Effective Date 27 April 2016 (last updated 01 March 2019)
Please read these Terms carefully before using this Platform. Your use of the Platform constitutes agreement to these Terms. The Platform is owned or controlled by Phantom EFX, LLC or one of its affiliates (“Company”). Your agreement to these Terms includes your agreement to arbitrate any and all claims arising out of or in connection with these Terms or the Platform pursuant to the Federal Arbitration Act and subject to the terms below (Section 19, “Agreement To Arbitrate”).
- Eligibility to Participate
The Games and Platform are permitted for use only by persons 21 years of age or older. By playing the Games or using the Platform you certify that you meet that requirement.
- No Requirement To Purchase
The Platform and the Games it contains are free to play and do not require purchase of any kind. You may claim a certain amount of Game Currency without charge upon your initial login and you may claim additional amounts of Game Currency without charge at recurring time intervals. “Game Currency” means virtual “coins” or “points” or other virtual items that may be needed in order to play the Games. If you exhaust your supply of available Game Currency, you may wait until additional free Game Currency is available to you or you may elect to purchase additional Game Currency. Game Currency is licensed to you from the Company for your use on the Platform, subject to the limitations and other terms set out in greater detail below.
- Changes to the Platform; Termination; Deactivation
From time to time we may update this Platform. Company may, in its sole discretion, and at any time, discontinue this Platform or any part thereof, or change the content of the Platform, with or without notice, or may prevent your use of this Platform with or without notice to you. You agree that you do not have any rights in this Platform and that Company will have no liability to you if this Platform is discontinued or your ability to access the Platform or any content you may have posted on the Platform is terminated. You further agree that Company will not be liable for any modification or suspension of the Platform.
The Platform routinely receives updates and upgrades, and these Terms may also be revised from time to time. You must check these Terms periodically. The Company reserves the right to change, modify or amend these Terms at any time in its sole discretion. If these Terms are revised, such revision shall take place immediately and your continued use of the Platform indicates your acceptance of the revised Terms. If you do not agree to any revised Terms, you should discontinue use of the Platform.
GENERALLY, ACCOUNTS CREATED WITH THE COMPANY WILL BE CONSIDERED ACTIVE UNTIL COMPANY RECEIVES A USER REQUEST TO DEACTIVATE OR DELETE THEM; HOWEVER, COMPANY RESERVES THE RIGHT TO TERMINATE ANY ACCOUNT THAT HAS BEEN INACTIVE FOR 180 DAYS.
- Company Content
Content on this Platform that is provided by Company or its licensors, including certain graphics, photographs, images, screen shots, text, digitally downloadable files, trademarks, logos, product and program names, slogans, and the compilation of the foregoing (“or “Content”) is the property of Company and its licensors, and is protected in the U.S. and internationally under trademark, copyright, and other intellectual property laws. Content may not be used without the express written consent of Company.
You do not acquire any ownership rights by using the Platform. All comments, feedback, suggestions, ideas, and other submissions (“Ideas”) disclosed, submitted, or offered to Company in connection with use of the Platform shall be the property of Company. You agree that unless otherwise prohibited by law, Company may use, sell, exploit, and disclose the Ideas in any manner, without restriction and without compensation to you, and that Company will not be required to treat any Ideas as confidential. Posting of Ideas to or through the Platform, including ideas or disclosures of opinions, is voluntary on your part. No confidential or additional contractual relationship is established by your posting of Ideas or is it to be implied by our review or subsequent use of your Ideas. The Company shall not be liable for any disclosure of any Ideas, including opinion(s) or suggestion(s) you post to or through the Platform. You acknowledge that you are responsible for whatever material you submit, and you, not Company, have full responsibility for the message, including its legality, reliability, appropriateness, originality, and copyright.
You agree not to download, display, use, copy, redistribute, publish, or otherwise exploit any Content located on the Platform for use in any publications, in public performances, on websites other than this Platform, for any other commercial purpose, in connection with products or services that are not those of Company, in any other manner that is likely to cause confusion among consumers, that disparages or discredits Company and/or its licensors, that dilutes the strength of Company’s or its licensor’s property, or that otherwise infringes Company’s or its licensors’ intellectual property rights. You further agree to in no other way misuse any Content or third party content that appears on this Platform.
If you are a trademark or copyright owner and you believe that your trademark or copyright rights have been violated, please provide the following information either to email@example.com or the address listed below:
(a) A physical signature of the person authorized to act on behalf of the owner of the copyright;
(b) A description of the copyrighted work that you claim has been infringed;
(c) A description of where the material that you claim is infringing is located on the Services;
(d) Your address, telephone number and email address;
(e) A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
(f) A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Scientific Games Corporation
Attn: Chief Legal Officer
6601 Bermuda Road
Las Vegas, Nevada 89119
- Use of the Platform
Subject to these Terms, Company grants you a non-exclusive, non-transferable, revocable limited license to use and display the Platform and related software (excluding source and object code) for your personal (or household) non-commercial use.
As a condition of your use of and access to the Platform, you agree to comply with the following requirements, which are provided as an example rather than as a limitation, and any application or game specific rules published within the Platform: (a) you will not use any electronic communication feature of the Platform for any purpose that is unlawful, tortious, abusive, intrusive on another’s privacy, harassing, libelous, defamatory, ridiculing, mocking, disparaging, intimidating, embarrassing, obscene, offensive, threatening, or hateful, promoting violence or describing how to perform a violent act; or promoting or constituting illegal activity; (b) you will not upload, post, reproduce, or distribute any information, software, or other material protected by copyright or any other intellectual property right (as well as rights of publicity and privacy) without first obtaining the permission of the owner of such rights; (c) you will not use the Platform to violate the contractual, personal, intellectual property or other rights of any party; (d) you will not collect or store personal data about other users; (e) you will not use the Platform for any commercial purpose not expressly approved by Company in writing; (f) you will not upload, post, email, or otherwise transmit any advertising or promotional materials or any other form of solicitation or unauthorized communication; (g) you will not upload, post, email, or otherwise transmit any material that contains viruses or any other computer code, files, or programs which might interrupt, limit, or interfere with the functionality of any computer software or hardware or telecommunications equipment; (h) you will not be in violation of these Terms or the game rules of conduct; (i) you will not reverse engineer, decompile, reverse assemble, modify, or attempt to discover any software (source code or object code) that the Platform creates to generate web pages or any software or other products or processes accessible through the service; (j) you will not upload or transmit (or attempt to upload or transmit) any material that acts as a passive or active information collection or transmission mechanism, including, without limitation, clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies, or other similar devices (sometimes referred to as “spyware,” “passive collection mechanisms” or “pcms”); (k) except as may be the result of standard search engine or Internet browser usage, you will not use or launch, develop or distribute any automated system, including, without limitation, any spider, robot (or “bot”), cheat utility, scraper, or offline reader that accesses the Platform, or use or launch any unauthorized script or other software; (l) you will not sell the Platform or any part thereof including but not limited to “Virtual Goods” (“Virtual Goods” include, but are not limited to, in-game virtual trophies, virtual badges, and other virtual items) or Game Currency, user accounts and access to any third party in exchange for real currency or items of monetary value; or (m) you will not engage in cheating or any other activity deemed by Company to be in conflict with the spirit or intent of the Platform.
Company does not control or endorse the content, messages, or information found in any user-content portions of the Platform or external sites that may be linked to or from the games or their forums, and, therefore, Company disclaims any responsibility with regard thereto. Company reserves the right to disable any account that has been involved in any activity that is in violation of any of the provisions of these Terms or of any individual deemed to be acting or using the Platform in a manner that is harassing or otherwise disruptive of the Platform. Company also reserves the right, but has no obligation, to monitor disputes between you and other Platform users.
You agree that Company and Company’s third-party vendors may collect and use technical and usage data and related information, including but not limited to technical information about your device, geolocation, date and time of Platform access, system and application software, and peripherals, that is gathered periodically to, among other things, facilitate the provision of software updates, product support, and other services to you (if any) related to the Platform. You grant Company the permission to use this information to improve its products or to provide services or technologies to you, as well as to provide advertising content in which Company believes you may be interested, including working with third parties who provide targeted advertising content. You expressly consent to receive push notifications from and on behalf of Company.
- Accounts, Passwords and Security
Certain areas of the certain Platforms may require registration or may otherwise ask you to provide information to participate in certain features or access certain content. If you elect not to provide such information, you may not be able to access certain content or participate in certain features of the Platform or any features at all. You may not have a user ID that is indecent or distasteful or that Company otherwise deems unacceptable in Company’s discretion.
If the Platform requires you to create an account or otherwise submit information, you must complete the specified process by providing Company with current, complete, and accurate information as requested by the applicable registration form. It is your responsibility to maintain the currency, completeness, and accuracy of your registration data, and any loss caused by your failure to do so is your responsibility. During the registration process, you will be asked to enter your name and valid e-mail address and choose a password. It is entirely your responsibility to maintain the confidentiality of your password and account. Additionally, you are entirely responsible for any and all activities that occur under your account, including mobile payments, all transactions and other activities undertaken with your device, whether authorized or unauthorized. You agree to notify Company immediately of any unauthorized use of your account. You further agree not to email, post, or otherwise disseminate any user ID, password, or other information which provides you access to the Platform. Company is not liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. Company shall not be responsible for any losses arising out of the loss or theft of user information transmitted from or stored on a device or from unauthorized or fraudulent transactions associated with the Platform.
- Transactions and Product Availability
Through the Platform, you may be able to order and/or pay for Company or third-party products or services. To be able to order and pay for such products or services, you must supply certain information relevant to your transaction, including, without limitation, your credit or debit card number, the expiration date of your credit or debit card, the name on your credit or debit card, your billing address, and/or your Company gift card numbers. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT OR DEBIT CARD OR OTHER PAYMENT METHOD UTILIZED IN CONNECTION WITH ANY TRANSACTION. By submitting such information, you grant to Company and/or any required third parties the right to provide and transmit such information for purposes of facilitating the completion of transactions initiated by you or on your behalf. Verification of information may be required prior to the acknowledgment or completion of any transaction. You agree to pay all fees and applicable taxes incurred by you or anyone using an account registered to you.
- Limited License to Virtual Goods and Game Currency
Through the Platform, you may be provided an opportunity to purchase a limited license to Virtual Goods and Game Currency using real-world money at prices established by the Company in its sole discretion and made known to you at the time of purchase. Purchase of Virtual Goods or Game Currency is never required to play the Games or access the Platform. . Virtual Goods and Game Currency can never be redeemed for real money, goods, or any other item of monetary value from Company or any other party. Game Currency are virtual tokens that we license and each virtual token represents contractual permission from Company to access certain features of the Platform. You acknowledge that Virtual Goods and Game Currency are not real currency or any type of financial instrument and are not redeemable for any sum of money from Company at any time. Company may determine and modify the permissible uses and in-Game value of Virtual Goods and Game Currency at any time in its sole discretion. Company makes no guarantee that the Virtual Goods or Game Currency will be available, nor that they will be usable for any particular Game, function or feature, regardless of whether they were usable for such Game, function or feature at time of purchase.
Purchase, sale and transfer of Game Currency or Virtual Goods is strictly prohibited. Violation of that prohibition may result in termination of your account and legal action. You understand that you have no right or title in Virtual Goods or Game Currency or any other attributes associated with use of the Platform or stored within the Platform, other than the extent of your limited license.
Except as required by applicable law, your purchase of the limited license for Virtual Goods and Game Currency is final and is not refundable or exchangeable, except in Company’s sole discretion. You agree that Company has the right to manage, control, and modify the license rights (including terminating those rights) underlying such Virtual Goods and Game Currency in its sole discretion and that Company will have no liability to you based on its exercise of this right.
YOU ACKNOWLEDGE AND AGREE THAT COMPANY IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON, AND THAT YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED VIRTUAL GOODS OR GAME CURRENCY IF YOUR LICENSE TO USE THOSE ITEMS IS TERMINATED OR YOUR ACCOUNT CLOSED, REGARDLESS OF REASON AND REGARDLESS OF WHETHER SUCH TERMINATION OR CLOSURE WAS VOLUNTARY OR INVOLUNTARY.
- Rules for Sweepstakes, Contests, Instant Win Games and Similar Promotions.
- Entertainment Purposes Only
The Platform and the services provided on the Platform are for entertainment purposes only and may not be used in connection with any form of gambling or wagering.
- Disclaimers and Limitations of Liability
Company makes no representations about the accuracy of information on the Platform or reliability of the features of this Platform, the Content, or any other Platform feature, and disclaims all liability in the event of any service failure. You acknowledge that any reliance on such material or systems will be at your own risk. Company makes no representations regarding the amount of time that any Content will be preserved. Company does not endorse, verify, evaluate or guarantee any information or the accuracy of any information provided by users and nothing shall be considered as an endorsement, verification or guarantee of any Content. You shall not create or distribute information, including but not limited to advertisements, press releases or other marketing materials, or include links to any sites which contain or suggest an endorsement by Company without the prior review and written approval of Company.
YOUR USE OF THE PLATFORM IS AT YOUR SOLE RISK. THIS PLATFORM (INCLUDING, WITHOUT LIMITATION, ALL INFORMATION CONTAINED HEREON AND ALL VIRTUAL GOODS, GAME CURRENCY, AND SERVICES) IS PROVIDED ON AN “AS IS, AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THOSE OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, ARE MADE WITH RESPECT TO THIS PLATFORM, VIRTUAL GOODS, GAME CURRENCY, OR ANY INFORMATION OR SOFTWARE THEREIN. WITHOUT DEROGATING FROM THE FOREGOING, NEITHER COMPANY NOR ITS AFFILIATES OR SUBSIDIARIES, OR ANY OF THEIR DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, THIRD-PARTY CONTENT PROVIDERS, DISTRIBUTORS, LICENSEES OR LICENSORS (“COMPANY PARTIES”) WARRANT THAT THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO ACTIONS FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR BREACH OF WARRANTY, OR OTHERWISE, SHALL COMPANY PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, USE, BUSINESS, GOODWILL OR DATA, COST OF PROCURING SUBSTITUTE GOODS, SERVICES OR INFORMATION, LITIGATION OR THE LIKE) THAT RESULT FROM THE USE OF OR INABILITY TO USE THIS PLATFORM, OR LOSS OF VIRTUAL GOODS OR GAME CURRENCY, NOR SHALL COMPANY BE RESPONSIBLE FOR ANY DAMAGES WHATSOEVER THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE WHETHER OR NOT CAUSED BY EVENTS BEYOND COMPANY’S REASONABLE CONTROL, INCLUDING BUT NOT LIMITED TO ACTS OF GOD, COMMUNICATIONS LINE FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO THIS PLATFORM’S RECORDS, PROGRAMS, OR SERVICES, EVEN IF YOU ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO A NEGLIGENT ACT, WILL COMPANY PARTIES OR ITS AFFILIATES OR AGENTS BE LIABLE FOR ANY DAMAGE OF ANY KIND THAT RESULTS FROM THE USE OF, OR THE INABILITY TO USE, THE PLATFORM, VIRTUAL GOODS, OR GAME CURRENCY, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, OUR LIABILITY TO YOU AND YOUR ABILITY TO RECOVER DAMAGES FROM THE COMPANY PARTIES SHALL BE LIMITED TO FEES YOU PAID TO PURCHASE VIRTUAL GOODS OR GAME CURRENCY, IF ANY, AND NO OTHER FORM OF OR GREATER DAMAGE SHALL BE PERMITTED. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY AS SET FORTH IN THIS SECTION; AS A RESULT, AND SOLELY TO THAT EXTENT, SOME OR ALL OF THE ABOVE LIMITATION(S) OR EXCLUSION(S) MAY NOT APPLY TO YOU.
- You Agree To Indemnify The Company
You agree to indemnify and hold Company, its parents, subsidiaries, officers, employees, agents, and website contractors and each of their officers, employees and agents harmless from any claims, losses, damages, liabilities, and expenses, including legal fees and costs, related to your use or misuse of the Platform, any activity related to your account by you or any other person, any material that you submit to, post on or transmit through the Platform (including, without limitation, Ideas), your infringement or violation of any rights of another, termination of your access to the platform, any violation of these Terms, or any breach of the representations, warranties, and covenants made by you herein. Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Company, and you agree to cooperate with Company’s defense of these claims. Company will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it. You agree that the provisions in this paragraph will survive any termination of your account or of the Platform.
- Loyalty Program(s)
By using certain Platforms, you agree to be a member of the Rewards Club Loyalty Program or other loyalty programs from time to time. You acknowledge that any such program and your membership may be subject to additional terms and conditions.
- Platform App Users
The use of the Platform app requires use of a mobile device and wireless mobile data service, which must be obtained from your wireless carrier, and may require Internet access, which must be obtained from your service provider; you are responsible for obtaining and paying for such additional services and obtaining a suitable device, including without limitation all usage charges related thereto. You are required to send and receive, at your cost, electronic communications related to the Platform, including without limitation, administrative messages, service announcements, diagnostic data reports, and Platform updates, from Company, your mobile carrier or third party service providers. If you do not have an unlimited wireless mobile data plan, you may incur additional charges from your wireless service provider in connection with your use of the Platform. You are solely responsible for obtaining any additional subscription or connectivity services or equipment necessary to access the Platform, including but not limited to payment of all third party fees associated therewith, including fees for information sent to or through the Platform.
Company may, at its discretion, automatically download Platform updates to your device from time to time. You agree to accept these Platform updates, and to pay for any costs associated with receiving them. The Platform may not work with all devices or all mobile carriers. Company makes no representations that the Platform will be compatible with or provided by all mobile carriers. In the event that fees are charged for the Platform, or other third party service providers charge a fee for the products or services they provide, you agree to pay such fee to the respective party in exchange for your continued use of such products or services. Some services may be subject to different or additional terms (including fees), which you will be required to agree to prior to your use of such services.
- Users of the Apple Platform
If you download and use our iPhone or iPad App: You, the end-user of this Platform, acknowledge that this agreement is entered into by and between Company and you and not with Apple, Inc., and Apple, Inc. is not responsible for the Platform and/or its content. Notwithstanding the foregoing, you acknowledge that Apple, Inc. and its subsidiaries are third-party beneficiaries of this agreement and that Apple, Inc. has the right (and is deemed to have accepted the right) to enforce this agreement. You acknowledge that Apple, Inc. has no obligation whatsoever to maintain or support the Platform. You acknowledge that you have reviewed the App Store Terms and Conditions (located online at http://www.apple.com/legal/itunes/us/terms.html#APPS). This agreement incorporates by reference the Licensed Application End User License Agreement (the “LAEULA”) published by Apple, Inc. (located online at http://www.apple.com/legal/itunes/appstore/dev/stdeula/). For purposes of these Terms, the Platform is considered the “Licensed Application” as defined in the LAEULA and Company is considered the “Application Provider” as defined in the LAEULA. If any terms of these Terms conflict with the terms of the LAEULA, these Terms shall control. You further acknowledge and agree that in no event will Apple, Inc. be responsible for any claims relating to the Platform (including, without limitation, a third party claim that the Platform infringes that third party’s intellectual property rights) or your use or possession of the Platform, including but not limited to: (i) product liability claims; (ii) any claim that the Platform fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- Export Controls
The Platform is subject to United States export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the Platform. These laws include restrictions on destinations, end users and end use. You may not use or otherwise export, re-export, divert, transfer, or disclose any portion of the Platform or any related technical information or materials, directly or indirectly, except as authorized by United States law and the laws of the jurisdiction in which the Platform was obtained. In particular, but without limitation, the Platform may not be exported, re-exported, diverted, transferred, or disclosed (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government “watch list” of prohibited or restricted parties, including the Specially Designated Nationals list published by the Office of Foreign Assets Control of the U.S. Treasury or the Denied Persons List published by the U.S. Department of Commerce. You also agree that you will not use the Platform for any purposes prohibited by United States law.
- Third Party Websites
- Privacy and Location Based Services
In addition, this Platform may use location-based services to locate you. If you choose to use the location-based services portion of this Platform, you consent to Company and/or its third party provider accessing your approximate or exact location. You also grant Company permission to use this information to improve its products or to provide services or technologies to you, as well as to provide advertising content in which Company believes you may be interested, including working with third parties who provide targeted advertising content. For more information, please see the Company Tracking Tools disclosure.
- Agreement to Arbitrate and Class Action Waiver
By agreeing to these Terms, you also agree to binding arbitration of any and all claims arising out of or in connection with these Terms or the Platform pursuant to the Federal Arbitration Act and subject to the terms below (“Agreement To Arbitrate and Class Action Waiver”). You and Company agree that we intend that this Section 19 satisfies the “writing” requirement of the Federal Arbitration Act and further agree that, notwithstanding any other provision of the Terms, the Federal Arbitration Act shall govern the interpretation and enforcement of this Agreement To Arbitrate.
19.1 If a dispute arises between you and Company regarding a claim, you and we agree to alternative dispute resolution. Our goal is to provide you with a neutral and cost-effective means of resolving the dispute quickly. If any controversy, allegation or claim arises out of or relates to the Platform or these Terms, your decision to enter into these Terms, or any additional matters within the scope of this Agreement to Arbitrate (collectively, “Dispute(s)”), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. However, if no such information exists or if such information is not current, then we have no obligation under this section. Your notice to us must be sent to:
Scientific Games Corporation
Attn: Chief Legal Officer
6601 Bermuda Road
Las Vegas, Nevada 89119
For a period of sixty (60) days from the date of receipt of notice from the other party, we and you will engage in a dialogue in order to attempt to resolve the Dispute, although neither party is required to resolve such dispute on terms which each party, in its sole discretion, deems unsatisfactory.
19.2 If we cannot resolve a Dispute within sixty (60) days of receipt of such notice, then either you or we may elect to submit the Dispute to binding arbitration as hereinafter described. WITH ARBITRATION (A) THERE IS NO JUDGE OR JURY, (B) THE ARBITRATION PROCEEDINGS AND ARBITRATION OUTCOME ARE SUBJECT TO CERTAIN CONFIDENTIALITY RULES, AND (C) JUDICIAL REVIEW OF THE ARBITRATION OUTCOME IS LIMITED.
Further, you and Company agree that, should the resolution of the Dispute occur in arbitration, SUCH DISPUTES WILL BE ARBITRATED ONLY ON AN INDIVIDUAL BASIS AND NOT A CLASS-WIDE BASIS. ARBITRATION OF THE DISPUTE BETWEEN THE COMPANY AND YOU WILL NOT BE CONSOLIDATED WITH ANY OTHER ARBITRATION OR OTHER PROCEEDINGS THAT INVOLVE ANY OTHER PARTY’S CLAIM OR CONTROVERSY. But if, for any reason, any court with competent jurisdiction or any arbitrator selected pursuant to this arbitration provision holds that this restriction, limiting the arbitration to Disputes between you and Company, is unenforceable, then our agreement above to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section 20 below.
19.3 Should either you or Company elect to resolve the Dispute by way of binding arbitration, the arbitration shall proceed in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association (“AAA”), except that in no event shall the arbitration proceed as a class or representative action. If the Dispute has a claimed value of not more than $5,000,000, then the arbitration will be heard and determined by a single, neutral arbitrator who is a retired judge or a lawyer with not less than ten (10) years’ experience as a practicing member of the bar in the substantive practice area related to the Dispute, who will administer the proceedings in accordance with the AAA’s then-current Supplementary Procedures for Consumer Related Disputes (however then-titled). If the Dispute has a claimed value of more than $5,000,000, then the arbitration will be heard and determined by a three (3) member panel, with one member to be selected by each party and the third (who will chair the panel) selected by the two (2) party-appointed members or by the AAA in accordance with the then-current Commercial Arbitration Rules (however then-titled). The arbitrator or arbitration panel, as the case may be, will apply applicable law and the provisions of these Terms, will determine any Dispute according to applicable law and facts based upon the record and no other basis, and will issue a reasoned award.
If a party properly submits the Dispute to the AAA for arbitration and the AAA is unwilling or unable to set a hearing date within sixty (60) days of the filing of a “demand for arbitration,” then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’ streamlined Arbitration Rules and Procedures, or by any other arbitration administration service to which you and a legal officer of Company consent in writing, except, as noted above, that in no event shall the arbitration proceed as a class or representative action. The substantive practice area requirements for the arbitrator and the $5,000,000 threshold for the number of arbitrators assigned to the Dispute set forth in the paragraph above will also apply to any such arbitration under JAMS or other arbitration service.
You can obtain AAA and JAMS procedures, rules, and fee information as follows:
AAA: 1.800.778.7879 or www.adr.org
JAMS: 1.800.352.5267 or www.jamsadr.com
All parties to the arbitration will have the right, at their own expense, to be represented by an attorney or other advocate of their choosing. The parties may agree to conduct the arbitration proceedings electronically (including via telephone or video conference) or purely based on written submissions. If an in-person arbitration hearing is required, then it will be conducted in the “metropolitan statistical area” (as defined by the U.S. Census Bureau) where you are a resident at the time the Dispute is submitted to arbitration. You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules (including any rules regarding hardship), but if applicable arbitration rules or laws require Company to pay a greater portion or all of such fees and costs in order for this arbitration provision to be enforceable, or if the arbitrator(s) determine that you would experience an extreme hardship by paying your share of arbitration fees and costs prior to resolution of the Dispute, then Company will have the right to elect to pay the fees and costs and proceed to arbitration. Discovery will be permitted pursuant to the applicable arbitration rules. The arbitrator’s decision must consist of a written statement stating the disposition of each claim of the Dispute and must provide a statement of the essential findings and conclusions on which the decision and award (if any) are based. The arbitrator may award the prevailing party attorneys’ fees and costs in its discretion and consistent with applicable law.
19.4 Notwithstanding the foregoing, either party may seek temporary injunctive relief to preserve the status quo or to prevent imminent or stop ongoing harm from the court specified in Section 20 or any other court that otherwise possesses jurisdiction over the parties until an arbitrator can be empaneled and can determine whether to continue, modify or terminate that relief. Actions to compel arbitration pursuant to this Agreement to Arbitrate or to enforce an arbitral award rendered pursuant thereto may be brought in any court specified in Section 20 or that otherwise possesses jurisdiction over the parties.
19.5 NOTWITHSTANDING THE FOREGOING OR ANY OTHER TERMS TO THE CONTRARY, IN THE EVENT A DISPUTE ARISES BETWEEN YOU AND THE COMPANY THAT IS NOT ARBITRATED FOR ANY REASON, YOU AGREE THAT SUCH DISPUTE WILL BE RESOLVED INDIVIDUALLY, WITHOUT RESORT TO ANY FORM OF CLASS ACTION. YOU FURTHER AGREE TO IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS PLATFORM AND/OR THESE TERMS.
- Governing Law and Venue
These Terms will be governed by and construed in accordance with the internal laws of Nevada without regard to conflict or choice of laws principles. Each of the United Nations Convention on Contracts for the International Sale of Goods and the United Nations Convention on the Limitation Period in the International Sale of Goods is hereby expressly excluded and will not apply to these Terms. YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE PLATFORM OR THESE TERMS MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE (AND RECOVERY SHALL BE LIMITED TO THAT ONE-YEAR PERIOD) OR BE FOREVER BARRED.
Subject to the provisions of Section 19, all disputes arising out of or connected with these Terms or the Platform must be brought exclusively in the federal or state courts located in Clark County, Nevada, and the parties hereby submit to the jurisdiction thereof.
If any material on this Platform, or your use of this Platform, is contrary to the laws of the place where you are when you access it, this site is not intended for you, and you may not use this Platform.
Both you and Company acknowledge and agree that no partnership is formed and neither you nor Company has the power or the authority to obligate or bind the other.
These Terms constitute the entire agreement between you and Company regarding the use of the Platform, subject to any additional rules governing contests, sweepstakes or Games as contemplated herein. By using the Platform you represent that you are capable of entering into a binding agreement, and that you agree to be bound by these Terms.
- ELECTRONIC AGREEMENT
You acknowledge and agree that your acceptance of these Terms and your use of the Platform constitutes your “electronic signature” indicating your desire to use the Platform. Your “electronic signature” indicates your acceptance of this Agreement, and your consent to receive communications about this Agreement electronically. If you wish to receive communications in another manner, you may contact us at firstname.lastname@example.org to change your communication preferences.