PLEASE READ THIS PLAYTESTING AGREEMENT ("AGREEMENT") CAREFULLY AND IN ITS ENTIRETY. THIS AGREEMENT, MADE AS OF THE DATE OF YOUR ACCEPTANCE OF THESE TERMS BETWEEN YOU AND FOBIA D.O.O ("FOBIA"), IS LEGALLY BINDING ON YOU AND GOVERNS YOUR PARTICIPATION IN THIS PLAYTEST ("PLAYTEST").
UPON ACCEPTING THE TERMS OF THIS AGREEMENT, YOU REPRESENT, WARRANT, AND GUARANTEE THAT YOU (A) ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT IN ITS ENTIRETY, (B) AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS, (C) ARE AUTHORIZED, ABLE TO ACCEPT AND TO COMPLY WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND (D) ARE OF THE AGE OF MAJORITY, BUT NO LESS THAN THE AGE OF EIGHTEEN UPON ACCEPTANCE OF THESE TERMS.
Playtest. This Agreement applies to your access and use of any game (“Game” or “Games”) of Fobia that is in development, including, without limitation, in beta or alpha phase, or in early access, unless expressly stated otherwise in a separate agreement between you and Fobia. Expressly subject and upon our approval of your access and use, you may play any of the Games. During the Playtest and subject to the Agreement’s terms and conditions, Fobia grants you a limited license (as described in more detail below) to playtest the Games as further defined below under Licensed Content.
WE MAY TERMINATE YOUR ACCESS AND USE OF THE GAMES AND PLAYTEST AT ANY TIME WITHOUT PRIOR NOTICE AND FOR NO REASON WHATSOEVER.
USE OF THE GAME, ANY CONTENT WITHIN OR IN CONNECTION WITH THE GAME, AND OR OTHER MATERIALS PROVIDED TO YOU AS PART OF THE PLAYTEST, WHICH IS NOT EXPRESSLY PERMITTED UNDER THIS AGREEMENT, IS STRICTLY PROHIBITED. IF YOU DO NOT CONFORM TO THIS LIMITATION, WE WILL IMMEDIATELY REVOKE ANY RIGHTS GRANTED TO YOU UNDER THIS AGREEMENT AND YOU AGREE THAT YOU WILL IMMEDIATELY DELETE THE GAME FROM YOUR OPERATING SYSTEM AND CEASE FROM PLAYING THE GAME.
Account. Other Playtest Terms. Your access to the Playtest requires that you (i) create, and our approval of, an account through our website https://destinysdivide.com/ or our launcher; (ii) have an account with one or more digital platforms (by way of example: Steam or Epic Store) (“Digital Platforms”) allowing you to download or subscribe to the Game; and/or (iii) have installed, available, or created an account with any and all software (including, without limitation, accounts with third party software providers) and hardware required to play one or more Games.
You may be permitted to share information and material in-game with us or other players of the Games, including, without limitation, via a forum or a chat feature of the Game.
You represent and warrant that all information and material provided by you is truthful and accurate, does not infringe on any third-party rights or intellectual property rights not held or licensed by you, and does not disparage or reflect negatively on Fobia, another player of the Games, the Digital Platforms, or any other third-party.
You further represent and warrant that you comply with any and all terms and conditions of the Digital Platforms, and that you will hold harmless and indemnify us from any claim or damages against us arising from your breach of the terms and conditions of the Digital Platforms or any other breach of your representations and warranties that you made under this Agreement.
Term. Voiding Game Settings. Your right to access the Playtest, this Agreement, and any and all rights granted to your hereunder, will continue in effect until the Playtest has ended or is no longer accessible to you. We may terminate your access to the Playtest or a Game, or this Agreement at any time without notice and without any reason whatsoever.
We may, upon your approval, as granted within the game, through a Digital Platform, or otherwise, continue your access of one or more Games upon termination of the Playtest. In the event of such termination, you hereby acknowledge that any progress made, in-game items acquired (not purchased, as such is not permitted in a Playtest), settings created, may be voided entirely or in part.
- Feedback. As part of the Playtest, you may provide Fobia with comments, feedback, thoughts, questions, ideas, and suggestions regarding the Game ("Feedback"). You are solely responsible for all Feedback you provide and you acknowledge that such Feedback will not violate the intellectual property rights of any third party.
License to Game. We hereby grant you a personal, nonexclusive, revocable, non-sublicensable, non-transferable, and non-assignable worldwide license to reproduce the Games solely for the purpose of playtesting the Games on the digital platforms that the Game is provided to you on and for providing us with Feedback.
During the Playtest, we hereby grant you, in whole or in part, a personal, nonexclusive, revocable, non-sublicensable, non-transferable, and non-assignable worldwide license (“User Content License”) to reproduce publicly perform and display, and prepare derivative works of the Game solely for non-commercial purposes to use, create, share, and display the Game or Derivatives of the Game in public, including, without limitation, to create fan art, stream your game play or create let’s play videos. (“Licensed Content”). During the Playtest, we grant you the User Content License without prior approval, but reserve the right to immediately terminate the User Content License at any time and for any reasons. We retain at all times all ownership, rights, and interest to the Licensed Content and nothing whatsoever in this Agreement may be construed to the contrary of this sentence.
Ownership. Feedback. Licensed Content. Ideas.
With respect to jurisdictions that recognize work made for hire, as defined in the Copyright Act (17 U.S.C. §201), or any corresponding doctrine, all Feedback and Licensed Content created by you thereunder are specially ordered or commissioned by Fobia and is considered a work made for hire.
With respect to all (i) Feedback and Licensed Content, which is not subject to copyright law; (ii) copyrightable Feedback and Licensed Content to the extent that it or any part thereof is deemed not to be a work made for hire; (iii) ideas, concepts, brands, and products, arising from your Feedback and the Licensed Content, and (iv) and any other material and information that you share with use for purposes of the Playtest (by way of example, information that you provide us with through your account or launcher, provided that such information may be subject to our Privacy Policy under https://destinysdivide.com/privacy) you hereby irrevocably assign and transfer all of your right, title, and interest in that Feedback or part thereof to Fobia.
Should any of the foregoing not be assignable, you hereby grant us an exclusive, worldwide, sublicensable, transferable, fully paid, royalty free, perpetual, irrevocable and otherwise unlimited license to use any of the foregoing for any commercial and non-commercial use in any media now known or unknown, including the right to create derivatives, whether alone or in connection with any other material and information.
You hereby waive any and all proprietary and moral rights, or if applicable law does not permit such waiver, you will not, to the extent permitted by applicable law, at any time assert any such rights in any way with respect to the foregoing. You agree to execute documents and take further actions as requested by Enlighten and Empower to assist in validating, effectuating, maintaining, protecting, enforcing, perfecting, recording, patenting, or registering its rights. If you are unavailable, or fail to execute such documents when requested to do so for any reason, Fobia may execute the aforementioned documents as your attorney-in-fact, which appointment will be irrevocable for this sole purpose.
DISCLAIMER. LIABILITY. LIMITATIONS. THE GAME AND PLAYTEST ARE PROVIDED "AS IS" AND, TO THE MAXIMUM EXTENT ALLOWABLE UNDER LAW, FOBIA DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. FURTHER, FOBIA DOES NOT WARRANT THAT THE GAME WILL WORK PROPERLY. FOBIA WILL NOT BE LIABLE TO YOU FOR ANY PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR ANY OTHER FORM OF DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES FROM ANY CAUSES OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE PLAYTEST, OR THE GAME, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY OR OTHERWISE, REGARDLESS OF WHETHER FOBIA HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. IN NO EVENT WILL FOBIA’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES EXCEED $10. SOME JURISDICTIONS DO NOT ALLOW FOR CERTAIN LIMITATIONS OF LIABILITIES OR WARRANTIES, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
IN THE EVENT AND SOLELY TO THE EXTENT THAT SOME OR ALL LIMITATIONS DO NOT APPLY TO, FOBIA’S LIABILITY IN SUCH INSTANCE IS LIMITED TO DAMAGES REGARDING BODILY HARM OR YOUR HEALTH AND REGARDING ANY OTHER DAMAGES TO THE EXTENT SUCH DAMAGES ARE A RESULT OF FOBIA’S GROSS NEGLIGENCE.
- Miscellaneous. This Agreement represents the entire understanding between the parties, superseding all prior agreements between the parties with respect to the subject matter contained herein. This Agreement shall be binding upon and inure to the benefit of the parties’ respective assigns, successors, heirs, and legal representatives. We may modify this Agreement upon notice to you, and may require agreement to the modified terms as a condition of your continued use of the Game. This Agreement may not be otherwise modified by you unless in a written agreement signed by both you and an authorized representative of the Fobia. We may assign this Agreement; You may not assign this Agreement. This Agreement, the Playtest, the Game, and your interactions with Fobia related thereto shall be governed by the laws of New York, without regard to its conflict of laws principles. You hereby consent to the exclusive jurisdiction and venue of the state and federal courts of New York County. You and Fobia expressly consent to the exclusive jurisdiction of the foregoing courts and waive any jurisdictional or forum non-conveniens defenses each may have. You expressly waives your right hereunder to seek a jury trial or to seek equitable relief. If any provision of this Agreement is held invalid or unenforceable, in whole or in part, that provision will be modified to the minimum extent necessary to make it valid and enforceable, and the validity and enforceability of all other provisions of this Agreement shall not be affected.
Last updated: [21.12.2021]