Company reserves the right, in its sole discretion, to modify this Agreement at any time by posting a notice on the Company’s website, or by sending you a notice via email or via the Software. You shall be responsible for reviewing and becoming familiar with any such modifications. Your use of the Software following such notification constitutes your acceptance of the terms and conditions of this Agreement as modified.
1. Access to the Software; Account
2. Eligibility; Account Registration and Identity Verification
You must be at least 13 years old (or such other minimum age as is applicable in your country and/or state of residence) to create an Account to use the Software. If you are younger than 18 years old, you may only use the Software if your parent or legal guardian has read and agreed to this Agreement. By using the Software, you represent and warrant that you (or your parent or legal guardian, as applicable) have reviewed and agreed to this Agreement. Parents and guardians are responsible for the acts of their children under 18 years of age when using our Software.
You further represent and warrant to Company that: (i) you are an individual (i.e., not a corporation); (ii) all registration information you submit is accurate and truthful; and (iii) you will maintain the accuracy of such information. You also certify that you are legally permitted to use and access the Software and take full responsibility for the selection and use of and access to the Software. This Agreement is void where prohibited by law, and the right to access the Software is revoked in such jurisdictions.
During the Account registration process and/or in connection with certain services that may be offered through the Software, such as transactions involving the receipt, processing or transfer of any financial consideration, including real cash money or currency, we may ask you for information about yourself, including your name, photo or other identification (e.g., driver’s license), and other personal information, to verify your identity. We may, in our sole discretion, refuse to open a Account for you or restrict your access to certain aspects of the Services until we are able to verify your identity. You agree to provide us with the information we request for the purposes of identity verification and the detection of money laundering, terrorist financing, fraud, or any other financial crime and permit us to keep a record of such information. Your access to one or more Services and the limits that apply to your use of the Services may be altered as a result of information collected about you on an ongoing basis. The information we request may include certain personal information, including, but not limited to, your name, address, telephone number, e-mail address, date of birth, taxpayer identification number, a government identification, and information regarding your bank account (such as the name of the bank, the account type, routing number, and account number). In providing us with this or any other information that may be required, you confirm that the information is accurate and authentic. You agree to keep us updated if any of the information you provide changes. You authorize us to make inquiries, whether directly or through third parties, that we consider necessary to verify your identity or protect you and/or us against fraud or other financial crime, and to take action we reasonably deem necessary based on the results of such inquiries. When we carry out these inquiries, you acknowledge and agree that your personal information may be disclosed to credit reference and fraud prevention or financial crime agencies and that these agencies may respond to our inquiries in full. This is an identity check only and should have no adverse effect on your credit rating. Additionally, we may require you to wait some amount of time after completion of a transaction, before permitting you to use further Services and/or before permitting you to engage in transactions beyond certain volume, currency or financial limits, all as established by Lava in its sole discretion.
3. Right to Terminate Access and Account
WITHOUT LIMITING OUR OTHER REMEDIES, COMPANY MAY LIMIT, SUSPEND OR TERMINATE THE SOFTWARE AND USER ACCOUNTS OR PORTIONS THEREOF, PROHIBIT ACCESS TO GAMES AND THEIR CONTENT, SOFTWARE, SERVICES AND TOOLS, DELAY OR REMOVE HOSTED CONTENT, AND TAKE TECHNICAL AND LEGAL STEPS TO PREVENT USERS FROM ACCESSING THE SOFTWARE IF WE BELIEVE THAT THEY ARE CREATING RISK OR POSSIBLE LEGAL LIABILITIES, ENGAGING IN FRAUDULENT OR DECEPTIVE ACTIVITIES, INFRINGING THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, OR ACTING INCONSISTENTLY WITH THE LETTER OR SPIRIT OF OUR TERMS OR POLICIES.
4. Software Content and IP Ownership
All materials displayed or performed on the Software (including without limitation any Games, titles, computer code, themes, objects, characters, character names, stories, dialogue, catch phrases, concepts, artwork, animations, sounds, musical compositions, audio-visual effects, methods of operation, moral rights, documentation, in-game chat transcripts, character profile information, recordings of games played using a Company game client, and the Company game clients and server software) are protected by copyright and other intellectual property laws and are exclusively owned by Company and its licensors. Company reserves all rights in connection with the Software, including, without limitation, the exclusive right to create derivative works. You agree that you will not create any work based on the Software except as may be expressly authorized in writing by Company, including, for example, in instances whereby the functionality of a Game permits the generation or customization of assets or other content based on the content and intellectual property contained in a Game. Notwithstanding anything to the contrary set forth in this Agreement, all such derivative works created or generated by a user based on or derived from content and the intellectual property contained in the Game (“Game Derivative Works”) shall be owned exclusively by Company.
You shall abide by all copyright notices, trademark rules, information, and restrictions contained in any Content accessed through the Software, and shall not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purposes whatsoever any content or third party submissions or other proprietary rights not owned by you: (i) without the express prior written consent of the respective owners, and (ii) in any way that violates any third party right.
You may not modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section 1), create derivative works based on, distribute, perform, display, or in any way exploit, any of the Software in whole or in part.
You understand that Company cannot guarantee the identity of any other users with whom you may interact in the course of using the Software. Additionally, Company cannot guarantee the authenticity of any data which users may provide about themselves. You acknowledge that all Content accessed by you using the Software is at your own risk and you will be solely responsible for any damage or loss to any party resulting therefrom.
“Lava,” “AFAR” and any other Game titles or character names and their associated logos are trademarks of Company. All rights reserved. All trademarks not owned by Company that appear in the Software are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Company.
5. Your Warranty
You warrant, represent and agree that you will not contribute any Content or otherwise use the Software in a manner that: (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, ordinance or regulation; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, hateful, defamatory, vulgar, obscene, libelous, dangerous, or otherwise objectionable; (iv) involves commercial activities and/or sales without Company’s prior written consent such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including without limitation any employee or representative of Company; or (vi) contains a virus, trojan horse, worm, time bomb, or other harmful computer code, file, or program. Company reserves the right to remove any Content from the Software at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if Company is concerned that you may have breached the immediately preceding sentence), or for no reason at all. You, not Company, remain solely responsible for all Content that you upload, post, email, transmit, or otherwise disseminate using, or in connection with, the Software, and you warrant that you possess all rights necessary to provide such Content to Company and to grant Company the rights to use such information in connection with the Software and as otherwise provided herein.
6. Restrictions, Conditions of Use and User Conduct
You assume total responsibility and risk for all of your activity in connection with the Software. Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of your right to access or use the Software. You may not post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any Company user. Use of the Software to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material (including material that may be considered threatening or obscene), or engage in any kind of illegal activity is expressly prohibited. You will not run Maillist, Listserv, any form of auto-responder, or “spam” on the Software, or any processes that run or are activated while you are not logged on to the Software, or that otherwise interfere with the proper working of or place an unreasonable load on the Software’ infrastructure. Further, the use of manual or automated software, devices, or other processes to “crawl,” “scrape,” or “spider” any portion of the Software is strictly prohibited. You will not decompile, reverse engineer, or otherwise attempt to obtain the source code of the Software.
No Violation of Laws:
You agree that you will not, in connection with your use of a Game client or the Software, violate any applicable law or regulation.
Misuse of Software:
You may not connect to or use the Software in any way not expressly permitted by this Agreement. Without limiting the foregoing, you agree that you will not: (a) institute, assist, or become involved in any type of attack, including without limitation denial of Software attacks, upon the Software or otherwise attempt to disrupt the Software or any other person’s use of the Software; or (b) attempt to gain unauthorized access to the Software, Accounts registered to other players, or the computer systems or networks connected to the Software.
No Data Mining:
You agree that you will not (a) obtain or attempt to obtain any information from the Software or any Game using any method not expressly permitted by Company; (b) intercept, examine or otherwise observe any proprietary communications protocol used by a Game client or the Software, whether through the use of a network analyzer, packet sniffer or other device; (c) use any third-party software to collect information from or through a Game client or the Software, including without limitation information about your character, any Account registered to you, virtual items, other players, or other Game data.
You understand that all Content posted, transmitted or communicated in connection with the Software is the sole responsibility of the person from whom such Content originated. This means that you, and not Company, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available via the Software. Company does not control or monitor the Content posted to the Software by others and, as such, does not guarantee the accuracy, integrity, or quality of such Content. Unless a feature of the Software expressly provides for a privacy election with respect to the posting or communication of Content, Company also does not guarantee the privacy of any such Content and you should assume that all such Content is being made public to other users of the Software, including those to whom the Content is not specifically intended or directed. You understand that by using the Software, you may be exposed to Content that is offensive, indecent or objectionable. Under no circumstances will Company be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available on the Software.
You acknowledge that Company may or may not pre-screen or monitor Content, but that Company and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, monitor, refuse or remove any Content that is available via the Software. Without limiting the foregoing, Company and its designees shall have the right to remove any Content that violates this Agreement or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use or disclosure of any Content in connection with the Software, including any reliance on the accuracy, completeness, or usefulness of such Content.
WE ALSO RESERVE THE RIGHT, AT ALL TIMES AND IN OUR SOLE DISCRETION, TO DISCLOSE ANY CONTENT FOR ANY REASON, including without limitation: (a) to satisfy any applicable law, regulation, legal process or governmental request; (b) to enforce the terms of this Agreement or any other Company policy; (c) to protect our legal rights and remedies; (d) to protect the health or safety of anyone we believe may be threatened; or (e) to report a crime or other illegal or offensive behavior.
You are solely responsible for maintaining the confidentiality of the password associated with your Account and for restricting access to your password and to your computer while logged into the Software. You accept responsibility for all activities that occur under your Account or from your computer or other device. We endeavor to use reasonable security measures to protect against unauthorized access to your Account. We cannot, however, guarantee absolute security of your Account, your Content or the personal information you provide, and we cannot promise that our security measures will prevent third-party “hackers” from illegally accessing the Software or its contents. You agree to immediately notify Company of any unauthorized use or your Account or password, or any other breach of security, and to accept all risks of unauthorized access to any other data or information you provide to Company.
You agree to not use the Software to: (a) upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (b) harm minors in any way; (c) impersonate any person or entity, including, but not limited to, a Company official, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity; (d) upload, post, email, transmit or otherwise make available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships; (e) upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party; (f) upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation; (g) upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (h) interfere with or disrupt the Software or servers or networks connected to the Software, or disobey any requirements, procedures, policies or regulations of networks connected to the Software; and/or (i) intentionally or unintentionally violate any applicable local, state, national or international law.
Interactions with Other Users:
The Software may provide the ability function as a venue to connect members in virtual environments. As a neutral facilitator, Company is not directly involved in the interactions between users of the Software. As a result, Company has no control over the actions of other users or the truth, accuracy, quality, legality, or safety of postings made by users of the Software. Company shall have no responsibility to confirm the identity of users. Company shall also have no responsibility to confirm or verify the qualifications, background, or abilities of users of the Software. You shall at all time exercise common sense and good judgment when dealing with any user of the Software.
7. Warranty Disclaimer
Company has no special relationship with or fiduciary duty to you. You acknowledge that Company has no control over, and no duty to take any action regarding: which users gain access to the Software; what Content you access via the Software; what effects the Software or the Content accessed therein may have on you; how you may interpret or use the Content accessed via the Software; or what actions you may take as a result of having been exposed to the Software. You release Company from all liability for you having acquired or not acquired Content through the Software. The Software may contain, or direct you to websites containing, information that some people may find offensive or inappropriate. Company makes no representations concerning any Content contained in or accessed through the Software, and Company will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Software. THE SOFTWARE AND ANY COMPANY SERVICES RELATED THERETO ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
9. Registration and Security
As a condition to using some aspects of the Software, you may be required to register with Company and select a password and user name (“Company User ID”). You shall provide Company with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of your Account. You may not: (i) select or use as a Company User ID a name of another person with the intent to impersonate that person; or (ii) use as a Company User ID a name subject to any rights of a person other than you without appropriate authorization. Company reserves the right to refuse registration of or cancel a Company User ID in its discretion. You shall be responsible for maintaining the confidentiality of your password.
You will indemnify and hold harmless Company, its parents, subsidiaries, affiliates, officers, directors, employees, and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with: (i) your access and use of the Software; (ii) your violation of this Agreement; and/or (iii) the infringement by you or any third party using your Account of any intellectual property or other right of any person or entity.
11. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL COMPANY OR ITS SUPPLIERS, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE WITH RESPECT TO THE SOFTWARE OR THE SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE GREATER OF FEES PAID BY YOU THEREFORE OR $100; (II) FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER; (III) FOR DATA LOSS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; OR (IV) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL (INCLUDING WITHOUT LIMITATION ANY DAMAGE YOU MAY SUFFER BY USING THE SOFTWARE WHILE OPERATING A MOTOR VEHICLE, IN VIOLATION OF THIS AGREEMENT).
12. Subscription Fees and Payments
Some Games or Apps may offer a monthly subscription plan and a free trial subscription. If you purchase a subscription plan, the subscription fee will be charged to your Account or your third party platform or service account (e.g., game console; PC store; or mobile store), as applicable. Subscription plan prices may vary depending on your country. Monthly subscriptions will be charged to you at the beginning of your subscription period and will be charged each month thereafter at the then-current rate unless you cancel.
Automatically Recurring Payment:
When you purchase a subscription plan, you acknowledge that your subscription will automatically renew each month unless you cancel it or disable automatic renewal at least 24 hours before the end of the current monthly subscription period. Unless you cancel your subscription, the payment method you provided will be automatically charged each month the then-applicable monthly subscription fee, within 24 hours of the calendar day corresponding to the date of commencement of your subscription. If your monthly subscription began on a day not contained in a given month, we may charge you on such other day in the applicable month as we deem appropriate. For example, if your subscription started on January 31st, your next payment date is likely to be February 28th and you will be billed on that date. Your subscription plan will continue until cancelled by you or we terminate access to or use of the Software in accordance with this Agreement.
We offer free trial subscriptions during which you may use the Software (or any services incorporated therein or offered thereby) for a limited trial period without payment. Free trial subscriptions are only available to new subscribers. Unless you cancel your free subscription prior to the end of your trial, we (or our third-party payment processor) will begin charging you the applicable subscription fee, whether on a recurring basis for a monthly or annual subscription or a one-time basis for a lifetime subscription, until you cancel your subscription. Instructions for cancellation are stated below in the section titled “Cancellation of Subscription” below. If you purchase a subscription plan before your free trial period expires, any unused portion of the free trial period will be forfeited.
Cancellation of Subscription:
You may cancel your subscription at any time. Unless an exception applies under applicable law in your jurisdiction, you will not receive a refund of any portion of the subscription fee paid for the then-current subscription period at the time of cancellation. To cancel, you can turn off automatic renewals in the Account Settings of the Software.
We may terminate access to or use of the Software, at our sole discretion, at any time and without prior notice. All fees are non-refundable, except as required by applicable law in your jurisdiction.
Subscription Price Changes:
The price of subscriptions is subject to change at any time without notice. If we change the price of your monthly or annual subscription, you have the option to cancel at any time before the new price is applied.
13. Purchases: Virtual Currency and Items; Fees and Payment
In the Software users may purchase, with “real world” money, a limited, personal, non-transferable, non-sublicensable, revocable license to use: (i) “Virtual Currency”, all for use in Games or Apps; and (b) “virtual in-game items or assets” (together with Virtual Currency, “Virtual Items”). Unless otherwise expressly authorized by the Game or App, you are only allowed to purchase Virtual Items from us or our authorized partners through the Software.
Unless otherwise expressly authorized by the applicable Game or App, (i) Virtual Items may be used exclusively within the Software to purchase, gain access to and utilize certain limited rights within Games or Apps, (ii) solely represent a limited license right governed under these Terms, and are not redeemable for any sum of money, monetary value or other real world value at any time, and (iii) other than a limited, personal, revocable, non-transferable, non-sublicenseable license to use Virtual Items on and in the Software, including in or for any Games or Apps, you agree that you have no right, title or ownership in or to any such Virtual Items.
UNLESS OTHERWISE EXPRESSLY AUTHORIZED BY THE APPLICABLE GAME OR APP, YOU ACKNOWLEDGE AND AGREE THAT VIRTUAL ITEMS HAVE NO CASH OR MONETARY VALUE AND THAT NEITHER COMPANY NOR ANY OTHER PERSON OR ENTITY HAS ANY OBLIGATION TO EXCHANGE YOUR VIRTUAL ITEMS FOR ANYTHING OF VALUE, INCLUDING WITHOUT LIMITATION, REAL CURRENCY, AND THAT, IF YOUR ACCOUNT IS TERMINATED, SUSPENDED OR OTHERWISE MODIFIED OR IF YOUR RIGHT TO ACCESS THE SOFTWARE IS TERMINATED, THE VIRTUAL ITEMS AND YOUR ACCOUNT SHALL HAVE NO VALUE.
Company reserves the right to charge fees for the right to access or use Virtual Items, and/or may distribute Virtual Items without charge, in its sole discretion. For example, Company may, as a promotion or benefit of membership, provide users with a certain amount of Virtual Items based upon the completion of an activity. You acknowledge and agree that Company may revise or take action that impacts the perceived value of or pricing for any Virtual Items at any time except as may be stated in writing.
Company has the absolute right to manage, regulate, control, modify and/or eliminate such Virtual Items as it sees fit in its sole discretion, and Company shall have no liability to you or anyone else for the exercise of such rights. For example, Virtual Items may be lost, deleted from your Account, or forfeited when/if your Account is terminated, suspended or closed for any reason or when Company discontinues any part of the Software (or any Software provided therein).
The sale or transfer of Virtual Items is prohibited except where expressly authorized in the applicable Game or App. Other than as expressly authorized in the applicable Game or App, you shall not sell, redeem or otherwise transfer Virtual Items to any person or entity, including but not limited to Company, another user or any third party.
ALL PURCHASES AND REDEMPTIONS OF VIRTUAL CURRENCY AND VIRTUAL ITEMS MADE THROUGH THE SOFTWARE ARE FINAL AND NON-REFUNDABLE, EXCEPT AS REQUIRED BY APPLICABLE LAW.
You agree to pay all fees and applicable taxes incurred by you or anyone using an Account registered to you. Company may revise the pricing for the goods and services offered through the Software at any time. YOU ACKNOWLEDGE THAT COMPANY IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON, AND THAT YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED VIRTUAL ITEMS WHEN AN ACCOUNT IS CLOSED, WHETHER SUCH CLOSURE WAS VOLUNTARY OR INVOLUNTARY.
14. Third Party Websites and Services
The Software may contain links to third party websites or services that are not owned or controlled by Company. When you access third party websites or services, you do so at your own risk. You hereby represent and warrant that you have read and agreed to be bound by all applicable policies of any third party websites or services relating to your use of the Software and that you will act in accordance with those policies, in addition to your obligations under this Agreement. Company has no control over, and assumes no responsibility for, the Content, accuracy, privacy policies, or practices of or opinions expressed in any third party websites or services. In addition, Company will not and cannot monitor, verify, censor or edit the Content of any third party site.
By using the Software, you expressly relieve and hold harmless Company from any and all liability arising from your use of any third party website or service.
This Agreement shall remain in full force and effect while you use the Software. You may terminate your use of the Software at any time by uninstalling it from your device. If you have an automatically renewing subscription, please follow the instructions in the “Cancellation of Subscription” section above to cancel your subscription. Company may terminate or suspend your access to the Software, for any reason or for no reason, and without warning, which may result in the forfeiture and destruction of all information associated with your use of the Software. Any fees paid hereunder are non-refundable, unless provided by applicable law in your jurisdiction.
Upon termination of your Account, your right to use the Software, access will immediately cease. Sections 4, 7, 10, 11, 16 and 17 shall survive termination.
The failure of either party to exercise, in any respect, any right provided for herein shall not be deemed a waiver of any further rights hereunder. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Lava. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. Any notices or other communications provided by Lava under this Agreement, including those regarding modifications to this Agreement, will be given: (i) via email; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by you except with Company’s prior written consent. Any attempt by you to assign or transfer this Agreement, without such consent, will be null. Company may transfer, assign or delegate this Agreement and its rights and obligations without consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their successors and permitted assigns.
17. Dispute Resolution & Arbitration Agreement. Please read this Section carefully as it limits the manner in which we can seek relief from each other.
A. Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof or the use of the Software or User Submissions (“Dispute(s)”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Company agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this Agreement, and that you and Company are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of this Agreement.
B. Exceptions and Opt-out. As limited exceptions to Section 17(A) above: (i) you 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. In addition, you will retain the right to opt out of arbitration entirely and litigate any Dispute if you provide us with written notice of your desire to do so by email to firstname.lastname@example.org within thirty (30) days following the date you first agree to this Agreement.
C. Conducting Arbitration and Arbitration Rules. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this Dispute Resolution section. The AAA Rules are available on the AAA website and are hereby incorporated by reference. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state where the arbitration hearing is to be conducted, and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules. 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. Any arbitration hearings will take place in the county 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.
D. Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. If you initiate the arbitration, the only fee you will be required to pay is a non-refundable $200 filing fee. 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.
E. Class Action Waiver. YOU AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. 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 section shall be null and void.
F. Effect of Changes on Arbitration. If Company changes any of the terms of this Section 17 “Dispute Resolution” after the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement), you may reject any such change by sending us written notice within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Company’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Company in accordance with the terms of this Section 17 “Dispute Resolution” as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement).
G. Severability. With the exception of any of the provisions in Section 17(e) of this Agreement (“Class Action Waiver”), if an arbitrator or court of competent jurisdiction decides that any part of this Agreement is invalid or unenforceable, the other parts of this Agreement will still apply.
18. Governing Law and Venue
Disputes 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 law provisions. Except as otherwise expressly set forth in Section 17 “Dispute Resolution,” you agree that the California state and U.S. federal courts located in the County of Los Angeles shall have exclusive jurisdiction over all Disputes that you and Company are not required to arbitrate and you agree to the venue of such courts.
19. Force Majeure
Company shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of Company, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond Company’s control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.
20. Copyright Dispute Policy
Company has adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act or DMCA (posted at www.lcweb.loc.gov/copyright/legislation/dmca.pdf). The address of Company’s Designated Agent to Receive Notification of Claimed Infringement (“Designated Agent”) is listed at the end of this Section. It is Company’s policy to (1) block access to or remove material that it believes in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, Content providers, members or users; and (2) remove and discontinue Software to repeat offenders.
A. Procedure for Reporting Copyright Infringements:
If you believe that material or Content residing on or accessible through the Software infringes a copyright, please send a notice of copyright infringement containing the following information to the Designated Agent listed below:
B. Once Proper Bona Fide Infringement Notification is Received by the Designated Agent:
It is Company’s policy:
C. Procedure to Supply a Counter-Notice to the Designated Agent:
If the Content provider, member or user believes that the material that was removed (or to which access was disabled) is not infringing, or the Content provider, member or user believes that it has the right to post and use such material from the copyright owner, the copyright owner’s agent, or, pursuant to the law, the Content provider, member, or user, must send a counter-notice containing the following information to the Designated Agent listed below:
If a counter-notice is received by the Designated Agent, Company may send a copy of the counter-notice to the original complaining party informing that person that Company may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider, member or user, the removed material may be replaced or access to it restored in 10 to 14 business days or more after receipt of the counter-notice, at Company’s discretion.
Please contact Company’s Designated Agent to Receive Notification of Claimed Infringement at the following address:
Lava Labs, Inc.
If you have any questions, complaints, or claims with respect to the Software, you may contact us at email@example.com or firstname.lastname@example.org.