Please Double Check the UA

[Fiddleback]

HC Team,

 

Please double check the UA to make sure it is saying what you mean it to say.

 

As written, various sections beginning with 'required to defend..."suffer from trying to cram too much into a single sentence while attempting to separate what should be independent clauses with nothing but commas. This lacks clarity and hinders understanding while making it seem we, the game playing public, will end up defending (in a legal way) you, the HC team, for and from a variety of different potential problems.

 

I'm certain that's not what you intend, but it is definitely how it sounds.

 

Bearing in mind that the UA itself requires that we who accept it both read and understand the UA, some clarification on this matter from the HC Team would be appreciated as would appropriate necessary adjustments to the UA itself.

[Telephone]

To start off: I am not your lawyer; you are not my client; and this does not constitute actual legal advice nor the formation of a legal relationship.

 

You're asking about section 6(a) of the User Agreement, which reads as follows:

 

(a) In addition to the provisions of Sections 3(b) and 5(b)(vi), You agree to defend, indemnify and hold harmless Homecoming, any third-parties under agreement with Homecoming, any parent, subsidiary or affiliate of Homecoming, and any employee, agent, supplier, licensee, customer, distributor, shareholder, director or officer of any of the foregoing, as well as any person using the Game and any person or entity that becomes aware of Your use of the Game at any time, with respect to any and all claims, liabilities, injuries, damages, losses or expenses (including but not limited to attorney's fees and costs) that arise under, from or in any way, directly or indirectly, relate to:

 

    (i) Your failure to comply with any provision of this agreement; and

    (ii) Your use of the Game, including but not limited to economic, physical, emotional, psychological or privacy related considerations.

 

This is an extremely common and standard clause found in many user agreements. For example, you can see Blizzard's here: https://www.blizzard.com/en-us/legal/fba4d00f-c7e4-4883-b8b9-1b4500a402ea/blizzard-end-user-license-agreement.

 

There are also numerous user agreements which use the exact same wording as ours, which can be found by a quick visit to your friendly local search engine:

• https://www.appminis.com/tos.htm
  
• https://offtargetstudios.com/terms-of-services/
  
• https://gamersbooklet.com/terms-and-conditions/
  

 

Now, for the explanation:

 

First, the entirety of section 6(a) is bounded by the the following (i) and (ii) clauses. Note that both these clauses specifically state Your. This means that anything you read (in section 6(a)) only applies to your conduct and use of the game, and not to any hypothetical third-party lawsuit. The common-law understanding of indemnity is that it must be bounded by explicit scope, and indemnity does not apply outside that scope.

 

Second, 'defend' here is a legal term of art. It means that if we are sued for anything within the scope of the indemnity (that is, violation of the User Agreement, your conduct within the game, or your use of the game), you must defend us. Again, this requirement is specific. If we are sued for something not specifically involving you or your conduct, you have no obligation here. Again, if a hypothetical third-party were to sue us and your actions, conduct, or use were not specifically part of the lawsuit, you would have no obligation to us.

 

You can find another reference here: https://www.dlapiper.com/~/media/files/people/hamilton-michael/cpexecutive--indemnify-defend--hold-harmless--august-2014.pdf. Note especially point 11 from this document: An indemnity that protects the indemnitee from the consequences of his or her own illegal acts is not enforceable. (For the purpose of section 6(a), Homecoming, our employees, etc, etc are the indemnitees)

 

Hopefully this helps assuage your concerns.

Telephone

 

[justicebeliever]

Welcome Telephone!  Can you tells us more about who you are?  (Besides not my lawyer either, he would be sad to find out he's been replaced.  Unless of course you are my lawyer and you also are involved in Homecoming...)

 

 

[Telephone]

Welcome Telephone!  Can you tells us more about who you are?  (Besides not my lawyer either, he would be sad to find out he's been replaced.  Unless of course you are my lawyer and you also are involved in Homecoming...)

 

I'm just a simple telephone, and someone who played and enjoyed City of Heroes for many years and is happy to be a part of bringing it back to the community. For Homecoming itself, I serve as a server administrator and developer.

 

To quote from Jimmy's excellent post at https://forums.homecomingservers.com/index.php/topic,2875.msg19307.html#msg19307:

 

But, more seriously, we're just a group of fans who want the game back. We are a co-operative, don't really have a leader, and are happy to remain (mostly) behind the scenes right now. We want our work to speak for itself and to just enjoy the game along with everyone else.

 

Telephone

[Fiddleback]

Thank you, that is much more clearly explained.

 

 

To start off: I am not your lawyer; you are not my client; and this does not constitute actual legal advice nor the formation of a legal relationship.

 

You're asking about section 6(a) of the User Agreement, which reads as follows:

 

(a) In addition to the provisions of Sections 3(b) and 5(b)(vi), You agree to defend, indemnify and hold harmless Homecoming, any third-parties under agreement with Homecoming, any parent, subsidiary or affiliate of Homecoming, and any employee, agent, supplier, licensee, customer, distributor, shareholder, director or officer of any of the foregoing, as well as any person using the Game and any person or entity that becomes aware of Your use of the Game at any time, with respect to any and all claims, liabilities, injuries, damages, losses or expenses (including but not limited to attorney's fees and costs) that arise under, from or in any way, directly or indirectly, relate to:

 

    (i) Your failure to comply with any provision of this agreement; and

    (ii) Your use of the Game, including but not limited to economic, physical, emotional, psychological or privacy related considerations.

 

}-----snip----{

 

Now, for the explanation:

 

First, the entirety of section 6(a) is bounded by the the following (i) and (ii) clauses. Note that both these clauses specifically state Your. This means that anything you read (in section 6(a)) only applies to your conduct and use of the game, and not to any hypothetical third-party lawsuit. The common-law understanding of indemnity is that it must be bounded by explicit scope, and indemnity does not apply outside that scope.

 

Second, 'defend' here is a legal term of art. It means that if we are sued for anything within the scope of the indemnity (that is, violation of the User Agreement, your conduct within the game, or your use of the game), you must defend us. Again, this requirement is specific. If we are sued for something not specifically involving you or your conduct, you have no obligation here. Again, if a hypothetical third-party were to sue us and your actions, conduct, or use were not specifically part of the lawsuit, you would have no obligation to us.

 

You can find another reference here: https://www.dlapiper.com/~/media/files/people/hamilton-michael/cpexecutive--indemnify-defend--hold-harmless--august-2014.pdf. Note especially point 11 from this document: An indemnity that protects the indemnitee from the consequences of his or her own illegal acts is not enforceable. (For the purpose of section 6(a), Homecoming, our employees, etc, etc are the indemnitees)

 

Hopefully this helps assuage your concerns.

Telephone