PLEASE READ THE FOLLOWING TERMS CAREFULLY. BY CLICKING “I ACCEPT,” OR BY USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS EUAA. If you are not eligible, or do not agree to this EUAA, then you do not have our permission to use the Service.
You acknowledge and agree that, as provided in greater detail in this EUAA:
•the Desktop Client is attributed, not sold to you, and you may use the Service only as set forth in this EUAA;
•the Service is provided “as is” without warranties of any kind and Xen Rebirth’s liability to you is limited;
•disputes arising under this EUAA will be resolved by binding arbitration, and by accepting this EUAA, as described in greater detail in Section 23, you are waiving the right to a trial by jury or to participate in a class action;
1.Xen Rebirth Service Overview.
Xen Rebirth is a Services for creating, experiencing, and publishing Massively-Multiplayer Online Role-Playing Game (“MMORPG”) experiences. Users can create, play, and interact with the game and other users.
You must be minimum 13 years of old to use the Service. By agreeing to this EUAA, you represent, disclose and warrant to us that: (a) you are at minimum13 years of old; (b) you have not previously suspended or terminated from the Service; and (c) your registration and your use of the Service complies with all applicable laws and regulations. If you are at least 13 but are under the age of 18, you the event that you permit your minor child or legal ward (collectively, your “Child”) to use an Account on the Service, you hereby agree to this Agreement on behalf of yourself and your Child, and you understand and agree that you will be responsible for all uses of the Account by your Child whether or not such uses were authorized by you. In such a case you represent and warrant and covenant that both you and your parent or guardian have read and consent to this EUAA (including all the conditions, limitations, disclaimers, and waivers provided herein). If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to this EUAA and you agree to be bound by this EUAA on behalf of that organization.
3. Accounts and Registration.
To access most features of the Service, first you must register for an account. When you register for an account, you may be required to provide us with some information that could enable us identify you, such as your email address or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to- date at all times. When you register, you will be asked to provide a username and password. You agree to be solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that may occur/s under your account.
If you have any reason/s to believe that your account is no longer secure, then you must immediately notify us.
4. Xen Rebirth User Access.
Subject to your complete and ongoing compliance with the terms and conditions in this EUAA Xen Rebirth attributes you a limited, non-exclusive, non-transferable, non- attributable, revocable attribution copy of the Desktop Client collectively, the (“Xen Rebirth Software”) downloaded directly from Xen Rebirth’s website, solely in object code format, for your personal use for lawful purposes. You may not reproduce, distribute, or publicly perform the Xen Rebirth Software or any part of the Service. You may make one (1) copy of the Additional Software for archival purposes only. Unless, and solely to the extent that, such a restriction is impermissible under applicable law or applicable third party access, you may not: (a) decompile, reverse engineer, or otherwise access or attempt to access the source code for the Xen Rebirth Software, or make or attempt to make any modification to the Xen Rebirth Software; or (b) interfere with or circumvent any feature of the Xen Rebirth Software, including without limitation any security, or access control mechanism. You may not use the Xen Rebirth Software or the Service for any purpose other than a purpose for which the Xen Rebirth Software and the Service are expressly designed. The term Xen Rebirth Software, as used in this EUAA, includes any update or modification to the Xen Rebirth Software made available to you by Xen Rebirth (unless provided with separate terms). If you are prohibited under applicable law from using the Xen Rebirth Software or the Service, you may not use them. You represent and covenant that you have complied and will continue to comply with the rights and obligations set forth in this Section 4 with regards to your use of any Service previously downloaded or accessed.
5. Xen Rebirth Consent to Monitor.
While running, the websites including the desktop client, Xen Rebirth may monitor your computer for unauthorized third-party programs running either consecutively with a game or out of process. An "unauthorized third-party program" as used herein shall be defined as any third-party software prohibited by section 6 below. In the event that the Services detects an unauthorized third party program, (a) the Services may communicate information back to Xen Rebirth, including but not limited to; your account name; details about the unauthorized third party program detected; and the time and date; and/or (b) Xen Rebirth may exercise any or all of its rights under this agreement, with or without prior notice to the user. Additionally, certain Games include a tool that will allow your computer system to forward information to Xen Rebirth in the event that the Game crashes, including system and driver data, and by agreeing hereto you consent to Xen Rebirth receiving and/or using this data.
6. Mature Content.
You assume all risks that the site, content, user materials, applications, and related information are suitable or accurate for your needs and will be uninterrupted, timely, secure or error-free. Any applications downloaded or otherwise obtained through the xen rebirth site are at your own discretion and risk and you are solely responsible for any damage to your computer or loss of data. By participating in multi-player games or visiting chat rooms you may be exposed to rude, crude, indecent, or other offensive language or references.
7. User Content
7.1. User Content Generally.
Certain features of the Service may permit users to upload content to the Service, including software code, messages, photos, video, images, folders, data, text, and other types of works
(“User Content”) and to publish User Content on the Service including authorized third- party Services. You retain copyright and any other proprietary rights that you may hold in the User Content you post to the Service except it is permissible under the law.
7.2. Limited Access Grant to Xen Rebirth.
By posting, publishing, or otherwise developing User Content in the Service, you grant Xen Rebirth a worldwide, non-exclusive, irrevocable, royalty-free, perpetual, fully paid right and access (with the right to sub-access) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed. You agree that the access granted to Xen Rebirth under this Section 7.2 applies to any User Content you previously posted, published, or otherwise developed in the Service.
7.3. Limited Access Grant to Other Users.
By posting or sharing User Content with other users of the Service in a public portion of the Service, or by setting any of your User Content to public, you grant those users a non- exclusive access to access and use that User Content as permitted by this EUAA and the functionality of the Service.
7.4. User Content Representations and Warranties.
You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting or publishing User Content, you affirm, represent, and warrant that; you are the creator and owner of the User Content or have the necessary accesss, rights, consents, and permissions to authorize Xen Rebirth and users of the Service to use and distribute your User Content as necessary to exercise the access granted by you in this section, in the manner contemplated by Xen Rebirth, the Services, and this EUAA; and your User Content and the use of your User Content as contemplated by this EUAA, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Xen Rebirth to violate any law or regulation.
7.5. Deleting User Content.
Where permitted you may delete copies or instances of your User Content that you have uploaded to your account through the normal functionality of the Service. If you delete your User Content through use of that functionality, the accesss granted by you in this Section 7 to Your Content terminate as described in this Section 7.5 with respect to the particular copies or instances of your User Content that you have deleted. The termination of the accesss does not apply to any copies or instances of the same User Content that you have not specifically deleted from the Service, including, without limitation, those that may be displayed elsewhere or that may be stored by other users to whom you transferred copies. The accesss under this Section 7 that you granted to your User Content that you have deleted through the Service will survive termination solely to allow Xen Rebirth to: (i) retain server copies of particular instances of your User Content, including copies stored in connection with back- up, debugging, and testing procedures; and (ii) enable the exercise of the accesss granted in this Section 7 for any other copies or instances of the same User Content that you have not specifically deleted from the Service, including those that may be displayed elsewhere or that exist in other users’ account inventories.
7.6. User Content Disclaimer.
We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. Xen Rebirth may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates this EUAA or is otherwise objectionable. You
understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. Most worlds available through Xen Rebirth are created by other users or third parties, and Xen Rebirth does not control or actively monitor the content or technical features of individual worlds. You understand that any world you enter is at your own risk. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Xen Rebirth with respect to User Content. We expressly disclaim any and all liability in connection with User Content. If notified by a user or content owner that User Content allegedly does not conform to this EUAA, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Xen Rebirth does not permit copyright-infringing activities on the Service.
8.Digital Millennium Copyright Act
We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information: an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed; a description of the copyright-protected work or other intellectual property right that you claim has been infringed; a description of the material that you claim is infringing and where it is located on the Service; your address, telephone number, and email address; a statement by you that you have a good faith belief that the use of those materials on the Service is not authorized by the copyright owner, its agent, or the law; and a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
8.2. Repeat Infringers.
Xen Rebirth’s policy is to remove any User Content from the Service that is posted by “repeat infringers.” Xen Rebirth considers a “repeat infringer” to be any user that has uploaded User Content or Feedback to or through the Service and for whom Xen Rebirth has received more than three takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such User Content or Feedback. Xen Rebirth has discretion, however, to terminate the account of any user after receipt of a single notification of claimed infringement or upon Xen Rebirth’s own determination.
9. Prohibited Conduct.
XEN REBIRTH MAY SUSPEND OR REVOKE YOUR ACCESS TO ACCESS THE SERVICES, OR PARTS, COMPONENTS AND/OR SINGLE FEATURES THEREOF, IF YOU IN/VOLUNTARILY VIOLATE, OR TO ASSIST OTHERS IN VIOLATING, THE ACCESS LIMITATIONS SET FORTH BELOW. YOU AGREE THAT YOU WILL NOT, IN WHOLE OR IN PART OR UNDER ANY CIRCUMSTANCES, DO THE: COPY OR REPRODUCE (EXCEPT AS PROVIDED IN SECTION 4.), TRANSLATE, REVERSE ENGINEER, DERIVE SOURCE CODE FROM, MODIFY, DISASSEMBLE, DECOMPILE, OR CREATE DERIVATIVE WORKS BASED ON OR RELATED TO THE SERVICES. CREATE, USE, OFFER, PROMOTE, ADVERTISE, MAKE AVAILABLE AND/OR DISTRIBUTE THE FOLLOWING OR ASSIST THEREIN, I.E. METHODS NOT EXPRESSLY AUTHORIZED BY XEN REBIRTH, INFLUENCING AND/OR FACILITATING THE GAMEPLAY, INCLUDING EXPLOITS OF ANY IN-GAME
BUGS, AND THEREBY GRANTING YOU AND/OR ANY OTHER USER AN ADVANTAGE OVER OTHER PLAYERS NOT USING SUCH METHODS. BOTS SUCH AS ANY CODE AND/OR SOFTWARE, NOT EXPRESSLY AUTHORIZED BY XEN REBIRTH, THAT ALLOWS THE AUTOMATED CONTROL OF A GAME, OR ANY OTHER FEATURE OF THE SERVICES, E.G. THE AUTOMATED CONTROL OF A CHARACTER IN A GAME; HACK SUCH AS, ACCESSING OR MODIFYING THE SOFTWARE OF THE SERVICES IN ANY MANNER NOT EXPRESSLY AUTHORIZED BY XEN REBIRTH; AND/OR ANY CODE AND/OR SOFTWARE, NOT EXPRESSLY AUTHORIZED BY XEN REBIRTH, THAT CAN BE USED IN CONNECTION WITH THE SERVICES AND/OR ANY COMPONENT OR FEATURE THEREOF WHICH CHANGES AND/OR FACILITATES THE GAMEPLAY OR OTHER FUNCTIONALITY; PROHIBITED COMMERCIAL USES: EXPLOIT, IN ITS ENTIRETY OR INDIVIDUAL COMPONENTS, THE SERVICES FOR ANY PURPOSE NOT EXPRESSLY AUTHORIZED BY XEN REBIRTH, INCLUDING, WITHOUT LIMITATION (I) PLAYING THE GAME(S) AT COMMERCIAL ESTABLISHMENT; (II) GATHERING IN-GAME CURRENCY, ITEMS, OR RESOURCES FOR SALE OUTSIDE OF THE SERVICES OR THE GAME(S); (III) PERFORMING IN-GAME SERVICES INCLUDING, WITHOUT LIMITATION, ACCOUNT BOOSTING OR POWER-LEVELLING, IN EXCHANGE FOR PAYMENT; (IV) COMMUNICATING OR FACILITATING (BY TEXT, LIVE AUDIO COMMUNICATIONS, OR OTHERWISE) ANY COMMERCIAL ADVERTISEMENT, SOLICITATION OR OFFER THROUGH OR WITHIN THE SERVICES; OR (V) ORGANIZING, PROMOTING, FACILITATING, OR PARTICIPATING IN ANY EVENT INVOLVING WAGERING ON THE OUTCOME, OR ANY OTHER ASPECT OF, XEN REBIRTH’S GAMES, WHETHER OR NOT SUCH CONDUCT CONSTITUTES GAMBLING UNDER THE LAWS OF ANY APPLICABLE JURISDICTION, WITHOUT AUTHORIZATION. DUPLICATED ITEMS SUCH AS CREATING, UTILIZING OR TRANSACTING IN ANY IN-GAME ITEM CREATED OR COPIED BY EXPLOITING A DESIGN FLAW, UNDOCUMENTED PROBLEM, OR PROGRAM BUG IN THE SERVICES. TRANSFERS SUCH AS AN ATTEMPT TO SELL, SUB-ACCESS, RENT, LEASE, GRANT A SECURITY INTEREST IN OR OTHERWISE TRANSFER ANY COPY OF THE SERVICES OR COMPONENT THEREOF, OR YOUR RIGHTS TO THE SERVICES TO ANY OTHER PARTY IN ANY WAY NOT EXPRESSLY AUTHORIZED HEREIN. DISRUPTION / HARASSMENT INCLUDED BUT NOT LIMITED TO THE EXHAUSTIVE LISTS OF; ENGAGE IN ANY CONDUCT INTENDED TO DISRUPT OR DIMINISH THE GAME EXPERIENCE FOR OTHER PLAYERS, OR DISRUPT OPERATION OF XEN REBIRTH’S SERVICES IN ANY WAY, INCLUDING BUT NOT LIMITED TO; DISRUPTING OR ASSISTING IN THE DISRUPTION OF ANY COMPUTER USED TO SUPPORT THE SERVICES OR ANY GAME ENVIRONMENT. ANY ATTEMPT BY YOU TO DISRUPT THE SERVICES OR UNDERMINE THE LEGITIMATE OPERATION OF ANY GAME MAY BE A VIOLATION OF CRIMINAL AND CIVIL LAWS. HARASSMENT SUCH AS, “GRIEFING,” ABUSIVE BEHAVIOR OR CHAT, CONDUCT INTENDED TO UNREASONABLY UNDERMINE OR DISRUPT THE GAME EXPERIENCES OF OTHERS, DELIBERATE INACTIVITY OR DISCONNECTING, AND/OR ANY OTHER ACTIVITY WHICH VIOLATES XEN REBIRTH’S CODE OF CONDUCT OR IN-GAME POLICIES.
10. Termination of Use.
You may terminate your account at any time by contacting customer service at [email protected] Rebirth.com. If you terminate your account, you remain obligated to pay all outstanding fees,
if any, incurred prior to termination relating to your use of the Service. If you violate any provision of this EUAA, your permission from us to use the Service will terminate automatically. In addition, Xen Rebirth may in its sole discretion terminate your user account on the Service or suspend or terminate your access to the Service at any time for any reason or no reason, with or without notice. We also reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features and/or the whole features of the Service), temporarily or permanently, without the obligation to notify to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service.
11. Third-Party Services and Linked Websites.
Xen Rebirth may provide tools through the Service that enable you to export information, including User Content, to third party services, including through features that allow you to link your account on Xen Rebirth with an account on the third party service, such as Discord or Facebook, or through our implementation of third party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that we may transfer that information to the applicable third-party service. Third party services are not under our control, and we are not responsible for any third-party service’s use of your exported information. The Service may also contain links to third-party websites. Linked websites are not under our control, and we are not responsible for their content.
12. Consent to Use of Data.
You agree that Xen Rebirth may collect and use technical data and related information, including but not limited to UDID and other technical information about your device, system and Xen Rebirth Software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to you (if any) related to the Service, and to anonymously track and report your activity inside of the Service, including for analytics purposes. If you are located outside of the United States, you expressly consent to the transfer and processing of your data outside your home jurisdiction.
13. Third Party Software.
The software you download comprises a package of components, including certain third- party software (“Third Party Software”) provided under separate access terms (the “Third Party Terms”). Your use of the Third-Party Software in conjunction with the Xen Rebirth Software in a manner consistent with this EUAA is permitted, however, you may have broader rights under the applicable Third-Party Terms and nothing in this EUAA is intended to impose further restrictions on your use of the Third Party Software. The Service may contain or be provided together with open source software. Each item of open source software is subject to its own applicable access terms, which can be found at attribution and/or in the Service’s documentation or the applicable help, notices, about or source files. Copyrights to the open source software are held by the respective copyright holders indicated therein.
14. Additional Terms.
Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”), such as additional access agreements for any downloadable Materials, or rules that apply to particular features or content on the Service, subject to the section of this EUAA titled “Modification of this EUAA”. All Additional Terms are incorporated by this reference into, and made a part of, this EUAA.
15. Modification of this EUAA.
We reserve the right, at our discretion, to change this EUAA on a going-forward basis at any time. Please check this EUAA periodically for changes. If a change to this EUAA materially modifies your rights or obligations, you will be required to accept the modified EUAA in order to continue to use the Service. This EUAA will be identified by the most recent date of revision and will be effective immediately upon being made available through Xen Rebirth.com or otherwise through the Service, except: (a) if any such modification materially alters your rights under this EUAA, we will attempt to notify you directly through a message sent to the email address you have provided to Xen Rebirth, if any, or through a pop-up window or other notification when you access or use the Service; (b) such materially modified EUAA will be effective upon the earlier of your use of the Service with actual knowledge of the changes or thirty days after the changes are made available to you; and (c) no modifications to this EUAA will apply to any dispute between you and Xen Rebirth that arose prior to the date of such modification. Your use of the Service after modifications to this EUAA become effective constitutes your binding acceptance of such changes. If you are dissatisfied with the terms of this EUAA or any modifications to this EUAA, then you agree that your sole and exclusive remedy is to discontinue any use of the Service.
If you provide Xen Rebirth with any comments, bug reports, feedback, or modifications proposed or suggested by you for the Service (“Feedback”), such Feedback is provided on a non-confidential basis (notwithstanding any notice to the contrary you may include in any accompanying communication), and Xen Rebirth will have the right to use such Feedback at its discretion, including, but not limited to the incorporation of such suggested changes into the Service. You hereby grant Xen Rebirth a perpetual, irrevocable, nonexclusive access under all rights necessary to so incorporate and use your Feedback for any purpose.
You are responsible for your use of the Service, and you will defend and indemnify Xen Rebirth and its developers, directors, teams, consultants, affiliates, and agents (together, the “Xen Rebirth Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with:
(a)your access to, use of, or alleged use of, the Service; (b) your violation of any portion of this EUAA, any representation, warranty, or agreement referenced in this EUAA, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
THE DESKTOP CLIENT AND SERVICES AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE XEN REBIRTH ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON- INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE XEN REBIRTH ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. XEN REBIRTH EXPRESSLY DISCLAIMS ANY WARRANTIES OF ANY KIND WITH RESPECT TO THE ACCURACY OR FUNCTIONALITY OF LOCATION BASED SERVICES, AND WITH RESPECT TO THE ACCURACY, VALIDITY, OR COMPLETENESS OF ANY INFORMATION OR FEATURES AVAILABLE THROUGH THE SERVICE, OR THE QUALITY OR CONSISTENCY OF THE SERVICE. XEN REBIRTH FURTHER DISCLAIMS ANY WARRANTY OR LIABILITY RELATED TO YOUR CARRIER’S NETWORK OR SERVICE.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE XEN REBIRTH ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THIS EUAA. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALING WITH ANY OTHER USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT.
XEN REBIRTH TAKE NO RESPONSIBILITY AND ASSUME NO LIABILITY FOR ANY CONTENT THAT YOU, ANOTHER USER OR A THIRD PARTY CREATES, UPLOADS, POSTS, SENDS, RECEIVES OR STORES ON OR THROUGH OUR SERVICES. YOU UNDERSTAND AND AGREE THAT YOU MAY BE EXPOSED TO CONTENT THAT MIGHT BE OFFENSIVE, ILLEGAL, MISLEADING OR OTHERWISE INAPPROPRIATE, NONE OF WHICH SNAP GROUP LIMITED, SNAP INC. NOR THEIR AFFILIATES WILL BE RESPONSIBLE FOR.
NOTHING IN THESE TERMS WILL EXCLUDE OR LIMIT ANY RESPONSIBILITY WE MAY HAVE TO REMOVE CONTENT IF SO REQUIRED BY THE LAW OF THE COUNTRY WHERE YOU LIVE. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
19. Limitation of Liability
IN NO EVENT WILL THE XEN REBIRTH BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR
CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY XEN REBIRTH ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE. EXCEPT AS PROVIDED IN SECTION 23.4(iii), THE AGGREGATE LIABILITY OF THE XEN REBIRTH ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THIS EUAA, WHETHER IN CONTRACT, TORT.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THIS EUAA THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THIS EUAA. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS EUAA. THE LIMITATIONS IN THIS SECTION 20 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
20. Third Party Disputes.
XEN REBIRTH IS NOT AFFILIATED WITH ANY CARRIER, SERVICE PROVIDER, OR ADVERTISER, AND ANY DISPUTE YOU HAVE WITH ANY CARRIER, SERVICE PROVIDER, ADVERTISER, OR OTHER THIRD PARTY, INCLUDING WITHOUT LIMITATION ANY OTHER USER OF ANY SERVICE, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE XEN REBIRTH (AND OUR OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, JOINT VENTURES AND EMPLOYEES) FROM CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
21. Governing Law.
This EUAA is governed by the laws of the State of Kansas without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under this EUAA, then you and Xen Rebirth agree to submit to the personal and exclusive jurisdiction of the arbitration court in Vienna International Arbitral Centre for the purpose of litigating any dispute.
This EUAA is the entire and exclusive understanding and agreement between you and Xen Rebirth regarding your use of the Service. Except as expressly permitted above, this EUAA may be amended only by a written agreement signed by authorized representatives of all parties to this EUAA. You may not assign or transfer this EUAA or your rights under this EUAA, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign this EUAA at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any
other time after that, nor will a waiver by us of any breach or default of this EUAA, or any provision of this EUAA, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in this EUAA is for convenience only and will have no impact on the interpretation of any provision. If any part of this EUAA is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect. Upon termination of this EUAA, Sections 2, and 4 through 24, and any other accompanying agreements, will survive.
23.Dispute Resolution and Arbitration
In the interest of resolving disputes between you and Xen Rebirth in the most expedient and cost effective manner, you and Xen Rebirth agree that every dispute arising in connection with this EUAA will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of this EUAA, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this EUAA. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS EUAA, YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Despite the provisions of Section 23.1, nothing in this EUAA will be deemed to waive, preclude, or otherwise limit your right to: (a) bring an individual action in small claims court;
(b)pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
Any arbitration between you and Xen Rebirth will: (a) be settled under the Austrian Arbitration Act 2013; (b) be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the Austrian Arbitration Association (“AAA”), as modified by this EUAA; (c) be administered by the AAA; and (d) if an arbitration hearing is held, take place at a mutually- agreed location in Vienna, Austria.
23.4. Notice; Process.
A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified postal Mail service or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Xen Rebirth may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Xen Rebirth must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Xen Rebirth will pay you the highest of: (i) the last written settlement amount offered by Xen Rebirth in settlement of the dispute prior to the arbitrator’s award; or (ii) $1.
Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
23.6. No Class Actions.
YOU AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Furthermore, unless Xen Rebirth agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
23.7. Modifications to this Arbitration Provision.
If Xen Rebirth makes any future change to this arbitration provision, other than a change to Xen Rebirth’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to Xen Rebirth for Notice, in which case your account with Xen Rebirth will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
If Section 23.6 is found to be unenforceable or if the entirety of this Section 23 is found to be unenforceable, then the entirety of this Section 23 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 22 will govern any action arising out of or related to this EUAA.
24. Consent to Electronic Communications.
By agreeing on using the Service, you consent to receiving any electronic communications from us. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.