We've updated our Terms of Services. Please read it through its entirety and click the "I Agree" button.
Last updated: March 6, 2016
IMPORTANT NOTICE: THIS AGREEMENT IS SUBJECT TO A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN THE “DISPUTE RESOLUTION” SECTION.
govern our relationship with anyone who accesses the LiquidSky website (the “Website”)
mobile application or other software (the “App”)
or any other service under LiquidSky’s control (collectively, the “Services”).
and the LiquidSky Acceptable Use Guidelines “Guidelines”
As further described below, LiquidSky offers monthly subscriptions to the Services.
SUBSCRIPTIONS LAST FOR ONE MONTH FROM THE SIGN-UP DATE AND THEY AUTOMATICALLY RENEW FOR SUCCESSIVE MONTHLY TERMS UNTIL CANCELLED BY YOU.
As used in the Terms, SkyComputer
means the cloud-accelerated web browsing and streaming functionality provided by LiquidSky. SkyStorage.
means the cloud-based storage service provided as part of the Services.
- Eligibility. If you are under 18 years of age, you represent and agree that you possess the legal consent of your parent or guardian to access and use the Services. No part of the Services is directed to persons under the age of 13. IF YOU ARE UNDER 13 YEARS OF AGE, PLEASE DO NOT USE OR ACCESS The Services AT ANY TIME OR IN ANY MANNER. You represent and warrant to LiquidSky that you meet the eligibility criteria in the preceding sentence. If you use the Services on behalf of an organization, you are agreeing to these Terms for that organization and promising that you have the authority to bind that organization to these Terms. In that case, “you” and “your” will refer to that organization.
- ACCEPTABLE USE GUIDELINES In order to provide a safe and welcoming environment for all of our users, we have established certain ground rules regarding your behavior on our Services that are specified in the
which are incorporated herein by reference. The Guidelines apply to your use of any or all of the Services and Your Content (as defined below). We reserve the right to close or suspend your account on the Services (an
) if you breach the Guidelines.
- Accepting and Changing the Terms.
You will be deemed to have accepted the Terms by (a) clicking to agree to the Terms; or (b) accessing the Services. If you do not accept the Terms prior to accessing the Services, you will be deemed to have accepted the Terms upon any access of the Services. We may change the Terms at any time in our sole discretion, but we will endeavor to provide you with notice of any material changes to the Terms.
- Our License to You.
The Services are licensed, not sold, to you for use in accordance with these Terms. As between LiquidSky and you, LiquidSky owns and shall retain all right, title and interest in and to the Services. Subject to your complete and ongoing compliance with these Terms. LiquidSky hereby grants you a personal, limited, revocable, non-transferable license to (i) use the App on compatible, authorized devices that you own or control and (ii) access and use the Website, in both instances solely for your own use.
- Third Party Terms and Services. Our Services offer connectivity with a growing number of games, programs, and other services provided by third parties, (collectively,
“Third Party Services” ). Use of some Third Party Service may require to you to have an account with that Third Party Service, and the providers of Third Party Services may have their own disclosures, policies, and agreements, including, but not limited to, third party end user license agreements, privacy policies, and terms of service (
“Third Party Services” In all Third Party Terms, the user agreeing to, and/or the user presented with Third Party Terms will in all cases continue to be the consumer end user of the Third Party Service regardless of whether that Third Party Services is accessed directly or through the Services. Some features offered within Third Party Services may not be available when you access the Third Party Services using the Services. Some Third Party Services (as defined below) may prohibit users in certain age brackets (e.g., under 18). In some instances you may need to change your user settings within such Third Party Service in order to permit LiquidSky to confirm your eligibility for certain services or offerings. LiquidSky does not endorse and is not responsible or liable for the availability or performance of any Third Party Service or any websites, content, products services or information offered by or on behalf of a Third Party Service.
- Accounts; Your use of the Services. You are solely responsible for all activity on your Account, including violations of the Terms by any third party that accesses the Services through your Account, and for the security of your Account. You also agree to the following:
The listing of any prohibited activities above is not exhaustive. LiquidSky reserves the right to determine that any conduct that is or could be harmful to the Services, our equipment, or use of the Services by any of our users, is in violation of the Terms and to exercise any or all of the remedies contained in the Terms.
- a. to provide and maintain an active email address through which you can be reached for the duration of your Account.
- b. to provide accurate and up-to-date email address and contact information to LiquidSky.
- c. that to provide you with any notice or record that is required or permitted by law or these Terms, we may choose to (i) use the email address or other contact information you provide, (ii) post the notice or record on one or more of our websites, or (iii) provide the notice or record via any other reasonable means we choose.
- d. to notify LiquidSky of any unauthorized use of your Account, any impending or threatened event that may negatively impact the Services, security of the Services, or any other violation of the Terms known to you, including by third parties that have accessed the Services through your Account.
- e. to not engage in any activity that interferes with or disrupts, degrades, harms or threatens to harm the Services, security of the Services, our equipment, use of the Services by any of our users.
- f. to not represent to any third party that you are a LiquidSky employee or authorized representative of LiquidSky.
- g. to not tamper with in any manner, disassemble, reverse engineer, or otherwise modify any hardware or software of the Services made available to you.
- h. you will not use the Services or any functionality of the Services (including but not limited to any browser functionality) to do any of the following:
- i. Upload, post, transmit, distribute, or otherwise make available material that advocates illegal activity or discusses illegal activities with the intent to commit them;
- ii. forge headers, manipulate identifiers, or otherwise disguise the origin of any content transmitted through the Services;
- iii. upload, post, email, transmit, distribute, or otherwise make available any material that infringes patent, trademark, copyright, trade secret, or other proprietary rights of any party or that you do not otherwise have a right to make available under any law or contractual relationships;
- iv. upload, post, transmit, distribute, or otherwise make available any material containing malware or any other files, programs, or computer code designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; upload, post, email, transmit, distribute, or otherwise make available any unsolicited advertising (e.g., “spam,”);
- v. upload, post, email, transmit, distribute, or otherwise make available any material that is unlawful, vulgar, offensive, libelous, slanderous, discriminatory, defamatory, threatening, harassing, invasive of another’s privacy, obscene, or otherwise objectionable;
- vi. impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity; collect personally identifiable information; stalk or otherwise harass another; harm minors in any way; or,
- vii. provide material support or resources or disguise the nature, location, source, or ownership of material support or resources provided to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act.
- “LiquidSky Content” As used herein,
means everything on or used in connection with the Services, including, but not limited to, text; images; graphics; logos; audio and video content; visual, auditory, tactile, and motion user interfaces, and any hardware, software, or computer code (collectively). LiquidSky Content also includes, without limitation, the structure, design, animation, video, effects, overall “look and feel” and arrangement of LiquidSky Content on the Services. As between LiquidSky and you, LiquidSky owns and shall retain all right, title and interest in and to the LiquidSky Content. You may not modify, reproduce, distribute, create derivative works or adaptations of, publish, perform, display, transmit or in any way exploit any of the LiquidSky Content in whole or in part except as expressly authorized by LiquidSky. You may not, in whole or in part, reverse engineer, derive (or attempt to derive) any source code, modify, disassemble, decompile, or remove any proprietary notices or labels from the Services or any hardware or software associated or used in connection with the Services. Except as expressly and unambiguously provided herein, LiquidSky does not grant you any express or implied rights in or to the Services, any LiquidSky Content or any software associated or used in connection with the Services. You may not rent, lease, license or sublicense the Services to others, or use the Services in any manner for the benefit of any third party.
- Your Content.
Your Content remains Your Content. However, in order to provide you with the Services, LiquidSky needs certain rights to Your Content. As an example, we cannot offer you SkyStorage without the right to reproduce Your Content on our servers and display Your Content to you. The rights you grant us to Your Content are set forth below and are limited in each case to the rights we need to provide you with the different features of the Services that you use.
. By creating, posting, uploading, submitting, sharing, or distributing (collectively,
) any content, including Guest Content (as defined below) or any other materials (collectively,
) to the Services, you hereby grant LiquidSky a universal, non-exclusive, royalty-free license to use, modify, remove, publish, transmit, or display Your Content solely for the following purposes (a) if Submitted to SkyStorage, SkyShare (as defined below) and SkyComputer, to display Your Content to you and your Guests in accordance with the intended functionality of each of those services and (b) if Submitted to all other portions of the Services, to make the Services available to you in accordance with these Terms. The foregoing license is perpetual if you do not delete Your Content from your Account or Your Content is Guest Content provided to another user. LiquidSky reserves the right to pre-screen, monitor, moderate, and delete any of Your Content that you or other users Submit to the Services, including, but not limited to, posts made to any forums within the Services. However, we have no obligation to do so, and you may be exposed to content you find vulgar, offensive, libelous, slanderous, discriminatory, obscene or is in violation of a law.
Representations and Warranties with Respect to Your Content.
You represent and warrant to LiquidSky that: (i) you have all the rights necessary for you to grant the rights described in this Section, (ii) Your Content does not contain any viruses or malware, and (iii) Your Content will not include any content that infringes, misappropriates or otherwise violates any privacy, intellectual property, or any other rights of any party, or which violates the Guidelines, or that is vulgar, offensive, libelous, slanderous, discriminatory or obscene or that violates any law.
You hereby waive all “moral rights” with respect to Your Content and all copyrights therein to the extent such moral rights can be waived under the existing law of any jurisdiction, and all uses thereof, and consent to any action of LiquidSky that would violate such moral rights in the absence of such waiver or consent.
Your Content on SkyStorage.
If you Submit Your Content to SkyStorage and such of Your Content has been previously Submitted by you or another user, we may associate all or a portion of the previous file with your Account rather than storing a duplicate.
Loss or Deletion of Your Content.
We may remove Your Content from the Services at any time if you are in violation of the Terms or if we cancel or suspend our Services. We are not responsible for deletion or overwriting of Your Content or other data or files, or accidental loss of Your Content or other data or files. We strongly advise users to back up Your Content to other locations. As set forth in Section 13 below, if your Account is closed, we may permanently delete Your Content from our servers. In addition, we have no obligation to return Your Content to you if your Account is closed as also set forth in Section 13 below, or if LiquidSky discontinues any part of the Services to which you have Submitted Your Content.
- SkyComputer; SkyStorage; SkyShare.
connections can be shared with other users. Sustained high-speed data transfers that excessively impact these shared connections are not permitted. Please be reasonable in your use of SkyComputer. LiquidSky may, at its sole discretion, limit Internet usage and limit the applications that can be used or uploaded to your LiquidSky games or programs. Malware or other applications that may compromise security or reliability are not permitted. Subject to the terms of Section 13 below (
), you can access Your Content Submitted to SkyComputer; however, such, access depends upon availability of shared connections. Users with paid subscriptions will have priority access ahead of users utilizing the free service. YOU MAY NOT USE SKYCOMPUTER TO DOWNLOAD OR ACCESS ANY UNAUTHORIZED OR ILLEGAL CONTENT AND YOU WILL INDEMNIFY, DEFEND, AND HOLD LIQUIDSKY HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, PENALTIES AND FEES ASSESSED AGAINST LIQUIDSKY ARISING OUT OF YOUR USE OF SKYCOMPUTER.
SkyStorage and SkyShare.
If you use SkyStorage, your Account, solely as associated with SkyStorage, is your
SkyStorage allows you to store Your Content on a cloud-based server for access from remote devices. SkyStorage will allow you to share Your Content with others (each, a
), so please think carefully about what you share and with whom you share. LiquidSky may limit the number of people with whom you are able to share your SkyStorage Account. You are responsible for all of Your Content Submitted to or access from your SkyStorage Account. LiquidSky may charge you for use of SkyStorage, pursuant to Section 12.
The Services may allow you to share your desktop or computer screen (your
) with Guests, including the ability to relinquish control of your mouse and keyboard to Guests. Please think carefully about what you share and with whom you share. You are responsible for your Guests’ activity.
You may in your sole discretion determine the access level granted to each Guest to your Screen or SkyStorage Account. If you grant a Guest the required access levels, then such Guest may stream content from your SkyStorage Account or Screen to Third Party Services solely in accordance with the applicable Third Party Terms. You may remove in your sole discretion any Guest from your SkyStorage Account or Screen for any or no reason. Guests cannot access and use your SkyStorage Account or Screen unless you are logged into your SkyStorage Account or Screen. Accordingly, once you log out of the Services, all Guests automatically will be logged out of your SkyStorage Account or Screen.
You will own all content created by any Guest in your SkyStorage Account or on your Screen (
. Accordingly, if you are a Guest, in exchange for accessing and using another user’s SkyStorage Account or Screen, you hereby irrevocably assign to any such user all rights, title and interest in and to all intellectual property rights arising from your Guest Content. If, for any reason, the foregoing assignment is not held valid, then you, as a Guest, hereby grant any user whose SkyStorage Account or Screen you access a perpetual, irrevocable license to use, for any purpose and for any reason, your Guest Content.
LiquidSky has, in the past, allowed you to earn points in a virtual currency (
) by taking certain actions on the Services. As of 12-31-15, LiquidSky will no longer be offering Beta Points and they will have no value. LiquidSky also offers you the ability to purchase credits for the use of SkyStorage and time on SkyComputer (these credits are
“SkyCredits” ). You may be required to pay a fee using real-world money to obtain a license to use SkyCredits. Regardless of what we call them, SkyCredits are not real money, do not have monetary value, and may never be redeemed for “real world” money, or other items of monetary value from outside of the Services without our written permission. While we may use terms like “buy”, “purchase” or “sell” in reference to SkyCredits, we do so only for convenience and such terms in no way indicate that SkyCredits have monetary value or are real money. You acknowledge that SkyCredits are not real currency and are not redeemable for any sum of money from us at any time. We make no guarantee as to the nature, quality or value of the features of the Services or any third-party goods or services that will be accessible through the use of SkyCredits, or the availability or supply of SkyCredits. If you chose to transfer your SkyCredits to another user, you assume all risk associated with such transfer and release LiquidSky from any liability associated with your transfer of SkyCredits.
Credits obtained via the Services are provided to you under a limited, personal, revocable, non-sublicenseable license to use within the Services. You have no property interest, right or title in or to any such Credits appearing or originating in the Services, or any other attributes associated with use of the Services.
All SkyCredits will be forfeited if we discontinue availability of some or all of the Services. We reserve the right to cancel all SkyCredits at any time.
LIMITATION OF LIABILITY.
We have no liability for hacking or loss of your SkyCredits or any goods or services obtained with SkyCredits. We have no obligation to, and will not, reimburse you for any SkyCredits or any goods or services obtained via SkyCredits that are lost due to your violation of these Terms. We reserve the right, without prior notification, to limit the quantity of SkyCredits and/or to refuse to provide you with any SkyCredits. Price, exchangeability, and availability of SkyCredits are determined by us in our sole discretion and are subject to change without notice. Subject to applicable law, you agree that we have the absolute right to manage, distribute, regulate, control, modify, cancel, restrict, terminate and/or eliminate SkyCredits as we see fit in our sole discretion, and that we will have no liability for exercising such right. You agree that under no circumstances are we liable to you for any damages or claims that may arise from the loss or use of your SkyCredits regardless of the circumstances. Without limiting any of the foregoing, our maximum liability or responsibility to you is to replenish any SkyCredits lost.
You may use SkyCredits to redeem use of SkyComputer or SkyStorage. We will, in our sole discretion, determine and communicate the availability and exchange rate for any SkyCredits, which may be modified at any time. All redemptions are subject to the Terms and all limitations and requirements stated via the Services. All acquisitions of SkyCredits and redemptions are final. Once SkyCredits have been spent, they will be subtracted from your Account and cannot be refunded or returned, except in our sole discretion.
- LiquidSky Billing.
LiquidSky offers you the ability to purchase monthly subscriptions to certain Services as well as hourly increments of SkyComputer usage.
We may charge a subscription fee to access the Services on a monthly basis (the
). The Subscription Fee will be set forth on the Services. A monthly subscription will include storage space with SkyStorage and a number of SkyCredits (specified on the Services) for use each month. Additional storage and SkyCredits are available for the fees set forth on the Services. Any unused SkyCredits at the end of your subscription term will roll over to the next subscription term. LiquidSky reserves the right to increase the Subscription Fee or institute new charges upon reasonable notice. We reserve the right to cancel your subscription at any time. No refunds will be given for cancelled subscriptions.
- i. YOU MUST PAY FOR YOUR SUBSCRIPTION TO THE SERVICES PRIOR TO USING THE SERVICES. BY PURCHASING A SUBSCRIPTION TO THE SERVICES, YOU AGREE THAT, ONCE YOUR SUBSCRIPTION EXPIRES, YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW FOR SUCCESSIVE MONTHLY PERIODS UNLESS YOU CANCEL YOUR SUBSCRIPTION AS FURTHER DESCRIBED BELOW. YOU AUTHORIZE LIQUIDSKY TO CHARGE THE PAYMENT METHOD THAT OUR SERVICE PROVIDER HAS ON FILE FOR YOU TO PAY FOR ANY RENEWAL SUBSCRIPTION. YOU WILL BE BILLED FOR THE SAME SUBSCRIPTION PLAN (OR THE MOST SIMILAR SUBSCRIPTION PLAN, IF YOUR PRIOR PLAN IS NO LONGER AVAILABLE) AT THE THEN-CURRENT MONTHLY SUBSCRIPTION PRICE PLUS ANY APPLICABLE TAXES. WE WILL PROCESS YOUR PAYMENTS FOR ANY RENEWAL SUBSCRIPTION USING THE SAME BILLING CYCLE AS YOUR CURRENT SUBSCRIPTION. IN OTHER WORDS, IF WE PROCESS YOUR PAYMENT FOR YOUR CURRENT SUBSCRIPTION ON THE 20TH OF EACH MONTH, THEN WE WILL CONTINUE TO PROCESS YOUR PAYMENT ON THAT DAY FOR ANY RENEWAL SUBSCRIPTION. ADDITIONAL TERMS AND CONDITIONS MAY APPLY UPON RENEWAL, AND SUBSCRIPTION FEES MAY CHANGE AT ANY TIME, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW. WE WILL NOTIFY YOU OF ANY CHANGES TO YOUR SUBSCRIPTION VIA EMAIL. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT THE EMAIL ADDRESS ASSOCIATED WITH YOUR ACCOUNT IS ACCURATE.
Cancellation Refund Policy.
YOU MAY CANCEL YOUR SUBSCRIPTION TO THE SERVICES AT ANY TIME, AFTER WHICH WE WILL NOT RENEW YOUR SUBSCRIPTION. YOUR CANCELLATION WILL BE EFFECTIVE AT THE END OF THE THEN-CURRENT SUBSCRIPTION TERM. NO REFUNDS WILL BE GIVEN.
You may also purchase hourly increments of SkyComputer usage for the fees set forth on the Services.
- c. We use a third party payment processor to process fees. All purchases are charged in U.S. dollars.
- Account Closure.
- a. CLOSING YOUR ACCOUNT WILL RESULT IN PERMANENT LOSS OF ACCESS, CONTENT, SERVICES AND VALUE ON THE SERVICES. PLEASE READ THIS “ACCOUNT CLOSURE” SECTION CAREFULLY BEFORE PROCEEDING WITH CLOSURE. You may close your Account at any time. If you decide to close your Account, please contact LiquidSky customer support at
. Voluntary Account closure may immediately and permanently terminate your access to the Services using the closed Account; immediately and permanently terminate your access to all content, messages, services on the Services that the closed Account would otherwise have access to or could derive value from; and result in your immediate and permanent forfeiture of any coupons, access passes, SkyCredits, user generated content, Your Content, or anything that may be of value directly or indirectly associated with the Account, if any, whether purchased or not.
- b. LiquidSky reserves the right to terminate Accounts at any time, with or without notice, including for a violation of these Terms. Without limiting the generality of the forgoing, if a free Account is inactive for ninety (90) days, then we may delete any or all of Your Content without providing additional notice as otherwise set forth in this Section 13. If we close your Account, we may keep your Account data for longer periods to protect LiquidSky’s or others’ rights and property, to prevent fraud, or where we in good faith believe such longer retention is required by law or legal process we may have received. For all closed Accounts, we reserve the right to retain information as necessary or appropriate for lawful business purposes, to prevent fraud, to protect our rights and property, or as required by law. Any remaining payments due on the Account will remain due and collectible after the Account is closed until they are paid.
- c. Should LiquidSky not receive timely payment for the continuation of your Account, all saved data and programs will be deleted from LiquidSky servers after a grace period of 48 hours.
- Copyright Policy.
Repeat Infringer Policy.
LiquidSky’s intellectual property policy is to (a) remove or disable access to material that LiquidSky believes in good faith, upon notice from an intellectual property owner or their agent, is infringing the intellectual property of a third party by being made available through the Services, and (b) remove Your Content or Feedback uploaded to the Services by “repeat infringers.” You are a “repeat infringer” if you have uploaded Your Content or Feedback to or through the Services and LiquidSky has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to Your Content, or Feedback. LiquidSky has discretion, however, to terminate any Account after receipt of a single notification of claimed infringement or upon LiquidSky’s own determination.
Notifications of Claimed Infringement.
If you believe that any content made available on or through the Services has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a
Notifications of Claimed Infringement.
containing the following information to the Designated Agent identified below. LiquidSky may share your Notification of Claimed Infringement with the user alleged to have infringed a right you own or control, and you hereby consent to LiquidSky making such disclosure. Your communication must include substantially the following:
- i. A physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
- ii. Identification of works or materials being infringed, or, if multiple works are covered by a single notification, a representative list of such works;
- iii. Identification of the specific material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit LiquidSky to locate the material
- iv. Information reasonably sufficient to permit LiquidSky to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;
- v. A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- vi. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
LiquidSky’s designated agent for receipt of Notifications of Claimed Infringement (the
can be contacted at: 1460 Broadway New York, NY 10036 or by email firstname.lastname@example.org.
- Dispute Resolution
Please read this carefully. It affects your rights. YOU AND LIQUIDSKY AND EACH OF OUR RESPECTIVE CORPORATE PARENTS, SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS, PERMITTED ASSIGNS, AND ANY OTHER PARTIES ON WHOSE BEHALF YOU ARE ACCESSING THE SERVICES AGREE TO ARBITRATION (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT), AS THE EXCLUSIVE FORM OF DISPUTE RESOLUTION EXCEPT AS PROVIDED FOR BELOW, FOR ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICE. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Please visit www.adr.org for more information about arbitration.
A party who intends to seek arbitration must first send to the other, by an international courier with a tracking mechanism, a written notice of intent to arbitrate (a
), or, in the absence of a mailing address LiquidSky provides to you, via any other method available to LiquidSky, including via e-mail. The Notice to LiquidSky should be addressed to LiquidSky Software Inc., 1460 Broadway New York, NY 10036 Attn:- Chief Executive Officer (the
“Arbitration Notice Address”
). The Notice must (A) describe the nature and basis of the claim or dispute; and (B) set forth the specific relief sought (the
. If you and LiquidSky do not reach an agreement to resolve the claim within thirty (30) days after the Notice is received, you or LiquidSky may commence an arbitration proceeding as set forth below or file a claim in small claims court. THE AMERICAN ARBITRATION ASSOCIATION (
WILL ADMINISTER THE ARBITRATION IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (THE
As Modified By These
If you are required to pay a filing fee to commence an arbitration against LiquidSky, then LiquidSky will promptly reimburse you for your confirmed payment of the filing fee upon LiquidSky’s receipt of Notice at the Arbitration Notice Address that you have commenced arbitration along with a receipt evidencing payment of the filing fee, unless your Demand is equal to or greater than $1,000 or was filed in bad faith, in which case you are solely responsible for the payment of the filing fee.
The arbitration will be conducted in the English language. A single independent and impartial arbitrator with his or her primary place of business in New York, New York will be appointed pursuant to the Rules, as modified herein. You and LiquidSky agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties:- (A) arbitration will only be conducted if the damages sought exceed $75,000; (B) the arbitration will be conducted online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (C) the arbitration will not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (D) any judgment on the award the arbitrator renders may be entered in any court of competent jurisdiction.
No Class Actions
YOU AND LIQUIDSKY AGREE THAT YOU AND LIQUIDSKY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISO IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS MANDATORY ARBITRATION SECTION WILL BE NULL AND VOID.
Decision of the Arbitrator.
Barring extraordinary circumstances, the arbitrator will issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings will be closed to the public and confidential, and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator will be in writing and will include a statement setting forth the reasons for the disposition of any claim. The arbitrator will apply the laws of the State of New York in conducting the arbitration. You acknowledge that these terms and your use of the Services evidences a transaction involving interstate commerce. The United States Federal Arbitration Act will govern the interpretation, enforcement, and proceedings pursuant to the Mandatory Arbitration clause in these Terms.
The foregoing provisions of this Dispute Resolution section do not apply to any claim in which either party seeks equitable relief to protect such party’s copyrights, trademarks, or patents. You acknowledge that, in the event LiquidSky or a third party breaches these Terms, the damage or harm, if any, caused to you will not entitle you to seek injunctive or other equitable relief against LiquidSky, and your only remedy will be for monetary damages, subject to the limitations of liability set forth in These Terms.
You and LiquidSky agree that, notwithstanding any other rights the party may have under law or equity, any cause of action arising out of or related to these Terms or the Services, excluding a claim for indemnification, must commence within one year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
Improperly Filed Claims.
All claims you bring against LiquidSky must be resolved in accordance with this Dispute Resolution section. All claims filed or brought contrary to this Dispute Resolution section will be considered improperly filed. Should you file a claim contrary to this Dispute Resolution section, LiquidSky may recover attorneys’ fees and costs up to $5,000, provided that LiquidSky has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
In the event that LiquidSky makes any future change to the Mandatory Arbitration provision (other than a change to LiquidSky’s Arbitration Notice Address), you may reject any such change by sending us written notice within thirty (30) days of the change to LiquidSky’s Arbitration Notice Address, in which case your account with LiquidSky and your license to use the Services will terminate immediately, and this Dispute Resolution provision, as in effect immediately prior to the amendments you reject, will survive the termination of these Terms.
If only Section 15.a.iii or the entirety of this Section 15 is found to be unenforceable, then the entirety of this Section 15 will be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 16 will govern any action arising out of or related to these Terms.
- Governing Law; Choice of Forum.
The laws of the State of New York, excluding its conflicts of law rules, govern these Terms and your use of the Services. Your use of the Services may also be subject to other local, state, national, or international laws. To the extent that any action relating to any dispute hereunder is permitted to be brought in a court of law, such action will be subject to the exclusive jurisdiction of the state and federal courts located in New York County, New York, and you hereby irrevocably submit to personal jurisdiction in such courts, and waive any defense of inconvenient forum.
- Representations and Warranties.
In addition to the representations and warranties in Section 9.b, you represent and warrant that (i) you have the full power and authority to enter and perform under the Terms, (ii) the execution and performance of your obligations under the Terms does not constitute a breach of or conflict with any other agreement or arrangement by which you are bound, and (iii) the Terms are a legal, valid, and binding obligation of you, enforceable in accordance with its terms and conditions.
You agree to defend, indemnify and hold LiquidSky, its directors, officers, employees, contractors, affiliates, suppliers, and licensors (collectively
“LiquidSky Indemnified Parties”
) harmless from any liability, damage, settlement, loss, or expense (including, without limitation, attorneys’ fees and costs) incurred in connection with any third-party claim, demand or action (
) brought or made against any of the LiquidSky Indemnified Parties arising out of or relating to (a) any violation by you of any of the Terms, (b) any act or omission by or on behalf of you or arising out of your use of the Services, (c) any unauthorized modification or alteration of any hardware or software made available to you in connection with the Services (d) any information, content or materials (including, without limitation, any Feedback (as defined below) or Your Content) provided or made available by you; and/or (e) any use of LiquidSky Services to access Third Party Services without authorization. If you have to indemnify any of the LiquidSky Indemnified Parties under this Section, LiquidSky and/or the relevant LiquidSky Indemnified Parties will have the right to control the defense, settlement, and resolution of any Claim at your sole expense. You may not settle or otherwise resolve any Claim without LiquidSky’s prior express written permission.
SOME OR ALL ASPECTS OF THE SERVICES MAY NOT FUNCTION ON CERTAIN DEVICES. LIQUIDSKY PROVIDES THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LIQUIDSKY DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR THEIR USE (I) WILL BE UNINTERRUPTED, (II) WILL BE FREE OF INACCURACIES OR ERRORS, OR (III) WILL BE FREE OF VIRUSES OR OTHER HARMFUL SOFTWARE COMPONENTS. LIQUIDSKY UTILIZES THE INTERNET, WHICH BY ITS VERY NATURE CAN BE UNRELIABLE AND UNPREDICTABLE. INTERNET CONNECTION AND RELIABILITY PROBLEMS MAY REDUCE SERVICE QUALITY AND IN SOME CASES MAKE THE SERVICES UNAVAILABLE. LIQUIDSKY DISCLAIMS ANY LIABILITY ASSOCIATED WITH PROVISION OF THE SERVICES OR FAILURE TO PROVIDE THE SERVICES ASSOCIATED WITH INTERNET CONNECTION AND RELIABILITY PROBLEMS. IN ADDITION TO AN INTERNET CONNECTION, THE SERVICES ALSO REQUIRE SUITABLE, CAPABLE, RELIABLE, AND FULLY OPERATIONAL DEVICES AND SOFTWARE, WHICH ARE ALL OUTSIDE OF LIQUIDSKY’S CONTROL. LIQUIDSKY DISCLAIMS ANY LIABILITY ASSOCIATED WITH PROVISION OF THE SERVICES OR FAILURE TO PROVIDE THE SERVICES ASSOCIATED WITH DEVICES AND SOFTWARE OUTSIDE OF LIQUIDSKY’S CONTROL SUCH AS COMPUTERS, DISPLAYS, TELEVISIONS, INPUT DEVICES, SWITCHES, ROUTERS, FIREWALLS, OPERATING SYSTEMS, AND BROWSERS. LIQUIDSKY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED REPRESENTATIONS OR WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE, STATEMENTS OR INFORMATION OBTAINED BY YOU FROM LIQUIDSKY OR ANY OF ITS REPRESENTATIVES OR FROM ANY THIRD PARTY OR THROUGH THE SERVICES SHALL CREATE ANY REPRESENTATION OR WARRANTY NOT EXPRESSLY STATED IN THE TERMS. LIQUIDSKY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY WEBSITE, PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH OR IN CONNECTION WITH THE SERVICES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS UNDER APPLICABLE LAW. LIQUIDSKY IS NOT RESPONSIBLE FOR ANY INTERNET, TELEPHONE, WIRELESS, OR OTHER FEES ASSOCIATED WITH YOUR USE OR ACCESS OF ANY SERVICES, PRODUCT, OR CONTENT THROUGH THE SERVICES, INCLUDING YOUR USE OR ACCESS OF ANY FREE SERVICE, PRODUCT, OR CONTENT THROUGH THE SERVICES.
- LIMITATION OF LIABILITY.
IN NO EVENT WILL LIQUIDSKY OR ANY OF ITS AFFILIATES, SUPPLIERS OR LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU OR FOR ANY LOSS OF PROFIT, LOSS OF GOODWILL, WORK STOPPAGE, LOSS OR CORRUPTION OF DATA, SOFTWARE OR HARDWARE (INCLUDING, WITHOUT LIMITATION, COMPUTER) FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER DAMAGES OR LOSSES ARISING FROM OR RELATING TO ANY USE OF THE SERVICES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY AND EVEN IF LIQUIDSKY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU UNDERSTAND THAT LIQUIDSKY WILL IN NO EVENT BE LIABLE FOR ANY CHANGES WHICH LIQUIDSKY MAY MAKE TO THE SERVICES OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES OR ANY OF ITS FEATURES, EVEN IN THE EVENT OF, WITHOUT LIMITATION, FAULT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT, OR BREACH OF ANY REPRESENTATION OR WARRANTY. THESE LIMITATIONS AND EXCLUSIONS REGARDING DAMAGES AND LOSSES APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL LIQUIDSKY’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS APPLICABLE LAW MAY REQUIRE IN CASES INVOLVING PERSONAL INJURY) EXCEED THE GREATER OF $100 AND THE FEES YOU PAID TO LIQUIDSKY IN THE TWELVE MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN DAMAGES, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS UNDER APPLICABLE LAW.
- No Liability for Objectionable Content.
The Services will provide access to games and other content that is rated mature or that you or others may otherwise consider objectionable or inappropriate for persons under age 18. You use the Services at your own risk and we disclaim all liability arising out of your taking offense at any content available on the Services.
If any provision of the Terms is held invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it valid and enforceable. This shall, in no way, affect the validity and enforceability of all other provisions in the Terms.
While our own staff is continually working to develop and evaluate our own product ideas and features, we pride ourselves on paying close attention to the interests, feedback, comments, and suggestions we receive from our users. If you choose to contribute by sending LiquidSky or our employees any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings, promotions, strategies, or product/feature names, or any related documentation, artwork, computer code, diagrams, or other materials (collectively
Feedback. ), then regardless of what your communication may say, the following terms will apply, so that future misunderstandings can be avoided. For clarity, “Feedback” includes all modifications, enhancements, developments and suggestions regarding the Services made by members of the beta-testing community on the Services. Accordingly, by sending Feedback to LiquidSky, you agree that:
- a. LiquidSky has no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason;
- b. Feedback is provided on a non-confidential basis, and LiquidSky is not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way; and
- c. You irrevocably grant LiquidSky and its successors and assigns perpetual and unlimited permission to use the Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including, by way of example and not limitation, by making, using, selling, offering for sale, importing, and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.
ACCEPTABLE USE GUIDELINES
These LiquidSky Acceptable Use
apply to all of your contributions to and participation in any LiquidSky-sponsored service offerings, website, communications system or forum, including, without limitation, any content you create, post, upload, submit, share or distribute through the use of the Services, including uploading or downloading information, such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images that you upload to LiquidSky and including contributions or interactions via text or voice chat, via text messaging, via forums or via message boards, whether within or outside of a game, and any LiquidSky Community Forums (the Forums”
). The Guidelines are incorporated by reference into our Terms of Service. LiquidSky shall have sole discretion to address any behavior exhibited on the Services it considers inappropriate, regardless of whether the specific conduct is expressly prohibited by these Guidelines. LiquidSky will evaluate each incident and take whatever action it deems appropriate, which may include temporary or permanent suspension or closure of your access to all or part of the Services.
- LiquidSky does not provide authorization or licenses for any games or other software services that are provided by Third Party Services. While LiquidSky may act as a conduit to such services, users must still register with those third parties (if required) and otherwise comply with their user agreements.
- LiquidSky takes no responsibility for user experiences with Third Party Services. This includes any dissatisfaction with those services. It also includes any user behavior that may violate state, federal, or international laws, particularly with regards to internet sites users may choose to visit using a browser on LiquidSky, actions they may take on those sites, and materials they may download, whether to LiquidSky’s computers or their own.
- You must ensure that Your Content does not detract from any other user’s experience using the Services. In particular, creating, uploading, posting or linking to any of the following is prohibited (
), subject to LiquidSky’s sole discretion: (a) content that is defamatory, libelous, slanderous, discriminatory, obscene, vulgar, pornographic, sexually explicit, harmful, invasive of a person or entity’s privacy or publicity rights, abusive, inflammatory, in violation of any applicable law or otherwise objectionable or insulting; (b) content that directly or indirectly harasses, threatens, embarrasses, or causes distress or discomfort to another user or third party, such as repeatedly sending unwanted messages or making insulting or offensive statements about race, ethnicity, gender, sexual orientation, nationality, religion or religious figures, etc.; (c) personal attacks, hate speech and harassment; (d) content that disrupts the normal flow of dialogue in any Forums, abusiveness, disrupting communications, etc., (e) attempts to impersonate another person, such as a LiquidSky representative or a celebrity, or attempts to mislead participants by indicating that you are affiliated with LiquidSky or its partners; and (f) content that refers to real life violence, use of illegal drugs or engaging in illegal activities.
- LiquidSky users are prohibited from engaging in the following acts, referred to collectively as
(a) probe, scan, or test the vulnerability of any system or network; (b) breach or otherwise circumvent any security or authentication measures; (c) access, tamper with, or use non-public areas of the Service, shared areas of the Services you have not been invited to, LiquidSky (or our service providers’) computer systems; (d) interfere with or disrupt any user, host, or network, for example by sending a virus, overloading, flooding, spamming, or mail-bombing any part of the Services; (e) plant malware or otherwise use the Services to distribute malware; (f) access or search the Services by any means other than our publicly supported interfaces (for example, “scraping”); (g) send altered, deceptive or false source-identifying information, including “spoofing” or “phishing”; (h) publish anything that is fraudulent, misleading, or infringes another's rights; (i) promote or advertise products or services other than your own without appropriate authorization; (j) impersonate or misrepresent your affiliation with any person or entity; or (k) publish or share materials that are unlawfully pornographic or indecent, or that advocate bigotry, religious, racial or ethnic hatred.
- You must obey all applicable laws, regulations and rules that apply to your activities in connection with the Services. You may not use, post or link to any of the following types of material content that you do not own or have permission to freely distribute; content that would infringe on any patent, trademark, trade secret, copyright, or other intellectual property rights of any party; content that contains software viruses, “auto,” “macro” or “cheat utility” software programs, or any other computer code or files that are designed to disrupt, damage, or limit the functioning of any software or hardware; content that is illegal under any local, state, federal, or international law, rule, regulation or treaty; and content that promotes or encourages any illegal activity, including illegal hacking or distribution of software or systems.
- LiquidSky may not be used for the promotion of third party services, products, websites, or organizations. Posting or linking to content that would constitute advertising, promotional messaging, junk mail, spam, pyramid schemes, chain letters, or any other form of unauthorized solicitation or commercial activity is strictly prohibited.
DISCLAIMER; LIMITATION OF LIABILITY.