Last Updated: July 22, 2020
PLEASE NOTE THAT THESE TERMS CONTAIN PROVISIONS THAT GOVERN THE RESOLUTION OF DISPUTES BETWEEN US AND YOU AND LIMIT OUR LIABILITY TO YOU (SEE AGREEMENT TO ARBITRATE DISPUTES BELOW). THESE PROVISIONS SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
In some instances, both these Terms and separate terms elsewhere on the Service will apply to your use of the Service (“Additional Terms”). To the extent there is a conflict between these Terms and any applicable Additional Terms, the Additional Terms will control unless they expressly state otherwise.
OUR PLATFORM AND SERVICES
RPM does not itself provide “games.” RPM offers a platform where users may create and post homemade “games.” As such we expressly disclaim any responsibility or liability for any copyright, digital, or media related licensing infringement or complaint, and any including, but not limited to, a warranty or condition of good and workmanlike services, warranty of fitness for a particular purpose or compliance with any law, regulation, or code. RPM is not affiliated with, endorsed, or sponsored by any user or game. RPM does not actively moderate user content on the Service unless otherwise specified.
ACCOUNTS AND SECURITY
Certain features of the Service may require you to register an account. When registering an account, you agree to: (i) provide true, accurate, current, and complete information; (ii) maintain and update this information to keep it true, accurate, current, and complete; (iii) protect and prevent unauthorized access to your account; (iv) not transfer or share your account with any third party; and (v) immediately notify us of any suspected or actual unauthorized use of your account or breach of security. Please note that you are solely responsible for all activities that occur under your account, whether or not you authorized the activity, and we are not liable for any loss or damage to you or any third party arising from your failure to comply with any of the foregoing obligations.
You are responsible for and shall maintain the confidentiality of your login and password. If requested, you must provide us with a form of identification to verify your identity.
You may not use our Services if:
- You are under the age of 18 without parental permission.
- You have previously been banned from using our services or similar services.
You may not: (i) use the Service or Content for any political or commercial purpose; (ii) engage in any activity in connection with the Service or Content that is unlawful, harmful, offensive, sexually explicit, obscene, violent, threatening, harassing, abusive, falsely representative of your persona, invasive of someone else’s privacy, or otherwise objectionable to Company; (iii) harvest any information from the Service or Content; (iv) reverse engineer or modify the Service or Content; (v) interfere with the proper operation of or any security measure used by the Service or Content; (vi) infringe any intellectual property or other right of any third party; (vii) use the Service or Content in a manner that suggests an unauthorized association or is beyond the scope of the limited license granted to you; or (viii) otherwise violate these Terms or any applicable Additional Terms.
You agree to comply with all local, state, federal, national, foreign, supranational, and international laws, statutes, ordinances, regulations, treaties, directives, and agreements that apply to your use of the Service and Content.
CONDITIONS OF ACCESS
- You shall select a username and a password when signing up to portions of the Service that require an account or Membership.
- You shall keep your username and the password personal and confidential, and you shall not disclose them to any third parties or other users.
- You shall not to use another user’s username or password, or any other personal information of another user.
- You shall take care not to disclose strictly personal information.
- We reserve the option of removing:
- Content and/or user content published or present on the Service;
- Any user account that has not been used for more than six (6) months.
- You shall not to carry out any action likely to hinder the operation of the Service or undertake to disseminate or arrange for the dissemination of viruses, spam, logic bombs, software websites, etc.
PAID MEMBERSHIPS; AUTOMATIC RENEWAL
Certain areas of the Service require payment before you can access them (“Membership(s)”).
Memberships can be purchased by paying a subscription fee for a certain period as indicated on the Service. When you register for a Membership, you consent to get access to the applicable premium areas of our Service immediately. MEMBERSHIPS CANNOT BE TERMINATED BEFORE THE END OF THE PERIOD FOR WHICH YOU HAVE ALREADY PAID, AND COMPANY WILL NOT REFUND ANY FEES THAT YOU HAVE ALREADY PAID. Your payment will automatically renew at the end of the Membership period unless you cancel your Membership through your Membership page before the end of the then-current Membership period. The cancellation will take effect the day after the last day of the current Membership period. Company may change the price for the Memberships, from time to time, by posting the new price on its Service. Price changes for Memberships will take effect at the start of the next Membership period following the date of the price change. As permitted by local law, you accept the new price by continuing to use the Service after the price change takes effect. If you do not agree with the price changes, you have the right to reject the change by unsubscribing from the Service prior to the price change going into effect. Please therefore make sure you read any such notification of price changes carefully. Additional Terms may apply.
We do our best to describe every product or service offered on the Service as accurately as possible. However, we are human, and therefore we do not warrant that product specifications, pricing, or other Content on the Service is complete, accurate, reliable, current, or error-free. In the event of any errors relating to the pricing or specifications, Company shall have the right to refuse or cancel any orders in its sole discretion. If we charged your credit card or other account prior to our cancellation, we will issue a credit to your account in the amount of the charge. Additional Terms may apply. If a product or service you purchased from Company is not as described, your sole remedy is to cancel the purchase and receive a credit for the purchase price.
All physical products purchased from the Service are made pursuant to a shipment contract. This means that the risk of loss and title for such items pass to you upon delivery to the carrier.
For any purchases made through third party platform providers, such as Apple, Amazon, Roku, or Google, please contact their customer support. Their terms, conditions, and policies, and not ours, apply and we do not handle returns or refund requests for purchases through those third-party platform providers.
- The price and payment procedures are accessible on the Service.
- All prices stated include all relevant local taxes.
- You shall pay for all return shipping fees.
CANCELLATION OF FREE MEMBERSHIP
You may cancel your free Membership at any time. You may cancel by logging into your account on the Websites and following the links, or by writing to firstname.lastname@example.org.
CANCELLATION OF AUTOMATIC RENEWAL
The cancellation of your paid Membership will be effective upon the expiration of the then-current paid period and you will have full use of applicable premium areas of the Service until that time. No refund is applicable unless otherwise provided by applicable law or these Terms.
CANCELLATION OF YOUR MEMBERSHIP BY THE COMPANY
We, in our sole discretion, have the right to cancel your Membership at any time for any reason.
If we cancel your Membership for breach of these Terms or a violation of laws or regulations, you will not be entitled to a refund for the period remaining of your Membership, without prejudice to any damages sought by us as compensation for the loss suffered.
If we cancel your Membership for reasons other than breach of these Terms or a violation of laws or regulations, you will be entitled to a refund for the period remaining of your Membership.
Company may publicly display advertisements, paid content, and other sponsored information. The manner, mode, and extent of such advertising are subject to change without specific notice to you. Users may compensate Company to promote themselves in search results or other feature functions. Any such users will be clearly designated in applicable search results as “Promoted” or with a similar designation. Company may impose certain quality-related standards for users to qualify as Promoted, which standards may be enforced and/or changed at any time.
We reserve the right, at any time in our sole discretion, to modify or replace any part of these Terms and any applicable Additional Terms, without prior notice. You agree that we may notify you of any updated Terms and any applicable Additional Terms by posting them on the Service so that they are accessible via a link from the home page, and/or to send you an email to the last email address you provided to us. All such changes are effective immediately when we post them, or such later date as may be specified in the notice of updated Terms and any applicable Additional Terms. If you object to any such changes, your sole recourse is to cease using the Service. Your continued use of the Service indicates your consent to these Terms then posted.
- You acknowledge and agree that the Company may make changes to, or stop providing, the Services, or restrict your use of the Services, for any reason, at any time without prior notification to you.
- You are solely responsible for all data, SMS, mobile carrier, Internet, and telecommunications fees and charges incurred in connection with your use of the Services.
- You acknowledge and agree that Company can disable or deny you access to the Services, without notifying you in advance, for any reason including, without limitation, for any violation of these Terms and/or if Company suspects that you have used any aspect of the Services to conduct any fraudulent or illegal activity. If the Company disables your access to your account, you may be prevented from accessing the Service, your account details, or user content and materials contained in your account.
LICENSE, RESTRICTIONS, AND CONDITIONS OF USE
The Service contains: (i) materials and other items relating to Company and its products and services, and similar items from our licensors and other third parties, including all layout, information, databases, articles, posts, text, data, files, images, scripts, designs, graphics, instructions, illustrations, photographs, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Service, and the compilation, assembly, and arrangement of the materials of the Service and any and all copyrightable material; (ii) trademarks, logos, trade names, trade dress, service marks, and trade identities of various parties, including those of Company; and (iii) other forms of intellectual property (all of the foregoing, collectively “Content”). All right, title, and interest in and to the Service and the Content is the property of Company or our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent, and/or other intellectual property and unfair competition rights and laws to the fullest extent possible.
Subject to your strict compliance with these Terms and any applicable Additional Terms, Company grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to download, display, view, use, and play the Content on a personal computer, browser, laptop, tablet, mobile phone, or other internet-enabled device (each, a “Device”) and/or print one copy of the Content as it is displayed to you, in each case for your personal, non-commercial use only. The foregoing limited license (i) does not give you any ownership of, or any other intellectual property interest in, any Content, and (ii) may be suspended or terminated for any reason, in Company’s sole discretion, and without advance notice or liability. Your unauthorized use of the Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability.
You shall not to access, or attempt to access, the Service by any means other than through the Service’s websites or application. You shall not to access, or attempt to access, the Services through any automated means (including, without limitation, through the use of scripts, bots, unauthorized third party apps, spiders, or web crawlers).
You shall not connect to or use the Services in any way that is not expressly permitted by these Terms.
You shall not:
- Remove any proprietary notices from the Service or any copy of software provided to you by the Company (“Software”);
- Cause, permit, or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling, or hacking of the Service or any Software;
- Sell, assign, rent, lease, act as a service bureau, or grant rights in the Service or any Software, including, without limitation, through sublicense, to any other person or entity without the prior written consent of the Company;
- Make any false, misleading, or deceptive statement or representation regarding the Company and/or the Service; or
- Engage in any activity that:
- Promotes discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group;
- Is defamatory, obscene, pornographic, vulgar, or offensive;
- Is violent or threatening or promotes violence or actions that are threatening to any other person;
- Infringes, misappropriates, or violates a third party’s intellectual property rights, rights of publicity or privacy, or other rights;
- Violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability;
- Is fraudulent, false, misleading (directly or by omission or failure to update information), or deceptive;
- Constitutes phishing, pharming, or impersonates any other person or entity, or steals or assumes any person’s identity (whether a real identity or online nickname or alias); or is otherwise contrary to applicable laws and regulations;
- Disseminates any personal information of any other user, including any contact details or similar;
- Institutes, assists, or becomes involved in any type of attack, including, without limitation, denial of service attacks, upon the Service;
- Attempts to obstruct, disrupt, or interfere with the operation of the Service or any other person’s or entity’s use of the Service (or any servers, systems or networks connected to the Service);
- Attempts to gain unauthorized access to the Service, accounts registered to other users, or any servers, systems, or networks connected to the Services;
- Uses the Service to develop, generate, transmit, or store information that is unlawful or illegal, defamatory, harmful, abusive, hateful, racially, or ethnically offensive that encourages conduct that would be considered a criminal offence; or
- Perform any unsolicited commercial communication not permitted by applicable law.
- Each user undertakes to report any abuses to the Company, as well as any improper comments or conduct by other users.
We reserve the right to remove all or part of any content created, used, or circulated publicly or privately by users which is not compliant with applicable laws or regulations, or which violates these Terms. We may contact you to request that you remedy any non-compliance with applicable laws or regulations, or these Terms.
You acknowledge and agree that you are solely responsible, and Company has no responsibility or liability to you or any other person or entity, for any breach by you of these Terms or for the consequences of any such breach.
THIRD PARTY SERVICES
E-mails: You can opt-out of receiving certain promotional emails from us at any time by following the instructions as provided in emails to click on the unsubscribe link, or contacting us here with the word UNSUBSCRIBE in the subject field of the email. Your opt-out will not affect non-promotional emails, such as those about your account, transactions, servicing, or Company’s ongoing business relations.
Push Notifications: You can opt-out of receiving push notifications from us at any time by adjusting the permissions in your Device or uninstalling our app.
Text Messages and Calls: We may send you reoccurring text messages and calls (including prerecorded and/or by autodialer) to the phone number you provide for transactional and direct marketing purposes. You understand that your consent is not required as a condition of purchase, and that you can opt-out of receiving text messages or calls from us at any time by: (i) for text messages, texting “STOP” in response to any text message you receive from us or contacting us here and specifying you want to opt-out of text messages; and (ii) for calls, requesting opt-out during any call you receive from us or contacting us here and specifying you want to opt-out of calls. For text messages, you can also text “HELP” at any time for more information. You understand that you may receive a text message confirming any opt-out by you. Standard message, data, and other fees may be charged by your carrier, and carriers may deduct charges from pre-paid amounts or data allowances, for which you are responsible. Not all phone and/or carriers are supported. Contact your carrier for further details.
Please note that any opt-out by you is limited to the e-mail address, device, or phone number used and will not affect subsequent subscriptions.
If you have any questions or comments, please send an email at email@example.com. You acknowledge that the provision of support is at Company’s sole discretion and that we have no obligation to provide you with customer support of any kind. All legal notices to us must be mailed to: PO Box 912, Crescent City CA 95531. When you communicate with us electronically, you consent to receive communications from us electronically. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
SUBMISSIONS AND FEEDBACK
When you submit any ideas, feedback, opinions, techniques, images, sounds, videos, or other content to us through or relating to the Service (“Submissions”), you grant us a non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, transferable and cost-free right and license to host, store, use, display, reproduce, modify, adapt, edit, combine with other materials, publish, distribute, create derivative works from, promote, exhibit, broadcast, syndicate, sublicense (including, without limitation, to third party media channels, platforms, and distributors), publicly perform, publicly display, and otherwise use and exploit in any manner whatsoever, or grant third parties the right to do any of the foregoing, all or any portion of your Submissions, for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. You further irrevocably grant us the right, but not the obligation, to use your name in connection with your Submissions. You also agree to waive any right of approval for our use of the rights granted herein and agree to waive any moral rights that you may have in any Submissions, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights in a manner that interferes with any exercise of the granted rights.
You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section. Our receipt of your Submissions is not an admission of their novelty, priority, or originality, and it does not impair our right to existing or future intellectual property rights relating to your Submissions.
You represent and warrant that you own or have the necessary rights, licenses, consents, and permissions to grant us the rights granted in this Section. You alone, though, retain whatever legally cognizable right, title, and interest that you have in your Submission and remain responsible for them.
Company may suspend or terminate the availability of the Service and Content, in whole or in part, to any individual user or all users, for any reason, in Company’s sole discretion, and without advance notice or liability. Upon suspension or termination of your access to the Service, or upon notice from Company, all rights granted to you under these Terms or any applicable Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Service and Content.
RESERVATION OF RIGHTS
All rights not expressly granted to you are reserved by Company and its licensors and other third parties. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. Any unauthorized use of the Content or Service for any purpose is prohibited.
The Service may contain blogs, message boards, applications, opportunities to provide reviews, chat areas, news groups, forums, communities, and/or other message or communication facilities that allow users to communicate with other users and with the Company (collectively, “Forum Areas”).
You hereby grant us a non-exclusive, transferable, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to use, host, store, reproduce, modify, create derivative works, communicate, publish, publicly perform, publicly display, and distribute all information that is posted to Forum Areas from or through your account on the Service or other Company platforms, including but not limited to all images, videos, musical works and text included in such postings and to such other persons and/or entities as Company may designate. The rights you grant in this license are for the limited purpose of operating, advertising, marketing, promoting, and improving the Service. We reserve the right to remove postings from Forum Areas in our sole discretion.
MODERATION, REPORTING AND FLAGGING
We do not actively moderate any user content on the website or provided by users. We reserve the right to remove any user content. Users have the ability report or flag any user content if they believe they violate this agreement or any applicable law. Once a request or report has been made, we will review and determine the appropriate action.
INTELLECTUAL PROPERTY OWNERSHIP
The Service and the Content are the property of Company and/or its licensors, as applicable.
Except for the limited license expressly granted by and to you under these Terms, no other rights, licenses, or immunities are granted or shall be deemed to be granted under these Terms, either expressly, or by implication, estoppel or otherwise.
We will review and respond to copyright notifications submitted under the Digital Millennium Copyright Act, 17 U.S.C. § 512 (“DMCA”). To submit a notice of claimed copyright infringement under U.S. law, provide our designated agent with the following written information:
- A physical or electronic signature of the copyright owner or a person authorized to act on his/her/its behalf;
- Identification of the copyrighted work claimed to have been infringed;
- Identification of the infringing material and information reasonably sufficient to permit us to locate that material;
- Your contact information, including your address, phone number, and email address;
- A statement that you have a good faith belief that the use of the material in the manner asserted is not authorized by the copyright owner, his/her/its agent, or the law; and
- A statement that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
Our designated agent is:
ADDRESS: PO Box 912, Crescent City CA 95531
EMAIL ADDRESS: firstname.lastname@example.org
You can obtain further information from the Copyright Office’s online directory at www.dmca.copyright.gov/osp.
We will respond to notifications of claimed copyright infringement in accordance with the DMCA.
If you believe that your material has been removed in error in response to a copyright notification, you may submit a counter notification to our designated agent with the following written information:
- A physical or electronic signature;
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
- Your name, address, and telephone number, and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which the address is located, or if your address is outside of the U.S., for any judicial district in which Company may be found, and that you will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.
We will respond to counter notifications in accordance with the DMCA.
DISCLAIMER OF WARRANTIES
THE SERVICE IS PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS” BASIS. NEITHER COMPANY NOR ANY OF ITS OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, OR AGENTS (COLLECTIVELY, THE “COMPANY PARTIES”) MAKE ANY REPRESENTATIONS, WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER AS TO THE CONTENT OR OTHER SERVICES, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, INCLUDING THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND FREEDOM FROM COMPUTER VIRUS. BY ACCESSING OR USING THE SERVICE YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SERVICE.
YOU ACKNOWLEDGE AND AGREE THAT ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER, MOBILE PHONE, OR OTHER DEVICE OR ANY LOSS OF DATA RESULTING FROM DOWNLOADING OR OBTAINING SUCH MATERIAL.
NOTWITHSTANDING THE FOREGOING, THESE DISCLAIMERS DO NOT EXCLUDE ANY PRODUCT LIABILITY CLAIMS, STATUTORY CONSUMER RIGHTS, DAMAGES ASSOCIATED WITH PERSONAL INJURY OR RESULTING FROM COMPANY’S INTENTIONAL MISCONDUCT, RECKLESSNESS, FRAUD, OR GROSS NEGLIGENCE.
LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE COMPANY PARTIES BE LIABLE TO YOU FOR ANY LOSS, DAMAGE OR INJURY OF ANY KIND INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE LOSSES OR DAMAGES, OR DAMAGES FOR SYSTEM FAILURE OR MALFUNCTION OR LOSS OF PROFITS, DATA, USE, BUSINESS OR GOOD-WILL, ARISING OUT OF OR IN CONNECTION WITH (A) THE SERVICE, (B) THESE TERMS, (C) YOUR COMMUNICATIONS WITH AND/OR INTERACTIONS WITH ANY OTHER USER OF THE SERVICES, OR ANY INDIVIDUAL YOU MEET VIA THE SERVICES, OR (D) YOUR MISUSE OF THE SERVICE OR ANY CONTENT AVAILABLE ON OR THROUGH THE SERVICE. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER THE ASSERTED LIABILITY OR DAMAGES ARE BASED ON CONTRACT, INDEMNIFICATION, TORT, STRICT LIABILITY, STATUTE OR ANY OTHER LEGAL OR EQUITABLE THEORY.
WE DO NOT CONDUCT BACKGROUND CHECKS ON USERS REGISTERING FOR THE SERVICES IN ANY WAY. ANY ATTEMPT BY US TO SCREEN USERS IS NOT A GUARANTEE OF SAFETY ON THE WEBSITE. YOU ARE RESPONSIBLE FOR YOUR OWN SAFETY ON THE WEBSITE AND WHEN MEETING OTHER USERS IN PERSON.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OR TO THE EXTENT APPLICABLE LAW DOES NOT PERMIT THE LIMITATIONS IN THIS CLAUSE, THE RELATED PARTIES’ LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO US FOR THE SERVICES DURING THE TERM OF YOUR SERVICE.
IN ALL CASES, THE COMPANY PARTIES WILL NOT BE LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE.
You further understand and expressly agree that all rights under Section 1542 of the Civil Code of California (“Section 1542”) and any similar law of any state or territory of the United States that may be applicable with respect to the foregoing release are hereby expressly and forever waived. You acknowledge that Section 1542 provides that: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” The releases hereunder are intended to apply to all claims not known or suspected to exist with the intent of waiving the effect of laws requiring the intent to release future unknown claims.
NOTWITHSTANDING THE FOREGOING, THESE DISLAIMERS HEREIN DO NOT EXCLUDE ANY PRODUCT LIABILITY CLAIMS, STATUTORY CONSUMER RIGHTS, DAMAGES ASSOCIATED WITH PERSONAL INJURY OR RESULTING FROM COMPANY INTENTIONAL MISCONDUCT, RECKLESSNESS, FRAUD, OR GROSS NEGLIGENCE.
You agree to defend, indemnify, and hold harmless the Company Parties from and against any and all claims, liabilities, damages, losses, costs and expenses (including, reasonable attorneys’ fees and costs) arising out of or in connection with any of the following: (i) your breach or alleged breach of these Terms or any applicable Additional Terms; (ii) your Submissions; (iii) your misuse of the Service; (iv) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental or quasi-governmental authorities; (v) your violation of the rights of any third party, including any intellectual property right, publicity, confidentiality, property or privacy right; (vi) your use of a Third Party Service; (vii) any misrepresentation made by you; (viii) any of you data posted or otherwise provided on the Service; or (ix) your communications with other users on the Service. Company reserves the right to assume, at your expense, the exclusive defense and control of any matter subject to indemnification by you. You agree to cooperate with Company’s defense of any claim. You will not in any event settle any claim without the prior written consent of Company.
You will cooperate as fully required by Company Parties in the defense of any claims and losses. Notwithstanding the foregoing, Company Parties retain the exclusive right to settle, compromise, and pay any and all claims and losses. Company Parties reserve the right to assume the exclusive defense and control of any claims and losses. You shall not settle any claims and losses without, in each instance, the prior written consent of the applicable Company Party.
This provision does not require you to indemnify us for any unconscionable commercial practice by us or for our fraud, deception, false promise, misrepresentation or concealment, suppression, or omission of any material fact in connection with the Service.
NOTICE; INFORMAL DISPUTE RESOLUTION
You and Company agree that each party will notify the other party in writing of any dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the dispute informally. Notice Company shall be sent by certified mail or courier to:
Redwood Pro Media LLC
P.O. Box 912
Crescent City, CA 95531
Your notice must include (a) your name, postal address, telephone number, the email address you use or used for your account and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent electronically in accordance with this agreement and will include (x) our name, postal address, telephone number and an email address at which we can be contacted with respect to the dispute, (y) a description in reasonable detail of the nature or basis of the dispute, and (z) the specific relief that we are seeking. If you and Company cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or Company may, as appropriate and in accordance with these Terms, commence an arbitration proceeding.
AGREEMENT TO ARBITRATE DISPUTES AND CHOICE OF LAW
PLEASE READ SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
We both agree to arbitrate.
You and Company agree to resolve any claims relating to these Terms through final and binding arbitration, except to the extent you have in any manner violated or threatened to violate Company’s intellectual property rights (for example, trademark, trade secret, copyright, or patent rights). Under such circumstances Company may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Service, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described herein.
What is Arbitration.
Arbitration is more informal than a lawsuit in court and seeks to resolve disputes more quickly. Instead of a judge or a jury, the case will be decided by a neutral arbitrator who has the power to award the same damages and relief that a court can. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced.
The Federal Arbitration Act governs the interpretation and enforcement of this dispute resolution provision. Arbitration shall be initiated through JAMS. Any dispute, controversy, or claim arising out of or relating to these Terms shall be referred to and finally determined by arbitration in accordance with the JAMS Streamlined Arbitration Rules and Procedures in front of one arbitrator. If there is a conflict between JAMS Rules and the rules set forth in these Terms, the rules set forth in this Terms will govern. The JAMS Rules and instructions for how to initiate an arbitration are available from JAMS at http://www.jamsadr.com or 1-800-352-5267. To initiate arbitration, you or Company must do the following things:
- Write a demand for Arbitration. The demand must include a description of the claim and the amount of damages sought to be recovered. You can find a copy of a demand for Arbitration at www.jamsadr.com.
- Send three copies of the demand for Arbitration, plus the appropriate filing fee to: JAMS to your local JAMS office or to JAMS, Two Embarcadero Center, Suite 1500, San Francisco, CA 94111.
- Send one copy of the demand for Arbitration to the other party.
Payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules. If travelling to Del Norte County, California is a burden, you may participate in the arbitration by phone or via document submission to the fullest extent allowable by the arbitrator. Each party will bear their own costs of arbitration unless the arbitrator directs that bearing such costs would be an undue burden and in that case, we will pay for your portion of the arbitration administrative costs (but not your attorneys’ fees). Arbitration under this agreement shall be held in the United States in Del Norte County, California under California law without regard to its conflict of laws provisions. The arbitration may award on an individual basis the same damages and relief as a court (including injunctive relief). Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Authority of Arbitrator.
The arbitrator will decide the rights and liabilities, if any, of you and Company, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the Arbitration Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Company.
No Class Actions.
You may only resolve disputes with us on an individual basis, and shall not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed.
Waiver of Jury Trial.
THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and Company in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING TO ACCEPT THIS AGREEMENT TO ARBITRATE.
No Class Arbitrations, Class Actions or Representative Actions
You agree that any dispute arising out of or related to these Terms or the Service is personal to you and Company and that such dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and Company agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a dispute as a representative of another individual or group of individuals. Further, you and Company agree that a dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
Federal Arbitration Act
You agree that these Terms affect interstate commerce and that the enforceability of this Section shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.
You have the right to opt out of binding arbitration within thirty (30) days of the date you first begin using the Service by writing to: Redwood Pro Media LLC, P.O. Box 912, Crescent City, CA 95531. In order to be effective, the opt out notice must include your full name and clearly indicate your intent to opt out of binding arbitration.
WAIVER OF INJUNCTIVE OR OTHER EQUITABLE RELIEF
TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU AGREE THAT YOU WILL NOT BE PERMITTED TO OBTAIN AN INJUNCTION OR OTHER EQUITABLE RELIEF OF ANY KIND, SUCH AS ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, SUBMISSIONS, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY COMPANY OR A LICENSOR OF COMPANY.
CONSENT OR APPROVAL
No Company consent or approval may be deemed to have been granted by Company without being in writing and signed by an officer of Company.
The provisions of these Terms and any applicable Additional Terms, which by their nature should survive termination of your use of the Service, including, without limitation, sections on Submissions, Copyright Infringement, Memberships, Customer Support, Third Party Services, Service Features, Agreement to Arbitrate Disputes and Choice of Law, Disclaimer of Representations and Warranties, Limitations of Our Liability, Indemnification, Waiver of Injunctive or Other Equitable Relief, Updates to Terms, and General Provisions, will survive.
SEVERABILITY; INTERPRETATION; ASSIGNMENT
If any provision of these Terms, or any applicable Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable, then that provision will be deemed severable from these Terms or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the Additional Terms. You hereby waive any applicable statutory and common law that may permit a contract to be construed against its drafter. The summaries of provisions and section headings are provided for convenience only and shall not limit the full Terms. Company may assign its rights and obligations under these Terms and any applicable Additional Terms, in whole or in part, to any party at any time without any notice. These Terms and any applicable Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Company.
COMPLETE AGREEMENT; NO WAIVER
These Terms, and any applicable Additional Terms, reflect our complete agreement regarding the Service and supersede any prior agreements, representations, warranties, assurances, or discussion related to the Service. Except as expressly set forth in these Terms or any applicable Additional Terms, (i) no failure or delay by you or Company in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms or any applicable Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.
Company controls and operates the Service from the United States, and Company makes no representation that the Service is appropriate or available for use beyond the U.S. You agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms or to any sale of goods carried out as a result of your use of the Service. Software related to or made available by the Service may be subject to export controls of the U.S., and, except as authorized by law, you agree and warrant not to export or re-export the software to any county, or to any person, entity, or end-user subject to U.S. export controls or sanctions.
INVESTIGATIONS; COOPERATION WITH GOVERNMENTAL AUTHORITY
Company reserves the right to investigate and prosecute any suspected breaches of these Terms or the Service. Company may disclose any information as necessary to satisfy any law, regulation, legal process, or governmental request.
CALIFORNIA CONSUMER RIGHTS AND NOTICES
Residents of California are entitled to the following specific consumer rights information: you may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs by mail at: 400 R St., Suite 1080, Sacramento, California, 95814, or by telephone at (916) 445-1254. Their website is located at: http://www.dca.ca.gov.
TERMS APPLICABLE FOR APPLE IOS
If you are using the Service through an Apple Device, the following terms apply:
- To the extent that you are accessing the Service through an Apple Device, you acknowledge that these Terms are entered into between you and Company and, that Apple, Inc. (“Apple”) is not a party to these Terms other than as third-party beneficiary as contemplated below.
- The license granted to you in these Terms is subject to the permitted Usage Rules set forth in the App Store Terms of Service (see: http://www.apple.com/legal/itunes/us/terms.html) and any third-party terms of agreement applicable to the Service.
- You acknowledge that Company, and not Apple, is responsible for providing the Service and Content thereof.
- You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or any support services to you with respect to the Service.
- To the maximum extent not prohibited by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Service.
- Notwithstanding anything to the contrary herein, and subject to the terms in these Terms, you acknowledge that, solely as between Apple and Company, Company, and not Apple is responsible for addressing any claims you may have relating to the Service, or your possession and/or use thereof, including, but not limited, to: (a) product liability claims; (b) any claim that the Service fails to confirm to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation.
- Further, you agree that if the Service, or your possession and use of the Service, infringes on a third party’s intellectual property rights, you will not hold Apple responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims.
- You acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.
- When using the Service, you agree to comply with any and all third-party terms that are applicable to any platform, website, technology, or service that interacts with the Service.