Terms of Use
Theorycraft Games Inc. Terms of Use
These Terms of Use are a legal agreement (the “Agreement”) between you and Theorycraft Games, Inc. (“Theorycraft”), a Delaware corporation headquartered in Los Angeles, California. Please read this Agreement carefully before installing or using any Theorycraft software, services, or products (referred to collectively herein as “software”). If you do not agree with all the terms of this Agreement, you may not install or otherwise access any Theorycraft software. By installing Theorycraft software or using the software, you are agreeing to be bound by all terms of this Agreement to the extent that these are not overridden by any mandatory local laws applicable to you.
BY ACCEPTING THIS AGREEMENT, YOU AFFIRM THAT YOU ARE AN ADULT OF LEGAL AGE AS DEFINED BY THE LAWS OF THE JURISDICTION IN WHICH YOU LIVE. IF YOU ARE NOT AN ADULT, YOU MAY NOT INSTALL OR PLAY ANY THEORYCRAFT GAMES WITHOUT PARENTAL CONSENT.
ATTENTION PARENTS: If you’re the parent or guardian of a child who doesn’t meet this age requirement, you (not your child) must accept this Agreement. If you accept this Agreement as the parent or guardian of a child, you confirm that you’re the child’s parent or legal guardian and you agree to supervise and be fully responsible for your child’s use of Theorycraft products. You further agree to be responsible for all use of Theorycraft products by you and by anyone to whom you give access to these products, including your child, and to accept financial responsibility for all transactions such persons make while using Theorycraft software, whether or not you authorized them. We encourage you to familiarize yourself with your local game and content ratings systems. To help, we offer parental controls to tailor your child’s experience.
THIS AGREEMENT CONTAINS A BINDING, INDIVIDUAL ARBITRATION AND CLASS-ACTION WAIVER, WHICH MEANS YOU AND THEORYCRAFT AGREE TO LET A PRIVATE ARBITRATOR RESOLVE MOST DISPUTES BETWEEN YOU AND THEORYCRAFT, AND THAT YOU AND THEORYCRAFT ARE GIVING UP THE RIGHT TO TAKE THESE DISPUTES TO COURT AND TO HAVE THEM RESOLVED BY A JUDGE OR JURY. ARBITRATION CAN BE A MORE STREAMLINED PROCESS THAN COURT, INVOLVING LESS DISCOVERY BEFORE THE MATTER IS DECIDED AND LIMITED APPELLATE RIGHTS. YOU MAY OPT OUT OF THE ARBITRATION REQUIREMENT WITHIN 30 DAYS OF ACCEPTING THIS AGREEMENT – INSTRUCTIONS ON THIS OPT-OUT ARE IN SECTION 13.F. YOU AND THEORYCRAFT ALSO GIVE UP THE RIGHT TO HAVE DISPUTES BETWEEN US DECIDED ON A CLASS ACTION BASIS IN ANY FORUM.
Section 1: Account Creation and Termination
A. To gain access to Theorycraft software, you may need to create a Theorycraft account (“Account”) and you may also need an account with a platform hosting the Theorycraft software. Any information you provide in connection with the creation of an account used to play Theorycraft software must be accurate, and you must update that information if it changes. When creating usernames and passwords, you should use unique information, you should not use your real name as the password for any account, and you should keep all password information confidential. Theorycraft reserves the right to change your username if, in our sole discretion, we deem it offensive or misleading.
B. Sharing, buying, selling, or transferring Accounts is strictly prohibited. If you use the software on behalf of another person or entity, all references to “you” include that person or entity. You represent that you are authorized to accept this Agreement on that person’s or entity’s behalf.
C. You are responsible for all activity in your Account. If you believe your Account has become compromised, you must immediately notify Theorycraft at [email protected]. Theorycraft may take actions with respect to your Account without notice to you to protect you or Theorycraft, such as by preventing unauthorized access, resetting Account passwords, or suspending Account access.
D. You may terminate or suspend your Account at any time by contacting Theorycraft at [email protected].
Theorycraft may suspend or terminate your account, in its sole discretion, if we believe you or someone else is using or has used your Account to engage in activity that:
i. violates any aspect of this Agreement, including the License Limitations and User Conduct Rules set forth below;
ii. violates any law or regulation;
iii. in Theorycraft’s sole judgment, is not in the best interests of the Theorycraft community; or
iv. violates Theorycraft’s rights or the rights of any third party.
E. Additionally, Theorycraft may suspend or terminate your Account if Theorycraft stops offering its software in your region, or if you have outstanding payments owing to Theorycraft.
F. Theorycraft need not provide advance notice to you before suspending or terminating your Account. Your recourse, if you disagree with Theorycraft’s decision, is to follow the Dispute Resolution terms set forth below in Section 13.
G. If Theorycraft terminates your Account, the licenses we’ve granted you will automatically terminate, too, and you must uninstall and delete all copies of Theorycraft’s software on your devices. You will no longer have access to your Account, and you will lose all the data and in-game entitlements, whether earned or purchased, associated with your Account. You will not be entitled to any refunds for your purchases to which you lose access after the termination of your Account, unless refunds are required by law.
H. You may not create an Account if you are an official, employee, agent, or contractor of, or directly or indirectly acting for a government or political party subject to U.S. sanctions/embargo, or any other entity in a sanctioned/embargoed country or region or subject to U.S. sanctions/embargo. Theorycraft will terminate any Account created in violation of this paragraph.
Section 2: Limited Use License
A. THEORYCRAFT SOFTWARE IS LICENSED, NOT SOLD, TO YOU UNDER THE TERMS OF THIS AGREEMENT. This Agreement describes the rights available to you; Theorycraft reserves all other rights worldwide. This means that, except as expressly licensed to you in this Agreement, all right, title, and interest in and to Theorycraft’s software, and any and all associated copyrights, trademarks, and intellectual properties therein and/or related thereto and all copies thereof are owned by Theorycraft and its licensors, and are protected by United States and international laws, treaties, and conventions governing intellectual property.
B. Subject to your acceptance of and compliance with the Agreement, Theorycraft hereby grants you a personal, limited, non-exclusive, non-transferable, non-sublicensable, revocable license (the “License”) to internally install and use one (1) copy of the software solely and exclusively for your personal and non-commercial use, and only to the extent that you use the software as expressly authorized and not prohibited by this Agreement. “Personal” means you can’t share your Account or your license—it’s just for you, not for anyone else. “Non-Exclusive” means we can let other people besides you use the same software, products, and services. “Non-transferable” is a reminder that buying, selling, and trading Accounts is not allowed. “Non-sublicensable” means you can’t parcel out rights under this Agreement to others. Your limited license is subject to the “License Limitations” and “User Conduct Rules” set forth below, and lasts only until such time as either you or Theorycraft terminates this Agreement.
C. If necessary, you must accept an End User License Agreement or other agreement(s) for the platform hosting the software prior to your being able to play the software on the platform, and the terms and conditions of that agreement are hereby incorporated into this Agreement by reference. In the event of a conflict between the terms between this Agreement and the Platform’s agreement pertaining to the use of the software, this Agreement shall supersede and govern your use of the software.
D. The software may offer third party features, which are managed by third-party providers for which additional terms and/or costs may apply. You must comply with such additional terms.
E. This License is Subject to Limitations (“License Limitations”). You agree that you will not use the software, or any part of it, in a manner that is inconsistent with the terms of this Agreement. As noted above, Theorycraft may terminate your Account, without notice, if you violate any aspect of this Agreement. Without limiting the foregoing:
Except as expressly permitted by Theorycraft, you may not sell, copy, exchange, transfer, publish, assign, rent, lease, or lend Theorycraft software or otherwise distribute anything you copy or derive from the software.
You may not use, or allow others to use, the software or this License for commercial purposes without first obtaining a separate license from Theorycraft to do so. This includes leasing, renting, sublicensing, or exploiting the software or any of its parts at an Internet café, computer gaming center, or any other location-based site.
You may not use the software for any commercial purpose not expressly authorized by Theorycraft, including, but not limited to, gathering items or resources for sale outside the software; offering account boosting or power-leveling; proffering commercial advertisements or solicitations through or in connection with the software; or organizing, promoting, facilitating, or participating in an event involving wagering on the outcome, or any other aspect of, Theorycraft’s software (whether or not such conduct constitutes gambling under the laws of any applicable jurisdiction) without prior authorization from Theorycraft.
You may not access, copy, modify, or distribute (including via a network server, multi-user arrangement, or remote access arrangement) or display the software, or publish the software for others to copy, unless expressly authorized by Theorycraft or permitted by law.
You may not host, provide, or develop matchmaking services for the software, or intercept, emulate, or redirect the communication protocols used by Theorycraft in any way, for any purpose, including without limitation unauthorized play over the internet, network play (except as expressly authorized by Theorycraft), or as part of content aggregation networks.
You may not reverse engineer or attempt to extract or otherwise derive source code or other data from the software or modify, adapt, translate, decompile, or disassemble the software or make derivative works based on the software, unless expressly authorized by Theorycraft or permitted by law.
You may not create, use, or distribute data or executable programs which mimic data or functionality in the software or otherwise interoperate with the software in a manner not expressly authorized by Theorycraft.
You may not remove, disable, or circumvent any security protections, proprietary notices, or labels contained on or within the software.
You may not use the software to infringe or violate the rights of any third party, including but not limited to any intellectual property, publicity, or privacy rights.
You may not use, export, or re-export the software in violation of any applicable law or regulation.
You may not organize, promote, or participate in an esports competition for the software which has not been licensed by Theorycraft.
You must at all times be aware of and comply with Theorycraft’s User Conduct Rules, stated below.
Section 3: User Conduct Rules
You may not, while using Theorycraft’s software:
a. Behave, or collaborate with others to behave, in a manner that is detrimental to the enjoyment of the software, product, or service by other users as intended by Theorycraft, in Theorycraft’s sole judgment;
b. Harass, stalk, or threaten other users;
c. Publicly post personal identifying information about yourself, other players, or Theorycraft employees or contractors;
d. Transmit or communicate any material or content that Theorycraft, in its sole discretion, deems to be offensive, harmful, threatening, unlawful, abusive, harassing, defamatory, disparaging, obscene, sexually explicit, or racially, ethnically, or otherwise objectionable;
e. “Spam chat,” whether for personal or commercial purposes, by disrupting the flow of conversation with repeated postings of a similar nature;
f. Modify Theorycraft’s software or use any unauthorized code and/or software that enables automated control of gameplay or Theorycraft’s software;
g. Modify, distort, block, abnormally burden, disrupt, slow down, and/or hinder the normal functioning of all or part of any software, or its accessibility to other users;
h. Access or attempt to access aspects of any product, software, or service that Theorycraft did not make readily accessible to and intended for the public; or
i. Impersonate Theorycraft employees, partners, and/or agents, or falsely claim to be endorsed by Theorycraft.
Section 4: Prohibition on Cheating and Consent to Monitoring
A. To give users a positive and fair experience, we use software and tools (“Fraud and Cheat Detection”) to detect and prevent programs and activities that: (i) are used for hacking, account stealing, or other unauthorized or fraudulent activity (“Fraud”); or (ii) give you or other users a competitive advantage (“Cheats”), including bots, hacks, add-ons, malware, scripts, and mods not expressly authorized by Theorycraft. You agree that you will not:
Use or encourage the use of Cheats;
Engage in or encourage others to engage in Fraud;
Develop, market, distribute, or support any Cheats; or
Attempt to tamper with, modify, disable, disrupt, or circumvent Fraud and Cheat Detection.
B. Sometimes Fraud and Cheat Detection is built into our software; other times, you may be asked to install it when installing or updating Theorycraft software. If you don’t install Fraud and Cheat Detection, or if you remove, disable, or otherwise interfere with Fraud and Cheat Detection, your license automatically terminates and you may not use the software. Our Fraud and Cheat Detection methods may collect and transmit details about your account, gameplay, and potentially unauthorized programs or processes. By accepting this Agreement, you expressly consent to this monitoring and transmission of information, which extends to any use by you of text and/or voice chat features offered in the software. You also acknowledge and agree that (1) when you use Theorycraft software, products, or services, you have no expectation that your communications will be private; and (2) the mere presence of unauthorized cheat software on your device, whether or not you use that unauthorized software while playing a Theorycraft game, may result in Theorycraft exercising its full rights under this Agreement. If Fraud and Cheat Detection identifies Fraud or Cheats, we may act against you or your Account without prior notice and in our sole discretion, including suspending or terminating your Account. Your recourse, if you disagree with Theorycraft’s decision, is to follow the Dispute Resolution terms set forth below in Section 13. You understand and acknowledge, however, that Theorycraft need not and will not reveal to you how Fraud and Cheat Detection works or what specific violation of this policy Theorycraft detected. You agree that, in the event of a dispute over an action Theorycraft has taken against you, it will suffice for Theorycraft or its third-party Fraud and Cheat Detection vendor to affirm that it detected a violation in your Account.
Section 5: Changes to Theorycraft Products and Their Availability
A. Theorycraft does not guarantee that any software, entitlement, game progress, or game customization will be available at all times, in all locations, or at any given time or that Theorycraft will continue to offer specific software, content, or entitlements for any particular length of time. Theorycraft does not guarantee that software, products, or services can be accessed by means of a specific retail platform, Internet or connection provider, or in all geographic locations. You acknowledge that software, products, or services may be unavailable in certain regions, on certain devices, or without use of particular hardware or software which may not be available to you. We will provide all necessary information relating to hardware and software compatibility as required by law. To the extent allowed by applicable law, we may change or remove features of software, stop offering any software, product, or service, or restrict access to part or all of any software, product, or service, without notice and without liability to you.
B. From time to time, Theorycraft may update, patch, or modify software without notice to you. You hereby consent to Theorycraft applying these updates, patches, or modifications and accessing the software residing on your computer for such purpose. These updates, patches and modifications may need to be installed by you in order for you to continue to use the software. Theorycraft also may need to update or reset certain parameters to ensure continued fair gameplay. These updates may cause you setbacks within a game and may affect characters, rankings, progression, matches, games, groups, or other entitlements associated with your Account.
C. Theorycraft shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, such as natural disasters, war, terrorism, riots, embargoes, acts of civil or military authorities (including governmental orders), outbreaks of viruses or infectious diseases, acts of God, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labor, or materials.
Section 6: User-Generated Content, Messaging, and Chat Features
A. You are responsible for your own user generated content (“UGC”). When you contribute UGC, you grant to Theorycraft, its licensors, and its licensees a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully paid, and sublicensable (through multiple tiers) license to use, host, store, copy, modify, adapt, display, publish, translate, create derivative works from, distribute, publicly perform, communicate to the public, synchronize, and display your UGC, in whole or in part, and any name, username, display name, other user-generated account identifier or likeness provided in connection with your UGC, in all media formats and channels now known or later developed without notice, payment, or attribution of any kind to you or any third party. You also grant to all other users who can access and use your UGC via Theorycraft’s software, products, or services the right to use, copy, modify, display, perform, create derivative works from, and otherwise communicate and distribute your UGC on or through the relevant software hosting platform without further notice, attribution, or compensation to you. You understand and agree that any contribution of UGC by you shall not create any contractual relationship between you and Theorycraft, and that you are not entitled to receive any attribution, compensation, fees, consideration, or other remuneration in connection with your UGC for any reason.
B. When you post or otherwise share UGC, you understand and agree that your UGC and any associated information (such as your Account username, display name, or other user-generated account identifier or profile photo) may be visible to others and captured, edited, and shared by others in gameplay footage and screenshots. You agree to waive any moral rights and rights of publicity and privacy you may have in your UGC to the fullest extent permitted by applicable laws.
C. To the extent allowed by applicable law, the rights you grant to Theorycraft in this Section are provided on a through-to-the-audience basis, which means the owners or operators of third-party services will not have any separate liability to you or any other third-party for your UGC provided to or used on such third-party services.
D. You may not create, post, store, or share any UGC that violates this Agreement (including any UGC that is unlawful, tortious, defamatory, obscene, invasive of the privacy of another person, threatening, harassing, abusive, hateful, racist, or otherwise objectionable or inappropriate). You represent and warrant that your UGC, and our use of your UGC as permitted by this Agreement, will not violate any rights of or cause injury to any person or entity and will not require any consent from or payment to any person or entity. To the extent required by applicable local law, we may have a legal obligation to screen, edit (including deleting as required), or monitor your UGC for certain content, such as harmful content. Although depending on your location we may have no obligation to screen, edit or monitor your UGC, we may delete or remove it at any time and for any reason, with or without notice.
E. Theorycraft’s software, products, or services may include features allowing you to communicate with others by email, messaging, or text or voice chat (collectively, "Communication Software"), either directly or through a third-party provider. You acknowledge and agree that Theorycraft is not responsible for communications made by you or other users via the Communication Software, that communications made by you via the Communication Software are public and not private, and that personal information that you communicate via the Communication Software may be seen and used by others. Theorycraft strongly encourages you not to disclose any personal information in your public communications via the Communication Software unless you wish such information to be made permanently available to the public.
Section 7: Virtual Currency
Theorycraft Coins, Vive Points, and other “Virtual Currency” may be used in some Theorycraft software. Virtual Currency, whether earned through game play or purchased with real money, has no cash value; is not redeemable for any sum of money or anything of monetary value; and may not be sold, transferred, assigned, redeemed, or traded. You may redeem or use Virtual Currency only by the method and within the scope prescribed by Theorycraft. You must not wager with or for Virtual Currency (for example “skin betting”) unless Theorycraft specifically provides that functionality. Theorycraft may discontinue the availability of Virtual Currency at any time, issue an unlimited amount of Virtual Currency, change in any manner the ways in which players may earn or purchase Virtual Currency, and raise or lower the amount of Virtual Currency that must be used to acquire particular in-game items. Theorycraft reserves the right to refuse or cancel orders for Virtual Currency at its sole discretion, and may apply limits to the quantity of Virtual Currency you may earn through game play or purchase at any one time. Theorycraft may also remove Virtual Currency from your account if it determines, in its sole discretion, that you received the Virtual Currency in error, through fraud or deception, or in any unauthorized manner. All sales of Virtual Currency are final except to the extent refunds may be required by law. If Theorycraft terminates your account as permitted by this Agreement, you will lose access to all Virtual Currency in your account, as well as all in-game entitlements, and you will not be entitled to a refund for these items except as specifically required by law.
If you acquire Virtual Currency in a transaction with a party other than Theorycraft, you understand and agree that Theorycraft may have no role in that transaction other than the obligation to add Virtual Currency to your account upon receipt of instructions from the third party that the transaction has been completed. Disputes regarding the transaction, other than non-delivery of the Virtual Currency by Theorycraft, would be between you and the third party with which you transacted, and will be governed by that party’s applicable terms of service. You understand and agree, however, that in the event you raise a dispute both with Theorycraft and the third party regarding your purchase of Virtual Currency, that third party is an intended beneficiary of, and may invoke and require you to follow, the Dispute Resolution terms set forth below in Section 13 that are applicable to Disputes between you and Theorycraft.
Section 8: Collection of Personal Data
In order to provide you with a better overall experience, Theorycraft may collect and store data about you. Please view our Privacy Policyhttps://auth.theorycraftgames.com/privacy-policy
, which explains our practices relating to the collection and use of your personal information, which is incorporated into this Agreement.
Section 9: Disclaimers, Limitations of Liability, and Indemnification
As a consumer, you may have rights under applicable local laws that cannot be excluded, limited, or changed. Those consumer rights take priority over anything in this Section 9. These terms do not change any mandatory guarantees or warranties you have as a consumer under applicable local laws, or exclude or limit Theorycraft’s liability, except as allowed under applicable local laws.
THEORYCRAFT’S SOFTWARE, PRODUCTS, AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THEORYCRAFT MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ABOUT ITS SOFTWARE, PRODUCTS, OR SERVICES, AND YOUR USE OF THE SOFTWARE, PRODUCTS, OR SERVICES IS AT YOUR SOLE RISK. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, THEORYCRAFT DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT. THEORYCRAFT DOES NOT WARRANT THAT ANY SOFTWARE, PRODUCT, OR SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THEORYCRAFT DOES NOT WARRANT THAT ANY SOFTWARE, PRODUCT, OR SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, RELIABLE OR ERROR-FREE, THAT IT CAN BE OPERATED WITH OR IS COMPATIBLE WITH OTHER SOFTWARE, OR THAT DEFECTS WILL BE CORRECTED. AS THE USER, YOU ASSUME ALL RESPONSIBILITY AND RISK FOR SELECTING SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM SOFTWARE, PRODUCTS, OR SERVICES. AT SOME POINT IN THE FUTURE, THEORYCRAFT’S SOFTWARE, PRODUCT, OR SERVICE MAY GO OUT OF DATE, AND THEORYCRAFT MAKES NO COMMITMENT TO UPDATE OR CONTINUE TO SUPPORT OR OFFER IT. THE DISCLAIMERS OF LIABILITY CONTAINED IN THIS SECTION APPLY REGARDLESS OF THE THEORY OF LIABILITY. THE USE OF ANY SOFTWARE, PRODUCT, OR SERVICE, OR THE DOWNLOADING OR OTHER ACQUISITION OF ANY MATERIALS THROUGH OR IN CONNECTION WITH ANY SOFTWARE, PRODUCT, OR SERVICE, IS DONE AT YOUR OWN DISCRETION AND RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITIES.
TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, THEORYCRAFT WILL NOT BE LIABLE FOR LOSS OF PROFITS OR INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO YOUR USE, ATTEMPTED USE, OR INABILITY TO USE THEORYCRAFT’S SOFTWARE, PRODUCTS, OR SERVICES, AND THEORYCRAFT’S TOTAL LIABILITY SHALL NOT EXCEED THE AMOUNT(S) YOU HAVE PAID THEORYCRAFT IN THE TWELVE (12) MONTHS PRIOR TO WHEN YOU SUFFERED DAMAGES, EVEN IF THAT REMEDY FAILS TO PROVIDE ADEQUATE COMPENSATION. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, NEITHER THEORYCRAFT NOR ITS LICENSORS OR ASSOCIATED SERVICE PROVIDERS WILL BE LIABLE FOR LOSS OR DAMAGE SUFFERED IN CONNECTION WITH THE USE OF THEORYCRAFT SOFTWARE, PRODUCTS, OR SERVICES. THIS INCLUDES, WITHOUT LIMITATION, (A) ALL LOSSES OF ANY KIND, WHETHER IN TORT (INCLUDING FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), CONTRACT, MISREPRESENTATION (WHETHER INNOCENT OR NEGLIGENT) OR OTHERWISE, (B) DIRECT LOSS; (C) ACCIDENTAL LOSS, (D) INCIDENTAL LOSS, (E) CONSEQUENTIAL LOSS, AND (F) INDIRECT LOSS.
NOTHING IN THIS SECTION SHALL AFFECT THEORYCRAFT’S LIABILITY FOR FRAUD OR FRAUDULENT MISREPRESENTATION, NOR ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. FOR PURPOSES OF THIS SECTION, THEORYCRAFT’S LICENSORS AND ASSOCIATED SERVICE PROVIDERS ARE THIRD PARTY BENEFICIARIES AND MAY ENFORCE THIS AGREEMENT AGAINST YOU.
Only to the extent allowed by the law where you live, you will indemnify, pay the defense costs of, and hold Theorycraft harmless from and against any claims, demands, actions, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorney and expert witness fees) arising out of or related to (i) any claim that, if true, would be a breach of this Agreement or your negligence, (ii) any act or failure to act by you using Theorycraft’s software, products, or services, or (iii) any content (including UGC) or software you create, whether or not authorized. Theorycraft reserves the right to take sole responsibility, at its own expense, for conducting the defense of any claim for which you agreed to indemnify Theorycraft, and you will reimburse Theorycraft on request for any defense costs it incurs or any loss it suffers, whether in a court judgment or settlement, based on any matter covered by this section. If the law where you live doesn’t let you agree to this indemnification, then you assume, to the extent allowed by the law where you live, all responsibility for claims, demands, actions, losses, liabilities, and expenses (including attorneys’ fees, costs, and expert witnesses’ fees) that are covered by this indemnification paragraph.
The provisions of this Section shall survive and remain in force after termination of this Agreement.
Section 10: Billing, Payment, and Refunds
You will pay all fees and applicable taxes, including sales tax, value added tax, goods and services tax, consumption tax, and any other applicable indirect taxes that you incur when you pay for your use of or access to Theorycraft’s software, products, and services. Prices are subject to change. We may suspend or remove your access to any software, products, services, in-game items, or entitlements for which full and timely payment is not received or if we must issue a refund due to a chargeback or unauthorized use of a payment method.
Before you can purchase fee-based items, you need to provide a valid payment method. If your bank or payment network provides us with updated information on your payment method, you authorize us to use the updated information. Changes made to your billing account will not affect charges submitted before we could reasonably act upon your changes.
By entering a method of payment and purchasing fee-based items, you:
Confirm you are an adult as defined in the jurisdiction where you reside and that you are an authorized user of the payment method you provided;
Confirm the payment information you provide is true and accurate; and
Authorize Theorycraft to charge the payment method you provided.
To the extent allowed by law, we may bill you for fee-based software, products, or services (i) in advance; (ii) at the time of purchase; or (iii) shortly after purchase.
Generally speaking, software, products, and services that are marked as “non-refundable” are usually not eligible for refunds, unless refunds are required by law.
Section 11: Changes to This Agreement
Theorycraft reserves the right, in its sole and absolute discretion, to revise, update, change, modify, add to, supplement, or delete any or all provisions of this Agreement. To the extent allowed by the law where you live, such changes will be effective with or without prior notice to you. You are responsible for checking this Agreement periodically for changes. If any future changes to this Agreement are unacceptable to you, you may terminate this Agreement and must immediately uninstall all software, products, and services that are subject to the Agreement. If the changes are relatively minor, we will give you reasonable notice of the changes, for example by including a link to the updated terms when you log in, by message or by email. Your continued use of any Theorycraft software, products, or services following any modification to this Agreement constitutes irrevocable acceptance by you of the new Agreement. For more significant changes to the terms, we will ask you to accept the new terms before you log back on. Any amendments Theorycraft may make to the dispute resolution terms of the agreement will not apply to any dispute that has already commenced at the time of the amendments, except to the limited extent discussed below in Section 13.
Section 12: Notices
All notices Theorycraft must give to you under this Agreement will be sent to the contact information you provided when creating your Account, and/or to such other contact information that you provide in connection with any dispute. All notices given by you under this Agreement shall be in writing and addressed to [email protected].
Section 13: Binding Arbitration and Class Action Waiver
The informal resolution and binding individual arbitration requirements in this Section apply to all Disputes between you and Theorycraft. “Dispute” means any dispute, claim or controversy (excluding only those exceptions listed below), whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, for which either party seeks legal recourse. This includes, without limitation, any Dispute pertaining to your use or attempted use of any Theorycraft software, product, or service, or to anything in this Agreement. Disputes that must be arbitrated also include disputes over the validity, enforceability, or scope of this agreement to arbitrate or any portion of it. This agreement to arbitrate applies in the United States, Canada, and all other jurisdictions where agreements to arbitrate disputes are not barred by law. In the United States, this agreement to arbitrate is governed by the Federal Arbitration Act (“FAA”). In all jurisdictions where this agreement to arbitrate applies, it will be interpreted as broadly as applicable law permits.
What is arbitration? An arbitration proceeding has different rules than a lawsuit in a court. For example, arbitration is less formal and usually provides for more limited information sharing between the parties in the process called discovery. After the arbitrator decides the outcome, that decision will be final and you or Theorycraft will generally not be able to change the outcome by appealing it to a court, except in very limited circumstances.
Are there exceptions to the arbitration requirement? Yes. The exceptions to this agreement to arbitrate disputes are: (i) claims that you bring as individual actions in small-claims court in the jurisdiction where you reside, if those claims qualify for the jurisdiction of such court; (ii) pursuit of enforcement actions through a government agency if the law allows; (iii) an action to compel or uphold any prior arbitration decision; (iv) your or Theorycraft’s right to seek injunctive relief in a court of law to preserve the status quo while an arbitration proceeds; (v) claims of intellectual-property infringement (including claims of piracy; or creation, distribution, or promotion of Cheats) or tortious interference; and (vi) the enforceability of the requirement that arbitrations must be conducted on an individual rather than a class basis.
Are there some things you or Theorycraft can do without going to arbitration? Yes. This Section only applies to Disputes and does not prevent either party from taking unilateral actions they are entitled to take under this Agreement. This means, for example, that you can terminate your account at any time without following this dispute resolution process. Likewise, Theorycraft may enforce this Agreement through actions like suspending and terminating your account at any time, in its sole discretion, without following this dispute resolution process. This freedom to unilaterally act in accordance with the Agreement is important so that Theorycraft can ensure a positive and fair experience for users by taking immediate action against players engaged in cheating, pirating (selling or trading accounts), or violating others’ rights in their intellectual property. If you believe that Theorycraft has made a mistake, that disagreement is a Dispute that must be resolved using the process set forth in this Section (subject to your acknowledgement and agreement that Theorycraft need not and will not explain in any dispute resolution process how its Fraud and Cheat Detection works or what specific Cheat it detected in your account).
Is there a time limitation for pursuing Disputes? Yes. To the fullest extent permitted by applicable law, you or Theorycraft must start arbitration of a Dispute within two (2) years from when the Dispute first arose. If applicable law requires you or Theorycraft to bring a claim for a Dispute sooner than two years after the Dispute first arose, that shorter deadline applies instead. The failure to begin arbitration regarding a Dispute within the time frames described above in this section shall bar the Dispute, which means that you and Theorycraft will not have the right to assert the Dispute.
If a Dispute is not subject to arbitration, is there a limitation on which court can hear the Dispute? Yes. Any Disputes between us that are not subject to arbitration may be filed only as individual claims in small claims court where you reside, if your case qualifies for the jurisdiction of small claims court, or else in the state courts in Los Angeles County, California, or if federal jurisdiction exists, in the United States District Court for the Central District of California. You consent as part of this Agreement to personal jurisdiction in such courts and to venue such cases exclusively in these courts. Nothing in this paragraph shall be construed as prohibiting either you or Theorycraft from removing a case from state to federal court if removal is allowed under applicable law or from bringing a claim in your own local courts where this is allowed under applicable law. If you reside outside the United States, your local laws may allow you to assert claims in the courts where you reside. If so, this mandatory venue provision applies only to the extent your local law allows.
A. Obligation to try Informal Resolution Before Starting an Arbitration
If you have a Dispute against Theorycraft or if Theorycraft has a Dispute against you, we will attempt to resolve the Dispute informally before an arbitration (or, for non-arbitrable disputes, a court proceeding) is filed in order to resolve the Dispute faster and reduce costs for both parties. You and Theorycraft will make a good-faith effort to negotiate the resolution of any Dispute for at least 30 days (“Informal Resolution”) from the day you receive or Theorycraft receives a written notice of a dispute from the other party (a “Notice of Dispute”) in accordance with this Agreement.
You will send any Notice of Dispute to [email protected]. Theorycraft will send any Notice of Dispute to your registered email address and to any billing address you have provided us. The Notice of Dispute sent by either party must include the sender’s name, address, and other contact information, a description of the Dispute (including any relevant account names), and what resolution to the Dispute is being sought.
The Informal Resolution requirement is designed to allow Theorycraft (or you, in the case of a Dispute that Theorycraft asserts against you) to make a fair, fact-based offer of settlement if it chooses to do so. You or Theorycraft cannot proceed to arbitration (or, for non-arbitrable disputes, to court) before the end of the Informal Resolution period, unless this is allowed under mandatory local law where you live. If either of us proceeds to arbitration without first providing a compliant Notice of Dispute and waiting until the conclusion of the Informal Resolution period, a court may enjoin the commencement of the arbitration and order the party that has not followed the Informal Resolution process to reimburse the other party for any arbitration fees and costs already incurred, to the extent that this is allowed under mandatory local law where you live. Compliance with this Informal Resolution requirement, including whether a Notice of Dispute contained all required information, is an issue to be decided by a court, and is not delegated to the arbitrator.
B. Arbitration Provider, Venue, and Applicable Rules and Fees
You and Theorycraft agree that Disputes, other than those specifically excepted above, will be settled by binding individual arbitration conducted by National Arbitration and Mediation (“NAM”), https://namadr.comhttps://www.google.com/url?q=https://namadr.com&sa=D&source=editors&ust=1725215972168153&usg=AOvVaw16eMQYY0iyOFcKtJCCWdRt
, according to NAM’s Comprehensive Dispute Resolution Rules and Procedures in effect at the time the Dispute arises (the “Rules”), as modified by this Agreement.
“Arbitration” means that Disputes you have with Theorycraft and Disputes that Theorycraft has with you will be resolved by a neutral arbitrator instead of in a court by a judge or jury.
“Individual” means that the arbitrator may award the same remedies to you or Theorycraft as a court could, but only to satisfy your or Theorycraft’s individual claims. To the fullest extent allowed by applicable law, the arbitrator may not award money or other relief for the benefit of any person other than you or Theorycraft as part of the resolution of any Dispute.
“Binding” means that both you and Theorycraft will have to live with the arbitrator’s decision, except to the limited extent appeals to a court are permitted under the FAA (or, outside the United States, by applicable law). As limited by the FAA, this Agreement, and the Rules applicable to the arbitration, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator will have authority to award temporary, interim, or permanent injunctive relief or relief providing for specific performance of this Agreement, but (as provided above) only to the extent necessary to provide relief to a party in arbitration warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction.
You or Theorycraft may initiate arbitration of any Disputes not resolved by Informal Resolution by filing a Demand for Arbitration with NAM in accordance with the Rules. (Instructions for filing a Demand for Arbitration with NAM are available on the NAM website or by calling NAM at 800-358-2550.) You will send a copy of any Demand for Arbitration to [email protected]. Theorycraft will send any Demand for Arbitration to the email address and to any billing address you have provided us.
The arbitration will be conducted by a single arbitrator. You and Theorycraft both agree that the arbitration will be conducted in the English language and that the arbitrator will be bound by this Agreement.
For Disputes in which the claimant seeks less than USD $10,000, the arbitrator will decide the matter solely on the basis of written submissions, without a formal hearing, unless the arbitrator decides that a formal hearing is necessary. For matters in which the claimant seeks USD $10,000 or more, or smaller matters in which the arbitrator determines a hearing to be necessary, hearings shall be conducted by video or telephone, unless the arbitrator determines an in-person hearing to be necessary. If an in-person hearing is required and you reside in the United States, the hearing will take place in Los Angeles, California, unless the arbitrator determines that this would pose a hardship for the claimant, in which case the in-person hearing may be conducted in the claimant’s state and county of residence. If you reside outside the United States, and if the arbitrator determines an in-person hearing to be necessary, the site of the in-person hearing will be determined by the applicable Rules.
The arbitrator (not a judge or jury) will resolve the Dispute. Unless you and Theorycraft mutually agree otherwise, any decision or award will include a written statement stating the decision of each claim and the basis for the award, including the arbitrator’s essential factual and legal findings and conclusions.
To the fullest extent allowed by applicable law, the arbitrator may only award legal or equitable remedies that are individual to you or Theorycraft to satisfy one of our individual claims (that the arbitrator determines are supported by credible relevant evidence).
An arbitration award, and any judgment confirming it, apply only to that specific case; it cannot be used or offered as precedent in any other case except to enforce the award itself.
Any decision or award may be enforced as a final judgment by any court of competent jurisdiction or, if applicable, application may be made to such court for judicial confirmation of any award and an order of enforcement.
If you are a consumer, and if you start an arbitration against Theorycraft, you will pay the filing fee required for consumer arbitrations. Theorycraft may (but is not obligated to) help you with your fees to commence an arbitration, if you demonstrate that those commencement fees will be prohibitive for you compared to the costs of commencing an individual action in court. If you are a consumer, and if Theorycraft starts an arbitration against you, Theorycraft will pay all filing fees and costs, including the fees you otherwise would have been required to pay. If you are not a consumer, NAM will not treat the dispute as involving a consumer, and you will pay all applicable NAM fees for a non-consumer party.
If you choose to be represented by an attorney, you will pay your own attorneys’ fees and costs unless the applicable law provides otherwise.
C. Special Rules for Coordinated Filings/Mass Arbitrations
If 25 or more Notices of Disputes are sent that raise similar claims and have the same or coordinated counsel, these will be considered “Coordinated Cases” and will be treated as mass filings or multiple case filings according to the Rules, if and to the extent Coordinated Cases are filed in arbitration as set forth in this Agreement. Theorycraft or you may advise the other of its or your belief that cases are Coordinated Cases, and disputes over whether a case or cases meet the contractual definition of “Coordinated Cases” will be decided by the arbitration provider as an administrative matter. Demands for Arbitration in Coordinated Cases shall only be filed with the arbitration provider as permitted by the bellwether process set forth below. Theorycraft will pay only its share of arbitration fees for Coordinated Cases, and the claimants will be responsible for their share of those fees. Applicable statutes of limitations will be tolled for claims asserted in a Coordinated Case from the time a compliant Notice of Dispute has been received by a party until, under the terms of this Agreement, the Coordinated Case is filed in arbitration or court.
Once counsel in the Coordinated Cases has advised Theorycraft that all or substantially all the Notices of Dispute have been provided, counsel for the parties shall confer in good faith regarding the number of cases that should proceed in arbitration as bellwethers, which shall be a number sufficient to allow each side to test the merits of its arguments. If counsel for the parties do not agree on the number of bellwethers, an even number of cases shall be chosen by the arbitration provider as an administrative matter (or, in the arbitration provider’s discretion, by a process arbitrator). Factors that the arbitration provider may consider in making this decision include the complexity of the dispute and differences in facts or applicable laws among various cases. Once the number of bellwethers is fixed, by agreement or by the arbitration provider, each side shall select half that number from among the claimants who have provided compliant Notices of Dispute, and only those chosen cases may be filed with the arbitration provider (and only the fees associated with those bellwether cases shall be assessed). The parties acknowledge that resolution of Coordinated Cases not chosen as bellwethers will be delayed by this bellwether process.
A single arbitrator shall preside over each Coordinated Case chosen for a bellwether proceeding, and only one Coordinated Case may be assigned to each arbitrator as part of a bellwether process unless the parties agree otherwise.
Once all bellwether trials have concluded (or sooner if the counsel for the claimants and Theorycraft agree), the parties must engage in a single mediation of all remaining Coordinated Cases, with each side paying half the applicable mediation fee. Theorycraft and counsel for the claimants must agree on a mediator within 30 days after the conclusion of the last bellwether trial. If counsel for Theorycraft and claimants cannot agree on a mediator within 30 days, the arbitration provider will appoint a mediator as an administrative matter. Theorycraft and counsel for the claimants will cooperate for the purpose of ensuring that the mediation is scheduled as quickly as practicable after the mediator is appointed.
If the mediation does not yield a global resolution, this arbitration requirement shall no longer apply to remaining Disputes that are the subject of Coordinated Cases for which a compliant Notice of Dispute was received by the other party. Such remaining Disputes may be filed only in the state courts in Los Angeles County, California, or if federal jurisdiction exists, in the United States District Court for the Central District of California, and you consent as part of this Agreement to venue such cases exclusively in these courts. Nothing in this paragraph shall be construed as prohibiting either you or Theorycraft from removing a case from state to federal court if removal is allowed under applicable law. To the extent this exclusion applies to you, and you are asserting the same claims as other persons and are represented by common or coordinated counsel, you agree to waive any objection that the joinder of all such persons is impracticable. If a formerly arbitrable Dispute is brought in court, the claimant asserting such a Dispute may seek class treatment, but to the fullest extent allowed by applicable law, the classes sought may comprise only the claimants in the Coordinated Cases who provided compliant Notices of Dispute and whose cases were not resolved during the bellwether process. Any party may contest class certification at any stage of the litigation and on any available basis.
A court shall have authority to enforce this bellwether process for Coordinated Cases and may enjoin the filing of lawsuits or arbitration demands not made in compliance with it.
D. Continuation in Effect
The dispute resolution process set forth in this Section 13 survives any termination of this Agreement.
E. Severability
If any provision of this Section is found invalid, unenforceable, or illegal, then you and Theorycraft agree that the provision will be severed, and the rest of the agreement to arbitrate shall remain in effect and be construed as if any severed provision had not been included. There are two exceptions to severability. If the prohibition on class arbitrations or the process for resolution of Coordinated Cases is found to be invalid, unenforceable, or illegal, such that Theorycraft might be required to arbitrate on a class basis or to pay arbitration fees for more than the group of bellwether cases contemplated in Section 13(c), then you and Theorycraft agree that this entire agreement to arbitrate will be void and unenforceable and any dispute between us will be resolved in court subject to the venue and choice of law clauses specified in this Agreement.
F. Your One-Time, 30-Day Right to Opt Out of the Arbitration Requirement
You have the right to opt out of and not to be bound by the requirement to arbitrate Disputes. To exercise this right, you must send written notice of your decision to the following address: 520 Broadway #500, Santa Monica, California 90401. Your notice must include your name, mailing address, and Theorycraft Account name, and state that you do not wish to be bound by the arbitration provisions set forth in the Agreement. TO BE EFFECTIVE, THIS NOTICE MUST BE POSTMARKED OR DEPOSITED WITHIN 30 DAYS OF THE DATE ON WHICH YOU FIRST ACCEPTED THIS AGREEMENT UNLESS A LONGER PERIOD IS REQUIRED BY APPLICABLE LAW; OTHERWISE YOU WILL BE BOUND TO ARBITRATE DISPUTES IN ACCORDANCE WITH THIS SECTION. For avoidance of doubt, this means that if you accept this Agreement, do not opt out of the arbitration requirement, and Theorycraft subsequently amends this Agreement—including its dispute resolution terms—you will not have a subsequent opportunity to opt out unless the amended agreement expressly provides one. You are responsible for ensuring that Theorycraft receives your opt-out notice, so you may wish to send it by a means that provides for a delivery receipt. If you opt out of these provisions, Theorycraft also will not be bound by them with respect to Disputes with you.
Section 14: Class Action Waiver
Separate from the requirement that any arbitration must be conducted on an individual basis only, to the maximum extent permitted by applicable law, for any case not subject to the requirement to arbitrate (except to the limited extent discussed above for Coordinated Cases not resolved during the bellwether process), you and Theorycraft will only bring disputes, claims, or controversies between us in an individual capacity and shall not seek to bring, join, or participate in any class or representative action, collective or class-wide arbitration, or any other action where another individual or entity acts in a representative capacity (like private attorney general actions); or consolidate or combine individual proceedings or permit another to do so without the express consent of all parties to this Agreement. You may not opt out of this Class Action Waiver.
Section 15: Governing Law
Any dispute arising out of or related to this Agreement shall be governed in all respects by the laws of the State of California without regard to its conflict of law provisions. In some circumstances, you will have additional protections of mandatory laws of the country in which you live, where such laws provide specific protections to consumers. Where this is the case, the mandatory laws of the country in which you live will take priority over the laws of the State of California. The provisions of this paragraph shall not prevent a consumer in the United States or Canada from asserting claims under applicable statutes of their state or province of residence.
Section 16: Export Controls
Theorycraft’s software, products, and services are subject to all applicable export restrictions. You must comply with all export and import laws and restrictions and regulations of any United States and foreign agency or authority relating to Theorycraft’s software, products, and services, and your use of them, and the software, products, and services may not be re-exported, downloaded or otherwise exported to, or installed by a national or resident of, any country to which the United States has embargoed goods, or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders. You represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
Section 17: Entire Agreement, Severability
This Agreement constitutes the entire agreement between you and Theorycraft. There are no third-party beneficiaries except as stated expressly in this Agreement. If we waive any part of this Agreement, such a waiver will constitute only a one-time, case-specific waiver unless we tell you otherwise in writing. Similarly, if Theorycraft does not assert a right or provision of this Agreement, that does not constitute a waiver. If any part of this Agreement is found invalid, illegal, or unenforceable by a court with jurisdiction or an arbitrator, except for provisions declared non-severable in this Agreement, you and Theorycraft will consider that part removed or limited as little as possible so that the rest of this Agreement stays in effect.