APPLICATION TO DIFFERENT GAMES & NEW FEATURES. UNLESS EXPRESSLY SET FORTH OTHERWISE IN THIS AGREEMENT (AS MAY BE MODIFIED FROM TIME TO TIME) OR UNDERSTOOD FROM THE CONTEXT, THE TERMS AND CONDITION HEREIN ARE APPLICABLE TO ALL THE GAMES AND FEATURES THEREOF WE OFFER IN THE APPLICATION AS OF THE DATE HEREOF (FOR EXAMPLE, OUR CLAW-BASED SKILL GAMES) OR THAT WE MAY OFFER IN THE APPLICATION IN THE FUTURE.
AGE LIMITATION. AS MORE FULLY SET FORTH IN SECTION 10 BELOW, YOU MAY NOT USE THE APPLICATION IF YOU ARE UNDER THE AGE OF 18.
ARBITRATION NOTICE. THIS AGREEMENT CONTAINS AN ARBITRATION CLAUSE IN SECTION 17 BELOW. EXCEPT FOR CERTAIN TYPES OF DISPUTES, AS EXPLAINED IN SECTION 17, YOU AND THE COMPANY AGREE THAT DISPUTES BETWEEN US WILL BE RESOLVED BY MANDATORY BINDING INDIVIDUAL ARBITRATION, AND YOU AND THE COMPANY WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
MODIFICATION OF TERMS & APPLICATION. As more fully set forth in Section 4 below, the Company may revise and update this Agreement from time to time and will post such amended version on the Application made available to the Users or in the Apple App Store, Google Play and other mobile application platform where the Application is made available. Accordingly, we encourage the Users to regularly check this Agreement for modifications. Your continued use following the posting of the modified Agreement will be deemed your acceptance of the modifications. Similarly, as more fully set forth in Sections 2 and 4 below, we may, from time to time, modify or suspend the Application itself.
1. Personal Use
This Agreement, and use of the Application, is an online service provided by Gigantic. The Application is subject to the terms and restrictions contained herein and intended for private personal use by Users only. Any other use or attempt to use the Application, or any of the services provided through the Application for commercial purposes, directly or indirectly, by you or by a third party is strictly prohibited.
2. Service Offered Through the Application
The Application consists of services which include the operation and control, via an online interface, of an actual skill-based game machine (in our claw-based games, this means controlling the claw/crane of the machine) located in a remote location (which location will be decided by the Company at its sole discretion) for the purpose of winning a prize offered in such game machine (in our claw-based games, winning typically means controlling the claw/crane of the machine to catch a prize) from time to time (the “Services”).
The Company reserves the right to amend, modify or change the Application and any Service offered therein, including the design or the features of the games or machines and/or the prizes offered therein at any time, without notice or liability to you.
3. Payment for Services
General. The Application is made available for download free of charge. However, in the event you decide to play the games offered through the Application, charges will apply for such use and for shipping of prizes in the event of winnings.
The User undertakes to pay any charge which may be applicable to User’s use of the Application and Services. The User acknowledges that while the Application and/or the Services or any part thereof may be free of charge, there might be a charge applicable for certain content or services related thereto. The User consents to pay such charges as applicable.
Coin Purchase. For the purpose of using the Application and participating in the game offered therein, the User will purchase virtual coins (sometime referred to as “play credits”) with real world money, which will be used to operate the machine ("Coins"). Coins may not be redeemed for real money, goods, services or any other item of monetary value from the Company or any other party, except for participating in the game provided on the Application and may not be exchanged or traded. You understand that you have no right, title or interest in any Coins. The Coins, once used, are non-refundable, regardless of the result of the game. It is hereby further clarified that upon use of the game the User will not have any complaints or claims and the transaction is deemed final and no refunds are possible thereafter. The Company reserves the right to manage, control, change and/or cancel Coins or the way any of them work at its sole discretion and without prior notice, including the prices and availability of Coins. The services and prizes offered by the Company in exchange for Coins may be discontinued or modified at any time in our sole discretion. Coins may only be held by legal residents of countries where access to and use of the Services are permitted.
Coins Refund Policy. Without derogating from the aforementioned, any balance of Coins existing in the User’s account with the Company, which were not used by the User, may be withdrawn by the User within thirty (30) days after they were purchased by the User, subject to providing the Company with a written request of withdrawal emailed to: firstname.lastname@example.org. The Company will take reasonable efforts to process the withdrawal request within seven (7) business days following the receipt of the withdrawal request. It is hereby clarified that withdrawal will be processed by same method of payment used by the User to purchase the Coins. Furthermore, the Coins existing on User account which were not directly paid for by the User (for example, any Coins which were received by User as bonus, gift or are a result of any promotion), are not refundable. In addition, Coins may not be refundable if your account is suspended or terminated. Coins will no longer be refundable after thirty (30) days of the purchase of the Coins.
Revoking or Cancelling Coins. You acknowledge that in the event that any of the following occurs, all of your Coins and account content and information and prize entitlements, shall be irrevocably deleted: (i) if your account or this Agreement terminate or expire for any reason; and (ii) if the Application or any of its data (including cookies) is deleted from your device.
4. Changes in Terms and Conditions
The Company is entitled to amend, modify, suspend, or discontinue any aspect or feature of the Application or this Agreement at any time, including the right to change or discontinue any service provided by the Company, content displayed on the Application, hours of availability, and equipment needed for access or use of the Application, at any time. The Company shall not be liable to you or any third party for any modification, suspension, or termination of the Application or the Services or any part thereof.
Unless expressly stated otherwise, any new features that augment or enhance the current Services provided through the Application will also be governed by the provisions of this Agreement.
5. Right of Use
The Application is the property of Gigantic, and your access to the Application is permitted exclusively with our permission. Subject to your compliance with the terms of this Agreement, the Company grants the User a personal, non-exclusive, non-transferable, nonsublicensable, revocable, and limited in scope right to use the Application and the Services therein. User’s use of the Services and the Application shall be solely for User’s own, private, non-commercial entertainment purposes and for no other purpose whatsoever. You hereby acknowledge that your right to use the Application and Services is limited by this Agreement, and, if you violate or if, at any point, you do not agree to any of the terms of this Agreement, your right to use the Application, your account and any Services therein, shall immediately terminate without notice, and you shall immediately refrain from using the Application, account or Services thereafter. If at any time, the Application or the Services or any part thereof is determined to be illegal under the laws of the country in which you are situated, you shall not be granted any right to use the Application and the Services and must refrain from such use immediately.
Except as expressly set forth in this Agreement, no license or other rights in or to the Application or any service are granted to you, by implication, estoppel or otherwise, and all such licenses and rights are hereby reserved.
6. Prohibited Use of the Application
The Services provided to you are offered through the online interface made available to you subject to successful downloading of the Application in accordance with the directions.
You are prohibited from doing any act that has the effect of jeopardizing the Company, the Services and/or the Application made available to you as aforementioned. It is hereby clarified that undermining the integrity of our system, the Application and the services via which we provide our Services to the Users may inflict great damage on the Company.
As a fundamental material term of this Agreement, you expressly agree that you will not do any of the following prohibited acts:
a) Attempt, permit, assist or act to decompile, reverse-engineer, disassemble or otherwise reduce any portion of the Application or the Services to a human perceivable form. You shall immediately inform the Company with regards of any infringement by a third party of any of the Company’s rights in the Application or the Services;
b) Use or deploy of any robot, spider, scraper or any other automated means, method or device to view, select or copy any content from the Application;
c) Use or deploy of any program, methods, system, means or device, for any purpose that places an unreasonable and excessive load on the Application, the Services and its connections, or denies or delays access to the Application by other Users;
d) Download or copy any content displayed on the Application for purposes other than preserving information for your personal use;
e) Attempt to obtain other Users’ data, including passwords or other private information from other Users, including any personally identifiable information and identification documents;
f) Interrupt, disturb, harass, invade the privacy or cause discomfort upon any third parties, including other Users of the Application;
g) Upload or attempt to upload viruses, or harmful codes, warm or Trojan horse;
h) Upload or transmit without the Company’s express prior written permission, any spyware or any material that operates as a passive or active information collection or transmission mechanism, including clear graphics interchange formats “gifs”, web bugs, cookies or other similar devices;
i) Acquire any prize from the Application or items of value through automated means or through any form of fraud, deception or misrepresentation or accessing the Services by any automated tools, including scraping, caching, or crawling;
j) Develop, distribute, use on your own or provide other Users with any auto-software programs, “macro” software programs or other “cheat utility” software programs or applications;
k) sell, license (or sub-license), lease, assign, transfer, pledge, or share your account and/or any of your rights under this Agreement with/to any third party;
l) transfer, distribute, scrap, copy all or any part of the Services or Application;
m) syndicate any part of the Services or the Application or refer to the Services or the Application by use of framing, Deep Linking or similar techniques;
n) make use of the Services or the Application in any jurisdiction where same are illegal or which would subject the Company or its affiliates to any registration requirement within such jurisdiction or country;
o) use, encourage, promote, facilitate or instruct others to use the Services or Application for any illegal or immoral use;
p) open more than one account or impersonate another; or
q) engage in any other improper or abusive behavior. Abusive behavior includes using the Application or Services as part of any effort to compete with us, or for any revenue-generating endeavor or commercial purpose; tricking, defrauding or misleading us and other Users (or an attempt to do so), especially in any attempt to learn sensitive account information or unduly catch prizes; submitting false reports or claims; engaging in any automated use of the Application; interfering with, disrupting, or creating an undue burden on the Application or the networks or services connected thereto; and make disparaging statements about the Application.
Furthermore, you expressly agree to use the Application only for lawful and adequate purposes. Without derogating from the generality of the foregoing, you undertake that you will not post or transmit through the Application any material, data or content which: (i) violates or infringes in any way upon the rights of others; (ii) is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, bullying, stalking, threatening, vulgar, obscene, harassing, profane or otherwise objectionable; (iii) encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law; (iv) creates or attempts to create any liability of the Company; (v) contains advertising or any solicitation with respect to products or services, unless we have approved such material in writing, in advance of its transmission; (vi) introduces any program, executable file or routine (such as a worm, Trojan horse, or any other viruses) into the Application or Services for any purpose, irrespective of whether or not any such program or routine results in harm to us, the Application or the data therein; or (vii) jeopardizes or threatens the continuous Services offered to the Users by third party service providers. In this respect, it is hereby clarified that any conduct by you that we view, in our sole discretion, as restricting, inhibiting, or interfering with any other User’s use or enjoyment of the Application or the Services is expressly prohibited.
Any unauthorized access or use will be, among other things, a breach of this Agreement, in which case the Company reserves the right to pursue any lawful remedies (under this Agreement and applicable laws) for any such unauthorized access or use of the Application, including (i) taking actions to suspend or condition the User’s use of the Application and (ii) seeking civil remedies and equitable relief to the fullest extent possible, as well as referral of matters to appropriate law enforcement agencies. By way of illustration of the foregoing, if we believe a User conduct and use of the Application arises to abusive behavior, we reserve the right to (i) notify and warn such User, (ii) suspend such User from the Application altogether, (iii) to disallow the User from playing on part or all of the game machines, and (iv) pursue any other lawful remedies (under this Agreement and applicable laws).
7. Registration, Password
Your use of the Services is subject to your login through your Google or Facebook account or by successfully completing the sign up process and password (the “Login Information”). Users must maintain such Login Information in strict confidence. You must notify the Company in the event you believe or suspect that any third party has obtained your Login Information, in which case, you should immediately change your Login Information. In addition, you must keep your information as registered with us updated at all times and inform the Company of any changes to such information.
User acknowledges that the Company will not be responsible for damages caused to you by a third party using User’s Login Information, regardless if by authorization or your negligence, and regardless of whether the Company knew or should have known of such use.
8. Links to Other Applications
We may, from time to time, display icons, graphic or textual links to offers, service providers’ sites and/or other applications or display selected pages of other applications not affiliated with the Company. Any content, product or service provided by third parties or other applications is under the exclusive control of such third parties and is not endorsed or controlled by the Company. Your access to and use of any other application or third parties’ offers, and any transaction in which you engage on any third parties’ service or application, is subject to the applicable user agreements and privacy policies of such third parties. By accessing and using of any third parties’ application or services, you expressly disclaim all liability of the Company with respect to your, or third party's actions on such third parties’ applications and services. Your use of third party’s product or service through the links on the Website is at your sole risk.
The Company neither endorses nor is responsible for the accuracy or reliability of any opinion, advice or statement made on the Application by anyone other than our authorized spokespersons while acting in their official capacities.
Without derogating from the aforementioned, the Company reserves the exclusive right and sole discretion to add or remove, without notice, any content, icon or link to any offer, service, service provider or third parties applications.
10. Age Limitations
The Services and the Application are not intended for children under the age of 18. In any event, User must secure his account to prevent use of the account by children under the age of 18, and will be solely and fully liable for such prohibited access.
11. Prizes, Delivery Charges & Taxes
General. The games offered on the Application allow the User to win a prize (in our claw-based games, this typically means catching the prize clawed by the machine through the game). Despite the aforementioned, the Company makes no guarantees to you that you will actually win any prize by using the Application.
The prizes offered on the game machines are products of third party resellers or suppliers and are not under the control or responsibility of the Company. The Company will have no liability with respect to the prizes, including with respect to quality, defects, color, variations from the picture, including any claim under any theory of product liability. As such, the User acknowledges that the Company’s sole responsibility is to arrange the delivery of the prize to the winning User at the address provided by such User to the Company. We strive to deliver prizes within up-to seven (7) weeks and make reasonable efforts to ship even sooner when possible, however, shipping is done by third party service providers and therefore the exact shipping time is not guaranteed. Please be advised that when proceeding a high or unusual number of shipments, your shipment may be delayed.
Shipping/Delivery Charges & Taxes. You acknowledge that in order to play the game and/or obtain a prize you caught/won, you may encounter taxes and/or additional handling fees as per the local laws and procedures applicable in your country. To that end, the User acknowledges and agrees as follows:
· In the event that in the course of playing the games offered by the Application, the User wins a prize, the User may need to pay the delivery and shipping expenses and charges (including, for the sake of clarity, charges for releasing the package from the local post office or carrier) for having the prize delivered to the User at User’s address provided to the Company. The User undertakes to pay such delivery expenses, as will be indicated by the applicable third party courier service provider and waives any complaints against the Company with that respect and the Company reserves its right to cause the delivery of the prize to the winning User only following the payment of the shipping and handling fees by such User.
· In addition to these shipping and handling fees, the User will be responsible for any applicable custom duties or any other taxes, levies or charges (whether federal, state or local), including VAT, associated with playing the game, including the purchase of Coins and obtaining a prize (or winning a game or Coins in general). For example, certain U.S. states may impose a sales tax in connection with your purchase of Coins and such sales tax is your sole responsibility (and, for the sake of clarity, if the relevant app store will add such sales tax to the price of the Coins published in the Application, the Company shall not be under any obligation to reimburse the User therefor). The Company maintains the right to deduct or withhold any applicable taxes payable by you from the price paid by the User for the Coins (including withholding taxes) as required by the applicable tax laws. In any event, the Company does not provide tax advice, nor should any statements in this Agreement or on the Application be construed as tax advice.
Unclaimed Prizes. Prizes may be claimed by you only within thirty (30) days of wining the prize, after which you shall not be entitled to claim such prizes and the Company may sell, award or dispose of such unclaimed prizes at its sole discretion. The Company may elect (but is not obligated) to allow you to convert unclaimed prizes into Coins.
Return of Damaged Prize. It is hereby clarified that the prizes won will not be returnable or exchangeable, except in the event the prize received by winner was delivered damaged or broken, in which case, the winning User must notify the Company about the incidence within five (5) business days following the receipt of the prize, which notification must be emailed by the winning User to: email@example.com. Following a timely and valid notification provided to the Company, the winning User will return the damaged prize to the Company, at User’s cost, to the following address: 3 Tvuot Haaretz Street, Tel Aviv, Israel 6954627 or such other address provided by the Company.
Upon receiving the damaged or broken prize that is underlying a timely and valid notice, the Company will ship a replacement product similar to the prize to the User. In the event an identical prize replacement is not possible due to the prize being out of stock or otherwise not practicable, the Company will suggest the winning User an alternative equal in value to the non-replaceable prize, and will ship the User the alternative prize chosen by the User, at Company’s cost.
12. Intellectual Property Matters
12.1 Other than content posted by Users or third parties’ materials that the Company uses in accordance with applicable licenses or under the applicable laws, the Company is the owner and has the legal rights in all the Application, Services, Feedback (as defined below) and all content, information and features therein, including any software, business information, Users’ list, methods of work, designs, text, images, photographs, illustrations, audio clips, video clips, artwork, graphic content, and other copyrightable elements, including the selection and arrangement thereof, trademarks, service marks and trade names and any derivatives thereto and all intellectual property rights therein (collectively, the "IP"). You agree not to reproduce, modify, create derivative works from, display, perform, publish, distribute, disseminate, broadcast or circulate any IP to any third party (including the display and distribution of the IP via your own or a third party application) without the Company’s prior written consent. Any unauthorized or prohibited use may subject the offender to civil liability and criminal prosecution under any applicable laws and regulations. The Company neither warrants nor represents that your use of the IP will not infringe rights of third parties.
The trademarks, logos, and service marks appearing on the Application (collectively, the "Trademarks") are registered and unregistered marks of the Company or its licensors. Nothing contained on the Application should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Trademarks displayed on the Application without the Company’s prior written consent. Your use of the Trademarks, except as provided in this Agreement, is strictly prohibited.
Any information, ideas, suggestions or other material provided by User to the Company ("Feedback") may be used by the Company for any purposes, including for developing or marketing purposes without any liability, payments or obligation to the User.
12.2 By sending us photos of you using the Application or with any prize received from us, or posting such photos to our social media accounts, you grant us a worldwide, perpetual, irrevocable, royalty-free, transferrable and sublicensable license to use these photos for marketing and promotional materials, on any media, including on our website, online ads and social media accounts. You may contact us at firstname.lastname@example.org if you wish your photo to be removed.
YOU AGREE THAT THE PRODUCTS AND/OR YOUR USE OF THE SERVICES OR APPLICATION SHALL BE AT YOUR OWN RISK. THE SERVICES, APPLICATION AND PRODUCTS ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THE COMPANY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
THE COMPANY DOES NOT WARRANT THAT THE SERVICES OR APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT THESE SERVICES, OR THE SERVER(S) THAT MAKE(S) THESE SERVICES AVAILABLE, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
THE COMPANY DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES, APPLICATION OR PRODUCTS, INCLUDING THEIR CORRECTNESS, ACCURACY, RELIABILITY, AVAILABILITY OR OTHERWISE. YOU ARE RESPONSIBLE FOR TAKING ALL PRECAUTIONS NECESSARY OR ADVISABLE TO PROTECT YOU AGAINST ANY CLAIM, DAMAGE, LOSS OR HAZARD THAT MAY ARISE BY VIRTUE OF YOUR USE OF OR RELIANCE UPON THE SERVICES OR APPLICATION.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
14. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED UNDER LAW, UNDER NO CIRCUMSTANCES WHATSOEVER WILL THE COMPANY AND ITS AFFILIATES, PARTNERS, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS, SUBCONTRACTS AND SUPPLIERS BE RESPONSIBLE OR LIABLE TO YOU OR TO ANY OTHER ENTITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, UNDER ANY LEGAL THEORY, WHETHER CONTRACT, TORT OR OTHERWISE, FOR ANY DIRECT, COMPENSATORY, INDIRECT, INCIDENTAL, CONSEQUENTIAL INCLUDING ANY LOST PROFITS AND LOST BUSINESS OPPORTUNITIES, BUSINESS INTERRUPTION, REVENUE, INCOME, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES THAT RESULT FROM OR RELATE IN ANY MANNER WHATSOEVER TO THE PRODUCTS, YOUR USE OF THE SERVICES OR APPLICATION, OR RELIANCE ON ANY OF THE FOREGOING OR TO ANY ERRORS, INACCURACIES, OMISSIONS, DEFECTS, SECURITY BREACHES, OR ANY OTHER FAILURE TO PERFORM BY THE COMPANY.
WITHOUT DEROGATING FROM THE FOREGOING, IF DESPITE THE FOREGOING COMPANY WILL BE FOUND LIABLE OR RESPONSIBLE BY A COMPETENT AUTHORITY, UNDER ANY LEGAL THEORY, COMPANY'S AGGREGATE LIABILITY SHALL NOT EXCEED THE TOTAL AMOUNTS THAT YOU PAID COMPANY FOR USE OF THE SERVICES IN THE THREE (3) MONTHS PERIOD PRECEDING THE CLAIM.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
YOU RECOGNIZE AND AGREE THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL, HAVE BEEN BARGAINED FOR THE BASIS OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN THE DECISION BY YOU TO ENTER INTO THIS AGREEMENT AND USE THE APPLICATION.
The Company may terminate this Agreement and/or suspend your right to access or use any portion or all of the Application at any time, with or without cause, at its sole discretion. In addition, the Company may terminate and/or suspend your account, with immediate effect, for any reason, including in the event of technical difficulties or breach or violation by you of any term of this Agreement, at the Company’s sole discretion. If you have more than one account, the Company may terminate all of your accounts. The Company may at any time, add, reduce, amend or discontinue the Services or any part thereof without notice or liability to you. Furthermore, the Company may suspend or terminate the provision of the Services and the operation of the Application at any time, at its sole discretion, with or without notice to you, following which User’s right to use the Application will be terminated. Upon termination, you will not be able to access any data stored on the Application and any information related to your account will be lost and the User will not be entitled to any reimbursement or refunds. In addition, the Company may selectively remove, revoke or garnishee any Benefits associated with your account. “Benefits” mean any online or off-line elements or features of the Service, including paid and free downloadable content, Coins and other virtual currency, digital and/or virtual assets, unlockable content, rights of use tied to unlock keys or codes, serial codes and/or online authentication of any kind, and in-game achievements. Furthermore, the Company will not be held liable for any damages, expenses or costs claimed to be incurred as a result of any termination in accordance with this Agreement.
You agree that you will, at your expense, indemnify, defend, settle, and hold the Company and its affiliated companies, and their respective directors, officers, shareholders, employees, agents, and assignees harmless from and against all claims, complaints, damages and expenses, including attorneys' fees, arising out of: (i) breach by the User of any term of this Agreement; (ii) User’s use of the Application and/or the Services; and (iii) any content posted by the User using the Application or the Services.
In addition, you will pay any judgment awarded against the Company or any settlement agreed to by you, and any authorized expenses incurred by us.
The Company reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with the Company in asserting any available defenses.
For the sake of clarity, this Section 16 will survive any termination of this Agreement.
17. Binding Arbitration
17.1 Applicability of Arbitration Agreement. All claims and disputes arising out of or relating to this Agreement or the use of the Services that cannot be resolved in small claims court will be resolved by binding arbitration on an individual basis ("Disputes"), except that you and the Company are not required to arbitrate any dispute for enforcement or infringement of either party's Intellectual Property Rights ("Excluded Disputes"). Any and all Disputes relating to, arising out of, or in any way in connection with your rights of privacy and publicity are not Excluded Disputes.
17.2 Arbitration Rules. The Federal Arbitration Act governs the interpretation and enforcement of this dispute-resolution provision. Arbitration will be initiated through the American Arbitration Association ("AAA"). If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. The rules of the arbitral forum will govern all aspects of this arbitration, except to the extent those rules conflict with this Agreement. The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration will be conducted by a single neutral arbitrator. Any Disputes where the total amount sought is less than $10,000 may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For Disputes where the total amount sought is $10,000 or more, the right to a hearing will be determined by the arbitral forum's rules. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
17.3 Additional Rules for Non-appearance Arbitration. If non-appearance arbitration is elected, the arbitration will be conducted by telephone, online, written submissions, or any combination of the three; the specific manner will be chosen by the party initiating the arbitration. The arbitration will not involve any personal appearance by the parties or witnesses unless the parties mutually agree otherwise.
17.4 Authority of the Arbitrator. The arbitrator will decide the jurisdiction of the arbitrator and the rights and liabilities, if any, of you and the Company. The dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum's rules, and this Agreement. The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and the Company.
17.5 Waiver of Jury Trial. YOU AND THE COMPANY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, OTHER THAN IN RESPECT OF EXCLUDED DISPUTES. You and the Company are instead electing to have claims and disputes resolved by arbitration. In any litigation between you and the Company over whether to vacate or enforce an arbitration award, YOU AND THE COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
17.6 Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER, MARKETING AFFILIATE OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor we are entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in Section 17.12 below.
17.7 Confidentiality. No part of the procedures will be open to the public or the media. All evidence discovered or submitted at the hearing is confidential and may not be disclosed, except by written agreement of the parties, pursuant to court order, or unless required by law. Notwithstanding the foregoing, no party will be prevented from submitting to a court of law any information needed to enforce this arbitration agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
17.8 Right to Waive. Any rights and limitations set forth in this arbitration agreement may be waived by the party against whom the claim is asserted. Such waiver will not waive or affect any other portion of this arbitration agreement.
17.9 Opt-out. You may opt out of this arbitration agreement. If you do so, neither you nor the Company can force the other to arbitrate. To opt out, you must notify the Company in writing no later than thirty (30) days after first becoming subject to this Agreement. Your notice must include your name and address, the email address and phone number you provided through the Services when you registered or made a purchase, and an unequivocal statement that you want to opt-out of this arbitration agreement. You must send your opt-out notice to this address: email@example.com
17.10 Small Claims Court. Notwithstanding the foregoing, either you or the Company may bring an individual action in small claims court.
17.11 Arbitration Agreement Survival. This arbitration agreement will survive the termination of this Agreement and your relationship with the Company.
17.12 Venue for Excluded Disputes. Excluded Disputes shall be governed by and construed exclusively in accordance with the laws of the State of Israel, without regard to the principles of conflict of law therein. The parties consent to the exclusive jurisdiction of the competent courts of Tel Aviv-Jaffa, Israel in respect of Excluded Disputes and hereby submit themselves to the exclusive jurisdiction of these courts.
17.13 U.N. Convention. The application of the United Nations Convention of Contracts for the International Sale of Goods or other international laws is expressly excluded, whether the claim is in arbitration or at court.
All notices regarding any matter pertaining to this Agreement, or the policies referenced herein, including any notice of claim, will be given by first class mail or courier, postage or air bill prepaid, and sent to: firstname.lastname@example.org, Attention: Legal Department. Notice will be deemed effective 3 days after deposit with a service or courier if mailed locally or 7 days after if internationally. In addition, the Company may provide notice to you by either email or by registered courier, sent to the physical or email address you provided to us during any transaction conducted with us. Notice will be deemed effective 24 hours after sending thereof through an email (unless returned due to an invalid email address).
20.1 Any cause of action arising out of or related to the Application or the Services must be submitted within one (1) year after the cause of action accrues; otherwise, such cause of action is permanently barred.
20.2 The Company does not provide support services to the Users with respect to the Application or the Services, and in the event support was received, the Company will not be obligated to continue such support at any time. The Company may send the User emails for communicating certain products and services to User, which we may discontinue at any time.
20.3 This Agreement, as updated from time to time, constitutes the entire agreement between us, with respect to the terms and conditions governing your use of the Application and supersedes all previous written or oral agreements between us.
20.4 If any provision of this Agreement is held to be invalid or unenforceable, such provision will be struck and the remaining provisions will be enforced.
20.5 Company’s failure to enforce any breach of this Agreement by you or others does not constitute a waiver of our right to enforce the terms of this Agreement in the future for a similar breach.
20.6 This Agreement and any legally binding document relating to your use of the Application and Services, may be assigned by the Company at the Company’s sole discretion, to any third party, including in the event of merger or acquisition. However, you may not assign or transfer the Agreement or any rights thereunder.
20.7 The section headings in this Agreement are for reference purposes only and in no way limit or describe the scope of a particular section. Unless otherwise indicated herein, (i) the words “hereof”, “herein” and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement, (ii) the terms “Dollars” and “$” mean U.S. dollars, and (iii) the words “include,” “includes” and “including,” when used herein, shall be deemed in each case to be followed by the words “without limitation”. You hereby expressly waive the application of any law, holding or rule of construction providing that ambiguities in an agreement or other document will be construed against the party drafting such agreement or document.
If you have any query, questions or suggestions, or if you wish to report any violations of this Agreement, you may contact the Company at: email@example.com .
Last Updated: November 5, 2019.