MagicalFlyingFox

WG's EULA Changes NA

51 posts in this topic

Not sure what subforum to put it but this is sort of close enough. 

https://thearmoredpatrol.com/2018/06/02/tap-to-be-officially-illegal/

http://legal.na.wargaming.net/en/end-user-license-agreement-new/

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„5.4 Ownership of Your Account. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN YOUR ACCOUNT, AND THAT ALL RIGHTS IN AND TO YOUR ACCOUNT ARE AND SHALL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF WARGAMING. YOU FURTHER ACKNOWLEDGE AND AGREE THAT YOU HAVE NO CLAIM, RIGHT, TITLE, OWNERSHIP, OR OTHER PROPRIETARY INTEREST IN THE ADDITIONAL FEATURES (AS DEFINED BELOW) THAT YOU UNLOCK OR ACCUMULATE, REGARDLESS OF ANY CONSIDERATION OFFERED OR PAID IN EXCHANGE FOR SUCH ADDITIONAL FEATURES.FURTHERMORE, WARGAMING SHALL NOT BE LIABLE IN ANY MANNER FOR THE DESTRUCTION, DELETION, MODIFICATION, IMPAIRMENT, HACKING, OR ANY OTHER DAMAGE OR LOSS OF ANY KIND CAUSED TO THE GAME CONTENT OR ADDITIONAL FEATURES, INCLUDING THE DELETION OF GAME CONTENT OR ADDITIONAL FEATURES UPON THE TERMINATION OR EXPIRATION OF YOUR ACCOUNT.

9.3.1 you acknowledge and agree that Wargaming retains ownership of the Fansite Content, and any and all derivative works thereof, and has the right to amend, delete, add to or otherwise modify, or to revoke the foregoing license with respect to, any items of Fansite Content at any time;

9.3.6 the Fansite will not post material that is disparaging, illegal or infringes on the rights of any third party or that damages (or that might damage) the reputation of Wargaming or of any of the Games;

9.3.7 except as expressly permitted in this EULA, you shall not rent, lease, reproduce, modify, translate the Fansite Content, or make an adaptation of (including without limitation fiction or visual art), or in any way exploit, any of the Content without our express written permission; and

9.3.8 you must not make, or seek to make, any commercial use or profit out of the Fansite Content (including for example by selling subscriptions to your Fansite) without our prior written consent.

9.4 If you fail to comply with any of the terms set out in this section, we reserve the right to terminate your license over the Fansite Content and also to close your Account.

9.5 All goodwill arising from your use of Fansite Content, including from use of any trademarks owned by Wargaming, shall inure solely to the benefit of Wargaming.”

 

This has ramifications for this website as well as a threat that website which criticise WG can have some of their rights revoked. 

Actually 9.3.6 explicitly touches upon criticisms. 

Also with 5.4, those premium tanks that you own? Yeah, you don't own them at all anymore. 

 

Also

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25.1 Generally. In the interest of resolving disputes between you and Wargaming in the most expedient and cost effective manner, you and Wargaming agree that any and all disputes arising in connection with this EULA shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of this EULA, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of this EULA. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS EULA, YOU AND WARGAMING ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

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25.6 No Class Actions. YOU AND WARGAMING AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Wargaming agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.

and covering their arse

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25.8 Enforceability. If Subsection 25.6 is found to be unenforceable or if the entirety of this Section 25 is found to be unenforceable, then the entirety of this Section 25 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 25 shall govern any action arising out of or related to this EULA.

 

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38 minutes ago, stewiejp said:

Yup, might as well update the title. 

 

ah its too late now.

 

Anyway, this seems to be a response to the Pref MM and the furore. Censorship and removal of rights to claim back your money. 

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Just another dickmove by WG but luckily that EULA doesn't have that much of real power and it certainly wouldn't allow WG to shutdown any website on the basis of some shitty EULA as it isn't the same as a written contract.

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No, they will revoke access to WG's IP, which for some websites is a death sentence.

 

This is the official WG response to pref MM furore.

Throw the toys out of the cot because fuck you, we will change it and you can't do anything about it. You speak loud enough about it? We cut you off our IP. 


Remember that there are places with shit all consumer protections. ANZ have a much lighter EULA in that regards, which basically says you can have refunds if we change shit. 

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One suspect WG's lawyers have had a fun couple weeks.

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12 minutes ago, MagicalFlyingFox said:

No, they will revoke access to WG's IP, which for some websites is a death sentence.

You can't just "revoke" access to an IP this way as the usage of it in this case falls under fair use.

Them writing the opposite in their EULA doesn't mean doesn't mean jack in this case.

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Fair enough. Its the intention though, along with the bullshit no refunds on your pref MM tanks which is garbage. 

 

And impeding fair use hasn't stopped some companies, its just a matter of how incompetent WG's management are.

Judging by the SirFoch incident, it is not out of the realms of possibility that some WG staff will use the EULA as justification to attack some sites. 

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Fact: you don't have to agree to any EULA to talk about WG on any non-WG channel.
Fact: the only EULA you have to agree to are the ones that let you use official WG services and content.

Anyone can go and make fuckWG.com and talk shit about WG, as long as you haven't agreed to any EULA or use anything that came directly from WG they can't do anything about it. They MIGHT come after you for defamation and libel, but that's a whole other story.

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Im not sure about how law and such works, but to me, if I say purchase a prem tank under the terms of the old contract, WG cant then just go and change the rules of the contract willy nilly at their will, at least without my agreement to consent to them again. To me that would make the contract completely invalid, and I should be entitled to a full refund, or at the very least some form of compensation. 

If I buy a prem tank with the contract stating "we promise we aren't going to change this" and then a year later they suddenly decide to change the contract and say "actually wait we are allowed to change it however we want". I didnt agree to that contract. How can they enforce it on me if I decide that actually, no, I dont like those terms, give me my money back and you can take your tank back. 

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I'm pretty sure they had a clause from the beginning just to cover future changes. How do you agree to the new EULA? Just click on the "I agree" button on the thing that nobody reads after a client update.

If you don't agree to the new EULA, you can't play their game. Which means your prem tanks and whatnot are now worthless, just as they were before, right now and in the foreseeable future.

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The legal enforcability of EULAs has been disputed before...

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26 minutes ago, Haswell said:

I'm pretty sure they had a clause from the beginning just to cover future changes. How do you agree to the new EULA? Just click on the "I agree" button on the thing that nobody reads after a client update.

If you don't agree to the new EULA, you can't play their game. Which means your prem tanks and whatnot are now worthless, just as they were before, right now and in the foreseeable future.

If you don't play you might as well sell of the account, then those premiums will actually be worth something. 

2 minutes ago, OOPMan said:

The legal enforcability of EULAs has been disputed before...

Of course, they are worth nothing to law, but this lays bare WG's intentions. 

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7 minutes ago, OOPMan said:

The legal enforcability of EULAs has been disputed before...

It may not be deemed enforceable after a long and expensive trial, but WG has deeper pockets to outlast the other side. Especially since they now said NO CLASS ACTION SUITS which means less resources to go up against them.

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42 minutes ago, Assassin7 said:

Im not sure about how law and such works, but to me, if I say purchase a prem tank under the terms of the old contract, WG cant then just go and change the rules of the contract willy nilly at their will, at least without my agreement to consent to them again. To me that would make the contract completely invalid, and I should be entitled to a full refund, or at the very least some form of compensation. 

If I buy a prem tank with the contract stating "we promise we aren't going to change this" and then a year later they suddenly decide to change the contract and say "actually wait we are allowed to change it however we want". I didnt agree to that contract. How can they enforce it on me if I decide that actually, no, I dont like those terms, give me my money back and you can take your tank back. 

You bought the right of playing with such tank in wot. You did not buy the tank it is still theirs. Practically it is a sort of one time rent payment

WG can go fuck themselves. I am so tired of them treating us as dog shit. We should organize a cross-server strike just to fuck with them and teach these cunts a lesson. And I am not talking about just this new policy, but also for their attempt to silence people and dissent (like Foch and now sites), and for how fucked up this game is. Especially after these last patches of Russian patriotism.

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Just found a mistake in the EULA :doge:

Quote

25.8 Enforceability. If Subsection 25.6 is found to be unenforceable or if the entirety of this Section 25 is found to be unenforceable, then the entirety of this Section 25 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 25 shall govern any action arising out of or related to this EULA.

Except S.25 said nothing about jurisdiction, that would be S.24 instead.

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24. Governing Law and Jurisdiction

This EULA and any dispute, claim or obligation (whether contractual or non-contractual) arising out of or in connection with it or its subject matter or formation shall be governed by laws of the State of California, USA, without regard to the conflict of laws principles thereof. To the extent that any lawsuit or court proceeding is permitted hereunder, you and Wargaming agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Alameda County, California, USA for the purpose of litigating all such disputes.

 

From what I understand, they really seem to be pushing the arbitration agenda to avoid any and all lawsuits. The tidbit about small claims court in S.25.2 is particularly interesting, in that you can only sue and claim up to $10,000. Which tells me WG will likely throw a bone to whoever dares to sue them and tell them to fuck off.

I'll compare old and new EULAs when I wake up.

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5 minutes ago, Haswell said:

Just found a mistake in the EULA :doge:

Except S.25 said nothing about jurisdiction, that would be S.24 instead.

 

From what I understand, they really seem to be pushing the arbitration agenda to avoid any and all lawsuits. The tidbit about small claims court in S.25.2 is particularly interesting, in that you can only sue and claim up to $10,000. Which tells me WG will likely throw a bone to whoever dares to sue them and tell them to fuck off.

 I'll compare old and new EULAs when I wake up.

25.8 in the OP is their fallback which makes the NO CLASS ACTION null and void if there are legal grounds for one. 

 

They sure as hell wouldn't say "Please no class actions"

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16 minutes ago, MagicalFlyingFox said:

25.8 in the OP is their fallback which makes the NO CLASS ACTION null and void if there are legal grounds for one. 

 

They sure as hell wouldn't say "Please no class actions"

Correct, in which case S.25 in its entirety would be considered null and void, where S.24 will guide all legal proceedings as normal.

Edit: looks to me they basically just merged the current ToS with the current EULA and called it a day. The relevant bits are identical to the new EULA. Which means everyone has already agreed them all since 2016. http://legal.na.wargaming.net/en/terms-of-service/

ToS parts

Quote

9. Fan Websites

9.1 This section relates to any fan web site that you may create or operate regarding any of our Games or Services (collectively, "Fansites," and each a "Fansite").

9.2 At some of our Sites we expressly designate certain Content, such as Wargaming game-related images, graphics or artwork and trade marks, as being "for fansite use" (for example see: http:///worldoftanks.eu/news/943-world-tanks-fankit). In these Terms of Service we refer to this specifically designated Content as "Fansite Content".

9.3 Subject to the terms and conditions herein, Wargaming grants you a non-exclusive, revocable, personal, non-transferable and limited license to reproduce and display Fansite Content on Fansites owned and operated by you and solely for non-commercial purposes. This license is further conditional upon you complying with the following provisions:

  • (a) you acknowledge and agree that Wargaming retains ownership of the Fansite Content, and any and all derivative works thereof, and has the right to amend, delete, add to or otherwise modify, or to revoke the foregoing license with respect to, any items of Fansite Content at any time;
  • (b) you agree to include Wargaming's trade mark, copyright or other proprietary rights notices when displaying Fansite Content if we request you to do so and in the manner that we request you to do so;
  • (c) you agree to comply with any usage guidelines that we may provide to you from time to time;
  • (d) you shall not remove or alter any identifying information or copyright management information conveyed in connection with copies of Fansite Content, including in digital form, nor challenge Wargaming's ownership (or the ownership of any third party) of the Fansite Content;
  • (e) you shall not use or adopt any trademarks that might be confusingly similar to any Fansite Content;
  • (f) the Fansite will not post material that is disparaging, illegal or infringes on the rights of any third party or that damages (or that might damage) the reputation of Wargaming or of any of the Games;
  • (g) except as expressly permitted in these Terms of Service, you shall not rent, lease, reproduce, modify, translate the Fansite Content, or make an adaptation of (including without limitation fiction or visual art), or in any way exploit, any of the Content without our express written permission; and
  • (h) you must not make, or seek to make, any commercial use or profit out of the Fansite Content (including for example by selling subscriptions to your Fansite) without our prior written consent.

9.4 If you fail to comply with any of the terms set out in this section, we reserve the right to terminate your license over the Fansite Content and also to close your Account.

9.5 All goodwill arising from your use of Fansite Content, including from use of any trademarks owned by Wargaming, shall insure solely to the benefit of Wargaming.

 

Quote

21. Governing Law and Jurisdiction

These Terms of Service and any dispute, claim or obligation (whether contractual or non-contractual) arising out of or in connection with it or its subject matter or formation shall be governed by laws of the State of California, USA, without regard to the conflict of laws principles thereof. To the extent that any lawsuit or court proceeding is permitted hereunder, you and Wargaming agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Alameda County, California, USA for the purpose of litigating all such disputes.

22. Dispute Resolution and Arbitration

22.1 Generally. In the interest of resolving disputes between you and Wargaming in the most expedient and cost effective manner, you and Wargaming agree that any and all disputes arising in connection with these Terms of Service shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of these Terms of Service, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of these Terms of Service. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS OF SERVICE, YOU AND WARGAMING ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

22.2 Exceptions. Notwithstanding subsection 22.1, we both agree that nothing herein will be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.

22.3 Arbitrator. Any arbitration between you and Wargaming will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms of Service, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Wargaming.

22.4 Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail ("Notice"). Wargaming's address for Notice is: Wargaming PCL, 105, Agion Omologiton Avenue, Nicosia 1080, Cyprus. The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought ("Demand"). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Wargaming may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Wargaming shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. In the event our dispute is finally resolved through arbitration in your favor, Wargaming shall pay you (i) the amount awarded by the arbitrator, if any, (ii) the last written settlement amount offered by Wargaming in settlement of the dispute prior to the arbitrator's award; or (iii) $1,000.00, whichever is greater.

22.5 Fees. In the event that you commence arbitration in accordance with these Terms of Service, Wargaming will reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees shall be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in Alameda County, California, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephonic hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse Wargaming for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator's ruling on the merits.

22.6 No Class Actions. YOU AND WARGAMING AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Wargaming agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.

22.7 Modifications. In the event that Wargaming makes any future change to this arbitration provision (other than a change to Wargaming's address for Notice), you may reject any such change by sending us written notice within 30 days of the change to Wargaming's address for Notice, in which case your account with Wargaming shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject shall survive.

22.8 Enforceability. If Subsection 22.6 is found to be unenforceable or if the entirety of this Section 22 is found to be unenforceable, then the entirety of this Section 22 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 22 shall govern any action arising out of or related to these Terms of Service.

In short, much ado about nothing.

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This bit however is new

Quote

5.4 Ownership of Your Account. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN YOUR ACCOUNT, AND THAT ALL RIGHTS IN AND TO YOUR ACCOUNT ARE AND SHALL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF WARGAMING. YOU FURTHER ACKNOWLEDGE AND AGREE THAT YOU HAVE NO CLAIM, RIGHT, TITLE, OWNERSHIP, OR OTHER PROPRIETARY INTEREST IN THE ADDITIONAL FEATURES (AS DEFINED BELOW) THAT YOU UNLOCK OR ACCUMULATE, REGARDLESS OF ANY CONSIDERATION OFFERED OR PAID IN EXCHANGE FOR SUCH ADDITIONAL FEATURES. FURTHERMORE, WARGAMING SHALL NOT BE LIABLE IN ANY MANNER FOR THE DESTRUCTION, DELETION, MODIFICATION, IMPAIRMENT, HACKING, OR ANY OTHER DAMAGE OR LOSS OF ANY KIND CAUSED TO THE GAME CONTENT OR ADDITIONAL FEATURES, INCLUDING THE DELETION OF GAME CONTENT OR ADDITIONAL FEATURES UPON THE TERMINATION OR EXPIRATION OF YOUR ACCOUNT.

 

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Yep. So now we can focus not on the legal mish mash but a philosophical debate on whether or not we "own" bits of data on a server.

When you buy games on Steam, do you "own" it? Or are you simply purchasing a license to play said games through Steam? I'm too tired right now to dig into Steam's EULA and ToS, someone else do it.

This is the most entertaining topic that crossed my mind in the last few months.

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3 minutes ago, Haswell said:

Yep. So now we can focus not on the legal mish mash but a philosophical debate on whether or not we "own" bits of data on a server.

When you buy games on Steam, do you "own" it? Or are you simply purchasing a license to play said games through Steam? I'm too tired right now to dig into Steam's EULA and ToS, someone else do it.

In Australia at least, we own it. This has been established with legal precedent. 

 

Steam provide a marketplace in which we buy digital goods from.

Any legal action taken in Australia will likely result in setting up a concrete precedence for in-game items or in-software items such as e-books since no company is stupid enough to have let these things go to court. 

WG are subject to bait and switch laws which is why ANZ EULA specifically does not have clauses such as 5.4.

http://legal.asia.wargaming.net/en/end-user-license-agreement-new-aunz/

 

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1 hour ago, Haswell said:

It may not be deemed enforceable after a long and expensive trial, but WG has deeper pockets to outlast the other side. Especially since they now said NO CLASS ACTION SUITS which means less resources to go up against them.

 

1 hour ago, MagicalFlyingFox said:

25.8 in the OP is their fallback which makes the NO CLASS ACTION null and void if there are legal grounds for one. 

 

They sure as hell wouldn't say "Please no class actions"

The rest of the EULA aside, is the no class action suit clause even enforceable?

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3 hours ago, nabucodonsor said:

You bought the right of playing with such tank in wot. You did not buy the tank it is still theirs. Practically it is a sort of one time rent payment

WG can go fuck themselves. I am so tired of them treating us as dog shit. We should organize a cross-server strike just to fuck with them and teach these cunts a lesson. And I am not talking about just this new policy, but also for their attempt to silence people and dissent (like Foch and now sites), and for how fucked up this game is. Especially after these last patches of Russian patriotism.

oh, yeah I see that. though, does that still cover it? Its not "I agreed to buy the tank with these stats and changing them is not what I agreed to buy" its "I agreed to buy the tank under this contract, I did not agree to have the contract changed and to own the tank under the new contract" 

not arguing about changing the tank, arguing about changing the contract itself to terms I disagree with. Unless WG has a claus that states they are allowed to change the contract if they so desire after I have agreed to it, (which kinda sounds illegal in itself tbh) 

In New Zealand at least, I would imagine that there is some part of the consumer garuntees act that would at least have some form of defence against this. But Im not sure myself. And Im not sure whos laws would apply if im buying from an American company based in America and playing on an American server. though I am pretty sure that the Australian law Fox mentioned for digital goods is similar or the same in New Zealand. 

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This would be covered under bait and switch, which is probably just as illegal in NZ as it is in Australia. 

I'm not 100% sure about the jurisdiction but I'd assume that you as a New Zealander buying a product online while in New Zealand, that it would still have to adhere to New Zealand laws. 
Amazon for example has stopped Australia from accessing every other amazon site besides amazon.com.au because of the new laws regarding GST on online purchases or something like that because allowing us to purchase from overseas amazon sites would be in breach of our laws. 

The main distinction is that if you were to file a suit, it would be to WG NA specifically. 

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