This Magic Online Beta Testing and Non-Disclosure Agreement (the “Agreement”) by and between you (“Participant”) and Daybreak Game Company LLC (“Daybreak”) governs your application and participation in Daybreak’s Beta Testing Program (the “Beta Program”), which allows participants to test the capabilities and performance of pre-released features of the online game entitled Magic: The Gathering Online (the “Game” “MTGO” or “Magic Online”). Participants may test Game content including, without limitation, any and all associated media, graphics, printed or electronic materials and documentation (collectively, the “Beta Software”) and provide feedback and comments to Daybreak This Agreement incorporates by reference Daybreak’s Terms of Service (“Terms of Service”), Daybreak’s MTGO End User License Agreement (“EULA”) and Daybreak’s Privacy Policy (“Privacy Policy”), (collectively, the “Terms”), which are available at Daybreak’s website (www.daybreakgames.com). By clicking the “Accept these terms” box, submitting your
application, and/or participating in the Program, you are agreeing to be bound by the terms of this Agreement.
1. Program Participation. The Beta Program is available to persons at least eighteen (18) years of age (or a legal adult in their state or country of residence, whichever is older). Participant acknowledges and agrees that their participation in the Beta Program is entirely voluntary with no expectation of consideration, remuneration or any form of compensation other than what is expressly provided for in this Agreement. Nothing herein shall be construed as creating an employment or agency relationship between Daybreak and Participant. Participant agrees that they shall not, in any manner, hold themself out to others as an employee, agent, or representative of Daybreak during or after their participation in the Beta Program. Daybreak may, in its sole discretion, and at any time before or during the Beta Program, accept or reject Participant’s application or registration for the Beta Program. Individuals who have their application declined must wait a minimum of three (3) months before re-applying. Participant may terminate this
Agreement and cease their participation in the Beta Program at any time for any reason. Daybreak may terminate this Agreement and remove the Participant from the Beta Program at any time for any reason. Daybreak reserves the right to change, suspend, terminate, or update any part of the Beta Program at any time and in its sole discretion.
2. License Terms. Once Participant is accepted by Daybreak into the Beta Program, Daybreak grants Participant the non-exclusive, non-transferable, revocable, limited right to install the Beta Software onto Participant’s computer. Participant may only use the Beta Software for testing and evaluation purposes as set forth in Section 2.1 below. All other rights are expressly reserved by Daybreak. Participant shall not:
i) Sell, auction, loan, lease, timeshare, rent, sublicense, transfer, transmit, publicly display, publicly perform,
disclose or distribute the Beta Software (or any portion thereof, including, without limitation, any
screenshots, videos, documentation or manuals relating to the Game) to any third party, or create,
facilitate, host, link, network or provide any other means through which the Game may be played by others through interception, emulation or redirection of the communication protocols used by Daybreak, or otherwise use any other technique or method to enable unauthorized Game-play or use of the Beta
Software;
ii) Attempt to reverse engineer, decompile, decrypt or disassemble the Beta Software;
iii) Attempt to directly or indirectly modify the Beta Software or change Game-play, or decrypt or modify any data transmitted between the Beta Software and Daybreak’s servers;
iv) Make copies of the Beta Software other than one (1) copy for back-up purposes to be used solely as a
replacement for the original copy, provided that Participant includes on the back-up copy all copyright and other notices that are included on the Beta Software and Your use of such back-up copy shall be subject to this Agreement; and
v) Export the Beta Software in violation of the export control and similar laws and regulations of the United States of America and other countries.
2.1. Testing and Evaluation. Participant hereby agrees to perform all of the following obligations: (i) to test, evaluate and analyze the Beta Software and its operation, features, capabilities and performance, (ii) to comply with the reasonable requests of Daybreak from time to time regarding testing, and (iii) to provide feedback and comments to Daybreak (including, but not limited to, bug reports and test results). All of Participant’s feedback and comments shall be the sole and exclusive property of Daybreak and shall constitute “User Content”, as described in and governed by the Terms of Service. Participant acknowledges that the Beta Program is a test environment, that game characters and/or character data will be frequently wiped or modified at Daybreak’s sole discretion, and that – notwithstanding any fee that Participant may be charged for participation in the Beta Program – Beta Program game characters and/or character data shall likely not be exported into the Game once the Game content is commercially released.
2.2. System Information Monitoring. As a condition to participate in the Beta Program, Participant shall be
required to allow Daybreak to upload on an ongoing basis, certain technical information, including, but not limited to, certain specifications of Participant’s hardware, diagnostic information, video cards, drivers,
operating system and software (“System Information”) and Participant hereby grants Daybreak the right to upload such System Information from Participant’s computer system without further notice to Participant during Participant’s participation in the Beta Program for the purpose of evaluating, improving and maintaining the integrity of the Game and the Beta Program. Daybreak’s retention and use of all System Information shall be subject to Daybreak’s Privacy Policy. Participant acknowledges that any and all Beta Software character data is stored and is resident on Daybreak’s servers, and any and all communications that Participant makes within the Beta Software, the Game or as part of the Beta Program (including, but not limited to, messages solely directed at another player or players) traverse through Daybreak’s servers, may or may not be monitored by Daybreak personnel and, accordingly, Participant has no expectation of privacy in any such communication. Participant acknowledges and agrees that Daybreak may transfer such information (including any personal information and personal data which Participant may provide) to the United States or other countries or may share such information with its sub-licensees and agents in connection with the Beta Program, Beta Software and the Game.
3. Beta Accounts and Beta Events: Participants will be using a duplicate version of their Live Magic Online account. Daybreak does not guarantee that the collection contents of your Beta account will match the contents of your Live account. Collection adjustments made to your Beta account (either through trades, event prizes, or store testing) are not permanent, nor will they transfer to your Live account. Occasionally there will be events that reward Participants for specific activities in the Beta Program. Event details, including event date, event duration, qualifying behavior, and reward, will be announced at least one (1) hour before an event starts. Participation in these incentive events is NOT guaranteed by Daybreak, and Daybreak is not responsible for players who could not participate due to short notice, scheduling conflicts, technical issues, or other reasons. Events in the Magic Online Beta Program that crash, hang, or
are otherwise unable to finish are not eligible for reimbursement or compensation in any way.
4. Beta Conduct and Competitive Play Policy. The purpose of the Beta Program is to find and document bugs and issues that impact the performance and playability of Magic Online. To that end, Participants must agree to follow the Beta Conduct and Competitive Play Policy below:
i) Be respectful of other Beta Program participants. Name calling, taunting, and intentionally disconnecting from matches are unacceptable. While the beta environment is more relaxed than the live game environment, Participants must still follow the Magic Online Code of Conduct.
ii) Playing to win is okay; playing to win at all costs is not. Competitive play (both constructed and limited) is encouraged, but the goal is to test card interactions and not fine tune tournament decks. Decks should be designed to create common and uncommon game states, not win without interactions.1
iii) Be respectful of players' time. Don’t join an event if you know you don't have time to finish. If something comes up and you have to leave, please inform your opponent, concede the game or match, and then drop from the event.
iv) Report all issues. If you find something you suspect is a bug or design issue, try to gather steps to reproduce the issue and report it (especially if it is not on the known issues list). In addition, if you feel someone is not following the Code of Conduct, report it.
v) Focus on multiplayer when possible. Multiplayer matches create many interactions and are very valuable for testing. When available, Participant’s shall prioritize multiplayer events above other types of play.
5. Term and Termination. Participant’s participation in the Beta Program, and the grant of any and all licenses herein, may be terminated by Daybreak at any time, for any reason or for no reason, in Daybreak’s sole and absolute discretion, by providing written or electronic notice to Participant. Participant may, at any time and for any reason or for no reason, terminate participation in the Beta Program by providing written or electronic notice to Daybreak. Unless terminated earlier in accordance with the Terms of this Agreement, this Agreement shall commence on the Effective Date and remain in effect for one (1) year. The confidentiality obligations set forth in Section 7 below shall survive any
expiration or termination of this Agreement and shall remain in effect unless and until the Confidential Material becomes subject to an exception to confidentiality set forth Section 7.
6. Participant Representations and Warranties. Participant represents and warrants that they:
i) are at least 18 years of age or older, or are a legal adult in their country of residence, whichever is older;
ii) have applied in their full legal name to participate in the Program and have a valid Magic Online account;
iii) have the legal authority to enter into this Agreement;
iv) agree to comply with all applicable laws and regulations and to conform their actions to the highest
industry standards; and
v) shall abide by Daybreak’s Terms, including the Magic Online Conduct Policy (the “Code of Conduct”), and shall follow all rules and content guidelines set forth by Daybreak, when participating in the Beta Program.
7. Non-Disclosure of Confidential Information. Participant acknowledges and agrees that in connection with their participation in the Beta Program they will receive non-public information about Daybreak and the Game that is proprietary and highly confidential (the “Confidential Information”), including without limitation any information concerning unreleased game content, marketing, business plans, software updates, rule changes, and other product details. Participant agrees that they shall hold the Confidential Information in strict confidence shall not publish, post, transmit, display, distribute, disclose, verify or otherwise make available, directly or indirectly, in any form or media, any Confidential Information to any third party. The foregoing confidentiality obligations shall not apply to Confidential Information for which Participant can demonstrate that such information
(i) has become part of information in the public domain through no fault of Participant;
(ii) was known by Participant prior to the disclosure thereof by Daybreak; or
(iii) properly comes into the possession of Participant from a third party which is not under any obligation to maintain the confidentiality of such information. Participant may disclose Confidential Information pursuant to a judicial or other government order, provided that Participant shall provide Daybreak with prompt notice prior to any disclosure so that Daybreak may seek other legal remedies to maintain the confidentiality of such Confidential Information, and Participant shall comply with any applicable protective order or equivalent. ONCE THE COMMERCIAL VERSION OF THE GAME CONTENT HAS BEEN RELEASED BY DAYBREAK TO THE PUBLIC, PARTICIPANT’S CONFIDENTIALITY OBLIGATION SHALL CONTINUE ONLY WITH RESPECT TO INFORMATION CONCERNING THIS BETA PROGRAM AND ALL FEEDBACK AND COMMENTS (WHETHER FROM YOU, OTHER PARTICIPANTS, OR FROM DAYBREAK EMPLOYEES).
8. Remedies. Participant agrees that the unauthorized disclosure or use of Confidential Information may cause irreparable harm and significant injury for which money damages may be inadequate and/or difficult to ascertain. Participant agrees that, in the event of a breach of Section 7 of this Agreement by Participant, Daybreak shall have the right to seek injunctive relief in addition to any other remedies that it may be entitled to seek.
9. Ownership and Feedback. Except for the revocable, limited license expressly granted hereunder, Participant acknowledges and agrees that Daybreak and or its licensors are and shall remain the sole and exclusive owner of the Game, Beta Software, and Beta Program and all intellectual property rights therein. Participant agrees that all feedback, comments, ideas, and other information that Participant provides to Daybreak about the Game, Beta Software, or the Beta Program during the Term (the “Feedback”) shall be the sole and exclusive property of Daybreak. Participant further agrees that Daybreak shall have the unlimited and perpetual right, without providing any payment or other form of compensation to Participant, to
(i) incorporate such Feedback into its products and marketing, and
(ii) use such Feedback in any manner or media now known or hereafter devised for any purpose whatsoever.
10. Indemnity. Participant will indemnify Daybreak and its affiliates and licensors, and their respective officers, directors, employees, agents, and assigns from and against any and all liability, losses, damages, and expenses including, without limitation, attorneys’ fees and costs, incurred in connection with or in any way relating to any claim arising out of any breach by Participant of this Agreement or Participant’s violation of any third party’s right or applicable law. This provision will survive expiration or termination of this Agreement.
11. No Warranty. Participant acknowledges that the Beta Software is a pre-release version and is not final game content. YOU ACKNOWLEDGE THAT THE BETA SOFTWARE MAY WELL CONTAIN ERRORS AND DEFECTS. THE BETA SOFTWARE IS PROVIDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND INCLUDING WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY, OR FITNESS FOR ANY PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY OF THE BETA SOFTWARE, BETA PROGRAM, THE GAME AND ALL OTHER SERVICES IS WITH YOU. SHOULD THE BETA SOFTWARE, BETA PROGRAM, THE GAME OR ANY RELATED SERVICES PROVE DEFECTIVE FOLLOWING THEIR RECEIPT BY YOU, YOU AND NOT DAYBREAK ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING OR REPAIR AND ALL USE BY YOU OF THE BETA SOFTWARE OR THE GAME IS AT YOUR SOLE RISK. Without limiting the foregoing, Daybreak does not ensure continuous, error-free, secure or virus-free operation of the Beta Software, the Beta Program, the Game, Your account or continued operation or availability of any given server or game-related content or feature. Some states do not allow limitations as to how long an implied warranty lasts and/or exclusions or limitations of consequential damages, so the above limitations and/or exclusions of liability may not apply to You. This warranty gives You specific legal rights and You may also have other legal rights which vary from state to state.
12. Liability: NOTWITHSTANDING ANY OTHER PROVISION HEREOF, IN NO EVENT SHALL DAYBREAK OR ITS PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, EMPLOYEES, OR REPRESENTATIVES BE LIABLE TO ANY PARTICIPANT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, FOR ANY LOST PROFITS, BUSINESS INTERRUPTION, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF DAYBREAK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITY. IN NO EVENT SHALL DAYBREAK’S LIABILITY UNDER ANY CLAIM MADE BY PARTICIPANT RELATING TO THIS AGREEMENT OR THEIR PARTICIPATION IN THE BETA PROGRAM EXCEED $1,000.
NOTHING HEREIN SHALL OPERATE TO LIMIT LIABILITY TO THE EXTENT THAT SUCH LIMITATION IS PROHIBITED BY APPLICABLE LAW PROVIDED THAT IN SUCH EVENT LIABILITY SHALL BE LIMITED TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAW.
13. No Assignment. Participant may not assign this Agreement or any of their rights or obligations hereunder to any other party without Daybreak’s prior written consent. Any attempted or purported assignment without Daybreak’s prior written consent shall be void. Subject to the foregoing, this Agreement shall be binding upon and for the benefit of the parties and each of their respective successors and permitted assigns.
14. Governing Law. This Agreement shall be governed by and construed under the laws of the State of California, notwithstanding its conflict of law provisions. All disputes arising under this Agreement shall be brought exclusively in the state or federal courts of California. Participant consents to the personal jurisdiction of the above courts.
15. Miscellaneous. Failure to enforce any provisions of this Agreement shall not constitute a waiver of any term hereof. This document contains the entire agreement between the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous agreements with respect to the subject matter hereof. No waiver or modification of any of the provisions of this Agreement shall be valid unless in writing and signed by both of the parties. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.