Effective Date: March 21, 2023
1 About These Terms
This User Agreement (hereinafter referred to as “Agreement”) is entered into by and between you and Gearup Portal Pte. Ltd. (hereinafter referred to as "SafeShell VPN)", "we", "us" or "our") in relation to your use of our product and any related services (together referred to as our "Services"). A reference to the "Services" includes but is not limited to the material and information contained in the Services, including any application, software, content, data, text, images, links, sounds, graphics, RSS, API, other downloadable materials, and video sequences displayed therein, as may be applicable. In this Agreement, the individual, entity or person to whom this Agreement apply to shall hereinafter be referred to as "you" or "your" as the context requires.
- You agree that by accessing, downloading, installing and/or using our Services or any account registration or logging through our platform partners (such as Google Play Store and Apply App Store), you are agreeing to be bound to this Agreement. In addition, when using our Services, you may be subject to any posted guidelines or rules applicable to such Services which may be posted from time to time.
- We may update this Agreement from time to time by posting the amended terms in our Services or websites. Your continued use of our Services will be deemed as your acceptance of the updated agreement. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, PLEASE DO NOT USE THE SERVICES (OR IMMEDIATELY DISCONTINUE YOUR USE AND/OR ACCESS OF THE SAME).
- BY ACCESSING AND/OR USING THE SERVICES, YOU CONSENT TO ENTERING INTO THESE TERMS ELECTRONICALLY, AND TO THE STORAGE OF RECORDS RELATED TO THESE TERMS IN ELECTRONIC FORM. IF YOU DO NOT UNDERSTAND OR AGREE TO THIS AGREEMENT, PLEASE DO NOT USE THE SERVICES.
- Section 13.2 contains an arbitration clause and class action waiver that applies to you if you are a citizen or habitual resident of the United States. If you are a citizen or habitual resident of the United States, by agreeing to this Agreement, you agree (a) to resolve all disputes with us related to the Software through binding individual arbitration, which means that you waive any right to have those disputes decided by a judge or jury, and (b) to waive your right to participate in class actions, class arbitrations, or representative actions in connection with your use of the Services. You may have the right to opt-out of arbitration as explained in Section 13.2.
2 Access to the Services
- By downloading the Services and subscribing and making payment through our platform partners (such as Google Playstore and Apple App Store), you represent and warrant that: (a) you are of legal age or have the full right, power, and legal authority to enter into this Agreement; (b) you will not authorise other persons (save for your authorised Child as further described below) to use your account; and (c) you are not impersonating any other person, operating under an alias or otherwise concealing your identity. Subject to the laws of your residence country, minor children may utilize an account established by their parent or legal guardian. If you permit your minor child or legal ward (collectively, your "Child") to use an account, you hereby agree to this Agreement on behalf of yourself and your Child, and you understand and agree that you will be responsible for all uses of the account by your Child whether or not such uses were authorized by you.
- By downloading and subscribing to the Services, you agree to become a subscriber (Subscriber) for the period you have elected. A full list of subscription plans and pricing is available in the Services. We reserve the right to amend subscription fees or institute new fees at any time upon reasonable advance notice posted through the Services or sent via email. Any changes to the pricing will not affect the Subscriber’s current subscription period and will become effective upon subscription renewal.
- You agree that you will make necessary efforts to protect your account information and keep it confidential. You agree that you may not transfer your account as well as any of your rights or obligations under this Agreement to anyone else or unless expressly stated otherwise share your account information with others without our prior consent.
3 User Conduct and Content
- You must follow applicable laws of the jurisdiction where you are located when using the Services. If any applicable laws restrict or forbid you from using our Services, you shall follow such restrictions or stop visiting or using our Services. You are solely responsible to understand the relevant laws related to any jurisdiction or venue that concerns you, your actions and your use of the Services. Your access and use the Services in your country on your own initiative, and you solely are responsible for complying with your local laws and regulations and the laws and regulations of any country with which or through which you communicate, transmit, or receive data, if and to the extent such laws are applicable. We reserve the right, at any time, in our sole discretion, with or without notice, to suspend and/or terminate the Services to any users who violate any applicable laws or this Agreement, whether repeated violation or a single instance.
- You agree that you shall not yourself and/or enable others to:
- use, assist, encourage, or enable others to use the Services/Websites for any unlawful, illicit, illegal, criminal, or fraudulent activities, including but not limited to port scanning, sending spam, sending opt-in email, scanning for open relays or open proxies, sending unsolicited email or any version or type of email sent in vast quantities even if the email is routed through third-party servers, any pop-up launching, use of stolen credit cards, credit card fraud, financial fraud, cryptocurrency fraud, cloaking, extortion, blackmail, kidnapping, rape, murder, sale of stolen credit cards, sale of stolen goods, offer or sale of prohibited and dual-use goods, offer or sale of controlled substances, identity theft, hacking, pharming, phishing, scraping in any form or scale, digital piracy, conduct distributed denial-of-service (DDoS) attacks, and other similar activities;
- use the Services for any military purpose, including cyber warfare, weapons development, design, manufacture, or production of missiles, nuclear, chemical or biological weapons;
- assault, interfere, gain unauthorized access, deny service in any way or form to any other network, computer, or node through our Services;
- exploit children in any way, including audio, video, photography, digital content, etc.;
- violate, infringe, or misappropriate our licensors and/or any other third parties' copyright, other intellectual property rights, privacy, or other legal rights;
- communicate, transmit, store, make available, share anything that is illegal, abusive, harassing, or otherwise objectionable;
- transmit any viruses or other computer codes, files, programs, instructions, or technological means that disrupt, damage, or interfere with the use of computers or related systems;
- attempt to circumvent any technological measure and/or arrangement implemented by us and/or our licensors, or by the owner of the resource or the source of the material that the technological measure protects;
- interfere with or disrupt the integrity or performance of the Service;
- take any action that imposes or may impose an unreasonable or disproportionately large load on our infrastructure;
- sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party the Services, Subscription, in any way;
- use any robot, spider, scraper, or other automated means to access our Services for any purpose without our prior written permission;
- build a product using similar ideas, features, functions, or graphics of the Service or copy any ideas, features, functions, or graphics of the Services;
- claim that you are the representative or agent of any of the Services, including any of its functionality;
- threaten, stalk, harm, or harass others, or promote bigotry or discrimination;
- attempt to gain unauthorized access to the Services, computer systems, or networks connected to the Services through hacking, password mining, brute force, or any other means;
- violate general ethical or moral norms, good customs, and fair conduct norms;
- use the Services for anything other than lawful purposes;
- consistently demonstrate unrespectful, threatening, offensive, and/or malicious behavior when communicating with our customer support and/or other employees;
- access and use the Services if you have been or are prohibited to access the Services, due to any reason;
- share non-public features or content of the Services with any third party;
- to the extent permitted under applicable law, otherwise violate or attempt to evade, or circumvent this Agreement.
- You also shall not take any action to jeopardize, limit or interfere in any manner with our ownership and rights with respect to the Services. Except and to the extent that this is expressly permitted by applicable law and this Agreement, you receive no right to and shall not yourself or enable others to:
- reproduce, modify, create derivative works from, distribute, make available over network, publicly display, or publicly perform the Services;
- reverse engineer, decompile, disassemble, decrypt the Software, or make any attempt to derive the code, trade secrets or other confidential information from the Services, Software, Websites;
- translate, adapt, arrange, or make any other alteration of the Services and reproduce the results thereof;
- transfer, distribute, lease, sublicense, or rent the Services, and/or your rights granted under the License to any third party;
- use the Services in any manner that is not expressly permitted pursuant to this Agreement;
- remove or modify markings or any notice of proprietary rights of the Services.
- You are responsible for obtaining and maintaining necessary devices for using our Services, including but not limited to downloading the necessary software onto your mobile phones and pads, and for device fees, including but not limited to Internet fees, data fees and electricity fees. You recognize that these fees are paid to third parties not relevant to this Agreement and shall not incur any liability of us under this Agreement.
- We may update our software, application, website as part of our Services from time to time, which may render our Services for a period of time for maintenance, revision, update, enhancement, releases.
- In the circumstance that our Software is in a “test period” or a “beta version” or circumstance of a similar nature, your access to our Services may be subject to specific rules, such as limited period or limited number of users to access to the Services, privilege of some users to access to the Services, free of charge, our reserved rights to modify or delete data of users, and irregular shut down of the Services servers. Please carefully read these rules and your cooperation and feedbacks upon our beta version of the Services are highly appreciated.
- Without prejudice to the generality of the foregoing, you agree and acknowledge that:
- we may from time to time without giving any reason or prior notice, upgrade, modify, alter, suspend, discontinue the provision of or remove, whether in whole or in part, the Services and shall not be liable if any such upgrade, modification, suspension or alteration prevents you from accessing the Services;
- the Services will use transmissions over the Internet which are never completely private or secure. You understand that any personal data, message or information which you send in the course of the use of the Software may be made public on the Services, and also read or intercepted by others. Use of the Services is entirely at your own risk;
- we shall have the right (but not the obligation) to remove or disable access to any content which we deem to be potentially defamatory of any person, unlawful, objectionable in any way, in violation of any third party rights, or for any reason whatsoever. Any editing or removal of any such content from the Services shall be without prejudice to our other rights and remedies available at law; and
- we shall have the right to at any time and from time to time:
- automatically update the websites as part of the Services and its components, add or remove functionalities, features or services (collectively, "Software Functions"), vary user account rights or impose user account restrictions, resource limits or fees or suspend or terminate Software Functions and/or user rights; and
- deny or restrict access to the Services or any Software Functions whether to any user or generally, or to block access from or to any resources, at any time, including in the event of a violation or alleged violation of this Agreement, your act or omission that causes harm to the Servies or its affiliates' brand, reputation or business as determined by Services in its sole and absolute discretion, without ascribing any reasons whatsoever,
and in any such event, you agree that no claims shall lie against us or our agents or our service providers in connection therewith.
- To the maximum extent permitted by law, you irrevocably agree and acknowledge that:
- although we endeavor to provide reliable Services, you expressly understand and acknowledge that OUR SERVICES, AS WELL AS THE WEBSITES, SOFTWARE, APPLICATIONS AND INFORMATION, AREPROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITH ALL FAULTS AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF CONDITION, UNINTERRUPTED USE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, RELIABILITY OR BUG/ERROR/DEFECT-FREE. We do not warrant the accuracy, adequacy or completeness of the Services (together with any Software Functions, or other content or information provided via the Services), and expressly disclaim liability for errors or omissions in the Services (together with any Software Functions, or other content or information provided via the Services; and
- we do not warrant that the Software will meet your requirements, that the operation of the Services will be uninterrupted or error-free, or that defects in the Services will be corrected. Without prejudice to the foregoing, we doenot warrant and hereby disclaims any representation, warranty or term with respect to the Services, whether express, implied or statutory, including but not limited to: (a) merchantability, satisfactory quality, fitness for a particular purpose, title, accuracy, quiet enjoyment, and non-infringement of third party rights, or as to the accuracy, correctness, reliability, timeliness, non-infringement of or compliance with any laws, regulations and/or third party rights in connection with the Services; (b) the Services being uninterrupted or error-free, or that defects will be corrected or that the Services and any related computer system is and will be free of all viruses and/or other harmful elements; (c) the Services will at all times be available and/or accessible; (d) non-interference with your enjoyment of the Services; and (e) the Services being compatible or working with any third party software, applications or third party services.
- Without limiting our liabilities expressly set forth herein or required by the applicable laws, you expressly understand and agree that, to the maximum extent permitted by law,
- WE OR ANY OF OUR AFFILIATED COMPANIES SHALL NOT BE LIABLE FOR ANY CLAIM, DAMAGE OR LOSS OF ANY KIND OF ANY NATURE WHATSOEVER CAUSED AND HOWSOEVER ARISING AS A RESULT (DIRECT OR INDIRECT) OF OR OTHERWISE IN CONNECTION WITH YOUR USE OF OR RELIANCE ON THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY CLAIM, DAMAGE OR LOSS SUFFERED (WHETHER INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL) AS A RESULT OF OR IN CONNECTION WITH OR IN RELIANCE OF (I) THE INABILITY TO USE OUR SERVICES, AND/OR RELATED SERVICES; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM OUR SERVICES, AND/OR RELATED SERVICES; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY IN OUR SOFTWARE, AND/OR RELATED SERVICES; (V) ANY CONTENT OR ANY OTHER INFORMATION MADE AVAILABLE OR ACCESSED ON OR THROUGH THE SOFTWARE; (VI) ANY INFRINGEMENT OF ANY RIGHTS ARISING IN CONNECTION THEREWITH OR (VI) ANY OTHER MATTER RELATING TO OUR SOFTWARE, AND/OR RELATED SERVICES, INCLUDING WITHOUT LIMITATION ANY LOSS OF DATA, PROFITS, GOODWILL, ANTICIPATED SAVINGS, REPUTATION, BUSINESS OR BUSINESS OPPORTUNITY, REGARDLESS OF THE CAUSE THEREOF AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY THEREOF;
- WITHOUT PREJUDICE TO THE GENERALITY OF THE FOREGOING, WE SHALL NOT BE LIABLE FOR ANY DAMAGES RESULTING FROM DOWNLOADING, INSTALLING, USING ANY DERIVATIVE SOFTWARE OF OUR SOFTWARE UNAUTHORIZED OR NOT PUBLISHED BY US;
- IN NO EVENT SHALL WE BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, CORRUPTION OR LOSS OF DATA, FAILURE TO TRANSMIT OR RECEIVE ANY DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SOFTWARE, HOWSOEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; and.
- IN NO EVENT SHALL OUR AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE TOTAL FEES PAID BY YOU TO US DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO THE TIME SUCH CLAIM AROSE.
6 Breach and Indemnification
- You agree, at your own expense, to indemnify, defend, and hold harmless us, its parents, subsidiaries, and affiliates and their officers, directors, employees, agents, distributors, and licensees from and against any judgments, losses, deficiencies, damages, liabilities, costs, claims, demands, suits, and expenses (including, without limitation, reasonable attorneys' fees, expert witness fees, and expenses) incurred in, arising out of or in any way related to (i) your breach of this Agreement; (ii) your use of the Services; (iii) your violation of any applicable laws, rules, and regulations; or (iv) your negligence or willful misconduct. We shall not be responsible for any delay or disruption to your use of the Services, including any damages stemming therefrom, caused by circumstances falling under this clause. Intellectual property
- The Services and our associated logos and names are our trademarks and/or service marks. Other marks, names and logos used in the Services, are the trademarks, service marks or logos of their respective owners. You are granted no right or license with respect to any of the aforesaid trademarks, service marks or logos.
- Subject to your continuing compliance with the terms and conditions of this Agreement and any applicable posted guideline or rules, we hereby grant you a limited, revocable, non-sublicensable, non-transferable and non-exclusive license to use and reproduce our Work solely for your personal use in connection with our software as part of the Services. All other rights not expressly granted to you are reserved onto us. Unless expressly set forth herein, you may not otherwise reproduce (other than incidental reproduction required to run the Software on your device), distribute, disseminate to the public, make available, adapt, publicly perform, or publicly display our Work or any adaptations thereof. The license granted herein will automatically terminate in the event of your breach of this Agreement.
- The software as part of the Services, used pursuant to this Agreement is licensed, not sold or transferred and no title to or ownership of any copy, or of the software itself, or any part of the Services are passed on. You receive no rights to any intellectual property of the Services or any software other than those specifically granted in clause 7.2. above. We and/or our licensors retain all right, titles and interest in and to the Services (and software, websites, and any portion thereof). All rights are reserved unless otherwise explicitly expressed.
- The above information may be provided by you to us or our platform partners (such as Google Play Store and Apple App Store) when you: (1) download the Services from our platform partners; (2) request technical service support; (3) make payment or subscribe to use the Services; or (4) subscribe to newsletters or updates; within the software of our Services or any related services.
- We collect those information that are necessary to deliver the Services. Information collected under this provision will be only used for:
- Provision of our Services to users;
- Enhancement of user experience and further development of our Services ;
- Identification of the most popular part of our Services and estimation of our marketing initiatives;
- Notification of the Services updates to users.
- Under and only under the following circumstance, information collected under this provision will be disclosed to the designated third parties:
- For the purpose set forth above, our affiliates or sub-contractors may be commissioned to process such information, provided that such affiliates or sub-contractors comply with terms and conditions hereunder.
- We may also disclose such information (i) as you required; (ii) a regulatory requirement, judicial proceeding, court order or legal process served on us; or (iii) to protect the safety, health, right, or property of others, public or ourselves.
- We will safely manage the information provided by you with reasonable care and comply with the applicable laws and regulations.
- The software of our Services may contain links to many other web sites or applications, users shall read the corresponding privacy policies carefully in the access to those web sites or applications. We will not be responsible for the acts of such websites or applications.
- Tax. Prices of our Services are displayed to you exclusive of taxes. Following identification of your choosing of tax residence country, tax (e.g., sales tax, value-added tax or another mandatory tax under laws applicable to you) are calculated accordingly.
- Payments. You agree to pay us for any paid Services you buy from us, as well as all other charges incurred for using the Services, including applicable taxes and fees associated with your purchase of the Services. We may suspend or cancel the Services if we do not receive a full payment from you on time which may result in a loss of access to the Services by you or the use of your Services is suspended in accordance with this Agreement.
- Subscriptions. When you purchase the Services on a subscription basis (e.g., monthly, annually, or otherwise), you agree that (i) Services will auto-renew until you cancel it, (ii) you are authorizing recurring payments, and (ii) payments will be made to us by the method and at the recurring intervals you have agreed to. To cancel the subscription or stop auto-renew to our Services, please change your payment preference in the account of the relevant platform partners where you downloaded the Service or email us at email@example.com.
- Payment Providers. Payment and Subscriptions are processed by our platform partners (such as Google Play Store and Apple App Store). We are notified by the aforenoted partners that payment or subscriptions related to your particular device the Services is downloaded have been cleared and the Services will then be ready and available for use.
- Change of Prices. We may at our reasonable discretion change the price of our paid Services, including subscription renewal prices, from time to time to reflect the changes of the total costs associated with our Services. Any changes to the pricing will not affect your current Subscription period and will become effective only upon the Subscription renewal. We will always send you a notification prior to charging with an upcoming payment amount. Subject to applicable law, (i) if you disagree with any proposed change of renewal price, your sole remedy is to cancel your subscription before the next charge is made, and (ii) your continued use of the Services without canceling the Subscription constitutes your agreement to pay the new renewal price for the Services.
- No Refunds. The are no refunds available for the Services. We have no liability to you or to any third party for any claims or damages that may arise as a result of any payments or transactions that you conduct in via the Services.
- Promotional Codes. We may offer certain promotional codes, referral codes, discount codes, coupon codes or similar offers ("Promotional Codes") that may be redeemed for discounts on future Services or subscription to the Services, or other features or benefits related to the Services, subject to any additional terms that we establish. You agree that Promotional Codes: (a) must be used in a lawful manner; (b) must be used for the intended audience and purpose; (c) may not be duplicated, sold or transferred in any manner, or made available by you to the general public (whether posted to a public forum, coupon collecting service, or otherwise), unless expressly permitted by us; (d) may be disabled or have additional conditions applied to them by us at any time for any reason without liability to us; (e) may only be used pursuant to the specific terms that we establish for such Promotional Codes; (f) are not valid for cash or other credits or points; and (g) may expire prior to your use.
9 Governing law and Jurisdiction
Your access and use of the Services as well as this Agreement shall be governed by Singapore law. this Agreement shall be governed by the laws of the Republic of Singapore, as an agreement wholly performed, negotiated and executed therein without regard to the Republic of Singapore’s conflict of law rules. Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre (“SIAC”) in accordance with the Arbitration Rules of the Singapore International Arbitration Centre ("SIAC Rules") for the time being in force, which rules are deemed to be incorporated by reference in this clause. The seat of arbitration shall be Singapore. The Tribunal shall consist of 1 arbitrator. The language of the arbitration shall be English.
You agree that we may transfer all or a part of our rights or obligations under this Agreement to a third party upon prior notice to you.
- Entire agreement.
This Agreement sets forth the entire agreement between you and us, and supersedes and replaces any and every other prior or contemporaneous agreement, understanding or negotiation that may have existed between you and us.
If, but only to the extent that, any provision of this Agreement is declared or found to be illegal, unenforceable, or void, then both you and us shall be relieved of all obligations arising under that provision, it being the intent and the agreement of you and us that this Agreement will be considered to be amended by modifying the provision to the extent necessary to make it legal and enforceable while preserving its intent. If that is not possible, it shall be substituted with another provision that is legal and enforceable and achieves the same objective. If the remainder of this Agreement is not affected and is capable of substantial performance, then the remainder shall be enforced to the extent permitted by law.
- Waivers of our rights
The failure of us to enforce at any time or for any period of time any of the provisions hereof shall not be construed to be a waiver of such provision or of the right of us thereafter to enforce each such provision. No waiver of any term or condition of this Agreement shall be valid or binding on us unless the same shall have been set forth in a written document, specifically referring to this Agreement and duly signed by us.
- Rights of Third Parties
A person who is not a party to this Agreement shall have no right to enforce or enjoy the benefit of any term of this Agreement under the Contracts (Rights of Third Parties) Act 2001. Notwithstanding any term of this Agreement, the consent of any person who is not a party to this Agreement is not required to rescind or vary this Agreement at any time.
- Cumulative Remedies
The rights and remedies provided in this Agreement are cumulative and not exclusive of any other right or remedies (whether provided by law or otherwise).
- Force Majeure
Save as is otherwise specifically provided in the Agreement, we shall not be liable for failures or delays in performing our obligations hereunder arising from any cause beyond our reasonable control, including without limitation, acts of God, outbreak of hostilities, civil disturbance, acts of civil or military authority, fires, strikes, lockouts or labour disputes or industrial action of any kind, epidemics, governmental restrictions, wars, terrorist acts, riots, explosions, fire, earthquakes, storms, typhoons, floods and breakdowns in electronic and computer information and communications systems, and in the event of any such delay, the time for our performance shall be extended for a period equal to the time lost by reason of the delay and any additional recovery time required by us.
- Contact Us
If you have any further questions this Agreement or the privacy practices of us, please contact us via the contact information in the Software or on the official website of the Software.
11 Regional Terms
- Regional Terms
You agree to the following modifications to this Agreement if you are a citizen or habitual resident of the applicable country or region as described below.
- United States
If you are a citizen or habitual resident of the United States, this Section 12.2 applies to your use of the Services and overrides any terms of this Agreement that conflict with this Section 12.2 to the extent of such conflict, including Section 10.
- Informal Process First
You agree that in the event of any dispute between you and us, you will first contact us and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation, any court action.
- Arbitration Agreement and Class Action Waiver
After the informal dispute resolution process, any remaining dispute, controversy, or claim (collectively, "Claim") relating in any way to your use of our services and/or products, including the Game, will be resolved by arbitration, including threshold questions of arbitrability of the Claim. Both parties agree that any Claim will be settled by final and binding arbitration, using the English language, administered by JAMS under its Comprehensive Arbitration Rules and Procedures and the JAMS Consumer Minimum Standards (together, the "JAMS Rules") then in effect (those rules are deemed to be incorporated by reference into this section, and as of the date of this Agreement). Arbitration will be handled by a sole arbitrator in accordance with the JAMS Rules. Judgment on the arbitration award may be entered in any court that has jurisdiction. You have a right to have the arbitration conducted via telephone, or as an in-person hearing in your hometown area (if you live in the United States) or another location that is reasonably convenient to you.
- Waiver of Class Actions and Class Arbitrations
Both parties agree that each party may bring Claims against the other party only in an individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding, including without limitation federal or state class actions, or class arbitrations. Accordingly, under the arbitration procedures outlined in this section, an arbitrator shall not combine or consolidate more than one party’s claims without the written consent of all affected parties to an arbitration proceeding. Without limiting the generality of the foregoing, both parties agree that no dispute shall proceed by way of class arbitration without the written consent of all affected parties.
- Costs of Arbitration
Payment for any and all reasonable JAMS filing, administrative and arbitrator fees will be in accordance with the JAMS Rules. If the value of your claim does not exceed $1000, we will pay for the reasonable filing, administrative and arbitrator fees associated with the arbitration, unless the arbitrator finds that either the substance of your claim or the relief sought was frivolous or brought for an improper purpose, except that if you have initiated the arbitration claim, you will still be required to pay the lesser of $250 or the maximum amount permitted under the JAMS Rules for arbitration claims initiated by you. You are still responsible for all additional costs that you incur in the arbitration, including without limitation, fees for attorneys or expert witnesses.
You have the right to opt-out and not be bound by the arbitration and waiver of class provisions set forth in this Agreement by sending written notice of your decision to opt-out to [firstname.lastname@example.org]. The notice must be sent to us within thirty (30) days of your registering to use the Service or agreeing to this Agreement (or if this Section 12.7is amended hereafter, within thirty (30) days of such amendment being effective), otherwise you shall be bound to arbitrate disputes in accordance with this Agreement, and the notice must specify your name and mailing address. If you opt-out of these arbitration provisions, We also will not be bound by them.
Notwithstanding anything in this Agreement to the contrary, you may instead assert your Claim in "small claims" court, but only if your Claim qualifies, your Claim remains only in such court, and your Claim remains on an individual, non-representative and non-class basis. Further, both parties will have the right to bring an action in a court of proper jurisdiction for injunctive or other equitable or conservatory relief, or if the Claim relates to intellectual property infringement or misappropriation.
- Governing Law; Venue
Were this Section 12 applies, this Agreement is governed by the laws of the State of New York, without regard to conflict of laws rules, and the proper venue for any disputes arising out of or relating to any of the same will be the arbitration venue set forth in this Section 12.2, or if arbitration does not apply, then the state and federal courts located in Los Angeles county, California. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or construction of this Agreement.