game. You agree that this license does not confer upon you any property rights with respect to the Items. You shall not transfer, or sell Items to any other user, or buy Items from any user without 3BD’s express written consent. 3BD may modify or remove any Items, including changes in price, with or without notice and without compensation or liability to you or any third party. You shall be responsible for, and agree to pay, all fees and applicable taxes incurred by you or anyone using your Account.
ALL PURCHASES MADE UNDER YOUR ACCOUNT ARE FINAL AND NONREFUNDABLE. YOU WILL NOT RECEIVE ANY MONEY COMPENSATION FOR ANY LOST OR UNUSED ITEMS WHEN YOUR ACCOUNT CLOSES, EVEN IF THE LOSS OF YOUR ACCOUNT IS INVOLUNTARY.
6. Updates to the Beta
3BD may update the Beta from time to time at its sole discretion and such updates may make previous versions of the game unplayable. You must accept such updates in order to continue use of the Beta. If you do not accept such updates, you may discontinue use of the Beta, and your license to use the Beta shall terminate. You agree that 3BD may update the Beta without notice to you.
7. Disclaimer of Warranties
WITHOUT LIMITING 3BD’S LIABILITY UNDER SECTION 8 BELOW, THE BETA IS PROVIDED ON AN « AS IS » AND « AS AVAILABLE » BASIS FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF CONDITION, UNINTERRUPTED OR ERROR-FREE USE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, TITLE, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
Some jurisdictions do not allow the exclusion of certain warranties. Accordingly, some of the above disclaimers may not apply to you.
8. Limitation of Liability; Sole and Exclusive Remedy
TO THE MAXIMUM EXTENT PERMITTED BY LAW, 3BD SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUES, LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS OR THE BETA, WHETHER OR NOT 3BD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, 3BD’S MAXIMUM LIABILITY TO YOU SHALL NOT EXCEED THE AMOUNT YOU HAVE PAID TO 3BD IN ACCORDANCE WITH THESE TERMS IN THE SIX (6) MONTHS IMMEDIATELY PRIOR TO THE DATE ON WHICH YOU FIRST ASSERT ANY CLAIM. YOU ACKNOWLEDGE AND AGREE THAT IF YOU HAVE NOT PAID ANYTHING TO 3BD DURING SUCH TIME PERIOD, YOUR SOLE REMEDY (AND 3BD’S EXCLUSIVE LIABILITY) FOR ANY DISPUTE WITH 3BD IS TO STOP USING THE BETA AND TO CANCEL YOUR ACCOUNT.
9. Indemnity and Release
You agree to indemnify, defend and hold 3BD (and our officers, directors, agents, affiliates and employees) harmless from any third party claims, liabilities, losses, injuries, damages, costs or expenses incurred by 3BD arising out of or related to your use of the Beta, or any specific services or features associated therewith, including but not limited to User Content and these Terms.
If you have a dispute with one or more users, you release 3BD (and our officers, directors, agents, affiliates, and employees) from any and all claims, liabilities, losses, injuries, damages, costs or expenses of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
10. Dispute Resolution and Law; Class Action Waiver
If a dispute arises between you and 3BD, we strongly encourage you to first contact us directly to seek a resolution.
10.1. IF YOU ARE NOT A RESIDENT OF THE UNITED STATES: If you and 3BD are unable to resolve any dispute arising out or related to the Beta or the Terms informally, then any and all claims one party may have against the other party shall be governed in all respects by California law, without regard to conflict of law provisions. You agree that any claim or dispute you may have with 3BD must be resolved exclusively by a court located in Los Angeles County, California, and you hereby agree to submit irrevocably to the jurisdiction and venue of any such court in any such claim or dispute. 3BD may seek injunctive relief in any court having jurisdiction in order to protect any of its rights.
10.2. IF YOU ARE A RESIDENT OF THE UNITED STATES: If you and 3BD are unable to resolve any dispute arising out of or related to the Beta or the Terms informally, then binding arbitration shall be the sole means for one party to formally resolve any claims it may have against the other party. Such arbitration shall be administered by JAMS in accordance with the provisions of its Comprehensive Arbitration Rules or Streamlined Arbitration Rules (the “JAMS Rules”), as appropriate, excluding any rules or procedures governing or permitting class actions. This arbitration provision is made pursuant to a transaction involving interstate commerce, and the Federal Arbitration Act (the “FAA”) shall apply to the interpretation, applicability, enforceability and formation of this Paragraph 10. Otherwise, California law shall apply to these Terms in all respects. The arbitrator, and not any Federal, State or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these terms, including without limitation any claim that all or any part of these Terms is void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. Your arbitration fees and your share or arbitrator compensation shall be governed by the JAMS Rules. The parties agree that all arbitration shall be initiated in Los Angeles County, California, exclusively.
10.3. CLASS ACTION WAIVER: EACH PARTY WAIVES THE RIGHT TO LITIGATE IN COURT OR ARBITRATE ANY CLAIM OR DISPUTE AS A CLASS ACTION, EITHER AS A MEMBER OF A CLASS OR AS A REPRESENTATIVE, OR TO ACT AS A PRIVATE ATTORNEY GENERAL.
11. General Provisions
If any portion of these Terms is found illegal, invalid or unenforceable, such provision shall be severed, or if could be reasonably interpreted in such a way as to cure such illegality, invalidity or unenforceability, shall be so interpreted, and the remaining terms shall remain in full force and effect.
11.2. Entire Agreement
3BD may assign or delegate these Terms, in whole or in part, to any person or entity at any time with or without your consent. You shall not assign or delegate any rights or obligations under the Terms without 3BD’s prior written consent.
11.4. No Waiver
3BD’s failure to exercise or enforce any of our rights under these Terms does not constitute a waiver of 3BD’s right to enforce such right. Any waiver of such rights shall only be effective if it is in writing and signed by 3BD.
Except as expressly and specifically set forth in this these Terms, no representations, statements, consents, waivers, or other acts or omissions by 3BD shall be deemed a modification of these Terms of Service nor legally binding, unless in writing and signed by 3BD.
Except for notices pursuant to and subject to the dispute resolution terms in Paragraph 10, which shall be governed by applicable law or rule, 3BD may provide notice to you via postings in the Beta, e-mail or any other contact information you provide to us, and all notices given by you, or required from you under these Terms, to 3BD, shall be in writing and addressed to and include contact information that would allow us reasonably to respond to you. Any notice that you provide without compliance with this Paragraph 11.6. shall have no legal effect.
11.7. Equitable Remedies
You acknowledge that the rights granted and obligations made to 3BD under these Terms are of a unique and irreplaceable nature, the loss of which shall irreparably harm 3BD and which cannot be replaced by monetary damages alone so that 3BD shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety or proof of damages) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief, or to enjoin or restrain the operation of the Beta, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Beta or any content or other material used or displayed through the Beta and agree to limit your claims to claims for monetary damages, subject to Paragraph 8.
11.8. Force Majeure
3BD shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of 3BD, such as natural disasters, unforeseen intrusions into our cyberspace, war, terrorism, riots, embargoes, acts of civil or military authorities, acts of God, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.