Mobile Application Terms of Service
Last Updated: JULY 15, 2021
01. A few important notices—arbitration, refunds, class actions and damages
We want to be super upfront about three important things: First, by using our services you are agreeing to arbitrate almost all disputes rather than have them heard in a court of law or by a jury. Second, if you are in the US you are agreeing not to participate in a class action lawsuit against us. Third, unless otherwise stated herein and to the extent allowed by law, all purchases are non-refundable.
IMPORTANT NOTICE REGARDING ARBITRATION FOR U.S. CUSTOMERS: WHEN YOU AGREE TO THESES TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND US THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 20 “DISPUTE RESOLUTION AND GOVERNING LAW” BELOW FOR DETAILS REGARDING ARBITRATION.
02. What is this document?
This is the agreement between you and us for our services you download or access, whether that’s a game, something that supports the game, or something else. You can only use these things once you agree to the terms.
You are now reading our Terms of Service Agreement (“Terms”) which is a legal agreement between you and Exploding Kittens Inc (“EK”, “we”, “us”, “our”, as appropriate) regarding the Services you use from us.“Services”means collectively, and sometimes individually, the following: (a) each of our Games, and (b) any software or other services we provide with or in support of the Game, whether or not they are installed or used on a computer, console, or a mobile device.“Game”means our game that you download and access that is subject to the Terms, regardless of where you download and/or access it, and any documentation, software, updates, Virtual Goods and Content (each defined below) included in it.
We’ve tried to be straightforward in our Terms and if you have any questions feel free to send us a note firstname.lastname@example.org(our“Support Email Address”). You’ll notice that we added some text in italics throughout the Terms to make it easier to read; however this text is provided for guidance only, and does not form part of the Terms.
03. Defined Terms
You’ll notice some capitalized terms in the Terms. They’re called “defined terms,” and we use them so we don’t have to repeat the same language again and again, and to make sure that the use of these terms is consistent throughout the Terms. We’ve included the defined terms throughout because we want it to be easy for you to read them in context.
04. Additional Terms
05. Eligibility and Registration
The Services we offer have certain age restrictions. Others may require an outside account. When you give us information, you need to make sure it stays up to date. Also, don’t share your account with others without our permission.
a. Age. Our Services are not intended for children under the age of 13 (and in certain jurisdictions under the age of 16 or other age as required by law). If you are at least the relevant minimum age but are not legally considered an adult in your jurisdiction, you must ask one of your parents (or legal guardians) to read the Terms and accept it on your behalf, and to create a Game Account. Parents and guardians are responsible for the acts of their minor children when using a Game Account they created, or any of our Services, and you understand and agree that you will be responsible for all uses of the Game Account and our Services by your minor child whether or not you authorized such uses. You may not create or use a Game Account, or use or access any of our Services on behalf of a legal entity or for a commercial purpose.
b. No Account Sharing.You may not sell, resell, rent, lease, share or provide access to your Game Account to anyone else. We reserve all available legal rights and remedies to prevent unauthorized use of our Services, including, but not limited to, technological barriers, IP mapping, and, in serious cases, directly contacting your Internet Service Provider (ISP) regarding such unauthorized use.
c. No False Accounts.You may not create a Game Account for anyone else or create a Game Account in a name other than your own.
06. License and Use of the Services
As long as you agree to the Terms (and as long as the Terms are not terminated—see Section 19), we grant you permission to access and use our Services. If you break the rules or can’t agree, we can’t let you play. Please ensure your system and devices meet the minimum requirements for the Game. Also, if you suffer from an epileptic condition, please talk to a doctor before playing the Game.
a. License Grant. So long as you comply with the Terms we grant you the following license: a personal, non-exclusive, non-transferable, non-sublicensable limited right and license to (i) access and use the Services, including any Content, for your personal entertainment purposes leveraging only the functionality of the Services. We and our licensors reserve all rights not granted to you in the Terms.“Content”means all artwork, titles, themes, objects, characters, names, dialogue, catch phrases, stories, animation, concepts, sounds, audio-visual effects, methods of operation, musical compositions, Virtual Goods (defined in Section 9) and any other content within the Services. Content also includes anything generated, created, or that is otherwise developed within the Services by any user (including you) as a result of interaction with the functionality of the Services. We may, in our sole discretion, remove, edit or disable any Content for any reason.
b. Service Limits Based on Where You Live. We may restrict, modify, or limit your access to and use of certain Content, Virtual Goods, an entire Game, or any or all of the Services depending on the territory in which you are located.
c. Minimum Requirements.The Game may have minimum requirements for the devices and systems on which you wish to play the Game. We may publish these minimum requirements on the applicable website and/or otherwise notify you in writing. For an optimal experience, please ensure that your devices and systems will meet these requirements before playing the Game.
d. Seizure Warning. The Game may contain flashing lights, images, and other luminous stimulations which may induce epileptic seizures in certain individuals. If you or anyone in your household has an epileptic condition, please consult your doctor before playing the Game. If you experience dizziness, altered vision, eye or muscle twitches, loss of awareness, disorientation, any involuntary movement, or convulsions while playing, please immediately discontinue playing the Game and consult your doctor.
07. Player Conduct
We strive to make all of our players and users feel safe and welcome when using our Services and playing our games and we want everyone to *play* by the same rules. So, if you use our Services as intended, without being abusive, disruptive or disrespectful, or being unfair, you are probably in the clear, but please read all of the Terms carefully to be sure.
You agree not to do any of the following with respect to the Services, as determined by us, as applicable:
a. use them commercially, for a promotional purpose, or for the benefit of any third party or in any manner not permitted by the Terms;
b. use, or provide, any unauthorized third party programs that intercept, emulate, or redirect any communication between the Services and us or that collect information about the Game;
c. access or use them on more than one device at a time;
d. copy, reproduce, distribute, display, mirror, frame or use them (or any of our other materials, intellectual property, or proprietary information) in a way that is not expressly authorized in the Terms;
e. copy, reproduce, distribute, display, mirror, frame or use them (or any of our other materials, intellectual property, or proprietary information) in a way that is not expressly authorized in the Terms;
f. sell, rent, lease, license, distribute, or otherwise transfer the Services, Game or any Content, including, without limitation, Virtual Goods or Game Currency, including participating in or operating so called “secondary markets” for Virtual Goods, Game Currency or Content;
g. attempt to reverse engineer (except as otherwise permitted by applicable local law), derive source code from, modify, adapt, translate, datamine, decompile, or disassemble or make derivative works based upon the Services or any Content;
h. remove, disable, circumvent, or modify any technological measure we implement to protect them or any of their associated intellectual property;
i. create, develop, distribute, or use any unauthorized software programs to gain advantage in any online or other game modes;
j. attempt to probe, scan or test its vulnerability or breach any security or authentication measures;
k. access, tamper with, or use non-public areas of the Services;
l. interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services or any of its users;
m. collect or store any information that could be used to identify an individual, either itself or combined with other information, from the Services from other users of the Services without their express permission;
n. behave in a manner which is detrimental to the enjoyment of the Services by other users as intended by us, in our sole judgment, including, without limitation, harassment, use of abusive or offensive language, game abandonment, game sabotage, spamming, behaving in a disruptive manner, social engineering, or scamming, or contrary to public morals or public policy;
o. impersonate or misrepresent your affiliation with any person or entity, or deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature;
p. use IP proxying or other methods to disguise the place of your residence, whether to circumvent geographical restrictions on the Services or for any other purpose;
q. play on another person’s Game Account to “boost” that Game Account’s status, level or rank;
r. use the Services in any way that would affect us adversely or reflect negatively on us or the Services or discourage any person from using all or any portion of the features of the Services;
s. encourage, promote, take part in or enable anyone else to do any of the foregoing; or
t. violate any applicable law or regulation.
If you encounter another user who is violating any of these rules, please report this activity to us using the “Report a Jerk” function in the relevant Game or part of the Service, if available, or contact us at email@example.com.
08. Ownership of the Services
Our Service including our Content and Games is owned by us or our licensors. Our Services may let you upload, post and store photos and other content that you own. You retain your ownership of this content, to which we take a license.
Although we are not obligated to monitor access to or use of the Services or to review or edit any Content, we have the right to do so for the purpose of operating and publishing the Services, to ensure compliance with the Terms, to protect the health or safety of anyone that we believe may be threatened, to protect our legal rights and remedies, to report a crime or offensive behavior, or to comply with applicable law. We may (but don’t have to) remove or disable access to any Content, at any time and without notice. We may (but don’t have to) investigate violations of the Terms or conduct that affects the Services.
09. Virtual Goods and Game Currency
We may offer you some cool features in our games for which you must pay. We need special permission to charge your payment method. These features are owned by us.
a. Purchasing or Obtaining Virtual Goods and Game Currency.Subject to applicable foreign exchange control regulations in your jurisdiction, we may offer certain upgrades and options within our Games that you can buy with real world currency, including, but not limited to, in-game currency where permitted under applicable law (“Game Currency”), card decks, and customizations for your in-Game characters, and other such digital add-on items that may improve your Game experience in some way (“Virtual Goods”). Except as otherwise communicated to you within the functionality of the Game, Game Currency and Virtual Goods are not transferable from one Game to another. You may also be able to obtain certain Virtual Goods and Game Currency without purchase, such as an in-Game award. When you purchase Game Currency, Virtual Goods, or a Game itself (each, a“Transaction”), your purchase will be made through the functionality available through the App Store or other platforms we make available to you. Prior to making a Transaction, you should make sure you fully understand the agreement that covers your Transaction, whether that agreement is an App Store Agreement or another payment platform agreement (like a third party payment processor’s terms). There may be limits to the quantity and number of times you can purchase Virtual Goods, Game Currency, or other aspects of your Transaction. For example, there may be a maximum amount of Game Currency you are able to hold (in-Game) or purchase at a given time, or a maximum number of Transactions you may make per day; these additional restrictions may be communicated to you via the functionality of the Services. We may, from time to time, modify, amend, or supplement our fees, billing methods and terms applicable to Game Currency, Virtual Goods or to any purchases, and post those changes in the Terms, in separate terms and conditions or in other terms or agreements posted on the applicable website or as part of the Game or otherwise provided to you by us. Such modifications, amendments, supplements or terms shall be effective immediately upon posting and shall be incorporated by reference into the Terms. If any change is unacceptable to you, you may terminate the use of your Game Account at any time.
b. Your License to Virtual Goods and Game Currency.Virtual Goods and Game Currency are digital items and your use of them is governed by the Terms and the App Store Agreement(s). VIRTUAL GOODS AND GAME CURRENCY HAVE NO MONETARY VALUE AND CANNOT BE REDEEMED FOR CASH. VIRTUAL GOODS AND GAME CURRENCY ARE NON-TRANSFERABLE AND NON-TRADABLE, IN WHOLE OR PART, AND ARE NOT PROVIDED FOR INVESTMENT PURPOSES. Provided you comply with the Terms and the App Store Agreement(s), we grant you the following license: a personal, non-exclusive, non-transferable, non-sublicensable limited right and license to use any Virtual Goods or Game Currency you gain access to, whether purchased or otherwise obtained, solely in connection with your use of the Game in question and within the Game (unless we otherwise communicate to you that you may use them in multiple Games) and for no other purpose. Unless, expressly permitted by us in a specific Game, you may not trade any such Virtual Good or Game Currency with others. We may cancel, revoke, or otherwise prevent the use of Virtual Good or Game Currency if we suspect any unauthorized or fraudulent activity, and/or to correct any erroneous application of any Virtual Goods or Game Currency to your Account.
c. Changes to Game Currency and Virtual Goods.Except as otherwise prohibited by applicable law, we, in our sole discretion, may modify, substitute, replace, suspend, cancel or eliminate any Game Currency or Virtual Goods, including your ability to access or use Game Currency or Virtual Goods, without notice or liability to you. YOU AGREE THAT YOU WON’T ASSERT OR BRING ANY CLAIM AGAINST US, OUR AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR LICENSORS (THE“EXPLODING KITTENS PARTIES”) RELATING TO (A) A CLAIM THAT YOU HAVE A PROPRIETARY INTEREST IN ANY GAME CURRENCY OR VIRTUAL GOODS; OR (B) A CLAIM FOR AN ALLEGED MONETARY VALUE OF GAME CURRENCY OR VIRTUAL GOODS LOST UPON (I) DELETION OR SUSPENSION OF YOUR ACCOUNT, (II) ADJUSTMENTS TO THE GAME THAT RESULT IN THE VALUE OF VIRTUAL GOODS OR GAME CURRENCY CHANGING, OR (III) MODIFICATION, TERMINATION OR EXPIRATION OF THE TERMS.
Subject to applicable law, (i) all Games, Virtual Goods and Game Currency remain our property, have no monetary value and are not redeemable, refundable, or eligible for any other alternate remedy for any “real world” money or anything of monetary value, unless they are defective, unavailable, or do not perform in accordance with the specifications we provide; (ii) we may revoke your license to such Games, Virtual Goods and/or Game Currency at any time consistent with the Terms without notice or liability to you; and (iii) by purchasing and using any Games, Virtual Goods and/or Game Currency, you hereby waive any statutory right you may have to withdraw from your agreement to purchase the applicable Game, Virtual and/or Game Currency and you agree that you will therefore not be eligible to receive a refund (or any alternative remedy) in relation to such Game, Virtual Good and/or Game Currency. Where applicable law does not permit you to waive your right to so withdraw, you hereby agree that such withdrawal right expires immediately upon purchase and delivery of your Game, Virtual Good and/or Game Currency, as permitted by applicable law.
11. Accessing a Game from an App Store
App Stores require us to pass on certain terms to you.
Where a Game is made available to you via an App Store (whether on your mobile device or console) you acknowledge and agree that:
The Terms are between you and us, not the App Store, and we (not the App Store), are solely responsible for the Game.
The App Store has no obligation to provide any Game maintenance or support.
If the Game cannot meet its warranties (if any), you can contact the App Store and they will refund you the purchase price of the Game (if applicable) and, to the maximum extent permitted by applicable law, the App Store will have no other warranty obligation whatsoever with respect to the Game. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be our sole responsibility.
The App Store is not responsible for addressing any claims you have or any claims of any third party relating to the Game or your possession and use of the Game, including, without limitation: (i) product liability claims; (ii) any claim that the Game fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation
In the event of any third party claim that the Game or your possession and use of the Game infringes that third party’s intellectual property rights, we will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
The App Store, and its subsidiaries, are third party beneficiaries of the Terms and upon your acceptance of the Terms, the App Store will have the right to enforce the Terms against you as a third-party beneficiary thereof.
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 list of prohibited or restricted parties.
You must also comply with all applicable third party terms of service or similar agreement when using the Game, including those associated with your App Store, device, or console.
We’d love to hear your feedback, good or bad. It helps us improve! But if you give us feedback, we need to be free to use it how we want and without paying you.
We welcome your feedback, comments and suggestions for improvements to the Services (“Feedback”). You can submit Feedback by emailing us at firstname.lastname@example.org via the functionality of the Services (if available). If you provide us with any Feedback, you hereby grant us the following license: a non-exclusive, transferable, worldwide, perpetual, irrevocable, fully-paid, royalty-free license, with the right to sublicense, under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon, distribute copies of, publicly perform, publicly display and otherwise exploit the Feedback for any purpose and in any country. This license does not lapse or expire even if we do not exercise our rights under this license within a period of one year. If you have rights in the Feedback that cannot be licensed to us under applicable law (such as moral and other personal rights), you hereby waive and agree not to assert those rights. You understand and agree that you are freely giving your Feedback, that we don’t have to use it, and that you will not be compensated in any way for your Feedback. You represent and warrant that you have rights in any Feedback that you provide to us sufficient to grant us and other affected parties the rights described above, including, without limitation, intellectual property rights or rights of publicity or privacy.
In posting such Feedback, you warrant that your feedback is in compliance with the Terms and you will not use obscene or offensive language or submit any material that is, or may potentially be, defamatory, abusive or hateful, an invasion of anyone's privacy, harmful to other users, or breach the applicable laws.
13. Third Party Websites and Resources
Outside links are for your convenience, but we can’t guarantee them.
The Services may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from your use of any third-party websites or resources.
14. Data Charges and Mobile Devices
This is a reminder that you’re responsible for any data-related charges that you may incur for using our Services.
You are responsible for all data-related charges that you may incur for using our Services, including, without limitation, mobile, text-messaging, and data charges. You should understand or ask your service provider what charges you may incur before using the Services.
15. Service and Terms Modifications
When we update the Terms, you need to agree to the updated version to keep using our Services. We also need the freedom to update any part of the Services whenever we see fit, so we are letting you know we can do so at any time.
We may (but don’t have to) update the Terms at any time whenever we think there is a need. Subject to applicable law, if we do so, you will be prompted to agree to the updated Terms upon your next access to the Services or when the updated Terms are otherwise communicated to you. You must agree to these updates to continue using the Services.
We may provide patches, updates, or upgrades to the Services that must be installed in order for you to continue to use the Services. We may update the Services remotely without notifying you, and you hereby consent to us applying such patches, updates, and upgrades. If your device can prevent automatic updates, you may not be able to access the Services until you manually update the Services yourself on your device. We may modify, suspend, discontinue, substitute, replace, or limit your access to any aspect of the Services at any time. Subject to applicable law, you acknowledge that any character data, game progress, game customization or other data related to your use of any particular Game and other elements unique to the Services may cease to be available to you at any time without notice from us, including, without limitation, after a patch, update, or upgrade is applied by us. You agree that we do not have any maintenance or support obligations with respect to the Services.
Subject to applicable law, we may change the price of the Services, Games, Virtual Goods, Game Currency or Content, at any time, for any reason, without notice or liability to you.
16. Warranty Disclaimers
We don’t make any guarantees about the Services.
TO THE MAXIMUM EXTENT PERMITTED BY LAW THE SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, THE EXPLODING KITTENS PARTIES EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. The Exploding Kittens Parties make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. The Exploding Kittens Parties make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of the Services.
17. Limitation of Liability
This section limits what you can recover from us in a dispute. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW THE EXPLODING KITTENS PARTIES WILL NOT BE LIABLE IN ANY WAY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS OR THE SERVICES, OR THE DELAY OR INABILITY TO USE OR LACK OF FUNCTIONALITY OF THE SERVICES, EVEN IN THE EVENT OF ONE OF A COMPANY PARTY’S FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNITY, PRODUCT LIABILITY, BREACH OF CONTRACT, BREACH OF WARRANTY, OR OTHERWISE AND EVEN IF THAT COMPANY PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF THE EXPLODING KITTENS PARTIES ARISING OUT OF OR IN CONNECTION WITH THE TERMS OR THE SERVICES WILL NOT EXCEED: (A) THE TOTAL AMOUNTS YOU HAVE PAID (IF ANY) OR ARE PAYABLE BY YOU TO US FOR THE PARTICULAR GAME OR SERVICE IN QUESTION DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY; OR (B) IF (A) DOES NOT APPLY, FIFTY DOLLARS ($50 USD). THESE LIMITATIONS AND EXCLUSIONS REGARDING DAMAGES APPLY EVEN IF ANY REMEDY FAILS TO PROVIDE ADEQUATE COMPENSATION AND ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND US.
Notwithstanding the foregoing, some countries, states, provinces or other jurisdictions do not allow the exclusion of certain warranties or the limitation of liability as stated above, so the above terms may not apply to you. Instead, in such jurisdictions, the foregoing exclusions and limitations will apply to the maximum extent permitted by the laws of such jurisdictions. Also, you may have additional legal rights in your jurisdiction, and nothing in the Terms will prejudice such rights that you may have as a consumer of the Services.
If someone sues us based on your breach of the Terms or your access/use of the Services, you agree to defend us or pay for our defense in that lawsuit.
You agree to indemnify (in other words, compensate for all and any losses incurred), pay the defense costs of, and hold the Exploding Kittens Parties and their employees, officers, directors, agents, contractors, and other representatives harmless from all claims, demands, actions, losses, liabilities, costs and expenses (including, without limitation, attorneys’ fees, costs, and expert witnesses’ fees) that arise out of or in any way are connected with: (a) your access to or use of the Services; or (b) any claim that, if true, would constitute a breach by you of the Terms. You agree to reimburse us for any payments made or loss suffered by us, whether in a court judgment or settlement, based on any matter covered by this Section 18.
We reserve the right to terminate the Terms as we see fit in accordance with the applicable law. Reasons we may terminate the Terms include, but are not limited to: if we wind down our game offerings in your region, if you violate the Terms, or if the App Store terminates your App Store Account.
To the fullest extent consistent with applicable law, we may suspend, modify or terminate your access to and use of the Services, including any Game, Virtual Goods, and Content, with no liability or notice to you in the event that (a) we cease providing the Game to similarly situated users generally; (b) you breach any terms of the Terms (including the App Store Agreement(s) and our other policies specified in the Terms); (c) the owner of the applicable App Store terminates your App Store Account; or (d) we otherwise deem it necessary to suspend or modify your access to and use of the Services or terminate the Terms in our sole discretion. You may also terminate the Terms by deleting and uninstalling the Game on any and all of your devices or by deleting your App Store Account. A suspension or modification of your access to and use of the Services will result in your inability to access and use some or all features of the Services, as determined by us in our sole discretion. Upon any termination of the Terms, the rights granted to you will automatically terminate, you may no longer exercise any of those rights or the Terms. Subject to applicable law, we may, in our sole discretion, provide continued access to and use of the Services prior to such termination.
Except to the extent required by law, all payments and fees are non-refundable under all circumstances, regardless of whether or not the Terms has been terminated.
The following sections will survive termination of the Terms: 12, 17, 18, 20 through 23, and this sentence of Section 19.
20. Dispute Resolution and Governing Law
You are agreeing to the laws of California. Any court cases will be handled in the Southern District of California.
a. Governing Law and Forum Choice.These Terms and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of California, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 20, the exclusive jurisdiction for all Disputes (defined below) that you and Exploding Kittens are not required to arbitrate will be the state and federal courts located in the Southern District of California, and you and Exploding Kittens each waive any objection to jurisdiction and venue in such courts.
US residents—if there is a dispute between us, we agree we’ll resolve it through arbitration (in your home area) instead of through the courts. You are also agreeing not to participate in a class-action lawsuit against us. (This section is long so we’re providing mini-explanations for each part.)
b. Mandatory Arbitration of Disputes.We each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively,“Disputes”) will be resolvedsolely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding.You and Exploding Kittens agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and Exploding Kittens are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.
Disputes that can be resolved in small claims court or relate to the infringement of our intellectual property do not have to be arbitrated.
c. Exceptions.As limited exceptions to Section 20(b) above: (i) we both may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights.
The American Arbitration Association’s Consumer Arbitration Rules will apply. You may be able to choose the types of evidence you and Exploding Kittens can submit depending on the size of your claim. Arbitration will be near where you live unless we agree otherwise.
d. Conducting Arbitration and Arbitration Rules.The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the“AAA Rules”) then in effect, except as modified by the Terms. The AAA Rules are available atwww.adr.orgor by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration atwww.adr.org. Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
Unless your claim is frivolous, we’ll pay the administration and arbitrator fees. We won’t seek attorney fees from you, but if you win you can seek them from us to the extent allowed by law.
e. Arbitration Costs.Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules, and we won’t seek to recover the administration and arbitrator fees we are responsible for paying, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
f. Injunctive and Declaratory Relief.Except as provided in Section 20(c) above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To the extent that you or we prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
You agree not to participate in a class action and only bring claims as an individual. Your dispute can’t be combined with other people’s claims.
g. Class Action Waiver.YOU AND EK AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.Further, if the parties’ dispute is resolved through arbitration, the arbitrator may not consolidate another person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution shall be null and void.
If a court decides a part of this section is unenforceable, the rest still applies.
h. Severability.With the exception of any of the provisions in Section 20(g) of these Terms, if an arbitrator or court of competent jurisdiction decides that any part of the Terms is invalid or unenforceable, the other parts of the Terms will still apply.
21. No Assignment
You cannot transfer or assign the Terms to anyone else.
You may not assign or transfer the Terms, by operation of law or otherwise, without our prior written consent. Any attempt by you to assign or transfer the Terms, without such consent, will be null and void. Notwithstanding the title of this Section, we may freely assign or transfer the Terms without restriction. Subject to the foregoing, the Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
These Terms are our whole agreement (no outside promises). The official version is English. If parts of the Terms don’t apply, the rest remains as much as possible. If we don’t enforce part of the Terms, it doesn’t mean we won’t in the future or we won’t enforce our other rights. Also no one other than you or us can enforce the Terms.
a. Entire Agreement.The Terms and any other document or information referred to in the Terms constitutes the entire and exclusive understanding between you and us regarding the Services and supersede any and all prior oral or written understandings or agreements between you and us regarding the Services.
b. Language.The original language of the Terms is in English; any translations are provided for reference purposes only. You waive any right you may have under the law of your country to have the Terms written or construed in any other language.
c. Severability.The Terms describe certain legal rights. You may have other rights under the laws of your jurisdiction. The Terms do not change your rights under the laws of your jurisdiction if the laws of your jurisdiction do not permit it to do so. As noted above, limitations and exclusions of warranties and remedies in the Terms may not apply to you because your jurisdiction may not allow them in your particular circumstance. In the event that certain provisions of the Terms are held by a court or tribunal of competent jurisdiction to be unenforceable, those provisions will be enforced only to the furthest extent possible under applicable law and subject to Section 20(g), the remaining terms of the Terms will remain in full force and effect.
d. No WaiverYour and our actions or inactions will not create any other rights under the Terms except as what is explicitly written within the Terms. Our failure to enforce any right or provision of the Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by one of our duly authorized representatives. Except as expressly set forth in the Terms, the exercise by either party of any of its remedies under the Terms will be without prejudice to its other remedies under the Terms or otherwise.
e. Third Party RightsExcept as described in Section 11, a person who is not a party to the Terms will have no right to enforce any of its terms.
23. Contact Information
If you have any questions about the Terms, please contact us at email@example.com
24. Our Policies Concerning Children