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Terms Of Service

Last Modified on March 5, 2017
PLEASE READ THESE TERMS OF SERVICE CAREFULLY; THIS IS A BINDING CONTRACT.
I. Terms
Welcome to Down With Destruction Gaming("DwDG")! DwDG ("DwDG", "we", "us" or "our") is a global community focused on creating services specifically for gamers. We provide information and content to help gamers better enjoy as many aspects of their gaming lifestyle as we can.
In this Terms of Service ("Terms of Service"), we refer to the site, our desktop and mobile software applications (including all Content (defined below) available through the Sites and our desktop and mobile software applications ("Third Parties")) as the "Service". These Terms of Service describe the terms and conditions applicabvle to your access and use of the Service.
BY USING THE SERVICE AND/OR VISITING THIS WEBSITE YOU ARE ACKNOWLEDGING THAT YOU HAVE READ, UNDERSTAND, AND AGREE, WITHOUT LIMITATION OR QUALIFICATION, TO BE BOUND BY THESE TERMS OF SERVICE AND THE TERMS AND CONDITIONS OF DWDG'S PRIVACY POLICY, WHICH ARE PUBLISHED AT https://downwithdestruction.net/help/privacy-policy AND WHICH ARE INCORPORATED HEREIN BY REFERENCE. If you agree to these Terms of Service, then you may use the Service. If you do not agree to any of these terms, then please do not use the Service.
II. Use License
DwDG grants you permission to view and use a single copy of the Service for your personal, non-commercial use, provided you comply with the terms and conditions of these Terms of Service. Excepts as otherwise expressly permitted in writing within the website network, you agree not to license, create derivative works from, transfer, sell or re-sell any information, content, or services obtained from the Service.
The terms and conditions contained in these Terms of Service may not be the only terms that apply to certain activites or transactions you may conduct on the Service. For example, should you choose to donate to DwD Gaming, you must also agree to the Premium Services Additional Terms of Service: https://downwithdestruction.net/help/premium-terms-of-service
In order to access some features of the Service, you will have to create an account. You must be at least 18 years of age to register an account and by creating an account, you represent that you are at least 18 years old. Minor children may only access account-related features using a parent or guardian's account so long as the parent or guardian consents and accepts full respnsibilty for the conduct of the child. When creating your account you must provide accurate and complete information. If your contact information changes, you agree that you will promptly update the account information to reflect those changes. You are solely responsible for the activity that occurs on your account, and you m ust keep your account password secure. You must notify DwDG immediately of any breach of security or unauthorized use of your account. Although DwDG will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of DwDG or others due to such unauthorized use. Accounts are registered to you personally and, other than as explicitly permitted in these Terms of Service, (i) may not be shared, sold, traded, gifted or otherwise transferred at any time under any circumstances and (ii) you may not disclose your password to anyone else.
DwDG grants you permission to link to materials on the Service for personal, non-commerical purposes only. DwDG reserves the right to discontinue any aspect of the Service at any time.
You must provide all equipment and software necessary to connect to the Service, including, but not limited to, a personal computer, that is suitable to connect with and use the Service. You are responsible for any Internet connection and telecommunications fees and charges that you incur when accessing the Service.
III. Use Restrictions
You may not connect to or use the Service in any way not expressly permitted by these Terms of Service. You agree not to access, or attempt to access, the Service by any means other than through the user interface provided through the Service. Without limiting the foregoing, you agree that you will not (i) institute, assist, or become involved in any type of attack, including without limitation denial of service attacks, upon the Service or otherwise attempts to disrupt the Service or any other person's use of the Service; (ii) use or launch any automated system, including without limitation, "robots", "spiders," offline reasers," etc., that access the Service in a manner that sens more requests messages to the DwDG servers in a given period of time than a human can reasonable produce in the same period by using a conventional on-line web browser; (iii) attempt to gain unauthorized access to the Service, accounts registered to ther users, or the computer syustems or networks connected to the Service; (iv) copy or distribute any part of the Service in any medium without DwDG's prior written authorication; (v) alter or modify any part of the Service other than as maybe reasonably necessary to use the Service for its intended purpose;(vi) intercept, examine or otherwise observe any propietary communications protocol used by the Service, whether through the use of a network analyzer, packet sniffer or other device; (vii) collect or harvest any personally identifiable information, including account names, from the Service, or to use the communication systems provided by the Service for any commerical solicitation purposes; (viii) frame or utilize framing techniques to enclose the Service or any portion thereof without our prior written consent (Which consent may be withheld in our sole discretion); (ix) circumvent, disable or otherwise interfere with security related features of the Service or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Service or the Content therein; (x) solicit, for commercial purposes, any users of the Service with respect to their User Submissions; (xi) “stalk” or harass any person or entity on or through the Service; or (xii) violate any applicable law, rule, ordinance, treaty or regulation in connection with your use of the Service. Without limiting the foregoing, you agree that you will not make available through the Service any material or information that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy or publicity).
IV. Intellectual Property Rights
The content on the Service, except all User Submissions (as defined below), including without limitation, the text, software, add-ons, scripts, graphics, photos, sounds, music, videos, interactive features and the like and the trademarks, service marks and logos contained therein (collectively, “Content"), are owned by or licensed to DwDG, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. Content on the Service is provided for your information and personal use only and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. DwDG reserves all rights not expressly granted in and to the Service and the Content. You agree to not engage in the use, copying, or distribution of any of the Content other than expressly permitted herein or as expressly permitted in writing elsewhere on the DwDG website network, including any use, copying, or distribution of User Submissions of third parties obtained through the Service for any commercial purposes. If you download or print a copy of the Content for personal use, you must retain all copyright, trademark and other proprietary notices contained therein.
The Service is available for use only by authorized end users in accordance with the terms and conditions set forth in these Terms of Service. The Service is provided for, and DwDG grants you a non-exclusive, non-transferable, revocable, limited license, subject to all limitations provided herein, to access and use the Service using a personal computer or mobile device solely for your individual, non-commercial, entertainment purposes. Except as may be expressly permitted by DwDG, you may not sell, copy, exchange, transfer, publish, assign or otherwise distribute anything you copy or derive from the Service.
V. User Submissions
The Service may now or in the future permit the submission of content, including, without limitation, forum postings, wiki contributions, artwork, photos, writings, illustrations, music, audio, voice (including through the part of the service known as TeamSpeak 3 Voice Server), sound effects, video, sketches, graphics, audio-visual works, software, code and algorithms, by you and other users ("User Submissions") and the hosting, sharing, and/or publishing of such User Submissions. You understand that whether or not such User Submissions are published, DwDG does not guarantee any confidentiality with respect to any such submissions.
You shall be solely responsible for your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, you affirm, represent, and/or warrant that: (i) you own or have the necessary licenses, rights, consents, and permissions to use and authorize DwDG to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Submissions to enable inclusion and use of the User Submissions in the manner contemplated by the Service and these Terms of Service; and (ii) you have the written consent, release, and/or permission of each and every identifiable individual person in the User Submission to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the User Submissions in the manner contemplated by the Service and these Terms of Service.
By submitting, posting or displaying User Submissions on, to, or through the Service, you grant DwDG a worldwide, non-exclusive, transferrable, royalty-free right to use, reproduce, distribute, display, perform, make derivative works of (except with regard to Submitted Projects), transmit or otherwise utilize such User Submissions on the Service (or successor services operated by DwDG or its affiliates). In addition to the foregoing, you grant DwDG the right to syndicate User Submissions and use User Submissions in connection with any service offered by DwDG. With regard to User Submissions known as “plugins”, "maps", "mods", or other types of projects submitted through downwithdestruction.net or sites powered by DwDG (“Submitted Projects”), the aforementioned rights granted by you terminate once you remove or delete such Submitted Projects from the Service. You also acknowledge that DwDG may retain, but not display, distribute, or perform, server copies of Submitted Projects that have been removed or deleted. You acknowledge that the rights granted to DwDG to User Submissions other than Submitted Projects are perpetual. In addition, by submitting, posting or displaying User Submissions on, to, or through the Service, you grant users of the Service a non-exclusive license to access your User Submissions through the Service (or any successor service) and to use such User Submissions in accordance with the license chosen by you and posted on the Service where such User Submissions are accessible.
In connection with User Submissions, you further agree that you will not: (i) submit material that is subject to third party copyright, trade secret, trademark, patent or other proprietary rights, including privacy and publicity rights, unless you have permission from their rightful owner to post the material and to grant DwDG all of the license rights granted herein; (ii) otherwise submit any User Submission that you do not have the right to submit under any law or under contract or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (iii) publish falsehoods or misrepresentations that could damage DwDG or any third party; (iv) submit material that is unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, harms minors in any way or is otherwise inappropriate, as determined by DwDG in its sole discretion; (v) post advertisements or solicitations of business or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation; (vi) forge headers or otherwise manipulate identifiers in order to disguise the origin of any User Submission; (vii) use a false, e-mail address, impersonate any other person or entity or otherwise misrepresent your affiliation with a person or entity or otherwise be misleading regarding the origin of any User Submission submitted by you; or (viii) act in any manner that negatively affects other users' ability to use the Service.
You acknowledge that DwDG has the right to pre-screen any User Submissions, but no obligation to do so. At DwDG's sole discretion, any User Submissions may be included in the Service in whole or in part in a modified form. In addition, DwDG and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any User Submission that is available via the Service that violates these Terms of Service or is otherwise objectionable including, but not limited to, being unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or violating any party’s intellectual property.
You are solely responsible for your interactions with other users of the Service and any other parties with whom you interact through the Service, including through the part of the Service known as TeamSpeak 3 Voice Server. DwDG reserves the right, but has no obligation, to become involved in any way with these disputes. If you have a dispute with one or more users, you release DwDG, its affiliated companies and each of their respective officers, directors, agents, subsidiaries, joint ventures, representatives, business partners and employees from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes, including damages for loss of profits, goodwill, use or data. If you are a California resident, you waive California Civil Code §1542, which says: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
DwDG does not endorse any User Submission or any opinion, recommendation, or advice expressed therein, and DwDG expressly disclaims any and all liability in connection with User Submissions. DwDG reserves the right to remove Content and User Submissions with or without prior notice for any reason or no reason at all. DwDG will also terminate a user's access to its Service, if they are determined to be a repeat infringer. A repeat infringer is a user who has been notified of infringing activity more than twice and/or has had a User Submission removed from the Service more than twice. DwDG also reserves the right to decide whether Content or a User Submission is appropriate and complies with these Terms of Service for violations other than copyright infringement and violations of intellectual property law, such as, but not limited to, pornography, obscene or defamatory material, or excessive length. DwDG may remove such User Submissions and/or terminate a user's access for uploading such material in violation of these Terms of Service at any time, without prior notice and at its sole discretion. We also reserve the right, at all times and in our sole discretion, to disclose any User Submissions for any reason, including without limitation (a) to satisfy any applicable law, regulation, legal process or governmental request; (b) to enforce the terms of this or any other agreement; (c) to protect our legal rights and remedies; (d) where we believe someone’s health or safety may be threatened; or (e) to report a crime or other offensive behavior. Additionally, DwDG reserves the right to terminate your account if we (i) determine that you are (a) in breach of or otherwise acting inconsistently with these Terms of Service or (b) engaging in fraudulent or illegal activities or other conduct that may result in liability to DwDG; (ii) determine that we are required by law to terminate your account or (iii) decide to stop providing the Service or critical portions of the Service in the country where you reside, access the Service or use the Service or DwDG determines that it is no longer in our business interests to continue providing any Service or critical portions of the Service. The Service is a closely-controlled virtual environment owned and maintained by DwDG, and DwDG reserves the right to deny service to any user at DwDG's sole and absolute discretion. The Service is offered with the understanding that DwDG may terminate any account registered to you and/or your access to the Service at any time, for any reason or no reason, including without limitation for any violation of these Terms of Service. DwDG may stop offering and/or supporting the Service at any time.
You understand that when using the Service, you will be exposed to User Submissions from a variety of sources, and that DwDG is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Submissions. You further understand and acknowledge that you may be exposed to User Submissions that are inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against DwDG with respect thereto.
VI. Copyright Infringement Notice of Claims
If you are a copyright owner or agent thereof and believe that content posted on the Service infringes upon your copyright, please submit notice, pursuant to the Digital Millennium Copyright Act (17 U.S.C. § 512(c)) to our Copyright Agent with the following information:
  1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright;
  2. a description of the copyrighted work that you claim has been infringed;
  3. the URL of the location on our website containing the material that you claim is infringing;
  4. your address, telephone number, and email address;
  5. a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
  6. a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
Our Copyright Agent can be reached by email at contact@downwithdestruction.net. Please note that attachments cannot be accepted at the email address for security reasons. Accordingly, any notification of infringement submitted electronically with an attachment will not be received or processed.
VII. Utilizing Your Computer or Other Device
Some of the benefits of the Service require such Service to access information on your computer or other applicable device. You hereby grant permission for the Service to monitor your computer or other applicable device (including, but not limited to, your device's memory) and to communicate information, including, without limitation, your account information, to DwD's servers for the purposes of analyzing your device's performance during use of the Service. Additionally, the Service may utilize the processor, bandwidth and hard drive (or other memory or storage hardware) and/or cache of your computer or other applicable device for the limited purpose of facilitating the communication between, and the transmittal of data, content, services or features to, you and other users, and to facilitate the operation of the network of computers running instances of the Service.
VIII. Third Party Products
Part I:
These Terms of Service apply to all users of the Service, including users who are also contributors of video content, information, and other materials or services on the Service. The Service may contain links to, and may be incorporated into technology, software and services owned and controlled by, third party websites that are not owned or controlled by DwD. Use of such third party products or services is subject to the terms and conditions of the applicable third party license agreements (including, without limitation, terms of use and terms of service posted on third party Service). Additionally, DwD has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party products. DwD will not and cannot censor or edit the content of any third-party product. You agree to look solely to the applicable third party and not to DwD with respect to your rights in relation to such third party product, technology and/or services. By using the Service, you expressly relieve DwD from any and all liability arising from your use of any third-party product. Accordingly, we encourage you to be aware when you leave the Service and to read the terms and conditions and privacy policy of each other product that you visit. (Buycraft, paypal, etc..)
Part II:
For your convenience, DwD's services may provide you access to Third Party Products through certain Third Party Vendors. Neither DwD nor any Third Party Vendor makes any representations or warranties of any kind, express or implied, regarding any Third Party Products. You agree that will not (a) copy any license keys or otherwise decrypt or circumvent any license key, (b) run Third Party Products without DwD's services consent could result in Termination, (c) remove, modify, or obscure any copyright, trademark, or other proprietary rights notices that appear on or during use of any Third Party Product, or (d) reverse engineer, decompile, or disassemble any Third Party Product, except to the extent that such activity is expressly permitted by the Third Party Vendor or applicable law. You agree to observe the terms of any license or applicable end user subscriber agreement for Third Party Products and DwD's services will not have any liability for your use of any Third Party Products or any violation of any license agreements or end user subscriber agreements that govern such Third Party Products. You will be solely responsible for any additional software of products that you install or use in conjunction with our Services. (Tapatalk, etc..)
IX. Social Networking
The Service may include features that operate in conjunction with certain third party social networking websites that you visit such as Facebook (“Social Network Features”). While your use of the Social Network Features is governed by these Terms of Service, your access and use of third party social networking websites and the services provided through these websites is governed by the terms of service and other agreements posted on these websites. It is impossible for DwD to determine in each case whether your use of the Social Network Features would cause you to violate or breach the terms of service and/or other agreements posted on these third party websites. You understand and acknowledge that your use of the Social Network Features may cause you to violate or breach the terms of service and other agreements posted on these third party websites which could result in the termination of your account and ability to access these third party websites and, in some cases, could give rise to liability for damages. YOU AGREE THAT YOU ALONE ARE RESPONSIBLE FOR YOUR USE OF THE SOCIAL NETWORK FEATURES AND THAT DWD WILL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR YOUR VIOLATION OR BREACH OF ANY TERMS OF SERVICE OR OTHER AGREEMENT THAT MAY RESULT FROM YOUR USE OF THE SOCIAL NETWORK FEATURES.
X. Warranty Disclaimer
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. DWD MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY CONTENT AVAILABLE THROUGH THE SERVICE AND DWD DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY IN RELATION TO ALL CONTENT MADE AVAILABLE THROUGH THE SERVICE. YOU ARE RESPONSIBLE FOR VERIFYING ANY INFORMATION BEFORE RELYING ON IT. USE OF THE SERVICE AND/OR THE CONTENT AND USER SUBMISSIONS AVAILABLE THROUGH THE SERVICE IS AT YOUR SOLE RISK. DWD DOES NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. DWD DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED SERVICE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND DWD WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. YOU ACKNOWLEDGE AND AGREE THAT ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER, MOBILE PHONE OR OTHER DEVICE OR ANY LOSS OF DATA RESULTING FROM DOWNLOADING OR OBTAINING SUCH MATERIAL.
Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimer may not apply to you.
XI. Liability Limitation
TO THE MAXIMUM EXTENT PERMITTED BY LAW, DWD, ITS AFFILIATED COMPANIES AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, AGENTS AND BUSINESS PARTNERS (COLLECTIVELY, THE “RELATED PARTIES”) DISCLAIM ALL LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND FURTHER DISCLAIM ALL LOSSES, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SERVICE, EVEN IF DWD AND/OR RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE LIABILITY OF DWD OR ANY OF THE RELATED PARTIES EXCEED THE AMOUNT THAT YOU PAID TO DWD OR OUR DESIGNEES DURING THE SIX (6) MONTHS PRIOR TO THE TIME YOUR CAUSE OF ACTION AROSE.
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of DwD and its affiliates shall be limited to the fullest extent permitted by law.
XII. Claims Limitation
YOU AND DWD AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
XIII. Location
Part: I (Controlled)
The Service(s) is controlled by DwD from representatives in the United States of America and the Commonwealth of Australia. DwD makes no representations that the Service(s) is appropriate or available for use in other locations. Those who access or use the Service(s) from other jurisdictions do so at their own volition and are responsible for compliance with local law.
Part: II (Offered)
The Service(s) is controlled and offered by Third Party Vendors from facilities in Canada and the French Republic. DwD makes no representations that the Service(s) is appropriate or available for use in other locations. Those who access or use the Service(s) from other jurisdictions do so at their own volition and are responsible for compliance with local law.
XIV. Indemnity
You agree to defend, indemnify and hold harmless DwD and the Related Parties from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) your use of and access to the Service; (ii) your violation of any term of these Terms of Service; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that one of your User Submissions caused damage to any third party. This defense and indemnification obligation will survive these Terms of Service and your use of the Service.
XV. Children
The Service is not directed toward children under 13 years of age nor does DwD knowingly collect information from children under 13. If you are under 13, please do not submit any personally identifiable information to DwD.
XVI. Assignment
These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by DwD without restriction.
XVII. Equitable Remedies
You hereby agree that DwD would be irreparably damaged if the terms of these Terms of Service were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of the Terms of Service, in addition to such other remedies as we may otherwise have available to us under applicable laws.
XVIII. Governing Law; Jurisdiction and Binding Arbitration
You and DwD agree that, except as provided below, all disputes, controversies and claims related to these Terms of Service (each a “Claim”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in these Terms of Service. In the event of a conflict between the terms set forth herein and the JAMS Rules, the terms herein will control and prevail.
Except as otherwise set forth below, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and DwD will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in these Terms of Service, (a) you and DwD may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (b) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND DWD WAIVE THE RIGHT TO SUE IN COURT.
Location. The arbitration will take place in Philadelpha, Pennsylvania, unless the parties agree to video, phone and/or internet connection appearances.
Limitations. You and DwD agree that any arbitration shall be limited to the Claim between DwD and you individually. YOU AND DWD AGREE THAT (a) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (b) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY; AND (c) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
Exceptions to Arbitration. You and DwD agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: any Claim seeking to enforce or protect, or concerning the validity of, any of your or DwD's intellectual property rights. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
Arbitration Fees. If you initiate arbitration for a Claim, you will need to pay the JAMS arbitration initiation fee. If we are initiating arbitration for a Claim, we will pay all costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.
Severability. You and DwD agree that if any portion this Arbitration section is found illegal or unenforceable (except any portion related to the “Exceptions to Arbitration”), that portion shall be severed and the remainder of this Arbitration section shall be given full force and effect.
XIX. Changes to Terms of Service
DwD reserves the right to amend these Terms of Service at any time, and it is your responsibility to review these Terms of Service for any changes at https://downwithdestruction.net/help/terms-of-service. Notwithstanding the foregoing, we will notify you of material changes to these Terms of Service by posting a notice on our website. Your use of the Service following any amendment of these Terms of Service will signify your assent to and acceptance of its revised terms.
XX. General
These Terms of Service may only be revised in a writing signed by DwD, or published by DwD on the Service. You agree that no joint venture, partnership, employment, or agency relationship exists between you and DwD as a result of these Terms of Service or your use of the Service. In the event any litigation or arbitration is brought by either party in connection with these Terms of Service, the prevailing party shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in the action.
You agree that: (i) the Service shall be deemed solely based in Pennsylvania; and (ii) the Service shall be deemed a passive Service that does not give rise to personal jurisdiction over DwD, either specific or general, in jurisdictions other than Pennsylvania. These Terms of Service shall be governed by and construed in accordance with the laws of the State of Pennsylvania, United States of America without regard to its conflict of law rules. Except as provided above in the section entitled “Governing Law; Jurisdiction and Binding Arbitration,” all disputes arising out of or relating to your use of the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Philadephia, Pennsylvania and you agree to submit to the personal jurisdiction and venue of such courts. Notwithstanding the foregoing and not withstanding anything to the contrary in the Section entitled “Governing Law; Jurisdiction and Binding Arbitration,” either party shall be allowed to apply for equitable remedies (including injunctions) in any jurisdiction.
The failure of DwD to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. These Terms of Service, together with the Privacy Policy at https://downwithdestruction.net/help/privacy-policy/, the Premium Services Additional Terms of Service https://downwithdestruction.net/help/premium-terms-of-service (if applicable to you) and any other legal notices published by DwD on the Service, shall constitute the entire agreement between you and DwD concerning the Service.
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