Website Terms of Service
Last Updated: January 17, 2023
01. A few important notices—arbitration,class actions, damages and returns/refunds
01. A few important notices—arbitration, class actions, damages and returns/refunds
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, the damages you may be able to recover from us in a dispute are subject to certain caps.
IMPORTANT NOTICE REGARDING ARBITRATION FOR U.S. CUSTOMERS: WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND US THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT AND YOU ARE WAIVING YOUR RIGHT TO PURSUE A CLASS ACTION LAWSUIT. PLEASE REVIEW CAREFULLY SECTION 19 “DISPUTE RESOLUTION AND GOVERNING LAW” BELOW FOR DETAILS REGARDING ARBITRATION. PLEASE ALSO REVIEW SECTION 16 BELOW FOR INFORMATION ABOUT CAPS ON OUR POTENTIAL LIABILITY IN A DISPUTE.
For information about returns/refunds, please see our policies set forth below in Section 6.
02. What is this document?
This is the agreement between you and us for our services that we make available via our websites. You can only access the services 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: any website(s) (“Sites”), software or other services we make available via our Sites including, but not limited to, Mobile Messaging (defined below).
We’ve tried to be straightforward in our Terms and if you have any questions feel free to send us a note at 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. Eligibility and Registration
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.
b. Keep Your Information Current. It’s important that you provide us with accurate, complete and up-to-date information if you choose to create an account via the Site and you agree to update such information to keep it that way. If you don’t, we may suspend or terminate your account. You agree that you will not disclose your account password to anyone and will notify us immediately of any unauthorized use of your account. You are responsible for all activities that occur under your account, whether or not you know about them. If you believe that your account is no longer secure, then you must immediately notify us at our Support Email Address.
c. No Account Sharing. You may not sell, resell, rent, lease, share or provide access to your 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.
d. No False Accounts.You may not create an account for anyone else or create an account in a name other than your own.
05. 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 18), we grant you permission to access and use our Services. If you can’t agree, we can’t let you use our Services.
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, 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. Content You Create Outside the Services."User Content”means any Content that you create or obtain outside the Services that you or another user makes available within the Services. To be clear, if Content is created within the Services, it is not User Content; only Content created or obtained from outside the Services that a user then makes available within the Services is User Content. By making any User Content available through the Services you hereby grant to us the following license: a non-exclusive, transferable, worldwide, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works based upon, distribute, publicly display, and publicly perform your User Content in connection with operating and providing the Services and Content to you and to other users of the Services. Except to the extent prohibited by law, you waive the benefit of any “moral rights” or “droit moral” or similar rights in any country to any User Content. We may, in our sole discretion, remove, edit or disable any User Content at any time and for any reason, including if we determine that the User Content violates the Terms. We do not assume any responsibility or liability for User Content, for removing it, or not removing it or other Content. We do not pre-screen or review any User Content and do not approve or endorse any User Content that may be available on the Services or our other services.
c. Service Limits Based on Where You Live.We may restrict, modify, or limit your access to and use of certain Content or any or all of the Services depending on the territory in which you are located.
06. Retail Purchase.
a. Online Sales & Payment. We may sell products and services via the Site, which will be posted on the Site with the applicable price. We may change these prices at any time and reserve the right to do so. We will charge the payment method (e.g., credit card) for the applicable products purchased, including, but not limited to applicable shipping fees (which will be disclosed to you prior to your purchase) and sales, use or other taxes (each, a “Transaction”). All amounts are payable and charged at the time your order is placed. You expressly authorize us (or our third-party payment processor) to charge you for such Transaction. We may ask you to supply additional information relevant to your Transaction, including your credit card number, the expiration date of your credit card and your email and postal addresses for billing and notification (such information, “Payment Information”). You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. When you initiate a Transaction, you authorize us to provide your Payment Information to third parties so we can complete your Transaction and to charge your payment method for the type of Transaction you have selected. You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Payment Information). By initiating a Transaction, you agree to the pricing, payment and billing policies applicable to such fees and charges, as posted or otherwise communicated to you. All amounts and applicable taxes, if any, are payable in United States dollars. Title and risk of loss pass to you upon our transfer of the products to a common carrier.
b. Delivery. For retail purchases of physical products (e.g., a packaged card game), these will be delivered to the address specified in your order and in accordance with the delivery option you selected at the point of checkout. We will also notify you of the places where we can or cannot ship physical products. While we will take reasonable steps to ensure that your order is dispatched and delivered on time, please be aware that dispatch and delivery times are estimates only, and that time of dispatch or delivery is not of the essence of any Transaction. We may defer the date of dispatch or delivery or cancel any Transaction, or remove from your order any products ordered by you (without liability) if we are prevented or delayed in the carrying on of our business, due to events or circumstances beyond our reasonable control, including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, extreme weather conditions, flood, epidemic, pandemic, lock-outs, strikes or other labor disputes, fuel shortages, restraints or delays affecting carriers, or inability or delay in obtaining supplies of adequate or suitable materials. We reserve the right to ship your order in installments should some components of your order be unavailable for delivery, or have delayed availability, when you place your order, or if your order is too big to deliver in one shipment. We will use all reasonable endeavors to ensure that the Site displays the correct availability of products for ordering. To the extent that we are reasonably able to do so, we will identify any limitations on availability (that we are aware of at that time), such as temporarily out of stock products, in the relevant product listing page. We will notify you of any delays on shipment that will exceed thirty (30) days from your payment and we will either provide substitute products or offer a full refund, as indicated by law.
c. Cancellations and Returns. We hope that you will be happy with all products purchased from the Site, however, if you are not, you have the right to change your mind and cancel the Transaction at any time before shipment and within 30 days after shipment (beginning on the day after you receive the products (Cooling-Off Period)). Should you wish to do this, please contact us at email@example.com to process a cancellation or return, and, provided that you follow the return methods we provide to you, you will receive a full refund of the price paid for the Products together with the costs of return, which you will receive at the time indicated by us at the time of your cancellation. If you are outside the Cooling-Off Period, we may still allow you to cancel the Transaction, at our discretion. Please contact us at firstname.lastname@example.org in order to confirm what options are available to you. In all return situations, we may require you to send us proof of your original purchase together with proof of returning the products to us before we are able to process your refund. You understand that any delay in providing us with evidence we have requested may delay the processing of your refund. We will usually refund any money received from you by using the same method originally used by you to pay for your purchase. Nothing in these conditions is intended to limit any rights you might have as a consumer under applicable local law.
d. California Consumer Notice. Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: The products and services are provided by Exploding Kittens Inc. If you have a question or complaint regarding the products or services, please contact Exploding Kittens Inc.’s Customer Service at email@example.com; Attention: Customer Service. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.
07. User Conduct
We strive to make all of our users feel safe and welcome when using our Services 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;
c. use, or provide ancillary offerings to anyone, that are not offered within the Services by us, such as trainers and automation programs that interact with the Services in any way;
d. access or use them on more than one device at a time;
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 or any 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. attempt to probe, scan or test its vulnerability or breach any security or authentication measures;
j. access, tamper with, or use non-public areas of the Services;
k. upload, publish, submit or transmit any User Content, create a user name or account name, or otherwise engage in any behavior that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, contractual rights, moral rights or other intellectual property rights, or rights of publicity or privacy, or any other rights of third parties; (ii) violates, or encourages any conduct that would violate any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is grossly harmful, racially or ethnically objectionable, disparaging, blasphemous, libelous, defamatory, obscene, pornographic, paedophilic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent, bullying, or threatening or promotes violence, money laundering or gambling, terrorism, or actions that are threatening or disrespectful to any person or entity; (vii) harms minors in any way; or (viii) promotes illegal or harmful activities or substances;
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. 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;
r. encourage, promote, take part in or enable anyone else to do any of the foregoing;
s. or violate any applicable law or regulation.
If you encounter another user who is violating any of these rules, please report this activity to in the relevant part of the Services, if available, or contact us at firstname.lastname@example.org..
08. Ownership of the Services
Our Service including our Content 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.
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 email@example.com 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.
10. DMCA/Copyright Policy
We respect copyright law and expect our users to do the same. It’s our policy to terminate in appropriate circumstances Game Accounts of users who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders.
11. 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.
12. 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.
13. Mobile Messaging
We may send you text messages. If we do, you are responsible for all charges and fees associated with text messaging imposed by your wireless provider. You do not need to purchase anything from us to use receive text messages.
The Services include a mobile message service ("Mobile Messaging") that is operated by Exploding Kittens. Your use of Mobile Messaging constitutes your agreement to these Terms.
By consenting to Mobile Messaging, you agree to receive recurring SMS/text messages with service-related and/or promotional messages, including updates, alerts, and information (e.g., order updates, account alerts, etc.) and promotions, specials, and other marketing offers from and on behalf of us via text messages through your wireless provider to the mobile number you provided, even if your mobile number is registered on any state or federal Do Not Call list. Text messages may be sent using an automatic telephone dialing system or other technology.
You understand that you do not have to sign up for this program to make any purchases, and your consent is not a condition of any purchase with Exploding Kittens. Your participation in this program is completely voluntary.
We do not charge for Mobile Messaging, but you are responsible for all charges and fees associated with text messaging imposed by your wireless provider. Message frequency varies. Standard message and data rates may apply from your wireless provider. Check your mobile plan and contact your wireless provider for details. You are solely responsible for all charges related to SMS/text messages, including charges from your wireless provider.
You may opt-out of Mobile Messaging at any time. If sending in the US or Canada: Text the single keyword command STOP to +1 (855) 624-7465. If sending using an alphanumeric sender ID in the UK or Australia: Click the unsubscribe link in any text message to cancel. You'll receive a one-time opt-out confirmation text message. No further messages will be sent to your mobile device, unless initiated by you. If you have subscribed to other Exploding Kittens mobile message programs and wish to cancel, except where applicable law requires otherwise, you will need to opt out separately from those programs by following the instructions provided in their respective mobile terms. For Mobile Messaging support or assistance, text HELP to +1 (855) 624-7465 or email firstname.lastname@example.org.
We may change any short code or telephone number we use to operate the Mobile Messaging at any time and may notify you of these changes. You acknowledge that any messages, including any STOP or HELP requests, you send to a short code or telephone number we have changed may not be received and we will not be responsible for honoring requests made in such messages.
The wireless carriers supported by Mobile Messaging are not liable for delayed or undelivered messages. You agree to provide us with a valid mobile number. If you get a new mobile number, you will need to sign up for the program with your new number.To the extent permitted by applicable law, you agree that we will not be liable for failed, delayed, or misdirected delivery of any information sent through Mobile Messaging, any errors in such information, and/or any action you may or may not take in reliance on the information or Mobile Messaging.
14. 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 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 and products at any time, for any reason, without notice or liability to you.
15. 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, EK EXPLICITLY DISCLAIMS 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. EK makes no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. EK makes no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of the Services.
16. Limitation of Liability
This section limits what you can recover from us in a dispute.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW EK WILL NOT BE LIABLE IN ANY WAY FOR ANY:
a. LOSS OF PROFITS,
b. LOST REVENUE,
c. LOST SAVINGS,
d. LOSS OF DATA,
e. OR 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 EK’S FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNITY, PRODUCT LIABILITY, BREACH OF CONTRACT, BREACH OF WARRANTY, OR OTHERWISE AND EVEN IF EK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF EK 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 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 EKs and its 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 17.
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 or if you violate the Terms.
To the fullest extent consistent with applicable law, we may suspend, modify or terminate your access to and use of the Services with no liability or notice to you in the event that (a) you breach any terms of the Terms; or (b) 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. 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.
Where required by applicable law, termination of the Terms does not require a court decision to effect termination or a notice served by a court bailiff as a prerequisite to 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: 5–9, 12–13, and 15–21.
19. Dispute Resolution and Governing Law
a. Governing Law and Forum Choice. You are agreeing to the laws of California. Any court cases (if applicable) will be handled in the Southern District of California.
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 19, the exclusive jurisdiction for all Disputes (defined below) that you and EK are not required to arbitrate will be the state and federal courts located in the Southern District of California, and you and EK each waive any objection to jurisdiction and venue in such courts.
b. Arbitration Summary. (This Arbitration section is long so we’re providing mini-explanation here for each part but keep reading for more in-depth information.)
If there is a dispute between us, we agree we’ll resolve it through arbitration instead of through the courts. You are also agreeing not to participate in a class-action lawsuit against us. The American Arbitration Association’s Consumer Arbitration Rules will apply. Arbitration will be near where you live unless we agree otherwise. 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. If a court decides a part of this section is unenforceable, the rest still applies.
that can be resolved in small claims court or relate to the infringement of our intellectual property do not have to be arbitrated, nor do you have to arbitrate if you choose to opt out of mandatory arbitration.
c. 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 or purchase of products (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and EK agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and EK 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
d. Exceptions. As limited exceptions to Section 19(c) above: (i) we both may seek to resolve a Dispute in small claims court if it qualifies; (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; and (iii) you do not have to comply with these mandatory arbitration rules if you validly opt out under Section 19(j) below.
e. 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 at www.adr.org or 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 at www.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.
f. 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.
g. Injunctive and Declaratory Relief. 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.
h. 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.
i. Severability. 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.
j. Opt Out Right. Notwithstanding the above, YOU MAY CHOOSE TO PURSUE YOUR CLAIM IN COURT AND NOT BY ARBITRATION IF YOU OPT OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE EARLIER OF THE DATE YOU PURCHASED THE PRODUCT AT ISSUE IN THE DISPUTE OR THE DATE YOU FIRST ACTIVATED AN ACCOUNT WITH US (the “Opt Out Deadline”). In order for an opt out to be valid, you must opt out by the Opt Out Deadline by sending us an e-mail at email@example.com which includes your first and last name and a clear statement that you are opting out of the arbitration provision (e.g. “I, [first and last name], wish to opt out of the Arbitration Provision.”) Any opt-out received after the Opt Out Deadline will not be valid and you will be obligated to pursue the Dispute as described in this Section 19.
20. 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 insure 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 19(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 Rights. A person who is not a party to the Terms will have no right to enforce any of its terms.
22. Contact Information
If you have any questions about the Terms, please contact us at firstname.lastname@example.org
23. Our Policies Concerning Children
If we become aware that a child has provided us with personal information in violation of applicable law, we will delete any personal information we have collected, unless we have a legal obligation to keep it, and terminate the child's account if applicable.