MPORTANT NOTICE: DISPUTES ABOUT THESE TERMS ARE SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN THE “MANDATORY ARBITRATION AND CLASS ACTION WAIVER” PROVISIONS BELOW IN SECTION 14.
Depending on how you use the Services, other terms might also apply to you if you use specific services, such as the Ad Platform Terms of Service, Advertising Policy, Publisher Platform Terms of Service, Creator Program Terms of Service, Creator Content Requirements, Creator Monetization Policy or Monetization Terms. Additional terms may also apply for promotions, sweepstakes, contests, giveaways, or similar programs. If these Terms are inconsistent with any such policies or additional terms, the terms of the applicable policy or the additional terms shall apply. The dispute resolution provisions in Section 14 below shall apply to any dispute arising under these Terms or any applicable additional terms, even if there is a conflict between these Terms and the applicable additional terms.
We may, from time to time, modify these Terms. Please check this page periodically for updates. Any changes will be posted on the Services. If you do not agree to, or cannot comply with, the modified Terms, you must stop using the Services. The updated Terms will take effect after their posting and will apply on a going-forward basis, unless otherwise provided in a notice to you or as required by applicable law, and except as provided in the Mandatory Arbitration and Class Action Waiver section (Section 14) of these Terms, which may only be changed as stated in that section. Your continued use of the Services after any such update constitutes your binding acceptance of such changes.
To use the Services you must be, and represent and warrant that you are, of legal age (18 years of age or older or otherwise of legal age in your jurisdiction, or, if you have parental consent, 13 years of age) and competent to agree to these Terms.
If you are in the U.S. and under 13, you may not use our Services under any circumstances or for any reason. Our Services are not targeted at anyone who is under 13 years of age. If you know of anyone under the age of 13 using our Services, you may report their use to firstname.lastname@example.org.
If BricksBall has previously prohibited you from accessing or using the Services, you are not permitted to access or use the Services absent the express, written consent of BricksBall.
Account Registration and Use
- Account Registration and Confidentiality.
You may be required to create an account to use the Services. If so, during the registration process, you must select a username and password and provide us with additional information, such as your email and physical address. You agree to provide us with accurate, complete, and current registration information about yourself. It is your responsibility to ensure that your password remains confidential and secure. By registering, you agree that you are fully responsible for all activities that occur under your username and password. We may assume that any communications we receive under your account have been made by you.
- Unauthorized Account Use.
You are responsible for notifying us at email@example.com if you become aware of any unauthorized use of or access to your account. You understand and agree that we may require you to provide information that may be used to confirm your identity and help ensure the security of your account. BricksBall will not be liable for any loss, damages, liability, expenses or attorneys’ fees that you may incur as a result of someone else using your password or account, either with or without your knowledge and/or authorization, and regardless of whether you have or have not advised us of such unauthorized use. You will be liable for losses, damages, liability, expenses and attorneys’ fees incurred by BricksBall or a third party due to someone else using your account.
Our Proprietary Rights
For purposes of these Terms, the term “Content” includes, without limitation, any information, data, text, photographs and other images, videos, audio clips, written posts, articles, comments, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Services. For the purposes of these Terms, “Content” also includes all User Content (as defined below).
The Services and all Content within our Services which are provided by BricksBall, our partners, or our users are protected by United States copyright laws, international treaty provisions, trademarks, service marks and other intellectual property laws. The Services are also protected as a collective work or compilation under U.S. copyright and other law and treaties. You agree to abide by all applicable copyright and other laws, as well as any additional copyright notices or restrictions contained in the Services or in any Content accessed through the Services (“Protected Content”). The trademarks, logos, trade names, trade dress, and service marks, whether registered or unregistered (collectively the “Trademarks”) displayed on the Services are Trademarks of BricksBall and its third-party partners. Nothing contained on the Services shall be construed as granting by implication or otherwise, any license or right to use any Protected Content or Trademarks displayed on the Services without the written permission of BricksBall or such third party that may own the Protected Content or Trademarks. Any unauthorized commercial use of the Content or Trademarks will violate the intellectual property rights of BricksBall and/or third parties associated with BricksBall and will be subject to BricksBall’s and/or those third party’s full legal rights and remedies.
You agree to comply with all reasonable written requests made by BricksBall or its suppliers and licensors to protect their and others’ contractual, statutory, and common law rights in the Services and Content. You agree to notify BricksBall immediately upon becoming aware of any claim that the Services or Content infringe upon any copyright, trademark, or other contractual, statutory, or common law rights. All present and future rights in and to trade secrets, patents, copyrights, trademarks, service marks, know-how, and other proprietary rights of any type under the laws of any governmental authority, domestic or foreign, including without limitation rights in and to all applications and registrations, in each case relating to the Services shall, as between you and BricksBall, at all times be and remain the sole and exclusive property of BricksBall.
- User Content.
All Content added, created, uploaded, submitted, distributed, or posted (“Posted”) to the Services by users (collectively “User Content”) is the responsibility solely of the person who originated such User Content. For clarity, subject to the license you provide to BricksBall as set forth below, you retain your rights to any User Content you Post on or through the Services. These Terms do not grant you any right, title, or interest in BricksBall’s Content, our Services, or other users’ Content on the Services.
- Our License to Your User Content
When you Post User Content on or through the Services, you grant BricksBall a world-wide, perpetual, irrevocable, royalty-free, non-exclusive, and sub-licenseable license to use, copy, distribute, reproduce, modify, edit, adapt, publicly perform, publicly display, translate, create derivative works from, sell, lease, transmit, disassemble, and publish such User Content, in whole or in part, in any format or medium now known or developed in the future, including without limitation for promoting and redistributing part or all of the Services (and derivative works thereof) in any media formats and through any media channels now known or developed in the future. To the extent any User Content you submit includes biographical information, including your name, likeness, voice, or photograph, you acknowledge and agree that this license shall apply to the same.
With respect to your User Content, you are agreeing to appoint BricksBall as your irrevocable attorney-in-fact, with the right to execute and deliver any documents, in your name and on your behalf, to ensure that BricksBall can own and protect the rights in any work created from your User Content.
- User Content Representations.
You acknowledge and agree that all User Content that you Post is your sole responsibility. You further agree that you have all required rights to Post such User Content without violation of any third-party rights. You understand that BricksBall does not control, and is not responsible for, User Content, and that by using the Services, you may be exposed to User Content from other users that is offensive, indecent, inaccurate, misleading, or otherwise objectionable. Please also note that User Content may contain typographical errors, other inadvertent errors or inaccuracies. You agree that you will indemnify, defend, and hold harmless BricksBall for all claims resulting from User Content you Post. We reserve the right, at our own expense, to assume the exclusive defense and control of such disputes, and in any event, you will cooperate with us in asserting any available defenses.
- User Content Review.
You acknowledge and agree that BricksBall and its designees may or may not, at BricksBall’s discretion, pre-screen User Content before its appearance on the Services, but that BricksBall has no obligation to do so. You further acknowledge and agree that BricksBall reserves the right (but does not assume the obligation) in its sole discretion to reject, move, edit or remove any User Content. Without limiting the foregoing, BricksBall and its designees shall have the right to remove any User Content that violates these Terms or is otherwise objectionable in BricksBall’s sole discretion. This is particularly true for User Content that infringes on the intellectual property rights of others. We reserve the right to terminate the account of any user that repeatedly infringes on the intellectual property rights of others. You acknowledge and agree that BricksBall does not endorse, verify, adopt, ratify, or sanction, and is not liable for, any User Content, and you agree that you must evaluate and bear all risks associated with your use of User Content or your reliance on the accuracy, completeness, or usefulness of User Content.
To the extent you submit any comments, suggestions, ideas, proposals, plans or feedback related to the Services or our business (“Feedback”), you acknowledge and agree that you are submitting that Feedback at your own risk and that BricksBall has no obligation (including of confidentiality or privacy) with respect to your Feedback. Any Feedback will be considered non-confidential and non-proprietary to you. By submitting the Feedback, you grant to BricksBall a non-exclusive, royalty-free, fully paid, unlimited, worldwide, sublicensable (through multiple tiers of sublicenses), perpetual, and irrevocable license, in any and all manner and media, whether now known or hereinafter invented or devised, to reproduce, license, distribute, modify, adapt, publicly perform, publicly display, create derivative works of (for example, translations, adaptations, or other changes), and otherwise use and exploit in any manner (including commercially), any and all Feedback, without compensation to you. You hereby waive any and all moral rights or “droit moral” that you may have in Feedback, and you represent and warrant that no third party has any moral, “droit moral” or other rights in the Feedback.
License and Prohibited Conduct
- Your License.
Subject to your compliance with these Terms, we grant you a limited, non-exclusive, non-sublicensable, non-transferable, and revocable right to access and use the Services and Content only for your own internal, personal, or non-commercial use, and only in a manner that complies with all legal requirements that apply to you or your use of the Services. BricksBall may revoke this license at any time, in its sole discretion. We may also create limits on the use or storage of User Content.
- Prohibited Uses.
Use of the Services for any illegal purpose, or any other purpose not expressly permitted in these Terms, is strictly prohibited. Without limitation, you will not:
Infringe on, remove, or alter any copyright, trademark, patent, trade secret, right of publicity or other right of any other person or entity or violates any law or contractual duty (see our DMCA Copyright Policy in Section 7);
Post, utilize, or otherwise make available any other party’s intellectual property unless you have the right to do so, or remove or alter any copyright, trademark or other proprietary notice contained on the Services;
Collect, Post, or store personal information of others without their consent.
Post User Content or engage in any action that violates our Community Policy, which is incorporated by reference herein;
Use the Services commercially, for benchmarking, or to compile information for a product or service;
Copy, download (other than through page caching necessary for personal use, or as otherwise expressly permitted by these Terms), modify, distribute, post, transmit, display, perform, reproduce, broadcast, duplicate, publish, republish, upload, license, create derivative works from, or offer for sale any Content or other information contained on or obtained from or through the Services, by any means except as permitted in these Terms or with the prior written consent of BricksBall;
Scrape, access, monitor, index, frame, link, or copy any Content or information on the Services by accessing the Services in an automated way, using any robot, spider, scraper, web crawler, or any other method of access other than manually accessing the publicly available portions of the Services through a browser or accessing the Services through any API approved by BricksBall;
Violate the restrictions in any robot exclusion headers of the Services, if any, or bypass or circumvent other measures employed to prevent or limit access to the Services;
Attempt to probe, scan or test the vulnerability of any BricksBall system or network or breach any security or authentication measures;
Post material that advocates illegal activity or discusses illegal activities with the intent to commit them;
Post or otherwise make available any material that contains any software, device, instructions, computer code, files, programs and/or other content or feature that is designed to interrupt, destroy, harm, or limit the functionality of any computer software or hardware or telecommunications equipment (including without limitation any time bomb, virus, malware, software lock, worm, self-destruction, drop-device, malicious logic, Trojan horse, trap door, “disabling,” “lock out,” “metering” device or any malicious code);
Post or do anything that could disable, overburden, or impair the proper working of the Services;
Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services or Content;
Post material that impedes or otherwise prohibits communication or disrupts user discussion;
Post any trade secrets or other confidential information, or post any material that you do not have a right to make available under any law or under contractual or fiduciary relationships, including but not limited to inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements;
Falsely state or otherwise misrepresent your affiliation with a person or entity, or impersonate any person or entity in a manner that does not constitute parody;
Use another person’s account without authorization;
Solicit personal or sensitive information from other users including without limitation address, credit card or financial account information, or passwords;
Send spam or other advertisements or solicitations, surveys, contents, pyramid schemes, promote commercial entities, or otherwise engage in commercial activity on or through the Services;
Frame, inline link, or similarly display the Services or any portion of the Services;
Interfere with any other party’s use and enjoyment of the Services; or
Violate any applicable law or regulation.
to comply with legal process;
to respond to claims that any Content violates the rights of third parties;
to respond to your requests for customer service; and/or
o protect the rights, property, or personal safety of BricksBall, its agents and affiliates, its users, or the public. This includes exchanging information with other companies and organizations for fraud protection, and spam/malware prevention, and similar purposes.
BricksBall respects the intellectual property rights of others and asks that users of our Services do the same. If you believe any Content accessible on or from the Services infringe your copyright, you may request removal of that Content (or access to it) from the Services by submitting written notification to our copyright agent designated below. The written notification must include (pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512):
An electronic or physical signature of the owner or of the person authorized to act on behalf of the owner of the copyright interest.
Identification of the copyrighted work claimed to have been infringed.
A description of the Content on the Services that you claim is infringing, and information reasonably sufficient to permit us to locate the material (for example, the URL of the webpage).
Your name, address, telephone number, and, if available, email address.
A statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law.
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.
Our designated Copyright Agent is:
Particle Media, Inc.
Attn.: Legal Department
800 W. El Camino Real, Suite 300
Mountain View, CA 94040
If you fail to comply with all the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective.
Please be aware that if you knowingly materially misrepresent that Content or activity on the Services is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
Counter Notification Procedures
If you believe that Content you Posted on the Services was removed or access to it was disabled by mistake or misidentification, you may file a counter notification with us (a “Counter Notice”) by submitting written notification to our copyright agent designated above. Pursuant to the DMCA, the Counter Notice must include substantially the following:
Your physical or electronic signature.
An identification of the Content that has been removed or to which access has been disabled and the location at which the Content appeared before it was removed or access disabled.
Your name, postal address, telephone number, and, if available, email address.
A statement by you, made under penalty of perjury, that you have a good faith belief that the Content identified above was removed or disabled as a result of a mistake or misidentification of the Content to be removed or disabled.
A statement that you will consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or if you reside outside the United States for any judicial district in which our Services may be found) and that you will accept service from the person (or an agent of that person) who provided us with the complaint at issue.
Our designated agent to receive Counter Notices is:
Particle Media, Inc.
Attn.: Legal Department
800 W. El Camino Real, Suite 300
Mountain View, CA 94040
The DMCA allows us to restore the removed Content if the party filing the original DMCA Notice does not file a court action against you within ten business days of receiving the copy of your Counter Notice.
Please be aware that if you knowingly materially misrepresent that Content or activity on the Services was removed or disabled by mistake or misidentification, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
It is our policy in appropriate circumstances to disable and/or terminate the accounts of users who are repeat infringers of the DMCA.
BricksBall reserves the right to sell, license and/or display any advertising, attribution, links, promotional and/or distribution rights in connection with the Services, and BricksBall and its licensors or affiliates will be entitled to retain any and all revenue generated from any sales or licenses of such advertising, attribution, links, or promotional or distribution rights. Nothing in the Agreement obligates or may be deemed to obligate BricksBall to sell, license or offer to sell or license any advertising, promotion or distribution rights.
Third-Party Links and Services; Third-Party Content
The Services may include
Content provided by third parties (“Third-Party Content”); and
links to third-party websites or resources. If you access third-party resources, you do so at your own risk. BricksBall is not responsible for the availability of such external sites or resources and does not endorse and is not responsible or liable for
any content or other materials on or available from such sites or resources,
any errors or omissions in these websites or resources, or
any information handling practices or other business practices of the operators of such sites or resources. You further acknowledge and agree that BricksBall shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any linked sites or resources. Your interactions with such third parties will be governed by the third parties’ own terms of service and privacy policies, and any other similar terms. You acknowledge and agree that BricksBall does not endorse, verify, adopt, ratify, or sanction, and is not liable for, any Third-Party Content, and you agree that you must evaluate and bear all risks associated with your use of Third-Party Content or your reliance on the accuracy, completeness, or usefulness of Third-Party Content.
If you believe that any of the third-party websites, services, or resources violates applicable law or may be inappropriate, please notify us at firstname.lastname@example.org. We may review the linked content and can, at our sole discretion, remove the link from the Services. The inclusion of any such link is not indicate an endorsement or partnership between BricksBall and the third-party.
However, in some cases, we partner with other persons, entities, or organizations (the “Partners”) to co-promote their services within the Services. In these cases, you are transacting directly with the Partners, not us. On those relevant pages or locations within the Services, the Partners’ brand is clearly visible, and their terms of service are posted or otherwise made available. When you transact with the Partners, you are bound by their terms of service in addition to remaining bound to these Terms.
Warranties and Disclaimers
THE SERVICES, THE CONTENT, AND THE PRODUCTS AVAILABLE THROUGH THE SERVICES, WHETHER PROVIDED BY BricksBall, ITS LICENSORS, ITS VENDORS OR ITS USERS, AND OTHER INFORMATION ON OR ACCESSIBLE FROM THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY, REPRESENTATION, CONDITION, OR GUARANTEE OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES, REPRESENTATIONS, CONDITIONS OR GUARANTEES OF QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ALL OF WHICH ARE DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. SPECIFICALLY, BUT WITHOUT LIMITATION, BricksBall DOES NOT WARRANT THAT: (i) THE CONTENT IS FREE OF ERRORS; (ii) THE FUNCTIONS OR FEATURES (INCLUDING BUT NOT LIMITED TO MECHANISMS FOR THE DOWNLOADING AND UPLOADING OF CONTENT) WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS; (iii) DEFECTS WILL BE CORRECTED, OR (iv) THE SERVICES OR THE SERVER(S) THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
IN NO EVENT SHALL BricksBall OR ITS AFFILIATES, LICENSORS, VENDORS, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR OTHER REPRESENTATIVES BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF USE, COSTS OF OBTAINING SUBSTITUTE GOODS OR SERVICES), SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, OR ANY BUGS, VIRUSES, TROJAN HORSES, OR SIMILAR ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, ANY MATERIALS, INFORMATION, OR RECOMMENDATIONS APPEARING ON THE SERVICES, OR ANY LINK PROVIDED ON THE SERVICES, WHETHER OR NOT BricksBall HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER BASED UPON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, VIOLATION OF STATUTE, OR OTHERWISE. THIS EXCLUSION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. IN ANY EVENT, OUR AGGREGATE LIABILITY WILL NOT EXCEED THE HIGHER OF THE AMOUNT PAID BY YOU TO BricksBall FOR THE PRODUCT OR SERVICE TO WHICH THE CLAIM RELATES, OR $100.
Exclusions and Limitations
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages such as above in Section 10. Accordingly, some of the above limitations may not apply to you. If you are a New Jersey resident, or a resident of another state or jurisdiction that permits the exclusion of these warranties and liabilities, then the limitations in Section 10 specifically do apply to you.
Modification and Termination
- Modification of Services.
BricksBall reserves the right at any time to modify or discontinue, temporarily or permanently, the Services (or any part thereof), with or without notice. You agree that BricksBall shall not be liable to you or any third party for any modification, suspension or discontinuance of the Services.
These Terms are effective unless and until terminated by you or us. We may, in our sole and absolute discretion, deny you access to all or part of the Services at any time for any or no reason at all, with or without notice to you. If we terminate your right to access the Services, these Terms will terminate and all rights you have to access the Services will immediately terminate; however, certain provisions of these Terms will still apply post termination, including without limitation, the Mandatory Arbitration and Class Action Waiver provisions below in Section 14. Termination of your account may also include, at BricksBall’s sole discretion, the deletion of your account and/or User Content.
Mandatory Arbitration and Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT CONTAINS ADDITIONAL PROVISIONS APPLICABLE ONLY TO OUR UNITED STATES AND CANADA USERS. IF YOU ARE A BricksBall USER LOCATED IN THE UNITED STATES OR CANADA, THIS SECTION APPLIES TO YOU.
You and BricksBall agree that these Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. This Section 14 is intended to be interpreted broadly and governs any and all disputes between us including but not limited to claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before these Terms or any prior agreement (including, but not limited to, claims related to product availability, purchases, and advertising); and claims that may arise after the termination of these Terms. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below.These Terms are effective unless and until terminated by you or us. We may, in our sole and absolute discretion, deny you access to all or part of the Services at any time for any or no reason at all, with or without notice to you. If we terminate your right to access the Services, these Terms will terminate and all rights you have to access the Services will immediately terminate; however, certain provisions of these Terms will still apply post termination, including without limitation, the Mandatory Arbitration and Class Action Waiver provisions below in Section 14. Termination of your account may also include, at BricksBall’s sole discretion, the deletion of your account and/or User Content.
- Initial Dispute Resolution.
Most disputes can be resolved without resort to arbitration. If you have any dispute with us, you agree that before taking any formal action, you will contact us at email@example.com, and provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an account). Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with BricksBall, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration. Failure to engage in this process could result in the award of fees against you in arbitration.
- Binding Arbitration.
If the parties do not reach an agreed-upon solution within a period of thirty (30) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims, (except as provided in section 14.7 below) subject to the terms set forth below. Specifically, all claims arising out of or relating to these Terms (including the Terms’ formation, performance, and breach), the parties’ relationship with each other, and/or your use of the Services or any services provided by BricksBall shall be finally settled by binding arbitration administered by JAMS in accordance with the JAMS Streamlined Arbitration Procedure Rules for claims that do not exceed $250,000 and the JAMS Comprehensive Arbitration Rules and Procedures for claims exceeding $250,000 in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class or representative actions.
- Arbitrator’s Powers.
Except as explicitly set forth in this Section 14, the arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms including but not limited to any claim that all or any part of these Terms is void or voidable, whether a claim is subject to arbitration, and any dispute regarding the payment of JAMS administrative or arbitrator fees (including the timing of such payments and remedies for nonpayment). The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The parties agree that the arbitrator may allow the filing of dispositive motions if they are likely to efficiently resolve or narrow issues in dispute. The arbitrator’s award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration.
The rules governing the arbitration may be accessed at http://www.jamsadr.org or by calling JAMS at (800) 352-5267. If you commence arbitration in accordance with these Terms, you will be required to pay $250 to initiate the arbitration. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, the arbitrator may require BricksBall to pay the additional cost. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise. If the arbitrator finds the arbitration to be non-frivolous, BricksBall will pay all of the actual filing and arbitrator fees for the arbitration, provided your claim does not exceed $75,000. For claims above $75,000, fees and costs will be determined in accordance with applicable JAMS rules. The arbitration rules permit you to recover attorney’s fees in certain cases.
Any arbitration demand or counterclaim asserted by either party must contain sufficient information to provide fair notice to the other party of the asserting party’s identity, the claims being asserted, and the factual allegations on which they are based. The arbitrator and/or JAMS may require amendment of any demand or counterclaim that does not satisfy these requirements. The arbitrator has the right to impose sanctions in accordance with JAMS Rule 24 for any claims the arbitrator determines to be frivolous or improper (under the standard set forth in Federal Rule of Civil Procedure 11).
The parties agree that JAMS has discretion to modify the amount or timing of any administrative or arbitration fees due under JAMS’s Rules where it deems appropriate, provided that such modification does not increase the costs to you, and you waive any objection to such fee modification. The parties also agree that a good-faith challenge by either party to the fees imposed by JAMS does not constitute a default, waiver, or breach of this Section 14 while such challenge remains pending before JAMS, the arbitrator, and/or a court of competent jurisdiction.
The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
If you are a resident of the United States, arbitration will take place at any reasonable location within the United States convenient for you, unless you and we both agree to another location or telephonic arbitration. You and BricksBall agree to submit to the personal jurisdiction of any federal or state court in Santa Clara County, California in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
- Class Action Waiver.
The parties further agree that the arbitration shall be conducted in the party’s respective individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND BricksBall AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If there is a final judicial determination that applicable law precludes enforcement of this paragraph’s limitations as to a particular remedy, then that remedy (and only that remedy) must be severed from the arbitration and may be sought in court. The parties agree, however, that any adjudication of remedies not subject to arbitration shall be stayed pending the outcome of any arbitrable claims and remedies.
Litigation of Intellectual Property and Small Claims Court Claims.Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court with jurisdiction or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction. Either party may also seek a declaratory judgment or other equitable relief in a court of competent jurisdiction regarding whether a party’s claims are time-barred or may be brought in small claims court in your state and county of residence. Seeking such relief shall not waive a party’s right to arbitration under these Terms.
- Right to Opt Out within 30 Days.
You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt out to firstname.lastname@example.org with the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” The notice must be sent within thirty (30) days of (a) October 15, 2021; or (b) your first date that you used the Services that contained any versions of the Terms that included this version of the mandatory arbitration and class action waiver, whichever is later. Otherwise you shall be bound to arbitrate disputes in accordance with the terms of these paragraphs. If you opt out of these arbitration provisions, BricksBall also will not be bound by them.
- Changes to This Section.
BricksBall will provide thirty (30) days’ notice of any changes affecting the substance to this section by posting on the Services. Amendments will become effective thirty (30) days after they are posted on the Services or sent to you by email. If you continue to use the Services after the 30th day, you agree that any unfiled claims of which BricksBall does not have actual notice are subject to the revised clause.
This Mandatory Arbitration and Class Action Waiver section shall survive any termination of your use of the Services.
Governing Law and Venue
These Terms shall be construed in accordance with and governed by the laws of the State of California notwithstanding its conflicts of law principles. Except for claims subject to mandatory arbitration, any dispute arising out of these Terms or the use of the Services shall be initiated and conducted in the state or federal courts of Santa Clara County, California and you and BricksBall consent to the exclusive jurisdiction of such courts.
Some countries have laws that require agreements to be governed by the local laws of the consumer’s country. This paragraph doesn’t override those laws.
- Force Majeure.
Under no circumstances shall BricksBall or its licensors or suppliers be held liable for any delay or failure in performance resulting directly or indirectly from an event beyond its reasonable control.
- No Waiver.
No waiver of any provision of these Terms will be binding unless in writing, no waiver of any provisions of these Terms will be deemed a further or continuing waiver of such provision or any other provision, and the failure of BricksBall to exercise or enforce any right or remedy in these Terms does not waive that right or remedy. If an arbitrator or a court of competent jurisdiction finds any provision of these Terms to be invalid, the parties agree that the court should endeavor to give effect, to the maximum extent permitted by law, to the parties’ intentions as reflected in the provision, and the other provisions of these Terms will remain in full force and effect.
- Third-Party Beneficiaries/Relationship between the Parties.
You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms. No agency or employment between you and BricksBall is created as a result of the Terms or your use of the Services.
- Statute of Limitations.
Except for residents of New Jersey, you agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Services and/or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
These Terms (and all terms and conditions incorporated herein) constitute the entire agreement between you and BricksBall and govern your use of the Services, and supersede any prior agreements between you and BricksBall on the subject matter. These Terms, and any rights or licenses granted hereunder, may not be assigned or delegated by you. These Terms, and any rights or licenses granted hereunder, may be assigned or delegated by BricksBall without restriction. These Terms bind and inure to the benefit of each party and the party’s successors and permitted assigns. These Terms may not be modified by an oral statement by a representative of BricksBall. You agree that any agreements made by and between you and us in electronic form are as legally binding as if made in physical written form. If you are using the Services for or on behalf of the U.S. government, your license rights do not exceed those granted to non-government consumers. The section titles in these Terms are for convenience only and have no legal or contractual effect. Any provision of these Terms that by its nature is reasonably intended to survive beyond termination of these Terms shall survive.
We may deliver notice to you by e-mail, posting a notice on the Services or any other method we choose and such notice will be effective on dispatch. If you give notice to us, it will be effective when received and you must use the following physical or email address: (1) Particle Media, Inc., Attn.: Legal Department, 800 W. El Camino Real, Suite 300, Mountain View, CA 94040; or (2) Email: email@example.com.
- Application License.
Subject to your compliance with these Terms, BricksBall grants you a limited non-exclusive, non-transferable license to download and install a copy of BricksBall mobile app on a device that you exclusively control and to run such copy of the app solely for your own personal use. BricksBall reserves all rights in and to the app not expressly granted to you under these Terms. You will not run any version of the app on a jailbroken device. If you have downloaded our app, you agree to promptly download and install any new version that we make available through the iTunes App Store or Google Play store, as applicable. Some new versions may contain updated Terms. Some new versions may contain security fixes and service improvements, whether or not we disclose that they do; accordingly, failure to promptly update your version of the App may in some cases expose you to increased security risks or malfunctions in the Services.
- Import and Export Jurisdiction.
Content and software from the Services may be subject to U.S. export jurisdiction and the import jurisdiction of other countries. In connection with your use of the Services, you are solely responsible for complying with all applicable export, re-export, and import control laws and regulations of all applicable jurisdictions, including, but not limited to, those of the U.S. Department of Commerce, Export Administration Regulations, 15 CFR Parts 730-774, the International Traffic in Arms Regulations, country-specific economic sanctions programs implemented by the Office of Foreign Assets Control and export and import control laws and regulations of any other countries. You may not, directly or indirectly, use, distribute, transfer or transmit Content or software from the Services, whether by way of a direct product or of such materials or products, software, or other technical information into which Content or software from the Services has been incorporated, except in compliance with all applicable export and import laws and regulations of all relevant jurisdictions.
If you have any questions about these Terms, please contact us by email at firstname.lastname@example.org.
You acknowledge and agree that
these Terms are binding between you and BricksBall only, and Apple is not a party hereto, and
You acknowledge that Apple is not responsible for addressing any claims you have or any claims of any third party relating to the app or your possession and use of the app, including, but not limited to
product warranty or liability claims;
any claim that the app fails to conform to any applicable legal or regulatory requirement;
claims arising under consumer protection or similar legislation; or
claims that the app infringes a third party’s intellectual property rights.
In the event of any failure of the iOS version of the app to conform to any applicable warranty that has not been effectively disclaimed by these Terms, you may notify Apple, and Apple will refund the purchase price for the app (if any) to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the app, and, as between Apple and BricksBall, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be BricksBall’s responsibility, but only to the extent provided by these Terms. Please read the entire Terms, as other sections of these Terms limit BricksBall’s liability in this regard.