Chronicles of Elyria backers are raising an eyebrow this week over the new NDA that Soulbound Studios is asking them to sign before granting them access to the test for the spinoff game Kingdoms of Elyria. That’s because the NDA has a clause that essentially waives players’ rights to engage in a class-action lawsuit. You know, like the one that already exists. It also requires participants to acknowledge that the studio has no obligation to release a game, which is rather relevant to the lawsuit as well. The key part of the NDA is as follows:
“(iii) While Soulbound Studios intends to introduce a commercial version of the Game, you acknowledge that Soulbound has no obligation to release the Game or any similar product.
(14) Limitation of Liability
(i) YOU AGREE THAT THE LIABILITY OF SOULBOUND STUDIOS, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, PARTNERS, ATTORNEYS, AND LICENSORS IS LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE IN YOUR JURISDICTION.
(ii) Soulbound Studios shall not be liable for cumulative damages under this Agreement in excess of $250.00.
(15) Dispute Resolution
(i) Governing Law. This Agreement has been entered in the State of Washington and shall be construed and enforced under and is subject to applicable US federal law and the law of the State of Washington without regard to said state’s conflict of laws provisions.
(ii) Agreement to Arbitrate. ANY DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF, RELATING TO OR IN CONNECTION WITH THIS AGREEMENT SHALL BE FINALLY RESOLVED BY ARBITRATION BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN KING COUNTY, WASHINGTON GOVERNED BY WASHINGTON STATE LAW OR US FEDERAL LAW, AS APPLICABLE, IN ACCORD WITH THE RULES OF THE AAA IN EFFECT WHEN THE DEMAND FOR ARBITRATION IS FILED, WHICH RULES ARE INCORPORATED INTO THIS AGREEMENT BY REFERENCE. THE TRIBUNAL SHALL HAVE THE POWER TO RULE ON ANY CHALLENGE TO ITS OWN JURISDICTION OR TO THE VALIDITY OR ENFORCEABILITY OF ANY PORTION OF THE AGREEMENT TO ARBITRATE. THE ARBITRATOR MAY GRANT INJUNCTIONS AS WELL AS MONETARY AND OTHER RELIEF. THE DECISION OF THE ARBITRATOR WILL BE FINAL, CONCLUSIVE, AND BINDING ON THE PARTIES TO THE ARBITRATION. JUDGMENT MAY BE ENTERED ON THE ARBITRATOR’S DECISION IN ANY COURT HAVING JURISDICTION. EACH PARTY’S PROMISE TO RESOLVE CLAIMS BY ARBITRATION IN ACCORD WITH THIS AGREEMENT RATHER THAN THROUGH THE COURTS IS CONSIDERATION FOR THE OTHER PARTY’S LIKE PROMISE. THIS ARBITRATION PROVISION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT IN FULL FORCE AND EFFECT.
(iii) Class Action Waiver. THE PARTIES AGREE TO ARBITRATE SOLELY ON AN INDIVIDUAL BASIS. THIS AGREEMENT DOES NOT PERMIT CLASS ARBITRATION OR ANY CLAIMS BROUGHT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ARBITRATION PROCEEDING. THE ARBITRAL TRIBUNAL MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
(iv) Waiver of Jury Trial. The parties waive the right to a jury trial in any action arising out of or related to this Agreement.”
We do note here that it is not
unusual for companies, even game studios, to include language like this in their NDAs and terms of service. For example, the Electronic Arts
(I’m picking it at random) terms of service locks customers into similar arbitration agreements. Heck, MMO players will recall that the lawsuit against Trion Worlds over ArcheAge that was settled last year hinged on the verbiage governing lawsuits and arbitration
. We’re not saying you should sign away those rights, just noting that it’s fairly common for companies to do to try to protect themselves from consumers they’ve wronged.
But under these particular circumstances, given that there’s already an active class-action relating to this company and its original Kickstarter game, it should certainly give you pause before you pick up your virtual pen. While players are busy arguing over whether California case law on such arbitration clauses would allow them to apply to pre-existing lawsuits, the Discord dedicated to the ongoing lawsuit is advising that backers not sign the NDA.
As we’ve covered at length, in 2020 Soulbound abruptly announced that it had closed the studio, laid off the team, and ended development of Chronicles of Elyria thanks to a lack of funds. CEO Jeromy Walsh later retracted much of his initial announcement, claiming instead that the game was still in production with volunteer staff. But backers who’d poured $14M+ in crowdfunds into the game took it to court with a class action lawsuit against both Soulbound and payment processor Xsolla. As of 2021, the studio maintains that COE and its spinoff Kingdoms of Elyria are still in production. The lawsuit was filed back in February, and as of a few weeks ago, the plaintiffs were still filing motions to dismiss with the court.
• Chronicles of Elyria studio tosses ‘quick release’ strategy after inking a licensing deal
• Chronicles of Elyria boss explains how Soulbound burned through nearly $7M in three years
• Chronicles of Elyria claims its Soulborn Engine ‘is a functional MMO engine once again’
• Chronicles of Elyria dev insists it will ‘return as a full-fledged MMO in no time’
• Chronicles of Elyria dev again recaps backend work, saying ‘the core platform is nearing completion’
• Chronicles of Elyria apologizes for ‘toxic’ Discord, aims to test Kingdoms of Elyria again soon
• Chronicles of Elyria boss insists Kingdoms of Elyria: Settlements will ship in 2023 in spite of lawsuit appeal
• Chronicles of Elyria dev celebrates dismissal of backer lawsuit as next phase of ‘hero’s journey’
• Chronicles of Elyria admits to running out of money in 2021, ‘hemorrhaging cash’ ever since
• Chronicles of Elyria says the mid-alpha test phase will roll out this spring, addresses stock assets
• Chronicles of Elyria is now estimating a late 2024 release
• Chronicles of Elyria’s subreddit reopens, promising ‘no more censorship from Soulbound Studios’
• Gamers’ class-action against Chronicles of Elyria studio proceeds, suit against Xsolla deferred
• The Chronicles of Elyria class-action lawsuit has been split up between two states now
• Chronicles of Elyria tweaks NDA, locks down Reddit over death threats, and proposes NFT land trades
• Kingdoms of Elyria colony sim alpha test starts on July 6
• Chronicles of Elyria talks rebuilding trust in backer Q&A as the consumer lawsuit continues
• Chronicles of Elyria previews Kingdoms of Elyria gameplay, outlines the path to alpha
• Chronicles of Elyria previews its Kingdoms of Elyria alpha
• Chronicles of Elyria dev answers backers’ Kingdoms of Elyria questions
• Chronicles of Elyria developer offers a look at Milestone 2 features coming to side game Kingdoms of Elyria
• Chronicles of Elyria, now back up to five devs, examines its development achievements and shortcomings
• Chronicles of Elyria team hopes to avoid the ‘one-man economy’ pitfall
• Chronicles of Elyria on the purpose and mechanics of Kingdoms of Elyria’s fog of war
• Chronicles of Elyria boss outlines four-tier release for Kingdoms of Elyria standalone game
• Chronicles of Elyria is releasing Kingdoms of Elyria as a standalone product for backers
• Make My MMO: Chronicles of Elyria backers lodge lawsuit, Wagadu snags more funding
• Chronicles of Elyria says it’s focusing on settlement development in the short term
• Chronicles of Elyria clarifies art and comms as players vow their lawsuit will go forward
• Chronicles of Elyria is still in development, new video from Soulbound vows
• Soulbound Studios insists work on Chronicles of Elyria continues in pre-litigation paperwork response
• Chronicles of Elyria fans have filed the pre-litigation paperwork necessary to sue Soulbound Studios
• Chronicles of Elyria backers have now hired a lawyer to file a class action suit
• Chronicles of Elyria restores forums and gives parkour demo to all backers
• Chronicles of Elyria players allege that Xsolla is now stonewalling on refunds
• Chronicles of Elyria boss insists work on the game continues in spite of team layoff
• Make My MMO: Following Chronicles of Elyria reports, state attorney general addresses crowdfunding scams
• Chronicles of Elyria boss says development is still ongoing, still seeking funding
• Disgruntled Chronicles of Elyria backers seek aid from the Washington attorney general
• Vague Patch Notes: Chronicles of Elyria’s road to nowhere
• The Daily Grind: Are you angry about the collapse of Chronicles of Elyria?
• Make My MMO: Chronicles of Elyria becomes the highest-profile MMORPG Kickstarter to crash and burn
• Kickstarted MMORPG Chronicles of Elyria halts development, lays off all employees
, Discord. Cheers, Pepperzine.