FaZe Clan 2023
Welcome to the FaZe Clan Site (the “Site”). The Site is operated by FaZe Clan Inc. (the "Company," "we," or "us”). By accessing or using our Site you signify that you have read, understand and agree to be bound by these Terms of Service ("Terms of Service"), regardless of whether you are a registered user of the Site. If you do not agree to these Terms of Service, then do not use the Site.
These Terms of Service are effective as of the date posted above and we will not be bound by any additional or different terms on other documents that are inconsistent with these Terms of Service. Company may modify or update these Terms of Service at any time by posting the amended terms on the Site and such terms shall be effective for all use of the Site and Services (as defined below) once they are posted.1 Your continued access of the Site and/or use of the Services provided on the Site following the posting of any additional or different terms in the Terms of Service constitutes your acceptance of those additional or different terms. Company, in its sole discretion, may also add, delete or change some or all of the features of the Site or Services at any time
Our store is hosted on Shopify Inc. They provide us with the online e-commerce platform that allows us to sell our products and services to you.
As used herein, “User” or "Users" means anyone who accesses and/or uses the Site.
THESE TERMS CONTAIN A MANDATORY ARBITRATION PROVISION THAT, AS FURTHER SET FORTH IN THE “ARBITRATION” SECTION BELOW, REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES BETWEEN US AND ANY USER WHO RESIDES IN THE UNITED STATES.IT DOES NOT ALLOW JURY TRIALS OR ANY OTHER COURT PROCEEDINGS OR CLASS ACTIONS OF ANY KIND INVOLVING ANY USER WHO RESIDES IN THE UNITED STATES.
1. DESCRIPTION OF THE SERVICES
2. ACCOUNTS AND COLLECTION OF CUSTOMER DATA
If you wish to purchase products from the Site or obtain information regarding the Services, you may be required to open an account with us (your “Account”), and we or our e-commerce provider will in any event obtain contact and payment information from you (“Customer Data”). Certain payment options may direct you away from the Site to a third party site.
When creating your Account, you will be required to select a username, password and potentially other identifying information to control access to your Account (“Access Credentials”). You agree by opening your Account or providing Customer Data: (i) to these Terms of Service; (ii) to provide true, accurate, current and complete Customer Data; (iii) to maintain and promptly update the Customer Data to keep it true, accurate, current and complete; (iv) for security reasons, to maintain the confidentiality of your Access Credentials; (vi) to ensure that you properly exit from your Account at the end of each session and to immediately notify Company of any unauthorized use of your Account or any other breach of security; and (vii) to take full responsibility for all activities that occur under your Account.
Company is not responsible for any loss or damage arising from your failure to comply with the foregoing requirements. If you provide any information that is untrue, inaccurate, not current or incomplete, or if Company has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Company may suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof). By submitting your Customer Data, you grant Company a perpetual, irrevocable, royalty-free, non-exclusive license to use, reproduce, transmit, and display this information in connection with Company's performance of the Services for you.
This Site and the Services are intended solely for Users who are adults over the age of majority in their place of residence and any registration by, use of or access to the Site by anyone who is not over the age of majority is unauthorized, unlicensed and in violation of these Terms of Service. By using the Service or the Site, you represent and warrant that you are over the age of majority and that you agree to abide by these Terms of Service. If you violate any of these Terms of Service, or otherwise violate an agreement between you and us, or for any other reason, the Company may terminate your Account and delete any content or information that you have posted on the Site and/or prohibit you from using or accessing the Services or the Site (or any portion, aspect or feature of the Service or the Site), at any time in its sole discretion. You agree that the Company will not be liable to you or any third party for any termination of your Account.
4. PROPRIETARY RIGHTS
Company retains all right, title and interest in and to the Site, the Services and all products that we sell or otherwise make available, as well as all data, information, content and materials provided on the Services. Company further retains all right, title and interest in and to the business processes, procedures, methods and techniques used within the Services and all patent rights, copyright rights, trademark rights, trade secret rights and other intellectual property and proprietary rights therein existing anywhere in the world ("Intellectual Property") to such Services or any related products. All content on the Site, including but not limited to designs, text, graphics, pictures, video, information, software, music, sound and other files, and their selection and arrangement (the "Site Content"), are our proprietary property with all rights reserved. No Site Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without our prior written permission. Such unauthorized use may also violate applicable laws including without limitation copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in these Terms of Service shall be construed as conferring any license to Intellectual Property rights, whether by estoppel, implication or otherwise.
5. CONTENT OF SITE AND PRODUCTS
We are not responsible if information on the Site is not accurate, complete or current. Any reliance on the material on this site is at your own risk. Prices and descriptions for our products are subject to change without notice. We shall not be liable to you or to any third-party for any modification, suspension or discontinuance of the Service.
Information on the Site regarding our products may contain typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information on the Site is inaccurate at any time without prior notice (including after you have submitted your order).
We undertake no obligation to update, amend or clarify information on the Site, including, without limitation, pricing information, except as required by law. No specified update to the Site should be taken to indicate that all the information in the Site has been modified or updated.
Certain products may be available in limited quantities. Although we have made every effort to display as accurately as possible the colors and images of our products that appear on the Site, we cannot guarantee that your computer monitor’s display of any color will be accurate. We reserve the right to limit the quantities of any products that we offer and to discontinue any product at any time.
We reserve the right to refuse any order you place with us and, in our sole discretion, may limit or cancel quantities purchased per person or per order. In the event that we make a change to or cancel an order, we will attempt to notify you by contacting the e-mail and/or billing address or phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers, or distributors.
6. RETURNS POLICY AND CANCELLATION POLICY
All sales are final. We do not accept returns unless the item is faulty. In the unlikely event of a faulty item, please contact customer support at firstname.lastname@example.org. We do not provide credit unless otherwise specified.
Once an order has been placed, we do not allow cancellations. All orders are final.
7. CONTENT SUBMITTED BY USERS
By providing information through the Site or social media links on the Site, including any photographs, videos, comments or other submissions (“Submission”), you certify that your Submission consists of original material to which you have all the rights; that your Submission does not violate the rights of any third party, including, without limitation, copyright, trademark, patent, privacy or any rights creating claims for idea misappropriation or the right of publicity; that your Submission does not contain any material that is abusive, vulgar, threatening, harassing, libelous, defamatory, obscene or that is known to be false; and that your Submission does not include any private or personally identifiable information regarding any other person.
You grant us a nonexclusive, worldwide, perpetual, irrevocable, royalty-free, fully paid-up license to create derivative works based upon your Submissions and to copy, distribute, publicly display, publicly perform, use, disclose, import and otherwise exploit your Submission or any such derivative work, and to assign or otherwise transfer such license or otherwise authorize others to do any of the foregoing, without notice or obligation to you. You further acknowledge that any Submission will not be returned or kept confidential; that the Company is not obligated to use or pay you for the Submission; that the Company may publish the Submission in perpetuity in all markets worldwide and in any and all media now know or hereafter discovered, including the Site; that the Company may edit or remove content that we determine in our sole discretion is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s Intellectual Property or these Terms of Service; that the Submission may be edited for length, clarity and/or functionality; and that your Submission may be shared with legal authorities if the Company believes it is warranted or pursuant to a verified request.
You acknowledge that any information you disclose in a Submission may be publicly available and that you should exercise caution in deciding whether to include any personal, financial or other sensitive information in any Submission. If you choose to include any of your personally identifiable or other information in a Submission, you do so at your own risk.
You acknowledge that we cannot prevent other visitors to the Site from using Submissions and personal information disclosed in any Submissions, even if their use of that information violates the law or your personal privacy or safety. None of the Submissions will be subject to any obligation, whether of confidentiality, attribution or otherwise, on our part, and we will not be liable for any use or disclosure of any Submissions.
When viewing or responding to any Submissions, you should not assume that people are who they say they are, know what they say they know or are affiliated with whom they say they are affiliated with. Information contained in Submissions may not be reliable, and it is not a good idea to make any decisions based solely or largely on information you cannot confirm. We are in no way responsible for the content or accuracy of any information in any Submission and will not be responsible or liable in any way for or in connection with any decisions you make or actions that you take or forego based on such information.
You acknowledge and agree that a Submission is not an effective way to provide us notices or otherwise communicate with us and that we shall not be deemed for any purpose to have knowledge of any information in any Submission.
8. NFT drops
1. We may from time to time offer to issue to you, or offer you the opportunity to mint (i.e., publish on a supported digital ledger of transactions that is duplicated and distributed on a network of computer systems, commonly known as a blockchain), NFTs. “NFT” means a one-of-a-kind, non-fungible, cryptographic token for which there is no copy or substitute and that is linked to and represents a particular copy of an item of digital content, including, but not limited to, a particular digital copy of any textual work, audiovisual work, motion picture, photograph, other image or musical or other sound recording (such digital content, the “Associated Content”). The issuance of any NFT to you or minting of any NFT by you (collectively, an “NFT Drop”), would be recorded on a blockchain.
2. Our NFT Drops may involve the promotion of the products or services of third parties (our “NFT Partners”). We do not endorse or make any guarantees regarding any products or services of any NFT Partners and will have no liability or obligation to you in connection with any of those products or services, your purchase of those products or services, or any defects in or failures of those products or services.
3. In order to obtain or mint any NFT, you may be required to provide us personal information (in addition to any information that you provided when you opened your Account) and will be required to agree to be bound by terms of service that are specific to such NFT (the “NFT-Specific Terms”). NFT-Specific Terms will be deemed to be incorporated into and to become a part of these Terms of Service, subject to all of the conditions and restrictions set forth in these Terms of Service. In the event of any conflict between any NFT-Specific Terms and these Terms of Service, the NFT-Specific Terms will control with respect to the applicable NFT only.
5. An NFT is distinct from the Associated Content to which it is linked. The fact that you may purchase, otherwise obtain or mint an NFT does not mean, in and of itself, that you own or have any rights under any intellectual property rights, rights of publicity or other rights in or relating to any Associated Content. Thus, your duplication, distribution, public display, public performance or use of, or other activity relating to, any Associated Content without a license or other permission from the holder(s) of those rights may infringe or otherwise violate those rights. Such a license may be granted to you with respect to any particular NFT in the applicable NFT-Specific Terms. If no such license is granted to you in the applicable NFT-Specific Terms, then, except to the extent otherwise provided in such NFT-Specific Terms, we will grant you a nonexclusive, royalty-free, non-transferrable (except as may otherwise be provided in the applicable NFT-Specific Terms) license under the copyright (if any) in the Associated Content, with no right to grant sublicenses, to (i) publicly display the Associated Content for personal, non-commercial purposes only and (ii) to copy the Associated Content solely as reasonably necessary to facilitate its authorized public display; provided that no such display may be associated with any content, materials or activities that disparages any person or group, including, but not limited to, on the basis of race, religion, national origin, gender, sexual orientation or sexual identity, or that is unlawful, defamatory, harassing, abusive, fraudulent, racist, hateful, vulgar, cruel, illegal or obscene, or that promotes any such activity, as determined by us or our NFT Partners in our or their sole discretion.
6. The foregoing license with respect to any particular item of Associated Artwork will continue for so long as you continue to own the applicable NFT (i.e., until such time as you burn the NFT or transfer it on the applicable blockchain); provided that your license to publicly display any Associated Artwork will automatically terminate, without notice, if you breach any provision of these Terms of Service (including any provisions of the applicable NFT-Specific Terms). You understand that continuing to display or perform the Associated Artwork after your license terminates may be copyright infringement, which may subject you to substantial liability, and would in any event violate these Terms of Service. Further, you understand that no right or license is granted under any trademark or service mark, and that any display or performance of any Associated Artwork in a manner that suggests or implies that we, any NFT Partner or any other third party is the source or origin of any goods or services or that we, any NFT Partner or any other third party endorses, sponsors or certifies any goods or services, may constitute trademark infringement, which may subject you to substantial liability, and would in any event violate these Terms of Service.
7. We make no representation or warranty regarding the intellectual property or other rights in any NFT or Associated Content and will have no liability or obligation to you whatsoever if your receipt, duplication, distribution, public display, public performance or other use of or activity relating to any such NFT or any Associated Content defames or infringes or otherwise violates any intellectual property, right of publicity or other right of any person. You may transfer your NFTs using any compatible third-party exchange (such as Opensea) or using any other third-party service. Once you transfer your NFT, you may no longer have access to any associated rights or benefits that may be described in the applicable NFT-Specific Terms or that we or any NFT Partner may make available in our or their sole discretion. Except as otherwise specified in the applicable NFT-Specific Terms, the extent to which any transferee of your NFT succeeds to any such rights or benefits will be determined by us or the applicable NFT Partner in our or their sole discretion. You acknowledge and agree that any sale or other transfer of any of your NFTs would occur outside and independently of us or our services, that we are in no way involved in any such sale or other transfer, and that neither we nor any Platform Provider nor any NFT Partner will have any liability or obligation to you in connection with any such sale or other transfer. You acknowledge that any license granted to display or perform any Associated Content for non-commercial purposes does not include the right to display or perform in connection with the marketing or promotion of your NFT for sale or other transfer, and that we grant you no right or license to use any of our intellectual property, including, but not limited to, our trademarks or other branding, in any way or for any purpose, including, but not limited to, in connection with any sale or other transfer of your NFT. You will indemnify and hold harmless us, our NFT Partners and our and their respective employees, contractors, agents, representatives, vendors, licensors and service providers from any claim, loss, liability, damage, cost or expense (including but not limited to reasonable attorneys’ fees) arising out of or in connection with any sale or other transfer of any of your NFTs.
8. You acknowledge and agree that (1) an NFT is not a medium of exchange and is not convertible virtual currency; (2) any NFT that you receive in connection with any NFT Drop will have no inherent monetary value whatsoever; (3) there is substantial uncertainty as to the regulatory classification of NFTs and other digital assets under applicable law; and (4) application of new or existing laws to NFTs by regulators or others present risks which could adversely affect any value or utility of your NFTs. You further acknowledge and agree that there are inherent risks associated with NFTs. These risks include, but are not limited to, the failure of hardware, software or internet connections, the risk of malicious software introduction and the risk of unauthorized access to your digital wallet via cyberattacks or otherwise. Further, transfers of NFTs are, as a rule, irreversible. Consequently, losses due to fraudulent or accidental transfers are generally not recoverable. Thus, it is possible that, through computer or human error, or through theft or fraud, your NFTs may be lost, corrupted, damaged or stolen or become inaccessible. We will not have any liability of any type or nature arising out of or relating to the loss, corruption or theft of or damage to your NFTs.
9. Prohibited Conduct
You agree to use the Site and Service only for purposes that are legal, proper and in accordance with these Terms of Service and any applicable law, rules or regulations. Without limiting the foregoing, you may not:
use the Site or any Service in any manner that could damage, disable, overburden, or impair the Site or any Service, or interfere with any other party's use and enjoyment of the Site or any Service;
attempt to gain unauthorized access to the Site, any Service, or the computer systems or networks connected to the Site or any Service through hacking, password mining or any other means;
create user accounts by automated means or under false or fraudulent pretenses;
transmit any viruses, worms, defects, Trojan horses, other malware or any items of a destructive nature;
defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others;
upload, post, email or transmit, or otherwise make available through the Service any inappropriate, defamatory, infringing, obscene, or unlawful content;
upload, post, email or transmit, or otherwise make available through the Service any content that infringes any patent, trademark, copyright, trade secret or other proprietary right of any party;
upload, post, email or transmit, or otherwise make available through the Service any materials that promote pyramid schemes, chain letters or disruptive commercial messages or advertisements, or anything else prohibited by law;
run Mail list, Listserv, or any form of auto-responder or "spam" on the Service;
use manual or automated software, devices, or other processes to "crawl" or "spider" any page of the Site, including to engage in the practices of "screen scraping," "database scraping" or any other activity with the purpose of obtaining content or other information;
interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service, including to utilize framing techniques to enclose any Content or other proprietary information, place pop-up windows over the Site's pages, or otherwise affect the display of the Site's pages;
download any file posted by another User that you know, or reasonably should know, cannot be legally distributed in such manner;
impersonate another person or entity, or falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of any materials;
remove any copyright, trademark or other proprietary rights notices contained in or on the Service;
use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Service or collect information about its Users for any unauthorized purpose;
submit content that falsely expresses or implies that such content is sponsored or endorsed by the Company, any of its affiliates or any third parties;
use the Service for any illegal or unauthorized purpose (including, without limitation, in violation of any United States federal and state laws or regulations, or equivalent laws or regulations in foreign jurisdictions;
promote or provide instructional information about illegal activities or promote physical harm or injury against any group or individual;
share or disclose with anyone any information obtained through the Service about any investment offerings; or
use the Service for any commercial purpose whatsoever other than for your personal use.
10. Linked Sites
You understand that the processing and transmission of communications relating to the use of the Site or the Services, including your data, may involve transmissions over various networks and changes to conform and adapt to technical requirements of connecting to various networks or devices. Therefore, you agree that Company will not be liable for the timeliness, deletion, mis-delivery or failure to store any data, information or content transmitted by you through the Site.
COMPANY PROVIDES THE SITE, THE SERVICES AND ALL PRODUCTS ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTY OR CONDITION, EXPRESS OR IMPLIED. TO THE FULL EXTENT PERMISSIBLE UNDER APPLICABLE LAW, COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE DURATION OF ANY IMPLIED WARRANTY THAT IS NOT EFFECTIVELY DISCLAIMED WILL BE LIMITED TO THE LONGER OF (I) THIRTY (30) DAYS FROM THE DATE THAT YOU FIRST ACCEPT THESE TERMS, FIRST USE THE APPLICABLE SERVICES OR FIRST OBTAIN THE APPLICABLE PRODUCT, AS THE CASE MAY BE, AND (II) THE SHORTEST PERIOD ALLOWED UNDER APPLICABLE LAW.
Company makes no representation or warranty that (i) the Site, the Services or any product that you obtain from us will meet your expectations or requirements, (ii) the Site or the Services will be uninterrupted, timely, accurate, secure, complete or error-free, (iii) any results or information that may be obtained from the use of the Site or the Services will be accurate, timely, complete or reliable or (iv) any errors in any software used on the Site or in connection with the Services will be corrected. Operation of the Site may be interfered with by numerous factors outside of Company's control including, but not limited to, telecommunications network disruptions. Company is not responsible and will have no liability for any failures of the Internet or any data or telecommunications equipment, system or network used in connection with the Site or the Services.
While we have endeavored to create a secure and reliable Site, the Company is not responsible for the security of information transmitted via the Internet, the accuracy of the information contained on the Site, or for the consequences of any reliance on such information. You must make your own determination as to these matters. The Company and its affiliates shall not be liable for damages as a result of any delay or other failure of performance due to causes beyond its reasonable control including, without limitation, acts of God, acts of any User, acts of military or civil authorities, fire or other casualty, strikes, lockouts, weather, pandemic, epidemic, war, riot, terrorism, telecommunications interruptions or computer viruses. The Site or any Services may be temporarily unavailable from time to time for maintenance or other reasons.
Some jurisdictions do not permit the disclaimer of implied warranties or limitations on how long an implied warranty lasts; therefore, some or all of the provisions of this section may not apply to you.
12. LIMITATION ON LIABILITY
IN NO EVENT SHALL COMPANY, ITS AFFILIATES OR ITS LICENSORS, TOGETHER WITH THEIR RESPECTIVE EMPLOYEES, AGENTS, DIRECTORS, OFFICERS AND SHAREHOLDERS, BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE) FOR (I) ANY LOST OR CORRUPTED DATA, LOST PROFITS OR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR (II) THE COST OF PROCURING SUBSTITUTE GOODS, SERVICES, PRODUCTS OR TECHNOLOGY. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS SHALL ONLY APPLY TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAW.
TO THE FULL EXTENT PERMISSIBLE UNDER APPLICABLE LAW, COMPANY'S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF (A) THE AGGREGATE OF THE FEES PAID BY YOU OR YOUR COMPANY FOR THE SERVICES AND PRODUCTS PURCHASED HEREUNDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THAT ANY CLAIM ARISES OR (B) $100.
You agree to defend and indemnify Company and its affiliates, together with their respective employees, agents, directors, officers and shareholders, and to hold them harmless, from and against all liabilities, losses, claims, damages, costs and expenses (including reasonable attorneys' fees and costs) arising out of (i) your use or misuse of the Site, the Services or any products you obtain from us, (ii) your breach or alleged breach of these Terms of Service, and (iii) your violation of any law, rule, regulation or rights of others in connection with your use of the Site, the Services or any such products.
You agree that Company, in its sole discretion and without prior notice or liability to you, may issue a warning, temporarily suspend, indefinitely suspend, or terminate your account, at our sole discretion, for any reason, whether with or without cause or warning, and without liability. In the event of termination of your account, the Company may delete and/or store, in its discretion, data associated with your use of the Site. In the event of termination, the Company has no further obligations to you.
We welcome questions, comments and other feedback about these Terms of Service, the Services and any products that you obtain from us, including ideas, proposals, suggestions or other materials (“Feedback”). However, you acknowledge and agree that we will treat all Feedback as non-confidential, and you hereby grant us a nonexclusive, worldwide, perpetual, irrevocable, royalty-free, fully paid-up license to create derivative works based upon any of your Feedback and to reproduce, publicly display, publicly perform, use, commercialize, disclose, import and distribute such Feedback and derivative works in any way and for any purpose, and to assign or otherwise transfer such license or otherwise authorize others to do any of the foregoing, without notice or obligation to you. You further acknowledge and agree that your provision of Feedback is gratuitous, unsolicited and without restrictions, and does not place us under any fiduciary or other obligation.
16. INFORMAL DISPUTE RESOLUTION
We want to address any concerns that you may have without the need for a formal dispute resolution process. Before commencing arbitration against us, you agree to try to resolve the Dispute (as defined below) informally by contacting us in writing at 720 N. Cahuenga Blvd., Los Angeles, CA 90038, Attn: Legal Department, or via e-mail at email@example.com, to notify us of the actual or potential Dispute. Similarly, we will undertake reasonable efforts to contact you to notify you of any actual or potential dispute to resolve any claim we may possess informally before taking any formal action. The party that provides the notice of the actual or potential Dispute (the “Notifying Party”) will include in that notice (a “Notice of Dispute”) your name (to the extent known), the Notifying Party’s contact information for any communications relating to such Dispute (including for the Notifying Party’s legal counsel if it is represented by counsel in connection with such Dispute), and sufficient details regarding such Dispute to enable the other party (the “Notified Party”) to understand the basis of and evaluate the concerns raised. If the Notified Party responds within ten (10) business days after receiving the Notice of Dispute that it is ready and willing to engage in good faith discussions in an effort to resolve the Dispute informally, then each party shall promptly participate in such discussions in good faith.
Please read this provision very carefully.
This agreement to arbitrate in this Section 17 applies to you only if your Country of Residence is the United States. “Country of Residence” for purposes of this agreement to arbitrate means the country in which you hold citizenship or legal permanent residence; provided that if you have more than one country of citizenship or legal permanent residence, it shall be the country in which you hold citizenship or legal permanent residence with which you most closely are associated by permanent or most frequent residence.
If notwithstanding the Notifying Party’s compliance with all of its obligations under Section 16 relating to the informal resolution of Disputes, a Dispute is not resolved within 30 days after the Notice of Dispute is sent (or if the Notified Party fails to respond to the Notice of Dispute within ten (10) business days), the Notifying Party may initiate an arbitration proceeding as described below. If either party purports to initiate arbitration without first providing a Notice of Dispute and otherwise complying with all of its obligations under the preceding paragraph, then, notwithstanding any other provision of these Terms of Service, the arbitrator(s) will promptly dismiss the claim with prejudice and will award the other party all of its costs and expenses (including reasonable attorneys’ fees) incurred in connection with such Dispute.
Unless you opt out of this agreement to arbitrate as provided below, you and we each agree to resolve any Disputes that are not resolved informally as described above through final and binding arbitration as discussed herein, subject to the exceptions set forth below.
If you do not wish to be subject to this agreement to arbitrate, you may opt out of this arbitration provision by sending a written notice to us at 720 N. Cahuenga Blvd., Los Angeles, CA 90038 or via e-mail at firstname.lastname@example.org, within thirty (30) days of the first time you accept these Terms of Service (or any prior version of these Terms of Service) or, if earlier, your first use the Service. You must date the notice and include your first and last name, address, and a clear statement that you do not wish to resolve disputes with us through arbitration. If no notice is submitted in the manner described above by the 30-day deadline, you will have irrevocably waived your right to litigate any Dispute except with regard to the exceptions set forth below. By opting out of the agreement to arbitrate, you will not be precluded from using the Site or any Services, but you and we will not be permitted to invoke the mutual agreement to arbitrate to resolve Disputes under the terms otherwise provided herein.
You and we agree that the American Arbitration Association (“AAA”) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes in effect at the time arbitration is sought (“AAA Rules”). Those rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a general Demand for Arbitration.) Arbitration will proceed on an individual basis and will be handled by a sole arbitrator. The single arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within fourteen (14) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules. The arbitrator(s) shall be authorized to award any remedies, including injunctive relief, that would be available in an individual lawsuit, other than remedies that you effectively waived pursuant to these Terms. Notwithstanding any language to the contrary in this paragraph, if a party seeks injunctive relief that would significantly impact other of our customers or users, as reasonably determined by either party, the parties agree that such arbitration will proceed on an individual basis but will be handled by a panel of three (3) arbitrators. In that event, each party shall select one arbitrator, and the two party-selected arbitrators shall select the third, who shall serve as chair of the arbitral panel. That chairperson shall be a retired judge or an attorney licensed to practice law with experience arbitrating or mediating disputes. In the event of disagreement as to whether the threshold for a three-arbitrator panel has been met, the sole arbitrator appointed in accordance with this section shall make that determination. If the arbitrator determines a three-person panel is appropriate, the arbitrator may – if selected by either party or as the chair by the two party-selected arbitrators – participate in the arbitral panel. Except as may be and to the extent otherwise required by law, the arbitration proceeding and any award shall be confidential.
You and we further agree that the arbitration will be held in the English language in Los Angeles, California, or, if you so elect, all proceedings can be conducted via videoconference, telephonically or via other remote electronic means. If we elect arbitration, we shall pay all of the AAA filing costs and administrative fees (other than hearing fees). If you elect arbitration, filing costs and administrative fees (other than hearing fees) shall be paid in accordance with the AAA Rules, or in accordance with countervailing law if contrary to the AAA Rules. However, if the value of the relief sought is $10,000 or less, at your request, we will pay all filing, administration, and arbitrator fees associated with the arbitration, unless the arbitrator(s) finds that either the substance of your claim or the relief sought was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). In such circumstances, fees will be determined in accordance with the AAA Rules. Each party shall bear the expense of its own attorneys' fees, except as otherwise provided herein or required by law. This agreement to arbitrate shall be construed under and be subject to the Federal Arbitration Act (U.S. Code Article 9), notwithstanding any other choice of law set out in these Terms.
You and we agree that the arbitration of any Dispute shall proceed on an individual basis, and neither you nor we may bring a claim as a part of a class, group, collective, coordinated, consolidated or mass arbitration (each, a “Collective Arbitration”). Without limiting the generality of the foregoing, a claim to resolve any Dispute against us will be deemed a Collective Arbitration if (i) two (2) or more similar claims for arbitration are filed concurrently; and (ii) counsel for the claimants are the same, share fees or coordinate across the arbitrations. “Concurrently” for purposes of this provision means that both arbitrations are pending (filed but not yet resolved) at the same time.
To the maximum extent permitted by applicable law, neither you nor we shall be entitled to consolidate, join or coordinate disputes by or against other individuals or entities with any Disputes, or to arbitrate or litigate any Dispute in a representative capacity, including as a representative member of a class or in a private attorney general capacity. In connection with any Dispute, any and all such rights are hereby expressly and unconditionally waived. Without limiting the foregoing, any challenge to the validity of this paragraph or otherwise relating to the prohibition of Collective Arbitration shall be determined exclusively by the arbitrator.
Notwithstanding the agreement between you and us to arbitrate Disputes, you and we each may assert claims, if they qualify, through the small claims process in any courts having jurisdiction. Further, except as otherwise required by applicable law, in the event that the agreement to arbitrate is found not to apply to you or your Dispute, you and we agree that any judicial proceeding may only be brought as provided in Section 20.
This agreement to arbitrate shall survive the termination or expiration of these Terms of Service. With the exception of the provisions of this agreement to arbitrate that prohibit Collective Arbitration, if a court decides that any part of this agreement to arbitrate is invalid or unenforceable, then the remaining portions of this agreement to arbitrate shall nevertheless remain valid and in force. If a court finds the prohibition of Collective Arbitration to be invalid or unenforceable, then the entirety of this agreement to arbitrate shall be deemed void (but no provisions of these Terms not specifically related to arbitration shall be void), and any remaining Dispute must be litigated in court pursuant to the preceding paragraph.
18. IMPORTANT NOTE TO NEW JERSEY CONSUMERS
If you are a consumer residing in New Jersey, the following provisions of these Terms do not apply to you (and do not limit any rights that you may have) to the extent that they are unenforceable under New Jersey law: (a) the disclaimer of liability for any indirect, incidental, consequential, special, exemplary or punitive damages of any kind (for example, to the extent unenforceable under the New Jersey Punitive Damages Act, New Jersey Products Liability Act, New Jersey Uniform Commercial Code and New Jersey Consumer Fraud Act); (b) the limitations of liability for lost profits or loss or misuse of any data (for example, to the extent unenforceable under the New Jersey Identity Theft Protection Act and New Jersey Consumer Fraud Act); (c) application of the limitations of liability to the recovery of damages that arise under contract and tort, including negligence, strict liability or any other theory (for example, to the extent such damages are recoverable by a consumer under New Jersey law, including the New Jersey Products Liability Act); (d) the requirement that you indemnify us and the other indemnified parties (for example, to the extent the scope of such indemnity is prohibited under New Jersey law); and (e) the governing law provision (for example, to the extent that your rights as a consumer residing in New Jersey are required to be governed by New Jersey law).
19. NOTICE TO CALIFORNIA RESIDENTS
If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service. For clarity, you remain obligated to arbitrate your Dispute in accordance with these Terms if your complaint is not resolved.
This Agreement constitutes the entire agreement between you and Company with respect to your access and use of the Site and the Services or your purchase of any products and supersedes all prior and contemporaneous agreements between you and Company. Except as otherwise provided in Section 17 with respect to Collective Arbitration, if any of the provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, then that provision will be construed in a manner consistent with applicable laws to reflect, as nearly as possible, the original intentions of the parties, and the remaining provisions shall remain in full force and effect. The failure of Company to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. The provisions of Sections 3-8, and 10-21 shall survive any termination of these Terms of Service.
This Site is targeted at and intended for visitors residing in the United States. Given the global nature of the Internet, however, the Site may be accessed by visitors residing outside of the United States. We make no representations or warranties that the Site is appropriate or available for use in countries outside of the United States. Visitors who choose to access the Site from outside of the United States do so at their own initiative and are not responsible for compliance with any and all local laws and regulations that may apply to such access.
The laws applicable to the interpretation and enforcement of this Agreement shall be the laws of the State of California, and applicable federal law (including the Federal Arbitration Act (U.S. Code Title 9)), without regard to any conflict of law provisions. Subject to Section 17, you and we each agrees to submit to the personal and exclusive jurisdiction of the state and federal courts located within the county of Los Angeles, California; provided that, notwithstanding the foregoing, either party may bring any action to enforce its intellectual property rights or confirm an arbitral award in any court or administrative agency having jurisdiction.
The Company may assign these Terms of Service at any time to a subsidiary or parent company or to a successor to its business as part of a merger or sale of substantially all of its assets. You may not assign or transfer these Terms of Service.
For any questions or comments, or to report violations of this agreement, including receipt of spam from a User, contact the Company at: email@example.com with “Terms of Service” in the subject line of your email.