Updated October 30, 2015
Thank you for enrolling in Esportsify, a web-based service at [www.esportsify.com] (“Website”) provided by Ryze Software, Inc. In this User Agreement, you will find important information about your Services, including our ability to make changes to the Services or to this User Agreement, our liability if for any reason the Services do not operate as we hope, and how any disputes between you and us or our Suppliers must be resolved through private confidential binding arbitration, and in this Agreement, you waive any and all rights to bring or participate in any class action claim or multiple plaintiff claim of any type.
By executing this Agreement, you accept that you will only use or access Esportsify responsibly, for your own personal purpose, and only in the manner permitted in this Agreement.
HOW TO ACCEPT THIS AGREEMENT
You accept this Agreement by:
Agreeing in writing through accepting this Agreement in the Website, via e-mail or otherwise by executing this Agreement or activating the Services.
When you accept, you are representing that you are at least 13 years old and are legally able to accept an agreement. If you're accepting for an organization, you are representing that you are authorized to bind that organization, and where the context requires, "you" means the organization. By accepting you are agreeing to every provision of this Agreement whether or not you have to read it.
HOW AND WHEN CAN I RAISE A DISPUTE?
You can dispute your bill or any aspect of the Services that you reasonably believe violate this Agreement or your rights within 180 days of discovering the violation.
YOU MAY CALL US TO CONDUCT YOUR DISPUTE OR QUESTION ANY SERVICE(S), BUT IF YOU WISH TO PRESERVE YOUR RIGHT TO BRING AN ARBITRATION REGARDING SUCH DISPUTE, YOU MUST RAISE THE DISPUTE AS SET FORTH IN SECTION 13.3, WITHIN THAT 180–DAY PERIOD. IF YOU DO NOT RAISE A DISPUTE AS SET FORTH IN SECTION 12.3 WITHIN THAT 180-DAY PERIOD, YOU WILL HAVE WAIVED YOUR RIGHT TO RAISE THAT DISPUTE AND TO BRING AN ARBITRATION.
Please execute this Agreement by clicking the button labeled “I ACCEPT” on the Website version, or according to our instructions if executed by e-mail, paper or other means. If you refuse to accept the terms and conditions of this Agreement, you will not be able to use the Services.
You should print a copy of this Agreement or save it in some manner for your future reference.
Every time you use our Services, please refer to the most current version of this Agreement made available on the Website to ensure you understand the terms which will apply at that time. This Agreement was most recently updated on September 24, 2015.
This Agreement is only in the English language.
Information about us
Esportsify is a corporation registered in Delaware, located at 17250 Sunset Boulevard, Unit 113, Pacific Palisades, CA 90272 which operates the Website.
Notice under this Agreement may be made only pursuant to Section 16.3. Except as otherwise expressly set forth in this Agreement, to contact us, please see our Contact Us page at our Website.
The Services provided by Esportsify to users of the Services (“Users”) include the ability to create an individualized profile page that is visible to other Users; view content produced by Site Creators (defined below); subscribe to channels on the Website developed by Site Creators to view additional content; subscribe to and receive communications from the Site Creators; the ability to comment on content created by the Site Creators; interact on message forums with other Users; and receive access to a customized menu that recommends additional content based on your preferences.
All of your activity involving the Services is governed by this Agreement.
b. Third Party Developers. The Website is a platform that we plan to have open to other third party developers, who will be permitted to offer you additional functionality and services of their own, at your own risk the third party developers’ own responsibility.
c. Site Creators are Third Party Beneficiaries to this Contract. By using this Website, you acknowledge that the Site Creators receive the benefits of this Agreement and are third party beneficiaries for purposes of Section 12 of this Agreement.
Site Creators. Some Users have the ability to create sites on Esportsify (“Site Creators.”) The Services are available to Site Creators. In addition, Site Creators can create their own site on Esportsify or use one that Esportsify has created on its behalf. Esportsify provides Site Creators with a Content Management System (“CMS”) to add and manage content subject to the terms of the Agreement. Site Creators have the ability to integrate social network profiles into their sites on Esportsify and communicate with other Users. Site Creators have access to third party services that they may choose to integrate into their sites on Esportsify. Services provided to Site Creators are subject to the Agreement.
Esportsify grants to Site Creators a non-exclusive license to use Esportsify’s trademarks only in accordance with Esportsify’s guidelines. Site Creators must provide Esportsify with a specimen to review for each and every use of the Esportsify trademark. Esportsify can accept or reject the Site Creator’s use of Esportsify’s trademark in its own discretion.
Esportsify Maintains Control of Website. Esportsify controls the Website, including all sites created on Esportsify by the Site Creators. Esportsify may post advertisements throughout the Website, including on sites created by Site Creators. Esportsify will not provide any form of compensation to Site Creators for any reason.
Third Party Sales on Esportsify. Esportsify will offer Site Creators the ability to sell various merchandise through the Website. As a Site Creator, you are solely responsible for all commercial activity, including but not limited to your own promotions, billing collections, fulfillment, and management of customer disputes.
Site Creators are Limited Third Party Beneficiaries to this Agreement. Site Creators receive the benefit of Section [xxx] in which you waive your claims against them, and to the extent that waiver is not enforced, Section 12 of this Agreement relating to mandatory arbitration. For the avoidance of doubt, Site Creators have no right to indemnification or from Esportsify or defense by Esportsify for any claims arising from content created by or enabled by Site Creators.
Your Account Password. As part of the process to access the Services as a User, you are required to create an account on the Website (“Account”) and to select a user name (“User Name”) and password (“Password.”) To change your Password, access the Website and use the forgotten password reset function. To protect your Account and to prevent unauthorized access to it, keep your Password confidential. You are responsible for any activity that happens on or through your Account. If you become aware of or suspect any unauthorized use of your Password or Account, please change your Password immediately and notify us immediately. If we believe that there has been unauthorized access to your Account, we reserve the unilateral right to suspend or discontinue any and all Services, or your Account, in which event we will endeavor to notify you.
The dashboard section of the Website (“Dashboard”) provides information about your Account. Be advised, the Dashboard provides summaries only. For the actual information regarding your Services , please refer to your “Payments History” on the Website. Any future dates or forward-looking statements on the Dashboard or elsewhere on the Website are only informal, non-binding estimates, and you should not rely upon them for any purpose.
Release. If you have a dispute with one or more Users, you release us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes, whether known or unknown, actual or contingent which you ever had or will have. This release is full and final and will apply to all unknown and unanticipated claims arising out of or in any way connected with any dispute that may arise between you and the released parties. You waive your rights under California Civil Code Section 1542 and similar law of any other jurisdiction relating to general waivers of claims, as set forth in Section 9.2(b).
Use of the website
User Generated Content. Content posted on the Website that is generated by Users, including User-submitted ratings and reviews and User-submitted text, artwork, photographs, product ideas, video, audio, and images (“User
Generated Content”) is subject to the following restrictions and notifications:
User Generated Content.. You understand that like any User Generated Content, your own User Generated Content may be accessed and viewed by others, including by the general public, and, whether or not the User Generated Content is published, Esportsify does not guarantee any confidentiality with respect to any User Generated Content. You are solely responsible for your own User Generated Content and the consequences of publishing it on the
For clarity, Esportsify obtains the following license but does not claim ownership of your User Generated Content. By submitting User Generated Content, you grant to Esportsify an unrestricted, nonexclusive, perpetual, royalty-free, transferable and irrevocable license and right, throughout the universe, to use, edit, alter, change, condense, copy, reproduce, disclose, display, publish, remove, prepare derivative works from, perform, distribute, exhibit, broadcast, or otherwise exploit the User Generated Content, in whole or in part, in any form, media or technology, now known or hereafter developed including, without limitation, broadcast and cable television or transmission by wire or wirelessly, and the internet, for any purpose whatsoever including, without limitation, advertising, promotion, entertainment or commercial purposes, without any payment and without any further authorization by you. Under this license, Esportsify is free to use any ideas or concepts contained in the User Generated Content without further attribution, compensation or notice to you.
Prohibited Uses of Website and Services. You will not post, transmit, redistribute, upload, promote, or otherwise make available any communications, content or materials that:
Contain corrupted files, viruses, or any other similar software files, the intent of which is to damage the operation of another’s computer;
Are unlawful, threatening, harassing, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, sexually explicit, hateful, profane, indecent, racially or ethnically derogatory, or otherwise objectionable;
Contain any software viruses, unsolicited advertising, promotional materials, or other forms of solicitation to other Users, individuals or entities;
Contain email addresses, first and last names, URLs, phone numbers, physical addresses, or other forms of personal contact information;
Impersonate any person, business or entity, including our company and our employees and agents;
Encourage conduct that would constitute a criminal offense;
Give rise to civil liability;
Otherwise violate any law (including, but not limited to, those governing consumer protection, unfair competition, anti-discrimination or false advertising); or
Amount to any conduct that, in the judgment of Esportsify, restricts, impairs, interferes with or inhibits any other User from using or enjoying the Sites and/or our related services and products.
Esportsify May Delete or Abridge. You disclaim and waive and agree that you have no moral rights in the User Generated Content. Esportsify is entitled to delete or abridge any User Generated Content to comply with this
Agreement or with law, and by doing so, may not be later construed to be the author, publisher or in any other way responsible for the User Generated Content.
Esportsify May Review User Generated Content. Esportsify may choose to review publicly posted or shared content and remove or redact any User Generated Content that Esportsify or anyone may find obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable. But you acknowledge that Esportsify has no obligation to monitor any information on the Website. And any such action that Esportsify takes does not make us the publishers or in any way responsible for any of the User Generated Content.
User Access to User Generated Content. You understand that by using the Website you may be exposed to User Generated Content that is offensive, indecent or objectionable to you. Under no circumstances will Esportsify be liable in any way for any User Generated Content, including, without limitation, for any errors or omissions in any User Generated Content, or for any loss or damage of any kind incurred by you as a result of the use of any User
Generated Content transmitted, uploaded, posted, e-mailed or otherwise made available via the Website.
User Responsibility for Protecting User Generated Content. You, and not Esportsify, are responsible for maintaining, protecting and backing up all of your User Generated Content. Esportsify makes no promise to protect, save or back up any User Generated Content, including yours. Esportsify will not be liable for any loss or corruption of your User Generated Content, or for any costs or expenses associated with backing up or restoring any of your User Generated Content, even if we cause the loss or corruption.
Feedback. By submitting to us suggestions or other feedback regarding our Services and Website (“Feedback”), you agree that we can use and share (but do not have to) that feedback for any purpose without compensation to you.
Use of Our Services
Necessary Hardware/Software. Unless otherwise provided, you are responsible for providing the hardware and software necessary to access our Services and for ensuring such hardware and software is capable of accessing the Website and using our Services, and you will bear all costs associated with the acquisition and maintenance of such hardware and software. We do not guarantee the functionality of our Services or the Website on any hardware or software. We will not be responsible or liable for any errors or failures from any malfunction of your hardware or software.
Restrictions on Use
Restrictions on Use. You will not use our Services or the content or information delivered through our Services to conduct any business or activity or solicit the performance of any activity for any illegal, fraudulent, unauthorized or improper purpose. You will comply with all applicable constitutions, laws, ordinances, principles of common law, codes, regulations, statutes or treaties and all applicable orders, rulings, instructions, requirements, directives or requests of any courts, regulators or other governmental authorities in connection with your use of our Services.
Your Promises. You agree that you will not attempt to: (a) access any Software or part of our Services for which your use has not been authorized; or (b) access or use or attempt to access or use another User’s account; or (c) interfere in any manner with the provision of our Services or Software, the security of our Services of Software, or other Users, or otherwise abuse our Services or Software.
Our Remedies. If we have reason to believe that you have engaged in any of the prohibited or unauthorized activities described in this Agreement or have otherwise breached your obligations under this Agreement, we may: (a) terminate, suspend or limit your access to or use of your Account or our Services; (b) terminate or suspend this Agreement; (c) withhold the distribution of any Customer Portions to you; (d) notify law enforcement, regulatory authorities, impacted third parties and others as we deem appropriate; (e) refuse to provide our Services to you in the future; and (f) take legal action against you.
Definition. “Technology” means our or our Suppliers’ computer programs, literary works, audiovisual works, all other original works of expression, methods, apparati and processes that we publish, distribute, use or otherwise exploit to facilitate your use of our Services, and includes without limitation our Software, software tools, user interface designs, and any derivatives, improvements, enhancements or extensions thereof developed or provided by us or our Suppliers and used in the provision of our Services.
Ownership. This Agreement does not transfer to you any ownership or proprietary rights in the Technology or any work or any part thereof, and all right, title and interest in and to the Technology will remain solely with us or our Suppliers. You are not purchasing title to any Technology. If you are approved to use our Services, you are permitted to use Technology only as enabled and attended through your Account at the Website and only during the term of this Agreement. That permission is for the sole purpose of enabling you to use our Services in the manner permitted by this Agreement. Your rights under this Agreement are not transferable to any other person absent our prior express written consent.
Restrictions on Use. You will not copy Technology or use Technology independently other than as set forth above, and we grant you no license, whether express or implied, in any copyright, patent or any other intellectual property rights embodied in Technology.
How we use your personal information
Changes to this Agreement
changes in how we accept payment from you;
changes in how we interact or communicate with you;
changes in any relevant law;
changes in the financial viability (to be decided at our sole discretion) of the Services;
occurrence of an Event Beyond Our Control (defined in Section 13.1); and
changes in law applicable to the Services.
Notice of Changes. We will notify you of any Changes in one of the following ways, in our sole discretion: (a) sending an email; or (b) providing notice when you log in to your Account or otherwise use our Services. Unless otherwise provided, notice of any Changes will be given to you at least seven days before the effective date of such Changes. Notice of any Changes will be considered to have been given to and received by you on the third day after such notice was provided or made available to you, unless you provide notice by email rejecting those changes to email@example.com] including the words, “I REJECT THE NEW TERMS” in the subject line. If you do not reject the Changes in that way, then you are deemed to have accepted them. If you do reject the Changes, then Esportsify may, in its sole discretion either (i) take no action in which event the Agreement continues unchanged with respect to your then-existing Services, or (ii) terminate any of your affected Services.
Application of Changes. Unless otherwise provided by this Agreement or applicable law, Changes will only apply after their effective dates and will not apply retroactively.
Changes Made for Legal Reasons. Notwithstanding Sections 10.1 and 10.2, Changes made for legal reasons, including but not limited to Changes to comply with any relevant laws, will be effective immediately. We will contact you as soon as reasonably possible to notify you of such Changes.
Our liability to you is limited
Nothing in this Agreement limits or excludes our liability for:
death or personal injury caused by our negligence; or
fraud or fraudulent misrepresentation.
WAIVER OF CLAIMS AGAINST THE COMPANY’S SUPPLIERS.
We are your only obligor under this Agreement, and in relation to providing you the Services. YOU HEREBY VOLUNTARILY, IRREVOCABLY, AND UNCONDITIONALLY RELEASE, ACQUIT, AND FOREVER DISCHARGE AND
FULLY WAIVE YOUR RIGHT TO BRING ANY TYPE OF LAWSUIT, LEGAL ACTION, CHARGE, DEMAND, COMPLAINT OR CLAIM OF ANY TYPE AGAINST ANY OF OUR SUPPLIERS, SITE CREATORS OR ANYONE OTHER THAN Esportsify, RELATING TO THE SERVICES.
Accordingly, you also waive all rights under Section 1542 of California’s Civil Code (“Section 1542”), and similar law of any other jurisdiction relating to general waivers of claims. And you understand that Section 1542, whose benefit you now waive, provides:
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.
In some jurisdictions, this waiver of claims against our Suppliers may not be enforceable. To the extent that is the case, the provisions of this Agreement that limit our liability or disclaim warranties also apply to our Suppliers.
Inability to Perform. Except as otherwise provided by nonwaivable, nondisclaimable applicable law or the express provisions of this Agreement, we will not be liable for our inability to perform our obligations under this Agreement if we have taken reasonable precautions and exercised the diligence required by the circumstances when our inability to perform is the result of an Event Outside Our Control (defined below).
Other Disclaimers of Liability. Except as otherwise provided by nonwaivable, nondisclaimable applicable law or the express provisions of this Agreement, we will not be liable for any losses or damages caused by: (a) your misconduct, errors or negligence, including your failure to comply with the terms of this Agreement; (b) an act or failure to act of any person not directly within our control; (c) your failure to report unauthorized access of your Account or (d) your misuse of our Services.
You understand and agree that your use of the Services is at your own sole risk.
WE PROVIDE THE SERVICES "AS IS" AND WITHOUT WARRANTY BY US, OUR AGENTS, EMPLOYEES, PARENTS, SUBSIDIARIES, AFFILIATES, LICENSORS, MARKETERS ADVERTISERS OR SUPPLIERS (THE "OTHER ENTITIES"), AS APPLICABLE, AND, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, WE AND THE OTHER ENTITIES EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OF NONINFRINGEMENT OF THIRD PARTY RIGHTS.
THERE IS NO WARRANTY, WHETHER BY US OR THE OTHER ENTITIES, THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT YOUR ACCESS TO THE SAME WILL BE UNINTERRUPTED OR ERROR-FREE, OR REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES OR WITH RESPECT TO PERFORMANCE, ACCURACY, RELIABILITY, SECURITY CAPABILITY, CURRENTNESS OR OTHERWISE.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY PERSON SHALL CREATE A WARRANTY IN ANY WAY WHATSOEVER RELATING TO US OR THE OTHER ENTITIES, AS APPLICABLE.
UNDER NO CIRCUMSTANCES WILL WE OR THE OTHER ENTITIES BE LIABLE FOR ANY UNAUTHORIZED USE OF THE SERVICES OR YOUR ACCOUNT.
UNDER NO CIRCUMSTANCES WILL WE OR THE OTHER ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF YOUR INFORMATION, AND THE LIKE), WHETHER BASED ON CONTRACT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT, OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE MARKETING OR PURCHASE OF THE SERVICES OR ANY USE OR INABILITY TO USE THE SERVICES, EVEN IF WE OR THE OTHER ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. TO THE EXTENT THAT IN A PARTICULAR CIRCUMSTANCE ANY DISCLAIMER OR LIMITATION ON DAMAGES OR LIABILITY SET FORTH HEREIN IS PROHIBITED BY APPLICABLE LAW, THEN WE AND THE OTHER ENTITIES WILL BE ENTITLED TO THE MAXIMUM DISCLAIMERS OR LIMITATIONS ON DAMAGES AND LIABILITY AVAILABLE AT LAW OR IN EQUITY AND IN NO EVENT WILL THOSE DAMAGES OR LIABILITY EXCEED $100.
You agree to indemnify, defend and hold harmless us and our officers, employees, directors, Suppliers and agents, in their individual capacities or otherwise, from and against any third party claims, liability, damages or costs (including reasonable attorneys’ fees) arising from (a) your negligence; (b) any claim by a third party (“Third Party Claim”) alleging that your use of our Services or the Website violates the rights of any third party, or violates any law; (c) your failure to comply with the terms of this Agreement; (d) your violation of any applicable law; (e) your violation of any rights of a third party; or (f) your use of our Services.
Events outside our control
Definition. An “Event Outside Our Control” means any act or event beyond our reasonable control, including without limitation any act of God, strikes, lockouts or other industrial action by third parties, civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster, failure of public or private telecommunications networks, equipment failure, system failure, or material change to law.
Our Liability. We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations to deliver the Services that is caused by an Event Outside Our Control.
Effect. If an Event Outside Our Control takes place that affects the performance of our obligations to deliver Services, (a) we will contact you as soon as reasonably possible to notify you; and (b) our obligations to you will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control. Where the Event Outside Our Control affects our delivery of Services to you for a period of greater than six months (an “Extended Event Outside Our Control”) we shall have sole discretion to cease provision of the Services to you. .
How Do I Resolve Disputes About the Services?
We hope to please you with our Services, but if you encounter a problem, this section outlines how we and you agree to handle it. YOU AND WE AGREE TO RESOLVE DISPUTES ARISING UNDER, CONCERNING, OR
RELATING TO THIS AGREEMENT, ITS INTERPRETATION, ITS VALIDITY (INCLUDING ANY CLAIM THAT ALL OR ANY PART OF THIS AGREEMENT IS VOID OR VOIDABLE), ITS TERMINATION, OR ITS SUBJECT MATTER, THE MARKETING OR PURCHASE OF THE SERVICES OR ANY USE OR INABILITY TO USE THE SERVICES, WHETHER THEY ARE WITH US OR ANY OF OUR SUPPLIERS, INCLUDING SITE CREATORS,(TO THE EXTENT NOT WAIVED, AS SET FORTH IN SECTION 9.2) ONLY BY MANDATORY, FINAL, BINDING ARBITRATION PURSUANT TO THIS SECTION 12. THAT MEANS YOU ARE WAIVING THE RIGHT TO A TRIAL BY JUDGE OR JURY, SINCE THERE IS NONE IN ARBITRATION. IN ARBITRATION, THE PROCEDURES MAY BE DIFFERENT THAN COURT, BUT AN ARBITRATOR CAN AWARD YOU THE SAME DAMAGES AND RELIEF, AND MUST HONOR THE SAME TERMS IN THIS AGREEMENT, AS A COURT WOULD. YOU AGREE THAT IN SOME CASES, THE LAW PERMITS THE PREVAILING PARTY TO BE REIMBURSED FOR ITS ATTORNEYS FEES, AND THE SAME APPLIES TO DISPUTES THAT YOU RAISE IN ARBITRATION. WE ALSO BOTH AGREE THAT THE UNITED STATES FEDERAL ARBITRATION ACT APPLIES TO THIS AGREEMENT.
Arbitration of Disputes. Any controversy, claim, or dispute (“Dispute”) arising under, concerning, or relating to this Agreement, its interpretation, its validity (including any claim that all or any part of this Agreement is void or voidable), its termination, or its subject matter, the marketing or purchase of the Services or any use or inability to use the Services, whether the Dispute is with us or any or any Supplier, including without limitation any Site Creator, (to the extent not waived, as set forth above), whether the Dispute is for breach of contract, tort, or any other matter can only be resolved or adjudicated only by mandatory, final, binding arbitration pursuant to this Section
Raising a Dispute. To raise a Dispute, you must give us notice of the Dispute by sending an e-mail to firstname.lastname@example.org with the words “RAISING A DISPUTE” in the subject line), along with a written description of your Disputed claim, including any documents and information that you believe will help us understand your Dispute, and your requested resolution. In order to discuss the Dispute with you, you permit us (or the Disputed party) to contact you by phone, text message, email or physical mail through any and all addresses or phone numbers that you have provided. You must send us notice of any Dispute under this Section 13.3 within 180 days of your discovering the act or omission that gave rise to your Dispute. If you do not so notify us, then you lose your right to raise the Dispute
Resolution Offer. Within the first 30 days of your submitting your Dispute, we will have the right, but no obligation, to provide you with a proposed resolution of the Dispute (the “Offer”). If you are unsatisfied with the Offer, you must reject the Offer by notice to us within 14 days of the Offer. If you do not reject the Offer within at 14-day period, you will be deemed to have accepted it and forfeit your right to raise the Dispute. If we do not make the Offer within 30 days of your submitting your Dispute or if you reject an Offer as set forth above, either you or we may commence arbitration of the Dispute as set forth below.
JAMS Arbitration. Any Dispute that is not resolved as set forth above, may only be resolved by mandatory, final, binding arbitration by a single arbitrator, administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures (the “JAMS Rules.”) The arbitrability of any Dispute shall also be determined by the arbitrator.
Costs or Arbitration.
If the arbitrator’s award to you is greater than the Offer, then we will bear all of your costs of filing your Dispute with JAMS and all other administrative fees of JAMS and the fees and expenses of the arbitrator.
If you demonstrate to our reasonable satisfaction that you lack the financial means to front your share of the JAMS and arbitrator fees and expenses, then we will front those fees and expenses on your behalf, so that your Dispute may be adjudicated promptly. But ultimately, if the arbitrator does award you only the same or less than the Offer, you will be responsible to reimburse us for your fair share – one half – of the JAMS and arbitrator fees and expenses. Also, the arbitrator shall be entitled to award a different allocation of costs and fees where the arbitrator determines that a filed claim is frivolous.
Place and Language. The arbitration proceeding shall be conducted in the English language, in the United States, in the major metropolitan area designated by the person raising the Dispute. If that person raising the Dispute is not a United States resident, then the proceeding will be held in New York City, Los Angeles, California, or Miami, Florida at the election of the person raising the Dispute.
Award. Any award of the arbitrator shall be in writing and shall state the reasons for the award. Judgment upon an award may be entered in any court having competent jurisdiction. The decision of the arbitrator must be based upon this Agreement and applicable law. The decision of the arbitrator is final and binding except for fraud, misconduct, or errors of law, and judgment upon the decision rendered may be entered in any court having jurisdiction.
Waiver of Rights.
IT IS IMPORTANT THAT YOU READ THIS ARBITRATION CLAUSE. IT PROVIDES THAT YOU MAY BE REQUIRED TO SETTLE ANY CLAIM OR DISPUTE THROUGH ARBITRATION, EVEN IF YOU WOULD PREFER TO LITIGATE THE CLAIM IN COURT. YOU ARE GIVING UP THE RIGHTS YOU MIGHT HAVE TO LITIGATE SUCH CLAIMS BEFORE A JURY, TO ENGAGE IN DISCOVERY (EXCEPT AS MAY BE PROVIDED IN THE JAMS RULES), AND TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS THE RIGHT TO APPEAL THE ARBITRATOR’S AWARD, MAY NOT BE AVAILABLE IN ARBITRATION OR MAY BE MORE LIMITED. YOU SHOULD CONSULT LEGAL COUNSEL TO DETERMINE WHETHER THIS ARBITRATION CLAUSE IS APPROPRIATE FOR YOU. YOU CAN OPT OUT OF THE ARBITRATION BY FOLLOWING THE INSTRUCTIONS IN SECTION 12.11.
YOU UNDERSTAND THAT UNLESS YOU EXERCISE THE RIGHT TO OPT-OUT OF ARBITRATION IN THE MANNER DESCRIBED BELOW, YOU AGREE THAT ANY DISPUTE WILL BE RESOLVED BY BINDING ARBITRATION. ARBITRATION REPLACES THE RIGHT TO GO TO COURT, INCLUDING THE RIGHT TO HAVE A JURY, TO ENGAGE IN DISCOVERY (EXCEPT AS MAY BE PROVIDED IN THE ARBITRATION RULES), AND TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING. IN ARBITRATION, A DISPUTE IS RESOLVED BY AN ARBITRATOR INSTEAD OF A JUDGE OR JURY. ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN COURT PROCEDURES. YOU ALSO AGREE ANY ARBITRATION WILL BE LIMITED TO THE DISPUTE BETWEEN YOURSELF AND Esportsify AND WILL NOT BE PART OF A CLASS-WIDE OR CONSOLIDATED ARBITRATION PROCEEDING.
NO CLASS ACTIONS. EVEN IF APPLICABLE LAW, OR THE JAMS RULES OR THE ARBITRATOR OTHERWISE PERMITS CLASS ACTIONS OR CLASS ARBITRATIONS, THE DISPUTE RESOLUTION PROCEDURE SPECIFIED HERE APPLIES AND YOU AND WE EACH WAIVE ANY RIGHT TO PURSUE DISPUTES ON A CLASSWIDE BASIS – THAT IS -- TO EITHER JOIN A CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY, OR ASSERT A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING.
Right to Opt Out. If you do not wish to be bound by this Section 12, you must give us notice within 60 days after first entering into this Agreement by sending an email to email@example.com. Your email must include your user name and the words “ARBITRATION OPT OUT” in the subject line. Your request must include a clear statement of your intent, such as "I reject the arbitration clause stated in Esportsify’s User Agreement.”] Any purported rejection of this Section 12 after 60 days or other than in conformance with this Section 12.11 will not be effective.
Other important terms
The laws of the state of California will govern any disputes relating to the Services or these Terms, notwithstanding the conflicts of laws rules of California or any other jurisdiction.
Entire Agreement. This Agreement constitutes the entire agreement between you and us. You acknowledge that you have not relied on any statement, promise or representation made or given by or on behalf of us which is not set out in this Agreement.
Except as expressly provided otherwise in this Agreement, all notices, consents, waivers, and other communications under this Agreement must be: (a) in writing and (b) delivered by U.S. Postal Service Global Express Guaranteed (or substantially similar service of a non-U.S. governmental postal service), internationally recognized overnight delivery service (e.g. UPS) or e-mail. Absent fraud or manifest error, a receipt signed by the addressee or such addressee’s authorized representative, a U.S. Express Mail receipt, a signed delivery service confirmation or an e-mail confirmation of delivery will constitute proof of delivery. The actual receipt by the addressee of any notice will constitute delivery notwithstanding the failure to have complied with any provisions of this Section 16.3. Notice will be deemed to have been received on the date and time of the signed receipt or confirmation of its delivery or transmission, unless that receipt or confirmation date and time is not a business day or is after 5:00 p.m. local time on a business day, in which case such notice will be deemed to have been received on the next succeeding business day.
Notices to will be addressed to you at the address set forth by your signature below (or entered as part of your electronic acceptance of this Agreement) and, as to us, as follows:
Ryze Software, Inc.
17250 Sunset Boulevard, Unit 113
Pacific Palisades, CA 90272United States
or as set forth in any notice of change of address previously given to the other party by notice.
We may transfer or assign our rights and obligations under this Agreement to another entity, but this will not affect your rights or our obligations under this Agreement. We will always notify you in writing if this happens.
This User Agreement is between you and us, and you may not assign this User Agreement without written authorization from us. Any attempted assignment in violation of this Agreement will be void and of no effect.
Third Party Beneficiaries.
No other person, other than the parties to this Agreement, shall have any rights to enforce this Agreement, except that Suppliers may enforce Sections 10 and 13, as applicable.
If any provision of this Agreement is held to be invalid or unenforceable, including without limitation anything regarding the arbitration process, such provision will be struck from this Agreement only to the extent it is invalid or unenforceable. Unless otherwise provided, all other terms of this Agreement will remain in full force and effect.
If we fail to insist that you perform any of your obligations under this Agreement, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.
If there is a conflict between this Agreement and something stated by an employee or contractor of ours, whether before or after you enter into this Agreement, the terms of this Agreement will prevail.
Any terms of this Agreement which by their nature should survive will survive the termination of this Agreement.
By executing below, you acknowledge (a) that you have read and fully understand this Agreement, and (b) the truth of any representation you have capacity and authority to bind yourself or your organization to the terms of this Agreement.
Print Name Date
Customer Email Address
Customer Mailing Address