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
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.
It is your responsibility to ensure your equipment (computer, laptop, netbook, tablet or other mobile device) meets all the necessary technical specifications to enable you to access and use the Services. The App is designed to work best with Apple IOS and Android and the website is designed to work best with Google Chrome browser.
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.
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.
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.
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.
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.
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.
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
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.
We do not endorse, support, represent, or guarantee the completeness, truthfulness, accuracy, or reliability of any Content or communications posted via the Services. We also do not endorse any opinions expressed via the Services. You understand that by using the Services, you may be exposed to Content that might be offensive, harmful, inaccurate, or otherwise inappropriate, or in some cases, postings that have been mislabeled or are otherwise deceptive. Under no circumstances will NCSOFT be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Services or broadcast elsewhere.
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.
To the fullest extent permitted by law, You waive and agree to waive all rights of authorship, paternity, attribution, integrity, disclosure, withdrawal, and any other rights that are known or referred to as “moral rights”, “artist’s rights”, “droit moral”, or other similar rights, recognized under any legal or equitable theory of any country or under any treaty, regardless of whether that right is referred to as a “moral right” (collectively “Moral Rights”) in and to your User Content. You further knowingly and irrevocably agree to not exercise any Moral Rights in and to your User Content that You have not waived in any manner that interferes with any exercise of granted rights. You waive and agree not to assert your Moral Rights even if your User Content is altered or changed in a manner not agreeable to you.
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:
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;
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.
If you are a composer or author of a musical work and are (a) affiliated with or a member of a performing-rights organization (“PRO”), (b) under contract with a record label, or (c) have assigned your rights to a music publisher, then you must notify the interested party of the royalty-free license you grant through this Agreement to NCSOFT. You are solely responsible for ensuring your compliance with the relevant party’s reporting or contractual obligations, and (if applicable) obtaining the consent of that party to grant the royalty-free license(s) in this Agreement, including if you create any new recordings through the Service that your label may attempt to claim.
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.
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.
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.
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.
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.
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.
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
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
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.
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.
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.
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.
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).
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).
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.
These Services are operated and provided by NCSOFT. If you have any questions about these Terms, please submit your inquires to [link].