These Terms of Service (together with Supplemental Terms, defined below, the “Terms of Service” or “Agreement”) govern Your access to and Your purchase, receipt, and use of video games and other Services (defined in Section 1 below) that are provided or made available by Proxima Enterprises Inc. (“Proxima”, “we”, “us”, ”our”).
THESE TERMS OF SERVICE CONTAIN A BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AGREEMENT IN SECTION 15 (DISPUTE RESOLUTION, BINDING ARBITRATION, AND CLASS ACTION WAIVER) THAT REQUIRES YOU AND PROXIMA TO RESOLVE DISPUTES IN BINDING INDIVIDUAL ARBITRATION, AND NOT IN COURT BEFORE A JUDGE OR JURY. ARBITRATION IS NOT REQUIRED IF YOU LIVE IN THE EUROPEAN UNION, ICELAND, LIECHTENSTEIN OR NORWAY (COLLECTIVELY, “EEA”), SWITZERLAND, THE UNITED KINGDOM (THE “UK”), RUSSIA, NEW ZEALAND, OR AUSTRALIA. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER WITHIN 30 DAYS AFTER YOU FIRST ACCEPT THESE TERMS OF SERVICE. SEE SECTION 15(B).
By purchasing, accessing, receiving, or using any Services, You agree to these Terms of Service and represent and affirm that You are at least 18 years of age OR You have reviewed these Terms of Service with Your parent or guardian and Your parent or guardian assents to them on Your behalf and takes full responsibility for Your compliance with them. If You are the parent or legal guardian of a minor, You and the minor agree to these Terms of Service and are responsible for all use of the Services, including purchases, whether the minor’s Account is open now or created later.
“You” and “Your” mean you and, if you are a minor, also your parent or guardian.
You understand that the Services are evolving. Proxima may change these Terms of Service at any time by posting the revised version at https://www.proxima.gg/general-terms-of-service. We may or may not notify You when we do. By continuing to access, use, play, purchase, or receive the Services after the changes become effective, You agree to be bound by the revised Terms of Service. If You do not agree to be bound by the revised Terms of Service, You must stop accessing, using, playing, purchasing or receiving the Services and, if you are a parent or guardian, help Your minor children close their Accounts, memberships, and/or subscriptions (collectively, “Subscriptions”).
1. Services; Photosensitivity and Virtual Reality Warnings
Proxima currently or may eventually offer products and services on PC, Mac, and mobile devices, including, but not limited to, the following: (i) games and other products or services that may You download, install, or play online as a service (sometimes referred to as “games as a service” or “GaaS”), including, but not limited to, Proxima's computer and mobile software game(s) (collectively, “Game(s)”), (ii) access to Content (as defined below), (iii) software, including, but not limited to, third-party software and small amounts of code that might be necessary to facilitate playing online Games that are provided by Proxima as a service offering (collectively, “Software” and together with Content and Games, collectively referred to as “Services”). For purposes of these Terms of Service, references to a “Game” include, unless the context requires otherwise, Content that is accessible by or used or available in the Game or that is applicable to the Game and the Software that facilitates the playing of the Game. You must provide at Your own expense the PC, Mac, mobile device, other equipment, Internet connections, and wireless service plans to access, receive, play, and use the Services. Proxima does not warrant, represent, or guarantee that a Service will be accessible or usable on all equipment or with all wireless or Internet service plans.
Certain Services may require the creation of an account (“Account”). To create an Account, You must have a valid email address and be eligible to use the Service for which You are registering. You must provide truthful and accurate information, and update such information to keep it true, accurate, current, and complete. During the registration process You may be required to create a password. Proxima has the right to restrict, suspend, or terminate Your Account and refuse any and all current or future access to or receipt, purchase, play, or use of Services if Proxima reasonably believes that such information is untrue, inaccurate, not current, or incomplete.
Some Services may require creation of a User Name, such as a “UserID”, “Display Name”, or “Character Name” to represent You in the Services, and which are tied to Your Account (collectively, “User Name(s)”). You may not select the name of another person, any third party's trademark, copyright, or other intellectual property, any name that could mislead other players to believe You to be an employee or agent of Proxima or affiliated companies, or any name that Proxima deems in its sole discretion to be vulgar, offensive, or otherwise violates these Terms of Service. Subject to the Statutory Obligations (as defined below), Proxima reserves the right, in its sole discretion, (a) to delete or alter any User Names tied to an Account; and (b) to restrict, suspend, or terminate Your access to or play or use of any Service or license granted to You, for any reason whatsoever, including, without limitation, any suspected or actual infringement of any trademark or trade name right, copyright, or other intellectual or proprietary right.
By creating an Account, You agree that You do not own the Account, any User Names created on the Account, any Content stored or associated with an Account (such as digital and/or virtual assets, achievements, virtual currency, and other Downloadable Content), or related data associated with the Account.
Accounts are non-transferable under all circumstances. Do not reveal Your Account password to others. You have sole liability for all activities on Your Account and/or under Your User Names. You may be held liable for losses incurred by Proxima or other third parties due to someone else using Your Account, User Name and/or password. Your Account or certain features of Your Account may be restricted, suspended, and/or terminated if someone else uses Your Account, User Name, and/or password to engage in activity that violates these Terms of Service or is otherwise improper or illegal. You agree to promptly notify Proxima if You suspect or become aware of any unauthorized use of Your Account, User Name, password, or personal information, or any other breach of security. We reserve the right to request and/or require You to alter Your password if we believe that Your password is no longer secure.
Proxima takes certain steps to protect against possible breaches of our Services and the personal information we maintain about You. However, no online service, website, or Internet transmission is completely secure. Thus, Proxima cannot and does not guarantee that unauthorized access, hacking, data loss, or other breaches will never occur. We urge You to take steps to keep Your personal information, User Name and security information such as passwords safe.
SECTION 12 OF THESE TERMS OF SERVICE INCLUDE PROVISIONS THAT MAY AFFECT YOUR ABILITY TO COLLECT DAMAGES FROM PROXIMA IF (I) YOU HAVE A DISPUTE WITH PROXIMA AND (II) YOU LIVE IN A JURISDICTION WHERE PROVISIONS EXCLUDING OR LIMITING LIABILITY ARE ENFORCEABLE.
IF YOU LIVE IN THE EEA, THE UK, SWITZERLAND, RUSSIA, AUSTRALIA, OR NEW ZEALAND, PROXIMA ACKNOWLEDGES THAT THERE ARE CERTAIN GUARANTEES, WARRANTIES, TERMS, AND CONDITIONS (INCLUDING WITHOUT LIMITATION IN RESPECT OF REFUNDS AND RETURNS, UNFAIR TERMS AND PROXIMA'S MANDATORY LEGAL DUTIES (SEE THE NEXT PARAGRAPH) AND LIABILITY SUCH AS FOR DEATH OR PERSONAL INJURY DUE TO ITS NEGLIGENCE) IMPOSED BY THE LAWS RELATING TO THE SUPPLY OF GOODS, SERVICES, AND DIGITAL CONTENT UNDER THESE TERMS OF SERVICE, THE SUPPLEMENTAL TERMS, AND ANY GAME TERMS WHICH THE LAWS EXPRESSLY PROVIDE MAY NOT BE EXCLUDED, RESTRICTED, OR MODIFIED, OR MAY ONLY BE LIMITED TO A CERTAIN EXTENT (THE “STATUTORY OBLIGATIONS”).
NOTHING IN THESE TERMS OF SERVICE, THE SUPPLEMENTAL TERMS, AND ANY GAME TERMS EXCLUDES, RESTRICTS, OR MODIFIES THE STATUTORY OBLIGATIONS OTHERWISE THAN ACCORDING TO SUCH LAWS.
UNDER THE STATUTORY OBLIGATIONS PROXIMA IS UNDER A LEGAL DUTY TO SUPPLY TO YOU GOODS, SERVICES, AND DIGITAL CONTENT THAT ARE IN CONFORMITY WITH OUR CONTRACT WITH YOU AND TO DO SO USING REASONABLE SKILL AND CARE.
PHOTOSENSITIVITY WARNING. A very small percentage of individuals may experience epileptic seizures or blackouts when exposed to certain visual images, including without limitation light patterns or flashing lights. Exposure to certain patterns or backgrounds on a computer, television, or other screen, or while playing video games, may induce epileptic seizures or blackouts in these individuals. These conditions may induce previously undetected epileptic symptoms, blackouts, or seizures in persons who have no history of prior seizures or epilepsy. If You, anyone in Your family, or anyone in Your household, have an epileptic condition, have had seizures of any kind, or seizure symptoms, consult a doctor prior to using the Services or playing any Game. If You experience any of the following symptoms while playing any Game, immediately discontinue use and consult Your physician before resuming play: dizziness, altered vision, eye or muscle twitches, jerking or shaking of arms or legs, loss of awareness, disorientation, confusion, any involuntary movement, or convulsions. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND SUBJECT TO THE STATUTORY OBLIGATIONS (AS DEFINED IN SECTION 1), IN NO EVENT SHALL PROXIMA BE LIABLE FOR ANY DAMAGE TO PROPERTY, INJURY, OR DEATH (OR FOR DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES) ARISING OUT OF THE USE OR MISUSE OF A GAME OR ANY RELATED EQUIPMENT. YOU HEREBY RELEASE PROXIMA, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS AND EMPLOYEES FROM ANY AND ALL LIABILITY IN CONNECTION SUCH USE OR MISUSE.
Any use, reproduction, modification, or distribution of Services, including, but not limited to, Games, Content, Software, or any other intellectual property not expressly authorized by these Terms of Service or by an authorized representative of Proxima in writing is strictly prohibited.
Not all features, products, or Services offered or provided may be available to all persons who try to register or in all geographic locations. Proxima reserves the right to limit, in its sole discretion, the provision and quantity of any feature, product, or Service to any person or geographic area.
Any offer for any feature, product or Service is void where such Services are prohibited. You are solely responsible for Your compliance with applicable laws with respect to the Services that You access, purchase, receive, play, or use.
2. Content. This Section 2 shall survive any termination of these Terms of Service.
A. Content Generally. “Content” includes technology, text, forum posts, chat posts, profiles, widgets, messages, links, emails, music, sound, graphics, animations, animation-style videos, content, pictures, code, files, data, characters (and items and attributes associated with characters), and all audio visual or other material appearing on or emanating to and/or from the Services, as well as the design and appearance of any websites under Proxima's control. All Content made available by Proxima, unless explicitly identified as third-party content, is owned by Proxima, its affiliates, and/or their licensors. Except as necessary to use the Services in compliance with these Terms of Service, You may not copy, use or download any Content from a Service unless You are expressly authorized to do so by Proxima in writing. You acknowledge and agree that You shall not reproduce, prepare derivative works based upon, distribute, publicly perform, or transmit any Content for commercial uses unless You obtained the express written consent of an authorized representative of Proxima. For clarification purposes, “derivative works based upon” Services and/or Content are works that are substantially similar, both in ideas and expression, to Services and/or Content. Therefore, if You or someone else creates a work and it is likely to bring to mind either or both Services (such as a Game) and Content, then it is likely that such work is a derivative work and as such may not be used for commercial purposes.
B. User-Generated Content. Content includes user-generated Content that You contribute, provide, post, upload, or otherwise submit to Proxima via a Service (“UGC”), including but not limited to (i) any photographs, images, video, music, sounds, and other data that You contribute, provide, post, upload, or otherwise submit to Proxima via a Service (collectively, “Your UGC”), (ii) Content contributed, provided, posted, uploaded, or otherwise submitted to Proxima by any other person using or via the Services and Content that is not Your UGC, including but is not limited to, Account personas, User Names, customer service chats, communications, or other suggestions, ideas, notes, feedback, concepts or other information concerning the Services, whether generated at Proxima's specific request or despite Proxima's request that You not do so (collectively, “Proxima Owned UGC”). Proxima Owned UGC also includes all Content that You create or develop using Content provided or made available by Proxima, including but not limited to Content that You create or develop that is a derivative work of the Content provided or made available by Proxima. Content and materials that are created, developed or accessible within a Game or Service using Content or tools provided by Proxima (e.g., Content and material created via an in-Game editor and accessible only within the Game) are Proxima Owned UGC and not Game Mods (as defined below).
Proxima Owned UGC does not include (i) any Content that You create or develop if such Content or if the creation or development of such Content would constitute a breach of this Agreement or any Supplemental Terms or would violate any law or (ii) any Content that You create or develop without the use of Content provided or made available by Proxima.
Proxima does not pre-screen UGC and does not endorse or approve any UGC that You and other users may contribute, provide, post, upload, or otherwise submit via the Services. You are solely responsible for Your UGC and may be held liable for UGC that You contribute, provide, post, upload, or otherwise submit.
You may not contribute, provide, post, upload or otherwise submit any UGC that is copyrighted, protected by trademark or trade secret law, or otherwise subject to third-party intellectual property rights, or other rights such as privacy and publicity rights, unless You own those rights free and clear or have written permission from their rightful owner to contribute, provide, post, upload or otherwise submit such UGC and to grant or assign the described license and property rights to Proxima as described below.
As between You and Proxima, You will be the owner of all of Your UGC. To the fullest extent permitted by law, You hereby expressly grant (or You warrant that the owner of Your UGC has expressly granted) to Proxima and its licensors, licensees, and designees a perpetual, irrevocable, worldwide, paid-up, non-exclusive, royalty-free, transferable, sublicensable (through multiple tiers of sublicensees) right and license to exercise all rights of any kind or nature associated with Your UGC in all formats and media, whether existing now or in the future, and to the extent permitted by applicable law You agree not to assert or enforce any moral rights or similar rights You may have which may now or may hereafter be recognized, and all ancillary and subsidiary rights, in any languages now known or not currently known.
Unless otherwise prohibited by applicable law or regulation, by contributing, providing, posting, uploading, or otherwise submitting Proxima Owned UGC or creating Proxima Owned UGC, You acknowledge and agree that all such Proxima Owned UGC is the sole property of Proxima and You hereby assign and agree to assign to Proxima all such Proxima Owned UGC contributed, provided, posted, uploaded, or otherwise submitted by You and such assignment will be effective on the date the Proxima Owned UGC is created. To the extent that Proxima cannot claim exclusive ownership rights in such Proxima UGC by operation of law or pursuant to the assignment above, and to the fullest extent permitted by law, You hereby expressly grant (or You warrant that the owner of such Proxima UGC has expressly granted) to Proxima and its licensors, licensees and designees a perpetual, irrevocable, worldwide, paid-up, non-exclusive, royalty-free, transferable, sublicensable (through multiple tiers of sublicensees) right and license to exercise all rights of any kind or nature associated with such Proxima UGC in all formats and media, whether existing now or in the future, and to the extent permitted by applicable law You agree not to assert or enforce any moral rights or similar rights You may have which may now or may hereafter be recognized, and all ancillary and subsidiary rights, in any languages now known or not currently known.
You further grant each user of the Services a non-exclusive license to access UGC and to use, reproduce, distribute, display and perform such UGC as permitted through the Services, including, but not limited to, Service and/or Game functionality. If so required under applicable law, You will enter into any agreement or undertake any action as deemed necessary by Proxima to effect the licenses described above in this Section.
IN ALL CASES OF UGC UNDER THIS SECTION 2, EXCEPT AS PROHIBITED BY APPLICABLE LAW AND SUBJECT TO THE STATUTORY OBLIGATIONS, PROXIMA RESERVES THE RIGHT (BUT HAS NO OBLIGATION EXCEPT AS REQUIRED BY LAW) TO REVIEW, REMOVE, BLOCK, EDIT, MOVE, OR DISABLE UGC FOR ANY REASON, WITH OR WITHOUT NOTICE, AND HAS NO LIABILITY OF ANY KIND WITH RESPECT TO UGC, INCLUDING WITHOUT LIMITATION WHEN PROXIMA DETERMINES THAT UGC VIOLATES THESE TERMS OF SERVICE. The decision to remove UGC or other Content at any time is in Proxima's sole and final discretion. To the maximum extent permitted by law, Proxima does not assume any responsibility or liability for UGC or for its removal or for any failure to or delay in removing, UGC or other Content.
C. Downloadable Content, Achievements, and Other Virtual Items
Content also includes Content that may be downloaded or downloadable, accessed or accessible from any website authorized by or under Proxima's control (“Downloadable Content”). Downloadable Content includes, but is not limited to, licensed rights granted, awarded, and/or provided to You to access and/or use online or off-line elements or features of certain Services as well as Game updates, unlockable Content, digital and/or virtual assets, rights of use tied to unlock keys or codes, merchandise redemption codes, serial codes and/or online authentication of any kind, in-game achievements, video trailers, Game screenshots, and/or Game-related wallpapers. Downloadable Content may be free, redeemable, and/or purchased, and to the extent permitted by applicable law, Proxima reserves the right to change the price (as applicable) of Downloadable Content at any time, without notice.
Downloadable Content may only be held in Accounts or on devices belonging to legal residents of countries where access to and receipt, play, or use of the Services and Downloadable Content are permitted. Except as granted in a Game's Game Terms, Proxima hereby grants to You a limited, non-exclusive, personal, non-transferable license to use, view, and display Downloadable Content that You have lawfully downloaded. Once You have redeemed Downloadable Content, that Content is not returnable, exchangeable, or refundable for other Content or for cash, or other goods or services unless approved by Proxima or required by applicable law and subject to the Statutory Obligations. Unless otherwise specified by Proxima in writing and unless otherwise prohibited by applicable law and subject to the Statutory Obligations, Downloadable Content may expire upon the earlier of (a) the closure of an Account, or (b) the later of one hundred and eighty (180) days past (i) the most recent Account login by You or (ii) the end of Your Subscription for the applicable Service if such Subscription is not renewed.
You agree that You have no ownership right or title in or to any such Downloadable Content, including, but not limited to, the virtual goods appearing or originating in the Services (such as a Game) or any other attributes associated with any Account or Services. Proxima does not recognize any purported transfers of virtual property executed outside of the Game, or the purported sale, gift, or trade in the "real world" of anything that appears or originates in a Service or a Game. Accordingly, You may not sell, and You may not assist others in selling, Service(s) or in-Game items for real currency, or exchange those items for value outside of the Services. Evidence of any attempt to redeem Downloadable Content for a purported exchange, sale, gift, or trade in the “real world” will result in the immediate suspension or termination of Your Account or Subscription. You acknowledge and agree that all virtual items represent a limited license right for Your personal, private, non-commercial, non-transferable, and limited use governed by these Terms of Service and are not redeemable for any sum of money or monetary value from Proxima at any time. Proxima reserves the right to refuse Your request(s) to acquire Downloadable Content, and reserves the right to limit or block any request to acquire Downloadable Content for any or no reason.
D. Unlinked Accounts
To the extent Proxima in its sole discretion permits You to download or play a Game without having an Account or without linking that Game to Your Account (including without limitation enabling You to purchase, receive, or download any Downloadable Content for such Game), then if You purchase, receive or download Downloadable Content using a device that is not linked to an Account, and Your device is lost, stolen or damaged or Your device or data is hacked, then such Downloadable Content as well as Your UGC, game settings, data, in-game achievements and in-game purchases will be lost and Proxima will not be able to and Proxima will not restore such Downloadable Content or Your UGC, game settings, data, in-game achievements or in-game purchases. SUBJECT TO THE STATUTORY OBLIGATIONS (AS DEFINED IN SECTION 1), PROXIMA SHALL HAVE NO LIABILITY FOR, AND ALL RISK OF LOSS SHALL BE BORNE BY YOU WITH REGARDS TO, ANY DOWNLOADABLE CONTENT, GAME SETTINGS, DATA, IN-GAME ACHIEVEMENTS, AND IN-GAME PURCHASES ASSOCIATED WITH YOUR ACCESS TO OR PURCHASE, RECEIPT, DOWNLOAD, PLAY OR USE OF DOWNLOADABLE CONTENT USING A DEVICE THAT IS NOT LINKED TO AN ACCOUNT.
3. Limited License to Use
Subject to the terms in these Terms of Service and Your compliance with all of the terms and conditions in these Terms of Service, Proxima grants to You, for Your personal, private and non-commercial use only, a non-exclusive, revocable, nontransferable license to access, receive, play, and use Services (including any Content which is made available by Proxima as a part of a Service and then solely in connection with such Service) as set forth in these Terms of Service.
You may not (a) distribute, publicly perform or display, sell, transmit, publish, edit, reproduce, sublicense, rent, lease, loan or otherwise transfer any Game, Software, and/or Content; (b) modify, adapt, reverse engineer or decompile the Software, or otherwise attempt to derive source code from the Software; (c) create any derivative works based upon any Services; (d) otherwise access, receive, play or use any Services except as expressly provided in these Terms of Service; (e) copy or download any Software or Content unless the Content is Downloadable Content or You are otherwise expressly authorized to do so in writing by Proxima; and/or (f) remove, obscure, or alter copyright, patent, trademark, or other proprietary rights notices affixed to any Services. Any commercial use or play of a Service is prohibited absent written permission by an authorized representative of Proxima.
Proxima reserves the right to actively enforce its intellectual property rights to the fullest extent of the law. If You are found to engage or facilitate the engagement of infringing and/or illegal activity, including, but not limited to, making unauthorized copies and/or distributing Services, Proxima may in its sole discretion restrict, suspend, or terminate Your Account or Your access to or use, play or receipt of some or any Services, and/or pursue further legal action against You. Please note that these activities may constitute civil wrongs and/or criminal offenses and Proxima reserves the right to take such action as appropriate in the circumstances. You agree to reimburse Proxima for any liabilities, damages, losses, costs, and expenses incurred by or suffered by Proxima arising from or related to any attempted or actual unauthorized or illegal conduct by You, or through the use of Your Account as more particularly described in Section 13.
Proxima reserves title to the Services and all rights to any Services not specifically granted under these Terms of Service, including without limitation all rights of reproduction, modification, distribution, display, disassembly and decompilation, and all copyright, patent, trademark, trade secret, and other proprietary and intellectual property rights and interests. Your access to and receipt, play, and use of Services is subject to the intellectual property rights of Proxima and except for the express licenses granted in the first paragraph of this Section 3, Proxima does not grant You any licenses or rights to patents or other proprietary or intellectual property rights. Content, Software, and Games are licensed, not sold, to You. You acknowledge and agree that in the case of Games that are made available as a service, (i) You might not have a copy of the Game on Your computer or mobile device as the case may be, (ii) You will access and play the Game via the Internet, and (iii) You must have a persistent Internet connection to access and play the Game.
All Services and all intellectual property rights in the Services are owned by Proxima or its licensors and are protected by United States, other jurisdictions, and international copyright, trade dress, patent, and trademark laws, international conventions, and other laws protecting intellectual property and related proprietary rights. With the exception of the licenses granted to You in the first paragraph of this Section 3, this Section 3 shall survive the termination of these Terms of Service. Proxima may, in its discretion, make available to You one or more application programming interfaces and associated documentation (each an “API”) to allow You to access, create, download, enable, use, or associate Content that modifies or otherwise provides enhanced features to the user interface (“Add-ons”) for a Game. The API and Add-ons are Software for purposes of these Terms of Service. Notwithstanding anything to the contrary in these Terms of Service, if the Supplemental Terms for an API or Add-on directly conflict with specific terms and conditions in these Terms of Service or any other Supplemental Terms, the Supplemental Terms for an API or Add-on will control, but solely for purpose of the specific API and Add-on and not for any other purpose.
4. Beta Tests and Free Trials
In its sole discretion, Proxima may contact You to review and evaluate, or playtest, one or more Games, aspects of Games, or online features prior to commercial release for the purpose of identifying program errors and obtaining feedback. You will be asked to provide to Proxima certain feedback and suggestions regarding Your evaluation of the Games or features. Your participation is subject to these Terms of Service and other applicable Supplemental Terms, such as a beta testing agreement and a non-disclosure agreement. By accepting our invitation and playtesting the Game and/or features, You also agree that to the extent permitted by law: (i) playing an unreleased Game is at Your own risk and You understand that the Game and/or Game features may include known or unknown bugs or other errors, (ii) any value or status indicators that You achieve through any playtest may be erased at any time, including, but not limited to, upon commercial release; and (iii) Proxima has no obligation to make these Games or features available, or available without charge or to fix errors or bugs identified by You.
Beta Test accounts are non-transferable under any circumstances.
For some Services, Proxima may elect to offer You access to a trial Game and/or a trial Subscription. Such Services may require You to sign up for an Account and/or a Subscription under the terms described in these Terms of Service. If You accept a free Game trial or a trial Subscription for a Game that requires a Subscription, and the trial period expires, (i) in the case of access to a trial Game, You will no longer be able to access the Game without purchasing it and (ii) in the case of a trial Subscription, You will no longer receive the benefits of the Subscription unless, where necessary, You update or complete Your information and purchase the Services. Proxima is under no obligation to notify You in advance of the free trial Game access or Subscription expiring and You will be responsible for all charges incurred. Just like paid Subscriptions, Accounts, and Beta Test accounts, trial Game access and Subscriptions are non-transferable under any circumstances.
5. Paid Services
Some Services require payment of a fee. You must pay the then-current applicable fees to access, play, participate in, or receive those Services, and You may be required to have an Account. For information about fees for particular Services, including Subscription fees, You should visit the particular Service's product web page or contact us at firstname.lastname@example.org. The fees displayed for Services are subject to change at any time and from time to time without notice except as set out below. Proxima reserves the right to change Proxima's fees or billing methods at any time and, in the case of periodic fees, upon notice to You through Your Account or through the Services as set out below. If any change is unacceptable to You, You may cancel Your Account at any time (see Section 7 below) with such termination being effective at the end of the then-current term or rolling period for which You previously paid, but Proxima will not refund any fees or prorate fees except where a refund is required by applicable law and subject to the Statutory Obligations (as defined in Section 1).
FEES ARE PAYABLE IN ADVANCE AND, EXCEPT AS OTHERWISE REQUIRED BY APPLICABLE LAW AND SUBJECT TO THE STATUTORY OBLIGATIONS AND THIS TERMS OF SERVICES, ARE NOT REFUNDABLE IN WHOLE OR IN PART.
If Your access to or receipt, play or use of the Services is subject to applicable governmental charges (including but not limited to sales tax, value added tax (VAT), goods and service tax (GST) or other taxes), then You must pay for those charges. Your total price may include such governmental charges or such governmental charges may be separately identified from Your paid Service(s) fees as shown during the payment process. Failure to invoice You for any such charges does not relieve You of the liability to pay such charges.
As the Account holder, You are responsible for all charges incurred on Your Account, including, but not limited to, applicable taxes, and the fees for all purchases made by You or anyone that uses Your Account, including, but not limited to, Your family or friends.
You must pay fees using the payment methods made available by Proxima for the particular Service (the “Payment Methods”) and You agree to the terms and conditions applicable to each Payment Method You choose. Payment Methods may vary by Service and the terms will be in Your Account details, or if You are making a purchase on a device without using an Account, such details will be provided at the time of purchase. When You provide credit card or other Payment Method information to make a purchase from Proxima, You represent to Proxima that You are the authorized user of the credit card or other Payment Method. You must provide current, complete, and accurate information for Your billing account. You must promptly update all information to keep Your billing account current, complete, and accurate (such as a change in billing address, credit card number, or credit card expiration date), and You must promptly notify Proxima if Your credit card or other Payment Method is canceled (for example, for loss, theft, or expiration).
Some Payment Methods require or permit You to choose automatic renewal. In such cases, You are agreeing to permit Proxima to automatically charge Your credit card, bank card, debit card or other Payment Method associated with Your Account for an automatic renewal of Your current preferences to the applicable Service. You may cancel at any time with the termination being effective at the end of the then-current term or rolling period by revising Your selection in Your Accounts page, or contacting us at email@example.com. To sign up for automatic renewal, You must keep a valid credit card number or other Payment Method number or information associated with Your Account. Your payment will automatically renew on the expiration date of the then-current term or rolling period at a fee no greater than Proxima's then-current price at the time of renewal, excluding any promotional and discount pricing, unless You terminate. If You have registered for or requested an automatic renewal, You agree that Proxima may, to the extent permitted by applicable law, charge You or continue charging You on an automatic recurring basis for Your current preferences unless You terminate, which will become effective at the end of Your then-current term or rolling period. If You have registered for or requested an automatic renewal but do not have a valid credit card and/or other valid Payment Method information on file, You will not be able to continue to receive the benefits (e.g., resume Game play or any paid Services usage) without updating Your Payment Method information. Proxima reserves the right to utilize third-party credit card updating services to obtain current expiration dates on credit cards provided by You to Proxima. Customers who use a third-party Payment Method may incur additional payment processing fees charged by such third-party to its customers, and may not be able to automatically renew Subscriptions.
6. Availability of Services and Content; Game Maintenance, Patches, Updates; Termination of Services
Proxima does not guarantee that any Services will be accessible or available at all times, in all countries and/or all geographic locations, at any given time, or that Proxima will continue to offer any particular Services for any particular length of time. Except as prohibited by applicable law and subject to the Statutory Obligations, Proxima reserves the right to change and/or update Content without notice to You. Proxima also reserves the right to refuse Your request(s) to acquire Content, and to limit or block any request to acquire Content, including, but not limited to, Downloadable Content, for any reason.
Proxima may patch, update, or modify a Service at any time with or without notice to You. Notwithstanding the foregoing, Proxima has no obligation to make available any patches, updates, or modifications or correct any errors or defects in the Services. Proxima makes no guarantees about the persistence or availability of any User Names or other personas at any time and assumes no liability for lost or deleted Account data. Except as prohibited by applicable law and subject to the Statutory Obligations, You agree that Proxima will not be liable for any interruption of the Services, delay or failure to perform, any loss of Content and/or Account data resulting from any causes whatsoever. Proxima reserves the right to offer new Services, change and/or discontinue certain Services at any time in its sole discretion.
Except as prohibited by applicable law and subject to the Statutory Obligations, Proxima may restrict, suspend, or terminate Your access to and receipt, play or use of some or any Services at any time. Should Proxima make a material change to the Services, it will provide You notice within the time period specified when You joined the particular Service, or if no time period for notice of material changes was specified, then within a commercially reasonable amount of time. If You do not agree to the changes to the Services, you may cancel at any time pursuant to these Terms of Service with such termination being effective at the end of the then-current term or rolling period for which You previously paid, but Proxima will not refund any fees or prorate fees when a refund is required by applicable law and subject to the Statutory Obligations. Any such notice will be provided to You via email, posted on the applicable product or Service and/or via Your Account, in Proxima's sole discretion.
In response to a violation of these Terms of Service, Proxima may, at its sole discretion, issue You a warning, suspend or restrict certain features of Your Account (including, but not limited to, User Names), selectively modify or remove or revoke Downloadable Content at an Account and/or device level, immediately terminate any and all Accounts that You have established and/or temporarily or permanently ban Your Account, device, and/or machine from accessing, receiving, playing or using all or certain Services. Proxima may terminate Your access to and/or receipt, play or use of the Services (i) for violating these Terms of Service; (ii) if Proxima, in its sole discretion, deems that Your information is untrue, inaccurate, or incomplete; (iii) if Your access to or receipt, play or use of such Services infringes, or is suspected of infringing, another's rights or any intellectual property; or (iv) if You or Your Account reflects inappropriate Content and/or violates these Terms of Service. Any and all Content will be considered forfeit immediately in the event of any cancellation, closure, or termination of Your Account by Proxima.
If Proxima terminates an Account, it may terminate other Accounts that share the same characteristics, such as the name on the Account, email address, mailing address, Internet Protocol address, device identifier, or credit card number or other Payment Method. Proxima reserves the right to use any means necessary and permitted under applicable law to identify and terminate Accounts.
You acknowledge that in such circumstances, Proxima is not required to provide You notice before taking action to restrict, suspend, or terminate Your access to or receipt, play, or use of Services, and/or Your Account. If Proxima terminates Your Account, You may not access, receive, play, or use any Service again without Proxima's express written permission. Proxima reserves the right to refuse to keep Accounts for, and provide Services to, any individual. You may not allow individuals whose Accounts have been terminated by Proxima to use Your Account.
If Your Account or Your access to or receipt, play, or use of a Service, is terminated or suspended and/or if any Downloadable Content is selectively removed, revoked or garnished from Your Account and/or if Your device is temporarily or permanently banned from accessing, receiving, playing, or using some or all of the Services, no refund will be granted, no Downloadable Content will be credited to You or converted to cash or other forms of reimbursement, and You will have no further access to or receipt or use of Your Account and/or Downloadable Content associated with Your Account or the particular Service except where any action has been taken against Your Account or device in error and subject to the Statutory Obligations. If You believe that any action has been taken against Your Account or device in error, please contact us at firstname.lastname@example.org.
7. Your Right to Cancel
You have the right to cancel Your Account or your access to a particular Service at any time. Additional cancellation terms in respect of a particular Subscription may be specified when You become a member, in Your Account information, or in notices for Subscription renewals. Generally, when You cancel a Subscription the cancellation will be effective at the end of Your then-current Subscription term or rolling period.
Proxima reserves the right to collect fees, applicable governmental charges (including sales tax, value added tax (VAT), goods and service tax (GST) and other taxes), or costs incurred before You cancel. You are also responsible for any amounts owed to third-party vendors or Content providers before Your cancellation. Any delinquent or unpaid fees and other unresolved issues must be settled before You establish a new Account.
8. Rules of Conduct
Except as prohibited by applicable law and subject to the Statutory Obligations, Proxima has the right, in its sole discretion, to modify, restrict, suspend, or terminate Your access to or Your receipt, play or use of the Services for various reasons, including without limitation because (i) Your information is untrue, inaccurate, or incomplete; (ii) Your activities infringe, or are suspected to infringe, another's rights or any intellectual property; (iii) Proxima in its sole discretion determined that You or Your Account reflects inappropriate Content; or (iv) You or activities taken under or with Your Account violate these Terms of Service. Other Supplemental Terms pertaining to Your Service and/or Game, such as a Code of Conduct, provide guidance on behavior that Proxima deems to be inappropriate and specify restrictions on Your Account, Your access to or receipt, play, or use of the Game, or Your participation in the Services.
You agree not to access, receive, play, or use any Service to, without limitation:
Take any action or upload, post, transmit, promote, or distribute any illegal Content;
Take any action or upload, post, transmit, promote, or distribute any Content that infringes or violates any third-party rights;
Engage in any activity that exploits, harms, or threatens to harm children;
Harass, stalk, threaten, embarrass, spam or do anything else to another user of any Services that is unwanted;
Take any action or upload, post, transmit, distribute, or communicate Your or any person's real-world personal information;
Impersonate any person or entity, including, but not limited to, Proxima, or falsely state or otherwise misrepresent Your affiliation with a person or entity;
Take any action, organize, transmit any Content, effectuate or participate in any activity, group, or guild that is harmful, tortuous, abusive, hateful (including “hate speech”), terrorist or violent extremist content, racially, ethnically, religiously, gender-based, or otherwise offensive, obscene, threatening, bullying (including advocating violence against others), vulgar, sexually explicit, defamatory, libelous, infringing, invasive of personal privacy or publicity rights, encourages conduct that would violate a law or is, in a reasonable person's view, objectionable and/or deemed to be in the sole discretion of Proxima inappropriate;
Promote, upload, transmit, encourage, or take part in any activity involving hacking, cracking, phishing, taking advantage of exploits or cheats and/or distribution of counterfeit software. In an effort to continuously improve the Services, You and other players discovering exploits, cheats, cracks or other inconsistencies are required to report them to Proxima;
Take any action or upload, post, transmit, promote, or distribute any Content or software code that may contain a Trojan horse, virus, worm, spyware, time bombs, cancelbots, corrupted data, malware, malicious code, or other computer programs that may damage, interfere with, intercept, expropriate or disrupt the Services, including, but not limited to, any Game(s), personal information, or confidential or proprietary information;
Take any action that permits You to collect personal information or aggregated and/or anonymized statistics of others;
Engage in disruptive behavior in any area or aspect of the Services;
Attempt to get a password, Account information, or other private information from anyone else. As a reminder, Proxima employees will never ask You to reveal Your password.
Proxima may report certain incidents to law enforcement and other authorities, including, but not limited to, disclosing Account information, in the good faith belief that it is required to do so by law, or that doing so is reasonably necessary to comply with legal processes; when it deems it necessary or appropriate to disclose certain information to law enforcement and other authorities, such as to investigate actual or suspected fraud or violations of law, breaches of security, or breaches of these Terms of Service and/or Supplemental Terms; to respond to any claims; or to protect the rights, property, or personal safety of Proxima, its customers, or the public.
Unless otherwise specified, there is no requirement or expectation that Proxima will monitor or record any online activity on the Services. Proxima reserves the right, but is under no obligation, to monitor communications within, through or across the Services. Proxima also reserves the right to access and/or record any online activity on the Services, and You give Proxima Your express consent to access and record Your activities.
This includes, but is not limited to, Your consent to access, record, and turn over any online activity where Proxima believes that disclosure is necessary to comply with the law, to combat fraud and/or to comply with a judicial proceeding, court order, or legal process served on Proxima or to comply with an order from a government entity or other competent authority, or when Proxima has reason to believe that a disclosure is necessary to address potential or actual injury or interference with Proxima's, Your, or another user's rights, property, or operations, or to protect others who may be harmed or may suffer loss or damage. Subject to the Statutory Obligations, You agree that in its sole discretion and without notice, Proxima may remove Content, including Your data, from any Service, take whatever steps it deems necessary to abridge or prevent behavior of any sort in Services, including, but not limited to, in any Game(s) and that Proxima has no liability for Your or any third party's violation of these Terms of Service.
If You encounter another user who is violating these Terms of Services please report this activity to Proxima by contacting us at email@example.com.
9. Your Use of the Services
You further agree not to access, create, or provide any other means through which the Services, including, but not limited to, any Game(s), may be used or accessed by others, such as through server emulators. You may not participate, take part in, initiate, or engage in actions that impose an unreasonable or disproportionate load on the infrastructure hosting the Game(s) and/or Services.
You agree not to use any hardware or software or any other method of support that is not authorized by Proxima or that may in any way influence or advantage Your playing abilities or influence or disadvantage the playing ability of others, or influence or advantage Your access to or receipt, play or use of the Services or influence or disadvantage the access of others. Third-party tools, the use of bots, speed hacks, deep-link, page-scrape, algorithms or other programs that copy or monitor any part of the Services (including, but not limited to, the Game(s) and/or forums), software that transmits, manipulates, or distributes (including, but not limited to, “mirroring”) the data stream or any aspect of the Services to another computer, server websites or other publication or distribution media, or software that permits You to access, receive, play or use Services without human input are examples of methods not authorized by Proxima.
You acknowledge that You do not have the right to create, publish, distribute, or create derivative works from or use any software programs, utilities, applications, emulators, or tools derived from or created for certain Content (such as Game(s)), except as authorized in writing by an authorized Proxima representative. You may use the Software to the extent expressly permitted by these Terms of Service and any applicable Game Terms.
Please note that any violation of these Terms of Service may constitute civil wrongs and/or criminal offenses and Proxima reserves the right to take such action as Proxima in its sole discretion deems appropriate in the circumstances.
Proxima in its sole discretion may implement various forms of filtering, blocking, or monitoring of IP addresses or proxies used to use, play, receive or access the Services, including without limitation blocking or filtering measures that restrict Your ability to use, receive, play, or access the Services. Proxima in its sole discretion may restrict access to or use, play, or receipt of certain features or Services to any person, jurisdictions, territories, or geographic areas.
10. Third-Party Sites and Products
This Section 10 shall survive the termination of these Terms of Service.
Services may be linked to unaffiliated third-party websites or applications (collectively, “Third-Party Sites”). Some of these Third-Party Sites permit You to log in using their existing account and credentials. Certain Services may allow You to interact and/or conduct transactions with such Third-Party Sites, and, if applicable, allow You to configure Your privacy settings in Your Third-Party Site account to permit Your activities in connection with the Services to be shared with Your contacts in Your Third-Party Site account. In certain situations, You may be transferred to a Third-Party Site through a link but it may appear that You are still using the Services. These Third-Party Sites might require You to comply with the terms and conditions, user's guides, and privacy policies of such Third-Party Sites. For example, certain information you provide while engaging with the Service may be collected and processed directly by OpenAI and/or Meta; OpenAI and Meta may use your information in accordance with their privacy policies, available at https://openai.com/policies/privacy-policy and https://llama-2.ai/privacy-policy/, respectively, and their protocols for collecting and using information to develop its language models, including for use in GPT 3.5 and and/or Llama 2, as described at https://help.openai.com/en/articles/7842364-how-chatgpt-and-our-language-models-are-developed and https://ai.meta.com/llama/#resources, respectively
Some of these Third-Party Sites may charge separate fees, which are not included in any Subscription or other fees that You may pay under these Terms of Service. Any separate charges or obligations that You incur in Your dealings with third parties and Third-Party Sites are Your responsibility and may subject You to additional or different terms and restrictions. You are always responsible for having a suitable Internet connection to access, play, receive, or use Services made available or accessed via the Internet and for any fees charged for Internet service, telephone services, wireless services, data services, and other fees that You might incur when registering for or using any Services. You acknowledge and agree that in certain circumstances Your wireless carrier or Internet service provider may charge You fees for data, messaging and/or other wireless access in connection with Your registration for, access to, and/or receipt, play, and use of a Service. You should check with Your wireless service provider and Internet service provider to see if there are any such fees that apply to You or the Service. YOU ARE SOLELY RESPONSIBLE FOR ANY COSTS YOU INCUR TO ACCESS, RECEIVE, PLAY, OR USE SERVICES FROM YOUR HARDWARE DEVICES.
Proxima provides access to the Third-Party Sites to You as a convenience, and Proxima does not verify, make any representations or warranties, or take responsibility for any such Third-Party Sites. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO THE STATUTORY OBLIGATIONS, YOU AGREE THAT PROXIMA SHALL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY GOODS, SERVICES, INFORMATION, RESOURCES AND/OR CONTENT AVAILABLE ON OR THROUGH ANY THIRD-PARTY SITES AND/OR THIRD-PARTY DEALINGS OR COMMUNICATIONS, OR FOR ANY HARM RELATED THERETO, OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OR RELIANCE ON THE CONTENT OR BUSINESS PRACTICES OF ANY THIRD PARTY. PROXIMA DOES NOT ENDORSE, WARRANT, OR GUARANTEE ANY THIRD-PARTY SITES OR ANY GOODS, SERVICES, INFORMATION, RESOURCES AND/OR CONTENT OFFERED BY THIRD-PARTIES THROUGH PROXIMA OR ANY THIRD-PARTY SITES AND WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY PROVIDERS OF THIRD-PARTY SITES OR GOODS, SERVICES, INFORMATION, RESOURCES AND/OR CONTENT OF THIRD-PARTIES.
11. Disclaimer of Warranty
TO THE EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO THE STATUTORY OBLIGATIONS PROXIMA AND ITS LICENSORS DO NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR GUARANTEES TO YOU REGARDING ANY SERVICE, INCLUDING, BUT NOT LIMITED TO, THE QUALITY, FUNCTIONALITY, AVAILABILITY, ACCESSIBILITY OR PERFORMANCE OF A SERVICE. EACH SERVICE IS PROVIDED TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS.
IF YOU ARE NOT SATISFIED WITH THE QUALITY, FUNCTIONALITY, AVAILABILITY, ACCESSIBILITY OR PERFORMANCE OF A SERVICE, YOU MAY CANCEL YOUR ACCOUNT OR ACCESS TO THE SERVICE . AS NOTED IN THESE TERMS OF SERVICE, WHEN YOU CANCEL YOUR ACCOUNT OR ACCESS TO A SERVICE YOU WILL NOT BE ENTITLED TO RECEIVE A REFUND OF THE FEES FOR THAT SERVICE UNLESS APPLICABLE LAW SUBJECT TO THE STATUTORY OBLIGATIONS (AS DEFINED IN SECTION 1) REQUIRES A REFUND BE GIVEN.
IN SOME JURISDICTIONS CERTAIN WARRANTIES MAY AUTOMATICALLY ARISE OR APPLY UNLESS THESE WARRANTIES ARE DISCLAIMED. SUBJECT TO THE STATUTORY OBLIGATIONS, PROXIMA AND ITS LICENSORS DISCLAIM AND EXCLUDE ALL SUCH WARRANTIES EITHER EXPRESS, IMPLIED OR STATUTORY, IF AND TO THE EXTENT PERMITTED BY LAW, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, DATA ACCURACY, OR ACCURACY OF ANY OTHER INFORMATION OR CONTENT, SYSTEM INTEGRATION, AND QUIET ENJOYMENT WITH RESPECT TO ALL SERVICES AND ALL IMPLIED WARRANTIES THAT ARISE FROM COURSE OF DEALING OR USAGE OF TRADE.
THE FOLLOWING PROVISIONS OF THIS SECTION 11 ONLY APPLY TO THE EXTENT THEY ARE NOT CONTRARY TO THE STATUTORY OBLIGATIONS.
NO WARRANTY IS GIVEN ABOUT THE QUALITY, FUNCTIONALITY, COMPLIANCE WITH SPECIFICATIONS, SUITABILITY, OPERABILITY, CONDITION, NON-INTERFERENCE, WORKMANSHIP, AVAILABILITY OR PERFORMANCE OF THE SERVICES, ABSENCE OF DEFECTS, WHETHER LATENT OR PATENT, OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON A PROXIMA WEBSITE. PROXIMA DOES NOT ASSUME LIABILITY FOR ANY INABILITY BY YOU TO ACCESS, RECEIVE, PLAY, OR USE ANY SERVICES. PROXIMA DOES NOT GUARANTEE THAT YOU WILL BE ABLE TO ACCESS, RECEIVE, PLAY OR USE SERVICES AT TIMES OR LOCATIONS OF YOUR CHOOSING, OR THAT PROXIMA WILL HAVE ADEQUATE CAPACITY FOR SERVICES AS A WHOLE OR IN ANY SPECIFIC GEOGRAPHIC AREA. IN STATES OR JURISDICTIONS THAT PROHIBIT THE DISCLAIMER OF IMPLIED WARRANTIES OR THE EXCLUSION OF CERTAIN WARRANTIES, PROXIMA SHALL DISCLAIM AND EXCLUDE WARRANTIES TO THE MAXIMUM EXTENT PERMITTED BY LAW AND THE DURATION OF ANY SUCH WARRANTY THAT MAY NOT BE DISCLAIMED SHALL BE FOR THE SHORTEST DURATION PERMITTED BY APPLICABLE LAW. THIS SECTION 11 SHALL SURVIVE THE TERMINATION OF THESE TERMS OF SERVICE.
12. Limitation of Liability; Limited Remedies
A. General Information. THE LAWS IN MANY JURISDICTIONS ALLOW PROXIMA TO LIMIT ITS LIABILITY FOR DAMAGES. THIS SECTION LIMITS THE LIABILITY OF PROXIMA AND ITS LICENSORS. HOWEVER, THIS SECTION 12 ONLY APPLIES TO THE EXTENT PERMITTED BY APPLICABLE LAW. IF APPLICABLE LAW DOES NOT ALLOW PROXIMA AND ITS LICENSORS TO LIMIT ITS/THEIR LIABILITY IN CERTAIN CIRCUMSTANCES, THEN THE LIMITATIONS IN THIS SECTION WILL NOT APPLY TO THOSE CIRCUMSTANCES.
B. Limited Remedy. YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH PROXIMA OR ITS LICENSORS ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE OR ANY SERVICE IS TO STOP USING, PLAY, RECEIVING OR ACCESSING THE SERVICE AND CANCEL YOUR ACCOUNT AND/OR ACCESS TO A SERVICE.
C. No Liability for Conduct, Communications or Content. YOU AGREE THAT PROXIMA, ITS LICENSORS, LICENSEES AND AFFILIATES ARE NOT LIABLE TO YOU FOR ANY ACT OR FAILURE TO ACT BY THEM OR ANY OTHER PERSON REGARDING CONDUCT, COMMUNICATION OR CONTENT ON OR IN THE SERVICES.
D. Liability Cap. IN NO CASE SHALL THE AGGREGATE CUMULATIVE LIABILITY OF PROXIMA OR ITS AFFILIATES , LICENSORS, LICENSEES, CONTENT PROVIDERS, AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, CONTRACTORS, AGENTS, OR VENDORS, (COLLECTIVELY, “PROXIMA AFFILIATES”) FOR DAMAGES TO YOU ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE, ANY SERVICE, OR YOUR ACCESS TO, OR YOUR PLAY, RECEIPT, OR USE OF ANY SERVICE EXCEED USD$100.00.
E. Direct Damages. SUBJECT TO SECTION 12(D) ABOVE, PROXIMA WILL COMPENSATE YOU FOR ANY REASONABLY FORESEEABLE LOSS OR DAMAGE YOU CAN SHOW THAT YOU HAVE SUFFERED AS A RESULT OF (I) PROXIMA'S FAILURE TO CARRY OUT ITS OBLIGATIONS UNDER THESE TERMS OF SERVICE TO A REASONABLE STANDARD OR (II) PROXIMA'S BREACH OF ANY DUTIES IMPOSED ON PROXIMA BY LAW (INCLUDING, BUT NOT LIMITED TO, IF PROXIMA CAUSES DEATH OR PERSONAL INJURY BY PROXIMA NEGLIGENCE), UNLESS THE FAILURE OR BREACH IS ATTRIBUTED TO: (A) YOUR OWN FAULT IN WHOLE OR IN PART; (B) A THIRD PARTY UNCONNECTED WITH PROXIMA PERFORMANCE OF THESE TERMS OF SERVICE; OR (C) ANY OTHER EVENTS WHICH NEITHER PROXIMA OR PROXIMA AFFILIATES COULD HAVE REASONABLY FORESEEN OR FORESTALLED EVEN IF PROXIMA OR THEY HAD TAKEN REASONABLE CARE. AS THE SERVICES ARE FOR CONSUMER USE ONLY, PROXIMA AND PROXIMA AFFILIATES WILL NOT BE LIABLE FOR ANY BUSINESS OR COMMERCIAL LOSSES OF ANY KIND OR NATURE, SUCH AS LOST DATA, LOST PROFITS, OR BUSINESS INTERRUPTION.
OTHER THAN AS PROVIDED IN THE FOREGOING PARAGRAPH AND CONSISTENT THEREWITH, PROXIMA, PROXIMA AFFILIATES, AND RESELLERS WILL NOT BE LIABLE TO YOU FOR ANY OTHER LOSS OR DAMAGES, INCLUDING WITHOUT LIMITATION, ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF DATA OR CONTENT, DAMAGE CAUSED TO YOUR SOFTWARE, COMPUTER, MOBILE DEVICE OR OTHER HARDWARE, DATA BREACH AND SECURITY BREACH), REGARDLESS OF THE LEGAL THEORY ON WHICH ANY SUCH DAMAGES MAY BE BASED, INCLUDING WITHOUT LIMITATION THEORIES OF BREACH OF CONTRACT, TORT AND NEGLIGENCE, AND WHETHER OR NOT PROXIMA HAS BEEN ADVISED OF OR IS AWARE OF THE POSSIBILITY OF ANY SUCH DAMAGES.
F. Application. THE LIMITATIONS SET FORTH IN THIS SECTION 12 SHALL APPLY EVEN IF A LIMITED REMEDY SET FORTH IN THESE TERMS OF SERVICE FAILS OF ITS ESSENTIAL PURPOSE.
THIS SECTION 12 SHALL SURVIVE THE TERMINATION OF THESE TERMS OF SERVICE.
This Section 13 shall survive any termination of these Terms of Service.
If (i) You misuse any Service or breach these Terms of Service; (ii) You improperly or illegally access, play, receive, or use a Service or Your Account, including without limitation, the use of Your Account by anyone other than Yourself; or (iii) any contributions, actions or omissions by You in connection with Your access to, or play, receipt, or use of Services, including without limitation any UGC You contribute, results in Proxima incurring any liabilities, damages, losses, costs and expenses (including without limitation attorneys' fees and court costs), then You agree to reimburse Proxima and its affiliates and other participants of the Services from all such liabilities, damages, losses, costs and expenses.
If a third party sues Proxima for any of Section 13 (i) - (iii) above, to the extent permitted by applicable law, Proxima reserves the right to control the defense and settlement of such third-party lawsuit, and You agree to reimburse Proxima for the cost of the defense, including, but not limited to, reasonable and documented attorneys' fees.
14. Termination of Your Account by Proxima
Subject to Statutory Obligations, Proxima reserves the right to restrict, suspend or terminate these Terms of Service and Your Account as provided in these Terms of Service including without limitation restricting, suspending or terminating any licenses, and/or access to or receipt, play, or use of one or more of the Services. Where reasonable to do so, Proxima will provide you with prior notice of such suspension or termination.
In addition, Proxima reserves the right to restrict, suspend or terminate these Terms of Service and Your Account immediately and without notice to You (i) if You breach these Terms of Service, (ii) if You infringe or violate any third-party rights, including without limitation third-party intellectual rights, (iii) if Proxima is unable to verify or authenticate any information You provide to Proxima, or (iv) upon Your access to or Your play, receipt or use of Services, for any other activity whatsoever that is, in Proxima's sole discretion, unlawful, inappropriate, and/or in violation of the spirit of these Terms of Service or a Service, including without limitation Your actions in a Game(s) or forums.
Upon Proxima's decision to restrict, suspend, or terminate these Terms of Service, You will lose access to Your Account.
15. Dispute Resolution, Binding Arbitration, and Class Action Waiver
If You live in the EEA, the UK, Switzerland, Australia or New Zealand, only this first paragraph of this Section 15 applies to You. You and Proxima will try to resolve any disagreements that arise between us promptly and efficiently. You and Proxima may agree to refer any disputed matter to resolution proceedings other than in a court but if not, You or Proxima may bring court proceedings at any time which to the extent required by applicable law, will be in your jurisdiction. The European Commission has an online dispute resolution platform: http://ec.europa.eu/consumers/odr/. To bring a matter to our attention, please contact firstname.lastname@example.org. We will not participate in dispute settlement proceedings before a consumer arbitration board or scheme.
If You live in the United States or most other countries, all of the terms below in this Section 15 apply to You. Please read them.
You and Proxima agree that all Disputes (as defined below) shall be resolved only by binding, individual arbitration. You and Proxima are giving up the right to sue in court before a judge or jury. Instead, a neutral arbitrator decides the Dispute; the arbitrator's decision is final, subject to very limited review in court. For the purpose of this Section 15, “Proxima” includes its affiliates, and each of their officers, directors, employees, and agents. “Dispute” means any dispute, claim, or controversy between You and Proxima arising out of or relating to the Services or any aspect of Your relationship with Proxima, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes, but is not limited to, the validity, enforceability, or scope of this Section 15. The term Dispute is to be given the broadest possible meaning.
YOU AND PROXIMA AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING INDIVIDUAL ARBITRATION (AND NOT CLASS, COLLECTIVE, CONSOLIDATED, OR REPRESENTATIVE ACTIONS OR ARBITRATION) RATHER THAN IN COURT OR IN ANY OTHER PROCEEDING.
A. Pre-Arbitration Claim Resolution. You and Proxima must first give the other an opportunity to resolve the Dispute by mailing written notification of the Dispute to Proxima Enterprises Inc., Attn: Legal, 201 Spear St, Ste 1100, San Francisco, CA 94105 USA. Include Your (1) full legal name, (2) mailing address, (3) User Name, (4) the email address associated with Your Account, (5) the platform(s) and device(s) You typically use to access the Services, (6) a written description of Your Dispute, and (7) what relief You seek. We will send You a similar notification if we have a Dispute with You. If the Dispute is not resolved within forty-five (45) days after receipt of the notification, You or Proxima may initiate an arbitration proceeding. You may bring Your Dispute in court only in small claims court or if You opt out of arbitration within 30 days from the date You first consent to these Terms of Service, as described in the paragraph just below.
B. Small Claims Court and Right to Opt Out of Arbitration Within 30 Days. You or Proxima may pursue a Dispute in court and not by arbitration only (a) in small claims court where You live or in San Francisco, California, as You choose; or (b) IF YOU OPT-OUT OF ARBITRATION WITHIN 30 DAYS FROM THE DATE YOU FIRST CONSENT TO THESE TERMS OF SERVICE (the “Opt-Out Deadline”). You may opt out by mailing written notification to Proxima Enterprises Inc., Attn: Legal, 201 Spear St, Ste 1100, San Francisco, CA 94105 USA. Your written notification must include Your (1) full legal name, (2) mailing address, (3) User Name, (4) the email address associated with Your Account, and (5) a clear statement that You do not wish to resolve disputes through arbitration. Your decision to opt out will have no adverse effect on Your relationship with Proxima. You are responsible for ensuring Proxima's receipt of Your opt-out notice, and You therefore may wish to send a notice by means that provide a written receipt. Any opt-out request received after the Opt-Out Deadline will be invalid and You must pursue Your Dispute in arbitration or small claims court.
C. Arbitration Procedures.
If we are unable to resolve the Dispute within 45 days of receipt of written notice of the Dispute, either You or Proxima may start an arbitration proceeding before the American Arbitration Association (“AAA”), www.adr.org, if You live in North America, or before the International Centre for Dispute Resolution (“ICDR”), www.icdr.org, if You live anywhere else, in English before a single arbitrator. Any arbitration shall be individual and not a class, collective, consolidated, or representative arbitration. The arbitrator shall have exclusive authority to decide all issues with respect to Section 15, including, but not limited to, his or her own jurisdiction, whether we agreed to arbitrate any particular claim, and any alleged ambiguities in this Section 15. But if a person asserts that the parties agreed to a class, collective, consolidated, or representative arbitration, the court decides that issue.
In Disputes before the AAA, the AAA's Consumer Arbitration Rules will apply. The ICDR's rules will apply to Disputes before that entity. AAA and ICDR rules are available at www.adr.org and www.icdr.org. This Agreement governs if it conflicts with the AAA or ICDR rules. Based on the class action waiver in subsection 15(C)(vii) below, under no circumstances will class action procedures or rules apply to the arbitration.
Because the Services and these Terms of Service concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or conditions precedent to suit.
The arbitrator may award You on an individual basis any damages or other relief a court could under applicable law and these Terms of Service, but will not have the power to award relief to, against, or for the benefit of any person who is not a party to the arbitration. The arbitrator may not award injunctive or declaratory relief that would affect how You or Proxima treats persons who are not parties. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by You or Proxima, but no such statement will have any precedential effect. Such award will be final and binding on the parties, except for review under the FAA, and may be entered in any court having jurisdiction over the parties for enforcement.
If You live in North America, You or Proxima may initiate arbitration in either San Francisco, California, USA or the judicial district that includes the address You provide in Your written notification of Pre-Arbitration Claim Resolution. If You do not live in North America, the arbitration shall take place in London, England, Sydney, Australia, or a major city such as a county or provincial seat in the country where You live, as requested by You.
Proxima will pay all arbitration filing fees and arbitrator's fees and expenses upon Your written request given prior to the commencement of the arbitration or as otherwise required by applicable law or arbitration rules. You are responsible for all additional fees and costs that You incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if You provide timely notice and negotiate in good faith with Proxima as provided above and the arbitrator concludes that You are the prevailing party in the arbitration, You will be entitled to reasonable attorney's fees and costs as determined by the arbitrator.
Any arbitration proceedings will be conducted only on an individual basis and not in a class, collective, consolidated, private attorney general, or representative proceeding. Nor may arbitrations be joined together without the consent of all parties. If You pursue Your Dispute in court by opting out, as specified in Section 15(B) above, this Class Action Waiver will not apply to you. Neither You, any user of the Services, nor any other person, can be a class representative, class member, or otherwise bring or participate in a class, consolidated, private attorney general, or representative suit or proceeding without having complied with those opt-out requirements.
D. Jury and Court Waiver. You understand and agree that by entering into these Terms of Service You and Proxima are waiving the right to a trial before a judge or jury in a public court. In the absence of this Section 15, You and Proxima might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including, but not limited to, class actions). Those rights are waived. Other rights that You would have if You went to court, such as the right to appeal and to certain types of discovery, may be more limited in arbitration or may also be waived.
E. Severability. If anything within this Section 15 (other than pertaining to a class action waiver above) is found to be illegal or unenforceable, it will be severed from this Section 15, and the remainder of this Section 15 will be given full force and effect. If the prohibition on public injunctions is found to be illegal or unenforceable, it will be severed and, if the arbitrator finds in the final award that a party is liable, a court will then consider the request for public-injunctive relief as a remedy for the liability the arbitrator found. If the class action waiver is found to be illegal or unenforceable, this entire Section 15 will be unenforceable and the Dispute will be decided by a court.
F. Continuation. This Section 15 shall survive the termination of these Terms of Service and Your use of the Services.
G. Rejecting Dispute Resolution and Arbitration Modifications. Notwithstanding Proxima's right to modify these Terms of Service, Proxima shall have no right to alter, amend, modify, or revoke this Section 15 without giving You prior notice and an opportunity to reject the alteration, amendment, modification, or revocation. You may reject any change we make to this Section 15 (except address changes) by sending us notice within 30 days of the change by mail to the address in Section 15(B). If You do, the most recent version of Section 15 before the change You rejected will apply. Please include your (1) full legal name, (2) mailing address, (3) User Name, (4) the email address associated with Your Account or Subscription, and (5) a clear statement that You reject the changes to Section 15.
16. Unsolicited Feedback
If You provide any creative materials, whether written or oral, either directly or through a third-party, including, but not limited to, feedback, creative suggestions, error corrections, ideas, notes, drawings, fan art, storylines, music, concepts, data, or other Content (collectively “Feedback”), such Feedback shall to the fullest extent permitted by law be deemed to be the property of Proxima and You hereby assign and agree to assign to Proxima full and unfettered ownership of all such Information. Feedback will be treated as non-confidential, and Proxima will not be liable for any use or disclosure. None of the Feedback shall be subject to any obligation of confidentiality on the part of Proxima and Proxima shall not be liable to You for any use or disclosure of any Feedback. Proxima shall exclusively own any now known or hereafter existing rights to the Feedback of every kind and nature throughout the universe and on any media, and shall be entitled to unrestricted use and exploitation of the Information for any purpose whatsoever, commercial or otherwise, without compensation to, or approval by, You.
17. General Terms
A. No Third Parties Have Rights or Remedies. You agree that these Terms of Service (including without limitation the Supplemental Terms) and Proxima's enforcement of these Terms of Service, are not intended to confer and do not confer any rights or remedies upon any person other than You, Proxima, Proxima's licensors and Resellers, and Proxima Affiliates (including Microsoft).
B. Severability. Except as specifically provided in Section 15 above, if any part of these Terms of Service is held invalid or unenforceable, that portion shall be interpreted in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of such part, and the remaining portions of these Terms of Service shall remain in full force and effect.
C. Waiver. The failure of Proxima to exercise or enforce any right or provision of these Terms of Service will not constitute waiver of such right or provision. Any waiver of any provision of these Terms of Service will be effective only if expressly acknowledged in a writing signed by Proxima.
D. Governing Law. Subject to any local mandatory law applicable in Your country, these Terms of Service and all Disputes (as defined in Section 15 above) shall be governed by the laws of the State of Delaware, excluding its choice of law and/or conflict of laws rules and principles that would result in another state or country's laws applying to these Terms of Service or any Disputes, except that the U.S. Federal Arbitration Act governs arbitration. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (UCITA) do not apply.
19. Entire Agreement
These Terms of Service constitute the entire agreement between You and Proxima relating to the Services. These Terms of Service supersede any prior or contemporaneous understanding, representation, or other agreement, written or oral, regarding the subject matter of these Terms of Service.
If there is any direct conflict between specific terms and conditions in these Terms of Service, a Game Terms and any Supplemental Terms for a particular Game or Service, the terms and conditions shall govern Your use, play, receipt, and access of that Game or Service in the following order of precedence, except that Section 15 (Dispute Resolution, Binding Arbitration, and Class Action Waiver) above takes precedence over any conflicting term or condition:
(A) with respect to any specific Game: (i) the Game Terms, the terms of service/use, or other Supplemental Terms for that Game; (ii) the Code of Conduct for that Game (if any); (iii) the applicable beta agreement for that Game; (iv) any applicable nondisclosure agreement for that Game and (v) these Terms of Service, and
(B) with respect to any Services, whether or not related to a Game (subject to (A) above): (i) these Terms of Service and (ii) the applicable Code of Conduct (if any). To the extent permitted by applicable law, Proxima will be the final and sole arbiter of any interpretation of any inconsistencies.
20. Contact Us
If You have any questions about these Terms of Service or otherwise need to contact Proxima for any reason, You can reach us at:
Proxima Enterprises Inc.
201 Spear St, Ste 1100
San Francisco, CA 94105
Attn: Customer Support
Please bookmark https://www.proxima.gg/general-terms-of-service and visit this site regularly for updates to the Terms of Service.