FAD MANIA, INC.
TERMS OF SERVICE
Please read this Agreement carefully to ensure that you understand each provision. This agreement contains a mandatory individual arbitration and class action/jury trial waiver provision that requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions.
Fad Mania provides mobile games.
This is a contract between you and Fad Mania. You must read and agree to the terms of this Agreement before using the Service; if you do not agree, you may not use the Service. You may use the Service only if you can form a binding contract with Fad Mania, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. [Any use of or access to the Service by anyone under 13 is strictly prohibited and in violation of this Agreement.] The Service is not available to any Users previously removed from the Service by Fad Mania.
- 2. Limited License
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Service, for your personal, noncommercial use only, and as permitted by the features of the Service. Fad Mania reserves all rights not expressly granted herein in the Service and the Fad Mania Content (as defined below). Fad Mania may terminate this license at any time for any reason or no reason.
- 3. The Gamebytes App
The Service is available on the Gamebytes App via a mobile device. To use the Gamebytes App, you must have a mobile device that is compatible with the Gamebytes App. Fad Mania does not warrant that the Gamebytes App will be compatible with your mobile device. You may use mobile data in connection with the Gamebytes App and may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges. Fad Mania hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Gamebytes App on one mobile device owned or leased solely by you, for your personal use. You may not: (i) modify, disassemble, decompile or reverse engineer the Gamebytes App, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Gamebytes App to any third party or use the Gamebytes App to provide time sharing or similar services for any third party; (iii) make any copies of the Gamebytes App; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Gamebytes App, features that prevent or restrict use or copying of any content accessible through the Gamebytes App, or features that enforce limitations on use of the Gamebytes App; or (v) delete the copyright and other proprietary rights notices on the Gamebytes App. You acknowledge that Fad Mania may from time to time issue upgraded versions of the Gamebytes App, and may automatically electronically upgrade the version of the Gamebytes App that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of this Agreement will apply to all such upgrades. Any third-party code that may be incorporated in the Gamebytes App is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Gamebytes App or any copy thereof, and Fad Mania or its third-party partners or suppliers retain all right, title, and interest in and to the Gamebytes App (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. Fad Mania reserves all rights not expressly granted under this Agreement. If the Gamebytes App is being acquired on behalf of the United States Government, then the following provision applies. The Gamebytes App will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, reproduction, release, performance, display or disclosure of the Service and any accompanying documentation by the U.S. Government will be governed solely by this Agreement and is prohibited except to the extent expressly permitted by this Agreement. The Gamebytes App originates in the United States, and is subject to United States export laws and regulations. The Gamebytes App may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Gamebytes App may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to the use of the Gamebytes App and the Service.
- 4. Additional Apple App Store Terms.
The following applies to the Gamebytes App and to any other Fad Mania mobile application you acquire from the Apple App Store (“Apple-Sourced Software”): You acknowledge and agree that this Agreement is solely between you and Fad Mania, not Apple, Inc. (“Apple”) and that Apple has no responsibility for the Apple-Sourced Software or content thereof. Your use of the Apple-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to Fad Mania as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the Apple-Sourced Software or your possession and/or use of the Apple-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to Fad Mania as provider of the software. You acknowledge that, in the event of any third-party claim that the Apple-Sourced Software or your possession and use of that Apple-Sourced Software infringes that third party’s intellectual property rights, Fad Mania, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You and Fad Mania acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement as relates to your license of the Apple-Sourced Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to your license of the Apple-Sourced Software against you as a third-party beneficiary thereof.
- 5. Syncing the Service with Third-Party Services
- 5. Push Notifications
You may control whether you receive push notifications on or through the Gamebytes App when you create your profile on the Gamebytes App. If you change your mind, you may change your push notification preferences by updating the settings on your mobile device.
- 6. Changes to the Service
We may, without prior notice, change the Service; stop providing the Service or features of the Service, to you or to Users generally; or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if, in our sole determination, you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement.
- 7. Disputes with Other Users
You are solely responsible for your interactions with other Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. Fad Mania shall have no liability for your interactions with other Users, or for any User’s action or inaction.
- 8. Service Location
The Service is controlled and operated from facilities in the United States. Fad Mania makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You agree to have your information collected and used in, and transferred to, the United States and Singapore. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.
2. User Content
Some areas of the Service allow Users to submit, post, display, provide, or otherwise make available content such as profile information, videos, images, music, comments, questions, and other content or information (any such materials a User submits, posts, displays, provides, or otherwise makes available on the Service is referred to as “User Content”).
We claim no ownership rights over User Content created by you. The User Content you create remains yours. However, you understand that certain portions of the Service may allow other Users to view, share, and/or otherwise interact with your User Content. By providing or sharing User Content through the Service, you agree to allow others to view, share, and/or interact with your User Content as permitted through the functionality of the Service and in accordance with this Agreement. Fad Mania has the right (but not the obligation) in its sole discretion to remove any User Content that is shared via the Service.
By submitting, posting, displaying, providing, or otherwise making available any User Content on or through the Service, you hereby grant, and you represent and warrant that you have all rights necessary to grant, to Fad Mania a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service and Fad Mania’s (and its successors’ and affiliates’) business, including, without limitation, for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each User of the Service a non-exclusive license to access your User Content through the Service[, and to use, reproduce, distribute, display and perform such User Content as permitted through the functionality of the Service and under this Agreement].
You agree not to post User Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, obscene, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) contains any falsehoods, misrepresentations, or misleading statements.
For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
In connection with your User Content, you affirm, represent and warrant the following:
You have the written consent of each and every identifiable natural person in the User Content, if any, to use such person’s name or likeness in the manner contemplated by the Service and this Agreement, and each such person has released you from any liability that may arise in relation to such use.
You have obtained and are solely responsible for obtaining all consents as may be required by law to post any User Content relating to third parties.
Your User Content and Fad Mania’s use thereof as contemplated by this Agreement and the Service does not and will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights.
Fad Mania may exercise the rights to your User Content granted under this Agreement without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise.
To the best of your knowledge, all your User Content and other information that you provide to us is truthful and accurate.
Fad Mania takes no responsibility and assumes no liability for any User Content that you or any other User or third party posts, sends, or otherwise makes available over the Service. You shall be solely responsible for your User Content and the consequences of posting, publishing it, sharing it, or otherwise making it available on the Service, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that Fad Mania shall not be liable for any damages you allege to incur as a result of, or relating to, any User Content.
3. Our Proprietary Rights
Except for your User Content, the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content belonging to other Users (the “Fad Mania Content”), and all Intellectual Property Rights related thereto, are the exclusive property of Fad Mania and its licensors (including other Users who post User Content to the Service). Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Fad Mania Content. Use of the Fad Mania Content for any purpose not expressly permitted by this Agreement is strictly prohibited.
You may choose to, or we may invite you to, submit comments or ideas about the Service, including, without limitation, about how to improve the Service or our products (“Ideas”). By submitting any Idea, including, without limitation, by posting on the Gamebytes App’s chat feature, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Fad Mania under any fiduciary or other obligation, and that we are free to use the Idea without any compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Fad Mania does not waive any rights to use similar or related ideas previously known to Fad Mania, or developed by its employees, or obtained from sources other than you.
The Service contains data, information, and other content not owned by you, such as reputational or status indicators, in-world currency, and/or fictional property representing virtual achievements (for instance, trophies or powers) (“Fad Mania Property”). You understand and agree that regardless of terminology used, Fad Mania Property represents a limited license right governed solely by the terms of this Agreement and available for distribution at Fad Mania’s sole discretion. Fad Mania Property is not redeemable for any sum of money or monetary value from Fad Mania at any time. You acknowledge that you do not own the profile you use to access the Service, nor do you possess any rights of access or rights to data stored by or on behalf of Fad Mania on Fad Mania servers, including, without limitation, any data representing or embodying any or all of your Fad Mania Property. You agree that Fad Mania has the absolute right to manage, regulate, control, modify and/or eliminate Fad Mania Property as it sees fit in its sole discretion, in any general or specific case, and that Fad Mania will have no liability to you based on its exercise of such right. All data on Fad Mania’s servers is subject to deletion, alteration or transfer. Notwithstanding any value attributed to such data by you or any third party, you understand and agree that any data, User history and Fad Mania Property residing on Fad Mania’s servers, may be deleted, altered, moved or transferred at any time for any reason in Fad Mania’s sole discretion, with or without notice and with no liability of any kind. Fad Mania does not provide or guarantee, and expressly disclaims, any value, cash or otherwise, attributed to any data residing on Fad Mania’s servers.
4. Technical Restrictions
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any medium, including, without limitation, by any automated or non-automated “scraping”; (ii) using any automated system, including, without limitation, “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to our servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that Fad Mania grants the operators of public search engines revocable permission to use spiders to copy publicly available materials from the Gamebytes Site for the sole purpose of, and solely to the extent necessary for, creating publicly available searchable indices of the materials, but not caches or archives of such materials); (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or may impose, at our sole discretion, an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Service; (vii) collecting or harvesting any personal information from the Service; (viii) using the Service for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Service; (xi) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (xii) bypassing the measures we may use to prevent or restrict access to the Service, including, without limitation, features that prevent or restrict use or copying of any content or enforce limitations on the use of the Service or the content therein.
Accessing any audiovisual content that may be available on the Service for any purpose or in any manner other than Streaming (as defined below) is expressly prohibited unless explicitly permitted by the functionality of the Service. “Streaming” means a contemporaneous digital transmission of an audiovisual work via the Internet from the Service to a User’s device in such a manner that the data is intended for real-time viewing and not intended to be copied, stored, permanently downloaded, or redistributed by the User.
Fad Mania cares about the integrity and security of your personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
7. DMCA Notice
Since we respect artist and content owner rights, it is Fad Mania’s policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify Fad Mania’s copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
1. An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
2. Identification of the copyrighted work that you claim has been infringed;
3. Identification of the material that is claimed to be infringing and where it is located on the Service;
4. Information reasonably sufficient to permit Fad Mania to contact you, such as your address, telephone number, and, e-mail address;
5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
6. A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
The above information must be submitted to the following DMCA Agent:
Attn: DMCA Notice
Fad Mania, Inc.
Address: 710 Buchanan Street
San Francisco, CA 94102
Email: email@example.com with the subject line “Copyright Policy – DMCA Notification”
Under federal law, if you knowingly misrepresent that online material is infringing, you may be subject to criminal prosecution for perjury and civil penalties, including monetary damages, court costs, and attorneys’ fees.
Please note that this procedure is exclusively for notifying Fad Mania and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with Fad Mania’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, Fad Mania has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. Fad Mania may also, at its sole discretion, limit the access of any Users who infringe any Intellectual Property Rights of others, whether or not there is any repeat infringement, to the Service.
8. Third-Party Links and Information
YOUTUBE FUNCTIONALITY PROVIDED
When you make a live video from your user profile, you have the ability to view and share live YouTube video. Search suggestions and the YouTube search bar are accessible directly from the Gamebytes App.
9. Release and Indemnity
You hereby agree to release Fad Mania from all damages (whether direct, indirect, incidental, consequential or otherwise), losses, liabilities, costs and expenses of every kind and nature, known and unknown, arising out of a dispute between you and a third party (including other Users) in connection with the Service. In addition, you waive any applicable law or statute, which says, in substance: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE RELEASING PARTY 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 WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE RELEASED PARTY."
You agree to defend, indemnify and hold harmless Fad Mania and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorneys’ fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including, without limitation, your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including, without limitation, any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) User Content or any content that is otherwise submitted by you or via your profile, including, without limitation, misleading, false, or inaccurate information; (vi) your willful misconduct; or (vii) any other party’s access and use of the Service on your behalf.
10. No Warranty
The Service is provided on an “as is” and “as available” basis. Use of the Service is at your own risk. To the maximum extent permitted by applicable law, the Service is provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement. No advice or information, whether oral or written, obtained by you from Fad Mania or through the Service will create any warranty not expressly stated herein. Without limiting the foregoing, Fad Mania, its subsidiaries, its affiliates, and its licensors do not warrant that any content you may access on or through the Service is accurate, reliable or correct; that the Service will meet your requirements; that the Service will be available at any particular time or location, uninterrupted or secure; that any defects or errors will be corrected; or that the Service is free of viruses or other harmful components. Any content downloaded or otherwise obtained through the use of the Service is downloaded at your own risk and you will be solely responsible for any damage to your computer system or mobile device and/or for any loss of data that results from such download or your use of the Service.
Further, Fad Mania does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through the Service or any hyperlinked website or service, and Fad Mania will not be a party to, or in any way monitor, any transaction between you and third-party providers of products or services.
Federal law, some states, provinces and other jurisdictions do not allow the exclusion and limitations of certain implied warranties, so the above exclusions may not apply to you. This Agreement gives you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers and exclusions under this Agreement will not apply to the extent prohibited by applicable law.
11. Limitation of Liability
To the maximum extent permitted by applicable law, in no event shall Fad Mania, its affiliates, agents, directors, employees, suppliers or licensors be liable for any indirect, punitive, incidental, special, consequential or exemplary damages, including, without limitation, damages for loss of profits, goodwill, use, data or other intangible losses, arising out of or relating to the use of, or inability to use, the Service. Under no circumstances will Fad Mania be responsible for any damage, loss or injury resulting from hacking, tampering or other unauthorized access to, or use of, the Service or your profile or the information contained therein.
To the maximum extent permitted by applicable law, Fad Mania assumes no liability or responsibility for any (i) errors, mistakes, or inaccuracies of content; (ii) personal injury or property damage, of any nature whatsoever, resulting from your access to or use of the Service; (iii) any unauthorized access to or use of our secure servers and/or any and all personal information stored therein; (iv) any interruption or cessation of transmission to or from the Service; (v) any bugs, viruses, trojan horses, or the like that may be transmitted to or through the Service by any third party; (vi) any errors or omissions in any content or any loss or damage incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available through the Service; and/or (vii) User Content or the defamatory, offensive, or illegal conduct of any third party. In no event shall Fad Mania, its affiliates, agents, directors, employees, suppliers, or licensors be liable to you for any claims, proceedings, liabilities, obligations, damages, losses or costs in an amount exceeding $100.00.
This limitation of liability section applies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if Fad Mania has been advised of the possibility of such damage.
Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you. This Agreement gives you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers, exclusions, and limitations of liability under this Agreement will not apply to the extent prohibited by applicable law.
Governing Law, Arbitration, and Class Action/Jury Trial Waiver
12. 1. Governing Law. You agree that: (i) the Service shall be deemed solely based in California; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than California. This Agreement shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Santa Clara County, California for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other Intellectual Property Rights or other proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Santa Clara County, California is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
12. 2. Arbitration. Read this section carefully because it requires the parties to arbitrate their disputes and limits the manner in which you can seek relief from Fad Mania. For any dispute with Fad Mania, you agree to first contact us at firstname.lastname@example.org and attempt to resolve the dispute with us informally. In the unlikely event that Fad Mania has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief, as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in Santa Clara County, California, unless you and Fad Mania agree otherwise. Please be aware that: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorneys’ fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this section shall be deemed as preventing Fad Mania from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.
12. 3. Class Action/Jury Trial Waiver. With respect to all persons and entities, regardless of whether they have obtained or used the Service for personal, commercial or other purposes, all Claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class action, collective action, private attorney general action or other representative proceeding. This waiver applies to class arbitration, and, unless we agree otherwise, the arbitrator may not consolidate more than one person’s Claims. You agree that, by entering into this Agreement, you and Fad Mania are each waiving the right to a trial by jury or to participate in a class action, collective action, private attorney general action, or other representative proceeding of any kind.
13.1 California Residents. The provider of services is set forth herein. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
13.2 Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Fad Mania without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
13.3 Notification Procedures and Changes to the Agreement. Fad Mania may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through the posting of such notice on the Gamebytes Site, as determined by Fad Mania, in its sole discretion. We reserve the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification, as described in this Agreement. Fad Mania is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you may provide us. Fad Mania may, in its sole discretion, modify or update this Agreement from time to time, so you should review this page periodically. When we change the Agreement in a material manner, we will update the ‘last modified’ date at the top of this page and notify you that material changes have been made to the Agreement. Your continued use of the Service after any such change constitutes your acceptance of the new Terms of Service. If you do not agree to any of these terms or any future Terms of Service, do not use or access (or continue to access) the Service.
13.4 Entire Agreement/Severability. This Agreement, together with any amendments and any additional agreements you may enter into with Fad Mania in connection with the Service, shall constitute the entire agreement between you and Fad Mania concerning the Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver provision, the entire Arbitration provision shall be unenforceable.
13.5 No Waiver. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or of any other term, and Fad Mania’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
13.6 Contact. Please contact us at email@example.com with any questions regarding this Agreement.