UNIVERSE Terms of Service
Last Updated: January 28, 2021
These Terms of Service (“Terms”) are
between you and NCSOFT Corporation, a company registered in
South Korea, with the registered address at 12, Daewangpangyo-ro 644,
Bundang-gu, Seongnam-si, Gyeonggi-do, Republic of Korea (“NCSOFT,” “we,”
“us,” or “our”). These Terms govern your access to and use of our UNIVERSE services,
including our UNIVERSE mobile applications (“Apps”), our websites, including
the website(s) located at https://www.UNIVERSE-official.io
(which, together with Apps, are called the “Services”). The
Services, offered through our App and our Website, allow you to connect with
other users to socialise, share content and media and enter potentially
participate in competitions.
ARBITRATION NOTICE: UNLESS YOU ARE A USER SITUATED IN THE UNITED KINGDOM OR YOU OPT
OUT OF ARBITRATION WITHIN 30 DAYS OF THE DATE YOU FIRST AGREE TO THESE TERMS BY
FOLLOWING THE OPT-OUT PROCEDURE SPECIFIED IN SECTION 13 (“DISPUTE RESOLUTION”),
AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 13, YOU AGREE
THAT DISPUTES BETWEEN YOU AND NCSOFT WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU ARE
WAIVING YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS
MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
1. Basic Terms
Eligibility
You may use the Services only if you
can form a binding contract with NCSOFT and are not a person barred from
receiving the Services under the laws of the United States or other applicable
jurisdiction. If you are accepting these Terms and using the Services on behalf
of a company, organization, government, or other legal entity, you represent
and warrant that you are authorized to do so. You may use the Services only in
compliance with these Terms and all applicable local, state, national, and
international laws, rules, and regulations. You shall not use the Services if
you are under the age of majority in your jurisdiction without parental consent
or have previously been banned from using the Services. If you are under the
age of majority in your jurisdiction, you represent that you have your parent
or guardian’s permission to use the Apps, please have them read these Terms
with you. If you are a parent or legal guardian of a user under the age of
majority in your jurisdiction, you are subject to these Terms and responsible
for your child’s activities on the Apps.
Agreement to
Terms
By accepting
these Terms, you agree to be bound by these Terms. The Services that NCSOFT
provides are always evolving and the form and nature of the Services may change
from time to time. As a result, we may need to amend these Terms
from time to time. That being said, we will provide you with
notice of such changes
to the Terms through the Services, or through any other appropriate measures as
determined by us in our sole discretion. If you continue to
use the Services for 30 days after such notice we will take this as you
accepting them. If you do not accept the changes, you can terminate your
agreement with us within 30 days of receipt of notice of the proposed changes
and any charges and fees you have paid in advance will be refunded to you.
NCSOFT may from
time to time need to modify or stop (permanently or temporarily) providing
the Services (or any features within the Services) to you or to Users generally;
although NCSOFT will use commercially reasonable efforts to provide notice to
you, NCSOFT may not be able to provide you with prior notice. If you continue using the Services for 30 days after any such
modifications, we will assume you have accepted them (this includes updates). We
also retain the right to create limits on use and storage at our sole
discretion at any time without prior notice to you.
Registration
If you want to use certain features of
the Services, you need to create an account and become a registered user
(“User”). It’s important that you provide us with accurate, complete and
up-to-date information for your account and you agree to update such
information, as needed, to keep it accurate, complete and up to date. If you do
not, we may have to suspend or terminate your account. We reserve the right to force forfeiture of any username for any
reason or to disable any log-on ID, at any time, if in our
opinion you have failed to comply with any of the provisions of these Terms or
if any details you provide for the purposes of registering as a User prove to
be false.
You are responsible for safeguarding
the password or credentials that you use to access the Services and for any
activities or actions under your account. We encourage you to use “strong”
passwords (passwords that use a combination of upper- and lower-case letters,
numbers, and symbols) with your account. NCSOFT is not liable for any loss or
damage arising from your failure to comply with the above requirements. You are
responsible for all activities that occur under your account, whether or not
you know about them. If your account is hacked or any third parties use your
account, then you shall immediately notify NCSOFT and follow NCSOFT’s instructions.
NCSOFT may restrict usage of such account in its sole discretion.
Advertisements
The Services may include
advertisements, which may be targeted to the content or information on the
Services, queries made through the Services, or other information. The types
and extent of advertising by NCSOFT on the Services are subject to change. In consideration
for NCSOFT granting you access to and use of the Services, you agree that
NCSOFT and its subsidiary, third party providers, and partners may place such
advertising on the Services or in connection with the display of content or
information from the Services whether submitted by you or others, unless
otherwise provided.
2. Updates
NCSOFT may provide patches, updates,
or upgrades to the Software that must be installed for you to continue to use
the Services. Although NCSOFT will use commercially reasonable efforts to
notify you, NCSOFT may update the Services remotely without notifying you, and
you hereby consent to NCSOFT applying patches, updates, and upgrades. NCSOFT
may modify, suspend, discontinue, substitute, replace, or limit your access to
any aspect of the Services at any time. If the Services
are no longer available, any charges and fees you have paid
in advance will be refunded to you. You acknowledge that your use of the
Services does not confer on you any interest, monetary or otherwise, in any
aspect or feature of the Services, including but not limited to (where
applicable) any rewards, or Content (save for where it is
your own User Content). You also acknowledge that any data, customization,
or other data related to your use of the Services may cease to be available to
you at any time without notice from NCSOFT, including without limitation after
a patch, update, or upgrade is applied by NCSOFT. NCSOFT does not have any
maintenance or support obligations with respect to the Services.
3.
App
Currency
NCSOFT may offer you the ability to
acquire licenses to in-app currency (“App Currency”) or Content, such as by:
(a) purchasing a limited license to use App Currency for a fee (“Purchased App
Currency”), (b) earning a limited license to use App Currency by performing or
accomplishing specific tasks in the Software, or (c) purchasing for a fee,
exchanging App Currency for, or earning a limited license to use Content.
When you earn or pay the fee to obtain
such App Currency or Content, you are obtaining or purchasing from NCSOFT the
right to have your license include such App Currency or Content. Regardless of
any references NCSOFT may make outside this Agreement to purchasing or selling
App Currency or Content, both App Currency and Content are licensed, not sold,
to you under the license. Use of an NCSOFT account balance to purchase App
Currency or Content is subject to these Terms.
Neither App Currency nor Content are
redeemable for money or monetary value from NCSOFT or any other person, except
as otherwise required by applicable law. App Currency and Content do not have
an equivalent value in real currency and do not act as a substitute for real
currency. Neither NCSOFT nor any other person or entity has any obligation to
exchange App Currency or Content for anything of value, including, but not
limited to, real currency. You agree that NCSOFT may engage in actions that may
impact the perceived value or purchase price, if applicable, of App Currency
and Content at any time, except as prohibited by applicable law.
All purchases of Purchased App
Currency and Content are final and are not refundable, transferable, or
exchangeable under any circumstances, except as otherwise required by
applicable law. NCSOFT, in its sole discretion, may impose limits on the amount
of App Currency or Content that may be purchased, earned, accumulated,
redeemed, or otherwise used.
Except as otherwise prohibited by
applicable law, NCSOFT, in its sole discretion, has the absolute right to
manage, modify, substitute, replace, suspend, cancel or eliminate App Currency
or Content, including your ability to access or use App Currency or Content,
without notice or liability to you. You may not transfer, sell, gift, exchange,
trade, lease, sublicense, or rent App Currency or Content except within the
Software and as expressly permitted by NCSOFT.
Except as otherwise prohibited by
applicable law or these Terms, NCSOFT reserves and retains all rights, title,
and interest, property or otherwise, in and to the App Currency and Content.
The license to App Currency and Content under the license will terminate upon
termination of the license and as otherwise provided herein.
When you provide payment information
to NCSOFT or its authorized processor, you represent that you are an authorized
user of the payment card, PIN, key, account or other payment method specified
by you, and you authorize NCSOFT to charge such payment method for the full
amount of the transaction. If you are a minor, you must obtain a parent or
legal guardian’s permission prior to entering or using any payment methods.
4. Memberships
Certain areas of the Service require
payment before you can access them (“Membership(s)”).
Memberships can be purchased by paying
a subscription fee for a certain period as indicated on the Service.
MEMBERSHIPS CANNOT BE TERMINATED BEFORE THE END OF THE PERIOD FOR WHICH YOU
HAVE ALREADY PAID, AND COMPANY WILL NOT REFUND ANY FEES THAT YOU HAVE ALREADY
PAID. Your payment will automatically renew at the end of the Membership period
unless you cancel your Membership through your Membership page before the end
of the then-current Membership period. The cancellation will take effect the
day after the last day of the current Membership period. Company may change the
price for the Memberships, from time to time, by posting the new price on its
Service. Price changes for Memberships will take effect at the start of the
next Membership period following the date of the price change. As permitted by
local law, you accept the new price by continuing to use the Service for 30
days after the price change takes effect. If you do not agree with the price
changes, you have the right to reject the change by unsubscribing from the
Service prior to the price change going into effect. Please therefore make sure
you read any such notification of price changes carefully. Additional terms may
apply.
We do our best to describe every
product or service offered on the Service as accurately as possible. However,
we do not warrant that any part of the Services, including
without limitation the product specifications, pricing, or other Content on
the Service is complete, accurate, reliable, current, or error-free. In the
event of any errors relating to the pricing or specifications, NCSOFT shall
have the right to refuse or cancel any orders in its sole discretion unless
applicable laws dictate otherwise. If we charged your credit card or other
account prior to our cancellation, we would issue a credit to your account in
the amount of the charge. Additional terms may apply, you will have the
opportunity to review such terms in such cases. If a product or service you
purchased from Company is not as described, your sole remedy is to cancel the
purchase and receive a credit for the purchase price.
5. Promotions
Any NCSOFT-sponsored sweepstakes,
contests, or other promotions will be governed by a separate set of rules or
terms and conditions. However, for certain promotions the following general
rules in this paragraph apply absent any supplemental official rules or
conditions or any contrary terms in the supplemental official rules or
conditions for the promotion. Your promotion entry shall be considered User
Content and is subject to all provisions of these Terms. We may disqualify
entries that are late, misdirected, incomplete, corrupted, lost, illegible, or
invalid. Use of automated entries, votes, or other programs is prohibited and
all such entries (or votes) will be disqualified. We reserve the right to
modify, suspend, cancel, or terminate a promotion, extend and/or resume the
entry period, or disqualify any participant or entry, at any time, for any or
no reason, without giving advance notice. We may do so in the event that we
cannot guarantee the promotion will be carried out fairly or correctly for technical,
legal, or other reasons, or if we suspect that any person has manipulated
entries or results, provided false information, or acted unethically. If we
cancel or terminate a promotion, prizes may be awarded as provided in that
promotion’s official rules. The Services may contain
certain contest or sweepstake based mechanisms that are
not available in all jurisdictions.
6. Content on the Services
“Content” means:
·
anything created by you or someone else; and
·
information or other materials that are
posted, generated, provided, or otherwise made available through the Services.
“User Content” means: any Content that is provided by you or on your behalf or imported to be made available
through the Services.
Ownership and License
NCSOFT and its
licensors own all title, ownership rights, and intellectual property rights in and to the Services (excluding the
User Content), NCSOFT, UNIVERSE, and their respective logos, are trademarks
or registered trademarks of NCSOFT and its affiliates in the United States of
America and elsewhere.
All rights
granted to you under this Agreement and these Terms are
granted by express license only and not by sale. No license or other rights
shall be created hereunder by implication, estoppel, or otherwise.
NCSOFT does not
claim any ownership rights in any User Content. Subject to the license you
grant to NCSOFT according to these Terms, you retain
your rights to any User Content you submit, post, or display on or through the
Services. Subject to your ownership of your User Content, all right, title, and
interest in and to the Services and Content are and will remain the exclusive
property of NCSOFT and its licensors (including other Users). The Services are
protected by copyright, trademark, and other laws of both the United States and
foreign countries. NCSOFT reserves all rights not specifically granted in these
Terms.
To make the
Services available to you and other Users, NCSOFT needs a license from you. By
submitting, posting, or displaying User Content on or through the Services, you
grant us a worldwide, sub-licensable, non-exclusive,
royalty-free license to use, copy, reproduce, process, adapt, modify, publish, translate, transmit, create derivative
works from, display and distribute such User Content
in any and all media or distribution methods (now known or later developed).
We may modify or
adapt your User Content in order to transmit, display,
or distribute it over computer networks and in various media and/or make
changes to your User Content as necessary to conform
and adapt that User Content to any requirements or
limitations of any networks, devices, services, or media.
Subject to your compliance with these
Terms, NCSOFT grants you a limited, non-exclusive, non-transferable license to
access and view the Content posted by other Users via the Services solely in
connection with your permitted use of the Services and solely for your personal
and non-commercial purposes.
Rights in App
Granted by NCSOFT
Subject to your compliance with these
Terms, NCSOFT grants you a limited non-exclusive, non-transferable,
non-sublicensable license to download and install a copy of the App on any
mobile device or computer that you own or control and to run that copy of the
App solely for your own personal, non-commercial purposes. You may not copy the
App, except for making a reasonable number of copies for backup or archival
purposes. Except as specifically described in these Terms, you cannot:
·
copy, modify or create derivative works based
on the App;
·
distribute, transfer, sublicense, lease, lend,
or rent the App to any third party;
·
reverse engineer, decompile, or disassemble
the App; or
·
make the functionality of the App available to
multiple users through any means.
NCSOFT reserves all rights in and to
the App.
All Content,
whether publicly posted or privately transmitted, is the sole responsibility of
the person who originated the Content. We may (but are not required to) monitor
or control Content posted via the Services however we cannot take responsibility for such
Content. Any use or reliance on any Content made available via the Services or
obtained by you through the Services is at your own risk.
You are
responsible for your User Content, so please do not make objectionable content
available on or through the Services. You should only provide User Content that you
are comfortable sharing with others under these Terms.
If you do not, we
may have to take it down. NCSOFT may, but is under no obligation to, edit or
control any User Content that you or others make available through the
Services. NCSOFT may at any time screen, remove, delete, edit, block, or refuse
to publish User Content that violates this Agreement or is otherwise
objectionable as determined in NCSOFT’s sole discretion and without prior
notice or any liability to you or any third party. If you provide User Content,
you may only use the tools that NCSOFT provides through the normal
functionality of the Service to remove or modify that specific type of User Content.You understand that you may be exposed
to User Content from a variety of sources when using the Services and
acknowledge that User Content may be inaccurate, offensive, indecent, or
otherwise objectionable. You agree that NCSOFT shall not be responsible or
liable for your or others’ User Content or for any use of your User Content by NCSOFT in
accordance with these Terms.. Complaints about any Content must be sent to
https://cs.UNIVERSE-official.io and must contain details of the specific
Content giving rise to the complaint.
NCSOFT does not allow intellectual-property
infringement activities through the Services. You may not and agree not to
create, generate, or make available through the Services any User Content to
which you do not have the right to grant NCSOFT such license in all of the
elements (including the licensed music) of the User Content.
If you do choose to create, generate, or make available your User Content
through the Services, you are solely responsible for your User Content and
represent and warrant that:
a)
you have all the
rights, power, and authority necessary to grant the rights granted in these
Terms to any User Content that you submit;
b)
your User
Content, and NCSOFT’s use of the User Content as contemplated under these Terms, will not:
i.
infringe,
misappropriate, or violate a third party’s intellectual property rights;
ii.
contain,
transmit, distribute, link to or otherwise make available, or advertise or
promote any content that infringes any intellectual property rights or data
protection, privacy or other rights of any other person, is defamatory or in
breach of any contractual duty or any obligation of confidence, is obscene,
sexually explicit, threatening, abusive, harassing, inciteful of violence or
hatred, blasphemous, discriminatory (on any ground), liable to cause anxiety,
alarm or embarrassment, knowingly false or misleading, or that does not comply
with all applicable laws and regulations or is otherwise objectionable;
iii.
impersonate any
person or entity or otherwise misrepresent your relationship with any person or entity in a manner that does
or is intended to mislead, confuse, or deceive others;
iv.
contain, transmit
or distribute any unsolicited or unauthorised advertising, marketing or
promotional material or other form of solicitation (spam); or
v.
transmit or
distribute any virus and/or other code that has contaminating or destructive
elements.
c)
NCSOFT does not need to obtain any further
licenses, provide attribution, or pay royalties or other compensation to any
third parties; NCSOFT’s
use of your User Content will not violate any third-party contract or cause
NCSOFT to violate any applicable laws or regulations.
d)
Special Rules for Recording Artists.
You represent and warrant that any User Content containing licensed music is
not subject to and NCSOFT has no obligation to pay royalties to any third
party, including without limitation a sound recording copyright owner (e.g., a
record label), a musical work copyright owner (e.g., a music publisher), a PRO
(e.g., ASCAP, BMI, SESAC, etc.), a sound recording PRO, any unions or guilds,
or other third parties.
You acknowledge and agree that any feedback,
comments, or suggestions you may provide regarding NCSOFT, or the Services is
entirely voluntary and we will be free to use such feedback, comments, or
suggestions as we see fit and without any obligation or payment to you.
7. Additional Terms
for App Store Apps
If you accessed or downloaded the App
from any app store or distribution platform (like the such
as Apple App Store or Google Play) (each, an “App Provider”), then you
acknowledge and agree that:
·
These Terms are between you and NCSOFT, and
not with the App Provider; between NCSOFT and the App Provider, NCSOFT is solely
responsible for the App.
·
It is not the App Provider’s responsibility to
provide any maintenance or support services for the App.
·
If the App fails to conform to any applicable
warranty, you may notify the App Provider and the App Provider may refund the
purchase price for the App to you (if applicable) and, to the maximum extent
permitted by applicable law, the App Provider will have no other warranty
obligation whatsoever with respect to the App. Any other claims, losses,
liabilities, damages, costs, or expenses attributable to any failure of an App
to conform to any warranty will be the sole responsibility of NCSOFT.
·
The App Provider is not responsible for
addressing any of your claims or any third party’s claims relating to the App
or your possession and use of the App, including, but not limited to: (i)
product liability claims; (ii) any claim that the App fails to conform to any
legal or regulatory requirement; and (iii) claims arising under consumer
protection or similar legislation.
·
If there is a third-party claim that the App
or your possession and use of the App infringes that third party’s intellectual
property rights, NCSOFT will be solely responsible for the investigation,
defense, settlement, and discharge of any such intellectual property
infringement claim to the extent required by these Terms.
·
The App Provider and its subsidiaries are
third-party beneficiaries of these Terms as they relate to your license of the
App. Upon your acceptance of these Terms, the App Provider will have the right
(and will be viewed to have accepted the right) to enforce these Terms as
related to your license of the App against you as a third party beneficiary of
these Terms.
·
You must also comply with all applicable
third-party terms of service when using the App.
·
You agree to comply with all U.S. and foreign
export laws and regulations to ensure that the App, any technical data related
the App, and/or any direct product from your use of the App is not exported or
re-exported directly or indirectly in a way that violates those laws and
regulations. By using the App you represent and warrant that: (i) you are not
located in a country that is subject to a U.S. Government embargo, or that has
been designated by the U.S. Government as a “terrorist supporting” country; and
(ii) you are not listed on any U.S. Government list of prohibited or restricted
parties.
If you accessed or downloaded the App
from the Apple App Store, then you also agree to use the App only: (i) on an
Apple-branded product or device that runs iOS (Apple’s proprietary operating
system software); and (ii) as permitted by the “Usage Rules” stated in the
Apple Store Terms of Service.
8. Restrictions On
And Use Of The Services
We reserve the right
(but will not have the obligation) to access, read, preserve, and disclose any
information as we reasonably believe necessary to (i) satisfy any applicable
law, regulation, legal process, or governmental request, (ii) enforce the
Terms, including investigation of potential violations of the Terms, (iii)
detect, prevent, or otherwise address fraud, security, or technical issues,
(iv) respond to User support requests, or (v) protect the rights, property or
safety of NCSOFT, its Users and the public. NCSOFT does not disclose personally
identifying information to third parties except in accordance with our Privacy Policy.
You may not do any of the following
while accessing or using the Services:
·
access, tamper with, or use non-public areas
of the Services, NCSOFT’s computer systems, or the systems of NCSOFT providers;
·
probe, scan, or test the vulnerability of any
system or network or breach or circumvent any security or authentication
measures;
·
access or search or attempt to access or
search the Services by any means (automated or otherwise) other than through
our currently available, published interfaces that are provided by NCSOFT (and
only pursuant to those terms and conditions), unless you have been specifically
allowed to do so in a separate agreement with NCSOFT (scraping the Services
without the prior consent of NCSOFT is prohibited);
·
forge any TCP/IP packet header or any part of
the header information in any email or posting, or in any way use the Services
to send altered, deceptive, or false source-identifying information;
·
interfere with, or disrupt, (or attempt to do
so), the access of any User, host or network, including, without limitation,
sending a virus, overloading, flooding, spamming, mail-bombing the Services, or
by scripting the creation of Content in such a manner as to interfere with or
create an undue burden on the Services;
·
use, display, mirror, or frame the Services or
any individual element within the Services, NCSOFT’s name, any NCSOFT
trademark, logo, or other proprietary information (including, without
limitation, UNIVERSE), or the layout and design of any page or form contained
on a page, without NCSOFT’s express written consent;
·
avoid, bypass, remove, deactivate, impair,
descramble, or otherwise circumvent any technological measure implemented by
NCSOFT or any of NCSOFT’s providers or any other third party (including another
User) to protect the Services or Content;
·
attempt to access or search the Services or
Content or download Content from the Services through the use of any engine,
software, tool, agent, device, or mechanism (including spiders, robots,
crawlers, data mining tools or the like) other than the software and/or search
agents provided by NCSOFT or other generally available third-party web
browsers;
·
send any unsolicited or unauthorized
advertising, promotional materials, email, junk mail, spam, chain letters, or
other form of solicitation;
·
use any meta tags or other hidden text or
metadata utilizing a NCSOFT trademark, logo URL or product name without
NCSOFT’s express written consent;
·
use the Services or Content, or any portion of
the Services or Content, for any commercial purpose or for the benefit of any
third party or in any manner not permitted by these Terms;
·
attempt to decipher, decompile, disassemble,
or reverse engineer any of the software used to provide the Services or
Content;
·
collect or store any personally identifiable
information from the Services from other Users of the Services without their
express and informed consent;
·
violate any applicable law or regulation; or
·
encourage or enable any other individual to do
any of the foregoing.
9. DMCA/Copyright
Policy
NCSOFT respects copyright law and
expects you and its Users to do the same. It is NCSOFT’s policy to terminate in
appropriate circumstances Users who repeatedly infringe or are believed to be
repeatedly infringing the rights of copyright holders. We may in our sole
discretion limit access to the Services and/or update, transfer, suspend, or
terminate the accounts of any Users who infringe the intellectual property
rights of others, whether or not there is any repeat infringement.
If you believe your intellectual
property has been used on the Services in a way that constitutes copyright
infringement, please submit a notice of alleged infringement to [link].
Please include the following in your
notice:
·
Identify the
copyrighted work that you claim has been infringed. If your notice covers
multiple works, you may provide a representative list of such works.
·
Identify the
material that you claim is infringing, including a description of where the
material is located. Your description must be reasonably sufficient to enable
us to locate the material. If possible, please include the URL of the webpage
where the material is located.
·
Provide your
full legal name, mailing address, telephone number, and (if available) e-mail
address.
·
Include the
following statement in the body of the notice:
“I have
a good-faith belief that the use of the material is not authorized by the intellectual property rights owner, its agent, or the
law. I represent that the information in this notice is accurate and, under
penalty of perjury, that I am the owner of the intellectual
property rights or authorized to act on the intellectual
property rights owner’s behalf.”
·
Provide your
electronic or physical signature.
Please
note that, under the laws of your
jurisdiction, if you knowingly misrepresent that material or activity is
infringing, you may be liable for damages, including costs and attorneys’ fees,
incurred by us or Users. If you are unsure whether the material or activity you
are reporting is infringing, you may wish to contact an attorney before filing
a notice with us.
10. Termination
The Terms will continue to apply until
terminated by either you or NCSOFT as follows:
a)
You may terminate these Terms with NCSOFT at
any time for any reason by deactivating your account and discontinuing your use
of the Services. Where you are a paid subscription User,
please note that if you terminate these Terms before the end of your
Subscription Period you will not be entitled to a refund of your fees.
b)
We may suspend or terminate your account
(including these Terms) or cease providing you with all or part of the Services
at any time for any reason, including, but not limited to, if we reasonably
believe: (i) you have violated these Terms, (ii) you create risk or possible
legal exposure for us; or (iii) our provision of the Services to you is no
longer commercially viable. If we terminate your account
and you have paid fees, we will refund to you any fees you have prepaid for the
remaining Subscription Period.
If we or you terminate these Terms, we
will make reasonable efforts to notify you by the email address associated with
your account or through the Services the next time you attempt to access your
account. Upon termination (whether by you or by us), all rights and obligations
under these Terms shall end. The following Sections
shall continue to apply: 3, 4, 6 (excluding your license to use the Services
shall terminate with these Terms), 7, 8, 9, 10, 11, 12, 13, and 14.
Nothing in this Section 10 shall
affect NCSOFT’s rights to change, limit or stop the provision of the Services
without prior notice in accordance with this section 10.
11. Indemnity
You will indemnify and hold harmless
NCSOFT and its affiliates, parents, subsidiaries, and each of their officers,
directors, employee and agents, from and against any claims, disputes, demands,
liabilities, damages, losses, and costs and expenses, including, without
limitation, reasonable legal and accounting fees arising out of or in any way
connected with (i) your any unauthorized access to or
use of the Services or Content by you, (ii) your User
Content, or (iii) your violation of these Terms.
12. Disclaimers
and Limitations Of Liability
Please read this Section 12 carefully
since it limits the liability of NCSOFT and its parents, subsidiaries,
affiliates, related companies, officers, directors, employees, agents,
representatives, partners, and licensors (all together, the “NCSOFT Entities”).
Each of the subsections below only applies up to the maximum extent permitted
under applicable law. Some jurisdictions do not allow the disclaimer of implied
warranties or the limitation of liability in contracts, and as a result the contents
of this Section 12 may not apply to you. Nothing in this Section 12 is intended
to limit any rights you may have which may not be lawfully limited or limit NCSOFTs liability for (i) death or personal injury
caused by negligence or (ii) fraudulent misrepresentation.
The Services are Available
“AS-IS”
Your access to and use of the Services
or any Content is at your own risk. You understand and agree that the Services
are provided to you on an “AS IS” and “AS AVAILABLE” basis. Without limiting
the foregoing, TO THE MAXIMUM EXTENT POSSIBLE UNDER
APPLICABLE LAWS, NCSOFT ENTITIES DISCLAIM ALL WARRANTIES AND CONDITIONS,
WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, OR NON-INFRINGEMENT.
NCSOFT Entities make no warranty and to the maximum extent possible under applicable laws disclaim
all responsibility and liability for: (i) the completeness, accuracy,
availability, timeliness, security, or reliability of the Services or any
Content; (ii) any harm to your computer system, loss of data, or other harm
that results from your access to or use of the Services, or any Content
(including without limitation any unlawful use of the Services); (iii) the
deletion of, or the failure to store or to transmit, any Content and other communications
maintained by the Services; and (iv) whether the Services will meet your
requirements or be available on an uninterrupted, secure, or error-free basis.
No advice or information, whether oral or written, obtained from NCSOFT
Entities or through the Services, will create any warranty not expressly made
in these Terms.
Links
The Services may contain links to
third-party websites or resources. You acknowledge and agree that we are not
responsible or liable for: (i) the availability or accuracy of such websites or
resources; or (ii) the content, products, or services on or available from such
websites or resources. Links to such websites or resources do not imply any
endorsement by NCSOFT Entities of such websites or resources or the content,
products, or services available from such websites or resources. You
acknowledge sole responsibility for and assume all risk arising from your use
of any such websites or resources.
No Assignment
You may not, without the prior written
consent of NCSOFT, assign, transfer, charge, or sub-contract all or any of your
rights or obligations under these Terms, and any attempt without that consent
will be null and void. If restrictions on transfer of the Services under these
Terms are not enforceable under the law of your country, then this Agreement
will be binding on any recipient of the Software. NCSOFT may at any time
assign, transfer, charge, or sub-contract all or any of its rights or
obligations under this Agreement.
Limitation of
Liability
TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, THE NCSOFT ENTITIES SHALL NOT BE LIABLE FOR ANY INDIRECT,
INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS
OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE,
GOOD-WILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (i) YOUR ACCESS TO OR USE
OF OR INABILITY TO ACCESS OR USE THE SERVICES; (ii) ANY CONDUCT OR CONTENT OF
ANY THIRD PARTY ON THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE,
OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (iii) ANY CONTENT OBTAINED
FROM THE SERVICES; OR (iv) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR
TRANSMISSIONS OR CONTENT.
SAVE FOR IN
RELATION TO NCSOFTS LIABILITY FOR (I) DEATH OR PERSONAL INJURY CAUSED BY
NEGLIGENCE OR (II) FRAUDULENT MISREPRESENTATION, IN NO EVENT SHALL THE AGGREGATE
LIABILITY OF THE NCSOFT ENTITIES EXCEED THE GREATER OF ONE THOUSAND U.S.
DOLLARS (U.S. $1000.00) OR THE AMOUNT YOU PAID NCSOFT, IF ANY, IN THE PAST TWELVE
MONTHS FOR THE SERVICES GIVING RISE TO THE CLAIM. TO THE
MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS, THE LIMITATIONS OF THIS
SUBSECTION SHALL APPLY TO ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY,
CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR
NOT THE NCSOFT ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH
DAMAGE, AND EVEN IF A REMEDY STATED IN THESE TERMS IS FOUND
TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
13. Dispute
Resolution
Governing Law
These Terms and any action related
thereto will be governed by the laws of the State of New York without regard to
its conflict of laws provisions, however nothing in these
Terms shall deprive you of any mandatory protections available to you under
your local law.
Agreement to
Arbitrate
Unless you are a
User located in the United Kingdom:
You and NCSOFT agree that any dispute,
claim, or controversy arising out of or relating to these Terms, or the use of
the Services or Content (all together, “Disputes”) will be settled by binding
arbitration, except that each party retains the right: (i) to bring an
individual action in small claims court (a “Small Claims Action”) and (ii) to
seek injunctive or other equitable relief in a court of competent jurisdiction
to prevent the actual or threatened infringement, misappropriation or violation
of a party’s copyrights, trademarks, trade secrets, patents or other
intellectual property rights (an “IP Protection Action”). The exclusive
jurisdiction and venue of any IP Protection Action will be the state and
federal courts located in the Southern District of New York and NCSOFT and you
waive any objection to jurisdiction and venue in such courts and consent to
their jurisdiction. You agree you may bring arbitration claims only on your own
behalf and not on behalf of any other person or entity.
Unless you timely provide NCSOFT with
an Arbitration Opt-out Notice (as defined below in the subsection titled “Your
Choices”), you acknowledge and agree that you and NCSOFT are each waiving the
right to a trial by jury or to participate as a plaintiff or class member in
any purported class action or representative proceeding. Further, unless both
you and NCSOFT otherwise agree in writing, the arbitrator may not consolidate
more than one person’s claims and may not otherwise preside over any form of
any class or representative proceeding.
This section does not limit either
party’s ability to file an action in a court with jurisdiction to seek
injunctive or other equitable relief for disputes relating to intellectual
property, proprietary data or to enforce this dispute resolution section,
including your agreement not to assert claims related to the suspension or
termination of another person’s account. In any such action, the court rather
than an arbitrator must decide whether such a claim is arbitrable and must
decide whether the party is entitled to the requested injunctive or other
equitable relief.
Arbitration Rules
The arbitration will be administered
by the American Arbitration Association (“AAA”) in accordance with the
Commercial Arbitration Rules and the Supplementary Procedures for Consumer
Related Disputes (the “AAA Rules”) then in effect, except as modified by this
Section 13. (The AAA Rules are available at https://www.adr.org/mediation or
by calling the AAA at 1–800–778–7879.) The Federal Arbitration Act will govern
the interpretation and enforcement of this Section 13.
Arbitration
Process
A party who desires to initiate
arbitration must provide the other party with a written Demand for Arbitration
as specified in the AAA Rules. (The AAA provides a form Demand for
Arbitration.) The arbitrator will be either a retired judge or an attorney
licensed to practice law and will be selected by the parties from the AAA’s
roster of arbitrators. If the parties are unable to agree upon an arbitrator
within seven (7) days of delivery of the Demand for Arbitration, then the AAA
will appoint the arbitrator in accordance with the AAA Rules.
Arbitration
Location and Procedure
Unless you and NCSOFT otherwise agree,
the arbitration will be conducted in the state where you reside, with the
option for you to participate telephonically to the extent the AAA Rules allow.
If your claim does not exceed $10,000, then the arbitration will be conducted
solely on the basis of the documents that you and NCSOFT submit to the
arbitrator, unless you request a hearing or the arbitrator determines that a
hearing is necessary. If your claim exceeds $10,000, your right to a hearing
will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator
will have the discretion to direct a reasonable exchange of information by the
parties, consistent with the expedited nature of the arbitration.
Arbitrator’s
Decision
The arbitrator will render an award
within the time frame specified in the AAA Rules. The arbitrator’s decision
will include the essential findings and conclusions which the arbitrator based
its award on. Judgment on the arbitration award may be entered in any court
having jurisdiction over the arbitration award. The arbitrator’s award of
damages must be consistent with the terms of the “Limitation of Liability”
subsection of Section 12 above as to the types and amounts of damages for which
a party may be held liable. The arbitrator may award declaratory or injunctive
relief only in favor of the claimant and only to the extent necessary to
provide relief warranted by the claimant’s individual claim. If you prevail in
arbitration you will be entitled to an award of attorneys’ fees and expenses,
to the extent provided under applicable law. NCSOFT will not seek, and hereby
waives all rights it may have under applicable law to recover, attorneys’ fees
and expenses if it prevails in arbitration, unless such arbitration is found by
the arbitrator to be frivolous under the standards of the Federal Rules of
Civil Procedure 11(b) and in that case NCSOFT shall be entitled to recover
attorneys’ fees in addition to any damages awarded to it.
Fees
If the arbitrator finds that your
payment of the administrative and arbitrator fees (excluding any attorney’s
fees) under this subsection is a burden on you, we agree to pay those fees for
you (but not any attorney’s fees).
Changes
By rejecting any changes to these
Terms in accordance with Section 1, unless you are a User situated
in the United Kingdom, you are agreeing that you will arbitrate any Dispute
between you and NCSOFT in accordance with the provisions of this Section 13 as
of the date you first accepted these Terms (or accepted any subsequent changes
to these Terms).
Your Choices
Unless you are
located in the United Kingdom, if you don’t want to settle Disputes by
arbitration as described above, you
will notify NCSOFT by sending us written notice to [link]
telling us that you don’t want to use arbitration, within thirty (30) days of
the date on which you agreed to these Terms (such notice, an “Arbitration
Opt-out Notice”). For Users who submit an Arbitration
Opt-out Notice or for User situated in the United Kingdom you agree that
all Disputes will be resolved exclusively by a court located in New York, New
York. Unless you are situated in the United Kingdom, if you
don’t provide NCSOFT with an Arbitration Opt-out Notice within the thirty (30)
day period, you will be deemed to have knowingly and intentionally waived your
right to litigate any dispute except for a Small Claims Action and an IP
Protection Action as stated above.
14. General Terms
The failure of NCSOFT to enforce any
right or provision of these Terms will not be deemed a waiver of such right or
provision. The waiver of any such right or provision will be effective only if
in writing and signed by a duly authorized representative of NCSOFT. In the
event that any provision of these Terms is held to be invalid or unenforceable,
then that provision will be limited or eliminated to the minimum extent
necessary, and the remaining provisions of these Terms will remain in full
force and effect. Except as specifically stated in these Terms, the exercise by
either party of any of its remedies under these Terms will be without prejudice
to its other remedies under these Terms or otherwise. You may not assign or
transfer these Terms, by operation of law or otherwise, without NCSOFT’s prior
written consent. Any attempt by you to assign or transfer these Terms, without
such consent, will be null. NCSOFT may freely assign or transfer these Terms
without restriction. Subject to the foregoing, these Terms will bind and inure
to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications
provided by NCSOFT under these Terms, including those regarding modifications
to these Terms, will be given: (i) via email; or (ii) by posting to the
Services. For notices made by e-mail, the date of receipt will be deemed the
date on which such notice is transmitted. These Terms and our Privacy Policy
are the entire and exclusive agreement between NCSOFT and you regarding the
Services (excluding any services for which you have a separate agreement with
NCSOFT that is explicitly in addition or in place of these Terms), and these
Terms supersede and replace any prior agreements between NCSOFT and you
regarding the Services and Content.
These Services are operated and
provided by NCSOFT. If you have any questions about these Terms, please submit
your inquires to [link].