Revised: August 2nd, 2023
NO PURCHASE OR PAYMENT OF ANY KIND IS NECESSARY TO ENTER OR WIN ANY GAME.
THE APP, THE GAMES, AND ANY GAMES CONTAINED HEREIN ARE NOT SPONSORED BY, ENDORSED OR AFFILIATED IN ANY WAY WITH APPLE/GOOGLE, INC.
This End User Terms and Conditions (“Agreement”) may be periodically updated. Your continued use of the service after a revised Agreement has been posted constitutes your acceptance of its terms.
WELCOME TO SHAKY SKY LIMITED — the community of online games. We ("PLATFORM," “COMPANY,” “WE,” “US, OR “OUR”), hope you’ll enjoy being a member of our large community of our games. We—SHAKY SKY LIMITED, developer and provide skill-based online games and services (collectively the “Services”).
BY OPENING, DOWNLOADING, INSTALLING, ACCESSING OR OTHERWISE USING THE SOFTWARE, AND ANY OTHER SERVICE RELATED TO THE SOFTWARE AND/OR THE PLATFORM, OR REGISTERING FOR OR PARTICIPATING IN ANY GAMES, YOU HEREBY: (i)ACKNOWLEDGE THAT YOU FULLY UNDERSTOOD AND ACCEPT TO BE BOUND BY THOSE AGREEMENTS, RULES, TERMS AND CONDITIONS (COLLECTIVELY “TERMS”), AND THE OBLIGATIONS INCLUDED WITHIN EACH GAME IN THEIR ENTIRETY; (ii) ARE AUTHORIZED AND ABLE TO ACCEPT THESE TERMS.
IF YOU DO NOT AGREE TO BE BOUND BY THOSE TERMS, YOU ARE NOT PERMITTED TO OPEN, DOWNLOAD, INSTALL, REGISTER OR USE THE SOFTWARE OR SERVICES. AND YOU ARE NOT PERMITTED TO USE YOUR ACCOUNT.
1. GENERAL TERMS
1.1. Eligibility. For U.S. To be eligible to register an Account, or to download and use Software, you must: (i) be an adult of the legal age of 18. (ii) be legally and financially responsible for all actions using or accessing our software, including the actions of anyone you allow to access to your account. (iii) affirm that you have reached the legal age of majority, understand and accept this agreement (including its dispute resolution terms). if you are under the legal age of majority, your parent or legal guardian must consent to this agreement.
1.2 Registration. Use the services or participating games requires a valid user account. When you create an Account, you will be asked for a legitimate email address that you control and to create a password. Once registration is done, you will also be required to create a username or accept a username given by the services.
1.3 User Account. You are responsible for all use and the security of your User Account. You hereby agree not to allow any other person to (i) access your account; (ii) access Services or Software through your Account; or (iii) accept or use prizes, winnings and other representative of value (including without limitation digital trophies, virtual currency or virtual goods) (collectively “Winnings”). Neither your Account nor Winnings nor any Digital Assets are transferable to any other person or account. You must immediately notify us of any unauthorized use of your password or identification or any other breach or threatened breach of our security or the security of your Account in any game provided by the platform.
1.4 ARBITRATION. THIS AGREEMENT CONTAINS A BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER PROVISION IN THE ‘BINDING INDIVIDUAL ARBITRATION’ SECTION THAT AFFECTS YOUR RIGHTS UNDER THIS AGREEMENT WITH RESPECT TO ANY ‘DISPUTE’ (AS DEFINED BELOW) BETWEEN YOU AND THE COMPANY, AND REQUIRES YOU AND THE COMPANY TO RESOLVE DISPUTES IN BINDING, INDIVIDUAL ARBITRATION, AND NOT IN COURT. YOU HAVE A RIGHT TO OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION SECTION AS EXPLAINED BELOW.
2. SERVICES AND SOFTWARE
2.1 The Services. We may, with or without notice to you: (1) modify, suspend or terminate your access to the Website, Services and/or Software for any reason without liability; and (2) interrupt the operation of the Website, Services and/or Software as necessary to perform maintenance, error correction, or other work. We may suspend and/or close the account of any user who violates, or whom we reasonably believe may be in violation of or will violate, these Terms, at any time without notice and without liability. Also, and without limiting our other rights or remedies, if we believe you have violated these Terms or if you have violated these Terms, we may determine that your Winnings, if any, will be forfeited, disgorged, or recouped.
2.2 The Software. If you want to participate in games or receive Services, you may be required to first download certain mobile applications first. If you do not download the Software, you will not be able to participate in games or receive relevant Services. Whether you download the Software directly or from a third party, such as via an app store, your use of the Software is subject to these Terms. We license the Software to you under Section 11.1.
2.3 Updates. We choose to offer technical support for Software from time to time in our discretion. Such technical support may require that we access your device on which the Software is installed (“Device”). Also, if and when we update the Software or deploy patches, updates, and modifications to the Software, as applicable, we may do so through remote access of your Device without your knowledge. You hereby consent to these activities. You acknowledge that if we cannot remotely access your Device, then the Software may no longer work, and this may prevent you from participating in games or otherwise receiving Services. We access to your Device will be limited solely to (i) providing support (ii) updating the Software or (iii) determining your location for skill-gaming regulatory purposes only, and is governed by the terms of our Privacy Policy.
2.4 Third Party Sites. You may be able to access third-party websites or services via the Software, Services or Website. We are not responsible for third-party websites, services, or content available through those third-party services. You are solely responsible for your dealings with third-parties (including advertisers and game developers). Your use of third-party software, websites or services may be subject to that third-party’s terms and conditions.
3. COMPLIANCE WITH LAWS
You are subject to all municipal, state and federal laws, rules and regulations of the city, state and country in which you reside and from which you access and use Services, including without limitation U.S. export laws. You are solely responsible for your compliance with all Applicable Laws.
4. YOUR REPRESENTATIONS AND WARRANTIES TO US
You represent and warrant to us that (1) you have the right, authority, and capacity to agree to these Terms, to register for an Account, and to participate in those games for which you register; and (2) you will comply with these Terms when participating in games, receiving Services, and/or using Software; and (3) all information you supply to us or our developer partners is complete, accurate and current (and knowingly submitting incomplete or inaccurate information, or failing to update and maintain current, complete and accurate information, may result, without limitation, in immediate termination of your Account and forfeiture of Winnings).
5. YOUR RESPONSIBILITY AND INDEMNIFICATION TO US
To the fullest extent of applicable law, you agree to be responsible and liable to We, its partners, Wes, affiliates, contractors, officers, directors, employees, and agents in respect of all damages, losses, and expenses arising directly or indirectly from your acts and omissions to act in using the Software pursuant to the terms of the Agreement.
You will, at your own cost and expense, indemnify and hold us and our directors, officers, employees and agents harmless from and against any and all claims, disputes, liabilities, judgments, settlements, actions, debts or rights of action, losses of whatever kind, and all costs and fees, including reasonable legal and attorneys’ fees, arising out of or relating to (i) your breach of these Terms; (ii) any use of your Account, the Website, the Software and the Services by any person including yourself; (iii) your violation of Applicable Laws; and/or (iv) your negligence or misconduct; and, if we instruct you in writing, you will, at your cost and expense, defend us from any of the foregoing using counsel reasonably acceptable to us.
6. PRIVACY
6.1. Privacy Policy. We are committed to your privacy, and our Privacy Policy, the terms of which are incorporated into these Terms as if set forth in their entirety, explains the policies put in place and used by us to protect your privacy as you visit the Website, participate in games, download and use the Software and receive Services, and its terms are made a part of these Terms by this reference. We receive, store and use all information that you submit to the Website and all information you submit in registering for and participating in Services, in accordance with the Privacy Policy, so please read it carefully. We also collect anonymous aggregated and/or statistical data reflecting your use of the Website and Services and may use such data for tracking, reporting and other activities in connection with our business, also all in accordance with the Privacy Policy. We will not intentionally disclose any personally identifying information about you (including information submitted in creating an Account, your social security number, your email address, phone number, or passport, information obtained by the Website from cookies, and information regarding your IP address) to third parties without your consent except (1) where expressly specified in these Terms, (2) where expressly specified in the Privacy Policy, and/or (3) where we, in good faith, believe such disclosure is necessary to comply with Applicable Laws, to enforce these Terms against you, or to help prevent a loss of life or physical injury or crime.
6.2. Communications with You. As also detailed in the Privacy Policy, we may use emails, text messages, and push notifications to notify you when you win our games, when a game you have entered has completed, and to let you know of special promotions, events and policy changes. We may also communicate with you via email, text message, push notification or chat for any other purpose relating to Services or Software. We or our representatives may monitor all communications made by or received by you while using the Website and Services. If you do not wish to receive these communications from us, you may opt out by contacting customer support, but you acknowledge that opting out may result in your inability to participate in our games or receive Services.
6.3. Device Information. Using the Software and Services requires an Internet connection to our servers, and we may need to collect certain information from you and your Internet-enabled device (“Device”) in order to make the Software and Services available to you, such as hardware system profile data, internet connection data and any other data related to the operation of the Service from any Device that logs onto the Service using your Account. We will use this information in accordance with the Privacy Policy.
6.4. Warning. Please take care in sending us sensitive information because third parties can unlawfully intercept or access transmissions or private communications between you and us, and you acknowledge that internet transmissions are never completely private or secure. For your safety, you should never reveal any sensitive personal information in any public forums, message boards or chat features.
6.5. Promotional Activities. By registering for an Account, you allow us to publicly display your username and tournament records, and to use this information for any purpose. By using the Services, you allow us to print, publish, broadcast and use, worldwide, in any media and at any time, your name, picture, voice, likeness, and/or any biographical information that you submit to us (“Biographical Information”) for promotional, marketing or related business purposes, without compensation to you. However, we will never sell your Biographical Information without your prior written consent, and our use of your personally identifiable information is always governed by our Privacy Policy.
6.6. Gameplay Dialogue. On behalf of our developer partners, we may use third party websites and technologies to record or stream gameplay or chat dialogue occurring through the Services, including your own dialogue (“Recordings”). We use Recordings to verify compliance with these Terms and as part of marketing and promotion of the Services. Please do not submit personally identifiable information in gameplay dialogue—this information is available for anyone to see and use. You may record and distribute your own recordings of gameplay dialogue for non-commercial purposes (i.e., you may not record or distribute Recordings for compensation) so long as your recording and distribution: (a) do not include other products or services that are competitive with the Services, and (b) comply with these Terms.
7. ACCEPTABLE USE POLICY
7.1. Rules of Conduct. You are personally responsible for your use of Services and Software, and while using Services and Software you must conduct yourself in a lawful and respectful manner in accordance with our rules of conduct below. We may temporarily or permanently ban users who violate these rules, or who abuse email communications, support communications, or the community purpose of any message board areas, as determined by us, in our sole discretion. We reserve the right to disable a player’s ability to upload profile photos or edit their username at any time.
Profanity, obscenities, or the use of **asterisks** or other “masking” characters to disguise such words, is not permitted.
You may not use or upload obscene, lewd, slanderous, pornographic, abusive, violent, insulting, indecent, threatening and harassing language of any kind, as determined by us in our sole discretion.
Service usernames will be displayed as ‘Your Name’; impersonating other players is not allowed.
Do not share personal information (your name, phone number, home address, and password) with other users.
Do not transmit or upload any copyrighted or trademarked materials in messages or postings.
Information disclosed in chat rooms, message boards, gameplay dialogue or via eMessages is revealed to the public, and we are not responsible for information you choose to disclose to others.
Advanced fonts, java, tables, html or other programming codes or commands are not allowed in messages.
You may not attempt to participate in any Service by means of automatic, macro, programmed or similar methods.
You may not commit fraud with regard to any Service.
You may not attempt to impersonate or deceive another user for the purposes of illicitly obtaining cards, passwords, account information etc. (aka “scamming”).
You may not make any commercial use of any of the information provided on the Website or through the Services nor make any use of the Website or Services for the benefit of a business.
7.2. Your Content. You acknowledge that the Service is a passive conduit for user content and that: (i) we are not pre-screen user content or communications or (ii) control, verify or pay for any user content or communications. We do not endorse, and specifically disclaim any responsibility or liability for, any publicly posted content. In addition, we may terminate your access to any public forums at any time, without notice, for any reason whatsoever, and/or delete, move or edit content submitted publicly, in whole or in part. You may only upload, send, and receive messages and material that is related to the subject matter of the public forums, complies with Applicable Laws, and conforms to any additional terms of service posted in the public forums. You may not upload to, distribute, or otherwise publish any content, information, or other material that (a) violates or infringes the copyrights, patents, trademarks, service marks, trade secrets, or other proprietary rights of any person; (b) is libelous, threatening, defamatory, obscene, indecent, pornographic, or could give rise to any civil or criminal liability under U.S. or international law; or (c) includes any bugs, viruses, worms, trap doors, Trojan horses or other harmful code or properties. Submissions or opinions expressed by users are that of the individual expressing such submission or opinion only. Subject to the foregoing, we may edit, refuse to post, or to remove any information or materials submitted, in our discretion. You may not use a false email address, pretend to be someone other than yourself or otherwise mislead us or third parties as to the origin of your submissions or content.
7.3. Cheating, Fraud, and Abuse. In accessing or participating in Services or using the Software, you represent and warrant to us that you will not engage in any activity that interrupts or attempts to interrupt the operation of the Services or Software. Anyone who engages in, participates in or displays behavior that may be interpreted, in the discretion of us only, as unfair methods in participating in Services or using the Software, including but not limited to, the opening and/or use of multiple accounts, the use of unauthorized or altered software or hardware to assist play (e.g., bots, bot nets, and collusion with bots), intentionally poor play in certain games to achieve competitive advantage, collusion with other players (e.g. intentionally losing rematches in games), harassment of other participants, posting objectionable material, breach of these Terms, breach of security of your Account, or any other act (whether through the use of automated technology or otherwise) that unfairly alters your chance of winning or constitutes the commission of fraud (collectively, “Abuse”), you will be subject to immediate sanction (as determined by us only), which may include, without limitation: (1) immediate termination of your Account and blocking of your access to the Website and Services; (2) any Winnings that you may otherwise have been entitled to receive shall be void and forfeited; and (3) any Winnings received by you shall be subject to disgorgement and/or recoupment.
7.4. Hacking, Tampering, or Unauthorized Access. Any attempt to gain unauthorized access to systems or any other user’s account, interfere with procedures or performance of Services, Software or the Website or deliberately damage or undermine the Services or Software is subject to civil and/or criminal prosecution and will result in immediate termination of your Account and forfeiture of your Winnings. You acknowledge that we are not responsible for any damage, loss or injury resulting from hacking, tampering or other unauthorized access or use of the Services or your Account.
7.5. Restrictions. Any use, reproduction or redistribution of the Service, Software, or related products or services (including without limitation, Digital Assets) not expressly authorized by these Terms is expressly prohibited. You may not engage in, or assist others to engage in, conduct that would damage or impair our property including, without limitation: (a) copying, distributing, transmitting, displaying, performing, framing, linking, hosting, caching, reproducing, publishing, licensing, or creating derivative works from any information, software, products or services obtained from us; (b) providing unauthorized means through which others may use Services such as through server emulators; (c) taking actions that impose an unreasonable or disproportionately large load on network infrastructure, or that could damage, disable, overburden or impair our Websites or Services; (d) interfering with any other party’s use and enjoyment of Services and/or Software (including cheating) or the Website; and/or (e) attempting to gain unauthorized access to third party accounts, the Service or Software.
8. Copyright and Complaint
We retain all right, title, and interest to the Software, including, but not limited to, all copyrights, trademarks, trade secrets, trade names, proprietary rights, patents, titles, computer codes, audiovisual effects, themes, characters, character names, stories, dialog, settings, artwork, sounds effects, musical works, and moral rights. The Software is protected by U.S. copyright and trademark law and applicable laws and treaties throughout the world. The Software may not be copied, reproduced, altered, modified, or distributed in any manner or medium, in whole or in part, without prior written consent from We. Any persons copying, reproducing, or distributing all or any portion of the Software in any manner or medium, will be willfully violating the copyright laws and may be subject to civil and criminal penalties in the U.S. or their local country.
The Digital Millennium Copyright Act (DMCA) provides copyright owners who believe that their rights under the United States copyright law have been infringed by acts of third parties over the Internet with ways to protect their rights. If you believe that your copyrighted work has been copied without your authorization and is available in the Services in a way that may constitute copyright infringement, you can provide notice of your claim to the designated agent listed below. For your notice to be effective, it must include the following information:
1, A physical or electronic signature of a person authorized to act on behalf of the owner of the intellectual property right that is allegedly infringed;
2, A description of the copyrighted work that you claim has been infringed upon;
3, A description of where the material that you claim is infringing is located in this game; Information reasonably sufficient to permit us to contact the complaining party, such as address, telephone number, and, if available, an e-mail address at which the complaining party can be contacted;
4, A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
5, A statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.
9. User Content
The Software may allow you to create content, including, but not limited to, screenshot, video, character, item, or video of your game play. In exchange for use of the Software, and to the extent that your contributions through use of the Software give rise to any copyright interest, you hereby grant us an exclusive, perpetual, irrevocable, fully transferable, and sub-licensable worldwide right and license to use your contributions in any way and for any purpose in connection with the Software and related goods and services, including, but not limited to, the rights to reproduce, copy, adapt, modify, perform, display, publish, broadcast, transmit, or otherwise communicate to the public by any means whether now known or unknown and distribute your contributions without any further notice or compensation to you of any kind for the whole duration of protection granted to intellectual property rights by applicable laws and international conventions. You hereby waive and agree never to assert any moral rights of paternity, publication, reputation, or attribution with respect to ours and other players' use and enjoyment of such assets in connection with the Software and related goods and services under applicable law. This license grant to us, and terms above regarding any applicable moral rights, will survive any termination of this Agreement.
10. Property Rights
10.1 License: Subject to this Agreement and its terms and conditions, we hereby grant you a nonexclusive, non-transferable, limited, and revocable right and license to use the Software on a single device (e.g. computer, mobile device) under your control. Your license rights are subject to your compliance with this Agreement. The term of your license under this Agreement shall commence on the date that you install or otherwise use the Software and ends on the earlier date of either your disposal of the Software or the termination of this Agreement.
10.2 License Conditions: You agree not to, and not to provide guidance or instruction to any other individual or entity on how to:
i: commercially exploit the Software;
ii: use the Software in connection with an agreement with other individuals to wager any money or other thing of value;
iii: distribute, lease, license, sell, rent, convert into convertible currency, or otherwise transfer or assign the Software, or any copies of the Software, including but not limited to Virtual Goods or Virtual Currency (defined below) without the express prior written consent of Licensor or as expressly set forth in this Agreement;
iv: make a copy of the Software or any part thereof (other than as set forth herein);
v: make a copy of the Software available on a network for use or download by multiple users;
vi: except as otherwise specifically provided by the Software or this Agreement, use or install the Software (or permit others to do same) on a network, for on-line use, or on more than one computer or gaming unit at the same time;
vii: copy the Software onto a hard drive or other storage device in order to bypass the requirement to run the Software from the included CD-ROM or DVD-ROM (this prohibition does not apply to copies in whole or in part that may be made by the Software itself during installation in order to run more efficiently);
viii: use or copy the Software at a computer gaming center or any other location-based site; provided, that Licensor may offer you a separate license agreement to make the Software available for commercial use;
ix: reverse engineer, decompile, disassemble, display, perform, prepare derivative works based on, or otherwise modify the Software, in whole or in part;
x: remove or modify any proprietary notices, marks, or labels contained on or within the Software;
xi: restrict or inhibit any other user from using and enjoying any online features of the Software;
xii: cheat (including but not limited to utilizing exploits or glitches) or utilize any unauthorized robot, spider, or other program in connection with any online features of the Software;
xiii: violate any terms, policies, licenses, or code of conduct for any online features of the Software; or
xiv: transport, export, or re-export (directly or indirectly) into any country forbidden to receive the Software by any U.S. export laws or regulations or U.S. economic sanctions or otherwise violate any laws or regulations, or the laws of the country in which the Software was obtained, which may be amended from time to time.
11. Termination
These Terms apply to you and to us from the date that you accept them as provided above, until termination of your Account (whether by deactivation, cancellation, closure, expiration or termination by you or us). You may terminate these Terms at any time and for any reason by going to your Account webpage and following the account closure process. Upon termination of your Account, you must immediately discontinue use of the Services and the Software and your Account and promptly uninstall and delete all copies of the Software. Immediately upon termination of your Account, all license and rights granted to you under these Terms automatically terminate and you shall automatically forfeit the right to use Digital Assets. Your obligation to pay accrued Fees will survive any termination of these Terms. Any and all terms and conditions within these Terms which should, by their nature, survive termination of these Terms, will survive such termination.
12. Disclaimer
We strive to keep Services up and running; however, due to variations in hardware, software, internet connections, and individual usage, we do not warrant the performance of the Software on your specific device. we do not warrant against interference with your enjoyment of the Software; that the Software will meet your requirements; that operation of the Software will be uninterrupted or error-free; or that the Software will be compatible with third-party software or hardware or that any errors in the Software will be corrected. No oral or written statement or advice provided by Licensor or any authorized representative shall create a warranty. Because some jurisdictions do not allow the exclusion of or limitations on implied warranties or the limitations on the applicable statutory rights of a consumer, some or all of the above exclusions and limitations may not apply to you. We are not responsible or liable for any disruption or loss you may suffer as a result.
13. LIMITED LIABILITY
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, NEITHER WE, NOR OUR SUPPLIERS OR LICENSORS, WILL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) OR INCIDENTAL DAMAGES, ARISING OUT OF OR RELATING TO THESE TERMS, THE WEBSITE OR ANY INFORMATION, SERVICES, PRODUCTS OR SOFTWARE MADE AVAILABLE OR ACCESSIBLE TO YOU, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION OR OTHERWISE, EVEN IF WE OR OUR DEVELOPER PARTNERS, THIRD PARTY SUPPLIERS OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, OUR MAXIMUM LIABILITY TO YOU ARISING OUT OF OR IN ANY WAY CONNECTED TO THESE TERMS SHALL NOT EXCEED U.S. $50.00. THE EXISTENCE OF ONE OR MORE CLAIMS BY YOU WILL NOT INCREASE OUR LIABILITY. IN NO EVENT SHALL OUR SUPPLIERS OR LICENSORS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO OUR PRODUCTS, INFORMATION OR SERVICES.
Certain jurisdictions do not allow limitations of liability for incidental, consequential or certain other types of damages; as such, the limitations and exclusions set forth in this Section may not apply to you.
14. DISPUTE RESOLUTION AND ARBITRATION
BINDING INDIVIDUAL ARBITRATION - PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY ALTER YOUR RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
This binding individual arbitration section will not apply to the extent prohibited by the laws of your country of residence.
You and the Company agree that should any dispute, claim, or controversy arise between us regarding any Company products or services (hereafter a “Dispute”), whether based in contract, statute, regulation, ordinance, tort (including fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, except for those matters listed in the Exclusions From Arbitration paragraph below, and expressly including the validity, enforceability, or scope of this ‘BINDING INDIVIDUAL ARBITRATION’ section (with the exception of the enforceability of the Class Action Waiver clause below), shall be submitted to binding arbitration, as described below, rather than being resolved in court. The term “Dispute” is to be given the broadest possible meaning that will be enforced and includes, for example, all matters arising under this Agreement, the Privacy Policy, the Terms of Service, or any other agreement with the Company. You understand that there is no judge or jury in arbitration and that court review of an arbitration award is limited.
Exclusions From Arbitration. You and the Company agree that any claim filed by You or the Company in small claims court on an individual basis are not subject to the arbitration terms contained in this Section. In addition, the Company or You shall have the right to seek an injunction against you in court in order to preserve the status quo while an arbitration proceeds.
Class Action Waiver. THE ARBITRATION PROCEEDINGS DESCRIBED HEREIN WILL BE CONDUCTED ON AN INDIVIDUAL BASIS ONLY. Neither You nor the Company shall be entitled to join or consolidate disputes by or against other individuals or entities, or to arbitrate any dispute in a representative capacity, including, without limitation, as a representative member of a class or in a private attorney general capacity, in connection with any Dispute. Further, unless both You and the Company agree, the arbitrator may not consolidate more than one person’s claim. The arbitrator may award any individual relief or individual remedies that are permitted by applicable law, but to the maximum extent permitted by applicable law, may not award relief against the Company respecting any person other than You.
Right to Opt Out of Binding Arbitration. IF YOU WISH TO OPT OUT OF THIS BINDING INDIVIDUAL ARBITRATION REQUIREMENT, YOU MUST NOTIFY US IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU ACCEPT THIS AGREEMENT BUT ARE OPTING OUT OF BINDING INDIVIDUAL ARBITRATION, UNLESS A LONGER PERIOD IS REQUIRED BY APPLICABLE LAW.
Your notice must include (1) your full name; (2) your mailing address; (3) your online ID, if you have one; and (4) a clear statement that you do not wish to resolve disputes with the Company through arbitration. You are responsible for ensuring the Company’s receipt of your opt-out notice, and you therefore may wish to send a notice by means that provide a written receipt.
Notice of Dispute. If you have a Dispute with the Company, you must send written notice to SHAKY SKY LIMITED, in order to give the Company the opportunity to resolve the dispute informally through negotiation. Notice must be provided within two (2) years of the Dispute having arisen, but in no event after the date on which the initiation of legal proceedings would have been barred under the applicable statute of limitations. The failure to provide timely notice shall bar all claims. If the Company has a dispute with You, the Company will provide notice to the address it has on file for you, if possible. You and the Company agree to negotiate the Dispute in good faith for no less than 30 days after notice of the Dispute is provided. If the Dispute is not resolved within 30 days after receipt of notice of the Dispute, the Company or You may pursue the claim in arbitration as provided in this section.
Arbitration Rules and Procedures.
Arbitration shall be subject to the U.S. Federal Arbitration Act and federal arbitration law, and shall be conducted by Judicial Arbitration Mediation Services, Inc. (“JAMS”) pursuant to the JAMS Streamlined Arbitration Rules and Procedures effective July 1, 2014 (the “JAMS Rules”), as modified by this agreement to arbitrate.
If you are located in a country other than the United States, then arbitration will be conducted by the International Court of Arbitration of the International Chamber of Commerce (ICC) pursuant to UNCITRAL rules, and the arbitration shall be conducted in English and the English version of these Terms (and not any translation) shall control, and both parties hereby agree to accord this arbitration agreement the broadest scope admissible under applicable Laws, and that it shall be interpreted in a non-restrictive manner. The arbitrator may award the same damages to you individually as a court could. The arbitrator may award declaratory or injunctive relief only to you individually, and only to the extent required to satisfy your individual claim. These Terms govern to the extent they conflict with the arbitrators’ commercial rules. The arbitrator may award compensatory damages, but shall NOT be authorized to award non-economic damages, such as for emotional distress, or pain and suffering or punitive or indirect, incidental or consequential damages. Each party shall bear its own attorneys’ fees, cost and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the arbitrator and AAA; however, the arbitrator may award to the prevailing party reimbursement of its reasonable attorneys’ fees and costs (including, for example, expert witness fees and travel expenses), and/or the fees and costs of the arbitrator. Within fifteen (15) calendar days after conclusion of the arbitration, the arbitrator shall issue a written award and a written statement of decision describing the material factual findings and conclusions on which the award is based, including the calculation of any damages awarded. Judgment on the award may be entered by any court of competent jurisdiction. The parties waive their right to commence any action or judicial proceeding in connection with a dispute hereunder, except for purposes of: (i) recognition and/or enforcement of the arbitration award or any other decision by the arbitral tribunal, (ii) obliging the other party to participate in the arbitration proceedings, (iii) requesting any type of conservative or interim measure in connection with the dispute prior to the constitution of the arbitral tribunal, (iv) requesting the appearance of witnesses and/or experts, and/or (v) requesting that any information and/or documentation discovery be complied with. By agreeing to this binding arbitration provision, you understand that you are waiving certain rights and protections which may otherwise be available if a claim or Dispute were determined by litigation in court, including, without limitation, the right to seek or obtain certain types of damages precluded by this arbitration provision, the right to a jury trial, certain rights of appeal, the right bring a claim as a class member in any purported class or representative proceeding, and the right to invoke formal rules of procedure and evidence.
15. MISCELLANEOUS
These Terms constitute the entire agreement between you and us pertaining to the subject matter hereof and supersede all prior or other arrangements, understandings, negotiations and discussions, whether oral or written. These Terms cannot be modified by you, and may only be modified by us as provided above. Our failure to require or enforce strict performance by you of any provision of these Terms or to exercise any right under them shall not be construed as a waiver or relinquishment of our right to assert or rely upon any such provision or right in that or any other instance. The provisions of these Terms are intended to be severable. If for any reason any provision of these Terms shall be held invalid or unenforceable in whole or in part by any court of competent jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of the Terms, which shall continue to be in full force and effect. Section titles in these Terms are for reference only and have no legal effect. No right or remedy of ours shall be exclusive of any other, whether at law or in equity, including without limitation damages injunctive relief, attorneys’ fees and expenses. We may assign these Terms, in whole or in part, at any time without notice to you. You may not assign these Terms or transfer any rights to use the Services or Software. You consent to our providing you notifications about the Services or information the law requires us to provide via email to the address that you specified when you created your Account. Notices emailed to you will be deemed given and received when the email is sent. If you do not consent to receive notices electronically, you must close your Account. These Terms are solely for your and our benefit, and not for the benefit of any other person, except for our successors and assigns.
A printed version of these Terms and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
Please send any questions or comments (including all inquiries unrelated to copyright infringement) to: Customer Support, SHAKY SKY LIMITED, 6 BEVIS MARKS, LONDON, EC3A 7BA, UK
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