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These Terms of Use and End User License Agreement ("Agreement") is a binding agreement between you ("End User" or "you") and Gen Pop Interactive, Inc. ("Company" or “we” or “us” or “our”). This Agreement governs your use of all products, content and services of the Company, whether available through our website (the “Site”) or third party sites (including all related documentation, the "Applications"). The Applications are licensed, not sold, to you.
BY CLICKING THE "ACCEPT" BUTTON YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER/OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE APPLICATIONS.
NOTICE: THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION AGREEMENT. YOU AGREE THAT ANY CLAIMS YOU MAY HAVE AGAINST US RELATING TO THE SITE, THIS AGREEMENT OR ANY TERMS AND CONDITIONS CONTAINED HEREIN MUST BE ARBITRATED, AND YOU EXPRESSLY WAIVE THE RIGHT TO (1) ASSERT CLAIMS AGAINST US IN COURT; (2) PARTICIPATE IN A REPRESENTATIVE OR CLASS ACTION; AND (3) HAVE A JURY HEAR YOUR CASE. YOU EXPRESSLY CONSENT TO HAVE ALL OF YOUR CLAIMS ARBITRATED ON AN INDIVIDUAL BASIS ONLY.
Please review our Privacy Policy (INSERT LINK) which also governs your interactions with the Applications.
License Grant. Subject to the terms of this Agreement, Company grants you a limited, non-exclusive, and nontransferable license to:
download, install, and use the Applications for your personal, non-commercial use on a single device owned or otherwise controlled by you ("Device") strictly in accordance with the Applications’ documentation; and
access, stream, download, and use on such Device the Content and Services (as defined in Section 6) made available in or otherwise accessible through the Application, strictly in accordance with this Agreement.
License Restrictions. You shall not:
copy the Applications, except as expressly permitted by this license;
modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Applications;
reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Applications or any part thereof;
remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Applications, including any copies thereof;
rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Applications, or any features or functionality of the Applications, to any third party for any reason, including by making the Applications available on a network where it is capable of being accessed by more than one device at any time;
remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Applications;
license, sell, rent, lease, transfer, assign, reproduce, distribute, host, or otherwise commercially exploit the Applications or any portion of the Applications;
use any data from the Applications for the development of any software program (including but not limited to training a machine learning or artificial intelligence (AI) system);
transmit, distribute or upload programs or material that contain malicious code, including, but not limited to viruses, time bombs, cancelbots, worms, Trojan horses, Easter eggs, spyware, or other potentially harmful programs or other materials or information;
send or enable the transmission of junk email, duplicative or unsolicited messages, or so-called “spamming” or “phishing”;
disrupt, impair, alter or otherwise interfere with the functions, features, Content or use of the Applications;
violate any laws, regulations, judicial or governmental order, any treaties, or violate or infringe upon any intellectual property rights, rights of publicity or privacy, or any other rights of ours or of any third party; or
gain unauthorized access to the Applications.
Reservation of Rights. You acknowledge and agree that the Applications are provided under license, and not sold, to you. You do not acquire any ownership interest in the Applications under this Agreement, or any other rights thereto other than to use the Applications in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Company and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Applications, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
Collection and Use of Your Information. You acknowledge that when you download, install, or use the Applications, Company may use automatic means (including, for example, cookies and web beacons) to collect information about your Device and about your use of the Applications. You also may be required to provide certain information about yourself as a condition to downloading, installing, or using the Applications or certain of its features or functionality, and the Applications may provide you with opportunities to share information about yourself with others. All information we collect through or in connection with this Applications is subject to our Privacy Policy [INSERT AS LINK TO PRIVACY POLICY]. By downloading, installing, using, and providing information to or through this Applications, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.
Your Content and Submissions. By posting or submitting any material (including, without limitation, comments, photos and videos) to us via the Applications, you are representing: (i) that you are the owner of the material, or are making your posting or submission with the express consent of the owner of the material; and (ii) that you are eighteen years of age or older. In addition, when you submit or post any material, you are granting us, and anyone authorized by us, a royalty-free, perpetual, irrevocable, non-exclusive, unrestricted, worldwide license to use, copy, modify, transmit, sell, exploit, create derivative works from, distribute, and/or publicly perform or display such material, in whole or in part, in any manner or medium, now known or hereafter developed, for any purpose. The foregoing grant shall include the right to exploit any proprietary rights in such posting or submission, including, but not limited to, rights under copyright, trademark, service mark or patent laws under any relevant jurisdiction. Also, in connection with the exercise of such rights, you grant us, and anyone authorized by us, the right to identify you as the author of any of your postings or submissions by name, email address or screen name, as we deem appropriate.
You acknowledge and agree that any contributions originally created by you for us shall be deemed a “work made for hire” when the work performed is within the scope of the definition of a work made for hire in Section 101 of the United States Copyright Law, as amended. As such, the copyrights in those works shall belong to us from their creation. Thus, we shall be deemed the author and exclusive owner thereof and shall have the right to exploit any or all of the results and proceeds in any and all media, now known or hereafter devised, throughout the universe, in perpetuity, in all languages, as we determine. In the event that any of the results and proceeds of your submissions hereunder are not deemed a “work made for hire” under Section 101 of the Copyright Act, as amended, you hereby, without additional compensation, irrevocably assign, convey and transfer to us all proprietary rights, including without limitation, all copyrights and trademarks throughout the universe, in perpetuity in every medium, whether now known or hereafter devised, to such material and any and all right, title and interest in and to all such proprietary rights in every medium, whether now known or hereafter devised, throughout the universe, in perpetuity. Any posted material which are reproductions of prior works by you shall be co-owned by us.
You acknowledge that we have the right but not the obligation to use and display any postings or contributions of any kind and that we may elect to cease the use and display of any such materials (or any portion thereof), at any time for any reason whatsoever.
Our Applications may provide you an opportunity to provide feedback or other user content or submissions (“Submission”). At our sole discretion we will determine whether to post your Submission on our Website or Applications. In submitting a Submission, you agree to grant us an irrevocable, assignable, worldwide license and sublicense to use your Submission on our Website our Applications, media advertisements, social media platforms and any other media of our choosing, as well as the right to use and display the name, photograph and any other biographical information that you submit with any Submission. You will receive no compensation or royalties for the use of your Submission. If you submit a Submission, you represent and warrant that you own or otherwise control the rights to your Submission. You further represent and warrant that such Submission is not in breach of this Agreement or our Privacy Policy, nor does the Submission violate any law or judicial or governmental order. You further represent and warrant that such Submission does not constitute or contain software viruses, commercial solicitation, chain letters, mass mailings, or any form of "spam." You may not use a false email address, impersonate any person or entity, or otherwise mislead us as to the origin of any Submission. You agree to indemnify and hold us harmless from and against any and all claims arising from or in connection with breach of your representations and warranties in this section 5.
Content and Services. The Applications may provide you with access to Company's website located at https://www.genpopinteractive.com/ (the "Website") and other Company products and services (collectively, "Content and Services"). Your access to and use of such Content and Services are governed by this Agreement and the Privacy Policy located at [PRIVACY POLICY LINK], which is incorporated herein by this reference.
Updates. Company may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, "Updates"). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Device settings, when your Device is connected to the internet either:
the Applications will automatically download and install all available Updates; or
you may receive notice of or be prompted to download and install available Updates.
You shall promptly download and install all Updates and acknowledge and agree that the Application or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Applications and be subject to all terms and conditions of this Agreement.
Third-Party Materials. The Applications may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising ("Third-Party Materials"). You acknowledge and agree that Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties' terms and conditions. The Third-Party Materials may contain software and other programming interfaces, materials and other information or content owned and licensed for use in the Applications by Epic Games (the “Epic Materials”). Both Company and Epic Games hereby expressly disclaim any representations, warranties, conditions, or liabilities related to the Epic Materials and neither Company nor Epic Games shall have any liability or responsibility to you or any other person or entity for any Epic Materials.
Copyright Infringement Notification and Procedure. If you believe that the Applications contain text, images, or other elements that infringe your copyrights in your work, please follow these procedures.
All notifications of claimed copyright infringement related to the Applications should be sent only to our Designated Agent identified below.
(a) Written notification must be submitted by email or mail to the following Designated Agent:
Gen Pop Copyright Agent
(b) Full Address of Designated Agent to Which Notification Should be Sent:
Genpop Interactive Inc., 15821 Ventura Blvd. #370, Encino, CA, 91436
(c) Telephone Number of Designated Agent:
1-818-385-1933
(d) Email Address of Designated Agent:
info@genpopinteractive.com
In order to comply with Title 17, United States Code, Section 512(c)(3)(A), the Notification of Claimed Infringement must include the following:
(a) An electronic or physical signature of the copyright owner or of the person authorized to act on behalf of the copyright owner of the copyrighted work(s);
(b) Identification of the copyrighted work(s) that you or the copyright owner claim has been infringed;
(c) A description of the material that you or the copyright owner claim is infringing, and the location where the original or an authorized copy of the copyrighted work exists (for example, the URL of the page as to this Website where it is lawfully posted;
(d) A clear description of where the infringing material is located on our website, including as applicable its URL, so that we can locate the material;
(e) Your name, address, telephone number, and e-mail address;
(f) A statement that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
(g) A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
Term and Termination.
The term of Agreement commences when you download or install the Application and will continue in effect until terminated by you or Company as set forth in this Section 10.
You may terminate this Agreement by deleting the Applications and all copies thereof from your Device and cease all use of the Content and Services.
Company may terminate this Agreement at any time without notice if it ceases to support the Applications, which Company may do in its sole discretion. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement or the Privacy Policy.
Upon termination:
all rights granted to you under this Agreement will also terminate; and
you must cease all use of the Applications and delete all copies of the Applications from your Device and account.
Termination will not limit any of Company's rights or remedies at law or in equity.
Disclaimer of Warranties. THE APPLICATIONS ARE PROVIDED TO END USER "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATIONS, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATIONS WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATIONS OR THE CONTENT AND SERVICES FOR:
PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.
DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATIONS.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
Indemnification. You agree to indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, arising from or relating to your use or misuse of the Applications or your breach of this Agreement, including but not limited to the content you submit or make available through this Applications.
Export Regulation. The Applications may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Applications to, or make the Applications accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Applications available outside the US.
US Government Rights. The Application is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Application as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
Governing Law/Dispute Resolution/Arbitration. In the event of a dispute, you and Company agree to try to resolve it informally first. If it’s not resolved 60 days later, we agree to arbitrate the claim, instead of going to court. You may opt-out of arbitration within 30 days of accepting this Agreement.
You agree to resolve disputes with Company through binding arbitration, except as described in this section 18 (“Arbitration Clause”). The parties expressly waive the right to bring or participate in any kind of class, collective, or mass action, private attorney general action, or any other representative action, except as described in Section 18(g). You may opt-out of this Arbitration Clause under Section 18(k).
(A) COVERED DISPUTES. YOU AND COMPANY AGREE THAT ANY DISPUTE OR CLAIM BETWEEN YOU AND COMPANY ARISING OUT OF OR RELATING TO THE AGREEMENT OR THE APPLICATIONS (A “DISPUTE”) WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT. A DISPUTE INCLUDES ANY CLAIM OR DISPUTE RELATING TO THE WEBSITE, ACCESS AND USE THEREOF, YOUR ACCOUNT, OR ANY ASPECTS OF YOUR RELATIONSHIP OR TRANSACTIONS WITH COMPANY. A DISPUTE ALSO INCLUDES ANY CLAIMS OR DISPUTES THAT AROSE FROM OR INVOLVE FACTS THAT OCCURRED BEFORE THE EFFECTIVENESS OF THE AGREEMENT AND CLAIMS THAT MAY ARISE AFTER ITS TERMINATION. FOR CLARITY, NOTHING IN THIS ARBITRATION CLAUSE PREVENTS EITHER PARTY FROM SETTLING ANY DISPUTE(S) ON A CLASS-WIDE, BATCH-WIDE OR OTHER MULTIPARTY BASIS.
(B) EXCEPTIONS TO ARBITRATION. THIS ARBITRATION CLAUSE DOES NOT REQUIRE ARBITRATION OF THE FOLLOWING TYPES OF CLAIMS BROUGHT BY EITHER YOU OR Company:
(i) small claims court actions, if the requirements of the court are met and the claims are only on an individual basis;
(ii) claims relating to intellectual property rights, such as trademarks, trade dress, domain names, trade secrets, copyrights and patents; and
(iii) claims for public injunctive relief as allowed and interpreted by applicable law.
(C) INFORMAL DISPUTE RESOLUTION FIRST. LIKE YOU, WE WANT TO RESOLVE DISPUTES WITHOUT RESORTING TO ARBITRATION. IF YOU HAVE A DISPUTE WITH US, BEFORE INITIATING ARBITRATION, YOU AGREE TO SEND AN INDIVIDUALIZED REQUEST (“PRE-ARBITRATION DEMAND”) TO INFO@GENPOPINTERACTIVE.COM SO THAT WE CAN WORK TOGETHER TO RESOLVE THE DISPUTE.
This Section 18(c) is a condition precedent to commencing arbitration. The arbitrator will dismiss any arbitration filed without fully and completely complying with these informal dispute resolution procedures.
(i) A Pre-Arbitration Demand is only valid when it pertains to, and is on behalf of, a single individual. A Pre-Arbitration Demand brought on behalf of multiple individuals is invalid as to all.
(ii) The Pre-Arbitration Demand must include: (i) your name, telephone number, mailing address, and email address associated with your account; (ii) the name, telephone number, mailing address and email address of your counsel, if any; (iii) a description of your dispute; and (iv) your signature.
(iii) Likewise, if Company has a Dispute with you, Company will send an email with its individualized Pre-Arbitration Demand, including the requirements listed above, to the email address associated with your account.
(iv) If the Dispute is not resolved within sixty (60) calendar days of when either you or Company submitted a Pre-Arbitration Demand, an arbitration can be brought.
(v) This Section 18(c) does not apply to claims brought under the exception to arbitration in Section 18(b).
(vi) If, contrary to this provision, a party prematurely files an arbitration demand, the parties agree that the arbitration provider must hold those demands in abeyance.
(D) ARBITRATION PROCEDURE. IF, AFTER COMPLETING THE INFORMAL PROCESS IN SECTION 18(C), EITHER YOU OR COMPANY WISHES TO INITIATE ARBITRATION, THE INITIATING PARTY MUST SERVE THE OTHER PARTY WITH A DEMAND FOR ARBITRATION. ANY DEMAND FOR ARBITRATION BY YOU WILL BE SENT TO THE COMPANY ADDRESS IN SECTION 18(C). COMPANY WILL SEND ANY ARBITRATION DEMAND TO THE EMAIL ADDRESS ASSOCIATED WITH YOUR COMPANY ACCOUNT OR TO YOUR COUNSEL, IF ANY. YOU AND COMPANY AGREE THAT THE FEDERAL ARBITRATION ACT (“FAA”) GOVERNS THIS ARBITRATION CLAUSE. IF THE FAA CANNOT APPLY, THEN THE STATE LAWS GOVERNING ARBITRATION PROCEDURES WHERE YOU RESIDE APPLY.
(i) The arbitration will be administered by the American Arbitration Association (“AAA”) under its operative Commercial Arbitration Rules, including its Mass Arbitration Supplementary Rules, available at https://www.adr.org/Rules. This Arbitration Clause will govern to the extent it conflicts with the arbitration provider’s rules.
(ii) If the applicable arbitration provider is not available to arbitrate, the parties will select an alternative arbitration provider. If the parties cannot agree on an appropriate alternative arbitration provider, the parties will ask a court of competent jurisdiction to appoint an arbitrator pursuant to 9 U.S.C. § 5. To the extent there is a dispute over which arbitration provider has jurisdiction, a AAA arbitrator will be appointed to resolve that dispute.
(iii) Arbitration hearings will take place through videoconferencing, unless you and Company agree upon another location in writing. A single arbitrator will be appointed.
(iv) The arbitrator may award damages, declaratory or injunctive relief, and recoverable costs. Any arbitration award may be enforced (such as through a judgment) in any court with jurisdiction over the dispute. An arbitration award will have no preclusive effect in another arbitration or court proceeding involving Company and a different individual. The arbitrator will have the exclusive authority to resolve all threshold arbitrability issues, including whether this Arbitration Clause is applicable, unconscionable, or enforceable, as well as any defenses to arbitration. However, a court has exclusive authority to rule on the Class Action Waiver in Section 18(f), including any claim that the section is unenforceable, illegal, void or voidable, or that it has been breached.
(v) If a request to proceed in small claims court (see Section 18(b)), is made after an arbitration has been initiated, but before an arbitrator has been appointed, such arbitration will be administratively closed. Any controversy over the small claims court’s jurisdiction will be determined by the small claims court.
(E) JURY TRIAL WAIVER. YOU AND COMPANY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. YOU AND COMPANY ARE INSTEAD ELECTING THAT ALL DISPUTES WILL BE RESOLVED BY ARBITRATION UNDER THIS ARBITRATION CLAUSE, EXCEPT AS SPECIFIED IN SECTION 18(B) ABOVE. COURT REVIEW OF AN ARBITRATION AWARD IS SUBJECT TO VERY LIMITED REVIEW. DISCOVERY MAY BE LIMITED IN ARBITRATION, AND PROCEDURES ARE MORE STREAMLINED THAN IN COURT.
(F) CLASS ACTION WAIVER. YOU AND COMPANY AGREE THAT, EXCEPT AS SPECIFIED IN SECTION 18(G) BELOW, EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS.
(i) The parties hereby waive all rights to have any Dispute be brought, heard, administered, resolved, or arbitrated on a class, collective, representative, or mass action basis.
(ii) Subject to this Arbitration Clause, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief to the party’s individual claim.
(iii) Notwithstanding anything to the contrary in this Arbitration Clause, if a court decides, in a final nonappealable decision, that the limitations of this Section 18(f) are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Company agree that that particular claim or request for relief (and only that particular claim or request for relief) will be severed from the arbitration and will be pursued in the courts specified in Section 18(d).
(G) BATCH PROCEEDINGS. TO INCREASE THE EFFICIENCY OF ADMINISTRATION AND RESOLUTION OF ARBITRATIONS, YOU AND COMPANY AGREE THAT IF 25 OR MORE SIMILAR ARBITRATION DEMANDS (THOSE ASSERTING THE SAME OR SUBSTANTIALLY SIMILAR FACTS OR CLAIMS, AND SEEKING THE SAME OR SUBSTANTIALLY SIMILAR RELIEF), PRESENTED BY OR WITH THE ASSISTANCE OR COORDINATION OF THE SAME LAW FIRM(S) OR ORGANIZATION(S), ARE FILED WITHIN A ONE HUNDRED AND EIGHTY (180) DAY PERIOD (“MASS FILING”), THE PARTIES AGREE:
(i) to administer the Mass Filing in batches of 25 demands per batch (or less, if fewer than 25 remain) (“Batch Proceedings”) with only one batch filed, processed, and adjudicated at a time;
(ii) to designate one arbitrator for each batch;
(iii) to accept applicable fees, including any related fee reduction determined by AAA in its discretion or in accordance with its applicable rules;
(iv) that no other demands for arbitration that are part of the Mass Filing may be filed, processed, or adjudicated until the prior batch of 25 is filed, processed, and adjudicated;
(v) that fees associated with a demand for arbitration included in a Mass Filing, including fees owed by Company and the claimants, will only be due after your demand for arbitration is included in a set of batch proceedings and that batch is properly designated for filing, processing, and adjudication; and
(vi) that the staged process of batched proceedings, with each set including 25 demands, will continue until each demand (including your demand) is adjudicated or otherwise resolved.
(vii) Any statutes of limitation, including the requirement to file within one (1) year in Section 18(j) below, will remain tolled while any arbitration demands are held in abeyance. While the Batch Proceedings are adjudicated, no other demand for arbitration that is part of the Mass Filing may be processed, administrated, or adjudicated, and no filing or other administrative costs for such a demand for arbitration will be due from either party to the arbitration provider.
(viii) All parties agree that arbitration demands are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario, raise the same or similar legal issues and seek the same or similar relief. Any party may request that the arbitration provider appoint a sole standing administrative arbitrator (“Administrative Arbitrator”) to determine threshold questions such as (1) whether the Batch Proceeding process is applicable or enforceable, (2) whether particular demand(s) are part of a Mass Filing, and (3) whether demands within a Mass Filing were filed in accordance with this Arbitration Clause, including Section 18(c).
(ix) To expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree that the Administrative Arbitrator may provide and use any procedures necessary to resolve the dispute promptly. Company will pay the Administrative Arbitrator’s costs.
(x) The parties will work in good faith with the arbitrator to complete each Batch Proceeding within one hundred and twenty (120) calendar days of its initial pre-hearing conference. The parties agree that the Batch Proceeding process is designed to achieve an overall faster, more efficient, and less costly mechanism for resolving Mass Filings.
(xi) This Batch Proceedings provision will in no way be interpreted as increasing the number of claims necessary to trigger the applicability of AAA’s Mass Arbitration Supplementary Rules, or authorizing class arbitration of any kind. Unless Company otherwise consents in writing, Company does not agree or consent to class arbitration, private attorney general arbitration, or arbitration involving joint or consolidated claims under any circumstances, except as set forth in this Section 18(g).
(H) SETTLEMENT. AT LEAST TEN (10) CALENDAR DAYS BEFORE THE DATE SET FOR THE ARBITRATION HEARING, YOU OR COMPANY MAY SERVE A WRITTEN OFFER OF JUDGMENT UPON THE OTHER PARTY TO ALLOW JUDGMENT ON SPECIFIED TERMS. IF THE OFFER IS ACCEPTED, THE OFFER WITH PROOF OF ACCEPTANCE WILL BE SUBMITTED TO THE ARBITRATION PROVIDER, WHO WILL ENTER JUDGMENT ACCORDINGLY. IF THE OFFER IS NOT ACCEPTED BEFORE THE EARLIER OF THE ARBITRATION HEARING OR THIRTY (30) CALENDAR DAYS AFTER IT IS MADE, IT WILL BE DEEMED WITHDRAWN, AND CANNOT SERVE AS EVIDENCE IN THE ARBITRATION. IF AN OFFER MADE BY ONE PARTY IS NOT ACCEPTED BY THE OTHER PARTY, AND THE OTHER PARTY FAILS TO OBTAIN A MORE FAVORABLE AWARD, THE OTHER PARTY WILL NOT RECOVER THEIR POST-OFFER COSTS AND WILL PAY THE OFFERING PARTY’S COSTS FROM THE TIME OF THE OFFER.
The parties agree that any disputes with respect to settlement offer(s) or offer(s) of judgment in a Mass Filing are to be resolved by a single arbitrator to the extent such offers contain the same material terms. For arbitrations involving represented parties, the represented parties’ attorneys agree to communicate individual offer(s) of judgment to each and every arbitration claimant or respondent to whom such offers are extended.
(I) ARBITRATION COSTS. EXCEPT AS PROVIDED FOR IN A MASS FILING UNDER SECTION 18(G), YOUR RESPONSIBILITY TO PAY ANY FILING, ADMINISTRATIVE, AND ARBITRATOR COSTS WILL BE SOLELY AS SET FORTH IN THE APPLICABLE ARBITRATION PROVIDER’S RULES.
(J) 18-MONTH FILING DEADLINE. TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND NOTWITHSTANDING ANY OTHER STATUTE OF LIMITATIONS, ANY CLAIM OR CAUSE OF ACTION UNDER THIS ARBITRATION CLAUSE (WITH THE EXCEPTION OF DISPUTES UNDER SECTION 18(B)(II) OR (III)) MUST BE FILED WITHIN EIGHTEEN (18) MONTHS AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE. OTHERWISE, THAT CLAIM OR CAUSE OF ACTION WILL BE PERMANENTLY BARRED. THE STATUTE OF LIMITATIONS AND ANY ARBITRATION COST DEADLINES REMAIN TOLLED DURING THE REQUIRED INFORMAL PROCESS UNDER SECTION 18(C) ABOVE.
(K) OPT-OUT . YOU MAY REJECT THIS ARBITRATION CLAUSE AND OPT OUT OF ARBITRATION BY SENDING AN EMAIL TO INFO@GENPOPINTERACTIVE.COM WITHIN THIRTY (30) CALENDAR DAYS OF FIRST ACCEPTING THESE TERMS. IF YOU HAVE AN ACCOUNT, YOUR OPT-OUT NOTICE MUST BE SENT FROM THE EMAIL ADDRESS ASSOCIATED WITH YOUR ACCOUNT. NO ONE MAY OPT-OUT ANOTHER PERSON. YOUR NOTICE TO OPT-OUT MUST INCLUDE YOUR FIRST AND LAST NAME, ADDRESS, THE EMAIL ADDRESS ASSOCIATED WITH YOUR ACCOUNT (IF YOU HAVE AN ACCOUNT), AND A CLEAR STATEMENT THAT YOU DECLINE THIS ARBITRATION CLAUSE.
(L) SEVERABILITY. EXCEPT AS PROVIDED IN SECTION 18(F) ABOVE, IF ANY PROVISION OF THIS ARBITRATION CLAUSE IS FOUND TO BE ILLEGAL OR UNENFORCEABLE, THEN THAT PROVISION WILL BE SEVERED. THE REMAINING PROVISIONS WILL STILL APPLY AND WILL BE INTERPRETED TO ACHIEVE THE CLOSEST POSSIBLE INTENT TO THE ORIGINAL INTENT OF THIS SECTION, INCLUSIVE OF THE SEVERED PROVISION.
(M) GOVERNING LAW; FORUM. THIS AGREEMENT IS GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT RESORT TO ITS CONFLICT OF LAW PROVISIONS. SUBJECT TO SECTION 18 (DISPUTE RESOLUTION), YOU AND WE AGREE TO ONLY BRING DISPUTES AND ANY OTHER LEGAL PROCEEDING IN THE STATE AND FEDERAL COURTS LOCATED IN LOS ANGELES, CALIFORNIA. YOU AND WE CONSENT TO THE JURISDICTION OF THOSE COURTS. YOU AND WE AGREE THAT THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS WILL NOT APPLY TO PRODUCTS OR THE INTERPRETATION OR CONSTRUCTION OF THIS AGREEMENT.
Entire Agreement. This Agreement and our Privacy Policy constitute the entire agreement between you and Company with respect to the Applications and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Applications.
Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.
BY CLICKING THE "ACCEPT" BUTTON YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER/OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE APPLICATIONS.
NOTICE: THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION AGREEMENT. YOU AGREE THAT ANY CLAIMS YOU MAY HAVE AGAINST US RELATING TO THE SITE, THIS AGREEMENT OR ANY TERMS AND CONDITIONS CONTAINED HEREIN MUST BE ARBITRATED, AND YOU EXPRESSLY WAIVE THE RIGHT TO (1) ASSERT CLAIMS AGAINST US IN COURT; (2) PARTICIPATE IN A REPRESENTATIVE OR CLASS ACTION; AND (3) HAVE A JURY HEAR YOUR CASE. YOU EXPRESSLY CONSENT TO HAVE ALL OF YOUR CLAIMS ARBITRATED ON AN INDIVIDUAL BASIS ONLY.
Please review our Privacy Policy (INSERT LINK) which also governs your interactions with the Applications.
License Grant. Subject to the terms of this Agreement, Company grants you a limited, non-exclusive, and nontransferable license to:
download, install, and use the Applications for your personal, non-commercial use on a single device owned or otherwise controlled by you ("Device") strictly in accordance with the Applications’ documentation; and
access, stream, download, and use on such Device the Content and Services (as defined in Section 6) made available in or otherwise accessible through the Application, strictly in accordance with this Agreement.
License Restrictions. You shall not:
copy the Applications, except as expressly permitted by this license;
modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Applications;
reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Applications or any part thereof;
remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Applications, including any copies thereof;
rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Applications, or any features or functionality of the Applications, to any third party for any reason, including by making the Applications available on a network where it is capable of being accessed by more than one device at any time;
remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Applications;
license, sell, rent, lease, transfer, assign, reproduce, distribute, host, or otherwise commercially exploit the Applications or any portion of the Applications;
use any data from the Applications for the development of any software program (including but not limited to training a machine learning or artificial intelligence (AI) system);
transmit, distribute or upload programs or material that contain malicious code, including, but not limited to viruses, time bombs, cancelbots, worms, Trojan horses, Easter eggs, spyware, or other potentially harmful programs or other materials or information;
send or enable the transmission of junk email, duplicative or unsolicited messages, or so-called “spamming” or “phishing”;
disrupt, impair, alter or otherwise interfere with the functions, features, Content or use of the Applications;
violate any laws, regulations, judicial or governmental order, any treaties, or violate or infringe upon any intellectual property rights, rights of publicity or privacy, or any other rights of ours or of any third party; or
gain unauthorized access to the Applications.
Reservation of Rights. You acknowledge and agree that the Applications are provided under license, and not sold, to you. You do not acquire any ownership interest in the Applications under this Agreement, or any other rights thereto other than to use the Applications in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Company and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Applications, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
Collection and Use of Your Information. You acknowledge that when you download, install, or use the Applications, Company may use automatic means (including, for example, cookies and web beacons) to collect information about your Device and about your use of the Applications. You also may be required to provide certain information about yourself as a condition to downloading, installing, or using the Applications or certain of its features or functionality, and the Applications may provide you with opportunities to share information about yourself with others. All information we collect through or in connection with this Applications is subject to our Privacy Policy [INSERT AS LINK TO PRIVACY POLICY]. By downloading, installing, using, and providing information to or through this Applications, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.
Your Content and Submissions. By posting or submitting any material (including, without limitation, comments, photos and videos) to us via the Applications, you are representing: (i) that you are the owner of the material, or are making your posting or submission with the express consent of the owner of the material; and (ii) that you are eighteen years of age or older. In addition, when you submit or post any material, you are granting us, and anyone authorized by us, a royalty-free, perpetual, irrevocable, non-exclusive, unrestricted, worldwide license to use, copy, modify, transmit, sell, exploit, create derivative works from, distribute, and/or publicly perform or display such material, in whole or in part, in any manner or medium, now known or hereafter developed, for any purpose. The foregoing grant shall include the right to exploit any proprietary rights in such posting or submission, including, but not limited to, rights under copyright, trademark, service mark or patent laws under any relevant jurisdiction. Also, in connection with the exercise of such rights, you grant us, and anyone authorized by us, the right to identify you as the author of any of your postings or submissions by name, email address or screen name, as we deem appropriate.
You acknowledge and agree that any contributions originally created by you for us shall be deemed a “work made for hire” when the work performed is within the scope of the definition of a work made for hire in Section 101 of the United States Copyright Law, as amended. As such, the copyrights in those works shall belong to us from their creation. Thus, we shall be deemed the author and exclusive owner thereof and shall have the right to exploit any or all of the results and proceeds in any and all media, now known or hereafter devised, throughout the universe, in perpetuity, in all languages, as we determine. In the event that any of the results and proceeds of your submissions hereunder are not deemed a “work made for hire” under Section 101 of the Copyright Act, as amended, you hereby, without additional compensation, irrevocably assign, convey and transfer to us all proprietary rights, including without limitation, all copyrights and trademarks throughout the universe, in perpetuity in every medium, whether now known or hereafter devised, to such material and any and all right, title and interest in and to all such proprietary rights in every medium, whether now known or hereafter devised, throughout the universe, in perpetuity. Any posted material which are reproductions of prior works by you shall be co-owned by us.
You acknowledge that we have the right but not the obligation to use and display any postings or contributions of any kind and that we may elect to cease the use and display of any such materials (or any portion thereof), at any time for any reason whatsoever.
Our Applications may provide you an opportunity to provide feedback or other user content or submissions (“Submission”). At our sole discretion we will determine whether to post your Submission on our Website or Applications. In submitting a Submission, you agree to grant us an irrevocable, assignable, worldwide license and sublicense to use your Submission on our Website our Applications, media advertisements, social media platforms and any other media of our choosing, as well as the right to use and display the name, photograph and any other biographical information that you submit with any Submission. You will receive no compensation or royalties for the use of your Submission. If you submit a Submission, you represent and warrant that you own or otherwise control the rights to your Submission. You further represent and warrant that such Submission is not in breach of this Agreement or our Privacy Policy, nor does the Submission violate any law or judicial or governmental order. You further represent and warrant that such Submission does not constitute or contain software viruses, commercial solicitation, chain letters, mass mailings, or any form of "spam." You may not use a false email address, impersonate any person or entity, or otherwise mislead us as to the origin of any Submission. You agree to indemnify and hold us harmless from and against any and all claims arising from or in connection with breach of your representations and warranties in this section 5.
Content and Services. The Applications may provide you with access to Company's website located at https://www.genpopinteractive.com/ (the "Website") and other Company products and services (collectively, "Content and Services"). Your access to and use of such Content and Services are governed by this Agreement and the Privacy Policy located at [PRIVACY POLICY LINK], which is incorporated herein by this reference.
Updates. Company may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, "Updates"). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Device settings, when your Device is connected to the internet either:
the Applications will automatically download and install all available Updates; or
you may receive notice of or be prompted to download and install available Updates.
You shall promptly download and install all Updates and acknowledge and agree that the Application or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Applications and be subject to all terms and conditions of this Agreement.
Third-Party Materials. The Applications may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising ("Third-Party Materials"). You acknowledge and agree that Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties' terms and conditions. The Third-Party Materials may contain software and other programming interfaces, materials and other information or content owned and licensed for use in the Applications by Epic Games (the “Epic Materials”). Both Company and Epic Games hereby expressly disclaim any representations, warranties, conditions, or liabilities related to the Epic Materials and neither Company nor Epic Games shall have any liability or responsibility to you or any other person or entity for any Epic Materials.
Copyright Infringement Notification and Procedure. If you believe that the Applications contain text, images, or other elements that infringe your copyrights in your work, please follow these procedures.
All notifications of claimed copyright infringement related to the Applications should be sent only to our Designated Agent identified below.
(a) Written notification must be submitted by email or mail to the following Designated Agent:
Gen Pop Copyright Agent
(b) Full Address of Designated Agent to Which Notification Should be Sent:
Genpop Interactive Inc., 15821 Ventura Blvd. #370, Encino, CA, 91436
(c) Telephone Number of Designated Agent:
1-818-385-1933
(d) Email Address of Designated Agent:
info@genpopinteractive.com
In order to comply with Title 17, United States Code, Section 512(c)(3)(A), the Notification of Claimed Infringement must include the following:
(a) An electronic or physical signature of the copyright owner or of the person authorized to act on behalf of the copyright owner of the copyrighted work(s);
(b) Identification of the copyrighted work(s) that you or the copyright owner claim has been infringed;
(c) A description of the material that you or the copyright owner claim is infringing, and the location where the original or an authorized copy of the copyrighted work exists (for example, the URL of the page as to this Website where it is lawfully posted;
(d) A clear description of where the infringing material is located on our website, including as applicable its URL, so that we can locate the material;
(e) Your name, address, telephone number, and e-mail address;
(f) A statement that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
(g) A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
Term and Termination.
The term of Agreement commences when you download or install the Application and will continue in effect until terminated by you or Company as set forth in this Section 10.
You may terminate this Agreement by deleting the Applications and all copies thereof from your Device and cease all use of the Content and Services.
Company may terminate this Agreement at any time without notice if it ceases to support the Applications, which Company may do in its sole discretion. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement or the Privacy Policy.
Upon termination:
all rights granted to you under this Agreement will also terminate; and
you must cease all use of the Applications and delete all copies of the Applications from your Device and account.
Termination will not limit any of Company's rights or remedies at law or in equity.
Disclaimer of Warranties. THE APPLICATIONS ARE PROVIDED TO END USER "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATIONS, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATIONS WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATIONS OR THE CONTENT AND SERVICES FOR:
PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.
DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATIONS.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
Indemnification. You agree to indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, arising from or relating to your use or misuse of the Applications or your breach of this Agreement, including but not limited to the content you submit or make available through this Applications.
Export Regulation. The Applications may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Applications to, or make the Applications accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Applications available outside the US.
US Government Rights. The Application is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Application as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
Governing Law/Dispute Resolution/Arbitration. In the event of a dispute, you and Company agree to try to resolve it informally first. If it’s not resolved 60 days later, we agree to arbitrate the claim, instead of going to court. You may opt-out of arbitration within 30 days of accepting this Agreement.
You agree to resolve disputes with Company through binding arbitration, except as described in this section 18 (“Arbitration Clause”). The parties expressly waive the right to bring or participate in any kind of class, collective, or mass action, private attorney general action, or any other representative action, except as described in Section 18(g). You may opt-out of this Arbitration Clause under Section 18(k).
(A) COVERED DISPUTES. YOU AND COMPANY AGREE THAT ANY DISPUTE OR CLAIM BETWEEN YOU AND COMPANY ARISING OUT OF OR RELATING TO THE AGREEMENT OR THE APPLICATIONS (A “DISPUTE”) WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT. A DISPUTE INCLUDES ANY CLAIM OR DISPUTE RELATING TO THE WEBSITE, ACCESS AND USE THEREOF, YOUR ACCOUNT, OR ANY ASPECTS OF YOUR RELATIONSHIP OR TRANSACTIONS WITH COMPANY. A DISPUTE ALSO INCLUDES ANY CLAIMS OR DISPUTES THAT AROSE FROM OR INVOLVE FACTS THAT OCCURRED BEFORE THE EFFECTIVENESS OF THE AGREEMENT AND CLAIMS THAT MAY ARISE AFTER ITS TERMINATION. FOR CLARITY, NOTHING IN THIS ARBITRATION CLAUSE PREVENTS EITHER PARTY FROM SETTLING ANY DISPUTE(S) ON A CLASS-WIDE, BATCH-WIDE OR OTHER MULTIPARTY BASIS.
(B) EXCEPTIONS TO ARBITRATION. THIS ARBITRATION CLAUSE DOES NOT REQUIRE ARBITRATION OF THE FOLLOWING TYPES OF CLAIMS BROUGHT BY EITHER YOU OR Company:
(i) small claims court actions, if the requirements of the court are met and the claims are only on an individual basis;
(ii) claims relating to intellectual property rights, such as trademarks, trade dress, domain names, trade secrets, copyrights and patents; and
(iii) claims for public injunctive relief as allowed and interpreted by applicable law.
(C) INFORMAL DISPUTE RESOLUTION FIRST. LIKE YOU, WE WANT TO RESOLVE DISPUTES WITHOUT RESORTING TO ARBITRATION. IF YOU HAVE A DISPUTE WITH US, BEFORE INITIATING ARBITRATION, YOU AGREE TO SEND AN INDIVIDUALIZED REQUEST (“PRE-ARBITRATION DEMAND”) TO INFO@GENPOPINTERACTIVE.COM SO THAT WE CAN WORK TOGETHER TO RESOLVE THE DISPUTE.
This Section 18(c) is a condition precedent to commencing arbitration. The arbitrator will dismiss any arbitration filed without fully and completely complying with these informal dispute resolution procedures.
(i) A Pre-Arbitration Demand is only valid when it pertains to, and is on behalf of, a single individual. A Pre-Arbitration Demand brought on behalf of multiple individuals is invalid as to all.
(ii) The Pre-Arbitration Demand must include: (i) your name, telephone number, mailing address, and email address associated with your account; (ii) the name, telephone number, mailing address and email address of your counsel, if any; (iii) a description of your dispute; and (iv) your signature.
(iii) Likewise, if Company has a Dispute with you, Company will send an email with its individualized Pre-Arbitration Demand, including the requirements listed above, to the email address associated with your account.
(iv) If the Dispute is not resolved within sixty (60) calendar days of when either you or Company submitted a Pre-Arbitration Demand, an arbitration can be brought.
(v) This Section 18(c) does not apply to claims brought under the exception to arbitration in Section 18(b).
(vi) If, contrary to this provision, a party prematurely files an arbitration demand, the parties agree that the arbitration provider must hold those demands in abeyance.
(D) ARBITRATION PROCEDURE. IF, AFTER COMPLETING THE INFORMAL PROCESS IN SECTION 18(C), EITHER YOU OR COMPANY WISHES TO INITIATE ARBITRATION, THE INITIATING PARTY MUST SERVE THE OTHER PARTY WITH A DEMAND FOR ARBITRATION. ANY DEMAND FOR ARBITRATION BY YOU WILL BE SENT TO THE COMPANY ADDRESS IN SECTION 18(C). COMPANY WILL SEND ANY ARBITRATION DEMAND TO THE EMAIL ADDRESS ASSOCIATED WITH YOUR COMPANY ACCOUNT OR TO YOUR COUNSEL, IF ANY. YOU AND COMPANY AGREE THAT THE FEDERAL ARBITRATION ACT (“FAA”) GOVERNS THIS ARBITRATION CLAUSE. IF THE FAA CANNOT APPLY, THEN THE STATE LAWS GOVERNING ARBITRATION PROCEDURES WHERE YOU RESIDE APPLY.
(i) The arbitration will be administered by the American Arbitration Association (“AAA”) under its operative Commercial Arbitration Rules, including its Mass Arbitration Supplementary Rules, available at https://www.adr.org/Rules. This Arbitration Clause will govern to the extent it conflicts with the arbitration provider’s rules.
(ii) If the applicable arbitration provider is not available to arbitrate, the parties will select an alternative arbitration provider. If the parties cannot agree on an appropriate alternative arbitration provider, the parties will ask a court of competent jurisdiction to appoint an arbitrator pursuant to 9 U.S.C. § 5. To the extent there is a dispute over which arbitration provider has jurisdiction, a AAA arbitrator will be appointed to resolve that dispute.
(iii) Arbitration hearings will take place through videoconferencing, unless you and Company agree upon another location in writing. A single arbitrator will be appointed.
(iv) The arbitrator may award damages, declaratory or injunctive relief, and recoverable costs. Any arbitration award may be enforced (such as through a judgment) in any court with jurisdiction over the dispute. An arbitration award will have no preclusive effect in another arbitration or court proceeding involving Company and a different individual. The arbitrator will have the exclusive authority to resolve all threshold arbitrability issues, including whether this Arbitration Clause is applicable, unconscionable, or enforceable, as well as any defenses to arbitration. However, a court has exclusive authority to rule on the Class Action Waiver in Section 18(f), including any claim that the section is unenforceable, illegal, void or voidable, or that it has been breached.
(v) If a request to proceed in small claims court (see Section 18(b)), is made after an arbitration has been initiated, but before an arbitrator has been appointed, such arbitration will be administratively closed. Any controversy over the small claims court’s jurisdiction will be determined by the small claims court.
(E) JURY TRIAL WAIVER. YOU AND COMPANY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. YOU AND COMPANY ARE INSTEAD ELECTING THAT ALL DISPUTES WILL BE RESOLVED BY ARBITRATION UNDER THIS ARBITRATION CLAUSE, EXCEPT AS SPECIFIED IN SECTION 18(B) ABOVE. COURT REVIEW OF AN ARBITRATION AWARD IS SUBJECT TO VERY LIMITED REVIEW. DISCOVERY MAY BE LIMITED IN ARBITRATION, AND PROCEDURES ARE MORE STREAMLINED THAN IN COURT.
(F) CLASS ACTION WAIVER. YOU AND COMPANY AGREE THAT, EXCEPT AS SPECIFIED IN SECTION 18(G) BELOW, EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS.
(i) The parties hereby waive all rights to have any Dispute be brought, heard, administered, resolved, or arbitrated on a class, collective, representative, or mass action basis.
(ii) Subject to this Arbitration Clause, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief to the party’s individual claim.
(iii) Notwithstanding anything to the contrary in this Arbitration Clause, if a court decides, in a final nonappealable decision, that the limitations of this Section 18(f) are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Company agree that that particular claim or request for relief (and only that particular claim or request for relief) will be severed from the arbitration and will be pursued in the courts specified in Section 18(d).
(G) BATCH PROCEEDINGS. TO INCREASE THE EFFICIENCY OF ADMINISTRATION AND RESOLUTION OF ARBITRATIONS, YOU AND COMPANY AGREE THAT IF 25 OR MORE SIMILAR ARBITRATION DEMANDS (THOSE ASSERTING THE SAME OR SUBSTANTIALLY SIMILAR FACTS OR CLAIMS, AND SEEKING THE SAME OR SUBSTANTIALLY SIMILAR RELIEF), PRESENTED BY OR WITH THE ASSISTANCE OR COORDINATION OF THE SAME LAW FIRM(S) OR ORGANIZATION(S), ARE FILED WITHIN A ONE HUNDRED AND EIGHTY (180) DAY PERIOD (“MASS FILING”), THE PARTIES AGREE:
(i) to administer the Mass Filing in batches of 25 demands per batch (or less, if fewer than 25 remain) (“Batch Proceedings”) with only one batch filed, processed, and adjudicated at a time;
(ii) to designate one arbitrator for each batch;
(iii) to accept applicable fees, including any related fee reduction determined by AAA in its discretion or in accordance with its applicable rules;
(iv) that no other demands for arbitration that are part of the Mass Filing may be filed, processed, or adjudicated until the prior batch of 25 is filed, processed, and adjudicated;
(v) that fees associated with a demand for arbitration included in a Mass Filing, including fees owed by Company and the claimants, will only be due after your demand for arbitration is included in a set of batch proceedings and that batch is properly designated for filing, processing, and adjudication; and
(vi) that the staged process of batched proceedings, with each set including 25 demands, will continue until each demand (including your demand) is adjudicated or otherwise resolved.
(vii) Any statutes of limitation, including the requirement to file within one (1) year in Section 18(j) below, will remain tolled while any arbitration demands are held in abeyance. While the Batch Proceedings are adjudicated, no other demand for arbitration that is part of the Mass Filing may be processed, administrated, or adjudicated, and no filing or other administrative costs for such a demand for arbitration will be due from either party to the arbitration provider.
(viii) All parties agree that arbitration demands are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario, raise the same or similar legal issues and seek the same or similar relief. Any party may request that the arbitration provider appoint a sole standing administrative arbitrator (“Administrative Arbitrator”) to determine threshold questions such as (1) whether the Batch Proceeding process is applicable or enforceable, (2) whether particular demand(s) are part of a Mass Filing, and (3) whether demands within a Mass Filing were filed in accordance with this Arbitration Clause, including Section 18(c).
(ix) To expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree that the Administrative Arbitrator may provide and use any procedures necessary to resolve the dispute promptly. Company will pay the Administrative Arbitrator’s costs.
(x) The parties will work in good faith with the arbitrator to complete each Batch Proceeding within one hundred and twenty (120) calendar days of its initial pre-hearing conference. The parties agree that the Batch Proceeding process is designed to achieve an overall faster, more efficient, and less costly mechanism for resolving Mass Filings.
(xi) This Batch Proceedings provision will in no way be interpreted as increasing the number of claims necessary to trigger the applicability of AAA’s Mass Arbitration Supplementary Rules, or authorizing class arbitration of any kind. Unless Company otherwise consents in writing, Company does not agree or consent to class arbitration, private attorney general arbitration, or arbitration involving joint or consolidated claims under any circumstances, except as set forth in this Section 18(g).
(H) SETTLEMENT. AT LEAST TEN (10) CALENDAR DAYS BEFORE THE DATE SET FOR THE ARBITRATION HEARING, YOU OR COMPANY MAY SERVE A WRITTEN OFFER OF JUDGMENT UPON THE OTHER PARTY TO ALLOW JUDGMENT ON SPECIFIED TERMS. IF THE OFFER IS ACCEPTED, THE OFFER WITH PROOF OF ACCEPTANCE WILL BE SUBMITTED TO THE ARBITRATION PROVIDER, WHO WILL ENTER JUDGMENT ACCORDINGLY. IF THE OFFER IS NOT ACCEPTED BEFORE THE EARLIER OF THE ARBITRATION HEARING OR THIRTY (30) CALENDAR DAYS AFTER IT IS MADE, IT WILL BE DEEMED WITHDRAWN, AND CANNOT SERVE AS EVIDENCE IN THE ARBITRATION. IF AN OFFER MADE BY ONE PARTY IS NOT ACCEPTED BY THE OTHER PARTY, AND THE OTHER PARTY FAILS TO OBTAIN A MORE FAVORABLE AWARD, THE OTHER PARTY WILL NOT RECOVER THEIR POST-OFFER COSTS AND WILL PAY THE OFFERING PARTY’S COSTS FROM THE TIME OF THE OFFER.
The parties agree that any disputes with respect to settlement offer(s) or offer(s) of judgment in a Mass Filing are to be resolved by a single arbitrator to the extent such offers contain the same material terms. For arbitrations involving represented parties, the represented parties’ attorneys agree to communicate individual offer(s) of judgment to each and every arbitration claimant or respondent to whom such offers are extended.
(I) ARBITRATION COSTS. EXCEPT AS PROVIDED FOR IN A MASS FILING UNDER SECTION 18(G), YOUR RESPONSIBILITY TO PAY ANY FILING, ADMINISTRATIVE, AND ARBITRATOR COSTS WILL BE SOLELY AS SET FORTH IN THE APPLICABLE ARBITRATION PROVIDER’S RULES.
(J) 18-MONTH FILING DEADLINE. TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND NOTWITHSTANDING ANY OTHER STATUTE OF LIMITATIONS, ANY CLAIM OR CAUSE OF ACTION UNDER THIS ARBITRATION CLAUSE (WITH THE EXCEPTION OF DISPUTES UNDER SECTION 18(B)(II) OR (III)) MUST BE FILED WITHIN EIGHTEEN (18) MONTHS AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE. OTHERWISE, THAT CLAIM OR CAUSE OF ACTION WILL BE PERMANENTLY BARRED. THE STATUTE OF LIMITATIONS AND ANY ARBITRATION COST DEADLINES REMAIN TOLLED DURING THE REQUIRED INFORMAL PROCESS UNDER SECTION 18(C) ABOVE.
(K) OPT-OUT . YOU MAY REJECT THIS ARBITRATION CLAUSE AND OPT OUT OF ARBITRATION BY SENDING AN EMAIL TO INFO@GENPOPINTERACTIVE.COM WITHIN THIRTY (30) CALENDAR DAYS OF FIRST ACCEPTING THESE TERMS. IF YOU HAVE AN ACCOUNT, YOUR OPT-OUT NOTICE MUST BE SENT FROM THE EMAIL ADDRESS ASSOCIATED WITH YOUR ACCOUNT. NO ONE MAY OPT-OUT ANOTHER PERSON. YOUR NOTICE TO OPT-OUT MUST INCLUDE YOUR FIRST AND LAST NAME, ADDRESS, THE EMAIL ADDRESS ASSOCIATED WITH YOUR ACCOUNT (IF YOU HAVE AN ACCOUNT), AND A CLEAR STATEMENT THAT YOU DECLINE THIS ARBITRATION CLAUSE.
(L) SEVERABILITY. EXCEPT AS PROVIDED IN SECTION 18(F) ABOVE, IF ANY PROVISION OF THIS ARBITRATION CLAUSE IS FOUND TO BE ILLEGAL OR UNENFORCEABLE, THEN THAT PROVISION WILL BE SEVERED. THE REMAINING PROVISIONS WILL STILL APPLY AND WILL BE INTERPRETED TO ACHIEVE THE CLOSEST POSSIBLE INTENT TO THE ORIGINAL INTENT OF THIS SECTION, INCLUSIVE OF THE SEVERED PROVISION.
(M) GOVERNING LAW; FORUM. THIS AGREEMENT IS GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT RESORT TO ITS CONFLICT OF LAW PROVISIONS. SUBJECT TO SECTION 18 (DISPUTE RESOLUTION), YOU AND WE AGREE TO ONLY BRING DISPUTES AND ANY OTHER LEGAL PROCEEDING IN THE STATE AND FEDERAL COURTS LOCATED IN LOS ANGELES, CALIFORNIA. YOU AND WE CONSENT TO THE JURISDICTION OF THOSE COURTS. YOU AND WE AGREE THAT THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS WILL NOT APPLY TO PRODUCTS OR THE INTERPRETATION OR CONSTRUCTION OF THIS AGREEMENT.
Entire Agreement. This Agreement and our Privacy Policy constitute the entire agreement between you and Company with respect to the Applications and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Applications.
Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.