IMPORTANT. THIS SOFTWARE APPLICATION, INCLUDING ANY UPDATES (DEFINED BELOW) AND ANY RELATED DOCUMENTATION THAT ARE NOT OTHERWISE DISTRIBUTED UNDER A SEPARATE LICENSE AGREEMENT (COLLECTIVELY THE “APPLICATION”), IS LICENSED AND NOT SOLD TO YOU BY ZENIMAX MEDIA INC., ON BEHALF OF ITSELF AND ITS SUBSIDIARIES AND AFFILIATES (“ZENIMAX”). BY DOWNLOADING, INSTALLING OR USING THE APPLICATION, YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT (“AGREEMENT”).
IN ADDITION, BY DOWNLOADING, INSTALLING OR USING THE APPLICATION, YOU AGREE ZENIMAX’S TERMS OF SERVICE (available at https://bethesda.net/en/document/terms-of-service) AND ZENIMAX’S CODE OF CONDUCT (available at https://bethesda.net/en/document/code-of-conduct), which are incorporated into this Agreement by this reference and form a part of this Agreement. YOU FURTHER ACKNOWLEDGE AND UNDERSTAND THAT ZENIMAX WILL PROCESS YOUR PERSONAL DATA IN ACCORDANCE WITH THE ZENIMAX PRIVACY POLICY (available at https://bethesda.net/en/document/privacy-policy). YOU SHOULD PRINT OR RETAIN A COPY OF THE ZENIMAX TERMS OF SERVICE, THE PRIVACY POLICY AND THE CODE OF CONDUCT FOR YOUR RECORDS AND FOR FUTURE REFERENCE.
IF YOU DO NOT AGREE TO ANY OF THE TERMS OF THIS AGREEMENT, ZENIMAX’S TERMS OF SERVICE OR CODE OF CONDUCT, OR YOU HAVE NOT READ AND UNDERSTOOD THE ZENIMAX PRIVACY POLICY, THEN DO NOT DOWNLOAD, INSTALL OR USE THE APPLICATION.
By downloading, installation or using the Application, you affirm that (i) you are at least 18 years of age (or have reached the age of majority if that is not 18 years of age where you live) OR you have reviewed this Agreement with your parent or guardian and he or she has agreed to this Agreement on your behalf and takes full responsibility for your compliance with this Agreement AND (ii) you are a legal resident of a country where your access to and use of the Application are permitted. You represent that you are fully able and competent to enter into this Agreement and to agree to abide by and comply with this Agreement.
SECTION 3 AND SECTION 6 BELOW DISCUSS THE INFORMATION AND DATA COLLECTED ABOUT YOU AND YOUR MOBILE AND/OR ONLINE BEHAVIOR AS WELL AS HOW SUCH INFORMATION AND DATA IS SHARED BY ZENIMAX AND THIRD PARTIES. All personal information collected and processed by ZeniMax in connection with this Agreement will be collected and processed in accordance with the ZeniMax Privacy Policy.
SECTION 12 OF THIS AGREEMENT PROVIDES THAT ALL DISPUTES BETWEEN US SHALL BE SUBMITTED TO BINDING ARBITRATION ON AN INDIVIDUAL BASIS IF YOU RESIDE IN A JURISDICTION OUTSIDE OF THE EUROPEAN ECONOMIC AREA (“EEA”)/UNITED KINGDOM (“UK”)/SWITZERLAND/AUSTRALIA/NEW ZEALAND/TURKEY/JAPAN OR BRAZIL.
EACH TIME YOU USE THE APPLICATION (INCLUDING AS IT MAY BE UPDATED BY ZENIMAX), YOU WILL BE DEEMED TO HAVE ACCEPTED THE TERMS OF THIS AGREEMENT (INCLUDING ANY AMENDMENTS OR UPDATES TO THIS AGREEMENT THAT MAY HAVE BEEN MADE BY ZENIMAX FROM TIME TO TIME). ZeniMax reserves the right to modify this Agreement at any time by posting the revised version in the Information section in the Application. Your continued use of the Application will signify your acceptance of the changes to this Agreement.
The Application is made available and distributed solely for use by authorized end users according to the terms of this Agreement and the ZeniMax Terms of Service. Any use, reproduction, modification or distribution of the Application not expressly authorized by the terms of this Agreement is expressly prohibited.
A very small percentage of individuals may experience epileptic seizures or blackouts when exposed to certain visual images, including without limitation light patterns or flashing lights. If you experience any of the following symptoms while using the Application, immediately discontinue use and consult your physician before resuming use: blackouts, seizures, dizziness, altered vision, eye or muscle twitches, jerking or shaking of arms or legs, loss of awareness, disorientation, confusion, any involuntary movement, or convulsions.
IF YOU ARE RESIDENT IN THE EEA, UK, SWITZERLAND, AUSTRALIA, RUSSIA, NEW ZEALAND, TURKEY, JAPAN OR BRAZIL ZENIMAX ACKNOWLEDGES THAT THERE ARE CERTAIN GUARANTEES, WARRANTIES, TERMS AND CONDITIONS (INCLUDING IN RESPECT OF REFUNDS AND RETURNS AND UNFAIR TERMS) IMPOSED BY THE LAWS RELATING TO THE SUPPLY OF GOODS, SERVICES AND DIGITAL CONTENT UNDER THIS AGREEMENT, WHICH SUCH LAWS EXPRESSLY PROVIDE MAY NOT BE EXCLUDED, RESTRICTED OR MODIFIED OR MAY ONLY BE LIMITED TO A CERTAIN EXTENT (THE "STATUTORY OBLIGATIONS"). NOTHING IN THIS AGREEMENT EXCLUDES, RESTRICTS OR MODIFIES THE STATUTORY OBLIGATIONS OTHERWISE THAN ACCORDING TO SUCH LAWS.
Any commercial use is strictly prohibited. You may not make a copy of the Application available on a network where the Application could be downloaded, accessed or used by any other user(s).
Your right to use the Application is limited to the license grant above, and you may not otherwise copy, display, seek to disable, distribute, perform, publish, modify, transfer, create works from, or use the Application or any component of it, except as expressly authorized by ZeniMax.
Your rights with respect to the Application are subject to this Agreement. The license granted in this Agreement is limited to the intellectual property rights of ZeniMax and its licensors in the Application and does not include any rights to any other intellectual property, including without limitation any patents or trade secrets. All rights not expressly granted in this Agreement are reserved by ZeniMax.
You may not remove, obscure or alter any ZeniMax trademark, service mark, logo, product identification or legal or proprietary notice included in the Application.
ZeniMax may deploy or provide patches, updates, improvements, upgrades, enhancements, and modifications to the Application (“Updates”) that must be installed by you in the manner described by ZeniMax in its discretion before you may continue to use the Application and you hereby grant to ZeniMax your consent to deploy and apply such Updates. All such Updates are part of the Application for purposes of this Agreement, the licenses granted to you and the license limitations and restrictions set forth in this Agreement.
This Agreement does not give you any right to obtain or receive from ZeniMax, and ZeniMax is not obliged to supply to you, any hard-copy documentation, support, telephone assistance or Updates for the Application.
In all cases, the licenses granted to you in this Agreement, including in this Section 1 and in Section 2 below, will terminate upon the termination of this Agreement.
Use of the Application is subject to your compliance with any agreements between you and any third parties applicable to the use of the Application, including without limitation any agreement you have with a wireless carrier for voice or data services.
Virtual Currency may be obtained in one or more ways depending on the type of Virtual Currency, including without limitation Virtual Currency that may be obtained through purchase with real currency, in-Application actions or achievements, as a part of membership benefits, or otherwise. ZeniMax may, from time to time and in its sole discretion, grant Virtual Currency to users of the Application as a gesture of goodwill or in connection with promotions, memberships, competitions, or sweepstakes organized by ZeniMax. All Virtual Currency that is purchased with real currency shall be referred to as “Purchased Virtual Currency.” All Virtual Currency that is not Purchased Virtual Currency shall be referred to as “Complimentary Virtual Currency.”
Regardless of the method by which you obtain a Virtual Currency and subject only to the Statutory Obligations (as defined at the beginning of this Agreement), Virtual Currency has no value in real currency, and is not transferable to any other person, or returnable, exchangeable, or refundable for real currency, goods, or services. By purchasing or otherwise obtaining Virtual Currency, you acknowledge and agree that all Virtual Currencies represent a limited, non-exclusive, non-transferable license for your personal, private, non-commercial use governed by this Agreement. Because it is a license, Virtual Currency is not property in which you have any ownership right, title, or other interest. Any Virtual Currency balance shown in your account or wallet does not constitute a real currency balance or reflect any monetary value.
ZeniMax reserves the right to change the price for any Purchased Virtual Currency or to bundle Purchased Virtual Currency in any amount with other services or access to other services at any time and without providing notice to you. You will have no right to a refund as a result of any change in the price or bundling at which Purchase Virtual Currency can be obtained, subject only to the Statutory Obligations (as defined at the beginning of this Agreement). In the case of Complimentary Virtual Currency, ZeniMax reserves the right to change or limit the amount of Complimentary Virtual Currency granted as part of any ongoing or continuous promotion, to discontinue any promotion or to bundle Complimentary Virtual Currency in any amount with other services or access to other services at any time and without providing notice to you.
Virtual Currency is not transferable to, or redeemable for, any sum of real currency or monetary value from ZeniMax or any other person at any time. ZeniMax prohibits, and does not recognize any purported, transfers, sales, gifts, or trades of Virtual Currency. Virtual Currency will only be used by you to obtain virtual goods within the Application (e.g., durable goods that become part of your inventory in the Application and consumable or single use items that are used and expire after use within the Application) or other downloadable content, through one or more services, as determined by ZeniMax in its sole discretion. You agree not to sell or transfer, or assist others in selling or transferring Virtual Currencies or any amounts thereof. Evidence of any attempt to use, sell or transfer Virtual Currency in any manner that violates this Agreement may result in revocation, termination, or cancellation of the Virtual Currency and/or your license to use the Application without refund and/or immediate suspension or termination the licenses granted to you in this Agreement.
You also acknowledge and understand that ZeniMax offers the Application and conducts business in many countries. As a result, personal information collected from or submitted by you through an Application or otherwise may be transferred to and stored on servers and equipment located in a destination outside your country of residence. The servers and equipment on which your data is stored and processed may be owned and operated by third parties with whom ZeniMax has contracted to receive, store and process your personal information. ZeniMax and those third parties that ZeniMax has designated, may further transfer, store and process your personal information on servers and equipment located in other countries. You should be aware that the data protection laws of other countries may not be the same as the data protection laws of your country of residence. This Section 3 shall survive the termination of this Agreement.
The licenses granted to you in this Agreement are subject to the conditions, restrictions and limitations set forth this Agreement, in the ZeniMax Terms of Service and in the ZeniMax Code of Conduct (collectively, the “License Limitations”). Any use of the Application in violation of the License Limitations will be regarded as an infringement of ZeniMax’s copyrights in and to the Application and will be a breach of this Agreement.
You agree that you will not, and will not assist any other person, under any circumstances:
A. in whole or in part, distribute, publicly perform or display, sell, transmit, publish, edit, reproduce, sublicense, rent, lease, loan or otherwise transfer the Application;
B. in whole or in part, modify, adapt, translate, reverse engineer, attempt to derive source code from, modify, disassemble, decompile, or create derivative works based on the Application;
C. use cheats, automation software (bots), hacks, mods or any other unauthorized third-party software designed to modify the Application or adversely impact any other persons use of the Application or his/her experience of using the Application;
D. exploit the Application or any of its parts for any commercial purpose (including without limitation renting, leasing or licensing the Application to others), including without limitation (a) for gathering Virtual Currency, items or resources for sale outside the Application; or (b) performing in-game or in-Application services in exchange for payment outside the Application, e.g., power-leveling;
E. use any unauthorized third-party software that intercepts, “mines”, or otherwise collects information from or through the Application, including without limitation any software that reads areas of RAM used by the Application to store information about a character or the Application environment; provided, however, that ZeniMax may, at its sole and absolute discretion, allow the use of certain third party user interfaces and other third party software;
F. modify or cause to be modified any files that are a part of the Application in any way not expressly authorized by ZeniMax;
G. host, provide or develop matchmaking services for the Application or intercept, emulate or redirect the communication protocols used by ZeniMax in any way, for any purpose, including without limitation unauthorized use/play over the Internet, network usage, or as part of content aggregation networks;
H. facilitate, create or maintain any unauthorized connection to the Application, including without limitation (a) any connection to any unauthorized server that emulates, or attempts to emulate, the Application; and (b) any connection using programs or tools not expressly approved by ZeniMax;
I. take any action or upload, post, transmit, promote, or distribute any illegal content;
J. take any action or upload, post, transmit, promote, or distribute any content that infringes or violates any third party rights;
K. engage in, take any action associated with, or participate in any type of child solicitation, grooming behavior, pedophilia, or predatory behavior in any form;
L. harass, stalk, threaten, embarrass, spam or do anything else to another user of the Application that is unwanted, such as repeatedly sending unwanted messages or making personal attacks or statements about race, sexual orientation, religion, heritage, etc.;
M. take any action or upload, post, transmit, distribute, or communicate your or any person’s real-world personal information;
N. impersonate any person or entity, including, but not limited to, ZeniMax, ZeniMax’s partners’ or affiliates’ employees, or falsely state or otherwise misrepresent your affiliation with a person or entity;
O. take any action, organize, transmit any content, effectuate or participate in any activity, group, or guild that is harmful, tortuous, abusive, hateful (including “hate speech”), racially, ethnically, religiously or otherwise offensive, obscene, threatening, bullying, vulgar, sexually explicit, defamatory, libelous, infringing, invasive of personal privacy or publicity rights, encourages conduct that would violate a law or is, in a reasonable person's view, objectionable and/or deemed to be in the sole discretion of ZeniMax inappropriate;
P. promote, upload, transmit, encourage or take part in any activity involving hacking, cracking, phishing, taking advantage of exploits or cheats and/or distribution of counterfeit software and/or Virtual Currency or virtual items. In an effort to continuously improve the Application, you and other users/players discovering exploits, cheats, cracks or other inconsistencies are required to report them to ZeniMax; or
Q. take any action or upload, post, transmit, promote, or distribute any content that may contain a Trojan horse, virus, worm, spyware, time bombs, cancelbots, corrupted data or other computer programs that you do not own or have permission to freely distribute that may damage, interfere with, intercept, expropriate or disrupt the Application.
You acknowledge and agree that you have no interest, monetary or otherwise, in any feature or content contained in the Application. As further described in the ZeniMax Terms of Service, but subject to the Statutory Obligations (as defined at the beginning of this Agreement), ZeniMax may change, modify, suspend, or discontinue any aspect of the Application at any time and ZeniMax may also impose limits on certain features or restrict your access to parts or all of the Application without notice or liability.
This Section 5 will survive the termination of this Agreement.
ALL PERSONAL INFORMATION COLLECTED AND PROCESSED BY ZENIMAX AS PART OF THE ACTIVITIES SET OUT IN THIS SECTION 6 WILL BE COLLECTED AND PROCESSED IN ACCORDANCE WITH THE ZENIMAX PRIVACY POLICY AND THE TERMS OF THIS AGREEMENT.
This Section 6 will survive the termination of this Agreement.
Termination. This Agreement starts at the time you accept this Agreement and it will remain effective until terminated. This Agreement shall terminate immediately and without notice if you violate or breach this Agreement, the Terms of Service or the Code of Conduct. Upon any termination of this Agreement, all licenses granted in this Agreement will immediately terminate. Promptly upon termination of this Agreement, you must cease all use of the Application and permanently delete the Application from your mobile device. Termination will not limit any of ZeniMax’s other rights or remedies at law or in equity.
Export Restrictions. The Application (including as installed on your mobile device) may not be exported, re-exported, downloaded or otherwise transferred (i) to or into (collectively, an “Export”) any country which requires an Export license or which the United States Government prohibits Exports, including any such country subject to economic sanctions or (i) to any person or entity prohibited from receiving goods or services of U.S. origin. You represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list. This Section 8 will survive the termination of this Agreement.
No Warranty.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO THE STATUTORY OBLIGATIONS (AS DEFINED AT THE BEGINNING OF THIS AGREEMENT), ZENIMAX, AND ITS LICENSORS DO NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES TO YOU REGARDING THE APPLICATION INCLUDING, BUT NOT LIMITED TO, THE QUALITY, FUNCTIONALITY, AVAILABILITY, ACCESSIBILITY OR PERFORMANCE OF THE APPLICATION. THE APPLICATION IS PROVIDED TO YOU ON AN "AS IS", “WITH ALL FAULTS” AND "AS AVAILABLE" BASIS. THE ENTIRE RISK OF SATISFACTORY QUALITY AND PERFORMANCE RESIDES WITH YOU.
ZENIMAX DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE APPLICATION; THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS; THAT OPERATION OF THE APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE; THAT THE APPLICATION WILL INTEROPERATE OR BE COMPATIBLE WITH ANY OTHER APPLICATION OR ANY MOBILE DEVICE; THAT ANY ERRORS IN THE APPLICATION WILL BE CORRECTED; OR THAT THE APPLICATION WILL BE AVAILABLE FOR REINSTALLS TO THE SAME OR MULTIPLE DEVICES. NO ORAL OR WRITTEN ADVICE PROVIDED BY ZENIMAX, APPLE OR ANY AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY.
IN SOME COUNTRIES, INCLUDING THE EEA, UK, SWITZERLAND, AUSTRALIA, RUSSIA, NEW ZEALAND, TURKEY, JAPAN AND BRAZIL IN RESPECT OF THE STATUTORY OBLIGATIONS (AS DEFINED AT THE BEGINNING OF THIS AGREEMENT), CERTAIN WARRANTIES MAY AUTOMATICALLY ARISE OR APPLY UNLESS THESE WARRANTIES ARE DISCLAIMED. SUBJECT TO THE STATUTORY OBLIGATIONS (AS DEFINED AT THE BEGINNING OF THIS AGREEMENT), ZENIMAX AND ITS LICENSORS DISCLAIM AND EXCLUDE ALL SUCH WARRANTIES EITHER EXPRESS, IMPLIED OR STATUTORY, IF AND TO THE EXTENT PERMITTED BY LAW, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS WITH RESPECT TO ALL SERVICES AND ALL IMPLIED WARRANTIES THAT ARISE FROM COURSE OF DEALING OR USAGE OF TRADE.
IN STATES OR JURISDICTIONS THAT PROHIBIT THE DISCLAIMER OF IMPLIED WARRANTIES OR THE EXCLUSION OF CERTAIN WARRANTIES, ZENIMAX SHALL DISCLAIM AND EXCLUDE WARRANTIES TO THE MAXIMUM EXTENT PERMITTED BY LAW AND THE DURATION OF ANY SUCH WARRANTY THAT MAY NOT BE DISCLAIMED SHALL BE FOR THE SHORTEST DURATION PERMITTED BY APPLICABLE LAW.
THIS SECTION 9 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
IF YOU ARE RESIDENT IN THE EEA, UK, SWITZERLAND, AUSTRALIA, RUSSIA, NEW ZEALAND, TURKEY, JAPAN OR BRAZIL THE FOLLOWING PROVISIONS OF THIS SECTION 10 ONLY APPLY TO THE EXTENT THEY ARE NOT CONTRARY TO THE STATUTORY OBLIGATIONS (AS DEFINED AT THE BEGINNING OF THIS AGREEMENT).
Limited Remedy. YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH ZENIMAX OR ITS LICENSORS OR RESELLERS ARISING OUT OF OR RELATING TO THE APPLICATION IS TO STOP USING OR ACCESSING THE APPLICATION.
No Liability for Conduct, Communications or Content. YOU AGREE THAT ZENIMAX, ITS LICENSORS, RESELLERS, LICENSEES AND AFFILIATES ARE NOT LIABLE TO YOU FOR ANY ACT OR FAILURE TO ACT BY THEM OR ANY OTHER PERSON REGARDING CONDUCT, COMMUNICATION OR CONTENT ON OR IN THE APPLICATION.
Liability Cap. IN NO CASE SHALL THE AGGREGATE CUMULATIVE LIABILITY OF ZENIMAX OR ITS AFFILIATES, LICENSORS, LICENSEE, CONTENT PROVIDERS, AND DISTRIBUTORS/RESELLERS AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, CONTRACTORS, AGENTS, OR VENDORS, (COLLECTIVELY, “ZENIMAX AFFILIATES”) FOR DAMAGES TO YOU ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE APPLICATION AND YOUR USE OF ANY SERVICE EXCEED USD$100.00.
Direct Damages. SUBJECT TO THE TERMS IN THIS AGREEMENT, ZENIMAX WILL COMPENSATE YOU FOR ANY REASONABLY FORESEEABLE LOSS OR DAMAGE YOU CAN SHOW THAT YOU HAVE SUFFERED AS A RESULT OF (I) ZENIMAX’S FAILURE TO CARRY OUT ITS OBLIGATIONS UNDER THIS AGREEMENT TO A REASONABLE STANDARD OR (II) ZENIMAX’S BREACH OF ANY DUTIES IMPOSED ON ZENIMAX BY LAW (INCLUDING, BUT NOT LIMITED TO, IF ZENIMAX CAUSES DEATH OR PERSONAL INJURY BY ZENIMAX’S NEGLIGENCE), UNLESS THE FAILURE OR BREACH IS ATTRIBUTED TO:∙(A) YOUR OWN FAULT;∙(B) A THIRD PARTY UNCONNECTED WITH ZENIMAX’S PERFORMANCE OF THIS AGREEMENT (FOR INSTANCE PROBLEMS DUE TO OTHER USERS OF THE APPLICATION, COMMUNICATIONS NETWORK PERFORMANCE, WIRELESS CARRIERS, CONGESTION, AND CONNECTIVITY OR THE PERFORMANCE OF YOUR MOBILE DEVICE OR OTHER EQUIPMENT); OR (C) ANY OTHER EVENTS WHICH NEITHER ZENIMAX, ZENIMAX AFFILIATES, OR SUPPLIERS COULD HAVE FORESEEN OR FORESTALLED EVEN IF ZENIMAX OR THEY HAD TAKEN REASONABLE CARE. AS THE SERVICES ARE FOR CONSUMER USE ONLY, ZENIMAX AND ZENIMAX AFFILIATES WILL NOT BE LIABLE FOR ANY BUSINESS OR COMMERCIAL LOSSES OF ANY KIND OR NATURE, SUCH AS LOST DATA, LOST PROFITS OR BUSINESS INTERRUPTION.
OTHER THAN AS PROVIDED IN THE FOREGOING PARAGRAPH AND CONSISTENT THEREWITH AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ZENIMAX, ZENIMAX AFFILIATES, ITS LICENSORS AND RESELLERS WILL NOT BE LIABLE TO YOU FOR ANY OTHER LOSS OR DAMAGES, INCLUDING WITHOUT LIMITATION, OR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF DATA OR CONTENT, DAMAGE CAUSED TO YOUR SOFTWARE, COMPUTER, MOBILE DEVICE OR OTHER HARDWARE, DATA BREACH AND SECURITY BREACH), REGARDLESS OF THE LEGAL THEORY ON WHICH ANY SUCH DAMAGES MAY BE BASED, INCLUDING WITHOUT LIMITATION THEORIES OF BREACH OF CONTRACT, TORT AND NEGLIGENCE, AND WHETHER OR NOT ZENIMAX HAS BEEN ADVISED OF OR IS AWARE OF THE POSSIBILITY OF ANY SUCH DAMAGES.
THE LIMITATIONS SET FORTH IN THIS SECTION 10 SHALL APPLY EVEN IF A LIMITED REMEDY SET FORTH IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE. THE LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTIES IN THIS AGREEMENT ARE MATERIAL TERMS OF THIS AGREEMENT AND YOU AGREE THAT THE PROVISIONS IN THIS AGREEMENT THAT LIMIT LIABILITY ARE ESSENTIAL TERMS OF THIS AGREEMENT.
THIS SECTION 10 SHALL SURVIVE THE TERMINATION OF THESE THIS AGREEMENT.
For residents of North America, this Agreement and all Disputes (as defined below) shall be governed by the laws of the State of Delaware, USA, excluding its conflicts of laws rules and principles that would result in another State’s or country’s laws applying to this Agreement or any Disputes, and excluding the United Nations Convention on Contracts for the International Sale of Goods, the Uniform Computer Information Transactions Act (“UCITA”), and any laws based on UCITA. For clarity, the terms in this paragraph shall control over any conflicting terms in the ZeniMax Terms of Service, including without limitation any terms that would result in another State’s or country’s laws applying to this Agreement or any Disputes. If you reside outside of North America, then this Agreement and all Disputes shall be governed by the laws of England, excluding its conflicts-of-law rules and principles that would result in another State or country’s laws applying to this Agreement or any Disputes, and excluding the United Nations Convention on Contracts for the International Sale of Goods. Local mandatory laws may apply.
If you reside in the EEA/UK/Switzerland/Australia/New Zealand/Turkey/Japan or Brazil then only the first three paragraphs of this Section 12 will apply to you. ZeniMax will try and solve any disagreements that arise between you and ZeniMax promptly and efficiently. You and ZeniMax may agree to refer any disputed matter to resolution proceedings other than in a court but you and ZeniMax are not restricted from bringing court proceedings at any time.
If you reside outside the EEA/UK/Switzerland/Australia/New Zealand/Turkey/Japan or Brazil, then the first two paragraphs of this Section 12 and the terms below in this Section 12 apply to you.
This Section 12 facilitates the prompt and efficient resolution of any disputes that may arise between you and ZeniMax. Arbitration is a form of private dispute resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision. You have the right to opt-out of this Section 12 (as explained below), which means you would retain your right to file a lawsuit and litigate your disputes in a court, either before a judge or jury. Certain of the terms below in this Section reference “class actions” or “other collective disputes or representative actions.” If you reside in a jurisdiction that does not permit class actions or other collective disputes or representative actions, such terms will not apply to you.
Please read this Section carefully. It provides that all Disputes (defined below) between you and ZeniMax shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in court, before a judge or jury, and/or participate in or be represented in a case filed in court by others (including, but not limited to, class actions, collective actions or representative actions). Except as otherwise expressly provided in this Section 12 or applicable law, entering into this Agreement constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow the terms in this Agreement and can award the same damages and relief as a court (including, but not limited to, attorneys’ fees). The arbitrator may not award damages disclaimed by this Agreement.
For the purpose of this Section 12, “ZeniMax” collectively refers to ZeniMax, its subsidiary and affiliate companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and ZeniMax regarding or related to any aspect of your relationship with ZeniMax, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes, but not limited to, the validity, enforceability or scope of this Section 12 (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced.
YOU AND ZENIMAX EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT OR IN ANY OTHER PROCEEDING IN ACCORDANCE WITH THIS SECTION 12.
A. Pre-Arbitration Claim Resolution. For all Disputes, whether pursued in court or arbitration, you must first give ZeniMax an opportunity to resolve the Dispute. You must commence this process by mailing written notification to ZeniMax Media Inc., Attn: Legal Dep’t, 1370 Piccard Drive, Suite 120, Rockville, MD 20850 USA. That written notification must include (1) your name, (2) your address, (3) a written description of your Dispute, and (4) a description of the specific relief you seek. If ZeniMax does not resolve the Dispute to your satisfaction within 45 days after receipt of your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.
B. Exclusions from Arbitration/Right to Opt Out. Notwithstanding the above, you or ZeniMax may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute is initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THESE TERMS OF SERVICE (the “Opt-Out Deadline”). You may opt out by mailing written notification to ZeniMax Media Inc., Attn: Legal Dep’t, 1370 Piccard Drive, Suite 120, Rockville, MD 20850 USA. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes through arbitration. Your decision to opt-out will have no adverse effect on your relationship with ZeniMax. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.
i. Arbitration Procedures. If this provision applies and the Dispute is not resolved as provided above (“Pre-Arbitration Claim Resolution”) either you or ZeniMax may initiate arbitration proceedings. If you reside in North America, the American Arbitration Association (“AAA”), www.adr.org, will arbitrate all Disputes. If you do not reside in North America, the International Centre for Dispute Resolution (“ICDR”), www.icdr.org, will arbitrate all Disputes. The arbitration taking place before the ICDR will be conducted in English before a single arbitrator. In either case, the arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. The arbitrator shall have the exclusive authority to decide all issues with respect to this Section 12, including, but not limited to whether any particular claim asserted by you or ZeniMax falls within the scope of this Section 12 and any alleged ambiguities in this Section 12.
ii. In Disputes before the AAA, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply for Disputes of less than $75,000, the AAA’s Commercial Arbitration Rules will apply for Disputes involving $75,000 or more, and in either instance the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The ICDR’s rules will apply to Disputes before that entity. AAA and ICDR rules are available at www.adr.org and www.icdr.org or by calling 1-800-778-7879. This provision governs in the event it conflicts with the applicable arbitration rules of the AAA or ICDR. Based on the class action waiver set forth below, under no circumstances will class action procedures or rules apply to the arbitration.
iii. Because the Application and the use and distribution thereof concerns interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
iv. Arbitration Award. The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law and this Agreement, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
v. Location of Arbitration. If you reside in North America, you or ZeniMax may initiate arbitration in either Rockville, Maryland, USA or the judicial district that includes the address you provide in your written notification of Pre-Arbitration Claim Resolution. In the event that you select the judicial district that includes the address you provide in your written notification of Pre-Arbitration Claim Resolution, ZeniMax may transfer the arbitration to Rockville, Maryland, USA in the event that it agrees to pay any additional fees or costs you incur as a result of the transfer, as determined by the arbitrator. If you do not reside in North America, the arbitration shall take place in London, England or Sydney, Australia as requested by you.
vi. Payment of Arbitration Fees and Costs. ZeniMax will pay all arbitration filing fees and arbitrator’s costs and expenses upon your written request given prior to the commencement of the arbitration or as otherwise required by applicable law. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with ZeniMax as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
vii. Class Action Waiver. Any arbitration proceedings initiated pursuant to this Section 12 will be conducted only on an individual basis and not in a class, collective, consolidated or representative action or as a member of a class, collective, consolidated or representative action. If you choose to pursue your Dispute in court by opting out of this provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of the Application can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
C. Jury Waiver. You understand and agree that by entering into this Agreement you and ZeniMax are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Section 12, you and ZeniMax might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.
D. Severability. If any clause within this Section 12 (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Section 12, and the remainder of this Section 12 will be given full force and effect. Notwithstanding the foregoing sentence, if the Class Action Waiver clause is found to be illegal or unenforceable, this entire Section 12 will be unenforceable and the Dispute will be decided by a court.
E. Continuation. This Section 12 shall survive the termination of this Agreement and your use of the Application. Notwithstanding the Disputes Provision, you agree that ZeniMax and you shall be entitled to injunctive relief, specific performance and equitable remedies with respect to the infringement, violation or misappropriation, of the other party’s intellectual property rights, in addition to such other remedies as either party may otherwise have under applicable law.
IF YOU HAVE ANY QUESTIONS CONCERNING THIS AGREEMENT, PLEASE CONTACT CUSTOMER SERVICE AT HTTP://HELP.BETHESDA.NET/.
Supplemental Terms For Apple iPhone, iPod Touch, iPad and Mac Users. The following terms supplement and are in addition to the terms of this Agreement for users who purchase and/or install the Application on Apple, Inc. (“Apple”) iPhone, iPod touch, iPad and/or Mac products (collectively, “Apple Devices”):
Through your purchase, download or installation of the Application, provided that you comply with the terms of this Agreement, you are acquiring and ZeniMax grants you a personal, limited, non-exclusive and non-transferable license to install and use the Application on authorized Apple Device(s) for personal, non-commercial use and subject to the Usage Rules set forth in Apple’s App Store Terms and Conditions and any other rules, obligations and requirements established by Apple. This Agreement does not entitle you to receive from ZeniMax hard-copy documentation, support, telephone assistance or Updates to the Application.
A. You agree that Apple has no obligation whatsoever to furnish any maintenance and support services regarding the Application.
B. Apple shall not be responsible for any claims by you or any third party relating to your possession and/or use of the Application, including but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; (iii) claims arising under consumer protection laws or similar legislation; and (iv) claims by any third party that the Application or your possession and use of the Application infringes on the intellectual property rights of the third party.
C. You represent and warrant that you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and that you are not listed on any U.S. Government list of prohibited or restricted parties.
D. You agree that Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement and that upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.
Last Updated: March 1, 2019