(Revised June 2011)
The Xbox LIVE Indie Games website is made up of various internet web pages and services operated by Microsoft Corporation, One Microsoft Way, Redmond, WA 98052-6399 or its affiliates (collectively, the "Xbox LIVE Indie Games Web Site").
Throughout the Xbox LIVE Indie Games Web Site, Microsoft provides you with access to a variety of resources, including download and upload areas, content, software, communication forums, and product information (collectively the "Services"). The Services include any updates, enhancements, and/or new features that Microsoft may provide from time to time.
Access to some Xbox LIVE Indie Games Web Site features may require a Windows Live™ ID account. See http://login.live.com/gls.srf?urlID=MSNPrivacyStatement for information regarding the use of Windows Live ID. Each time you access or use the Services, you are accepting the current version of the TOU and any other applicable terms (or re-affirming your previous acceptance if the TOU or other terms have not changed).
To operate and provide the Services, we collect certain information about you. We use and protect that information as described in the Microsoft Online Privacy Statement (http://login.live.com/gls.srf?urlID=MSNPrivacyStatement) (“Privacy Statement”), which is incorporated in the TOU by this reference. Please see the Privacy Statement disclosures for more information relating to the collection and use of your personal information. The most current version of the Privacy Statement can be reviewed by clicking on the "Privacy Statement" hypertext link located at the bottom of web pages within the Xbox LIVE Indie Games Web Site.
Any space provided to you on the Xbox LIVE Indie Games Web Site is for you to use to participate in the Xbox LIVE Indie Games community of developers. While you may use designated areas of the Xbox LIVE Indie Games Web Site to provide supplemental information regarding your own business (provided you do not use spam to provide this information), you may not use the Xbox LIVE Indie Games Web Site to sell your goods or services or as the primary mechanism for operating your business or providing core information about your business. Any use of the Xbox LIVE Indie Games Web Site for commercial purposes is solely at your own risk, Microsoft has no liability for such use, and you agree to hold Microsoft harmless for any claims related to your use of the Xbox LIVE Indie Games Web Site for commercial purposes.
Microsoft, its suppliers and other users of the Service may from time to time make available software and content to view or download from the Services ("Software"). This Software is the copyrighted work of Microsoft, its suppliers, and/or other users of the Services (e.g. a forum poster). Use of the Software is governed by the terms of the end user license agreement, if any, which accompanies or is included with the Software ("License Agreement"). By downloading, installing, or using any such Software that has an associated License Agreement, you are agreeing to the terms of the License Agreement as applied to that Software.
If there is not a License Agreement presented to you, Microsoft hereby grants you, a limited, personal, non-exclusive, revocable license to use the Software only for and during the authorized use of the Services and/or the game or other product to which the software relates. You may not copy, download, modify or create derivative works, publish, transmit, sell or attempt to sell or transfer, or otherwise use or exploit any software unless we or our suppliers have expressly allowed you to do so.
Any use, reproduction, or redistribution of the Software not in accordance with the License Agreement or this TOU is expressly prohibited by law. You may not disassemble, decompile, or reverse engineer any Software, except and only to the extent that the law expressly permits those activities. You must keep intact all copyright and other proprietary notices related to any Software.
Microsoft may provide you with access to error reporting data, software quality metrics and other related information (“Performance Data”). You may access, copy, and use the Performance Data internally, solely to test and resolve compatibility issues related to the use of your products with Microsoft products and to provide feedback to Microsoft (“Purpose”). You may store the Performance Data only on a secure server with limited access for a maximum of 6 months. Access to that server must be limited to you and your employees who have a need to access it. After 6 months, you will destroy the Performance Data.
You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, offer to sell or sell the Performance Data, except as otherwise permitted in this section. You may modify your affected products to resolve compatibility issues related to the use of your products with Microsoft products discovered through the Performance Data. You will not use the Performance Data for any purpose not expressly granted by Microsoft in this TOU, including, without limit, promotional, sales, advertising, competitive analysis, or marketing purposes. Microsoft and its customers retain all right, title, and interest in and to any Performance Data provided to you. You agree that you acquire no interest in any Performance Data.
In using the Services, you may not:
The Services may contain e-mail services, bulletin board services, chat areas, news groups, forums, communities, and/or other message or communication facilities designed to enable you to communicate with others (each a "Communication Service" and collectively "Communication Services"). You agree to use the Communication Services only to post, send, and receive messages and material that are proper and, when applicable, related to the particular Communication Service. By way of example, and not as a limitation, you agree that when using the Communication Services, you will not:
Microsoft has no obligation to monitor the Communication Services. Microsoft reserves the right, however, to review materials posted to the Communication Services and to remove any materials in its sole discretion. Microsoft also reserves the right to terminate your access to any or all of the Communication Services at any time, without notice, for any reason or no reason.
In addition, Microsoft reserves the right at all times to disclose any information as Microsoft deems necessary to satisfy any applicable law, regulation, legal process, or governmental request, or to edit, refuse to post, or to remove any information or materials, in whole or in part, in Microsoft's sole discretion.
Always use caution when giving out any personally identifiable information about yourself or your children in any Communication Services. Microsoft does not control or endorse the content, messages, or information found in any Communication Services and, therefore, Microsoft specifically disclaims any liability with regard to the Communication Services and any actions resulting from your participation in any Communication Services. “Managers” and “hosts” of any Communication Services are not authorized Microsoft spokespersons, and their views do not necessarily reflect those of Microsoft. Materials uploaded to the Communication Services may be subject to posted limitations on usage, reproduction, and/or dissemination; you are responsible for adhering to such limitations if you download the materials.
You may be able to submit materials for use in connection with the Services. You understand that Microsoft does not control or endorse the content that you and others post or provide on the Services. Except for material that we license to you, we do not claim ownership of the materials you post or provide on the Services. With respect to content you post or provide (other than games and applications that you submit for distribution through Xbox LIVE or the Windows Phone Marketplace, which shall be subject to the Indie Games Submission Agreement or the Windows Phone Marketplace Application Provider Agreement, as applicable), however, you grant to the public and to Microsoft, free, unlimited, worldwide, nonexclusive, perpetual, and irrevocable permission to:
use, modify, copy, distribute, and display the content in connection with the service and other Microsoft products and services;
publish your name, identifier (such as a gamertag), or other information you supply in connection with the content; and
grant these rights to others.
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. You understand that we may need to make copies, change the format, transcode, or otherwise process content posted on the Services, including on shared and private areas of the Services, to:
store and retrieve the content; make the content available to you and those members of the public to whom you have granted access;
conform to connecting networks' technical requirements; or
conform to the limitations and terms of the Services.
This section only applies to legally permissible content and only to the extent that use and publishing of legally permissible content does not breach the law or violate the rights of any third party. You understand that sharing content that violates others' copyrights and other intellectual property rights violates this TOU. You represent and warrant that you have all the rights necessary for you to grant these rights and that the use and publication of the content does not breach any law or violate the rights of any third party. We will not pay you for your content. We may refuse to publish your content, and we may remove your content from the Service at any time.
We provide the Service "as-is," "with all faults," and "as available." We do not guarantee the accuracy or timeliness of information available from the Service. The Microsoft parties give no express warranties, guarantees, or conditions under or in relation to the Service, this contract or its subject matter. We exclude any implied warranties or conditions, including those of merchantability, fitness for a particular purpose, workmanlike effort, and non-infringement.
You can recover from Microsoft and its suppliers and affiliates (in the aggregate) only direct damages up to a total, aggregate amount equal to the price of your Xbox LIVE Indie Games annual membership or 100 U.S. dollars, whichever is less. You cannot recover any other damages, including consequential, lost profits, special, indirect, incidental, or punitive damages.
This limitation applies to anything related to:
content (including code) on third party Internet sites, third party programs (such as games), or third party conduct;
viruses or other disabling features that affect your access to or use of the Services;
incompatibility between the Services and other services, software, and hardware;
delays or failures you may have in initiating, conducting, or completing any transmissions or transactions in connection with the Services in an accurate or timely manner; and
claims for breach of contract; breach of warranty, guarantee, or condition; strict liability; negligence; or other tort.
It also applies even if:
this remedy does not fully compensate you for any losses, or fails of its essential purpose, or is in respect of a fundamental breach or breach of a fundamental term; or
Microsoft knew or should have known about the possibility of damages.
Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. They also may not apply to you because your province or country may not allow the exclusion or limitation of incidental, consequential, or other damages.
Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement should be sent to Service Provider's Designated Agent. ALL INQUIRIES NOT RELEVANT TO THE FOLLOWING PROCEDURE WILL NOT RECEIVE A RESPONSE. See Notice and Procedure for Making Claims of Copyright Infringement at www.microsoft.com/info/cpyrtInfrg.htm.
The Xbox LIVE Indie Games Web Site may contain links to other third party web sites. The linked sites are not under the control of Microsoft, and Microsoft is not responsible for the contents of any linked site or any link contained in a linked site, or any changes or updates to such sites. Links are only provided as a convenience, and the inclusion of a link does not imply endorsement by Microsoft of the linked site.
Microsoft or any of its employees do not accept or consider unsolicited ideas, including without limitation ideas for new advertising campaigns, promotions, products, technologies, or marketing plans. The sole purpose of this policy is to avoid potential misunderstandings or disputes when Microsoft’s products or marketing strategies might seem similar to ideas submitted to Microsoft. So, please do not send your unsolicited ideas to Microsoft or anyone at Microsoft. If, despite our request that you not send us your ideas and materials, you still send them, please understand that Microsoft makes no assurances your ideas and materials will be treated as confidential or proprietary.
We may change the Services or delete or discontinue features or other content at any time and for any reason (or no reason). We may cancel or suspend your Services at any time. Our cancellation or suspension may be without cause and/or without notice. Upon Services cancellation, your right to use the Services stops right away. Once the Services are cancelled or suspended, any data you have stored on the Services may not be retrieved later.
All parts of this TOU apply to the maximum extent permitted by law. A court may hold that we cannot enforce a part of this TOU as written. If this happens, then we will replace that part with terms that most closely match the intent of the part that we cannot enforce. The rest of this TOU will not change. This is the entire contract between you and us regarding your use of the Services. It supersedes any prior contract or statements regarding your use of the Services. If you have confidentiality obligations related to the Services, those obligations remain in force even after termination or cancellation of the Services (for example, you may have been a beta tester). The section titles in this TOU are for convenience only and do not limit the terms of this TOU.
Except to the extent prohibited by local law, this TOU is governed by the laws of the state of Washington, which apply to the interpretation of this TOU and to any claims for breach of it, regardless of conflict of laws principles. You irrevocably consent to the exclusive jurisdiction and venue of the state or federal courts in King County, Washington, USA, for all disputes arising out of or relating to this TOU.
We may assign this TOU, in whole or in part, at any time with or without notice to you. You may not assign this TOU, or any part of it, to any other person. Any attempt by you to do so is void. You may not transfer to anyone else, either temporarily or permanently, any rights to use the Services or any part of the Services.
This TOU is solely for your and our benefit. It is not for the benefit of any other person, except for permitted successors and assigns under this contract.
Any claim related to this TOU or the Services may not be brought unless brought within one year. If it is not filed in time, then that claim is permanently barred. This applies to you and your successors. It also applies to us and our successors and assigns.
Please respect the rights of artists and creators. Content such as music, photos, and video may be protected by copyright. People appearing in content may have a right to control use of their image and to maintain their privacy. You may not share other people’s content or violate the rights of any third party unless you own the rights or have obtained any required permissions.
© 2010 Microsoft Corporation. All rights reserved.
For more information see http://www.microsoft.com/about/legal/en/us/IntellectualProperty/Permissions/Default.aspx
Trademark information is available at http://www.microsoft.com/About/Legal/EN/US/IntellectualProperty/Trademarks/EN-US.aspx
Any rights not expressly granted herein are reserved.
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