Posted: July, 2014;
Effective: July, 2014
IF YOU LIVE IN THE UNITED STATES, SECTION 7 CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER. IT AFFECTS YOUR RIGHTS ABOUT HOW TO RESOLVE ANY DISPUTE WITH MICROSOFT. PLEASE READ IT.
Thank you for choosing Microsoft! This is an agreement between you and Microsoft Corporation (or based on where you live one of its affiliates) that describes your rights to use the software and services identified in section 1.1. For your convenience, we have phrased some of the terms of this Agreement in a question and answer format. You should review the entire Agreement because all of the terms are important and together create a legal agreement that, once accepted by you, applies to you.
1. Scope of Agreement, acceptance, and changes
1.1. What services are covered by this Agreement? This Agreement applies to Xbox games, content, applications and services, including Xbox Live, SmartGlass, Games for Windows-Live, Xbox Video, Xbox Music, and Windows Phone Store/Marketplace (including any store provided under the brand of a Windows Phone partner that links to this agreement) including services or software that allow you to stream, download, view or use certain digital content such as music, video, games, applications and other content that Microsoft makes available from time to time (the “Services”). The Services may be accessed from the Xbox One console, the Xbox 360 console, a personal computer, mobile device, portable media player, or other devices, each as authorized by Microsoft (each an “Authorized Device”), or online. When using the Services, you must abide by these terms (“this Agreement”).
1.2. Are there additional terms for using the Services? Our goal is to create a safer and more secure environment so when using the Services, users must abide by the following, all of which are part of this Agreement:
· The Xbox Live usage rules (http://www.xbox.com/usagerules)
· The Microsoft Anti-Spam Policy (http://go.microsoft.com/fwlink/?LinkId=117951); and
· The Code of Conduct (http://www.xbox.com/legal/codeofconduct)
1.3. Are there any additional terms for using the Services or content accessed through the Services? We will identify the provider of each application available as part of or through the Services. Certain third-party games, applications, content, online services, advertising, or events (for example, sweepstakes and tournaments) that are available in or through the Services (“Third-Party Features”) may provide separate or additional agreement terms, privacy policies and other conditions that govern your use of those Third-Party Features (collectively “Additional Terms”).
The Standard Application License Terms at the end of this Agreement are the Additional Terms between you and the provider of the application which apply to your use of an application you download through the Windows Phone Store/Marketplace, unless different license terms are provided with the application. An application may also be subject to further Additional Terms, such as terms of service or privacy policies, if the application provides access to additional Third Party Features.
Microsoft is a party to Additional Terms only when Microsoft is the provider of the applicable Services or application. Microsoft does not license any intellectual property to you as part of any Third-Party Features made available through the Services, and we are not responsible, unless otherwise required by law, for:
· the Third-Party Features;
· your use of the Third-Party Features;
· the content of the Third-Party Features;
· customer support for the Third-Party Features; or
· any warranties or claims relating to the Third-Party Features.
This Agreement and Privacy Statements referenced in this Agreement do not apply to Third-Party Features, and the Additional Terms governing such features do not modify any terms of this Agreement in any way.
Third party scripts or code, linked to or referenced from these Services, are licensed to you by the third parties that own such code, not by Microsoft.
1.4 How do I accept this Agreement? By using or accessing the Services, or by agreeing to these terms where the option is made available to you in the user interface, you agree to abide by this Agreement without modification by you. If you do not agree, you may not use the Services.
1.6 Can Microsoft change this Agreement after I have accepted it? Yes. From time to time, Microsoft may change or amend these terms. If we do, we will notify you, either through the user interface, in an email notification, or through other reasonable means. Your use of the Services after the date the change becomes effective will be your consent to the changed terms. If you do not agree to the changes, you must stop using the Services and cancel any paid Services by following the instructions in section 6.10. Otherwise, the new terms will apply to you.
1.7 What types of changes can I expect to the Services? We continuously work to improve the Services and may change the Services at any time. Additionally, there are reasons why Microsoft may stop providing portions of the Services, including that it's no longer feasible for us to provide it, the technology advances, customer feedback indicates a change is needed, our agreements with third parties no longer permit us to make their material available, or external issues arise that make it imprudent or impractical to continue. We may release the Services or their features in a beta version, which may not work correctly or in the same way the final version may work. We may, among other things: (i) restrict or limit access to the Services; (ii) retrieve information from the Authorized Device and any connected peripheral device used to log onto the Services as necessary to operate and protect the security of the Services, and to enforce this Agreement; and (iii) upgrade, modify, withdraw, suspend, or discontinue any functionality or feature of the Services, or any hardware or software associated with the Services or with an Authorized Device, from time to time without notice. We may do so by the automatic download of related software directly to your Authorized Device, including software that prevents you from accessing the Services, playing pirated games, or using unauthorized hardware peripheral devices.
1.8 How can associated accounts be used? For some parts of the Services, you may be able to set up additional accounts that are dependent on your account (“associated accounts”). You agree to be bound by this Agreement for any associated accounts (including those for minors) you hold now or create later and that you are responsible for all activity that takes place with your Services account and any associated accounts. We may limit who may use your Services account or any associated accounts or the number of devices from which you may access the Services. If you allow or enable a minor to use an associated account, then:
You represent that you are the parent or legal guardian of such minor;
You acknowledge that some features of the Services, and some content available through the Services, may contain or expose users to material unsuitable for minors. You agree to supervise usage by minors whom you permit or enable to use the Services. The Services are not intended for use by children under 13 without adult supervision;
You acknowledge that we offer settings to manage your purchases and limit access to material that may be unsuitable for minors. For example, we offer “Family Settings” on the Xbox 360 console, the Xbox One console, and for some components of the Services. You may view or revise your settings by either going to the console settings application or going to http://www.xbox.com/account. Additional information about our settings is available at http://www.xbox.com/support;
You may receive detailed profile, usage and activity data on minors who have an associated account which will include games played, applications downloaded, videos (TV and movies) that your child watched from Xbox Video, music played, browse and search activity (from within the Internet Explorer app on the console), and enforcement history (including complaints made by or against the associated account user, suspensions and bans from the Services). It may also contain purchase history, friend requests and friends lists (including connections with social networking applications), communications history (including messages and attachments), and the use of applications on the Services (including content viewed).
You are responsible for any material that a user of your Services account accesses or is denied access to (including as a result of your use or non-use of Parental Controls). You acknowledge that use of our settings is not a substitute for your personal supervision of minors that use your Services account.
If you use an associated account, you acknowledge that the holder of the Services account has full control over your associated account. This control includes the right to: (i) end the Services; (ii) close or alter your associated account at any time; (iii) access and modify Parental Controls for your associated account; and (iv) receive notices from us. In some cases, this control also includes the control of purchasing options from your associated account and the ability to request and receive device and Services usage information related to your associated account. We collect profile, usage and activity data related to your associated account and deliver it to the Services account holder. If you are an associated account user, this Agreement applies to your use of the Services, except for the following sections: 1.8 (excluding this paragraph beginning “If you use an associated account …,” which applies to associated account users); 6 (Payment); and section 16 (Notices to Parties).
1.9 Are there things I can’t do on the Services? You must not use the Services to harm others or the Services. For example, you must not:
• Use the Services to harm, threaten, or harass another person, organization, or Microsoft;
• Damage, disable, overburden, or impair the Services (or any network or Authorized Device connected to the Services);
• Assign, resell, or redistribute any part of the Services or access to the Services, including the sale or purchase of an account;
• Share your account password or otherwise authorized a third party to access or use the Services on your behalf unless we provide an approved mechanism;
• Enable unauthorized third party applications to access the Services;
• Use the Services or any content on the Services for commercial purposes;
• Use or attempt to use any unauthorized means to modify, reroute, or gain access to the Services;
• Use any automated process or service (such as a bot, a spider, periodic caching of information stored by Microsoft, or metasearching) to access or use the Services, or to copy or scrape data from the Services;
• Obtain (or try to obtain) any data from the Services or related hardware, except the data that we intend to make available to you; or
• Use the Services or related hardware to design, develop, or update unauthorized software;
• Fraudulently increase the play count or otherwise manipulate the Services in any way, including using a script and/or otherwise automated process;
• Use unauthorized software or hardware to access the Services or modify an Authorized Device in any unauthorized way (e.g., through unauthorized repairs, unauthorized upgrades, or unauthorized downloads). You agree that we have the right to send data, applications or other content to any software or hardware that you are using to access the Services for the purpose of detecting an unauthorized modification and/or disabling the modified device; or
• Attempt to disassemble, decompile, create derivative works of, reverse engineer, modify, further sublicense, distribute, or use for other purposes the Services, any game, application, or other content available or accessible through the Services, or any hardware associated with the Services or with an Authorized Device. If you do, we may cancel your account and your ability to access the Services, and pursue other legal remedies. We may take any legal action we deem appropriate against users who violate our systems or network security, this Agreement or any additional terms incorporated or referenced in it. Such users may also incur criminal or civil liability.
2.1. Who owns the content that I put on the Services? We do not claim ownership of the content you provide on the Services. Your content remains your content. We do not control, verify, or endorse the content that you and others make available on the Services.
2.2. Who can access my content? You control who may access your content. If you share content in public areas of the Services or in shared areas available to others you have chosen, then Microsoft and anyone you have shared content with may use that content. When you give others access to your content on the Services, you grant them free, nonexclusive permission to use, reproduce, distribute, display, transmit, and communicate to the public the content solely in connection with the Services. If the submission is a photograph or other digital image, you also expressly waive any and all rights of privacy and publicity with respect to the image. If you do not want others to have those rights, do not use the Services to share your content.
If you submit a rating or review for an application you download through the Windows Phone Store, you may receive email from Microsoft containing content from the provider of the application. Any such email comes from Microsoft; we do not share your email address with any providers of applications you download through the Windows Phone Store/Marketplace. If you receive such an email, you can use the link provided in the email to request not to receive any more emails of this type.
2.3. What does Microsoft do with my content? You understand that Microsoft may, and you hereby grant to Microsoft and its affiliates, resellers, distributors, service providers, partners, and/or suppliers the right, to use, modify, adapt, reproduce, distribute, publish and display content posted on the Services. These include your name, gamertag, motto, avatar, original content accompanying Game DVR clips, or other information you supply in connection with the content. These rights apply solely to the extent necessary to provide the Services.
2.4. What type of content is not permitted or restricted? Content that violates this Agreement (which includes the Microsoft Anti-Spam Policy and the Code of Conduct) or your local law is not permitted on the Services. Microsoft reserves the right to review content for the purpose of enforcing this Agreement. Microsoft may block or otherwise prevent delivery of any type of content, email, instant message, or other communication to or from the Services as part of our effort to protect the Services or our customers, or otherwise enforce this Agreement. You must respect the rights of artists, authors, inventors and creators. Content may be protected by copyright. People appearing in content may have a right to control the use of their images. If you share content on the Services in a way that infringes others’ copyrights, other intellectual property or proprietary rights, or publicity or privacy rights, you are breaching this Agreement (and violating other rights and possibly the law). You represent and warrant that you have all the rights necessary for you to grant the rights in this section and that the use of the content does not violate any law. We will not pay you for your content. We may refuse to publish your content for any or no reason. We may remove your content from the Services at any time and for any reason, including if: (i) you breach this Agreement; (ii) the content exceeds limits on storage or file size; (iii) the content is provided in an attempt to manipulate ratings or rankings for any application; or (iv) we cancel or suspend the Services.
2.5. What limitations apply to my access and use of Microsoft and third-party content? We may disable access to Microsoft and third-party content associated with your account for any reason. We may also remove or disable games, applications, content, or Services on your Authorized Device in order to protect the Services, application providers, network operators or any other affected or potentially affected parties. Some content and applications available on the Services may be unavailable from time to time or may only be offered for a limited time due to contractual or other limitations, such as the region of your Account. As such, you may not be able to re-download content or applications or re-stream certain content that you have purchased; for example, if you change your account to another region you may need to re-purchase content or applications that were available to you and paid for in your previous region. Except to the extent required by applicable law, we have no obligation to provide a re-download or replacement of any content or application previously purchased. If we receive information from the content owners indicating the dates their content will be unavailable, we will try to share this information with you.
2.6. Who is responsible for the data and content? You are responsible for backing up the data and content that you store on the Services. We may permanently delete your data and content from our servers if the Services are suspended or canceled. We do not have any obligation to return data and content to you after the Services are suspended or canceled. If data and content are stored with an expiration date, we may also delete the data and content as of that date. Deleted data and content may be irretrievable.
3. Services cancellation
3.1. What happens if I do not abide by this Agreement? If you violate this Agreement, we may take action against you including (without limitation) removing your content from the Services, suspending or cancelling your access to the Services, asking you to refrain from certain activities, blocking your console or device from accessing the Services, and/or referring such activity to appropriate authorities. In the event we take action against you for a violation of this Agreement, we may permanently delete, and you may permanently lose, some or all of the information or content associated with your Microsoft account and/or we may cancel your Services in their entirety. Content that is deleted may be irretrievable.
3.2. Are there other ways I could lose access to the Services? Yes. If you sign up for a paid portion of the Services and fail to make an on-time payment, we may suspend or cancel that Service (see section 6.1 for more details).
3.3. How can I terminate the Services? You may terminate the Services at any time and for any reason. You can do this by going to http://support.xbox.com/billing-and-subscriptions/account-management/xbox-live-account-management and following the account closure process. To cancel a paid portion of the Services, see section 6.10. If you are canceling your Services, the quickest means of eliminating your content on the Services is to manually remove it from the various components of the Services (for example, manually delete your email). However, please note that while content you have deleted or that is associated with a closed account may not be accessible to you, it may still remain on our systems for a period of time.
3.4. What happens if my Services are canceled or terminated? If your Services are canceled or terminated (whether by you or us), your right to use the Services stops. If your Services are canceled or terminated, we may permanently delete information associated with your account, including your content, from our servers and we are under no obligation to return any content to you.
4. Privacy. Your privacy is important to us. The Privacy Statements for the Services (http://go.microsoft.com/fwlink/?LinkID=259655) and Windows Phone (http://go.microsoft.com/fwlink/?LinkID=247437) describe how we use and protect your content and any information we collect about you. This Agreement incorporates the Privacy Statements by reference. By using the Services or agreeing to these terms, you consent to Microsoft’s collection, use and disclosure of your content and information as described in the Privacy Statements.
5. Services disruptions and backup
We strive to keep the Services up and running; however, all online services suffer occasional disruptions and outages, and Microsoft isn't liable for any disruption or loss you may suffer as a result. You should regularly backup the content that you store on the Services. Having a regular backup plan and following it can help you prevent loss of your content.
6. If you pay Microsoft, the following terms apply to you
6.1. Charges. If there is a charge associated with a portion of the Services, you agree to pay that charge. The price stated for the Service excludes all applicable taxes and currency exchange settlements, unless stated otherwise. You are solely responsible for paying such taxes or other charges. We may suspend or cancel the Services if we do not receive an on time, full payment from you. Suspension or cancellation of the Services for non-payment could result in a loss of access to and use of your account and its content.
6.2. Your billing account. To pay the charges for a Service, you will be asked to provide a payment method at the time you sign up for that Service. You can access and change your billing account information and payment method on the Billing and Account Management website (https://commerce.microsoft.com). Additionally, you agree to permit Microsoft to use any updated account information regarding your payment method provided by your issuing bank or the applicable payment network. You agree to keep your billing account and contact information current at all times. Changes made to your billing account won't affect charges we submit to your billing account before we could reasonably act on your changes to your billing account.
6.3. Billing. By providing Microsoft with a payment method, you (i) represent that you are authorized to use the payment method that you provided and that any payment information you provide is true and accurate; (ii) authorize Microsoft to charge you for the Services using your payment method; and (iii) authorize Microsoft to charge you for any paid feature of the Services that you choose to sign up for or use while this Agreement is in force. We may bill you (a) in advance; (b) at the time of purchase; (c) shortly after purchase; or (d) on a recurring basis for subscription Services. Also, we may charge you up to the amount you've approved, and we'll notify you in advance of any change in the amount to be charged for recurring subscription Services. We may bill you at the same time for more than one of your prior billing periods for amounts that haven't previously been processed.
6.4. Automatic renewal. Provided that automatic renewals are allowed in your state, we will inform you by email before automatically renewing your Services. Once we have informed you that the Services will be automatically renewed, we may automatically renew your Services and charge you the then current price for the renewal term. We will also remind you that we will bill your chosen payment method for the Services renewal, whether it was on file on the renewal date or provided later. We will also provide you with instructions on how you may cancel the Services. You must cancel the Services before the renewal date to avoid being billed for the renewal.
6.5. Online statement and errors. We will provide you with an online billing statement on the Billing and Account Management website (https://commerce.microsoft.com), where you can view and print your statement. This is the only billing statement that we provide. It's your responsibility to print or save a copy of each online statement and retain such copy for your records. If we make an error on your bill, you must tell us within 120 days after the error first appears on your bill. We will then promptly investigate the charge. If you do not tell us within that time, you release us from all liability and claims of loss resulting from the error and we won't be required to correct the error or provide a refund. If Microsoft has identified a billing error, we will correct that error within 90 days.
6.6. Cooling off period. When you request a Service from us, you agree that we may begin to provide the Services immediately. You won't be entitled to a cancellation or "cooling off" period, except if the law requires a cooling off period. You may cancel paid Services as provided in section 7.10.
6.7. Trial period offers. If you are taking part in any trial period offer, you must cancel the Services by the end of the trial period to avoid incurring new charges, unless we notify you otherwise. If you do not cancel your Services at the end of the trial period, we may charge you for the Services.
6.8. Price changes. We may change the price of the Services at any time and will notify you by email at least 15 days before the price change. If you do not agree to the price change, you must cancel and stop using the Services before the price change takes effect. If there is a fixed term and price for your Service offer, that price will remain in force for the term.
6.9. Refund policies. Unless otherwise provided by law or by a particular Service offer, all purchases are final and non-refundable.
6.10. Canceling the Services. You may cancel the Services at any time, with or without cause. Information and direction on how to cancel your Services is provided on the Billing and Account Management website (https://commerce.microsoft.com). You should refer back to the offer describing the Services as (i) you may not receive a refund at the time of cancellation; (ii) you may be obligated to pay cancellation charges; (iii) you may be obligated to pay all charges made to your billing account for the Services before the date of cancellation; or (iv) you may lose access to and use of your account when you cancel the Services. If you cancel, your Services end at the end of your current Service period or, if we bill your account on a periodic basis, at the end of the period in which you canceled.
6.11. Late payments. You must pay for all reasonable costs we incur to collect any past due amounts. These include reasonable attorneys' fees and other legal fees and costs.
6.12. Payments to you. If we owe you a payment, then you agree to timely and accurately provide us with any information we need to get that payment to you. You are responsible for any taxes and charges you may incur as a result of this payment to you. You must also comply with any other conditions we place on your right to any payment. If you receive a payment in error, we may reverse or require return of the payment. You agree to cooperate with us in our efforts to do this. We may also reduce the payment to you without notice to adjust for any previous overpayment.
6.13. Gift Cards. Redemption and use of gift cards are governed by the terms located at https://commerce.microsoft.com/PaymentHub/Help/Show/toc_link_no_62.
6.14. Internet access Services and charges. You are responsible for paying the fees charged by your Internet access or Wi-Fi providers. Those fees are in addition to the fees you pay us for the Services. If you access the Services through wireless devices (for example, mobile phones, tablets), your wireless carrier may charge fees for alerts, web browsing, messaging, and data usage on the wireless carrier’s network. Check with your carrier to determine the fees that apply. You are solely responsible for any costs you incur to access the Services through any wireless or other communication service.
7. BINDING ARBITRATION AND CLASS ACTION WAIVER IF YOU LIVE IN THE United States
This section applies to any dispute EXCEPT DISPUTEs RELATING TO THE ENFORCEMENT OR VALIDITY OF your, YOUR licensors’, MICROSOFT’S, OR microsoft’s LICENSORS’ INTELLECTUAL PROPERTY RIGHTS. The term “dispute” means any dispute, action, or other controversy between you and Microsoft concerning the Services (including their price) or this Agreement, whether in contract, warranty, tort, statute, regulation, ordinance, or any other legal or equitable basis. “Dispute” will be given the broadest possible meaning allowable under law.
7.1 Notice of Dispute. In the event of a dispute, you or Microsoft must give the other a Notice of Dispute, which is a written statement that sets forth the name, address and contact information of the party giving it, the facts giving rise to the dispute, and the relief requested. You must send any Notice of Dispute by U.S. Mail to Microsoft Corporation, ATTN: LCA ARBITRATION, One Microsoft Way, Redmond, WA 98052-6399, U.S.A. A form is available on the Legal and Corporate Affairs (LCA) website (http://go.microsoft.com/fwlink/?LinkId=245499). Microsoft will send any Notice of Dispute to you by U.S. Mail to your address if we have it, or otherwise to your email address. You and Microsoft will attempt to resolve any dispute through informal negotiation within 60 days from the date the Notice of Dispute is sent. After 60 days, you or Microsoft may commence arbitration.
7.2 Small claims court. You may also litigate any dispute in small claims court in your county of residence or King County, Washington, U.S.A., if the dispute meets all requirements to be heard in the small claims court. You may litigate in small claims court whether or not you negotiated informally first.
7.3 Binding arbitration. If you and Microsoft do not resolve any dispute by informal negotiation or in small claims court, any other effort to resolve the dispute will be conducted exclusively by binding arbitration governed by the Federal Arbitration Act (“FAA”). You are giving up the right to litigate (or participate in as a party or class member) all disputes in court before a judge or jury. Instead, all disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the FAA. Any court with jurisdiction over the parties may enforce the arbitrator’s award.
7.4 Class action waiver. Any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. Neither you nor Microsoft will seek to have any dispute heard as a class action, private attorney general action, or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.
7.5 Arbitration procedure. Any arbitration will be conducted by the American Arbitration Association (the “AAA”) under its Commercial Arbitration Rules. If you are an individual and use the Services for personal or household use, or if the value of the dispute is $75,000 or less whether or not you are an individual or how you use the Services, its Supplementary Procedures for Consumer-Related Disputes will also apply. For more information, see www.adr.org or call 1-800-778-7879. To commence arbitration, submit the form available on the Legal and Corporate Affairs (LCA) website (http://go.microsoft.com/fwlink/?LinkId=245497) to the AAA. You agree to commence arbitration only in your county of residence or in King County, Washington, U.S.A. Microsoft agrees to commence arbitration only in your county of residence. You may request a telephonic or in-person hearing by following the AAA rules. In a dispute involving $10,000 or less, any hearing will be telephonic unless the arbitrator finds good cause to hold an in-person hearing instead. The arbitrator may award the same damages to you individually as a court could. The arbitrator may award declaratory or injunctive relief only to you individually, and only to the extent required to satisfy your individual claim.
7.6 Arbitration fees and incentives.
7.6.1 Disputes involving $75,000 or less. Microsoft will promptly reimburse your filing fees and pay the AAA’s and arbitrator’s fees and expenses. If you reject Microsoft’s last written settlement offer made before the arbitrator was appointed (“Microsoft’s last written offer”), your dispute goes all the way to an arbitrator’s decision (called an “award”), and the arbitrator awards you more than Microsoft’s last written offer, Microsoft will give you three incentives: (i) pay the greater of the award or $1,000; (ii) pay twice your reasonable attorney’s fees, if any; and (iii) reimburse any expenses (including expert witness fees and costs) that your attorney reasonably accrues for investigating, preparing, and pursuing your claim in arbitration. The arbitrator will determine the amount of fees, costs, and expenses unless you and Microsoft agree on them.
7.6.2 Disputes involving more than $75,000. The AAA rules will govern payment of filing fees and the AAA’s and arbitrator’s fees and expenses.
7.6.3 Disputes involving any amount. In any arbitration you commence, Microsoft will seek its AAA or arbitrator’s fees and expenses, or your filing fees it reimbursed, only if the arbitrator finds the arbitration frivolous or brought for an improper purpose. In any arbitration Microsoft commences, Microsoft will pay all filing, AAA, and arbitrator’s fees and expenses. Microsoft won't seek its attorney’s fees or expenses from you in any arbitration. Fees and expenses are not counted in determining how much a dispute involves.
7.7 Conflict with AAA rules. This Agreement governs to the extent it conflicts with the AAA’s Commercial Arbitration Rules and Supplementary Procedures for Consumer-Related Disputes.
7.8 Claims or disputes must be filed within one year. To the extent permitted by law, any claim or dispute to which section 7 applies must be filed within one year in small claims court (section 7.2) or, in arbitration (section 7.3). The one-year period begins when the claim or Notice of Dispute first could be filed. If such a claim or dispute isn't filed within one year, it's permanently barred.
7.9 Rejecting future arbitration changes. You may reject any change Microsoft makes to section 7 (other than address changes) by sending us notice within 30 days of the change by U.S. Mail to the address in section 7.1. If you do, the most recent version of section 7 before the change you rejected will apply.
7.10 Severability. If the class action waiver in section 10.4 is found to be illegal or unenforceable as to all or some parts of a dispute, then section 7 won't apply to those parts. Instead, those parts will be severed and proceed in a court of law, with the remaining parts proceeding in arbitration. If any other provision of section 7 is found to be illegal or unenforceable, that provision will be severed with the remainder of section 7 remaining in full force and effect.
8. NO Warranties
MICROSOFT, AND OUR AFFILIATES, RESELLERS, DISTRIBUTORS, AND VENDORS, MAKE NO WARRANTIES, EXPRESS OR IMPLIED, GUARANTEES OR CONDITIONS WITH RESPECT TO YOUR USE OF THE SERVICES. YOU UNDERSTAND THAT USE OF THE SERVICES IS AT YOUR OWN RISK AND THAT WE PROVIDE THE SERVICES ON AN “AS IS” BASIS “WITH ALL FAULTS” AND “AS AVAILABLE.” MICROSOFT DOESN'T GUARANTEE THE ACCURACY OR TIMELINESS OF INFORMATION AVAILABLE FROM THE SERVICES. To the extent permitted under your local law, we exclude any implied warranties, including for merchantability, satisfactory quality, fitness for a particular purpose, workmanlike effort, and non-infringement. You may have certain rights under your local law. Nothing in this Agreement is intended to affect those rights, if they are applicable.
YOU ACKNOWLEDGE THAT computer and telecommunications systems are not fault-free and occasional periods of downtime occur. We do not guarantee the services will be uninterrupted, timely, secure, or error-free or that CONTENT loss won't occur.
IF YOU ARE USING AN XBOX ONE CONSOLE, AN XBOX 360 CONSOLE, XBOX ACCESSORY, OR KINECT SENSOR OUTSIDE A SUPPORTED COUNTRY(IES), MICROSOFT IS ONLY RESPONSIBLE TO PROVIDE SERVICE IN THE COUNTRY(IES) NAMED IN THE WARRANTY. MICROSOFT IS NOT RESPONSIBLE AND YOUR XBOX OR KINECT PRODUCT MAY BE EXCLUDED FROM WARRANTY COVERAGE AND PRODUCT SUPPORT OUTSIDE THE COUNTRY(IES) NAMED IN THE WARRANTY.
9. Limitation of Liability
If Microsoft breaches this Agreement, you agree that your exclusive remedy is to recover, from Microsoft or any affiliates, resellers, distributors, and vendors, direct damages up to an amount equal to your Services fee for one month (or up to USD$10.00 if the Services are free). You can't recover any other damages OR LOSSES, including, WITHOUT LIMITATION, consequential, lost profits, special, indirect, incidental, or punitive. These limitations and exclusions apply if this remedy doesn't fully compensate you for any losses or fails of its essential purpose or if we knew or should have known about the possibility of the damages. To the maximum extent permitted by law, these limitations and exclusions apply to anything related to this Agreement such as loss of content; any virus affecting your use of the Services; delays or failures in starting or completing transmissions or transactions; claims for breach of contract, warranty, guarantee, or condition; strict liability; negligence; misrepresentation or omission; trespass; violation of statute or regulation; or unjust enrichment. Some or all of these limitations or exclusions may not apply to you if your state, province, or country doesn't allow the exclusion or limitation of incidental, consequential, or other damages.
10. Microsoft contracting entity, court of venue, and applicable law
You are contracting with Microsoft Corporation, One Microsoft Way, Redmond, WA 98052, U.S.A. The laws of the state where you live govern the interpretation of this Agreement, claims for breach of it, and all other claims (including consumer protection, unfair competition, and tort claims), regardless of conflict of law principles, except that the FAA governs all provisions relating to arbitration. You and we irrevocably consent to the exclusive jurisdiction and venue of the state or federal courts in King County, Washington, for all disputes arising out of or relating to this Agreement or the Services that are heard in court (not arbitration and not small claims court).
11. Third-party websites
You may be able to access third-party websites or services via the Services or via applications you download through the Services. Microsoft isn't responsible for third-party websites, services, or material available through those third-party services. You are solely responsible for your dealings with third-parties (including advertisers). Your use of third-party websites or services may be subject to that third-party’s terms and conditions.
If you access content protected with digital rights management (DRM), the DRM software may automatically request media usage rights from a rights server online and download and install DRM updates so that you can play the material.
Sections 4, 6 (for amounts incurred before the end of this Agreement), 8, 9, 10, 16, and those that by their terms apply after it ends will survive any termination or cancellation of this Agreement.
14. Assignment and transfer
We may assign this Agreement, in whole or in part, at any time without notice to you. You may not assign this Agreement or transfer any rights to use the Services.
15. Notices to parties
You consent to Microsoft providing you notifications about the Services or information the law requires us to provide via email to the address that you specified when you signed up for the Services. Notices emailed to you will be deemed given and received when the email is sent. If you do not consent to receive notices electronically, you must stop using the Services. You may notify Microsoft as stated in customer support for the Services.
16. Contract interpretation
This is the entire Agreement between you and Microsoft for your use of the Services. It supersedes any prior Agreements between you and Microsoft regarding your use of the Services. All parts of this Agreement apply to the maximum extent permitted by relevant law. If a court or arbitrator holds that we can't enforce a part of this Agreement as written, we may replace those terms with similar terms to the extent enforceable under the relevant law, but the rest of this Agreement won't change. Section 8.10 says what happens if parts of section 8 (arbitration and class action waiver) are found to be illegal or unenforceable. Section 8.10 prevails over this section if inconsistent with it.
17. No third-party beneficiaries
This Agreement is solely for your and our benefit. It isn't for the benefit of any other person, except for Microsoft’s successors and assigns.
We do not offer customer support for the Services unless provided otherwise in this Agreement or the materials we publish in connection with a particular component of the Services. For more information on customer support, please go to http://www.xbox.com/support or http://www.windowsphone.com.
19. Export Restrictions
Microsoft’s free software and services are subject to United States and other jurisdictions’ export and technology laws and you agree to comply with all such applicable laws and regulations that apply to the software and/or services. United States government permission is required to transfer these free software and services to governments of any embargoed country or certain prohibited parties. Please see the U.S. Department of Treasury website (http://go.microsoft.com/fwlink/?LinkID=243206) for more information. Additionally, paid services are subject to United States export laws and regulations with which you must comply. These laws include restrictions on destinations, end users, and end use. For additional information, see Exporting Microsoft Products website (http://www.microsoft.com/exporting).
20.1 Notices and procedure for making claims of intellectual property infringement. Microsoft respects the intellectual property rights of third parties. If you wish to send a notice of intellectual property infringement, including claims of copyright infringement, please use our procedures for submitting Notices of Infringement (https://www.microsoft.com/info/cpyrtInfrg.aspx). ALL INQUIRIES NOT RELEVANT TO THIS PROCEDURE WILL NOT RECEIVE A RESPONSE.
Microsoft uses the process set out in Title 17, United States Code, Section 512(c)(2) to respond to notices of copyright infringement. In appropriate circumstances, Microsoft may also disable or terminate accounts of users of Microsoft services who may be repeat infringers.
20.2 Notices and procedures regarding intellectual property concerns in Sponsored Sites advertising. Please review our Intellectual Property Guidelines (http://go.microsoft.com/fwlink/?LinkId=243207) regarding intellectual property concerns on our advertising network.
20.3 Copyright and trademark notices. All portions of the Services are Copyright © 2013 Microsoft Corporation and/or its suppliers, One Microsoft Way, Redmond, WA 98052, USA. All rights reserved. We or our suppliers own the title, copyright, and other intellectual property rights in the Services and its content. Microsoft and the names, logos, and icons of all Microsoft products, software, and services may be either trademarks or registered trademarks of Microsoft in the United States and/or other countries. The names of actual companies and products may be the trademarks of their respective owners. Any rights not expressly granted in this Agreement are reserved. Certain software used in certain Microsoft website servers is based in part on the work of the Independent JPEG Group. Copyright © 1991-1996 Thomas G. Lane. All rights reserved. "gnuplot" software used in certain Microsoft website servers is copyright © 1986-1993 Thomas Williams, Colin Kelley. All rights reserved. Portions Copyright © 2012 Netflix, Inc. All rights reserved.
20.4 Notice about the H.264/AVC Visual Standard and the VC-1 Video Standard. The software may include H.264/MPEG-4 AVC and/or VC-1 decoding technology. MPEG LA, L.L.C. requires this notice:
THIS PRODUCT IS LICENSED UNDER THE AVC AND THE VC-1 PATENT PORTFOLIO LICENSES FOR THE PERSONAL AND NON-COMMERCIAL USE OF A CONSUMER TO (A) ENCODE VIDEO IN COMPLIANCE WITH THE STANDARDS (“VIDEO STANDARDS”) AND/OR (B) DECODE AVC AND VC-1 VIDEO THAT WAS ENCODED BY A CONSUMER ENGAGED IN A PERSONAL AND NON-COMMERCIAL ACTIVITY AND/OR WAS OBTAINED FROM A VIDEO PROVIDER LICENSED TO PROVIDE SUCH VIDEO. NONE OF THE LICENSES EXTEND TO ANY OTHER PRODUCT REGARDLESS OF WHETHER SUCH PRODUCT IS INCLUDED WITH THIS SOFTWARE IN A SINGLE ARTICLE. NO LICENSE IS GRANTED OR SHALL BE IMPLIED FOR ANY OTHER USE. ADDITIONAL INFORMATION MAY BE OBTAINED FROM MPEG LA, L.L.C. SEE THE MPEG LA WEBSITE (http://www.mpegla.com).
For clarification purposes only, this notice does not limit or inhibit the use of the software provided under this Agreement for normal business uses that are personal to that business which do not include (i) redistribution of the software to third parties, or (ii) creation of material with the VIDEO STANDARDS compliant technologies for distribution to third parties.
The following additional terms apply to Xbox Live and Games for Windows-Live:
We require certain permissions in order for you to evaluate or use and for us to enable the features and functions of the Xbox Live/Games for Windows-Live service. These features and functions include leaderboards, live-hosted gameplay, achievements, tournaments, and gamer profile sharing. If you evaluate or use or we enable these features and functions, you grant Microsoft and its affiliates, resellers, distributors, service providers, partners, and suppliers (each, a “Microsoft party”) the following permissions: Microsoft parties may use, track, store, copy, distribute, broadcast, transmit, publicly display and perform, and reproduce: (i) your game scores; (ii) your game play sessions; (iii) your presence on the Xbox Live/Games for Windows-Live service; (iv) the time that you spend on or within particular portions of the Xbox Live/Games for Windows-Live service; (v) portions of the Xbox Live/Games for Window-Live service that are displayed on your monitor or screen and the duration of that display; (vi) rankings, statistics, gamer profiles, avatars, and content that you may submit; and (vii) other usage information. These permissions apply with or without attribution to you, your gamertag or avatar. We may use these permissions without notice or compensation to you of any kind. To avoid any confusion, we have the right to make information pertaining to your use of, and gameplay on, Xbox Live available through Games for Windows-Live, and vice versa. If you choose to link your Services account with the account of a Microsoft party on the Xbox Live service (for example, a game publisher or app provider), you agree that Microsoft may share limited account information with that Microsoft party. Such account information may include name, address, email and date of birth but will not include any credit card or other payment information.
In order for Xbox Live features to work in the context of specific games that you choose to use, publishers of those games may have access to the online contact information (such as a screen name) that allows others to contact you (or your associated accounts) on Xbox Live as permitted by your Privacy and Online settings. If you choose to link your Services account with the account of a publisher, that publisher may also have access to the content of in-game communications when you are signed into your account with the publisher. You can manage communications features on Xbox Live for you and your child in your Privacy and Online settings.
You should not expect any level of privacy concerning your use of the live communication features (for example, voice chat, video and communications in live-hosted gameplay sessions) offered through the Xbox Live/Games for Windows-Live service. We may monitor these communications to the extent permitted by law. However, we cannot monitor the entire Services and make no attempt to do so. You understand that others can record and use these communications. Communications in live-hosted gameplay sessions may also be broadcast to others. Some games may use game managers and hosts. Game managers and hosts are not authorized Microsoft spokespersons. Their views do not necessarily reflect those of Microsoft.
If you use voice-enabled services, voice commands may be sent to Microsoft. You consent to Microsoft recording and collecting your voice input for those voice commands to provide the voice-enabled services and improve the quality and accuracy of our voice recognition. We do not use your voice input for any other purpose. We will treat any voice input according to the Privacy Statement (http://go.microsoft.com/fwlink/?LinkID=259655).
The Services may include a virtual, game currency, including, but not limited to gold, coins, cash, or points, that may be purchased from Microsoft using actual monetary instruments if you are a legal adult in your country of residence. The Services may also include virtual, digital items or goods that may be purchased from Microsoft using actual monetary instruments or using game currency. Game currency and virtual goods may never be redeemed for actual monetary instruments, goods or other items of monetary value from Microsoft or any other party.
Other than a limited, personal, revocable, non-transferable, non-sublicenseable license to use the game currency and virtual goods in the Services only, you have no right or title in or to any such game currency or virtual goods appearing or originating in the Services, or any other attributes associated with use of the Services or stored within the Services.
Microsoft may at any time regulate, control, modify and/or eliminate the game currency and/or virtual goods as it sees fit in its sole discretion.
Standard Windows Phone Application License Terms
STANDARD APPLICATION LICENSE TERMS (UPDATED SEPTEMBER 2012)
WINDOWS PHONE STORE/MARKETPLACE
These license terms are an agreement between you and the application provider. Please read them. They apply to the software applications you download from the Windows Phone Store/Marketplace including any updates or supplements for the applications, unless the application comes with separate terms, in which case those terms apply instead. BY DOWNLOADING OR USING THE APPLICATION, YOU ACCEPT THESE TERMS. IF YOU DO NOT ACCEPT THEM, YOU DO NOT HAVE RIGHTS TO AND MUST NOT DOWNLOAD OR USE THE APPLICATION.
The application provider means the entity licensing the application to you, as identified in the Windows Phone Store/Marketplace.
If you accept and comply with these license terms, you have the rights below.
1. INSTALLATION AND USE RIGHTS. You may install and use one copy of the application on up to five (5) Windows Phone enabled devices that are affiliated with the Microsoft account you use to access the Windows Phone Store/Marketplace.
2. INTERNET-BASED SERVICES.
a. Consent for Internet-Based or Wireless Services. The application may connect to Internet-based or wireless services. Your use of the application operates as your consent to the transmission of standard device information (including but not limited to technical information about your device, system and application software, and peripherals) for Internet-based or wireless services. If other terms are provided in connection with your use of the services, those terms also apply.
b. Misuse of Internet-based Services. You may not use any Internet-based service in any way that could harm it or impair anyone else’s use of it or the wireless network. You may not use the service to try to gain unauthorized access to any service, data, account or network by any means.
3. SCOPE OF LICENSE. The application is licensed, not sold. This agreement only gives you some rights to use the application. If Microsoft disables the ability to use the applications on your devices pursuant to your agreement with Microsoft, any associated license rights will terminate. Application provider reserves all other rights. Unless applicable law gives you more rights despite this limitation, you may use the application only as expressly permitted in this agreement. In doing so, you must comply with any technical limitations in the application that only allow you to use it in certain ways. You may not:
• work around any technical limitations in the application;
• reverse engineer, decompile or disassemble the application, except and only to the extent that applicable law expressly permits, despite this limitation;
• make more copies of the application than specified in this agreement or allowed by applicable law, despite this limitation;
• publish or otherwise make the application available for others to copy;
• rent, lease or lend the application; or
• transfer the application or this agreement to any third party.
4. DOCUMENTATION. If documentation is provided with the application, you may copy and use the documentation for your internal, reference purposes.
5. EXPORT RESTRICTIONS. The application is subject to United States export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the application. These laws include restrictions on destinations, end users and end use. For information on Microsoft branded products, see www.microsoft.com/exporting.
6. SUPPORT SERVICES. Contact the application provider to determine if any support services are available. Microsoft (unless Microsoft is the application provider), your phone manufacturer, and your wireless carrier are not responsible for providing support services for the application.
8. APPLICABLE LAW.
a. United States. If you acquired the application in the United States, the laws of the state where you live govern the interpretation of this agreement, claims for breach of it, and all other claims (including consumer protection unfair competition, and tort claims), regardless of conflict of law principles.
b. Canada. If you acquired the application in Canada, the laws of the province where you live govern the interpretation of this agreement, claims for breach of it, and all other claims (including consumer protection, unfair competition, and tort claims), regardless of conflict of law principles.
c. Outside the United States and Canada. If you acquired the application in any other country, the laws of that country apply.
9. LEGAL EFFECT. This agreement describes certain legal rights. You may have other rights under the laws of your country. This agreement does not change your rights under the laws of your country if the laws of your country do not permit it to do so.
10. DISCLAIMER OF WARRANTY. THE APPLICATION IS LICENSED "AS-IS," "WITH ALL FAULTS," AND "AS AVAILABLE." YOU BEAR THE RISK OF USING IT. THE APPLICATION PROVIDER, ON BEHALF OF ITSELF, MICROSOFT, WIRELESS CARRIERS OVER WHOSE NETWORK THE APPLICATION IS PROVIDED, AND EACH OF OUR RESPECTIVE AFFILIATES, VENDORS, AGENTS AND SUPPLIERS (“COVERED PARTIES”), GIVES NO EXPRESS WARRANTIES, GUARANTEES, OR CONDITIONS UNDER OR IN RELATION TO THE APPLICATION. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE APPLICATION IS WITH YOU. SHOULD THE APPLICATION PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING OR REPAIR. YOU MAY HAVE ADDITIONAL CONSUMER RIGHTS UNDER YOUR LOCAL LAWS WHICH THIS AGREEMENT CANNOT CHANGE. TO THE EXTENT PERMITTED UNDER YOUR LOCAL LAWS, COVERED PARTIES EXCLUDE ANY IMPLIED WARRANTIES OR CONDITIONS, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
11. LIMITATION ON AND EXCLUSION OF REMEDIES AND DAMAGES. TO THE EXTENT NOT PROHIBITED BY LAW, YOU CAN RECOVER FROM THE APPLICATION PROVIDER ONLY DIRECT DAMAGES UP TO THE GREATER OF THE AMOUNT YOU PAID FOR THE APPLICATION OR ONE U.S. DOLLAR (US$1.00). YOU AGREE NOT TO SEEK TO RECOVER ANY OTHER DAMAGES, INCLUDING CONSEQUENTIAL, LOST PROFITS, SPECIAL, INDIRECT, INCIDENTAL, OR PUNITIVE DAMAGES FROM ANY COVERED PARTIES.
This limitation applies to:
• anything related to the application, services or content made available through the application; and
• claims for breach of contract, warranty, guarantee or condition; consumer protection; deception; unfair competition; strict liability, negligence, misrepresentation, omission, trespass or other tort; violation of statute or regulation; or unjust enrichment; all to the extent permitted by applicable law.
It also applies even if:
• repair, replacement or a refund for the application does not fully compensate you for any losses; or
• Covered Party knew or should have known about the possibility of the damages.