Terms of Service
Terms of Service Agreement
Last Updated: September 21, 2017
THIS TERMS OF SERVICE AGREEMENT CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER, WHICH MAY AFFECT YOUR LEGAL RIGHTS. PLEASE READ IT CAREFULLY.
1. APPLICABILITY AND ACCEPTANCE OF THE TERMS OF SERVICE AGREEMENT
This Terms of Service Agreement (“Agreement”) is between you and Heroic Data, Inc. (“Heroic Data,” “we” or “us”), and governs your access to and use of the Taunt social competition platform, the Taunt website (https://tauntnow.gg/) (the “Site”) and any other websites, applications, or services provided, owned, or operated by Heroic Data (collectively, the “Services”).
If you are accessing or using the Services or opening an account with Heroic Data on behalf of a company, entity, or other organization, you represent and warrant that you are an authorized representative of, with the authority to bind, that company, entity, or organization to these Terms of Service and that you agree to these Terms of Service on behalf of that company, entity or organization.
2. USE OF HEROIC DATA SERVICES BY MINORS
The Services are not intended for use by persons under 13 years of age. Persons under 13 years of age may not use the Services. By accessing or using the Services, you affirm that you are: (a) (i) at least 18 years of age, (ii) an emancipated minor at least 13 years of age, or (iii) at least 13 years of age and possess parental or legal guardian consent; and (b) are able and competent to enter into a binding legal agreement.
3. MODIFICATIONS TO AGREEMENT
We may make changes to this Agreement at any time on a prospective basis. If we make any material changes we will notify you via email if you have created an account (sent to the email address specified in your account) or by posting the revised Agreement on the Site prior to any changes becoming effective. You should review this Agreement each time you access or use the Services. If we make unilateral changes to the Agreement, such changes will be effective the date forty-eight (48) hours after we provide you email notice of any changes or the date we post the new changes on the Site, whichever is earlier. Your continued access or use of the Services following notice to you of the changes or the posting of any changes to the Site constitutes your agreement to such changes.
4. ACCOUNT AND INFORMATION
4.1 Account Creation. In order to access and use some aspects of the Services, you may be required to create an account and establish a username and password. If you create an account, you agree to submit only accurate information about yourself and to keep the information you submit up-to-date. You are responsible for maintaining the security and confidentiality of your username and password, and you agree not to authorize anyone else to use your username and password. You are solely responsible for all actions taken under or in connection with your account, whether by you or any third party. You agree to notify us promptly in the event you learn of any unauthorized use of your account. By creating an account, you agree that you may receive electronic communications from us and our affiliates, including but not limited to, account notices, updates, offers, and newsletters. If at any time you no longer wish to receive such electronic communications, you may opt-out by following the “unsubscribe” instructions in the communication.
4.2 Account Eligibility. Children under 13 years of age are prohibited from accessing or otherwise using the Site or the Services, or creating an account. If you are between 13 and 18 years of age, your parent or legal guardian must create an account, consent to your use of the Site and the Services, and agree to be bound by this Agreement.
4.3 Account and User Names. When you choose an account name, username, or display name, or otherwise create a label or image that can be seen by other users of the Site or the Services (collectively, “User Identifier”), you are prohibited from selecting a User Identifier that incorporates or uses vulgar, hateful, or offensive language or imagery, or which infringes on the rights of any third party, including but not limited to the copyrights, trademark rights or rights of publicity or personality of any person or entity. If Heroic Data determines that a User Identifier is offensive, improper, or illegal, or may infringe on the rights of any third party, it may, in its sole discretion, refuse to grant you the User Identifier, change the User Identifier, and/or suspend or terminate your account.
4.4 Account Termination. We reserve the right to immediately terminate or restrict your account or your use of the Services at any time, with or without notice or liability, if we determine in our sole discretion that you have breached this Agreement, violated any law, rule, or regulation, or for any other business reason. You acknowledge and agree that you do not own any account you create with us and that you have no ownership or other property interest in your account.
5. ACCESS TO AND USE OF THE SERVICES
5.1 License Grant to You. We grant you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Services solely in accordance with the terms of this Agreement. All rights not expressly granted in this Agreement are reserved by us. You may not distribute any part of the Services or any content other than User Content (described below) owned by you unless we have authorized such distribution and provided the means for such distribution through functionality offered by the Services.
5.2 Restrictions on Your Access to and Use of the Services. In connection with your access to or use of the Services, you are prohibited from:
● violating or circumventing any applicable laws or regulations (including without limitation import, export, gambling and intellectual property laws) or any technical measures, security measures or policies of the Services;
● violating, infringing or beaching the rights of Heroic Data, other users or third parties, including but not limited to any copyrights, trademark rights, patent rights, trade secret rights, rights of publicity or personality, moral rights, or any other proprietary rights of such persons or entities;
● accessing data not intended for you or logging onto a server or an account which you are not authorized to access;
● using any engine, software, tool, agent or other device or mechanism (including without limitation browsers, spiders, robots, avatars or intelligent agents) to access, navigate, or search the Site or Services, other than generally available third-party web browsers (e.g., Mozilla Firefox, Google Chrome, Microsoft Internet Explorer, Safari);
● using any device, software or routine to interfere or attempt to interfere with the proper working of the Services or any activity being conducted on or through the Services;
● attempting to probe, scan or test the vulnerability of a Heroic Data system or network or to breach security or authentication measures without proper authorization;
● attempting to interfere with service to any user, host or network, including without limitation, via means of submitting a virus to the Site or through the Services, overloading, “flooding,” “spamming,” “mailbombing,” or “crashing”;
● sending unsolicited emails or messages, including promotions and/or advertising of products or services;
● forging any TCP/IP packet header or any part of the header information in any email or newsgroup posting;
● copying, modifying, adapting, reproducing, reverse engineering, decompiling, disassembling, or preparing derivative works of our software or content, or any content that is not your own;
● distributing viruses, malicious code, malware or any other technologies that may harm the Services or any user of the Services;
● submitting to or through the Services any false, inaccurate, misleading, deceptive, defamatory, or libelous materials or content; and
● collecting or harvesting any personally-identifiable information, including account names, from the Services, or soliciting, for commercial purposes, any users of the Services with respect to their User Content.
Violations of system or network security may result in civil or criminal liability. Heroic Data will investigate occurrences that may involve such violation and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations.
6. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
6.1 Heroic Data Content and Trademarks. All content and materials, including text, images, videos, illustrations, designs, icons, photographs, software, programs and written and other materials that are part of the Site or accessible through the Services, other than User Content and content owned by third parties (collectively, “Heroic Data Content”) is owned by Heroic Data, its licensors or third parties. No right, title or interest in any Heroic Data Content is transferred to you by way of this Agreement or otherwise. You may not reproduce, publish, transmit, distribute, display, modify, create derivative works from, sell or participate in any sale of or exploit in any way, in whole or in part, any of the Heroic Data Content. The HEROIC DATA and TAUNT trademarks and logos are trademarks of Heroic Data. Other trademarks appearing on or through the Services are the trademarks of their respective owners. The Services, the Heroic Data Content, and the HEROIC DATA and TAUNT trademarks and logos are protected by copyright, trademark, and/or other intellectual property laws.
6.2 Virtual Goods. When using the Services, you may gain access to or be able to purchase or earn virtual items (including, by way of example only, virtual badges, points, coins, tokens or currency) (“Virtual Goods”). You acknowledge and agree that you have no claim, right, title, ownership or other proprietary interest in any Virtual Goods you access, earn, purchase or otherwise acquire in connection with your use of the Services, regardless of any consideration offered or paid in exchange for such Virtual Goods. You further acknowledge and agree that Virtual Goods have no monetary value, they cannot be redeemed for cash, and you cannot obtain any refunds for purchasing or earning Virtual Goods except as expressly permitted by us. You are not permitted to transfer Virtual Goods you access, purchase or otherwise acquire in connection with your use of the Services, for example by gifting or trading them. Further, you are not permitted to sublicense, trade, sell or attempt to sell Virtual Goods in exchange for money or any other thing of value. Any such transfers or attempted transfers are prohibited and void and may result in the termination of your account.
Heroic Data shall not be liable in any manner for the destruction, deletion, modification, impairment, hacking or any other damage or loss of any kind caused to the Virtual Goods you access, earn, purchase or otherwise acquire in connection with your use of the Services, including but not limited to the deletion of such Virtual Goods upon the termination or expiration of your account.
6.3 Feedback. In the event you submit to us any concepts, ideas, suggestions or feedback relating to the Services (collectively, “Feedback”), you shall not be entitled to any compensation for any such Feedback, and we may freely use any such Feedback in any manner we deem appropriate without any payment or credit to you.
7. USER CONTENT; MONITORING USE OF THE SERVICES
You understand that when using the Services, you may be exposed to content of other users of the Services and that Heroic Data is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such content. You further understand and acknowledge that you may be exposed to content that is offensive, indecent, objectionable, or inaccurate, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Heroic Data with respect thereto. We have no obligation to monitor your or other users’ use of the Services. We may, however, at our sole discretion, choose to monitor and/or record use of the Services and you acknowledge and agree that when you use the Services, you have no expectation that your communications will be private. Heroic Data shall have the right to disclose your communications for any reason, including without limitation: (a) to satisfy any applicable law, regulation, legal process or governmental request; (b) to enforce the terms of this Agreement; (c) to protect Heroic Data’s legal rights and remedies; or (d) to report a crime or other offensive behavior.
8. SERVICE FEES
8.1 Payment of Service Fees. While access to and use of some portion of the Services and/or Heroic Data Content is made available to you without cost, we may charge fees for some of the Services and/or Virtual Goods available through the Services (“Service Fees”). You agree to pay all Service Fees and applicable taxes incurred by you in connection with your use of, and access to, the Services. You acknowledge and agree that all information you provide with regards to payment of a Service Fee is accurate, current and complete. By providing a credit card or other payment method accepted by us (“Payment Method”), you expressly authorize us to charge the Service Fees and any applicable taxes and represent and warrant that you have the legal right to use the Payment Method you provide to us or our payment processor. If you want to use a different Payment Method than the one originally provided to us, or if there is a change in your Payment Method information, you must notify us and provide new Payment Method information.
We reserve the right to retry billing your Payment Method after failed attempts (e.g., if your Payment Method is rejected). You will remain liable for all such amounts and all costs we incur in connection with the collection of such amounts, including without limitation, bank overdraft fees, collection agency fees, reasonable attorneys' fees, and arbitration or court costs.
We reserve the right, with or without prior notice, to (a) discontinue or limit the available quantity of any product or aspect of the Services; (b) honor, or impose conditions on the honoring of, any promotional code or other similar promotions; and (c) refuse to allow any user to purchase a product or deliver any product to a user. Unless otherwise noted, all currency references are in U.S. dollars. All fees and charges are payable in accordance with the payment terms in effect at the time the fee or the charge becomes payable.
8.2 Refunds/Credits. In some circumstances where we determine it is appropriate (e.g., your access to the Services is unavailable for an extended period of time due to technical difficulties), we may provide a refund or credit of Service Fees. Subject to applicable law, the amount and form of such refund or credit, and the decision to provide them, are at our sole and absolute discretion, and the provision of a refund or credit in one instance does not entitle you to a refund or credit in the future under similar or different circumstances.
8.3 Changes to the Services, Products and Pricing. Heroic Data may, at any time, revise or change the pricing, availability, specifications, content, descriptions or features of the Services or any items sold through the Services. The inclusion of any items through the Services at a particular time does not imply or warrant that these items will be available at any other time. Heroic Data is not required to provide refunds, benefits or other compensation to you in connection with discontinued elements of, or Virtual Goods acquired through, the Services. Heroic Data reserves the right to change prices for the Services, or any items displayed on or in the Services, at any time, and to correct pricing errors that may inadvertently occur. All such changes shall be effective immediately upon posting of such new prices to the Services.
9. COPYRIGHT INFRINGEMENT (DIGITAL MILLENNIUM COPYRIGHT ACT)
We respect the intellectual property of others. We strive to respond promptly to proper notices of copyright infringement by removing or disabling access to allegedly infringing material. It is our policy to terminate the access privileges of those who repeatedly infringe the copyrights of others.
9.1 Submitting a Copyright Infringement Notification. If you believe that any material appears on the Site or the Services in a way that infringes the copyright in a work you own, please send a notification containing the following information to Heroic Data’s Copyright Agent:
● an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
● a description of the work in which you hold a copyright interest which you believe is being infringed;
● a description of the location on the Site or Services where the allegedly infringing material is located to enable us to locate the material (preferably including a URL address);
● your address, telephone number, and email address;
● 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
● a statement by you, made under penalty of perjury, that the above information in your notification is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Our Copyright Agent can be reached at the following address:
Heroic Data, Inc.
Attn: Copyright Agent
240 2nd Ave S. Ste. #300
eattle, WA 9810
9.2 Submitting a Counter-Notification. If you believe that any material identified in a copyright infringement notification is not infringing, or that you have the authorization from the copyright owner, from the copyright owner’s agent, or pursuant to the law, to post and use the material complained of, you may send a counter-notification containing the following information to Heroic Data’s Copyright Agent (identified above):
● your physical or electronic signature;
● identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or disabled;
● a statement that you have a good faith belief that the material was removed or disabled as a result of mistake or a misidentification of the material; nd
● your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court in the Western District of Washington, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If Heroic Data receives a counter-notification, we may send a copy of the counter-notification to the original complaining party informing that person that we may replace the removed material or cease disabling it in 10 business days. Unless the original complaining party files an action seeking a court order against the person who provided the allegedly infringing material, the removed material may be replaced, or access to it restored, 14 business days or more after receipt of the counter-notification, at Heroic Data’s sole discretion.
10. THIRD PARTIES
References on the Site or Services to any third parties or any products or services of such third parties, are provided solely as a convenience to you. We do not endorse, recommend, approve of or make any representations or warranties regarding any third parties or their products or services. We are not responsible for the content of any third-party websites and do not make any representations regarding the content or accuracy of material on such websites. If you decide to follow a link to any third-party website, you do so entirely at your own risk.
11. DISCLAIMER OF WARRANTY
THE SERVICES ARE PROVIDED BY HEROIC DATA ON AN “AS IS” AND “AS AVAILABLE” BASIS. HEROIC DATA MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE SERVICES, OR INFORMATION, CONTENT, OR MATERIALS OFFERED ON OR THROUGH THE SERVICES. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, HEROIC DATA DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. HEROIC DATA DOES NOT WARRANT THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THIS DISCLAIMER CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT, AND YOU ACKNOWLEDGE THAT HEROIC DATA WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITH YOU WITHOUT YOUR AGREEMENT TO THE TERMS OF THIS DISCLAIMER.
12. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL OR EQUITABLE THEORY, WHETHER IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, SHALL HEROIC DATA, ITS AFFILIATES, AND THEIR RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS, AND AGENTS BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR LOSSES OF ANY NATURE ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE SERVICES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF HEROIC DATA, ITS AFFILIATES, OR THEIR RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS, AND AGENTS HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES. IN NO EVENT WILL HEROIC DATA BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE AMOUNTS PAID BY YOU IN CONNECTION WITH YOUR USE OF THE SERVICES DURING THE SIX-MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE. IF YOU HAVE NOT PAID ANY AMOUNTS TO HEROIC DATA IN CONNECTION WITH YOUR USE OF THE SERVICES IN THE SIX-MONTH PERIOD PRECEDING THE DATE ON WHICH YOUR CLAIM AROSE, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH HEROIC DATA IS TO STOP USING THE SERVICES AND TO CANCEL YOUR ACCOUNT.
CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE HAVE ADDITIONAL RIGHTS.
The Services are provided to you and controlled by Heroic Data from facilities in the United States. Heroic Data makes no representations that the Services are appropriate or available for use in other locations. If you access or use the Services from other jurisdictions, you do so at your own volition and are responsible for compliance with any laws, rules and regulations applicable to your jurisdiction.
You agree to defend, indemnify and hold harmless Heroic Data, its affiliates, and their respective directors, officers and employees from and against any and all claims, damages, costs and expenses, including attorneys’ fees, arising from or related to your breach or alleged breach of this Agreement, your improper use of the Services, or your breach of any applicable law or infringement of the rights of a third party. Heroic Data shall have the right to participate in the defense of any such claim at its own cost. You may not settle or negotiate any claim that results in liability to, or imposes any obligation or restriction upon, Heroic Data, financial or otherwise, without the prior written consent of Heroic Data.
14. CHANGES; SUSPENSION; DISCONTINUATION
We may change, suspend, or discontinue -- temporarily or permanently -- some or all of the Services, with respect to any or all users, at any time with or without notice. In our continued assessment of the Services, we may, from time to time, with respect to any or all of our users, experiment with or otherwise offer certain features or other elements of the Services. You acknowledge that Heroic Data may do so in its sole discretion at any time with or without notice. You also agree that Heroic Data will not be liable to you for any modification, suspension, or discontinuance of the Services. However, if Heroic Data terminates your account or suspends or discontinues your access to the Services due to your violation of this Agreement, then you will not be eligible for any such credit, refund, discount or other consideration.
15. GOVERNING LAW; VENUE.
This Agreement shall, unless and except to the extent governed by the Federal laws of the United States, shall be construed and governed solely by the internal laws of the State of Washington, without regard to Washington’s conflict of laws provisions.
Any dispute or claim between the parties not subject to arbitration as provided below (Section 17 Agreement to Binding Arbitration; Class Action Waiver) shall be decided by a court of competent jurisdiction within King County, Washington, and you and Heroic Data agree to submit to the personal jurisdiction of that court.
16. LIMITATION ON TIME TO BRING CLAIMS
To help resolve any issues between us promptly, you and Heroic Data agree to bring any claim arising out of or relating to this Agreement, our relationship, or the use of the Services within one year after a claim arises; otherwise, the claim is waived. This limitation applies regardless of the venue in which such claim is or could otherwise be asserted.
17. AGREEMENT TO BINDING ARBITRATION; CLASS ACTION WAIVER
17.1 Arbitration Agreement; Notice. YOU AND HEROIC DATA AGREE TO RESOLVE ALL DISPUTES AND CLAIMS BETWEEN US IN INDIVIDUAL BINDING ARBITRATION, INCLUDING BUT NOT LIMITED TO, ANY CLAIMS ARISING OUT OF OR RELATING TO: (i) ANY ASPECT OF THE RELATIONSHIP BETWEEN US; (ii) THESE TERMS OF SERVICE; OR (iii) YOUR ACCESS TO AND USE OF ANY HEROIC DATA SERVICES. THIS SECTION APPLIES REGARDLESS WHETHER SUCH CLAIMS ARE BASED IN CONTRACT, TORT, STATUTE, FRAUD, UNFAIR COMPETITION, MISREPRESENTATION OR ANY OTHER LEGAL THEORY (EACH, A “CLAIM”).
YOU UNDERSTAND AND ACKNOWLEDGE THAT YOU AND HEROIC DATA ARE GIVING UP THE RIGHT TO SUE IN COURT AND TO HAVE A TRIAL BEFORE A JUDGE OR JURY.
To encourage quick and cost-effective resolution of any issues, you and Heroic Data agree to first attempt to negotiate any Claim informally before either party initiates any arbitration or court proceeding. Therefore, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Claim (“Notice”). The Notice must (a) describe the nature and basis of the Claim, and (b) set for the specific relief sought. If we and you do not reach an agreement to resolve the Claim within thirty (30) days after the Notice is received (or such longer time as the parties may mutually agree), either party may commence an arbitration proceeding. Any Notice to Heroic Data should be addressed to: Heroic Data, Inc., ATTN: Arbitration Notice, 240 2nd Ave S, Ste. #300, Seattle, WA 98104.
17.2 Exceptions. Notwithstanding the above, we both agree that we may (a) bring suit in a court of competent jurisdiction to enjoin infringement or other misuse of intellectual property rights, (b) bring issues to the attention of relevant U.S. federal, state, or local governmental agencies within such agencies’ jurisdiction, (c) seek injunctive relief in a court of law, or (iv) bring an individual action within the jurisdictional limits of a U.S. small claims court.
17.3 Arbitration Procedure; Interpretation. An arbitration is a proceeding before a neutral arbitrator instead of before a judge or jury. Arbitration is less formal than a lawsuit in court and provides more limited discovery. It follows different rules than court proceedings and is subject to very limited review by courts. The arbitrator will issue a written decision and provide a statement of reasons for the decision if requested by either party. Any award of the arbitrator may be entered in any court of competent jurisdiction.
The arbitration will be administered by the American Arbitration Association (“AAA”) and, except as modified by this Agreement, governed by the AAA’s Commercial Arbitration Rules and, where applicable, the AAA’s Supplementary Procedures for Consumer Related Disputes. These rules and procedures and more information about AAA’s process are available at https://www.adr.org/. The arbitrator is bound by the terms of this Arbitration Agreement.
Notwithstanding any other choice of law provision contained in this Agreement, the Federal Arbitration Act applies to the construction, interpretation and enforceability of this Arbitration Agreement and any arbitration conducted pursuant to this Section.
Any arbitration under this Section may be conducted through the submission of documents, by phone, or in person in the county where you live or at another mutually agreed location.
Except as hereafter provided, all issues are for the arbitrator to decide. Notwithstanding the foregoing, applicable AAA rules, or any other provision of this Agreement, any disagreement or dispute concerning arbitrability (e.g., whether a particular Claim is arbitrable), or the scope this Arbitration Agreement shall be resolved by a court of competent jurisdiction. The arbitrator shall stay all arbitration proceedings pending a decision from the appropriate court on disputes regarding arbitrability or the scope of this Arbitration Agreement.
17.4 Arbitration Costs. If you seek $10,000 or less, Heroic Data agrees to reimburse your filing fee and your share of the arbitration costs, including your share of arbitrator compensation, at the conclusion of the proceeding, unless the arbitrator determines your claims are frivolous or costs are unreasonable as determined by the arbitrator. Heroic Data agrees not to seek its attorneys’ fees or costs in arbitration unless the arbitrator determines your claims are frivolous or costs are unreasonable as determined by the arbitrator. If you seek more than $10,000, the arbitration costs, including arbitrator compensation, will be split between you and Heroic Data according to the AAA Commercial Arbitration Rules and the AAA’s Supplementary Procedures for Consumer Related Disputes, if applicable.
17.5 CLASS AND COLLECTIVE ACTION WAIVER. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND WE ARE EACH WAIVING THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR CLASS ARBITRATION. EACH PARTY TO THIS AGREEMENT AGREES AND COVENANTS THAT IT WILL NOT INITIATE ANY CLASS-WIDE PROCEEDINGS, INCLUDING CLASS ACTIONS, CLASS ARBITRATIONS, OR PRIVATE ATTORNEY GENERAL ACTIONS, AGAINST ANOTHER PARTY, AND WILL NOT ACT AS A CLASS REPRESENTATIVE OR CLASS MEMBER. Further, unless both you and Heroic Data agree otherwise, the arbitrator may not consolidate more than one person’s Claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual Claim.
If the agreement in this paragraph not to bring or participate in a class or representative action, private attorney general action or collective arbitration should be found illegal or unenforceable, you and Heroic Data agree that it shall not be severable, that this entire Arbitration Agreement shall be unenforceable and any Claim would be resolved in court and not in collective arbitration.
This Agreement shall remain in force and effective unless and until terminated by either you or us. You may terminate this Agreement at any time by providing written notice to us via email to email@example.com. We may terminate this Agreement immediately with or without notice, and/or may deny you access to the Services, in our sole discretion, in the event you breach, or threaten to breach, any term of this Agreement. Upon termination of this Agreement, you must immediately discontinue use of the Services. Even after your rights under this Agreement are terminated, all provisions of this Agreement which by their nature should survive, will survive, including without limitation, ownership provisions, warranty disclaimers, limitations of liability, and the arbitration agreement.
19. MISCELLANEOUS TERMS
19.1 Consent to Electronic Communications. You consent to receive communications from us electronically, and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically, via email, or on the Site or through the Services, satisfy any legal requirements that such communications or agreements be in writing.
19.2 Export Restrictions. You acknowledge that the Services, or portions thereof, may be subject to the export control laws of the United States. You will not export, re-export, divert, transfer or disclose any portion of the Services or any related technical information or materials, directly or indirectly, in violation of any applicable export law or regulation.
19.3 Notice Regarding Electronic Commercial Services for California Users. Under California Civil Code Section 1789.3, California users of the Services are entitled to the following consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumers Affairs may be contacted in writing at 1625 North Market Blvd., Suite 112, Sacramento, California 95834 or by telephone at (800) 952-5210.
19.4 Assignment. You may not assign your rights under this Agreement without the prior written permission of Heroic Data and any attempt by you to do so shall be null and void. Heroic Data may assign this Agreement or delegate its rights or obligations hereunder in its sole discretion.
19.5 Waiver. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
19.6 Force Majeure. Heroic Data will not be liable by reason of any failure or delay in the performance of its obligations on account of events beyond its reasonable control which may include denial-of-service attacks, a failure by a third-party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.
19.7 Severability. Except as described in Section 17.5 (Class and Collective Action Waiver), if any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way.
19.8 Entire Agreement. This Agreement, including all agreements and policies referred to and incorporated herein, sets forth the entire understanding and agreement between you and Heroic Data, and supersedes any and all other oral or written agreements or understandings between us.