XNA.com Terms of Use and Notices

(Revised October 2008)

The XNA.com website is made up of various internet web pages and services operated by Microsoft Corporation, One Microsoft Way, Redmond, WA 98052-6399 or its affiliates (collectively, the "XNA Web Site").

ACCEPTANCE OF TERMS OF USE.

Throughout the XNA Web Site, Microsoft provides you with access to a variety of resources, including download areas, content, software, communication forums, and product information (collectively the "Services"). The Services include any updates, enhancements, and/or new features that Microsoft may provide from time to time

The Services are subject to these Terms of Use ("TOU"). The most current version of the TOU can be reviewed by clicking on the "Terms of Use" hypertext link located at the bottom of any Web page that is part of XNA.com.

The XNA Web Site may also contain additional terms that govern particular pages, features, or offers (for example, content submission terms, competition rules, or rules or codes of conduct applicable to “chat” areas). Use of the Creators Club Subscription and any activity on Xbox LIVE is additionally governed by the Xbox LIVE: Terms of Use.

Access to some XNA Web Site features may require a Windows Live™ ID account. See http://login.live.com/gls.srf?urlID=MSNPrivacyStatement for the terms and conditions that govern the use of Windows Live ID.
Please note that where you submit via the Services a game which you have developed (a "Game") we will ask you to enter into a separate Game Submission Agreement.

We may from time to time amend this TOU and/or the Code of Conduct. Where we make such an amendment we will notify you via a notice on the XNA.com Web Site. For particularly important changes to the TOU and/or Code of Conduct, we may in addition email you to bring such changes to your attention. Each time you access the XNA.com Web Site or use the Services, you are accepting and agreeing to be bound by the current version of the TOU and the Code of Conduct. Please note that if you are not happy with any change to the TOU or Code of Conduct you should simply cease to use the XNA.com Web Site and the Services.

PRIVACY AND PROTECTION OF PERSONAL INFORMATION.

To operate and provide the Services, we collect certain information about you. We use and protect that information as described in the XNA.com Creator’s Club Online Privacy Statement (http://creators.xna.com/help/privacy and its successors) (“Privacy Statement”), which is incorporated in the TOU by this reference. Please see the Privacy Statement disclosures for more information relating to the collection and use of your personal information. The most current version of the Privacy Statement can be reviewed by clicking on the "Privacy Statement" hypertext link located at the bottom of web pages within the XNA Web Site.

USE OF SITE SPACE.

Any space provided to you on XNA.com is for you to use to participate in the XNA community of game developers. While you may use designated areas of the XNA Web Site to provide supplemental information regarding your own business (provided you do not use spam to provide this information); you may not use the XNA Web Site to sell your goods or services (other than in the form of a Game) or as the primary mechanism for operating your business or providing core information about your business. Any use of the XNA Web Site for commercial purposes is solely at your own risk, Microsoft has no liability for such use, and you agree to hold Microsoft harmless for any claims related to your use of the XNA Web Site for commercial purposes, other than in connection with the submission of a Game.

SOFTWARE AND CONTENT AVAILABLE ON THE XNA WEB SITE.

Microsoft, its suppliers and other users of the Service may from time to time make available software and content to view or download from the Services ("Software"). This Software is the copyrighted work of Microsoft, its suppliers, and/or other users of the Services (e.g. a forum poster) as applicable. Use of the Software is governed by the terms of the end user license agreement, if any, which accompanies or is included with the Software ("License Agreement"). By downloading, installing, or using any such Software that has an associated License Agreement, you are agreeing to the terms of the License Agreement as applied to that Software.

If you are an Xbox LIVE Indie Games Peer Reviewer (as defined on the XNA.com Web Site), any game content (such as a .ccgame package) which you download from the XNA.com Web Site as part of the peer review process is provided solely for the purpose of reviewing the game and for any personal use permitted under the Xbox LIVE: Terms of Use, unless you obtain other rights from the owner of the relevant game. If you are a Community Game Peer Reviewer you will comply with the Peer Review Terms and Conditions, which are available via the XNA.com Web Site.

If there is not a License Agreement presented to you, Microsoft hereby grants you, a limited, personal, non-exclusive, revocable license to use the Software only for and during the authorized use of the Services and/or the game or other product to which the software relates. You may not copy, download, modify or create derivative works, publish, transmit, sell or attempt to sell or transfer, or otherwise use or exploit any software unless we or our suppliers have expressly allowed you to do so.

Any use, reproduction, or redistribution of the Software not in accordance with the License Agreement or this TOU is expressly prohibited by law. You may not disassemble, decompile, or reverse engineer any Software, except and only to the extent that the law expressly permits those activities. You must keep intact all copyright and other proprietary notices related to any Software.

NO UNLAWFUL OR PROHIBITED USE.

In using the Services, you may not:

• engage in, facilitate, or further unlawful conduct;
• use the Services in a way that harms us or our advertisers, affiliates, resellers, distributors, and/or vendors, or any customer of ours or our advertisers, affiliates, resellers, distributors, and/or vendors;
• use any portion of the Services as a destination linked from any unsolicited bulk messages or unsolicited commercial messages ("spam");
• use any automated process or service to access and/or use the Services (such as a BOT, a spider, periodic caching of information stored by Microsoft, or "meta-searching");
• use any unauthorized means to modify or reroute, or attempt to modify or reroute, the Services;
• damage, disable, overburden, or impair the Services (or the network(s) connected to the Services) or interfere with anyone else's ability to access or use the Services;
• resell or redistribute the Services, or any part of the Services;
• disrupt, or try to gain unauthorized access to, any account, computer, hardware, or network related to the Services;
• obtain (or try to obtain) any data from the Service or related hardware, except data that we intend to provide or make available to you;
• use the Service or related hardware to design, develop, or update unauthorized software; or
• use or distribute unauthorized cheats, macros, or scripts.

USE OF COMMUNICATION SERVICES.

The Services may contain e-mail services, bulletin board services, chat areas, news groups, forums, communities, and/or other message or communication facilities designed to enable you to communicate with others (each a "Communication Service" and collectively "Communication Services"). You agree to use the Communication Services only to post, send, and receive messages and material that are proper and, when applicable, related to the particular Communication Service. By way of example, and not as a limitation, you agree that when using the Communication Services, you will not:

• Use the Communication Services in connection with surveys, contests, pyramid schemes, chain letters, junk email, spamming, or any duplicative or unsolicited messages (commercial or otherwise);
• Defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) of others;
• Publish, post, upload, distribute, or disseminate any inappropriate, profane, defamatory, obscene, indecent, or unlawful topic, name, material, or information;
• Use any material or information, including images, photos, sounds, 3D Models, or any other content, which are made available through the Services in any manner that infringes any copyright, trademark, patent, trade secret, or other proprietary right of any party;
• Upload files that contain viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or any other similar software or programs that may damage the operation of another's computer or property of another;
• Advertise or offer via a Communication Service to sell or buy any goods or services for any business purpose, unless such Communication Services specifically allows such messages;
• Download any file posted by another user of a Communication Service that you know, or reasonably should know, cannot be legally reproduced, displayed, performed, and/or distributed in such manner;
• Falsify or delete any copyright management information, such as author attributions, legal or other proper notices, or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded;
• Restrict or inhibit any other user from using and enjoying the Communication Services;
• Violate any code of conduct or other guidelines that may be identified on the XNA.com Web Site as applicable to any particular Communication Service;
• Harvest or otherwise collect via a Communication Service information about others, including e-mail addresses;
• Violate any applicable law or regulation using a Communication Service;
• Create or use a false identity for the purpose of misleading others via Communication Service;
• Post links via a Communication Service to websites that violate this TOU or the XNA.com Code of Conduct; or
• Use, download or otherwise copy, or provide (whether or not for a fee) to a person or entity any directory of users of the Services or other user or usage information or any portion thereof.

Microsoft has no obligation to monitor the Communication Services. Microsoft reserves the right, however, to review materials posted to the Communication Services and to remove any materials in its sole discretion. Microsoft also reserves the right to terminate your access to any or all of the Communication Services at any time, without notice, for any reason or no reason.

In addition, Microsoft reserves the right at all times to disclose any information as Microsoft deems necessary to satisfy any applicable law, regulation, legal process, or governmental request, or to edit, refuse to post, or to remove any information or materials from the XNA.com Web Site, in whole or in part, in Microsoft's sole discretion.

Always use caution when giving out any personally identifiable information about yourself or your children in any Communication Services. Microsoft does not control or endorse the content, messages, or information found in any Communication Services and, therefore, Microsoft specifically disclaims any liability with regard to the Communication Services and any actions resulting from your participation in any Communication Services. “Managers” and “hosts” of any Communication Services are not authorized Microsoft spokespersons, and their views do not necessarily reflect those of Microsoft.

Materials uploaded to the Communication Services may be subject to posted limitations on usage, reproduction, and/or dissemination; you are responsible for adhering to such limitations if you download the materials.

MATERIALS PROVIDED TO MICROSOFT OR POSTED ON THE XNA WEB SITE.

You may be able to submit materials for use in connection with the Services ("User Content"). You understand that Microsoft does not control or endorse the User Content that you and others post or provide on the Services. Except for material that we license to you, we do not claim ownership of the User Content you post or provide on the Services. With respect to User Content you post or provide, however, you grant to the public and to Microsoft, free, unlimited, worldwide, nonexclusive, perpetual, and irrevocable permission to:

• use, modify, copy, distribute, and display the User Content in connection with the Service and other Microsoft products and services.
• publish your name, identifier (such as a gamertag), or other information you supply in connection with the User Content; and
• grant these rights to others.

If the User Content is a photograph or other digital image, you also expressly waive any and all rights of privacy and publicity with respect to the image. You understand that we may need to make copies, change the format, transcode, or otherwise process User Content posted on the Services, including on shared and private areas of the Services, to:

• store and retrieve the User Content;
• make the content available to you and those members of the public to whom you have granted access;
• conform to connecting networks' technical requirements; or
• conform to the limitations and terms of the Services.

You agree to waive in perpetuity in respect of the User Content the benefits of any provision of law known as moral rights or any similar law in any country (moral rights are certain rights that the owner of a copyright work has in relation to how that work is used).

This section only applies to legally permissible content and only to the extent that use and publishing of legally permissible content does not breach the law. You understand that sharing User Content that violates others' copyrights and other intellectual property rights violates this TOU. You represent and warrant that you have all the rights necessary for you to grant these rights and that the use and publication of the User Content does not breach any law. With the exception of certain Games in respect of which we enter into a Game Submission Agreement we will not pay you for your User Content. We may refuse to publish your User Content, and we may remove your User Content from the Service at any time.

WARRANTY DISCLAIMER.

We provide the Service "as-is," "with all faults," and "as available." We do not guarantee the accuracy or timeliness of information available from the Service. We do not warrant that the XNA.com Web Site or the Services will be available uninterrupted and in a fully operating condition. Access to the XNA.com Web Site may be suspended temporarily and without notice in the case of system failure, maintenance or repair or for reasons reasonably beyond our control. The Microsoft parties give no express warranties, guarantees, or conditions under or in relation to the Service, this contract or its subject matter. We exclude any implied warranties, including those of merchantability, fitness for a particular purpose, workmanlike effort, and non-infringement.

LIMITATION OF LIABILITY.

Nothing in this TOU shall exclude or limit Microsoft's liability for fraudulent misrepresentation or for death or personal injury resulting from Microsoft's negligence, or the negligence of Microsoft's employees or agents.

Microsoft does not accept any liability for damage to your computer system or loss of data that results from your use of the Services and Microsoft cannot guarantee that any files that you download are free from viruses, contamination or destructive features.

You can recover from Microsoft and its suppliers and affiliates (in the aggregate) only direct damages up to a total, aggregate amount equal to the fee you pay to Microsoft for your Creator’s Club Subscription for one month or 100 US dollars, whichever is less. You cannot recover any other damages, including consequential, lost profits, special, indirect, incidental, or punitive damages.

This limitation applies to anything related to:

• the Services;
• viruses or other disabling features that affect your access to or use of the Services;
• incompatibility between the Services and other services, software, and hardware;
• delays or failures you may have in initiating, conducting, or completing any transmissions or transactions in connection with the Services in an accurate or timely manner; and
• claims for breach of contract; breach of warranty, guarantee, or condition; strict liability; negligence; or other tort.

LINKS TO THIRD PARTY SITES

The XNA Web Site may contain links to other third party web sites. The linked sites are not under the control of Microsoft, and Microsoft is not responsible for the contents of any linked site or any link contained in a linked site, or any changes or updates to such sites. Links are only provided as a convenience, and the inclusion of a link does not imply endorsement by Microsoft of the linked site.

UNSOLICITED IDEA SUBMISSION POLICY.

Microsoft or any of its employees do not accept or consider unsolicited ideas, including without limitation ideas for new advertising campaigns, promotions, products, technologies, or marketing plans. The sole purpose of this policy is to avoid potential misunderstandings or disputes when Microsoft’s products or marketing strategies might seem similar to ideas submitted to Microsoft. So, please do not send your unsolicited ideas to Microsoft or anyone at Microsoft. If, despite our request that you not send us your ideas and materials, you still send them, please understand that Microsoft makes no assurances your ideas and materials will be treated as confidential or proprietary.

CHANGES TO THE SERVICE; IF WE CANCEL THE SERVICES.

We may change the Services or delete or discontinue features or other content at any time and for any reason (or no reason). We may cancel or suspend your Services at any time. Our cancellation or suspension may be without cause and/or without notice. Upon Services cancellation, your right to use the Services stops right away. Once the Services are cancelled or suspended, any data you have stored on the Services may not be retrieved later.

INTERPRETING THE TOU.

All parts of this TOU apply to the maximum extent permitted by law. A court may hold that we cannot enforce a part of this TOU as written. If this happens, then we will replace that part with terms that most closely match the intent of the part that we cannot enforce. The rest of this TOU will not change. This is the entire contract between you and us regarding your use of the Services. It supersedes any prior contract or statements regarding your use of the Services. If you have confidentiality obligations related to the Services, those obligations remain in force even after termination or cancellation of the Services (for example, you may have been a beta tester). The section titles in this TOU do not limit the other terms of this TOU.

GOVERNING LAW AND JURISDICTION.

This TOU is governed by the laws of the England and Wales, which apply to the interpretation of this TOU and to any claims for breach of it. If you wish to take court proceedings against us you must do so within the United Kingdom.

ASSIGNMENT.

We may assign this TOU, in whole or in part, at any time upon notice to you. You may not assign this TOU, or any part of it, to any other person, without Microsoft's written consent. Any attempt by you to do so is void. You may not transfer to anyone else, either temporarily or permanently, any rights to use the Services or any part of the Services.

NO THIRD PARTY BENEFICIARIES.

This TOU is solely for your and our benefit. It is not for the benefit of any other person, except for permitted successors and assigns under this contract.

CLAIM MUST BE FILED WITHIN ONE YEAR.

Any claim related to this TOU or the Services may not be brought unless brought within one year of the date on which the right to bring a claim first arises. If it is not filed in time, then that claim is permanently barred. This applies to you and your successors. It also applies to us and our successors and assigns.

RESPECT COPYRIGHT.

Please respect the rights of artists and creators. Content such as music, photos, and video may be protected by copyright. People appearing in content may have a right to control use of their image. You may not share other people’s content unless you own the rights or have permission from the owner.

SUPPORT.

Customer support is not offered for the Service, unless provided otherwise in this contract or the materials we publish in connection with a particular Service specify that it includes customer support.

COPYRIGHT NOTICE & FAQ.

© 2008 Microsoft Corporation. All rights reserved.

For more information see http://www.microsoft.com/info/cpyright.mspx#E1E

TRADEMARKS.

Trademark information is available at http://www.microsoft.com/library/toolbar/3.0/trademarks/en-gb.mspx

Any rights not expressly granted herein are reserved.

General XNA feedback, contact xna@microsoft.com