UNIVERSE
Terms of Service
Last Updated: June 15,
2022
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].