THIS AGREEMENT DESCRIBES THE TERMS ON WHICH FLYING LAB SOFTWARE LLC (“We or FLS”) OFFERS YOU ACCESS TO AN ACCOUNT (THE “ACCOUNT”) AND THE SERVICE, WHICH ACCOUNT AND SERVICE MAY BE MANAGED OR OPERATED, IN PART, BY PORTALUS GAMES LLC (“Portalus”) AS THE AGENT OF FLS, TO PLAY THE PIRATES OF THE BURNING SEA FANTASY ONLINE ROLE PLAYING COMPUTER GAME AND ITS EXPANSION PACKS (INDIVIDUALLY AND COLLECTIVELY, THE “GAME”). BY PRESSING THE “I ACCEPT” BUTTON, YOU ACCEPT THE TERMS AND CONDITIONS BELOW. BY PRESSING THE “DECLINE” BUTTON, YOU DECLINE OUR OFFER, IN WHICH CASE YOU SHOULD CONTACT YOUR PLACE OF PURCHASE REGARDING ITS RETURN POLICY FOR THE APPLICABLE PRODUCT. If you have any questions regarding these terms and conditions, please contact Portalus Games Support at firstname.lastname@example.org.
You agree that FLS and its licensors retain the unfettered right to modify the Game and all aspects of characters, items and coin (collectively, “Virtual Goods”) therein. You acknowledge that FLS and its licensors have been, are, and will be constantly making changes to the Game. You further acknowledge that FLS and its licensors can and will, in their discretion, modify features, functions or abilities of any element of the Game or any Virtual Goods (which may, among other things, make the Virtual Goods substantially more effective or functional, or less effective or functional, more common or less common, or eliminated entirely).
YOU PROMISE, THEREFORE, THAT YOU WILL NEVER ASSERT OR BRING ANY CLAIM OR SUIT AGAINST FLS, ITS LICENSOR (S), LICENSEES AND AGENTS, OR ANY EMPLOYEES OF ANY OF THE ABOVE, WHICH IS RELATED TO OR BASED ON (I) A CLAIM THAT YOU “OWN” ANY VIRTUAL GOODS IN ANY GAME, (II) A CLAIM FOR THE “VALUE” OF VIRTUAL GOODS IF FLS OR ITS LICENSOR (S) OR AGENTS DELETES THEM (AND/OR TERMINATES YOUR ACCOUNT (S)) IF YOU OR ANYONE ACTING IN CONCERT WITH YOU VIOLATES ANY PROVISION OF THIS AGREEMENT, THE GAME’S CODE OF CONDUCT, FLS’ OR PORTALUS’S RESPECTIVE TERMS OF SERVICE AND/OR PRIVACY POLICIES (ALL OF WHICH ARE POSTED AT A LINK AT WWW.BURNINGSEA.COM), (III) A CLAIM FOR THE “VALUE” OF VIRTUAL GOODS THAT YOU MAY LOSE IF FLS OR ITS LICENSOR (S), LICENSEES OR AGENTS DO ANYTHING THAT THEY ARE ENTITLED TO DO PURSUANT TO ANY PROVISION OF THIS AGREEMENT, THE GAME’S CODE OF CONDUCT, FLS’ OR PORTALUS’S RESPECTIVE TERMS OF SERVICE AND/OR PRIVACY POLICIES, OR FOR ANY MALFUNCTIONS AND/OR “BUGS” IN THE GAME, AND/OR (IV) A CLAIM THAT THE “VALUE” OF ANY VIRTUAL GOODS HAS INCREASED OR DECREASED BY VIRTUE OF ANY GAME MODIFICATION THAT FLS OR ITS LICENSOR (S), LICENSEES OR AGENTS HAS MADE OR WILL MAKE.
1. Accounts are available only to adults or, in their discretion, their minor child. If you are a minor, your parent(s) or guardian(s) must complete the registration process, in which case they will take full responsibility for all obligations under this Agreement. By clicking the “I Accept” button and providing Portalus with a credit card number, you represent that you are an adult and are either accepting this Agreement on behalf of yourself or your child. You may not transfer or share your Account with anyone, except that if you are a parent or guardian, you may permit one child to use the Account instead of you (in which case you may not use that Account). You are liable for all activities conducted through the Account, and parents or guardians are liable for the activities of their child. Corporations and other entities are not eligible to procure Accounts.
2. To play the Game, you must (a) purchase or receive through an FLS or Portalus-authorized promotional offer (such as an authentic disc bundled with a game magazine) the Game CD-ROM(s) or DVD-ROM(s) (collectively, the “DVD-ROM”) or applicable files which we or Portalus may make available for direct download, which includes software and related documentation required for the Game (the “Software”), (b) have a fully paid and valid Account, and have at least the minimum system requirements to operate the Game and an Internet connection (both of which we and Portalus do not provide) to access your Account. In addition to any fees described herein, you are responsible for paying all applicable taxes (including those we or Portalus are not required to collect) and for all hardware, software, service and other costs you incur to access your Account. Neither this Agreement nor your Account entitles you to any subsequent releases of the Software, nor to any expansion or compilation packs or similar ancillary products or premium services, without paying applicable charges. You understand that we may update or otherwise enhance the Software at any time and in doing so incur no obligation to furnish such updates to you pursuant to this Agreement. You understand that online games evolve over time and, accordingly, system requirements to play the Game may change over time and you may need to upgrade your system (or obtain a new system) to play the Game. Game experience may change during online play.
3. We may amend this Agreement at any time in our sole discretion. Amendments shall be communicated to you at the time you log into your Account. Such amendments shall be effective whenever we make the notification available for your review.
4. Upon registration, you must select a password. You may not disclose your password to any third party. We and Portalus never ask you for your password by telephone, in-game communication, live-chat or email, and you should not disclose it this way if someone asks you to do so. Although we or Portalus may offer a feature that allows you to “save” or “remember” your password on your hard drive, please note that by using this feature third parties may be able to access your computer and thus your Account.
5. We describe the Game’s fees and billing procedures at a hotlink located at www.portalusgames.com, which are incorporated by reference and are subject to change at any time. All fees are stated in U.S. Dollars unless otherwise specified. All fees are prepaid and non-refundable. Upon your acceptance of these terms, we or Portalus have the right to automatically charge your credit card the Account fee plus any applicable taxes we or Portalus are required to collect, and you authorize us and Portalus to do so. Thereafter, each time your Account comes up for renewal, we or Portalus have the right to charge your credit card the then-current renewal rate plus any applicable taxes we or Portalus are required to collect, and you authorize us and Portalus to do so. If we or Portalus are unable to process your credit card at a renewal period, your Account may be immediately terminated. If we or Portalus make a Game Card available and you use a Game Card to pay for your Account, the Game Card shall activate your Account for the subscription period stated on the Game Card (unless we or Portalus allow such Game Card to be used to pay for the Game subscription and one or more premium products or services related to the Game, in which case the period of time may be prorated between the Game subscription and such premium products and services) and, thereafter, you will either need to provide a valid credit card (in which case your credit card will subsequently be charged as referenced above) or purchase another Game Card for subsequent subscription periods (for the Game and premium products and services, as applicable), or your Account will be closed. You may terminate your Account at any time through the Account registration process. If you terminate your Account during the initial period of gameplay included with your purchase of the Game Software, if any, your Account will be closed at the end of such initial period of gameplay and you will not be billed. If you convert your Account during the initial period of gameplay included with your purchase of the Game Software to a paid subscription Account, you may lose the balance of any unused period of gameplay included with your purchase at the time of such conversion. If you terminate your Account during any subscription cycle, your Account will be closed at the end of the then-current cycle and you will not be billed again unless you affirmatively reopen the Account. We and Portalus do not give full or partial refunds for subscription periods that you have purchased.
6. We and Portalus may terminate this Agreement (including your Software license and your Account) and/or suspend your Account immediately and without notice: (i) if you violate any provision of this Agreement; (ii) infringe any third party intellectual property rights; (iii) if we or Portalus are unable to verify or authenticate any information you provide to us or Portalus; (iv) upon game play, chat or any player or Game-related activity (whether in-game or outside the game) whatsoever which we and Portalus, in each of our sole discretion, determine is inappropriate and/or in violation of the spirit of the Game; and/or (v) upon any violation of this Agreement, the FLS Terms of Service, the Portalus Games Terms of Service and/or the Game Code of Conduct. If we or Portalus terminate this Agreement or suspend your Account under these circumstances, you will lose access to your Account for the duration of the suspension and/or the balance of any prepaid period without any refund. We may also terminate this Agreement if we decide, in our sole discretion, to discontinue offering or supporting the online service for the Game, in which case we may provide you with a prorated refund of any prepaid amounts.
7. Subject to the terms of this Agreement, we and our licensors hereby grant to you a non-exclusive, non-transferable, revocable license to use the Software solely in connection with playing the Game via an authorized, valid and fully-paid Account. You may not copy (except to make one necessary back-up copy), distribute, sell, auction, rent, lease, loan, modify or create derivative works, adapt, translate, perform, display, sublicense or transfer all or any portion of the Software. You may not copy any of the written, digital or electronic materials accompanying the Software unless we expressly permit you to do so in writing, and then only to the extent permitted. You may not reverse engineer, disassemble or decompile the Software except to the extent that this restriction is expressly prohibited by applicable law. The Software may contain license management software that restricts your use of the Software.
8. We and our licensors, licensees and suppliers shall retain all rights, title and interest, including, without limitation, ownership of all intellectual property rights relating to or residing in the DVD-ROM, the Software, the Game and Virtual Property, all copies thereof, and all Game character and Account data in connection therewith. You acknowledge and agree that you have not and will not acquire or obtain any intellectual property or other rights, including any right of exploitation, of any kind in or to the DVD-ROM, the Software, Virtual Goods, and/or the Game, including, without limitation, in any artwork, video, audio, text, graphics, music, sound effects, character(s), item(s), coin(s) or other material or property, whether virtual or real, and/or any compilation or copyrightable arrangement of any of the above (collectively, “Rights”), and that all such property, material, items and Rights are exclusively owned by us or our licensors or licensees.
9. You may not use any software to modify the Software to change Game play. You may not create, facilitate, host, link to or provide any other means through which the Game may be played by others, such as through server emulators. You may not decrypt or modify any data transmitted between client and server and you may not use, post, host or distribute macros, “bots” or other programs which would allow unattended game play or which otherwise impact game play. You may not take any action which imposes an unreasonable or disproportionately large load on our or our licensees’ or agents’ infrastructure. You may not buy, sell or auction (or host or facilitate the ability to allow others to buy, sell or auction) any Game account, characters, items, coin, Virtual Property or copyrighted material or any other intellectual property owned or controlled by us or our licensors without first obtaining our express written permission.
10. To obtain an Account, you will be required to choose both a login name and a player name. While you are encouraged to use a pseudonym, especially if you are a minor, you may not pick a name that is inappropriate, offensive or violates anyone’s trademarks, publicity rights or other proprietary rights.
11. As part of your Account, you can or may be able to upload content, messages, art, graphic files, pictures, video, audio, music, sounds, software and other files, items and content to our servers in various forms, such as in the selections you make for the Game, in-game posts and chat, and in chat rooms and similar user-to-user areas (collectively, your “Content”). Your Content, whether in written, digital, oral, machine-readable, electronic or visual form, shall not: (a) infringe any third party intellectual property, other proprietary or publicity/privacy rights; (b) violate any law, rule or regulation; (c) be offensive, unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, pornographic or harmful to minors, invasive of another’s right of privacy or publicity, hateful, racially, ethnically or otherwise objectionable; or (d) contain any viruses, “bots”, trojan horses, keystroke loggers, worms, time bombs, cancelbots or other software, files, scripts or computer programming routines that are intended to or result in damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information. We or Portalus may take any action with respect to your Content or Account if we believe it may create liability for us, Portalus or may cause us or Portalus to lose (in whole or in part) the services of our ISPs or other suppliers. You hereby grant to us and Portalus a worldwide, perpetual, irrevocable, royalty-free, sublicenseable (through multiple tiers) right to exercise all rights of any kind or nature associated with your Content, including, without limitation, all intellectual property rights, and all ancillary and subsidiary rights thereto, in any languages and in any media now known or not currently known.
12. We and Portalus cannot ensure that your private communications and other personally identifiable information will not be disclosed to third parties. For example, we, Portalus, or our designees may be forced to disclose information to the government or third parties under certain circumstances, or third parties may unlawfully intercept or access transmissions or private communications. Additionally, we, Portalus, or our designees can (and you authorize us, Portalus or our designees to) disclose any information about you to private entities, law enforcement or other government officials as each of us, in our sole discretion, believe necessary or appropriate to satisfy legal obligations, investigate or resolve possible problems or inquiries, or in exigent circumstances involving risk of harm to any person or property. You agree that we and Portalus may communicate with you via telephone, email and any similar technology for any purpose relating to the Game, the Software and any services or software which may in the future be provided by us, Portalus or on our or their behalf. You expressly permit us and Portalus to upload CPU, operating system, video card, sound card and memory information from your computer to analyze and optimize your Game experience, improve and maintain the Game, enforce the terms of this Agreement and/or provide you with customer service. Furthermore, if you request any technical support, you consent to our or Portalus’s remote accessing and review of the computer you load the Software onto for purposes of support and debugging. You may choose to visit www.burningsea.com, www.portalusgames.com, or other FLS or Portalus web sites if such web sites offer services such as a Pirates of the Burning Sea game-themed chat room or other services of interest to you. You are subject to the terms and conditions, privacy customs and policies of FLS and Portalus while on such web sites and in connection with use of your Account and the Game, which terms and conditions, policies and customs are incorporated herein by this reference. Since we and Portalus do not control other web sites and/or privacy policies of third parties, different rules may apply to their use or disclosure of the personal information you disclose to others. Solely for the purpose of patching and updating the Game and/or Software and ensuring the integrity of the Game, you hereby grant us and Portalus permission to (i) upload Game-related file information and data from the Game directory and (ii) download Game files to you. You acknowledge that any and all character data is stored and is resident on our or Portalus’s servers, and any and all communications that you make within the Game (including, but not limited to, messages solely directed at another player or group of players) traverse through our or Portalus’s servers, may or may not be monitored by us, Portalus or our agents, you have no expectation of privacy in any such communications and expressly consent to such monitoring of communications you send and receive. You acknowledge and agree that we and Portalus may transfer Game and your Account information (including your personally identifiable information and personal data) to the United States or other countries or may share such information with our licensees, licensors and agents in connection with the Game. The Game may incorporate third party ad serving technology from third parties. This technology, if used by us or Portalus and provided to you, enables certain advertising to be temporarily uploaded to your computer system and replaced in-game while connected online. As part of that process, neither us, Portalus nor the third party ad serving company collects any personally identifiable information about you and only temporarily logs select non-personally identifiable information (such as IP address). No logged information is used by such third parties to determine any personally identifiable information about you.
EXCEPT FOR THE LIMITED 90 DAY WARRANTY ON THE MEDIA AS SET FORTH ABOVE, WE AND PORTALUS PROVIDE THE DVD-ROM, THE SOFTWARE, THE ACCOUNT, THE GAME AND ALL OTHER SERVICES “AS IS.” WE, PORTALUS AND EACH OF OUR SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE. Without limiting the foregoing, we and Portalus do not ensure continuous, error-free, secure or virus-free operation of the DVD-ROM, the Software, the Game, your Account or continued operation or availability of any given server or Game feature, skill, character class or race, art, graphics, items, abilities, zones or other content. 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.
We and Portalus are not liable for any delay or failure to perform resulting from any causes beyond each of our reasonable control. Further, we and Portalus cannot and do not promise or ensure that you will be able to access your Account whenever you want, and there may be extended periods of time when you cannot access your Account. You agree to indemnify, defend and hold harmless FLS, Portalus, each of their affiliated companies, licensors, licensees and suppliers, and all of their respective officers, directors, owners, agents, employees, information providers, affiliates, licensors, designees and licensees (collectively, “Indemnified Parties”) from and against any and all liability and costs including, without limitation, attorneys’ fees and costs, incurred by the Indemnified Parties in connection with any claim arising out of (i) any breach by you of this Agreement or the foregoing representations, warranties and covenants or (ii) your installation or use of the Account, Game and any other hardware or software required or used to play the Game, including use of or access to the internet. You assume the entire risk as to the results and performance of the Software and the Game in connection with your hardware and software, and you assume the entire cost of all servicing, repair and/or correction of your hardware and software. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE ACCOUNT AND THE GAME REMAINS WITH THE USER.
14. IN NO EVENT SHALL WE, PORTALUS, EACH OF OUR PARENT COMPANIES, EACH OF OUR LICENSORS AND LICENSEES, EACH OF OUR AFFILIATES OR OUR SUPPLIERS, AND EACH OF OUR AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, REVENUE, DATA, CONTENT, ITEMS, HARDWARE, SOFTWARE, INJURY, INFORMATION OR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (HOWEVER ARISING, INCLUDING NEGLIGENCE) ARISING OUT OF, IN CONNECTION WITH OR RESULTING FROM POSSESSION, USE, INABILITY TO USE, FAILURE TO PERFORM, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER OR OTHER VIRUS, COMMUNICATION LINE FAILURE, THEFT, DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF OR MALFUNCTION OF THE GAME, SOFTWARE, YOUR ACCOUNT, THIS AGREEMENT OR THE DOWNLOADING OF ANY SOFTWARE OWNED OR OPERATED BY ANY OF US OR ANY THIRD PARTY, INCLUDING, WITHOUT LIMIATION, DAMAGE TO PROPERTY AND—TO THE EXTENT PERMITTED BY APPLICABLE LAW—DAMAGES FOR PERSONAL INJURY, EVEN IF WE, PORTALUS, EACH OF OUR RESPECTIVE LICENSORS, LICENSEES, SUPPLIERS, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS. THE LIABILITY OF FLS, PORTALUS, EACH OF OUR RESPECTIVE LICENSORS, LICENSEES, SUPPLIERS OR ANY OF OUR OR THEIR RESPECTIVE PARENT OR AFFILIATED COMPANIES TO YOU OR ANY THIRD PARTIES IS LIMITED TO $100. YOU AGREE TO WAIVE ANY RIGHT TO EQUITABLE RELIEF INCLUDING, WITHOUT LIMITATION, INJUNCTIVE RELIEF AGAINST FLS, PORTALUS, EACH OF OUR LICENSORS, LICENSEES, SUPPLIERS AND EACH OF OUR AND THEIR PARENTS OR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS TO ENFORCE THE TERMS HEREOF; HOWEVER, THE FOREGOING SHALL NOT PRECLUDE FLS, PORTALUS AND/OR EACH OF OUR LICENSORS OR LICENSEES FROM SEEKING ANY INJUNCTIVE RELIEF. Some states do not allow the foregoing limitations of liability, so they may not apply to you.
15. You shall comply with all applicable laws regarding your use of the Software, the DVD-ROM, your access to your Account and your playing of the Game. Without limiting the foregoing, you may not download, use or otherwise export or re-export the Software except in full compliance with all applicable laws and regulations, including, without limitation, the laws of the United States. The Game may NOT be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Sudan, Libya, North Korea, Iran, Syria, or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders (including, but not limited to, the Denied Persons List). By downloading, installing and/or using the Game, 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.
16. To the maximum extent permitted by law, this Agreement is governed in all respects by the laws of the State of California as such laws are applied to agreements entered into and to be performed entirely within California between California residents. The UN Convention on Contracts for the International Sale of Goods is expressly disclaimed. All parties submit to personal jurisdiction in California and further agree that any cause of action relating to this Agreement shall be brought in the County of San Diego, State of California (if under State law) or the Southern District of California (if under federal law). If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. Our or Portalus’s failure to act with respect to a breach by you or others does not waive our or Portalus’s right to act with respect to subsequent or similar breaches. You may not assign or transfer this Agreement or your rights hereunder, and any attempt to the contrary is void. This Agreement sets forth the entire understanding and agreement between us, Portalus and you with respect to the subject matter hereof. Except as provided herein, this Agreement may not be amended except in a writing signed by both parties.
17. You hereby affirm and agree to those terms and conditions of use set forth in the Game Code of Conduct, which may be obtained at a hotlink located at www.portalusgames.com and which is incorporated herein by this reference.
18. All services hereunder are offered by Flying Lab Software LLC, located at 2815 2nd Avenue, Suite 500, Seattle, WA 98121, or Portalus Games LLC, located at PO Box 9952, Seattle, WA 98109. Our phone number is 206-272-9815 and Portalus’s phone number is (866) 944-8597. Current rates for using the Game may be obtained from a hotlink at www.portalusgames.com, and such rates are subject to change at any time. If you are a California resident, you may have this same information emailed to you by sending a letter to us at the foregoing address with your email address and a request for this information.
The Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be contacted in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
Parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. If you are interested in learning about these protections, information is available at http://www.worldvillage.com/wv/school/html/control.htm or other similar sites providing information on such protections.
The Software is a “commercial item” if acquired under agreement with the U.S. Government or any contractor therewith in accordance with 48 CFR 12.212 of the FAR and, if acquired for Department of Defense (DoD) units, 48 CFR 227-7202 of the DoD FAR Supplement, or any succeeding similar regulations.