Postparty End User License Agreement

Published: Oct 24, 2022

This End User License Agreement (“Agreement”) applies to your use of the Postparty software (“Software”) and related services made available to you under this Agreement (the Software and such services, collectively, the “Services”). When we say “Epic,” “we” or “us,” we are referring to Life on Air Inc.

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE YOU USE THE SERVICES. IT CONTAINS A BINDING, INDIVIDUAL ARBITRATION AND CLASS-ACTION WAIVER PROVISION. IF YOU ACCEPT THIS AGREEMENT, YOU AND EPIC AGREE TO RESOLVE DISPUTES IN BINDING, INDIVIDUAL ARBITRATION AND GIVE UP THE RIGHT TO GO TO COURT INDIVIDUALLY OR AS PART OF A CLASS ACTION, AND EPIC AGREES TO PAY YOUR ARBITRATION COSTS FOR ALL DISPUTES OF UP TO $10,000 THAT ARE MADE IN GOOD FAITH (SEE SECTION 10). YOU HAVE A TIME-LIMITED RIGHT TO OPT OUT OF THIS WAIVER. NOTE: THIS BINDING INDIVIDUAL ARBITRATION SECTION WILL NOT APPLY TO THE EXTENT PROHIBITED BY THE LAWS OF YOUR COUNTRY OF RESIDENCE.

1. This Agreement Forms a Contract Between You and Us

a. Binding Contract
This Agreement is a legal document detailing your rights and obligations for using the Services. By downloading the Software or using the Services, or continuing to use the Services after we notify you of a change to this Agreement, you agree to be bound by this Agreement. If you do not or cannot agree to this Agreement, you may not use the Services.

b. Updates
We may update this Agreement. You should review this Agreement regularly to take notice of any changes. Your continued use of the Services after we update this Agreement means that you accept and agree to the changes.

c. Electronic Notice
If you have provided us an email address, you consent to receive notices and communications from us about this Agreement and your use of the Services from us at that email address. You agree that these electronic notices satisfy any legal requirement that such communications be in writing.

2. Your Privacy

Your privacy is important to us. Please review our Privacy Policy (https://www.epicgames.com/privacypolicy). It describes how we collect, use, and share information when you use the Services that link to this Privacy Policy.

3. Your Access to the Services

a. Eligibility
To be eligible to access the Services, you represent and warrant that you (i) are not subject to U.S. sanctions or export restrictions and otherwise are eligible to utilize the Services; (ii) are not located or ordinarily resident in a country or region subject to comprehensive or near-comprehensive U.S. sanctions or embargo, unless your use of the Services in that country or region is authorized by U.S. law; and (iii) are not an official, employee, agent, or contractor of, or directly or indirectly acting or purporting to act for or on behalf of, a government or political party subject to U.S. sanctions/embargo, or any other entity in a sanctioned/embargoed country or region or subject to U.S. sanctions/embargo.

If you are under 18 years of age (or the age of legal majority where you live) or otherwise require the consent of a parent or legal guardian to use the Services under applicable law, you may use the Services only under the supervision of a parent or legal guardian who also agrees to be bound by this Agreement.

If you use the Services on behalf of another person or entity, (i) all references to “you” throughout this Agreement will include that person or entity, (ii) you represent that you are authorized to accept this Agreement on that person’s or entity’s behalf, and (iii) in the event you or the person or entity violates this Agreement, that person or entity agrees to be responsible to us.

b. Changes to the Services and Availability
We may, for any or no reason, change or remove features of the Services, stop offering the Services entirely, or restrict access to part or all of the Services to all or certain users (including you) without notice and without liability to you. Additionally, the Services or some of their features, services, or content may be unavailable to you in certain geographical locations or on certain devices. These changes or removals may cause you setbacks within the Services and may affect your experiences.

4. Intellectual Property Rights

a. Our Intellectual Property Rights
Between you and us, the Services and all related proprietary rights are owned by Epic and its licensors. Except as granted in this Agreement, Epic does not grant any license or other right to you under any intellectual or other proprietary rights, and all rights in and to the Services are reserved by us or our licensors.

b. License
Epic grants you a personal, non-exclusive, non-transferable, non-sublicensable license to install and use the Software for your personal, non-commercial use, subject to your compliance with this Agreement. The Software is licensed, not sold, to you under this license. To use the Software, you must register for and maintain an account with Epic (“Epic Account”) and agree to the applicable Epic Terms of Service.

This license does not give you any right to, and you will not do the following, with the Services:

1. use it commercially or for a promotional purpose, except as specifically authorized by Epic in writing or a separate agreement with Epic;
2. use it on more than one device at a time;
3. copy, reproduce, display, perform, or otherwise use it in a way that is not expressly authorized in this Agreement;
4. build a product or service that would compete with the Services or assist another person in building a product or service that would compete with the Services;
5. sell, rent, lease, license, distribute, trade, or otherwise transfer it, or offer to sell, rent, lease, license, distribute, trade, or otherwise transfer it;
6. reverse engineer, derive source code from, modify, adapt, translate, decompile, or disassemble it or make derivative works based on it;
7. use any robot, spider, site search/retrieval application or other manual or automatic device or process to retrieve, index or “data mine” the Services or the navigational structure or presentation of the Services;
8. use it to infringe or violate the rights of any third party, including but not limited to any intellectual property, publicity, or privacy rights;
9. use, access, download, or otherwise export, re-export or transfer it in violation of applicable export control, economic sanctions, and import laws and regulations, as per the terms of Section 11(a);
10. use it in violation of any applicable law or regulation or in violation of the license terms of any game from which you use the Software to capture gameplay;
11. use it to make or publicly display footage that: (a) misrepresents our identity, the names, features or functionality of the Services or other Epic products and services, or the legal rights or obligations that anyone has in regards to the Services or other Epic products and services; or (b) adversely affects our rights in an unfair or illegal manner; or
12. access or use the Services for any purpose that is illegal or beyond the scope of the Services’ intended use (in Epic’s sole judgment).
    
    

Your license includes the right to use the Software’s functionality to record, view and export video clips of gameplay with certain games available in the Software (“Recordings”), subject to the license terms applicable to such games. Otherwise, you may not copy, modify, prepare derivative works of, distribute, publicly display, publicly perform, republish, or transmit any of the material obtained through the Services, or delete, obscure or alter any copyright, trademark, or other proprietary rights notices in or from the Services. However, if you are otherwise in compliance with this Agreement, you may also record and publicly display footage of your use of the Software (including via live stream), subject to the license terms applicable to any games whose gameplay is shown in your footage.

c. Feedback
You may communicate to us questions, comments, or other information about Epic or the Services (collectively, “Feedback”). However, please do not send your unsolicited fan content or game ideas to Epic. You understand that we may use any Feedback, including any ideas contained in Feedback, for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including to develop, copy, publish, or improve the Services in our sole discretion. You understand that we may treat Feedback as nonconfidential.

5. Termination

a. Suspension or Termination by Epic
Please note that we may terminate this Agreement with you or suspend access to the Services without prior notice to you if you fail to comply with any provision of this Agreement or the Epic Terms of Service.

b. Termination by You
You may terminate this Agreement as they apply to you by deleting all copies of the Software from all devices on which you’ve installed it.

c. Relation to Epic Account
This Agreement will terminate automatically without notice if your Epic Account is terminated.

d. Effect of Termination
Upon any termination of this Agreement, the license granted to you under this Agreement will automatically terminate, you may no longer exercise any of the rights granted to you by the license, and you must destroy all copies of the Software in your possession. Sections 4(a) and (c), 5(d) and 6–11 will survive any termination of this Agreement

6. Disclaimers

Nothing in this Agreement will prejudice the statutory rights that you may have as a consumer of the Services. Some countries, states, provinces or other jurisdictions do not allow the exclusion of certain warranties or the limitation of liability as stated in this section, so the below terms may not fully apply to you. In those jurisdictions, the exclusions and limitations below apply only to the extent permitted by the laws of such jurisdictions.

THE SERVICES, INCLUDING ALL INFORMATION, CONTENT, MATERIALS AND SOFTWARE, ARE PROVIDED BY EPIC ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE EPIC PARTIES (DEFINED BELOW) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE SERVICES. YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. TO THE FULL EXTENT PERMISSIBLE BY LAW, THE EPIC PARTIES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT. THE EPIC PARTIES DO NOT WARRANT THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS

7. Limitation of Liability

TO THE FULL EXTENT PERMISSIBLE BY LAW, EPIC AND ITS AFFILIATES, LICENSORS AND SERVICE PROVIDERS (“EPIC PARTIES”), WILL NOT BE LIABLE FOR ANY LOSS OF PROFITS OR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. FURTHER, TO THE FULL EXTENT PERMISSIBLE BY LAW, THE EPIC PARTIES’ AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNTS YOU HAVE PAID (IF ANY) TO EPIC UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY. THESE LIMITATIONS AND EXCLUSIONS REGARDING DAMAGES APPLY EVEN IF ANY REMEDY FAILS TO PROVIDE ADEQUATE COMPENSATION.

8. Indemnification

This section only applies to the extent allowed by the laws of your jurisdiction. If the laws of your jurisdiction do not allow you to enter into the indemnification obligation below, then you assume, to the extent permitted by the laws of your jurisdiction, all liability for all claims, demands, actions, losses, liabilities, and expenses (including attorneys’ fees, costs, and expert witnesses’ fees) that are the stated subject matter of the indemnification obligation below.

You agree to indemnify, pay the defense costs of, and hold harmless the Epic Parties from and against any claims, demands, actions, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorney and expert witness fees) arising out of or in connection with (i) any claim that, if true, would constitute your breach of this Agreement or your negligence, (ii) any act or omission by you in using the Services, or (iii) Your Recordings or your Feedback. You agree to reimburse the Epic Parties on demand for any defense costs incurred by the Epic Parties and any payments made or loss suffered by the Epic Parties, whether in a court judgment or settlement, based on any matter covered by this section.

9. Governing Law and Jurisdiction

Any dispute or claim by you arising out of or related to this Agreement shall be governed by North Carolina law, exclusive of its choice of law rules. For any disputes not subject to binding individual arbitration, you and Epic agree to submit to the exclusive jurisdiction of the Superior Court of Wake County, North Carolina, or, if federal court jurisdiction exists, the United States District Court for the Eastern District of North Carolina. You and Epic agree to waive any jurisdictional, venue, or inconvenient forum objections to such courts (without affecting either party’s rights to remove a case to federal court if permissible), as well as any right to a jury trial. The Convention on Contracts for the International Sale of Goods will not apply. Any law or regulation which provides that the language of a contract shall be construed against the drafter will not apply to this Agreement. This paragraph will be interpreted as broadly as applicable law permits.

10. Binding Individual Arbitration; No Class Actions

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

Most issues can be resolved quickly and amicably by contacting Epic player support at https://www.epicgames.com/customer-service. But we understand that sometimes disputes can’t be easily resolved by player support. This Section explains how you and Epic agree to resolve those disputes, including (where applicable) by binding, individual arbitration.

This Section 10 will be interpreted as broadly as applicable law permits.

a. Informal Resolution
If you have an issue that our player support can’t resolve, prior to starting arbitration you and Epic agree to attempt to resolve the dispute informally to help get us to a resolution and reduce costs for both parties. You and Epic agree to make a good-faith effort to negotiate any dispute between us for at least 30 days (“Informal Resolution”). This 30 day period starts on the day you or Epic receive a written notice of a dispute from the other party (a “Notice of Dispute”) in accordance with this Agreement.

You will send your Notice of Dispute to Epic Games, Inc., Legal Department, ATTN: NOTICE OF DISPUTE, Box 254, 2474 Walnut Street, Cary, North Carolina, 27518, U.S.A. Include your name, any relevant account name you use, address, how to contact you, what the problem is, and what you want Epic to do. If Epic has a dispute with you that is subject to Informal Resolution, Epic will send our Notice of Dispute to your registered email address and any billing address you have provided us

If you reside in the European Union (“EU”), you may also be entitled to submit your complaint to the European Commission’s Online Dispute Resolution (ODR) Platform. ODR allows EU consumers to resolve disputes related to the online purchases of goods and services without going to court

If the dispute isn’t resolved within 30 days by Informal Resolution or small-claims court (below), you or Epic may start an arbitration in accordance with this Agreement.

b. Small Claims Court
Instead of using Informal Resolution, you and Epic agree that you may sue us in small-claims court in your choice of the county where you live or Wake County, North Carolina (if you meet the requirements of small-claims court). We hope you’ll try Informal Resolution first, but you don’t have to before going to small-claims court.

c. Binding Individual Arbitration
THE ARBITRATION PROCEEDINGS IN THIS SECTION WILL BE CONDUCTED ON AN INDIVIDUAL BASIS ONLY.

You and Epic agree that Disputes (as defined below) will be settled by binding individual arbitration conducted by the Judicial Arbitration Mediation Services, Inc. (“JAMS”) subject to the U.S. Federal Arbitration Act and federal arbitration law and according to the JAMS Streamlined Arbitration Rules and Procedures effective July 1, 2014 (the “JAMS Rules”) as modified by this Agreement.

This means that you and Epic agree to a dispute-resolution process where we submit any Dispute to a neutral arbitrator (not a judge or jury) that makes the final decision to resolve the Dispute. The arbitrator may award the same remedies to you individually as a court could, but only to the extent required to satisfy your individual claim.

The arbitrator’s decision is final, except for a limited review by courts under the U.S. Federal Arbitration Act and can be enforced like any other court order or judgment.

• (i) Disputes We Agree to Arbitrate
  You and Epic agree to submit all Disputes between you and Epic to individual binding arbitration. “Dispute” means any dispute, claim, or controversy (except those specifically exempted below) between you and Epic that relates to your use or attempted use of the Services or the Services generally, including without limitation the validity, enforceability, or scope of this Binding Individual Arbitration section.
  
  You and Epic agree to arbitrate all Disputes regardless of whether the Dispute is based in contract, statute, regulation, ordinance, tort (including fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory.
  
  The Informal Resolution and Binding Individual Arbitration sections do not apply to (i) individual actions in small-claims court; (ii) pursuit of enforcement actions through a government agency if the law allows; (iii) a complaint or remedy under the EU General Data Protection Regulation; (iv) an action to compel or uphold any prior arbitration decision; (v) Epic’s right to seek injunctive relief against you in a court of law to preserve the status quo while an arbitration proceeds; (vi) claims of piracy; creation, distribution, or promotion of cheats; and intellectual-property infringement; and (vii) the enforceability of the Class Action Waiver clause below.
  
  You and Epic agree that whether a dispute is subject to arbitration under this Agreement will be determined by the arbitrator rather than a court.
  
  
• (ii) Arbitration Procedure
  To start an arbitration, follow the instructions for initiating an arbitration on the JAMS website. You will send a copy of any Demand for Arbitration to Epic Games, Inc., Legal Department, ATTN: ARBITRATION OF DISPUTE, Box 254, 2474 Walnut Street, Cary, North Carolina, 27518, U.S.A. Epic will send any Demand for Arbitration to the email address and any billing address you have provided us.
  
  The arbitration will be conducted by a single JAMS arbitrator selected with substantial experience in resolving intellectual property and commercial contract disputes. You and Epic both agree that the arbitration will be conducted in the English language and that the arbitrator will be bound by this Agreement.
  
  If an in-person hearing is required, the hearing will take place either in Wake County, North Carolina, or where you reside; you choose.
  
  The arbitrator (not a judge or jury) will resolve the Dispute. Unless you and Epic agree otherwise, any decision or award will include a written statement stating the decision of each claim and the basis for the award, including the arbitrator’s essential factual and legal findings and conclusions.
  
  The arbitrator may only award legal or equitable remedies that are requested by you or Epic to satisfy one of our individual claims (that the arbitrator determines are supported by credible relevant evidence). The arbitrator may not award relief against Epic respecting any person other than you.
  
  Any decision or award may be enforced as a final judgment by any court of competent jurisdiction or, if applicable, application may be made to such court for judicial acceptance of any award and an order of enforcement.
  
  
• (iii) Arbitration Fees and Location
  If you start the arbitration, you must pay the JAMS filing fee required for consumer arbitrations.
  
  In some situations, Epic will help with your fees to (hopefully) get us to a resolution quickly and fairly:
  
  If the Dispute involves a claim of damages of USD $10,000 or less, Epic will pay all of the JAMS costs, including the fees you otherwise would have been required to pay.
  
  If the above doesn’t apply to you, but you demonstrate that arbitration costs will be prohibitive compared to litigation costs, Epic will pay as much of your JAMS costs as the arbitrator finds is necessary to prevent arbitration from being cost-prohibitive (as compared to the cost of litigation).
  
  Subject to the last paragraph of this section, even if Epic wins the arbitration and the applicable law or the JAMS Rules allow Epic to seek our portion of the JAMS fees from you, we won’t.
  
  JAMS costs do not include your attorneys’ fees and costs, and attorneys’ fees and JAMS costs are not counted when determining whether a Dispute involves a claim of damages of USD$10,000 or less.
  
  Subject to the last paragraph of this section, Epic won’t seek our attorneys’ fees or expenses from you in any arbitration, even if the law or the JAMS Rules entitle us to do so. If you choose to be represented by an attorney, you will pay your own attorneys’ fees and costs unless the applicable law provides otherwise.
  
  The provisions in this section are contingent upon you bringing your arbitration claim in “good faith”. If the arbitrator finds you brought an arbitration claim against Epic for an improper purpose, frivolously, or without a sufficient pre-claim investigation into the facts or applicable law, then the payment of all fees and awards, including any right Epic may have to seek our portion of the JAMS fees or attorneys’ fees or expenses from you, will be governed by the JAMS Rules.
  
  
• (iv) Notice and Filing
  If a Dispute must be arbitrated, you or Epic must start arbitration of the Dispute within two (2) years from when the Dispute first arose. If applicable law requires you to bring a claim for a Dispute sooner than two years after the Dispute first arose, you must start arbitration in that earlier time period. Epic encourages you to tell us about a Dispute as soon as possible so we can work to resolve it. The failure to provide timely notice shall bar all claims.
  
  
• (v) Continuation in Effect
  This Binding Individual Arbitration section survives any termination of this Agreement or Epic’s provision of Services to you.
  
  
• (vi) Future Terms Changes
  Although Epic may revise this Agreement in its discretion, Epic does not have the right to alter this Agreement to arbitrate or the rules specified herein with respect to any Dispute once that Dispute arises.

d. Class Action Waiver
To the maximum extent permitted by applicable law, you and Epic agree to only bring Disputes in an individual capacity and shall not:

• seek to bring, join, or participate in any class or representative action, collective or class-wide arbitration, or any other action where another individual or entity acts in a representative capacity (e.g., private attorney general actions); or
• consolidate or combine individual proceedings or permit an arbitrator to do so without the express consent of all parties to this Agreement.

e. Severability
If all or any provision of this Binding Individual Arbitration section is found invalid, unenforceable, or illegal, then you and Epic agree that the provision will be severed, and the rest of this Agreement shall remain in effect and be construed as if any severed provision had not been included. The sole exception is that if the Class Action Waiver is found invalid, unenforceable, or illegal, you and Epic agree that it will not be severable; this entire Binding Individual Arbitration section will be void and unenforceable and any dispute will be resolved in court subject to the venue and choice of clauses specified in this Agreement. Under no circumstances shall arbitration be conducted on a class basis without Epic’s express consent.

f. Your 30-Day Right to Opt Out
You have the right to opt out of and not to be bound by the Binding Individual Arbitration and Class Action Waiver provisions set forth in this Agreement. To exercise this right, you must send written notice of your decision to the following address: Epic Games, Inc., Legal Department, ATTN: ARBITRATION OPT-OUT, Box 254, 2474 Walnut Street, Cary, North Carolina, 27518, U.S.A. Your notice must include your name, mailing address, and Epic Account, and state that you do not wish to be bound by the Binding Individual Arbitration and Class Action Waiver provisions set forth in this Agreement. TO BE EFFECTIVE, THIS NOTICE MUST BE POSTMARKED OR DEPOSITED WITHIN 30 DAYS OF THE DATE ON WHICH YOU FIRST ACCEPTED THIS AGREEMENT UNLESS A LONGER PERIOD IS REQUIRED BY APPLICABLE LAW; OTHERWISE YOU WILL BE BOUND TO ARBITRATE DISPUTES IN ACCORDANCE WITH THIS SECTION. You are responsible for ensuring that Epic receives your opt-out notice, so you may wish to send it by a means that provides for a delivery receipt. If you opt out of these provisions, Epic will not be bound by them with respect to Disputes with you.

11. Miscellaneous

This Agreement, including any other terms and policies referenced in this Agreement, are the entire agreement between you and Epic concerning the Services and supersede any other agreements between you and Epic. Unless otherwise contemplated in this Agreement, there are no third party beneficiaries to this Agreement. No waiver of this Agreement by Epic shall be deemed a further or continuing waiver of that term or condition or any other term or condition, and any failure of Epic to assert a right or provision under this Agreement shall not constitute a waiver of that right or provision. If any provision of this Agreement is held by a court of competent jurisdiction or arbitrator to be invalid, illegal, or unenforceable for any reason, that provision will be eliminated or limited to the minimum extent such that, except as stated in Section 10(e), the remaining provisions of this Agreement will continue in full force and effect. You may not assign your rights or obligations under this Agreement, including any rights to use the Services. We may assign this Agreement, in whole or in part, with or without notice to you.

a. U.S. Government Matters; Export Control
The Software is a “Commercial Item” (as defined at 48 C.F.R. §2.101), consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation” (as used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable). The Software will only be licensed to U.S. Government end users as Commercial Items and with only those rights as are granted to other licensees under this Agreement.

You understand and agree that the Services may not be used, accessed, downloaded, or otherwise exported, reexported, or transferred in violation of applicable export control, economic sanctions, and import laws and regulations, such as the U.S. Export Administration Regulations and U.S. Department of the Treasury’s Office of Foreign Assets Control regulations.

b. Language
To the fullest extent permitted by law, the controlling language for this Agreement is English. It is the express wish of the parties that this Agreement and all related documents have been drawn up in English. Les parties déclarent qu’elles ont demandé et par les présentes confirment leur desir exprés que cette convention soit rédigee en anglais. Any translation has been provided for your convenience.