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Player Studio Item Submission Agreement

Version 2.0

Last updated: March 13, 2015

Player StudioTM Virtual Item Submission Agreement

Daybreak Game Company LLC (“Daybreak” or “we” or “our”) created the Player StudioTM program to allow you to submit a virtual item to Daybreak for possible inclusion in the in-game marketplace of select Daybreak games. Daybreak’s Player StudioTM is governed by this Virtual Item Submission Agreement, Daybreak’s Terms of Service and Daybreak’s Privacy Policy. By creating and submitting a virtual item to Daybreak and clicking the “Accept” button below, you agree to be bound by this Virtual Item Submission Agreement (this “Virtual Item Submission Agreement”), Daybreak’s Terms of Service and Daybreak’s Privacy Policy. Submitted virtual items will be reviewed and considered by Daybreak for possible inclusion in the in-game marketplace of any Daybreak game(s). Daybreak may request additional information about a submitted virtual item and may ask you to make revisions to it. Each submitted virtual item, along with any related information provided by you and subsequent revisions created by you, collectively will be considered a “Submission” under this Virtual Item Submission Agreement. Please carefully review the terms and conditions of this Virtual Item Submission Agreement before completing your Submission and clicking the “Accept” button. If you do not agree to all of these terms and conditions, please do not click the “Accept” button and do not submit your Submission.

Daybreak reserves the right to modify this Virtual Item Submission Agreement in whole or in part, from time to time at its sole and absolute discretion, and to provide you with notice of such modifications by any reasonable means, including, without limitation, by making the revised version available on the Player Studio website. You can determine when this Virtual Item Submission Agreement was last revised by referring to the “Last Updated” legend above. Your continued participation in the Player Studio program following our making available any revised version of this Virtual Item Submission Agreement will mean that you accept the revised version of this Virtual Item Submission Agreement; provided, however, that material changes to this Virtual Item Submission Agreement will take effect on the “Last Updated” date and will not apply retroactively. We may, at any time, modify, suspend and/or discontinue all or part of any of the Player Studio program.

1. License

Summary: Daybreak has the unlimited right to use your Submission. Your Submission must comply with all applicable laws, rules, and regulations. As between Daybreak and you, you own Your Content in the Submission and can use it however you want. Daybreak retains all rights to Daybreak games and any materials provided to you as part of the Player Studio Program.

Detailed terms: You grant to Daybreak an unlimited, worldwide, non-exclusive, transferable, sublicenseable (through multiple tiers), royalty-free, fully-paid up, perpetual, irrevocable right and license to use, reproduce, distribute, display and perform (whether publicly or otherwise), adapt (including, without limitation, the rights to edit, modify, translate, and reformat), create derivative works of, transmit, make, have made, sell, offer to sell, import and otherwise use and exploit (and have others exercise such rights on behalf of Daybreak) your Submission, in any manner and all forms of media whether presently known or hereafter devised, including, without limitation, in all existing and future Daybreak games and related marketing and promotional materials. Daybreak is under no obligation to include your Submission in the in-game marketplace of any Daybreak game(s). Daybreak may, in its sole discretion, use your Submission for any purpose whatsoever in any existing or future Daybreak games, for example, to create in-game scenery, architecture, props, clothing, armor, weapons, loot, etc. Daybreak may, but is not obligated, to identify you as the source of the Submission. If Daybreak does identify you as the source, it may do so by any means it may deem reasonable, including, without limitation, by reference to a pseudonym (e.g., a character name you provide). You hereby grant Daybreak an unlimited, worldwide, non-exclusive, transferable, sublicensable (through multiple tiers), royalty-free, fully-paid up, perpetual, irrevocable right and license to use, reproduce, distribute, display and perform (whether publicly or otherwise), adapt (including, without limitation, the rights to edit, modify, translate, and reformat), create derivative works of, transmit, and otherwise use and exploit (and have others exercise such rights on behalf of Daybreak) your name, pseudonym, character name and/or any other word(s) that you use to identify yourself, in any manner and all forms of media whether presently known or hereafter devised, including, without limitation, in all existing and future Daybreak games and related marketing and promotional materials.

Submissions may incorporate certain in-game items, models, artwork, and other content that Daybreak may designate, at Daybreak‘s sole discretion from time to time, for use in conjunction with the Player Studio Program (“Daybreak Content”). Such Daybreak Content may include Player Studio virtual items created by other players, thus allowing players to build and combine virtual items to create new Submissions (see Section 2, below). However, each virtual item that you submit must include original and creative content (as determined by Daybreak in its sole discretion) that you created and contributed to the Submission. Daybreak hereby grants you a limited right and license to modify and create derivative works of designated Daybreak Content, solely for the purpose of creating your Submission. You may not use, sell, distribute, or otherwise exploit Daybreak Content for any other purpose. You may not use, sell, distribute, or otherwise exploit any game content other than the Daybreak Content that Daybreak has specifically designated for use via the Player Studio program.

With respect to each of your Submissions, you represent and warrant that (a) you have all right, title and interest in such Submission necessary for you to grant the above license to Daybreak, (b) your Submission complies with all applicable laws, rules and regulations and (c) you retained a copy of your Submission. You irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding your Submission that you may have under any applicable law under any legal theory as well as any and all other claims that any use of your Submission(s) by or on behalf of Daybreak and/or its sublicensees and/or assignees violates any of your other rights, including, but not limited to, privacy, publicity, proprietary, intellectual property and/or other rights.

You retain ownership of any original content created by you and contained in your Submission (“Your Content”) and, subject to the license granted above by you to Daybreak, you may use Your Content or license it for use in other games on a non-exclusive basis. Notwithstanding your ownership of Your Content, Daybreak has no obligation to preserve, return or otherwise provide to you any digital copies of Your Content or your Submission. Your Submission may only contain Your Content and Daybreak Content. Your Submission must not contain (a) anything that infringes the rights of any third party, including without limitation any third party patents, trademarks or copyrighted material, (b) any content that is obscene or defamatory, or (c) any content that would infringe upon the privacy or publicity rights of anybody else. Daybreak reserves the right to reject or remove any Submission for any reason in its sole discretion, including, without limitation, if it believes any Submission may infringe upon the rights of another party.

Daybreak expressly reserves all rights not granted to you under this Virtual Item Submission Agreement. Daybreak all rights to the Player Studio program, the Daybreak games, and all related materials and game content developed by Daybreak.

You acknowledge that Daybreak receives many Submissions and continuously develops content for the Daybreak games and that there is a possibility that some of these Submissions and content are similar or identical to Your Content. You further acknowledge that Daybreak’s use of other virtual items and content containing elements similar to or identical with Your Content shall not entitle you to any compensation if Daybreak has an independent right to use such other virtual items and/or content. You further acknowledge that your Submission is not made in confidence and that Daybreak may not hold in confidence your Submission.

2. Special Rules for Voxel-Based Submissions

Summary: Players may modify and combine voxel-based virtual items as part of a Submission, including virtual items that they purchase from the in-game marketplace of any Daybreak game(s), to create new virtual items. Any eligible player may submit a voxel-based virtual item to Player Studio, as long as that player has contributed original content created by him/her to such virtual item. For voxel-based virtual items, royalties from Player Studio are split amongst players based on the relative number of original and creative (as determined by Daybreak in its sole discretion) voxels each player has contributed to any given virtual item.

Detailed terms: In Landmark, and such other Daybreak games as Daybreak may designate at its sole discretion, Daybreak may allow players to submit voxel-based virtual items to Player Studio. This Virtual Item Submission Agreement applies in its entirety to each such Submission. The following rules also apply to voxel-based Submissions:

a) Players who purchase your voxel-based Submission in the in-game marketplace of a Daybreak game may add their own original and creative voxel-based content to your Submission to create a new virtual item. That player may then submit the new virtual item to Player Studio.

b) Only those players who have contributed original and creative content (as determined by Daybreak in its sole discretion) created by him/her to a voxel-based virtual item may submit that virtual item to Player Studio. For example, you cannot simply purchase another player’s tower and then submit the tower to Player Studio without adding original and creative content created by you to such virtual item. Daybreak reserves the right to enforce this rule in its sole discretion and to reject or remove Submissions that do not comply with this requirement.

c) If a Submission contains content from more than one player, then the 40% payment (see Section 3, below) will be split according to the relative number of original and creative voxels contributed by each player. For example, for a castle that includes 400 voxels, including a tower by Player A, a drawbridge by Player B, and a courtyard by Player C, a $20 payment would be split as follows presuming that all 400 voxels are original and creative:

Player A: Tower (50 voxels) = $2.50

Player B: Drawbridge (150 voxels) = $7.50

Player C: Courtyard (200 voxels) = $10.00

3. Payment

Summary: Daybreak will pay you forty percent (40%) of the Net Receipts (defined below) it receives from the sales of your Submission. If you’re owed less than fifty dollars (US$50.00) for any given payment period, the balance will be carried forward to the next payment period until you are owed at least fifty dollars (US$50.00). At the end of each calendar year, Daybreak will pay out the balance, even if the amount owed is less than fifty dollars ($50.00).

Detailed terms: Subject to the terms of this Virtual Item Submission Agreement, on a calendar quarterly basis, Daybreak will pay you forty percent (40%) of the Net Receipts Daybreak actually receives from the sale of your Submission during the previous calendar quarter, which payments will be prorated if your Submission is a voxel-based Submission involving more than one contributor. “Net Receipts” means Gross Receipts less Costs. “Gross Receipts” means (i) amounts actually received by Daybreak for purchases of Station Cash, as and when that Station Cash is used to purchase your Submission; and (ii) amounts actually received by Daybreak from its digital distribution partners (e.g., Valve) and international partners for the sales of your Submission, less any royalties or other amounts due to such partners. “Costs” means the following costs incurred by Daybreak in connection with the sale of your Submission: (a) taxes that Daybreak is required to collect for payment to a governmental authority; (b) chargebacks, reversals, returns, and refunds (including for fraud); (c) payment processing fees (e.g., credit and debit card fees); (d) game card commission fees; and (e) referral, development and distribution fees paid to third party partners of Daybreak. If the aggregate amount owed to you is less than fifty dollars (US$50.00) for a given calendar quarter, no payment will be made and the balance will be carried forward to the next calendar quarter until you are owed at least fifty dollars (US$50.00). At the end of each calendar year SOE will pay out the balance even if the amount owed is less than fifty dollars ($50.00). All payments will be in U.S. dollars and will be made by a check mailed to you within thirty (30) days following the end of any calendar quarter for which a payment is due. You will only be paid based on actual sales of your exact Submission; you will not be entitled to payment for content created by Daybreak or other players, regardless of whether such content is similar to your Submission. You also will not be entitled to any payment with respect to the use of your Submission in any Daybreak game, or the use of your Submission in any other manner or forms of media whether presently known or hereafter devised, other than when your Submission is sold in the in-game marketplace of such Daybreak game to another player (for example, you will not be paid for the use of your Submission as in-game scenery, dropped loot, advertising artwork, etc.). Daybreak may withhold any payment if, in good faith, it determines that a Submission may infringe the rights of a third party or that you otherwise have not complied with the terms of this Virtual Item Submission Agreement.

4. Selection and Pricing

Summary: Daybreak will determine which Submissions will be sold in the in-game marketplace for Daybreak games and for how much. Daybreak may change the price, discontinue selling, or offer for free any Submission for any reason at any time.

Detailed Terms: You acknowledge and agree that, in return for Daybreak’s review and consideration of your Submission, you are voluntarily submitting your Submission and agreeing to be bound by the terms of this Virtual Item Submission Agreement. Daybreak may, in its sole discretion, determine whether or not to include your Submission in the in-game marketplace of any Daybreak game(s) and its decision will be final and binding. Daybreak has no obligation to sell, market, advertise, distribute, or otherwise commercially exploit any Submission. Daybreak reserves the right to set all pricing with respect to a selected Submission, and may increase or lower the price, give it away for free, or remove any Submission from the in-game marketplace of any Daybreak game(s) altogether, in its sole discretion, for any reason whatsoever. Daybreak has no obligation to advertise, optimize the pricing for, or to maximize the sales of any selected Submission. Daybreak has no obligation to retain or return a copy of your Submission.

5. Names, Stats and Attributes

Summary: Daybreak may assign a name, stats and attributes to your Submission.

Detailed Terms: If your Submission is selected for inclusion in the marketplace of any Daybreak game(s), we welcome your input regarding possible names, stats and attributes for your Submission. However, Daybreak will make the final decision regarding the Submission’s final name, stats and attributes, and Daybreak reserves the right to change a Submission’s name, stats and/or attributes at any time in its sole discretion.

6. Taxes

Summary: In order to participate in Player Studio, you will need to complete some tax forms. We may charge a nonrefundable fee for processing the tax forms. You’ll be responsible for paying any taxes due for the amounts you receive from the sales of your Submission.

Detailed Terms: In order to participate in the Player Studio program, you will be required to complete and submit certain tax forms. Daybreak may charge a non-refundable fee for the processing of these forms. No amounts due to you under this Virtual Item Submission Agreement will be paid unless you have completed the necessary tax forms. You will be responsible for paying any and all taxes due to the relevant taxing authorities based on any payment(s) Daybreak makes to you. If Daybreak determines in good faith that, under applicable laws, taxes should be withheld from any payment made to you, then Daybreak may withhold the appropriate amount and remit it to the relevant taxing authority.

7. Requirements to Participate; Representations and Warranties; Indemnification

Summary: You must be at least 18 years old, have an account in good standing, and be a resident of one of the eligible countries listed here in order to participate in the Player Studio program. Parents may participate on behalf of their 13 – 17 year old child. We plan to open the program up to other countries soon. You must be the original creator of your Submission and your Submission must not violate the rights of any third party. You must use a fully licensed copy of the applicable modeling and texturing software that allows for commercial use (for example, you must not use a hacked copy or a student or demo version of the software). You must not use the Player Studio program for any illegal purpose. Daybreak employees, contractors, agents, and their family members can’t participate in any way.

Detailed Terms: You must be at least 18 years old, have an account in good standing, and be a resident of the eligible countries listed here in order to participate in the Player Studio program. You represent and warrant that (i) you are at least 18 years old and a resident of the United States, Canada, Germany, the United Kingdom, or France; (ii) you are the original author and sole owner of Your Content and have the legal right to enter into this Virtual Item Submission Agreement; (iii) you created Your Content on your own and did not collaborate with anyone else in connection with its creation; (iv) the use of Your Content according to the terms of this Virtual Item Submission Agreement does not and will not violate or infringe the rights of any third party, including, without limitation, any patent rights, copyrights, trademark rights and/or any other proprietary and/or intellectual property rights of any third party(ies); (v) Your Content does not and will not libel, defame, or invade the rights (including, without limitation, the right of privacy or publicity) of any third party(ies); (vi) any software that you use to create Your Content (e.g., Maya, Photoshop, etc.) is fully licensed and that you have the right to use such software for commercial purposes; and (vii) you will not use the Player Studio program for any illegal, unlawful, or illicit purpose. Employees, agents, and contractors of Daybreak and its affiliates, and their immediate family members, are not eligible to participate directly or indirectly in the Player Studio program. By submitting a Submission to Daybreak for possible inclusion in the in-game marketplace of any Daybreak game(s), you hereby affirm that you are at least 18 years old and a resident of the United States, Canada, Germany, the United Kingdom, or France.

You hereby agree to indemnify, defend and hold harmless Daybreak and its affiliates, licensors, licensees, suppliers and service providers, and its and their respective officers, directors, employees, agents, successors and assigns (collectively, the “Daybreak Entities”) from and against any and all claims, losses, damages, obligations, liabilities or expenses, including reasonable attorneys' fees and costs, that may be asserted against or incurred by any Daybreak Entity(ies) that arise out of or in connection with (a) Your Content or any use thereof and/or (b) any breach of any representation and/or warranty set forth in this Virtual Item Submission Agreement.

8. Relationship

Summary: You are not considered an employee, agent or partner of Daybreak under this Virtual Item Submission Agreement.

Detailed Terms: Nothing in this Virtual Item Submission Agreement shall be construed to create a partnership, joint venture, agency, or employer-employee relationship between you and Daybreak. You will not be entitled to any benefits afforded by Daybreak to its employees. You have no authority to bind Daybreak to any third party contract or otherwise to act in any way as a representative of Daybreak. You are free to enter any contract to provide services to other parties, except any contract which would violate this Virtual Item Submission Agreement.

9. Entire Agreement

Summary: This is the entire agreement.

Detailed Terms: This Virtual Item Submission Agreement sets forth the entire agreement between the parties hereto with respect to the subject matter hereof, and supersedes all other agreements and understandings, written or oral, between the parties.

10. Governing Law and Jurisdiction

Summary: This Virtual Item Submission Agreement is subject to Delaware law. Subject to the below provisions of Section 11, Disputes must be brought in a state or federal court in the District of Delaware or Southern District of California.

Detailed Terms: The validity, construction, interpretation and legal effect of this Virtual Item Submission Agreement shall be construed in accordance with and governed by the judicial decisions and internal laws of the State of Delaware and the United States of America, without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of Delaware and the United States of America. Subject to the below provisions of Section 11, (a) you and Daybreak agree that any controversy, claim or dispute arising out of or relating to this Virtual Item Submission Agreement or any aspect of the relationship between you and Daybreak (each, a “Dispute”) asserted by you against Daybreak or by Daybreak against you shall be exclusively brought in a state or federal court in the District of Delaware or Southern District of California, and (b) you and Daybreak each submit and consent to the personal jurisdiction of, and venue in, the state and federal courts located in the District of Delaware or Southern District of California.

11. Dispute Resolution; Arbitration; Class Action Waiver

Summary: All Disputes other than Excluded Disputes (as defined below) shall be settled through Negotiation (as defined below) or Arbitration (as defined below). Excluded Disputes shall be settled through Negotiation or, if you and Daybreak are unable to settle an Excluded Disputes through Negotiation, you or Daybreak may apply to the applicable court in the District of Delaware or Southern District of California to bring any such Excluded Dispute. Neither you nor Daybreak will resolve any Disputes under this Item Submission Agreement through a class action lawsuit.

Detailed Terms:

a) Introduction. Any Dispute, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, shall be settled through Negotiation or Arbitration; provided, however, with respect to Excluded Disputes that you and Daybreak are unable to settle through Negotiation, you or Daybreak may apply to the applicable court in the District of Delaware or Southern District of California to bring any such Excluded Disputes in lieu of Arbitration.

If a Dispute arises, you and Daybreak first shall attempt in good faith to resolve it promptly by Negotiation as set forth below in this Section 11, and neither you nor Daybreak may commence Arbitration with respect to any Dispute unless you and Daybreak first have unsuccessfully pursued Negotiation as provided in this Section 11 (i.e., the parties are unable to resolve the Dispute in writing within the below thirty (30) day period or if either party refuses to comply with the provisions of any written Negotiation settlement). All communications, whether oral, written or electronic, in any Negotiation or Arbitration (including, without limitation, any written Negotiation settlement or Arbitration award) pursuant to this Section 11 shall be treated as confidential, except as may be necessary to prepare for or conduct the Arbitration hearing on the merits, or except as may be necessary in connection with a court application in accordance with the above provisions of Section 10, or except to the extent otherwise required by applicable law. Notwithstanding the above provisions set forth in Section 10, (i) the Federal Arbitration Act applies to and governs the enforceability of this Section 11, and (ii) all communications, whether oral, written or electronic, in Negotiations shall also be treated as compromise and settlement negotiations for purposes of the Federal Rules of Evidence.

b) Negotiation. At any time after a Dispute arises, either you or Daybreak may initiate negotiation by providing written notice (the “Dispute Notice”) to the other party as follows (“Negotiation”): (i) you shall email Dispute Notices to Daybreak to disputenotice@daybreakgames.com and (ii) Daybreak shall email Dispute Notices to you to the email address that Daybreak has on file for you. The Dispute Notice shall describe the nature and basis of the Dispute and sets forth the relief sought. You and a Daybreak representative shall speak by phone and/or communicate via email at a mutually acceptable time and thereafter as often as reasonable necessary, to attempt to resolve the Dispute. No party shall be obligated to continue to participate in Negotiation if the parties have not resolved the Dispute in writing within thirty (30) days after the non-complaining party’s receipt of the Dispute Notice.

c) Arbitration. If you and Daybreak are unable to resolve any Dispute through Negotiation or if either you or Daybreak refuses to comply with the provisions of any written Negotiation settlement, then, except for any Excluded Disputes (as hereinafter defined), SUCH DISPUTES WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR (“Arbitration”) INSTEAD OF IN A COURT BY A JUDGE OR JURY AND YOU AND Daybreak AGREE THAT YOU AND Daybreak ARE WAIVING THE RIGHT TO TRIAL BY A JURY. As used in this Virtual Item Submission Agreement, “Excluded Dispute” collectively means: (i) any Dispute relating to the infringement, misappropriation and/or other misuse of intellectual property rights other than patent rights (including, without limitation, claims seeking injunctive relief); (ii) any Dispute relating to the violation, misappropriation and/or other misuse of confidential information (including, without limitation, claims seeking injunctive relief); (iii) any Dispute relating to the enforcement of an Arbitration award; and/or (iv) any Dispute that qualifies for small claims court.

An Arbitration is a proceeding before a neutral arbitrator, instead of before a judge or jury. Arbitration is less formal than a lawsuit in court, and provides more limited discovery. It follows different rules than court proceedings, and is subject to very limited review by courts. The arbitrator will issue a written decision and provide a statement of reasons if requested by either party.

The Arbitration will be administered by the American Arbitration Association under its Consumer Arbitration Rules, as amended by this Virtual Item Submission Agreement. The Consumer Arbitration Rules are available online at www.adr.org. Additionally, the arbitrator shall follow applicable state and federal law.

If you seek $10,000 or less in any Arbitration initiated by you, Daybreak agrees to reimburse your filing fee and your share of the arbitration costs, including your share of arbitrator compensation, at the conclusion of the proceeding, unless the arbitrator determines your claims are frivolous or costs are unreasonable as determined by the arbitrator. If you seek more than $10,000 in any Arbitration initiated by you, the Arbitration costs, including arbitrator compensation, will be split between you and Daybreak according to the AAA Commercial Arbitration Rules and the AAA’s Supplementary Procedures.

YOU AND Daybreak AGREE THAT ANY ARBITRATION UNDER THIS VIRTUAL ITEM SUBMISSION AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU AND Daybreak ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION.

The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or Daybreak that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination shall be made by the AAA or by the arbitrator. The arbitrator’s decision will follow the terms of this Virtual Item Submission Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Virtual Item Submission Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in this Virtual Item Submission Agreement will preclude you or Daybreak from bringing issues to the attention of federal, state or local agencies and, if the law allows, they can seek relief against us for you or against you for us, as applicable.

12. Limitations of Liability

Summary: You won’t interfere with Daybreak’s development, operation or distribution of Daybreak games. Daybreak may distribute and sell virtual items that are similar to your Submission without any payment to you. Liability under this Virtual Item Submission Agreement is limited to the amounts paid to you. Neither you nor Daybreak will resolve any disputes under this Virtual Item Submission Agreement through a class action lawsuit.

Detailed Terms: Under no circumstance SHALL you have any right to enjoin or otherwise interfere with Daybreak’s development, licensing, sublicensing, use, sale, publishing, marketing, advertising, promotion, distribution or exploitation of Daybreak’s property, games, software, systems, or entertainment products. Daybreak and other players may develop content that is similar to your Submission; under no circumstance will you be entitled to any remuneration for, or to ENJOIN OR OTHERWISE interfere with Daybreak’s exploitation of, any such content regardless of its similarity to your submission. EXCEPT FOR YOUR INDEMNIFICATION OBLIGATIONS UNDER THIS VIRTUAL ITEM SUBMISSION AGREEMENT, In no event shall (i) either party be liable to the other party under any legal theory whether in tort (including negligence), contract, product liability, or otherwise, for any indirect, incidental, special, exemplary, or consequential damages of any kind; AND (II) either party’s aggregate liability under this VIRTUAL ITEM SUBMISSION Agreement exceed the total amounts paid to you by Daybreak under this VIRTUAL ITEM SUBMISSION Agreement. YOU HEREBY WAIVE YOUR RIGHT TO BRING ANY CAUSE OF ACTION YOU MAY HAVE AGAINST ANY Daybreak ENTITY(IES) WITH RESPECT TO THIS VIRTUAL ITEM SUBMISSION AGREEMENT ONE YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES.

ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE ARISING OUT OF AND/OR RELATING TO THIS VIRTUAL ITEM SUBMISSION AGREEMENT, the PLAYER STUDIO PROGRAM, OR ANY SUBMISSION HEREUNDER, IN ANY FORUM WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS. NEITHER YOU NOR Daybreak WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. NO LAWSUIT OR PROCEEDING WILL BE COMBINED WITH ANOTHER WITHOUT THE PRIOR WRITTEN CONSENT OF ALL PARTIES TO ALL AFFECTED LAWSUITS OR PROCEEDINGS.