Terms of ServiceLast updated: November 6, 2020
These Terms of Service (“Terms”) set forth the legally binding terms and conditions for your use of the services, features, content, or applications offered by Beast Interactive, LLC (the “Services”). Throughout the site, the terms “we”, “us” and “our” refer to Beast Interactive. Please read these Terms carefully before using the Services.
1) ACCEPTANCE OF TERMS
By signing up for, installing and/or using our app or using our Services, you agree to these Terms and all other operating rules, policies and procedures that may be published from time to time through the Services by us, each of which is incorporated by reference and each of which may be updated from time to time without notice to you. Certain of the Services may be subject to additional terms and conditions specified by us from time to time; your use of such Services is subject to those additional terms and conditions, which are incorporated into these Terms by this reference, including without limitation any Contest rules.
If you do not agree to these Terms, then you may not access the Services.
From time to time, Beast Interactive may offer contests in connection with the Services (“Contests”). Contests may be governed by rules that are separate from these Terms (“Contest Rules”), which are incorporated into these Terms by reference. When entering a Contest, you agree to abide by all Contest Rules, including all eligibility requirements. If the applicable Contest Rules conflict with these Terms, the Contest Rules will govern
You represent and warrant that you are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in these terms and to abide by and comply with these terms.
You must be 18 or older to use the Services. If you are under age 18, you may not, under any circumstances or for any reason, use the Services.
When using the Services or entering a Contest, you may not be located in a jurisdiction in which participation in the Contest or use of the Services is prohibited by law. Some Contests may only be available in certain jurisdictions; please see the Contest Rules for details.
We may, in our sole discretion, refuse to offer the Services to any person or entity and change its eligibility criteria at any time. Further, the Services are offered only for your use, and not for the use or benefit of any third party. You are not eligible to use our Services if you violate any provision of these Terms or our Contest Rules, as determined in our sole discretion.
3) ACCOUNT REGISTRATION
You may be required to create an account to use some of the features of the Services. You must keep your password confidential and you are solely responsible for maintaining the confidentiality and security of your account, all changes and updates submitted through your account, and all activities that occur in connection with your account. In creating an account, you represent to us that all information you provide in such process is true, accurate and correct, and that you will update your information as necessary to keep it accurate. You may not impersonate someone else, create or use an account for anyone other than yourself, provide an email address other than your own, create multiple accounts except as otherwise authorized by us, or provide or use false information. You agree to notify us immediately of any unauthorized use of your account by contacting us at the information provided below and to change your password. You may not transfer your account to anyone else without our prior written permission.
If you win one of our contests, you agree to provide us with all information required for us to comply with applicable tax laws, including, but not limited to, your address and social security or tax identification number.
4) RULES OF CONDUCT
As a condition of use, you promise not to use the Services for any purpose that is prohibited by these Terms. You are responsible for all of your activity in connection with the Services. Violation of our rules may result in the termination and cancellation of your account and forfeiture of any Contest winnings. You acknowledge and agree that we may terminate any account at any time for any reason.
When accessing or using the Services, you agree to:
- Abide by all laws, rules, regulations, these Terms, Contest Rules, and all Beast Interactive policies;
- Only use (or attempt to use) the Services through interfaces provided by Beast Interactive and
- Comply with the instructions in any robots.txt file present on the Services.
When accessing or using the Services, you shall not (and shall not permit any third party to):
- infringe any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any law or contractual duty;
- use the Services for any unauthorized purpose, or in violation of any applicable law, including intellectual property laws;
- use technology, algorithms, or any other automated technological means to participate in any Contest (unless expressly authorized by us);
- submit content that you know is false, misleading, untruthful or inaccurate, including, but not limited to, providing inaccurate contact or account information;
- illicitly manufacture extra lives or other benefits by providing inaccurate information, buying or selling such benefits, creating multiple accounts, or other means;
- creating or operating of multiple user accounts;
- creating multiple entries into Contests, by any means, including multi-accounting;
- logging an account into multiple devices simultaneously;
- entering into a Contest for which you are not eligible, whether by multi-accounting, providing misleading information, masking or altering your IP address, or other means;
- selling or transferring your account;
- taking any action that is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, vulgar, pornographic, offensive, profane, contains or depicts nudity, contains or depicts sexual activity, otherwise violates any law or right of any third party, or is otherwise inappropriate as determined by us in our sole discretion;
- taking any action that constitutes unauthorized or unsolicited advertising, junk or bulk email ("spamming");
- uploading or transmitting software viruses or any other computer codes, files, content, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of ours or of any third party;
- taking actions that are designed or intended to obtain password, account, or private information from any user;
- impersonate any person or entity, including any of our employees, representatives, or users;
- promote or link to affiliate programs, multi-level marketing schemes, sites repurposing existing stories or off-topic content;
- including anyone’s identification documents or sensitive financial information;
- take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third party providers’) infrastructure;
- interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services;
- bypass, circumvent or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services);
- use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Services without our express written permission;
- harvest or scrape any Content from the Services;
- decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services (including without limitation any application), except to the limited extent applicable laws specifically prohibit such restriction;
- modify, translate, or otherwise create derivative works of any part of the Services;
- copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder; or
- otherwise take any action in violation of our guidelines and policies.
If for any reason the Services are not running as originally planned (e.g., if they become corrupted or do not allow the proper usage and processing of entries in accordance with the rules, or if infection by a computer virus, bugs, tampering, unauthorized intervention, actions by entrants, fraud, technical failures, or any other causes of any kind, in the sole opinion of Beast Interactive corrupts or affects the administration, security, fairness, integrity or proper conduct of the Services), Beast Interactive reserves the right, in its sole discretion, to disqualify any individual implicated in or relating to the cause and/or to cancel, terminate, extend, modify or suspend the Services, and select the winner(s) from all eligible entries. If such cancellation, termination, modification or suspension occurs, notification may be posted on the Services.
5) INTELLECTUAL PROPERTY RIGHTS & LICENSE
All content on the Services (including, for example, text, designs, graphics, logos, icons, images, audio clips, downloads, interfaces, information, code and software, and the selection and manner of compilation and presentation (“Content”)), is owned by Beast Interactive other content providers, or their licensors, and may be protected by copyright, trademark, and other applicable laws.
Your access to and use of the Services does not grant you any license or right to use any trademark, logo, or service mark displayed on the Services. Beast Interactive other content providers, or their licensors retain full and complete title to and reserve all rights in the material on the Services, including all associated intellectual property rights. Beast Interactive neither warrants nor represents that your use of materials on the Services will not infringe rights of third parties.
You may access the Services only for your personal and non-commercial use, and you may not modify or delete any copyright, trademark or other proprietary notice relating to the material you access.
All software used on the Services is the property of Beast Interactive or our licensors and protected by United States and international copyright laws. Subject to these Terms, Beast Interactive hereby grants you a limited, non-exclusive, non-sublicensable, non-assignable license to use the Services for your personal, noncommercial use only. This license does not include any: (i) resale or commercial use of the Services; (ii) any collection and use of any product listings, descriptions, or prices; (iii) any derivative use of the Services; (iv) any downloading or copying of account information for the benefit of another business, organization, or commercial entity; or (v) any use of data mining, robots, or similar data gathering and extraction tools. You may not attempt to discover any source code, modify, publish, adapt, transmit, participate in the transfer or sale of, exhibit, distribute, display, reverse engineer, decompile, dissemble, perform, reproduce, create derivative works from, or in any way exploit any of the Services, in whole or in part. Downloading or copying the Services (including the Content) for other than personal use is expressly prohibited without the prior written permission of Beast Interactive or any other copyright owner. You acknowledge that you do not acquire any ownership rights by accessing, downloading, or copying any of the Services (which includes the Content), nor may you frame or utilize framing techniques to enclose any trademark, logo, or copyrighted material from the Services or use any meta tags or any other hidden text utilizing our names or trademarks, without the express written consent of Beast Interactive
Without Beast Interactive’s prior permission, you agree not to display or use in any manner the Beast Interactive marks.
All rights not expressly granted herein are reserved. You agree to abide by all additional restrictions displayed on the Services as they may be updated from time to time.
6) USER CONTENT
All Content added, created, uploaded, submitted, distributed, or posted to the Services by users (collectively "User Content"), whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such User Content. You represent that all User Content provided by you is accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations. You retain ownership of any and all User Content created and/or uploaded by you. You acknowledge that all Content, including User Content, accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. We do not guarantee that any Content you access on or through the Services is or will continue to be accurate.
7) THIRD-PARTY SERVICES/LINKS
The Services may permit you to link to or otherwise access other websites, services or resources on your device and the Internet, and other websites, services or resources may contain links to or be accessed by the Services or the App. These other resources are not under our control, and you acknowledge that we are not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link or access does not imply our endorsement or any association between us and their operators. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such website or resource.
8) IN-APP PURCHASES
You may be able to purchase certain goods designed to enhance the performance of the Services (“Goods”). When you purchase Goods, you are doing so through either Apple iTunes service or the Google Play service and you are agreeing to their respective Terms and Conditions. (http://www.apple.com/legal/internet-services/itunes/us/terms.html; http://play.google.com/intl/en_us/about/play-terms.html).
9) MODIFICATIONS TO THE SERVICES
We reserve the right at any time to modify or discontinue the Services (or any part or content thereof) without notice at any time. We shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Services.
These Terms are effective unless and until terminated by either you or us. You may terminate these Terms at any time by notifying us that you no longer wish to use our Services, when you cease using our Services, or when you delete your account. We are also free to terminate (or suspend access to) your use of the Services or your account, for any reason in our discretion, including your breach of these Terms. We have the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.
Even after your right to use the Services is terminated, these Terms will remain enforceable against you and unpaid amounts you owe to Beast Interactive will remain due.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding arbitration and class action waiver.
11) NO RESALE OF SERVICES
You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Services, use of the Services, or access to the Services or any contact on the website through which the Services is provided, without express written permission by us.
12) THIRD-PARTY LINKS
Certain content, products and services available via our Services may include materials from third parties. In addition, third-party links on this site may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third parties.
We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party materials or websites. Please review carefully the third party’s policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third party.
13) USER COMMENTS, FEEDBACK AND OTHER SUBMISSIONS
If, at our request, you send certain specific submissions or without a request from us you send creative ideas, suggestions, proposals, plans, or other materials, whether online, by email, by postal mail, or otherwise (collectively, “Comments”), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate, and otherwise use in any medium any comments that you forward to us. We are and shall be under no obligation (1) to maintain any comments in confidence; (2) to pay compensation for any comments; or (3) to respond to any comments.
We may, but have no obligation to, monitor, edit or remove content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms.
You agree that your comments will not violate any right of any third party, including copyright, trademark, privacy, personality or other personal or proprietary right. You further agree that your comments will not contain libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Services or any related website. You may not use a false e-mail address, pretend to be someone other than yourself, or otherwise mislead us or third parties as to the origin of any comments. You are solely responsible for any comments you make and their accuracy. We take no responsibility and assume no liability for any comments posted by you or any third party.
Beast Interactive may communicate with you using email or autodialed or prerecorded calls and text messages, at any telephone number that you provide us, to: (i) notify you regarding your account; (ii) troubleshoot problems with your account; (iii) resolve a dispute; (iv) poll your opinions through surveys or questionnaires; or (v) as otherwise necessary to service your account or enforce these Terms, our policies, applicable law, or any other agreement we may have with you.
If you would like to receive marketing via mobile texts and alerts, you may sign up to do so. By signing up, you provide your consent to receive recurring autodialed marketing texts or other mobile messages from or on behalf of us at the mobile number you've provided. You understand that consent is not a condition of purchase. Message and data rates may apply. If you would like to be removed from Beast Interactive’s marketing text list, you must reply STOP to any mobile message. You understand and agree that the foregoing option is the only reasonable method of opting out. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.
If at any time you intend to stop using the mobile telephone number that has been used to subscribe to text messaging, including canceling your service plan or selling or transferring the phone number to another party, you agree that you will complete the user opt out process set forth above prior to ending your use of the mobile telephone number. You understand and agree that your agreement to do so is a material part of these Terms. You further agree that, if you discontinue the use of your mobile telephone number without notifying us of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by us, or any party that assists in the delivery of the mobile messages, as a result of claims brought by individual(s) who are later assigned that mobile telephone number. This duty and agreement shall survive any cancellation or termination of your account or these Terms.
YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD US HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.
Beast Interactive may route phone and text communications through a third party service provider, and we or the service provider may record telephone conversations you have with Beast Interactive or its agents for quality control and training purposes, or for our own protection.
16) DISCLAIMER OF WARRANTIES
THIS DISCLAIMER SECTION IS AN ESSENTIAL PART OF THESE TERMS.
THE SERVICES AND CONTENT ARE PROVIDED "AS IS", “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WE, AND OUR DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT THAT: (I) THE SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (IV) THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
To the fullest extent allowed by applicable law, you agree to indemnify, defend and hold harmless Beast Interactive and our parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third-party due to or arising out of (a) your use of the Services, (b) your breach of these Terms or the documents they incorporate by reference, or (c) your violation of any law or the rights of a third-party. In the event of such a claim, suit, or action ("Claim"), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).
Beast Interactive reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Beast Interactive in asserting any available defenses. This provision does not require you to indemnify Beast Interactive for any unconscionable commercial practice by Beast Interactive or for Beast Interactive 's negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact. You agree that the provisions in this section will survive any termination of your account, these Terms or your access to the Services, including the purchase of any items on the Services.
Notwithstanding the foregoing paragraph, if you are a resident of New Jersey, you only agree to release, defend, indemnify, and hold Beast Interactive and its parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees, harmless from and against any third-party claims, liabilities, damages, losses, and expenses, including without limitation reasonable legal and accounting fees, arising out of or in any way connected with your violation of these Terms.
If you are a California resident, you waive California Civil Code Section 1542, which provides: A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release, and that if known by him or her would have materially affected his or her settlement with the debtor or released party.
If you are not a California resident, you waive your rights under any statute or common law principle similar to Section 1542 that governs your rights in the jurisdiction of your residence.
18) LIMITATION OF LIABILITY
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO CASE SHALL BEAST INTERACTIVE OUR DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, INTERNS, SUPPLIERS, SERVICE PROVIDERS OR LICENSORS BE LIABLE FOR ANY INJURY, LOSS, CLAIM, OR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION LOST PROFITS, LOST REVENUE, LOST SAVINGS, LOSS OF DATA, REPLACEMENT COSTS, OR ANY SIMILAR DAMAGES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, ARISING FROM YOUR USE OF ANY OF THE SERVICES OR ANY PRODUCTS PROCURED USING THE SERVICES, OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE SERVICES OR ANY PRODUCT, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF THE SERVICES OR ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE, EVEN IF ADVISED OF THEIR POSSIBILITY.
THIS DISCLAIMER APPLIES, WITHOUT LIMITATION, TO ANY DAMAGES OR PERSONAL INJURY ARISING FROM ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECTS, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUSES, FILE CORRUPTION, COMMUNICATION-LINE FAILURE, NETWORK OR SYSTEM OUTAGE, YOUR LOSS OF PROFITS, ANY THEFT, DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF, LOSS OR USE OF, ANY RECORD OR DATA, AND ANY OTHER TANGIBLE OR INTANGIBLE LOSS.
UNDER NO CIRCUMSTANCES WILL THE TOTAL AGGREGATE AMOUNT THAT BEAST INTERACTIVE IS LIABLE TO YOU EXCEED THE GREATER OF (I) $100.00 OR (II) THE AMOUNTS PAID BY YOU TO BEAST INTERACTIVE IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT ON WHICH YOUR CLAIM IS BASED. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF BEAST INTERACTIVE FOR (1) DEATH, TANGIBLE PROPERTY DAMAGE, OR PERSONAL INJURY CAUSED BY BEAST INTERACTIVE’S GROSS NEGLIGENCE OR FOR (2) ANY INJURY CAUSED BY BEAST INTERACTIVE’S FRAUD OR FRAUDULENT MISREPRESENTATION.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN BEAST INTERACTIVE AND YOU.
BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. IF YOU ARE A RESIDENT OF NEW JERSEY, THIS SECTION DOES NOT APPLY TO PREVENT A RIGHT TO RECOVER CERTAIN DAMAGES (INCLUDING PUNITIVE DAMAGES) WHERE A HARMED PERSON PROVES WITH THE REQUIRED EVIDENCE THAT THE HARM SUFFERED WAS THE RESULT OF THE DEFENDANT'S "ACTS OR OMISSIONS AND SUCH ACTS OR OMISSIONS WERE ACTUATED BY ACTUAL MALICE OR ACCOMPANIED BY A WANTON AND WILLFUL DISREGARD OF PERSONS WHO FORESEEABLY MIGHT BE HARMED BY THOSE ACTS OR OMISSIONS." SIMILARLY, THIS SECTION DOES NOT LIMIT BEAST INTERACTIVE’S TORT LIABILITY UNDER NEW JERSEY LAW RESULTING FROM BEAST INTERACTIVE’S OWN INTENTIONAL OR RECKLESS CONDUCT.
19) NO THIRD PARTY BENEFICIARIES
You agree that, except as otherwise expressly provided in these Terms, there shall be no third party beneficiaries to the Terms.
PLEASE READ THE FOLLOWING ARBITRATION AGREEMENT IN THIS SECTION ("ARBITRATION AGREEMENT") CAREFULLY. IT REQUIRES YOU TO ARBITRATE MOST DISPUTES WITH BEAST INTERACTIVE AND MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS.
YOU AND BEAST INTERACTIVE AGREE THAT ANY DISPUTE, CONTROVERSY, OR CLAIM ARISING OUT OF, OR RELATING TO YOUR USE OF THE SERVICE, INCLUDING WITHOUT LIMITATION ANY PRODUCTS OR SERVICES SOLD OR DISTRIBUTED THROUGH THE SERVICE, THESE TERMS, OR CONTENT (A "DISPUTE" AS DEFINED BELOW) SHALL BE RESOLVED ONLY BY FINAL AND BINDING, BILATERAL ARBITRATION, AS DETAILED BELOW.
You and Beast Interactive agree that these Terms affect interstate commerce and the Federal Arbitration Act, 9 U.S.C. § 1, et seq., and federal arbitration law apply to this agreement and govern all questions as to whether a dispute is subject to arbitration.
"Disputes" shall include, but are not limited to, any claims or controversies between you and Beast Interactive against each other related in any way to or arising out of in any way from the Services or the Content including but not limited to sales, returns, refunds, cancellations, defects, policies, privacy, advertising, or any communications between you and Beast Interactive even if the claim arises after you or Beast Interactive has terminated use of Services or a user account or these Terms. Disputes also include, but are not limited to, claims that: (a) you bring against our employees, agents, affiliates, or other representatives; (b) that Beast Interactive brings against you; (c) claims in any way related to or arising out of any aspect of the relationship between you and Beast Interactive whether based in contract, tort, statute, fraud, misrepresentation, advertising claims, or any other legal theory; (d) claims that arose before these Terms or out of a prior set of Terms with Beast Interactive (e) claims that are subject to ongoing litigation where you are not a party or a class member; and/or (f) claims that arise after the termination of these Terms. “Disputes” does not include disagreements or claims concerning patents, copyrights, moral rights, trademarks, and trade secrets, claims of piracy or unauthorized use of intellectual property (collectively, “intellectual property claims”).
Initial Dispute Resolution
Most disputes can be resolved without resort to litigation. You can reach our support department at email@example.com. Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with our support department, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
Binding Arbitration Process and Procedure
Except as provided herein, if we cannot resolve a Dispute informally, any Dispute will be resolved only by binding arbitration to be held in the county in which you reside. For residents outside the United States, arbitration shall be initiated in Dallas, Texas. Beast Interactive and you further agree to submit to the personal jurisdiction of any state or federal court in Dallas, Texas to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
To begin an arbitration proceeding, you must do the following: (a) write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover (you may find a copy of a Demand for Arbitration at www.jamsadr.com); (b) send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS, 8401 N. Central Expressway, Suite 610, Dallas, TX 75225; and (c) send one copy of the Demand for Arbitration to Beast Interactive, LLC, PO BOX 140396, 6120 Swiss Ave, Dallas, TX 75214.
The arbitration will be conducted by a single arbitrator. Disputes involving claims and counterclaims with an amount in controversy under $250,000, not inclusive of attorneys' fees and interest, shall be subject to JAMS' most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS's most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS's rules are also available at http://www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If there is a conflict between the JAMS Rules (or the rules of the alternative arbitral forum selected by the parties) and the rules set forth in this Agreement, the rules set forth in this Agreement will govern.
ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JURY TRIAL. You may, in arbitration, seek any and all remedies otherwise available to you pursuant to your state's law.
To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit Beast Interactive will pay the additional cost. Beast Interactive shall also bear the cost of any arbitration fees, unless the arbitrator finds your claims, defenses, or other fee-generating activity to be frivolous or asserted or conducted for an improper purpose. You are responsible for all other additional costs that you may incur in the arbitration including, without limitation, attorney's fees and expert witness costs Beast Interactive is specifically required to pay such fees under applicable law.
If Beast Interactive 's or your claim is solely for monetary relief of $10,000 or less and does not include a request for any type of equitable remedy, the party bringing the claim may choose whether the arbitration of the claim will be conducted through a telephonic hearing, or by an in-person hearing under the JAMS Rules, solely based on documents submitted to the arbitrator.
You or Beast Interactive may choose to pursue a claim in small claims court where: (a) jurisdiction and venue over you and Beast Interactive otherwise qualifies for such small claims court; (b) such claim advances only on an individual (e.g. non-class, non-representative) basis; and (c) where the claim does not include a request for any type of equitable relief. However, if you decide to pursue a claim in small claims court, you agree to provide Beast Interactive with advance notice by email to firstname.lastname@example.org and by mail to Beast Interactive, LLC PO BOX 140396, 6120 Swiss Ave, Dallas, TX 75214.
These Terms and this Arbitration Agreement do not prevent you from bringing your Dispute to the attention of any federal, state, or local government agency. Such agencies can, if the law allows, seek relief against Beast Interactive on your behalf.
Authority of Arbitrator
The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable or whether any claims are not subject to Arbitration. The arbitrator will decide the rights and liabilities, if any, of you and Beast Interactive. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
Waiver of Jury Trial
YOU AND BEAST INTERACTIVE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO RESOLVE DISPUTES IN COURT (OTHER THAN SMALL CLAIMS COURT AS PERMITTED HEREIN) AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Beast Interactive are instead electing that all covered claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Terms as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
30-Day Right to Opt Out
You have the right to opt out of the provisions of this Arbitration Agreement by sending a timely written notice of your decision to opt out. Your notice must be sent via email to email@example.com and to: Beast Interactive, LLC PO BOX 140396, 6120 Swiss Ave, Dallas, TX 75214 within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your account (if you have one), your signature, and a clear statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have with us, or may enter into in the future with us.
Parents, Subsidiaries, Affiliates
This Arbitration Agreement will also apply to any claims asserted by you against any present or future parent, subsidiary, or affiliated company of Beast Interactive or any employee, officer, director, or investor of Beast Interactive and to any claims asserted by any of them against you, to the extent that any such claims arise out of or relate to these Terms (such as with respect to their validity or enforceability), the Services, any person's access to and/or use of the Services, and/or the provision of content, products, services, and/or technology on or through the Services.
Changes to This Section
Beast Interactive will provide thirty (30) days’ notice of any changes to this section by posting on the Services, sending you a message, or otherwise notifying you when you are logged into your account. Amendments will become effective thirty (30) days after they are posted on the applicable website or sent to you.
Changes to this section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court or arbitrator decides that this subsection on "Changes to This Section" is not enforceable or valid, then this subsection shall be severed from the sections entitled "Arbitration" and "Class Waiver" and the court or arbitrator shall apply the first Arbitration and Class Action Waiver sections in existence after you began using the Services.
Subject to the section titled "Waiver of Class or Consolidated Actions," if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
Survival of Agreement
This Arbitration Agreement will survive the termination or expiration of these Terms or your relationship with Beast Interactive.
21) CLASS ACTION WAIVER
PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS.
Beast Interactive and you agree to resolve any dispute in an individual capacity, and not on behalf of, or as part of, any purported class, consolidated, or representative proceeding. Beast Interactive and you further agree to not participate in any consolidated, class, or representative proceeding (existing or future) brought by any third party arising out of or relating to any dispute with a third party. If an Arbitrator or a Court determines that applicable law precludes enforcement of this Paragraph’s limitations as to a particular remedy, then the portion of the claim seeking that remedy (and only that portion of the claim) must be severed from the arbitration and may be brought in court. All other claims shall remain subject to arbitration solely on an individual basis.
The arbitrator cannot combine more than one person's or entity's claims into a single case, and cannot preside over any consolidated, class or representative proceeding (unless we agree otherwise). And, the arbitrator's decision or award in one person's or entity's case can only impact the person or entity that brought the claim, not other Beast Interactive users, and cannot be used to decide other disputes with other users.
If any court or arbitrator determines that the class/consolidated/representative action waiver set forth in this section is void or unenforceable for any reason or that arbitration can proceed on a class, consolidated, or representative basis, then the disputes, claims, or controversies will not be subject to arbitration and must be litigated in federal court located in Dallas, Texas.
If any clause within this Waiver of Class or Consolidated Actions Section is found to be illegal or unenforceable, that specific clause will be severed from this section, and the remainder of its provisions will be given full force and effect.
This Waiver of Class or Consolidated Actions Section will also apply to any claims asserted by you against any present or future parent, subsidiary or affiliated company of Beast Interactive or any employee, officer, director, or investor of Beast Interactive and to any claims asserted by any of them against you, to the extent that any such claims is a dispute.
This Waiver of Class or Consolidated Actions Section shall survive any termination of your account or the Services.
22) COPYRIGHT POLICY
If you are a copyright owner or an agent thereof and believe that any content, information, or communication on the Services infringes upon your copyrights, you may submit a written notice of infringement to us. All notices of infringement should be sent to the Designated Agent of Beast Interactive identified below and should include the following information: (a) an electronic or physical signature of the copyright owner or of the person authorized to act on behalf of the owner of the copyright interest, (b) a description of the copyrighted work that you claim has been infringed, (c) a description of where the material that you claim is infringing is located on the Services, (d) your address, telephone number, and e-mail address, (e) a written 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 (f) 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.
Notices of infringement should be directed to the following Designated Agent of Beast Interactive:
Beast Interactive, LLC
Attn: Copyright Agent
PO BOX 140396, 6120 Swiss Ave, Dallas, TX 75214
23) IOS APP
You acknowledge and agree that (i) these Terms are binding between you and Beast Interactive only, and Apple is not a party hereto, and (ii) as between Beast Interactive and Apple, it is Beast Interactive that is responsible for the mobile app and the content thereof. Our Contests are not sponsored, endorsed, administered by, or associated with Apple.
You acknowledge that Apple is not responsible for addressing any claims you have or any claims of any third party relating to the app or your possession and use of the app, including, but not limited to (i) product warranty or liability claims; (ii) any claim that the app fails to conform to any applicable legal or regulatory requirement; (iii) claims arising under consumer protection or similar legislation; or (iv) claims that the app infringes a third party’s intellectual property rights.
In the event of any failure of the iOS version of the app to conform to any applicable warranty that has not been effectively disclaimed by these Terms, you may notify Apple, and Apple will refund the purchase price for the app (if any) to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the app, and, as between Apple and Beast Interactive any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Beast Interactive’s responsibility, but only to the extent provided by these Terms. Please read the entire Terms, as other sections of these Terms limit Beast Interactive’s liability in this regard.
Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms. Upon your acceptance of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms against you as a third party beneficiary thereof. There are no other third-party beneficiaries of the Terms.
Electronic Communications. You agree to receive communications from us electronically, such as emails, texts, mobile push notices, or notices and message on the Services, and to retain copies of these communications for your records. You agree that all terms and conditions, agreements, notices, disclosures, and other communications and documents that we provide to you electronically will have the same legal effect that such communications or documents would have if they were set forth in "writing."
Assignment. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without our prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
Force Majeure. We shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
Choice of Law. These Terms and any dispute of any sort that might arise between you and Beast Interactive will be interpreted in accordance with the law of the State of Texas and the United States of America, consistent with the Federal Arbitration Act, without regard to any conflict-of-law or other principles that provide for the application of the law of another jurisdiction.
Exclusive Venue. Any claim or dispute that between you and us that arises out of or is related to the Services and is not subject to arbitration or eligible for small claims action, shall be decided exclusively by a court of competent jurisdiction located in Dallas, Texas and you hereby consent to, and waive all defense of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the state and federal courts of Dallas, Texas.
Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim arising out of or related to the Services must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred. Notwithstanding the foregoing, this statute of limitations shall not apply to residents of New Jersey.
Notice. Where we require that you provide an email address, you are responsible for providing us with your most current email address. In the event that the last e-mail address you provided to us is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by these Terms, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to us at the following address: PO BOX 140396, 6120 Swiss Ave, Dallas, TX 75214. Such notice shall be deemed given when received by us by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
Export Control. You may not use, export, import, or transfer the Services, including the purchase of any products or service on the Services except as authorized by U.S. law, the laws of the jurisdiction in which you used the Services or purchased any products or services on the Services, and any other applicable laws. In particular, but without limitation, the Services, including any products or services purchased on the Services, may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Denied Person's List or Entity List. By using the Services or purchasing products or services on the Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services nor the products or services purchased on the Services for any purpose prohibited by U.S. law.
Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
Entire Agreement. These Terms and any policies or operating rules posted by us through the Services constitute the entire agreement and understanding between you and us and govern your use of the Services, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms of Service). These Terms shall not be modified by any of: (i) course of performance between the parties; (ii) course of conduct or dealing between the parties; or (iii) applicable trade practice.
Waiver. The failure of us to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.
Agency. No agency, partnership, joint venture, or employment relationship is created as a result of these Terms and neither party has any authority of any kind to bind the other in any respect.
Severability. Subject to Section 20 (Arbitration), in the event that any provision of these Terms is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms, such determination shall not affect the validity and enforceability of any other remaining provisions.
Interpretation. Any ambiguities in the interpretation of these Terms shall not be construed against the drafting party.
Section Titles. The headings used in the Terms are included for convenience only and will not limit or otherwise affect these Terms.
25) CHANGES TO THESE TERMS
We reserve the right, at our sole discretion, to update, change or replace any part of these Terms. The most current version of the Terms will be posted on the Services and it is your responsibility to check our website periodically for changes. If the changes include material changes that affect your rights or obligations, we will notify you of the changes by reasonable means, which could include notification through the Services or via email. Your continued use of the Services following the effective date of any changes to these Terms constitutes acceptance of those changes. If you do not agree to the new Terms, you may not use the Services.
26) CONTACT US
If you have any questions or concerns with respect to these Terms or the Services, or to report any violations of these Terms, please contact us at: firstname.lastname@example.org