- Additional Terms; Game Rules
- Acceptable Use of the Site and Services
- Content on Our Site and Services
- Your Limited License to the Site, Services, and Content
- In-game Currencies/Goods
- Copyright and Intellectual Property Policy
- User Accounts
- Changes to the Site or Services
- Cancellation and Survival
- Disclaimer and Limitations on Our Liability
- For residents in the United States – BINDING ARBITRATION AND CLASS ACTION WAIVER
- For users who are in Europe - BINDING ARBITRATION
- Governing Law and Jurisdiction
- Other Provisions
- Third-Party Fees
- Changes to these Terms
Terms of Service
Latest update: May 2018
These Terms of Service ("Terms") govern your use of the Etermax website http://www.etermax.com ("Site") and any games, mobile applications, application programming interfaces, and other services offered by Etermax, S.A. and any of its affiliates, as well as services offered through third parties integrating Etermax functionality ("Services").
Etermax S.A., and/or any of its affiliates ("Etermax", "we" or "Us") are the Site owners and the Service providers.
Access to this Site and/or its use in any way qualifies you as a User ("User", "you" "Users").
FOR US RESIDENTS: If you are a resident of the United States of America, then these Terms are governed by United States federal law, including the Federal Arbitration Act of the state of New York.
IMPORTANT NOTICE: this agreement is subjected to binding arbitration and a waiver of class action rights, as established in Section 15.
If you are located in the European Union, you must be 16 years of age or older to access and/or use the Services. If you are younger than 16 years old, you must have the consent of your legal guardian and only if your guardian agrees to this Terms to access our Services. In case the applicable Law to you allows it, you will be able to access the Service at 16 years of age or less, as long as you are at least 13 years old.
2. Additional Terms; Game Rules
Some of our Services may have additional terms and conditions ("Additional Terms"). Where Additional Terms apply to a Service, we will make them available for you to read through your use of that Service. It shall be understood that by using the Service, you agree to the Additional Terms without reserve.
The specific rules of each of the games included in the Services, such as guidelines regarding the control or scoring system, will be established on each of the games. Such rules are an integral part of these Terms and you accept that you will comply with all the rules and obligations of the rules.
3. Acceptable Use of the Site and Services
You are responsible for your use of the Site and Services, and for any use of the Site or Services made using your account. Our goal is to create a positive, useful, and safe user experience. To promote this goal, certain kinds of conduct that may be harmful to other users or to us are forbidden. When you use the Site or Services, you may not:
- violate any law or regulation;
- violate, infringe, or misappropriate other people’s intellectual property, privacy, publicity, or other third party legal rights;
- upload, communicate, transmit or otherwise make available in the Site or in the Services any Content that is or could reasonably be viewed as unlawful, harmful, harassing, defamatory or otherwise objectionable, of pornographic, obscene or indecent nature, invasive of another's privacy, hateful, likely to incite violence or racial or ethnic hatred, or any other content that could be prejudicial to your own rights or to those of third parties;
- send unsolicited or unauthorized advertising or commercial communications, such as spam, forge any TCP/IP packet header or the IP address or any part of the header information in any email or posting, or in any way use the Services to send altered, deceptive or false source-identifying information;
- engage in spidering or harvesting, or participate in the use of software, including but not limited to spyware, designed to collect data from the Site or Services;
- collect information and/or personal data of other Users.
- interfere with or disrupt the proper provision of the Services, user access, or the servers or networks that provide the Services, or transmit any viruses or other computer instructions or technological means whose purpose is to disrupt, damage, or interfere with the use of computers or related systems; stalk, harass, or harm another individual;
- impersonate any individual or legal entity or perform any other similar fraudulent activity, such as phishing;
- use any means to scrape or crawl any Web page contained in the Site;
- probe, scan, crack, track and/or test the vulnerability of any system or network, attempt to circumvent any technological measure or authentication measures implemented by us or any of our providers or any other third party (including another user) to protect the Site or our Services;
- access, search or attempt to access or search the Services by any means (automated or otherwise) other than through the interfaces published by us;
- attempt to decipher, decompile, disassemble, or reverse engineer any of the software or other underlying code used to provide the Site or Services;
- use the Services in any other way not permitted by these Terms; or
- advocate, encourage, or assist any third party in doing any of the foregoing.
4. Content on Our Site and Services
For purposes of these Terms: (a) "Content" means the text, graphics, photos, sounds, music, videos, audiovisual combinations, interactive features, software, scripts, works of authorship of any kind, and information or other materials that are posted, generated, provided, or otherwise made available through the Services; and (b)"User Content" means any Content that users (including you) share, communicate, upload or make available through the Services. User Content includes communications with other users and with us, links, personal information, images, videos, and information provided by users on user profiles.
4a. Your Use of the Site, Services and Content Is at Your Sole Risk
User Content, whether publicly posted or privately transmitted, is the sole responsibility of the users who originated such User Content. Although we may review User Content, we are not obligated to do so. In addition, we do not undertake to review all User Content before it is distributed through the Site or Services, and cannot ensure prompt removal of objectionable User Content after it has been posted or distributed.
You understand that by using our Site and Services, you may be exposed to User Content that might be indecent, offensive, harmful, inaccurate, objectionable, inappropriate or detrimental to third parties. We do not endorse, support, represent or warrant the quality, entirety, truthfulness, accuracy, or reliability of any User Content or communications, or endorse any opinions expressed via Site and Services.
You accept that the use of the Site and Services is at your own risk and responsability. As stated more fully in Section 13, under no circumstances will we be liable in any way for any Content or User Content, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the viewing, transmission, use or reliance on any Content on our Site or Services or elsewhere, or any Content that may be found to be indecent, offensive, harmful, inaccurate, objectionable or otherwise inappropriate, mislabeled or otherwise deceptive.
Etermax has the right to warn you that User Content is not monitored. We will work with our Users to enforce these Terms, including the Acceptable Use provisions described above, and remove inappropriate or objectionable content. We reserve the right to remove any User Content for any reason, at our sole discretion.
4b. Your User Content and the Rights You Grant Us
The Site and some of our Services allow you to suggest, store, send, publish, receive or upload to the Site or to the User Content Services. Access to these functions might be subjected to age restrictions.
By storing, sending or uploading User Content to the Site or to any of our Services, you grant us a non-exclusive, transferable, sublicensable, royalty-free, undefined, irrevocable, universal and free-of-charge license of the following rights for the User Content related to the Service:
- Distribution rights.
- Public communication rights in all the forms considered in the intellectual property rules.
- Transformation Rights.
Such license shall be granted for the maximum term established in the applicable legislation for its use throughout the Universe, either alone or combined with other User Content, through any means, method or technology, whether exist now or that are to be created in the future
Moreover, this license includes the right for us to sub-license your User Content, and to make Content submitted to or through the Services available to other companies, organizations or individuals who partner with Etermax for the broadcast, distribution or publication of such Content on other media and/or services. This license also includes the right to use User Content to provide, promote, and improve the Site and Services, develop new services, and to distribute your User Content. The license on User Content is not exclusive, which means that you can utilize User Content for your own ends or allow a third party to utilize it for their ends. However, you cannot use Derivative Works outside the Site or Services without a prior express written permission from Etermax. This license is fully-paid and royalty free, meaning we, and other companies, organizations or individuals who partner with us, do not owe you any money or compensation of any kind in connection with our use of your User Content. We may exercise our rights under this assignment anywhere in the world. Lastly, this license is perpetual and irrevocable, meaning that our rights under this assignment continue even after you stop using the Site and Services.
You promise that:
- you own all rights, including the intellectual property rights, to your User Content or, alternatively, that you have exclusive right to assign the rights described above; and
- your User Content does not infringe the intellectual property rights, privacy rights, publicity rights, or other legal rights of any third party.
You understand and acknowledge that you are solely responsible for the liabilities and obligations that may arise from the User Content you provide, including the use of such User Content by other users and third parties.
You understand that your User Content may be broadcasted, distributed, or published by third parties and if you do not have the right to submit User Content for such use, you may be liable for any damage resulting thereof. Etermax will not be responsible or liable for any use of User Content by third parties, or for any use by Etermax in accordance with these Terms.
We may refuse to accept or transmit User Content for any reason at our sole discretion. We may also remove User Content from the Site or Services for any reason at our sole discretion.
You agree that Etermax has no obligation to monitor or protect User Content.
4c. Ownership of all other Content
Please be informed that we are the rightful owners or have license of all rights regarding (a) the Site and Services, including all software, text, media, and any other Content available on the Site and Services ("Our Content"); and (b) our trademarks, logos, domain names, and brand elements ("Brands").
4d. Advertising Content
The Site and Services may include advertisements and other information, which may be targeted to the content or information on the Services (including User Information), queries made through the Services, or any other information. The types and extent of advertising by Etermax on the Services are subject to change.
You accept that, in consideration of the use of the Site and Services, Etermax and/or other third parties associated with it may include and distribute advertising material, both its own and belonging to third parties, at any time on the Site, in the User Content and/or in the Services.
4e. Content Removal; Cooperation with Law Enforcement
We have the right to:
- remove or refuse to distribute any Content or User Content at our sole discretion;
- take any action with respect to any Content or User Content that we deem necessary or appropriate at our sole discretion, which includes taking legal action in those cases in which we believe that such User Content violates these Terms, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Site or Services or the public, or could lead to liability for us;
- disclose your personally identifying information or other information about you to any third party who claims that User Content provided by you violates their rights, including their intellectual property rights or their right to privacy;
- take appropriate legal action, including without limitation, disclosing your personally identifying information or other information about you to law enforcement, for any suspected illegal or unauthorized use of the Site or Services;
- terminate or suspend your access to all or part of the Site or Services, and to reclaim and redistribute usernames, for any reason, including, but not limited to, any violation of these Terms.
Notwithstanding the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity, or other information, of anyone posting or distributing any User Content on or through the Site or Services. We also reserve the right to access, review, monitor, display, read, preserve, store, and disclose any information and any User Content as we reasonably believe is necessary or appropriate to: (i) comply with any applicable law, regulation, legal process or governmental request; (ii) investigate potential violations of and/or enforce these Terms; (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of our users, our company or third parties.
YOU WAIVE AND HOLD OUR COMPANY (AND ITS MANAGERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, PARENT COMPANIES, AFFILIATES, AGENTS, AND LICENSEES ["AFFILIATES"]) FROM ANY CLAIMS ARISING FROM YOUR INAPPROPRIATE USE OF THE SITE OR SERVICES OFFERED BY ETERMAX. WE ASSUME NO LIABILITY FOR ANY ACTION OR INACTION REGARDING TRANSMISSIONS, COMMUNICATIONS OR USER CONTENT PROVIDED BY ANY USER OR THIRD PARTY THROUGH THE SITE OR SERVICES.
5. Your Limited License to the Site, Services, and Content
Subject to and conditioned on your compliance with the Terms, we grant you a limited, non-exclusive, non-transferable license to access and view the Site, User Content and Our Content solely in connection with its permitted use, and solely for your personal and non-commercial purposes.
You may not download, capture, save, distribute or rebroadcast any of Our Content or any others’ User Content. You may only download, capture, and/or save your User Content using the tools we make available for such purpose through the Site or Services. However, you cannot use Derivative Works of your User Content, as defined in Section 4.b, outside the Site or Services without a prior express written permission from Etermax.
Subject to and conditioned on your compliance with the Terms, we also grant you a limited nonexclusive, nontransferable, non-sublicensable license to download and install a copy of our game(s) or app(s) on a mobile device and to run such copy of such game(s) or app(s) solely for your own personal, noncommercial purposes. Except as expressly permitted in these Terms, you may not: (a) copy, modify, or create derivative works based on the game(s), app(s), Site or Services; (b) distribute, transfer, sublicense, lease, lend, or rent the game(s), app(s), Site or Services to any third party; (c) reverse engineer, decompile, or disassemble the game(s), app(s), Site or Services ; or (d) make the functionality of the game(s), app(s), Site or Services available to multiple users through any means. We reserve all rights in and to the game(s), app(s), Site or Services not expressly granted to you under these Terms.
6. In-game Currencies/Goods
The services may include a virtual, in-game currency ("Virtual Currency") including, but not limited to, Lives, Coins, Spins and Gems, that may be purchased from us for using any acceptable payment method accepted in the Services if you are a legal adult in your country of residence. The Services may also include virtual, in-game digital items and characters ("Virtual Goods") that may be purchased from us using any acceptable payment method accepted in the Services or Virtual Currency. The purchase of Virtual Currency and Virtual Goods is an exclusive service for Account holders who are either (a) 18 years of age or more; or (b) under the age of 18 and have the consent of their parents or guardians to make the purchase. Parents of children under the age of 18 may consult the iOS or Google Play settings for their App to restrict in-App purchases, but shall also monitor their children’s Accounts for unexpected activity, including the purchase of Virtual Currency or Virtual Goods.
Regardless of the terminology used, you agree that Virtual Currency and Virtual Goods have no monetary value and do not constitute actual currency or property of any type. The Virtual Currency and the Virtual Goods may never be sold, transferred, traded or exchanged through any legally acceptable payment method, goods or other items of monetary value from us or anyone else.
6a. Purchasing Virtual Currency and Virtual Goods
Virtual Currency and Virtual Goods are categories of Content. You only get a limited, revocable, personal, non-transferable, and non-sublicenseable license to use Virtual Currency and Virtual Goods. You acknowledge that you do not acquire any ownership rights in or to the Virtual Currency, Virtual Goods, or other Content. Any balance of Virtual Goods or Virtual Currency does not reflect any stored value.
You will only obtain Virtual Currency and/or Virtual Goods from us and through means provided by us, and not from any third-party platform, exchange, broker, or other mechanism, unless expressly authorized by Etermax. You may not buy or sell any Virtual Currency or Virtual Goods in exchange for legally acceptable money or otherwise exchange items for any other kind of value through any means other than that established to provide the Service. Any attempt to do so violates these Terms and may result in an undefined prohibition of access and use of the Services and lead to possible legal action. Once you acquire Virtual Currency or Virtual Goods, you may not trade or transfer the Virtual Currency or Virtual Goods to another individual or account, unless such functionality is provided to you by us by way of a feature or Service, whether inside a game or through some other method (e.g., our Site).
Etermax may manage, control, regulate, modify or eliminate Virtual Currency and/or Virtual Goods at any time, with or without notice, in our sole discretion. Etermax shall have no liability to you or any third party in the event that we decide to exercise these rights.
During the term given to use the Virtual Currency, you have the right to redeem your Virtual Currency for the selected Virtual Goods. If you are the legal guardian and you are accepting these Terms on behalf of your child, you accept and acknowledge that your child has your consent to exercise this right independently. Pricing and availability of Virtual Currency and Virtual Goods are subject to change without notice. We reserve the right at any time to change and update our pricing and inventory of Virtual Currency and Virtual Goods. As hereinafter provided, Virtual Currency, Virtual Goods and other Content is provided "as is" without any warranty. Every purchase, sale, and trade of Virtual Currency and Virtual Goods shall be final and non-refundable, unless otherwise determined by us at our discretion.
6b. Our discretion to cancel any Virtual Currency or Virtual Goods and its cancellation effect.
All Virtual Currencies and Virtual Goods shall be forfeited if your account is suspended or terminated for any reason, at our sole and absolute discretion, or if we discontinue the provision of the Services or any particular game. We may cancel, suspend, or terminate your Account and your access to your Virtual Currency, Virtual Goods, the Content, or the Services, in our sole discretion and without prior notice, including, but not limited to, for the following reasons: (a) your Account is inactive (i.e., not used or logged into) for one year; (b) you fail to comply with these Terms; (c) we suspect fraud or misuse by you of Virtual Currency, Virtual Goods, or other Content; (d) we suspect any other unlawful activity associated with your Account; or (e) we are acting to protect the Services, our systems, the game, any of our users, or our reputation or the reputation of any of our partners.
YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED VIRTUAL CURRENCY OR VIRTUAL GOODS WHEN YOUR ACCOUNT IS CLOSED, WHETHER SUCH CLOSURE WAS VOLUNTARY OR INVOLUNTARY.
Certain jurisdictions may provide additional statutory rights, including a Cooling-Off Period which allows you to withdraw from a purchase. Nothing herein is meant to limit your return or cancellation rights for your purchase of Virtual Content under applicable local law.
You agree that your Virtual Currencies and Virtual Goods will be forfeited and your account will be permanently suspended in our sole and absolute discretion if you attempt to buy or sell any Virtual Currency or Virtual Goods by selling, buying or transferring any account connected with us.
7. Copyright and Intellectual Property Policy
We respond to notices of alleged copyright infringement and terminate accounts of repeat infringers according to the process set out in the U.S. Digital Millennium Copyright Act.
If you believe that your work has been copied in a way that constitutes copyright infringement, please forward the following information to the Copyright Agent named below:
- Your address, telephone number, and email address.
- A description of the copyrighted work that you claim has been infringed.
- A description of where the alleged infringing material is located.
- A statement by you that you have a good faith belief that the disputed use is not authorized by you, the copyright owner, its agent, or the law.
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest.
- A statement by you, made under penalty of perjury, that the above information is accurate and that you are the copyright owner or authorized to act on behalf of the copyright owner.
Such information shall be sent to the Copyright Agent:
- Rodrigo Larrimbe
- Etermax S.A.
- Dr. Luis Bonavita 1294, office 1901
- 11300 Montevideo, Uruguay
- Telephone: 59826262412
- Email: email@example.com
Only copyright infringement notices should go to our Copyright Agent.
You acknowledge that your notice may not be valid if you fail to comply with all of the requirements set forth in this section. Once we have received your copyright infringement notice, we may forward it to the party who submitted content at issue. Please note that, when we send your copyright infringement notice to the "infringing" party, such notice shall include the communication of your personal data and information. By submitting a copyright infringement notice, you consent to having your information revealed in this way.
If you believe the content that was removed (or to which access was disabled) is not infringing any copyright, or if you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use such content, you may submit a counter-notice to the address listed above containing the following information:
- Your physical or electronic signature;
- Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
- A statement that you have a good faith belief that the content was deleted or disabled as a result of mistake or a misidentification of the content; and
- Your name, physical address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Los Angeles, California, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
Once we have received your counter-notification, we will serve notice of it to the party who submitted the original claim of copyright infringement. Please note that, when we forward the counter-notification, it shall include your personal data or information. By submitting a counter-notification, you consent to having your information revealed in this way. We will not forward the counter-notification to any party other than the original claimant.
After we send out the counter-notification, the claimant must then notify us within 10 days that he or she has filed a claim before the competent authority with the purpose of preventing you from engaging in infringing activity relating to the content that was removed or disabled. If we receive such notification we will be unable to restore the material. If we do not receive such notification, we may reinstate the material.
9. User Accounts
In order to access some features of the Site or Services, you must create an account. You may never use another person's account without permission. When creating your account, you must provide accurate and complete information. You are the sole responsible for the activity that occurs on your account, and you must keep your account password secure and preserve its confidentiality.
Etermax encourages you to use strong passwords (passwords that include a combination of upper and lower case letters, numbers and symbols). Should you become aware of any violation or unauthorized use of your account, you must notify us immediately.
Etermax will not be liable for your losses caused by any unauthorized use of your account. However, you may be liable for the losses of Etermax or other third parties as a result of the inappropriate use of your account.
11. Changes to the Site or Services
We often improve and update the Site and Services. We reserve the right to change or discontinue the Site or Services at any time, with or without notice to you.
12. Cancellation and Survival
Etermax reserves the right to allow access to the Site and the Services only to those Users who meet the access conditions provided in this Terms and Conditions, and for any other condition that Etermax may establish, at its own discretion, in the future, being able to revoke and / or cancel your permission to access the Site and the Services. Notwithstanding the above we reserve the right to cancel the right of access to any User to the Site or the Services at any time, at our sole discretion.
You may terminate this legal agreement with Etermax at any time for any reason, by discontinuing the use of the Services and/or by contacting firstname.lastname@example.org to delete your account
The provisions of sections 3, 4, 6, 7 and 12 to 17 will remain in force after your account is closed and after any expiration or termination of these Terms, and you will continue to be liable for all of your activities during the time you used the Services.
13. Disclaimer and Limitations on Our Liability
YOU USE THE SITE AND SERVICES AT YOUR OWN RISK
THE SITE AND THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS TO YOU AND WILL FUNCTION IN VIRTUE OF THEIR AVAILABILITY AT ANY GIVEN MOMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, OUR COMPANY AND ITS OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, PARENT COMPANY, SUBSIDIARIES, AFFILIATES, AGENTS AND LICENSEES (" AFFILIATES ") DISCLAIM ALL WARRANTIES, CONDITIONS AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING THOSE RELATED TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT AND THOSE ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE OR NEGOTIATIONS.
PARTICULARLY, OUR COMPANY AND ITS AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY OR COMPLETENESS, TIMELINESS, SECURITY OR RELIABILITY OF THE SITE, SERVICES OR ANY CONTENT AVAILABLE ON OR THROUGH THE SITE OR SERVICES, OR THE CONTENT OF ANY WEBSITES OR ONLINE SERVICES LINKED TO OR INTEGRATED WITH THE SITE OR SERVICES.
OUR COMPANY AND ITS AFFILIATES WILL HAVE NO LIABILITY FOR ANY: (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (B) PERSONAL INJURY, PROPERTY DAMAGE OR LOSS OF DATA RESULTING FROM YOUR ACCESS TO OR USE OF THE SITE OR SERVICES; (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS OR OF ANY PERSONAL INFORMATION OR USER DATA; (D) ANY INTERRUPTION OF TRANSMISSION TO OR FROM THE SITE OR SERVICES, OR ANY DELETION OF OR FAILURE TO STORE OR TRANSMIT ANY CONTENT OR COMMUNICATIONS; (E) ANY BUG, VIRUS, TROJAN HORSE, OR THE LIKE WHICH MAY BE TRANSMITTED ON OR THROUGH THE SITE OR SERVICES BY ANY THIRD PARTY; (F) FAILURE OF THE SITE OR SERVICES TO MEET YOUR EXPECTATIONS OR REQUIREMENTS; OR (G) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED OR SHARED THROUGH THE SITE OR SERVICES.
YOU UNDERSTAND AND AGREE THAT ANY MATERIAL OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE OR SERVICES IS DONE AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY LIABLE FOR ANY DAMAGE ARISING FROM DOING SO. NO ADVICE OR INFORMATION WHETHER SPOKEN OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SITE OR SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE IN THESE TERMS.
Waiver of Consequential Damages. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS, REVENUE, OR DATA) OR FOR THE COST OF OBTAINING SUBSTITUTE PRODUCTS OR SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, THE SITE OR SERVICES, HOWEVER CAUSED, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT, STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Limitation of Total Liability
Limitation of Total Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, OUR TOTAL CUMULATIVE LIABILITY TO YOU OR ANY THIRD PARTY ARISING FROM OR IN CONNECTION WITH THESE TERMS, THE SITE OR SERVICES, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY (INCLUDING CONTRACT, WARRANTY, TORT, STRICT LIABILITY OR OTHERWISE), WILL BE LIMITED TO AND WILL NOT EXCEED THE FEES YOU HAVE ACTUALLY PAID DURING THE 6 MONTHS PRECEDING THE CLAIM GIVING RISE TO SUCH LIABILITY, TO A MAXIMUM OF USD 100 (100 US DOLLARS).
Basis of Bargain. You understand and agree that we have set our prices and entered into these Terms with you in accordance to the limitations of liability set forth in these Terms, which allocate risk between you and us and form the basis of an agreement between the parties.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above liability disclaimers and limitations may not apply to you. To the extent we may not, as a matter of applicable law, disclaim any implied warranty or limit our liabilities, the scope and duration of such warranty and the extent of our liability will be the minimum permitted under such legislation.
You agree to indemnify and hold harmless our company and its Affiliates from and against any and all claims, costs, proceedings, demands, losses, damages, and expenses (including, without limitation, reasonable attorney’s fees and legal costs) of any kind or nature, arising from or relating to, any actual or alleged breach of these Terms by you or anyone using your account, or your User Content. If we assume the defense of such a matter, you will reasonably cooperate with us in such defense.
15. For residents of the United States – BINDING ARBITRATION AND CLASS ACTION WAIVER
These BINDING ARBITRATION AND CLASS ACTION WAIVER provisions apply to you if you are domiciled in and/or access, download and use our Services in the United States. This Section is made pursuant to a transaction in interstate commerce, and shall be governed by the Federal Arbitration Act (the "FAA").
You and Etermax agree that we will resolve any disputes between us through binding and final arbitration instead of through court proceedings. You and Etermax hereby waive any right to a jury trial of any Claim (defined below). All controversies, claims, counterclaims, or other disputes arising between you and Etermax relating to or arising from these Terms, the Site, Services or any Content (each a "Claim") shall be submitted for binding arbitration. The arbitration will be conducted by the American Arbitration Association ("AAA") under its rules and procedures ("AAA Rules") including the AAA's Consumer Arbitration Rules. The AAA's rules are available at www.adr.org or by calling the AAA at 1-800-778-7879.
Arbitration Procedures: The arbitration will be heard and determined by a single arbitrator. The arbitrator must be a lawyer with at least 10 years of experience or a retired judge. The arbitration hearing shall be held in New York County, New York. However, if you reside in a state other than New York, you will offer Etermax the opportunity to make the hearing convenient to you by permitting Etermax to select to: (a) conduct the hearing solely on the basis of documents submitted to the arbitrator, with the parties participating through telephonic or video conference hearings; or (b) arbitrate in your state of residence at a location reasonably convenient to you and Etermax. In addition, in cases where an in-person hearing is held, you and/or Etermax may attend by telephone, unless the arbitrator requires otherwise.
The arbitrator's decision in any such arbitration will be final and binding upon the parties, except for a limited right of review as provided in the FAA. Judgment upon the award may be entered in any court having jurisdiction. The parties agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including, without limitation, any pleadings, briefs or other documents submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration or by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies.
Costs. If you demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Etermax will pay as much of the administrative costs and arbitrator's fees required for the arbitration as the arbitrator deems necessary to prevent the cost of the arbitration from being prohibitive. In the final award, the arbitrator may apportion the costs of arbitration and the compensation of the arbitrator among the parties in such amounts as the arbitrator deems appropriate. Each party shall bear the expense of that party's attorneys, experts, and witnesses, regardless of which party prevails in the arbitration, unless applicable law gives a party the right to recover any of those fees from the other party.
Class Action Waiver: Neither you nor Etermax may act as a class representative or private attorney general, nor participate as a member of a class of claimants, with respect to any Claim. Claims may not be arbitrated on a class or representative basis, and there should also be no joinder or consolidation of parties. The arbitrator can decide only your and/or Etermax’s individual Claims. The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated.
If any portion of this Section is found to be invalid or unenforceable, then that specific portion shall be of no force and effect and shall be severed, but the remainder of this Section shall continue in full force and effect; provided however, that if the Class Action Waiver is deemed invalid, then this entire Section shall be null and void. No waiver of any provision of this Section of the Terms will be effective or enforceable unless recorded in a writing signed by the party waiving such a right or requirement. Such a waiver shall not waive or affect any other portion of these Terms. This Section of the Terms will survive the termination of your relationship with Etermax.
Small Claims; Action by Government Agencies: This arbitration agreement does not preclude you or Etermax from seeking action by federal, state, or local government agencies. You and Etermax also have the right to bring qualifying claims in small claims court. In addition, you and Etermax retain the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments or preliminary injunctions, and any such request shall not be deemed incompatible with these Terms, nor a waiver of the right to have disputes submitted to arbitration as provided in these Terms.
THIS SECTION LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM, THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN AAA RULES, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF. THE ARBITRATOR'S DECISION WILL BE FINAL AND BINDING EXCEPT FOR A LIMITED RIGHT TO REVIEW AS PROVIDED IN THE FAA. OTHER RIGHTS THAT YOU OR ETERMAX WOULD HAVE INC OURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION.
16. For users who are in Europe - BINDING ARBITRATION
These provisions shall apply to Users who access, download and use our Services in any Member State of the European Union, and to the extent that the User jurisdiction allows it.
The User and Etermax agree that any controversy, difference or claim arising from this Terms and any amendment to it or relating to this, including in particular, its formation, validity, obligation, interpretation, execution, failure or termination, as well as non-contractual claims, will be submitted to binding and mandatory arbitration for final settlement in accordance with the WIPO Arbitration Rules. The arbitral tribunal will be composed of a single arbitrator. The arbitration will take place in Spain. The language to be used in the arbitration procedure will be Spanish. The dispute, difference or claim will be resolved in accordance with the law of Spain.
To avoid any doubt, arbitration is an alternative dispute resolution mechanism, which replaces the traditional judicial system. In arbitration who resolves the dispute is an arbitrator and not a judge, by means of an arbitral award, binding on the parties.
This procedure is more informal than a legal action before a court and offers greater advantages, such as greater speed in the resolution of the conflict and warrant the confidentiality of the dispute, since it is a private process in which the awards do not enjoy publicity, unlike judicial sentences.
17. Applicable Law and Jurisdiction
For residents of the United States: These Terms will be governed by and construed in accordance with United States federal law and the laws of the State of New York for residents of the United States, without giving effect to any conflict of laws, rules or provisions.
If any court or arbitrator determines that the "BINDING ARBITRATION AND CLASS ACTION WAIVER" section set forth above is void or unenforceable for any reason or that an arbitration can proceed on a class action basis, then you and we irrevocably consent to the exclusive jurisdiction and venue of state or federal courts in New York County, New York to resolve any Claims that are permitted to proceed on a class action basis, or otherwise determined not to be arbitrable. You consent and submit to the personal jurisdiction of such courts for the purposes of any such action.
For residents of other countries: These Terms shall be governed by and construed in accordance with the laws of Uruguay. All claims, legal proceedings or litigation arising in connection with the Services will be brought solely in the relevant courts located in the city of Montevideo, Uruguay. You consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum.
18. Other Provisions
Under no circumstances will we be held liable for any delay or failure in performance due in whole or in part to any acts of nature or other causes beyond our reasonable control.
If any provision of these Terms is found to be unlawful or unenforceable, then that provision will be deemed severable from these Terms and will not affect the enforceability of any other provisions.
The failure by us to enforce any right or provision of these Terms will not prevent us from enforcing such right or provision in the future.
We may assign our rights and obligations under these Terms, including in connection with a merger, acquisition, sale of assets or equity, or by operation of law.
19. Third-Party Fees
You may incur in access or data fees from third parties (such as your Internet provider or mobile carrier) in connection with your use of the Site, Services or content. You are responsible for all such fees.
20. Changes to these Terms
From time to time, we may change these Terms. If we change these Terms, we will give you notice by posting the revised Terms on the Site. Said changes will go into effect on the revision date shown in the revised Terms. By continuing to use the Site or Services, you are agreeing to the revised Terms.
PLEASE PRINT A COPY OF THESE TERMS FOR YOU RECORDS AND CHECK THE SITE REGULARLY FOR ANY CHANGES TO THESE TERMS.
The owner of this Site and Services is:
- Etermax, S.A.
- NIF: 217294370010
- Domicile: Dr. Luis Bonavita 1294, office 1901, 11300 - Montevideo (Uruguay)
- Email: email@example.com
©2018 Etermax. All rights reserved.