New Xbox live TOS, just like EA and Sony with the arbitration bs

[HammR25]

I see MS has some new terms of service:

 

http://www.xbox.com/...S/legal/livetou

 

Bolding is from Microsoft, not me. They put some other stuff in there I don't like but I figured this post was already long enough.

15. WE MAKE NO WARRANTY.

We provide the Service "as-is," "with all faults," and "as available." We do not guarantee the suitability, reliability, availability, accuracy or timeliness of information available from the Service, or that the Service will be uninterrupted, secure, error-free or that data loss will not occur. You acknowledge that computer and telecommunications systems are not fault-free and occasional periods of downtime will occur. We give no express warranties, guarantees, or conditions. We disclaim all warranties with regard to the Service, including any implied warranties (e.g., those of merchantability, fitness for a particular purpose, workmanlike effort, title and non-infringement). You may have additional consumer rights under your local laws that this contract cannot change.

 

16. LIABILITY LIMITATION.

You can recover from us for all successful claims only direct damages up to a total amount equal to your Service fee for one month. You cannot recover any other damages, including consequential, special, indirect, incidental, or punitive damages and lost profits.

This limitation applies to anything related to this contract, for example:

• the Service;
  
• loss of data;
  
• your content, third party content (including code), third party programs, or third party conduct;
  
• viruses or other disabling features that affect your access to or use of the Service;
  
• incompatibility between the Service and other services, software, or hardware;
  
• delays or failures you may have in initiating, conducting, or completing any transmissions or transactions in connection with the Service in an accurate or timely manner; and
  
• claims for breach of contract; breach of warranty, guarantee, or condition; misrepresentation; omission; strict liability; negligence; or other tort.
  

It also applies even if this remedy does not fully compensate you for any losses, fails of its essential purpose or we knew or should have known about the possibility of the damages.

Nothing in these terms except the agreement to arbitrate and class action waiver in Section 18.1 will affect the statutory rights of any consumer. Nothing in these terms will exclude or restrict liability for death or personal injury arising from our negligence, fraud, gross negligence or willful intent. Some or all of these limitations or exclusions may not apply to you if your state, province, or country does not allow the exclusion or limitation of incidental, consequential or other damages.

 

18. General Legal Terms, Including Binding Arbitration.

18.1. BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER FOR U.S. RESIDENTS. PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS CONCERNING ANY DISPUTES BETWEEN YOU AND MICROSOFT IF YOU LIVE IN THE UNITED STATES FOR PURPOSES OF SECTION 18.1 AND ITS SUBSECTIONS, "MICROSOFT" MEANS MICROSOFT CORPORATION AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS.

18.1.1. DISPUTE. As used in this contract, "Dispute" means any dispute, claim, demand, action, proceeding, or other controversy between you and Microsoft concerning the Service and your or Microsoft's obligations and performance under this contract or with respect to the Service, whether based in contract, warranty, tort (including, without limitation, fraud, misrepresentation, fraudulent inducement, concealment, omission, negligence, conversion, trespass, strict liability, and product liability), statute (including, without limitation, consumer protection and unfair competition statutes), regulation, ordinance, or any other legal or equitable basis or theory. "Dispute" will be given the broadest possible meaning allowable under law.

18.1.2. INFORMAL NEGOTIATION OF DISPUTES. You and Microsoft agree to attempt in good faith to resolve any Dispute before commencing arbitration. Unless you and Microsoft otherwise agree in writing, the time for informal negotiation will be 60 days from the date on which you or Microsoft mails a notice of the Dispute ("Notice of Dispute") as specified in Section 18.1.3. You and Microsoft agree that neither will commence arbitration before the end of the time for informal negotiation.

18.1.3. NOTICE OF DISPUTE. If you give a Notice of Dispute to Microsoft, you must send by U.S. Mail to Microsoft Corporation, ATTN: LCA ARBITRATION, One Microsoft Way, Redmond, WA 98052-6399, a written statement setting forth (a) your name, address, and contact information, (b) your Windows Live ID or gamertag, if you have one, © the facts giving rise to the Dispute, and (d) the relief you seek. A form is available at www.xbox.com/notice. If Microsoft gives a Notice of Dispute to you, we will send by U.S. Mail to your billing address if we have it, or otherwise to your e-mail address, a written statement setting forth (a) Microsoft's contact information for purposes of efforts to resolve the Dispute, (b) the facts giving rise to the Dispute, and © the relief Microsoft seeks.

18.1.4. BINDING ARBITRATION. IF YOU LIVE IN THE UNITED STATES, YOU AND MICROSOFT AGREE THAT IF YOU AND MICROSOFT DO NOT RESOLVE ANY DISPUTE BY INFORMAL NEGOTIATION UNDER SECTION 18.1.2 ABOVE, ANY EFFORT TO RESOLVE THE DISPUTE WILL BE CONDUCTED EXCLUSIVELY BY BINDING ARBITRATION IN ACCORDANCE WITH THE ARBITRATION PROCEDURES IN SECTION 18.1.7 BELOW. YOU UNDERSTAND AND ACKNOWLEDGE THAT BY AGREEING TO BINDING ARBITRATION, YOU ARE GIVING UP THE RIGHT TO LITIGATE (OR PARTICIPATE IN AS A PARTY OR CLASS MEMBER) ALL DISPUTES IN COURT BEFORE A JUDGE OR JURY. INSTEAD, YOU UNDERSTAND AND AGREE THAT ALL DISPUTES WILL BE RESOLVED BEFORE A NEUTRAL ARBITRATOR, WHOSE AWARD (DECISION) WILL BE BINDING AND FINAL, EXCEPT FOR A LIMITED RIGHT OF APPEAL UNDER THE FEDERAL ARBITRATION ACT. ANY COURT WITH JURISDICTION OVER THE PARTIES MAY ENFORCE THE ARBITRATOR'S AWARD.

THE ONLY DISPUTES NOT COVERED BY THE AGREEMENT IN SECTION 18.1 TO NEGOTIATE INFORMALLY AND ARBITRATE ARE DISPUTES ENFORCING, PROTECTING, OR CONCERNING THE VALIDITY OF ANY OF YOUR OR MICROSOFT'S (OR ANY OF YOUR OR MICROSOFT'S LICENSORS') INTELLECTUAL PROPERTY RIGHTS.

18.1.5. AVAILABILITY OF SMALL CLAIMS COURT. Notwithstanding Section 18.1.4 , you have the right to litigate any Dispute in small claims court, if all requirements of the small claims court, including any limitations on jurisdiction and the amount at issue in the Dispute, are satisfied. Notwithstanding Section 19, you agree to bring a Dispute in small claims court only in your county of residence or King County, Washington .

18.1.6. CLASS ACTION WAIVER. YOU AND MICROSOFT AGREE THAT ANY PROCEED­INGS TO RESOLVE OR LITIGATE ANY DISPUTE, WHETHER IN ARBITRATION, IN COURT, OR OTHERWISE, WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS, AND THAT NEITHER YOU NOR MICROSOFT WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION, A REPRESENTATIVE ACTION, A COLLECTIVE ACTION, A PRIVATE ATTORNEY-GENERAL ACTION, OR IN ANY PROCEEDING IN WHICH YOU OR MICROSOFT ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. YOU AND MICROSOFT FURTHER AGREE THAT NO ARBITRATION OR PROCEEDING WILL BE JOINED, CONSOLIDATED, OR COMBINED WITH ANOTHER ARBITRATION OR PROCEEDING WITHOUT THE PRIOR WRITTEN CONSENT OF YOU, MICROSOFT, AND ALL PARTIES TO ANY SUCH ARBITRATION OR PROECCEDING.

18.1.7. ARBITRATION PROCEDURE. The arbitration of any Dispute will be conducted by, and according to the rules and procedures of, the American Arbitration Association (the "AAA"). Information about the AAA, and how to commence arbitration before it, is available at www.adr.org or by calling 1-800-778-7879. A form is available at www.xbox.com/arbitration. The Commercial Arbitration Rules of the AAA will govern the arbitration. If you are an individual consumer and use the Service for personal or household use, or if the value of the Dispute is $75,000 or less, the Supplementary Procedures for Consumer-Related Disputes of the AAA will also apply. If the AAA rules or procedures conflict with the provisions of this contract, the provisions of this contract will govern. You may request a telephonic or in-person hearing by following the AAA rules and procedures. Where the value of a Dispute is $10,000 or less, any hearing will be telephonic unless the arbitrator finds good cause to hold an in-person hearing instead. The arbitrator has the power to make any award of damages to the individual party asserting a claim that would be available to a court of law. The arbitrator may award declaratory or injunctive relief only in favor of the individual party asserting a claim, and only to the extent required to provide relief on that party's individual claim.

18.1.8. ARBITRATION LOCATION. You agree to commence arbitration only in your county of residence or in King County, Washington. Microsoft agrees to commence arbitration only in your county of residence.

[JamesD]

Yeah, I was reading through them after the new update forced me to read them. You have 30 days to reject the arbitration from the date of acceptance.

[Metal Ghost]

Is this materially different from their old ToS?

 

Ehh, it's always in a business's best interest to settle things amicably, if possible, regardless of legalities.

 

I don't really disagree that a company would put forth binding arbitration or that they wouldn't guarantee that their serivice would perpetually be available. That having been said, if Live went down for a week, I have no doubt that, for business and commercial reasons, they would do something (credit, free games, something), to make customers happy. If not, customers would walk. That's all the power I need, and it doesn't have to be represented in any ToS.

 

When you have people suing over spilling hot coffee on themselves, this is what you get. Congratulations America.

[onlysublime]

just send an opt-out letter like with the PS3. you can use http://www.gamersoptout.com/ which is a volunteer run site that makes the letter for you to mail. the site currently is designed for PS3 and EA but I'm sure they'll add the 360.