1/1 ban hit an unnamed third party. itt how to refute.
1st of all, the party only used bot for 6hrs maybe 10 hrs tops (not per day, TOTAL ALL TOGETHER) in the past 3-4 month. the party had use it more during month of july and maybe beginning in august.
edit-
i am providing legal advice to some other party regarding this, and in fact it is not small claims court but arbitration through the american arbitration association.and also i advise this party to file complaint to los angeles better business burea for $5500 (example)
and also i advise such party to file chargebacks on all mastercard transactions, which one party has already got provisional refunds for, and also i advise such parties to have filed paypal dispute for all transactions within 45 days (cant go back farther or they are auto-declined unfortunately). the nice thing is, this person i am advising told me that she would take $5500(example) over her acct any day! perhaps one of these items, purchased by the party, could have theoretically/hypothetically already been resold and this ban may bring added profit.
also, i am told by her that they (GM) say they will not discuss the matter further under any circumstances, but in fact on their dispute policy it says they must negotiate for thirty days in the first section and so i suggest to the individ. i am consulting with, she should tell them if they wish to officially decline further negotiations, then because of section 7: severence clause; they are obliged to "sever" the first section, and therefore she can move directly to arbitrate, and she shall not have to wait 30 day, but first she must get the GM to formaly inform my party of their desire to sever the first section first, and if they are refusing to negotiate officially, that shall suffice.
Blizzard Entertainment:Blizzard Entertainment Dispute Resolution Policy
*some details may have been slightly modified in attempt to conceal the identity of this third party
edit 1- info from later responses:
the party already received compensation from mastercard, and some 50 disputed paypal transaction have received response from blizz and is in pending status while paypal decides to handle,
also note the dispute resolution policy says any move to arbitrate shall be final by the party initiating and binding by the other party. so simply they cannot deny ones claims based on their own dispute policy. also she tells me the better business bureau is processing the complaint and it is being taken 100% seriously.
it is the legal equivalent to getting illegally searched and that illegal search turning up drugs. when it comes down to it their findings are not valid, and don't hold up in court based on illegal search.
edit2-
Do not forget that you never agree to a eula, tos, tou, (etc) when you purchased the box title "diablo III" , then you got home and open the box (now as electronic software it is no longer eligible for a refund, i can verify that personally because i asked for a refund on a 2nd copy i purchased, and opened, but no longer neeeded, and was declined.) now to use the product you purchased you were required to accept those terms, there were no other options provided. because of this there is no way their terms / eula (etc) will ever hold up in court, (and I would hope, and assume, likewise for arbitration)
edit4-update:
For the woman I am advising, Paypal has already also refunded for all transactions over $5.00 in last 45 days. Blizzard has contacted saying as a result of the chargebacks they are not going to allow further use of the RMAH for the account (well if their departments communicated with eachother they would realize this penalty is already active!) Because of the sheer number of paypal transactions, many below $3.00 as a result of wanting instant gold to complete work on the auction house she says, I advised her it would probably be easier just to file disputes on anything over $5.00 (17 paypal transactions totalling over $300 returned, and again we got money back from mastercard, for 5 or so transactions for a total of approximately $150); but since they (paypal claims) have all ended up quickly succeeding in getting a full refund, we are now discussing whether it would be advisable to file paypal claims on the many many "micro" transactions, despite the tediousness, just for sake of completion. Again, paypal only accepts the claims within 45 days, so the remainder of the ~$5000 spent on RMAH is still ongoing negotiations. The better business bureau responded and said they have contacted the company and are awaiting response. We have also sent certified mail to their legal department, both for consistency, and so that in the case the BBB fails, we will have the opportunity to dispute the matter with an AAA arbitrator, at a location convenient to us. The sheer fact that my client is located in Maine might mean that Blizzard would rather refund $5000 then send a representative all the way to Maine. Cheers, hope other members inquiries are being taken as seriously by them and are receiving compensation for their losses! Stand up for your rights! You might be able to get someone to sign a contract to become your slave, but that wouldn't hold up in court either... for all the contract respecting folk out there, remembers the law supercedes!
edit3- dug through the auction house t.o.u. a bit;
Further insight into the auction house terms of use, despite the users agreement to them invalidity, due the advertisement of the auction house on the game box, and the requirement to access the feature , once the game is in a non-returnable state, is the only option for the user to use the service he purchased access to. However, since they have agreed to all of the terms, there shouldn?t be any issue assuming they will follow anything they?ve agreed upon therein.
Section 6E:
?? Once an auction has been completed and verified by Blizzard, Blizzard will:
? (i) transfer the license to use the Loot from the seller to Blizzard and then to you; or
? (ii) terminate the seller?s license to use the Loot and issue you a new license to use the Loot.?
This does not suggest that the license has the right to be terminated for reasons other than the sale of such ?Loot?.
Section 9:
?All Auction House sales are final, and no refunds are permitted except with respect to any statutory warranties or guaranties that cannot be excluded or limited by law. Please visit Blizzard?s Terms of Sale for additional terms and conditions applicable to the purchase of any Loot listed on the Auction Houses.?
Sales are final except with respect to warranties or guaranties that cannot be excluded by law or limited by law. Therefore, since the guaranty of the purchasers? license to use the Loot is final, refunds consequently cannot be excluded.
Although,
Section 11A
?? You agree:
? (i) to use the Auction Houses only for your own individual purposes;
? (ii) to access the Auction Houses only with an authorized, unmodified version of Diablo; and
? (iii) to accept the risk that you may lose some or all of the value that you exchange as part of your use of the Auction Houses.?
(iii) might be concerning, but it states we may lose some or all of the value, and does not mention that we will not be permitted a refund or any form of compensation, or that these loses can occur through the service providers termination of your license to use purchased Loot.
Section 12C
?IN THE EVENT THAT BLIZZARD SELLS A LICENSE TO USE LOOT TO YOU AS THE WINNER OF AN AUCTION, AND YOUR PAYMENT CANNOT BE CHARGED TO YOUR CREDIT CARD, OR YOUR PAYMENT IS RETURNED TO BLIZZARD ENTERTAINMENT FOR ANY REASON, BLIZZARD MAY SUSPEND, CANCEL OR TERMINATE YOUR ACCESS TO ANY AUCTION HOUSE, AND/OR DISABLE OR DELETE THE ACCOUNT.?
Therefore, Blizzard cannot enforce any further penalty for chargebacks or paypal disputes, because they have already enforced the maximum penalty (disabling of the account).
Section 14A-B
?YOU AGREE THAT:
1. Blizzard owns or has the right to use all of the Loot, as well as all of the characters and content that appears in Diablo.
2. You do not own any of the Loot, characters, or other content that appears in Diablo, and that you have no right or title in or to any of the Loot (other than any license to use any Loot granted to you by Blizzard, which may be revoked by Blizzard at any time), Diablo, or your Account.?
(1) And so they can use all of the Loot, yet this does not say that their use of the Loot has any correlation to the revocation of our right/license to use such Loot.
(2) The license can be revoked at any time, as it was, but this does not deny the purchasers? right to a refund for the price s/he purchased the License for. They can repossess the License if you haven?t paid for it, and if you have paid for it, they still can; but they cannot deny compensation for the discontinuation of a guaranteed service [the license to use the Loot].
Section 15B
?IN NO CASE SHALL THE LIABILITY OF BLIZZARD EXCEED THE AMOUNT THAT YOU PAID TO BLIZZARD DURING THE MONTH PRIOR TO THE TIME YOUR CAUSE OF ACTION AROSE. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions the liability of Blizzard and its affiliates shall be limited to the fullest extent permitted by law.?
So they are potentially liable for at least the amount spent on the RMAH within the month prior to filing a complaint, if not longer depending on individual state laws and/or conclusions reached by an arbitrator.
Section 16
?If you are a resident of a country located in North America, you and Blizzard each agree that all disputes between you and Blizzard that arise out of, or relate to, these Auction House TOU, will be resolved in accordance with the Blizzard Entertainment Dispute Resolution Policy, that is available for your review here Blizzard Entertainment:Blizzard Entertainment Dispute Resolution Policy. Should any portion of the Blizzard Entertainment Dispute Resolution Policy be found illegal or unenforceable, you agree that such portion shall be severed and the remainder of the Blizzard Entertainment Dispute Resolution Policy shall be given full force and effect.?
So these auction house T.O.U as quoted in all above sections is up for negotiation/dispute as specified by the dispute policy. Again ?Any election to arbitrate by one party shall be final and binding on the other?
1st of all, the party only used bot for 6hrs maybe 10 hrs tops (not per day, TOTAL ALL TOGETHER) in the past 3-4 month. the party had use it more during month of july and maybe beginning in august.
edit-
i am providing legal advice to some other party regarding this, and in fact it is not small claims court but arbitration through the american arbitration association.and also i advise this party to file complaint to los angeles better business burea for $5500 (example)
and also i advise such party to file chargebacks on all mastercard transactions, which one party has already got provisional refunds for, and also i advise such parties to have filed paypal dispute for all transactions within 45 days (cant go back farther or they are auto-declined unfortunately). the nice thing is, this person i am advising told me that she would take $5500(example) over her acct any day! perhaps one of these items, purchased by the party, could have theoretically/hypothetically already been resold and this ban may bring added profit.
also, i am told by her that they (GM) say they will not discuss the matter further under any circumstances, but in fact on their dispute policy it says they must negotiate for thirty days in the first section and so i suggest to the individ. i am consulting with, she should tell them if they wish to officially decline further negotiations, then because of section 7: severence clause; they are obliged to "sever" the first section, and therefore she can move directly to arbitrate, and she shall not have to wait 30 day, but first she must get the GM to formaly inform my party of their desire to sever the first section first, and if they are refusing to negotiate officially, that shall suffice.
Blizzard Entertainment:Blizzard Entertainment Dispute Resolution Policy
*some details may have been slightly modified in attempt to conceal the identity of this third party
edit 1- info from later responses:
the party already received compensation from mastercard, and some 50 disputed paypal transaction have received response from blizz and is in pending status while paypal decides to handle,
also note the dispute resolution policy says any move to arbitrate shall be final by the party initiating and binding by the other party. so simply they cannot deny ones claims based on their own dispute policy. also she tells me the better business bureau is processing the complaint and it is being taken 100% seriously.
it is the legal equivalent to getting illegally searched and that illegal search turning up drugs. when it comes down to it their findings are not valid, and don't hold up in court based on illegal search.
edit2-
Do not forget that you never agree to a eula, tos, tou, (etc) when you purchased the box title "diablo III" , then you got home and open the box (now as electronic software it is no longer eligible for a refund, i can verify that personally because i asked for a refund on a 2nd copy i purchased, and opened, but no longer neeeded, and was declined.) now to use the product you purchased you were required to accept those terms, there were no other options provided. because of this there is no way their terms / eula (etc) will ever hold up in court, (and I would hope, and assume, likewise for arbitration)
edit4-update:
For the woman I am advising, Paypal has already also refunded for all transactions over $5.00 in last 45 days. Blizzard has contacted saying as a result of the chargebacks they are not going to allow further use of the RMAH for the account (well if their departments communicated with eachother they would realize this penalty is already active!) Because of the sheer number of paypal transactions, many below $3.00 as a result of wanting instant gold to complete work on the auction house she says, I advised her it would probably be easier just to file disputes on anything over $5.00 (17 paypal transactions totalling over $300 returned, and again we got money back from mastercard, for 5 or so transactions for a total of approximately $150); but since they (paypal claims) have all ended up quickly succeeding in getting a full refund, we are now discussing whether it would be advisable to file paypal claims on the many many "micro" transactions, despite the tediousness, just for sake of completion. Again, paypal only accepts the claims within 45 days, so the remainder of the ~$5000 spent on RMAH is still ongoing negotiations. The better business bureau responded and said they have contacted the company and are awaiting response. We have also sent certified mail to their legal department, both for consistency, and so that in the case the BBB fails, we will have the opportunity to dispute the matter with an AAA arbitrator, at a location convenient to us. The sheer fact that my client is located in Maine might mean that Blizzard would rather refund $5000 then send a representative all the way to Maine. Cheers, hope other members inquiries are being taken as seriously by them and are receiving compensation for their losses! Stand up for your rights! You might be able to get someone to sign a contract to become your slave, but that wouldn't hold up in court either... for all the contract respecting folk out there, remembers the law supercedes!
edit3- dug through the auction house t.o.u. a bit;
Further insight into the auction house terms of use, despite the users agreement to them invalidity, due the advertisement of the auction house on the game box, and the requirement to access the feature , once the game is in a non-returnable state, is the only option for the user to use the service he purchased access to. However, since they have agreed to all of the terms, there shouldn?t be any issue assuming they will follow anything they?ve agreed upon therein.
Section 6E:
?? Once an auction has been completed and verified by Blizzard, Blizzard will:
? (i) transfer the license to use the Loot from the seller to Blizzard and then to you; or
? (ii) terminate the seller?s license to use the Loot and issue you a new license to use the Loot.?
This does not suggest that the license has the right to be terminated for reasons other than the sale of such ?Loot?.
Section 9:
?All Auction House sales are final, and no refunds are permitted except with respect to any statutory warranties or guaranties that cannot be excluded or limited by law. Please visit Blizzard?s Terms of Sale for additional terms and conditions applicable to the purchase of any Loot listed on the Auction Houses.?
Sales are final except with respect to warranties or guaranties that cannot be excluded by law or limited by law. Therefore, since the guaranty of the purchasers? license to use the Loot is final, refunds consequently cannot be excluded.
Although,
Section 11A
?? You agree:
? (i) to use the Auction Houses only for your own individual purposes;
? (ii) to access the Auction Houses only with an authorized, unmodified version of Diablo; and
? (iii) to accept the risk that you may lose some or all of the value that you exchange as part of your use of the Auction Houses.?
(iii) might be concerning, but it states we may lose some or all of the value, and does not mention that we will not be permitted a refund or any form of compensation, or that these loses can occur through the service providers termination of your license to use purchased Loot.
Section 12C
?IN THE EVENT THAT BLIZZARD SELLS A LICENSE TO USE LOOT TO YOU AS THE WINNER OF AN AUCTION, AND YOUR PAYMENT CANNOT BE CHARGED TO YOUR CREDIT CARD, OR YOUR PAYMENT IS RETURNED TO BLIZZARD ENTERTAINMENT FOR ANY REASON, BLIZZARD MAY SUSPEND, CANCEL OR TERMINATE YOUR ACCESS TO ANY AUCTION HOUSE, AND/OR DISABLE OR DELETE THE ACCOUNT.?
Therefore, Blizzard cannot enforce any further penalty for chargebacks or paypal disputes, because they have already enforced the maximum penalty (disabling of the account).
Section 14A-B
?YOU AGREE THAT:
1. Blizzard owns or has the right to use all of the Loot, as well as all of the characters and content that appears in Diablo.
2. You do not own any of the Loot, characters, or other content that appears in Diablo, and that you have no right or title in or to any of the Loot (other than any license to use any Loot granted to you by Blizzard, which may be revoked by Blizzard at any time), Diablo, or your Account.?
(1) And so they can use all of the Loot, yet this does not say that their use of the Loot has any correlation to the revocation of our right/license to use such Loot.
(2) The license can be revoked at any time, as it was, but this does not deny the purchasers? right to a refund for the price s/he purchased the License for. They can repossess the License if you haven?t paid for it, and if you have paid for it, they still can; but they cannot deny compensation for the discontinuation of a guaranteed service [the license to use the Loot].
Section 15B
?IN NO CASE SHALL THE LIABILITY OF BLIZZARD EXCEED THE AMOUNT THAT YOU PAID TO BLIZZARD DURING THE MONTH PRIOR TO THE TIME YOUR CAUSE OF ACTION AROSE. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions the liability of Blizzard and its affiliates shall be limited to the fullest extent permitted by law.?
So they are potentially liable for at least the amount spent on the RMAH within the month prior to filing a complaint, if not longer depending on individual state laws and/or conclusions reached by an arbitrator.
Section 16
?If you are a resident of a country located in North America, you and Blizzard each agree that all disputes between you and Blizzard that arise out of, or relate to, these Auction House TOU, will be resolved in accordance with the Blizzard Entertainment Dispute Resolution Policy, that is available for your review here Blizzard Entertainment:Blizzard Entertainment Dispute Resolution Policy. Should any portion of the Blizzard Entertainment Dispute Resolution Policy be found illegal or unenforceable, you agree that such portion shall be severed and the remainder of the Blizzard Entertainment Dispute Resolution Policy shall be given full force and effect.?
So these auction house T.O.U as quoted in all above sections is up for negotiation/dispute as specified by the dispute policy. Again ?Any election to arbitrate by one party shall be final and binding on the other?
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