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LAST EPOCH

IMPORTANT NOTICE:

THIS VERSION OF THE ELEVENTH HOUR GAMES TERMS OF USE IS EFFECTIVE AS OF APRIL 2, 2019.

YOU SHOULD CAREFULLY READ THIS AGREEMENT BEFORE INSTALLING OR USING ANY ELEVENTH HOUR GAMES PRODUCT OR SERVICE AS IT AFFECTS YOUR LEGAL RIGHTS. IF YOU DO NOT AGREE WITH ALL OF THE TERMS, YOU MAY NOT INSTALL, USE, OR OTHERWISE ACCESS ANY ELEVENTH HOUR GAMES PRODUCT OR SERVICE

  1. Acceptance of Terms.
    Welcome to the Eleventh Hour Games, LLC (“Eleventh Hour Games”) ‘Last Epoch’ videogame (“Last Epoch”). These terms of use and privacy policy (“Terms of Use”) apply to the use of the Last Epoch website (“Website”) at www.lastepochgame.com (or such other URL as the Website may subsequently be hosted at), the software, documentation, and any associated materials comprising or made available in connection with Last Epoch (the “Materials”), as well as any services offered or provided by Eleventh Hour Games or authorized third parties in connection with Last Epoch (collectively, the “Services”). These Terms of Use govern the relationship between You (“You” or “User”) and Eleventh Hour Games regarding the use of the Services. By downloading, installing, accessing, or making use of any part of the Website, Materials, and/or Services, You agree to the Terms of Use and accept to be bound to the terms therein. These Terms of Use affect Your legal rights and obligations. If You do not completely agree to all of the policies, rules, and Terms of Use, You may not use the Services. If You reject the Terms of Use within fourteen (14) days after purchase of Last Epoch, you may contact Eleventh Hour Games to inquire about a full refund of the purchase price.
  2. Rights.
    Unless otherwise stated in these Terms of Use, Eleventh Hour Games is the owner or licensee of all rights, including, but not limited to, all copyright, trademarks, and other intellectual property rights relating to or included within the Website, Materials, and Services (“Rights”). For the avoidance of doubt, and to the greatest extent permitted at law, the Rights include without limitation all rights in respect of all graphics, logos, text, images, sounds, and all other elements included in and deriving from the gameplay and virtual world featured in Last Epoch, including without limitation in-game names, characters, locations and any virtual items (“Virtual Items”) and their associated benefits or properties acquired or provided for use within Last Epoch.
  3. License.
    If You accept and comply with these Terms of Use, Eleventh Hour Games will grant, and You will receive, a limited, revocable, non-sub licensable, non-commercial, and non-exclusive license to use and access the Website, Materials, and Services, subject to the limitations set forth in these Terms of Use, as follows (the “License”): (i) You may install applicable components or features of the Services, Materials, and/or Website on one or more computers under your legitimate, direct control; (ii) You may use the Services for Your personal and non-commercial entertainment purposes only, unless specifically allowed under these Terms of Use; and, (iii) You may not transfer Your rights and obligations under these Terms of Use. Any contravention by You of these Terms of Use or any other terms or conditions between You and Eleventh Hour Games or any behavior which Eleventh Hour Games deems in its sole discretion is not in keeping with the intended spirit of Last Epoch, immediately terminates the License, or such aspect of the License as Eleventh Hour Games may otherwise provide You notice of. Termination of the License, or any aspect of the License, by Eleventh Hour Games may without limitation also result in the taking of any of the further actions.
  4. Restrictions and Limitations.
    Eleventh Hour Games may suspend or revoke the License, or parts, components, and/or single features thereof, if You violate, or assist others in violating, the license limitations set for under these Terms of Use. You agree that You will not, in whole, in part, or under any circumstances, do the following: (i) adapt, reproduce, store, distribute, print, display, publish or create derivative works from any part of the Website, Materials, or Services other than in accordance with the License; (ii) modify or adapt (including through third parties and third party tools) the game client or its data, other than in the normal course of Last Epoch gameplay as permitted in accordance with the License; (iii) utilize any automated software or ‘bots’ in relation to Your access or use of the Website, Materials, or Services; (iv) knowingly perform any actions that may cause the computers used to support the Website, Materials, and/or Services (the “Servers”) to become overloaded or crash; (v) connect to the Servers through any software other than the authorized game client software; (vi) use any data gathering and extraction tools or software to extract information from the Website and/or Services or utilize framing techniques to enclose any of the contents of the Website and/or Services; (vii) use any meta tags or other hidden text which incorporate the Eleventh Hour Games name or any of its intellectual property, including trademarks; (viii) perform in-game services during Your use of the Website, Materials, or Services for any form of compensation outside of Last Epoch; (ix) create, utilize, or transact any in-game item created or copied by exploiting a design flaw, undocumented problem, or program bug in the game; (x) attempt to sell, sublicense, rent, lease, grant a security interest in, or otherwise transfer any copy or component of the Website, Materials, and/or Services or component thereof in any way not expressly authorized under these Terms of Use; (xi) engage in any conduct intended to disrupt the game experience for other players, or disrupt the operation of the Website and/or Services in any way; and, (xii) reverse engineer, decompile, or disassemble the Website, Materials, and/or Services.
  5. Recording and Streaming Gameplay.
    Subject at all times to the provisions of these Terms of Use, the License includes a limited license to stream Your Last Epoch gameplay on live streaming sites (including for example and without limitation www.twitch.tv) and to record videos of Your Last Epoch gameplay and post such videos on video sharing sites (including for example and without limitation YouTube). Subject at all times to any further restrictions or conditions specified by Eleventh Hour Games from time to time, such license from Eleventh Hour Games will also be deemed to allow You to include advertisements in such live streaming or recorded video content (together the “Gameplay Content”) and otherwise monetize such Gameplay Content as may be allowed by such live streaming or video sharing sites (together the “Gameplay Content Sites”). The terms of this section are at all times subject to Your compliance with any further obligations imposed by the applicable Gameplay Content Sites You wish to make the Gameplay Content available through and these Terms of Use. Notwithstanding the foregoing, and in Eleventh Hour Game’s sole discretion, You agree that on request from Eleventh Hour Games You will immediately remove or alter any Gameplay Content included on any Gameplay Content Sites and further agree that You will not pursue Eleventh Hour Games for any actual or potential loss You may suffer in such regard.
  6. Indemnity.
    You agree to fully defend and indemnify Eleventh Hour Games, its parent, subsidiaries, licensors, and affiliates against and from any third party claims, liabilities, losses, injuries, damages, costs or expenses incurred by Eleventh Hour Games arising out of or from Your use of the Website, Materials, Services, Last Epoch, and/or Member Account, or any specific services or features associated therewith, including without limitation any economic loss, loss of turnover, profits, business or goodwill, whether direct or consequential.
  7. Posting Policy.
    The following provisions (“Posting Policy”) apply to any comments You post or any statements You make in any manner on the Website (which includes for the avoidance of doubt any associated forums) or any messages You send to other users of the Materials and Services (including as part of the Last Epoch gameplay) by any manner whether facilitated or otherwise allowable by the Materials and Services (“Posts”): (i) all Posts must represent Your genuine opinion of the matter in question; (ii) personal abuse, foul language, inappropriate subject matter, obscene, harassing, threatening, hateful, or discriminatory or defamatory remarks of any nature, as may be determined by Eleventh Hour Games in its sole discretion, or Posts otherwise in contravention of any law or court order, are not permitted;(iii) Posts advertising or promoting any person or entity or their goods or services without the prior written approval of Eleventh Hour Games are not permitted; (iv) You grant Eleventh Hour Games a perpetual, non-revocable royalty-free licence to: (a) make use of any Posts as Eleventh Hour Games deems appropriate in relation to any of the Website, Materials and Services or the promotion of the same; and (b) sub-licence third parties, on such terms as Eleventh Hour Games deems appropriate, to make use of any Posts as Eleventh Hour Games deems appropriate in relation to any of the Website, Materials and Services or the promotion of the same.Eleventh Hour Games reserves the right without notice, explanation or liability to: (i) restrict or remove Your ability to make Posts; (ii) disallow the posting of any specific Posts; (iii) edit any specific Posts; and (iv) completely remove any Posts from the Website or anywhere else related to the Materials and Services (including as part of the Last Epoch gameplay) where they appear or are stored.
  8. Content.
    While Eleventh Hour Games has endeavored to take all reasonable and appropriate care in the preparation of the content of the Website, Materials, and Services and has no reason to believe that any information contained in any of the Website, Materials, or Services is inaccurate, Eleventh Hour Games does not warrant the accuracy, adequacy, or completeness of any information contained in any of the Website, Materials, or Services and that such information is error free. To the greatest extent permitted by law Eleventh Hour Games does not accept liability for any loss or damage which may result either directly or indirectly from reliance by You upon the accuracy or currency of information contained in any of the Website, Materials, or Services, including without limitation where such loss or damage is a result of or contributed to by the negligence of Eleventh Hour Games.
  9. Linked Websites.
    The Website, Materials, and/or Services may contain links to other websites or content not controlled by Eleventh Hour Games (“Linked Websites”). Those links and/or content are provided for convenience only and may not remain current or be maintained. Eleventh Hour Games is not responsible for the content or privacy practices associated with Linked Websites. Linked Websites should not be regarded as approval or as an endorsement of those Linked Websites, their operators or owners, or of any information, graphics, materials, products or services referred to or contained on those Linked Websites including further links contained on those Linked Websites, unless and to the extent stipulated to the contrary in these Terms of Use.
  10. Account Creation.
    To acquire or make use of any portion of the Website, Materials, and/or Services You are required to register for an Eleventh Hour Games member account (“Member Account”). By registering for a Member Account or by using any of the Services in any capacity, You represent and warrant the following: (i) all information and personal details You provide to Eleventh Hour Games are correct; (ii) You are aware that Last Epoch is an unrated game; (iii) You are over eighteen (18) years of age; (iv) You understand and agree to these Terms of Service; and (v) You will never allow any other person or entity to use Your account. You may not transfer Your registration or any rights You may have in Your Member Account to any other person or entity. For the avoidance of doubt, You acknowledge that You will have no ownership rights in Your Member Account, including without limitation any Virtual Items connected with such Member Account. You expressly agree that the sale or transfer of Your Member Account to any other person or entity is a material violation of these Terms of Use.
  11. Usernames.
    Any username You choose in relation to Your Member Account or as applicable any other identifier You choose for use in relation to Your access or use of the Website, Materials and Services, may be viewable by other users of any of the Website, Materials and Services as applicable and You warrant that any such username or other identifier will not:(a) infringe the rights of whatever nature of any third party including without limitation copyright, registered and unregistered trade mark rights, rights of personality, privacy, confidentiality and any other intellectual property rights; and(b) contain foul language, inappropriate subject matter, obscene, harassing, threatening, hateful, or discriminatory or defamatory remarks of any nature as may be determined by Eleventh Hour Games in its sole discretion or otherwise be in contravention of any law or court order.
  12. Confidentiality of Passwords.
    You must keep all password and login information associated with Your Member Account confidential and not disclose such information to any third party or allow a third party access to Your Member Account without first obtaining Eleventh Hour Games’ prior written consent. You will be solely responsible for all activities undertaken and/or costs incurred under the use of Your password and login. You must notify Eleventh Hour Games immediately if You know or suspect that Your Member Account has been accessed by a third party or Your login or password details have been, or may have been, obtained by a third party.
  13. Member Account Cancellation.
    Eleventh Hour Games reserves the right, acting at its sole discretion, to refuse to accept Your registration request for a Member Account. To the greatest extent permitted by law, Eleventh Hour Games also reserves the right, acting at its sole discretion, at any time to cancel Your registration and access to Your Member Account or to restrict, limit or otherwise change Your existing rights of access to Your Member Account, or any specific feature or benefit afforded to You in relation to Your Member Account, including without limitation in respect of any Virtual Items, if it believes You have breached these Terms of Use or any other agreements You may have with Eleventh Hour Games or for any other reason whatsoever. In such event You agree that Eleventh Hour Games will not be required to provide You with prior notice or explanation in respect of such action. Notwithstanding the cancellation of access to Your Member Account in any case, You agree You will remain fully liable for any outstanding liability owed to Eleventh Hour Games. Eleventh Hour Games may also, where it believes such action is necessary, without notice block IP addresses of any users who have breached the Terms of Use.
  14. Purchases.
    All purchases of products and services from Eleventh Hour Games (including, without limitation, purchases of Last Epoch and Cosmetic Points [as defined below]) are final and non-refundable, except as otherwise provided for under the Terms of Use, term of sale, or under applicable law. By purchasing any product or service from Eleventh Hour Games, You represent and warrant that You have the authority and right to use the payment method selected by You and that such payment method has sufficient credit or funds available to complete the purchase. Eleventh Hour Games expressly reserves the right to close any account with unauthorized charges.
  15. Cosmetic Points and Virtual Items.
    Last Epoch permits the purchase of virtual currency (“Cosmetic Points”) and use of those Cosmetic Points to purchase certain goods and services, including, without limitation, Virtual Items. The purchase of Cosmetic Points grants You only a limited, nontransferable non-sublicensable, revocable license to use such Cosmetic Points to access and purchase Virtual Items in connection with Your personal, noncommercial use of the Services. You acknowledge that You do not acquire any ownership rights in or to the Virtual Items and/or Cosmetic Points; any balance of Virtual Items and/or Cosmetic Points does not reflect any stored value and You agree that Virtual Items and Cosmetic Points have no monetary value and do not constitute currency or property of any type. Cosmetic Points may be redeemed only for Virtual Items and can never be sold, transferred, or exchanged for “real” money, “real” goods, or “real” services. You agree that You will only obtain Cosmetic Points and/or Virtual Items from Eleventh Hour Games and through means provided by Eleventh Hour Games, and not from any third party unless expressly authorized. Once You acquire a license to Cosmetic Points and/or Virtual Items, You may not transfer them to another individual, entity, or account. Any such sale, transfer, or exchange (or attempt to do so) is prohibited, is a violation of these Terms of Use and may result in cancellation of such Cosmetic Points and/or Virtual Items or the termination of Your Member Account. As set forth below, all Cosmetic Points and/or Virtual Items are provided “as is,” without any warranty. You agree that all sales of Cosmetic Points and/or Virtual Items are final and that Eleventh Hour Games will not permit exchanges or refunds for any unused Cosmetic Points and/or Virtual Items once the transaction has been made. Eleventh Hour Games reserves the right to offer, modify, eliminate, and/or terminate Cosmetic Points, Virtual Items, and/or the Services, or any portion thereof, at any time, without notice or liability to You. You must have an active Member Account in order to purchase Cosmetic Points. Eleventh Hour Games reserves the right to provide Cosmetic Points at no charge to any users of any of the Website, Materials, and/or Services on such terms and conditions as Eleventh Hour Games at its sole discretion deems appropriate.
  16. Cosmetic Points Cost and Payment.
    The cost of any Cosmetic Points and/or Virtual Item or any specific quantity of Cosmetic Points will be as specified by Eleventh Hour Games at its sole discretion from time to time. Any Cosmetic Points available for purchase may only be purchased by such means and in accordance with any further conditions as Eleventh Hour Games at its sole discretion may specify. Except as otherwise provided under the Terms of Use, Eleventh Hour Games will provide a refund if requested through [email protected] for up to 48 hours after such transaction. Cosmetic Points and/or Virtual Item may only be purchased and held by legal residents of countries where access to and use of the Services are permitted. If you live in the European Union, you have certain rights to withdraw from online purchases. However, once You download Cosmetic Points and/or Virtual Items, Your right of withdrawal ends. You agree that (a) purchase of Cosmetic Points and/or Virtual Item involves immediate download of such content; and (b) You lose your right of withdrawal once Your purchase is complete.
  17. Cosmetic Points Cancellation.
    Eleventh Hour Games reserves the right at any time without notice to cancel any Cosmetic Points previously acquired by You, as Eleventh Hour Games at its sole discretion deems appropriate. In addition, in the event of the cancellation of Your Member Account any unused Cosmetic Points You currently hold will automatically be deemed to also be cancelled. To the greatest extent permitted by law Eleventh Hour Games will have no further liability to You with regard to any cancelled Cosmetic Points including with respect to any obligation to refund to You the purchase price paid for such Cosmetic Points.
  18. Privacy Policy.
    1. Collecting Information.
      Whenever You access or make use of any of the Website, Materials, or Services, Eleventh Hour Games may, as applicable, collect the following types of information from You: (a) the IP address or other unique identifiers of Your machine when connected to the internet and the domain name from which You are accessing the internet; (b) the operating system and the browser Your computer uses and any search engine You are using; (c) the date and time You are visiting; (d) the URLs of the Website pages You visit; (e) information relating to the actions You undertake within Last Epoch; (f) any Posts; and (g) any telemetry details (such as speed of Your connection and how well Last Epoch gameplay is running) associated with Your access and use of Last Epoch, as well as any other information You may explicitly provide Eleventh Hour Games in the course of accessing or making use of any of the Website, Materials or Services.
    2. Further Collection.
      Where possible, information will be obtained directly from You. However, You acknowledge that by accessing or making use of any of the Website, Materials, or Services information may also be collected from You as a result of the workings of the Website, Materials, or Services as applicable and the attached systems and software including without limitation in the case of the uploading of a ‘crash report’ to Eleventh Hour Games in the event that a software crash in relation to Last Epoch occurs. The type of information uploaded to Eleventh Hour Games as part of a ‘crash report’ will include a reference to Your member account, a portion of the memory state of the Last Epoch game You were playing when the crash occurred and the game settings You were using, but not any other information from Your computer or its memory.
    3. Use of Information.
      Eleventh Hour Games uses the information provided by You or generated by Your accessing or making use of any of the Website, Materials, or Services to provide the services Eleventh Hour Games provides to You in relation to any of the Website, Materials, or Services. Eleventh Hour Games also uses information collected from You to assess the performance of the Website, Materials, and Services and to ensure that the Website, Materials, and Services serve Your needs in the most efficient manner possible.
    4. Cookies.
      Eleventh Hour Games may also place cookies on Your computer. Cookies are alphanumeric identifiers which are transferred to Your computer’s hard drive through Your web browser to enable Eleventh Hour Games to recognise You whenever You access the Website and therefore better personalize Your access of and use of the Website, Materials and Services. A cookie does not identify You personally but it does identify Your computer. The help portion of Your browser’s toolbar should tell You how to prevent Your browser from accepting new cookies, how to have the browser notify You when You receive a new cookie, or how to disable cookies altogether. You should note however that if You do not allow the use of cookies or do not wish to provide certain information to Eleventh Hour Games, You may not be able to take full advantage of the Website, Materials and Services.
    5. Statistics.
      Although Eleventh Hour Games may use and publish non-personal aggregate statistics and group data about those people who access or make use of any of the Website, Materials or Services and their usage of any of the Website, Materials or Services, subject to the further terms of these Terms of Use, Eleventh Hour Games will not share or make public personally identifiable information about You without Your prior permission.
    6. Data Transmission.
      Unfortunately, no data transmission over the Internet can be guaranteed as totally secure. while Eleventh Hour Games strives to protect such information, we do not warrant and cannot ensure complete security of any information which You transmit to us. Accordingly, any information which You transmit to us is transmitted at Your own risk. Nevertheless, once we receive Your transmission, we will take all reasonable steps to preserve the security of such information.
    7. Disclosing Information.
      You also agree that Eleventh Hour Games is entitled to disclose information it holds about You without Your prior permission as follows: (a) to meet legal requirements; (b) to comply with legal process or help to maintain the law; (c) to protect Eleventh Hour Games’ rights or property or that of Eleventh Hour Games’ related companies; (d) to enforce these Terms of Service or any other agreement that Eleventh Hour Games may have with You; (e) to third party companies or individuals to process personal information on behalf of Eleventh Hour Games based on our instructions and in compliance with the terms of this Terms of Use; and, (f) if we engage in a merger, acquisition, bankruptcy, dissolution, reorganization, or similar transaction or proceeding that involves the transfer of Your information.
    8. Combining Information.
      Eleventh Hour Games may combine any information which it collects from You or otherwise obtains, with information collected or otherwise obtained by its related companies.
    9. Age Restrictions.
      Last Epoch, the Website, Materials, and Services are not directed to children under the age of thirteen (13). If You learn that a minor has provided Eleventh Hour Games with personal information without parental consent, please contact us immediately.
  19. Lost Data.
    In the event that any information or data (including without limitation in respect of in-game characters, achievements, Virtual Items, Cosmetic Points, or general Last Epoch gameplay) relating to You or Your use of any of the Website, Materials, and/or Services held by Eleventh Hour Games or any third party on behalf of Eleventh Hour Games is lost, corrupted or otherwise no longer reasonably available or accessible as determined by Eleventh Hour Games in its sole discretion, You agree that to the greatest extent permissible at law Eleventh Hour Games will have no liability to You of any nature relating to any such information or data.
  20. Accessing.
    You must take Your own precautions to ensure that the process which You employ for accessing or making use of any of the Website, Materials and Services does not expose You to the risk of viruses, malicious computer code or other forms of interference which may damage Your own computer system or any data contained therein. To the greatest extent permitted by law Eleventh Hour Games does not accept responsibility for any interference or damage to Your computer system or any data contained therein which may arise in connection with Your accessing or making use of any of the Website, Materials, and/or Services.
  21. Support.
    Eleventh Hour Games reserves the right to make support services available in relation to any of the Website, Materials, and Services on such terms and conditions as Eleventh Hour Games at its sole discretion deems appropriate and further reserves the right to alter, suspend, or withdraw such support services as Eleventh Hour Games at its sole discretion deems appropriate.
  22. Disclaimer of Warranties.
    YOUR USE OF THE LAST EPOCH, THE WEBSITE, MATERIALS, AND SERVICES ARE AT YOUR OWN RISK. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, MATERIALS, WEBSITE, AND LAST EPOCH ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, ELEVENTH HOUR GAMES EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. Eleventh Hour Games makes no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error -free basis, and makes no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness, or reliability of any content or Materials.YOU ASSUME ALL RISKS RELATING TO YOUR ONLINE OR OFFLINE COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATED OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES. YOU UNDERSTAND THAT ELEVENTH HOUR GAMES DOES NOT SCREEN OR INQUIRE INTO THE BACKGROUND OF ANY USERS OF THE SERVICES. ELEVENTH HOUR GAMES MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON.
  23. Limitation of Liability.
    TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER ELEVENTH HOUR GAMES OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES, WEBSITE, MATERIALS, OR CONTENT WILL BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA, OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT, OR FROM ANY COMMUNICATIONS, INTERACTIONS, OR MEETINGS WITH OTHER USERS OF THE SERVICES OR PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ELEVENTH HOUR GAMES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.IN NO EVENT WILL THE TOTAL LIABILITY OF ELEVENTH HOUR GAMES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT EXCEED THE TOTAL FEES PAID BY YOU TO ELEVENTH HOUR GAMES DURING THE SIX (6) MONTHS PRIOR TO YOU MAKING SUCH CLAIM AGAINST ELEVENTH HOUR GAMES. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ELEVENTH HOUR GAMES AND YOU.
  24. Equitable Remedies.
    You agree that Eleventh Hour Games would be irreparably damaged if the terms of these Terms of Use were not specifically followed and enforced. In such an event, You agree that Eleventh Hour Games shall be entitled, without bond or other security, or proof of damages, to appropriate equitable relief in the event You breach the Terms of Use; and that the awarding of equitable relief to Eleventh Hour Games will not limit its ability to receive remedies that are otherwise available to Eleventh Hour Games under applicable laws.
  25. Jurisdiction and Governing Law.
    The Terms of Use shall be governed by, and will be construed under, the laws of the United States of America and the law of the State of Delaware, without regard to choice of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods to these Terms of Use is expressly excluded. If You are accessing or making use of any of the Website, Materials, and/or Services from outside of Delaware then You agree that You are entirely responsible for ensuring that Your access and use of any of the Website, Materials and Services will not contravene any laws in Your country.
  26. Dispute Resolution.
    You and Eleventh Hour Games agree that any dispute, claim, or controversy arising out of or relating to these Terms of Use or the breach, termination, enforcement, interpretation, or validity thereof or the use of the Services, Website, Materials, or content (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights (an “IP Protection Action”). You acknowledge and agree that You and Eleventh Hour Games are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both You and Eleventh Hour Games otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. The Federal Arbitration Act will govern the interpretation and enforcement of this Section. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules. If Your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that You and Eleventh Hour Games submit to the arbitrator, unless the arbitrator determines that a hearing is necessary. If Your claim exceeds $10,000, You right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. Your arbitration fees and your share of arbitrator compensation shall be governed by the JAMS Comprehensive Arbitration Rules and Procedures. THE PARTIES UNDERSTAND THAT, ABSENT THIS MANDATORY PROVISION, THEY WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
    They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation. However, the arbitrator shall shift such fees and costs to ensure that you do not pay significant forum fees. In addition, You shall not be required to pay any type of fee or cost in arbitration that You would not have had to pay had You been free to file your claim in court. The parties understand that the right to discovery may be more limited in arbitration than in court. However, each side will be permitted discovery sufficient to allow that side a fair opportunity to present or defend their claims. Any arbitration shall be initiated in the State of Delaware, United States of America.
  27. Termination.
    Eleventh Hour Games may terminate these Terms of Service, the License, and/or Your access to and use of the Services, Website, Materials, and Last Epoch, at our sole discretion, at any time and without notice to You. You may cancel your Member Account at any time. Upon any termination, discontinuation, or cancellation of these Terms of Use, the following provisions of these Terms of Use will survive: Rights, Indemnity, Purchases, Cosmetic Points and Virtual Items, Cosmetic Points Cost and Payment, Cosmetic Points Cancellation, Privacy Policy, Lost Data, Accessing, Disclaimer of Warranties, Limitation of Liability, Equitable Remedies, Jurisdiction and Governing Law, Dispute Resolution, Waiver, Assignment, Severability, Entire Agreement; and this sentence of Termination.
  28. Waiver.
    Eleventh Hour Game’s failure to enforce a provision of this Terms of Use shall not be construed as (1) waiver of such provision, or (2) diminishment of any right to enforce such provisions. Further, Eleventh Hour Games may choose to waive enforcement of a provision of this Terms of Use in a particular instance; however, You are still obligated to comply with that waived provision in the future.
  29. Assignment.
    Eleventh Hour Games may assign these Terms of Use, in whole or in part, to any person or entity at any time with or without Your consent. You may not assign these Terms of Use without Eleventh Hour Games’ prior written consent or such assignment shall be void.
  30. Severability.
    If any provision of these Terms of Use is held to be invalid, void, unenforceable or illegal for any reason, such provision shall be deemed to be severed from these Terms of Use, but only to the minimum extent necessary to avoid such issue and the remainder of any such provision as well as all other provisions of these Terms of Use shall continue in full force.
  31. Entire Agreement.
    These Terms of Use constitute the entire agreement between You and Eleventh Hour Games in respect of their subject matter and supersede any previous understandings, representations or agreements on that subject matter.
  32. Amendments.
    Eleventh Hour Games reserves the right to amend the Terms of Use from time to time upon placing any such amendments on the Website or by providing You direct notice of any such changes. Your continued use of any of the Website, Materials, and/or Services thereafter will be deemed to be acceptance by You of any such changes to these Terms of Use.Amendments to Last Epoch. Eleventh Hour Games at all times retains the right to the Rights as Eleventh Hour Games at its sole discretion deems appropriate, including without limitation the right without notice to alter, modify, redesign, suspend or discontinue any aspect or feature of the Website, Materials (including without limitation the Virtual Items), and Services.
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