These Terms of Service ("Terms”) govern your use of the Etermax website ("Site”) and any games, mobile applications, application programming interfaces, and other services offered by Etermax, S.A. and
any of its affiliates, as well as services offered through third parties integrating Etermax functionality (collectively, the "Services”). Etermax S.A. and any of its affiliates ("Etermax,” "we”
or us) provides the Site and Services. "You" refers to you as a user of the Site or Services.
FOR RESIDENTS OF THE USA: If you are a resident of the United States of America, then these Terms are governed by United States federal law, including the Federal Arbitration Act, and the law of the state of New York.IMPORTANT NOTICE: THIS AGREEMENT
IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED BELOW IN PARAGRAPH 15.
You must be at least the age of majority in your state or country of residence or have the permission or your parent or legal guardian to use the Site or the Services. If you are under the age of majority in your state or country of residence, a minor,
your parent or legal guardian must agree to these Terms on your behalf and you may only access and use the Site and Services with permission from your parent or legal guardian.
2. Additional Terms; Game Rules
Some of our Services may have additional terms and conditions ("Additional Terms”). Where Additional Terms apply to a Service, we will make them available for you to read through your use of that Service. By using that Service,
you agree to the Additional Terms.
When you access games included in the Services, the specific rules, scoring, controls and guidelines for each game can be found within the game itself. Such rules are integral part of the Terms, and you agree that you will comply with all such rules.
3. Acceptable Use of the Site and Services
You are responsible for your use of the Site and Services, and for any use of the Site or Services made using your account. Our goal is to create a positive, useful, and safe user experience. To promote this goal, we prohibit certain kinds of conduct
that may be harmful to other users or to us. When you use the Site or Services, you may not:
- violate any law or regulation;
- violate, infringe, or misappropriate other people’s intellectual property, privacy, publicity, or other legal rights;
- upload, communicate, transmit or otherwise make available any Content that is or could reasonably be viewed as unlawful, harmful, harassing, defamatory or otherwise objectionable, of pornographic, obscene or indecent nature, invasive of another's
privacy, hateful, likely to incite violence or racial or ethnic hatred, or otherwise objectionable;
- send unsolicited or unauthorized advertising or commercial communications, such as spam, forge any TCP/IP packet header or any part of the header information in any email or posting, -2- or in any way use the Services to send altered, deceptive or
false source-identifying information;
engage in spidering or harvesting, or participate in the use of software, including spyware, designed to collect data from the Site or Services;
- collect any information about or regarding other Users including but not limited to any personal data or information,
- interfere with or disrupt the Services, user access, or the servers or networks that provide the Services, or transmit any viruses or other computer instructions or technological means whose purpose is to disrupt, damage, or interfere with the use
of computers or related systems;
- stalk, harass, or harm another individual;
- impersonate any person or entity or perform any other similar fraudulent activity, such as phishing;
- use any means to scrape or crawl any Web pages contained in the Site;
- probe, scan, crack, track and/or test the vulnerability of any system or network, attempt to circumvent any technological measure or authentication measures implemented by us or any of our providers or any other third party (including another user)
to protect the Site or Services;
- access or search or attempt to access or search the Services by any means (automated or otherwise) other than through the currently available, published interfaces provided and only pursuant to these Terms
- attempt to decipher, decompile, disassemble, or reverse engineer any of the software or other underlying code used to provide the Site or Services;
- use the Services in any other way not permitted by these Terms; or
- advocate, encourage, or assist any third party in doing any of the foregoing.
4. Content on Our Site and Services
For purposes of these Terms: (a) "Content ” means the text, graphics, photos, sounds, music, videos, audiovisual combinations, interactive features, software, scripts, works of authorship of any kind, and information or other
materials that are posted, generated, provided, or otherwise made available through the Services; and (b) "User Content” means any Content that users (including you) share, communicate, upload or make available through the
Services. User Content includes communications with other users and with us, links, personal information, images, videos, and information provided by users on user profiles.
4a. Your Use of the Site, Services and Content Is at Your Sole Risk
User Content, whether publicly posted or privately transmitted, is the sole responsibility of the users who originated such User Content. Although we may review User Content, we are not obligated to do so. In addition we do not undertake to review
all User Content before it is distributed through the Site or Services, and cannot ensure prompt removal of objectionable User Content after it has been posted or distributed. You understand that by using our Site and Services, you may be exposed
to User Content that might be indecent, offensive, harmful, inaccurate, objectionable or otherwise inappropriate. We do not support, represent or guarantee the quality, completeness, truthfulness, accuracy, or reliability of any User Content.
We do not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, or reliability of any User Content or communications, or endorse any opinions expressed via Site and Services.
You agree your use of the Site and Services is at your sole risk, and your viewing, use or reliance on any Content on the Site or Services (including User Content), is also at your sole risk. As stated more fully in Section 13,
under no circumstances will we be liable in any way for any Content or User Content, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the viewing, transmission, use or reliance on any Content on
our Site or Services or elsewhere, or any Content that may be found to be indecent, offensive, harmful, inaccurate, objectionable or otherwise inappropriate, mislabeled or otherwise deceptive. Etermax has the right to warn Users that User Content
is not moderated, or that is solely moderated by Users.
We will work with our users to enforce these Terms, including the Acceptable Use provisions described above, and remove inappropriate or objectionable content. We reserve the right to remove any User Content for any reason, at our sole discretion.
4b. Your User Content and the Rights You Grant Us
The Site and some of our Services allow you to upload, submit, store, send, or receive User Content ("Your User Content”). Access to these features may be subject to age restrictions. You retain ownership of any intellectual
property rights that you hold in your User Content. When you upload, submit, store, send, or receive User Content to or through the Site or Services, you give us permission to reproduce and use your User Content as follows: you grant to us and
those we work with a license to use, host, store, reproduce, modify, create derivative works (such as translations, adaptations, or other changes we make so that User Content works better with the Site and Services, all together "Derivative Works”),
publicly perform, publicly display, and distribute your User Content in any and all media or distribution methods now known or later developed. This license includes the right for us to sublicense your User Content, and to make Content submitted
to or through the Services available to other companies, organizations or individuals who partner with Etermax for the syndication, broadcast, distribution or publication of such Content on other media and services. This license also includes
the right to use your User Content to provide, promote, and improve the Site and Services, develop new services, and to distribute your User Content. Our license to your User Content is non-exclusive, meaning you may use the User Content for your
own purposes or let others use your User Content for their purposes, not withstanding, you cannot use Derivative Works outside the Site or Services without the express prior written permission from Etermax. This license is fully-paid and royalty
free, meaning we, and other companies, organizations or individuals who partner with us, do not owe you any money or compensation of any kind in connection with our use of your User Content. We may exercise our rights under this license anywhere
in the world. Lastly, this license is perpetual and irrevocable, meaning that our rights under this license continue even after you stop using the Site and Services.
You promise that:
- you own all rights to your User Content or, alternatively, that you have the right to give us the rights described above; and
- your User Content does not infringe the intellectual property rights, privacy rights, publicity rights, or other legal rights of any third party.
You understand and acknowledge that you are solely responsible for any User Content you provide, and for any consequences thereof, including the use of such User Content by other users and third parties. You understand that your User Content may
be syndicated, broadcasted, distributed, or published by third parties and if you do not have the right to submit User Content for such use, you may be subject to liability. Etermax will not be responsible or liable for any use of User Content
by third parties, or for any use by Etermax in accordance with these Terms.
We may refuse to accept or transmit User Content for any reason at our sole discretion. We may remove User Content from the Site or Services for any reason at our sole discretion.
You agree that Etermax has no obligation to monitor or protect User Content.
4c. Ownership of All Other Content
Other than User Content, we own or license all right, title, and interest in and to (a) the Site and Services, including all software, text, media, and other Content available on the Site and Services ("Our Content”); and
(b) our trademarks, logos, domain names, and brand elements (" Marks ”). The Site and Services, Our Content, and Marks are all protected under U.S. and international copyright, trademark, and other laws. All rights reserved.
4d. Advertising Content
The Site and Services may include advertisements, which may be targeted to the content or information on the Services (including User Information), queries made through the Services, or any other information. The types and extent of advertising
by Etermax on the Services are subject to change. In consideration for Etermax granting you access to and use of the Services, you agree that Etermax and its third party providers and partners may place such advertising on the Services or in connection
with the display of User Content or information from the Services whether submitted by you or others.
4e. Content Removal; Cooperation with Law Enforcement
We have the right to:
- remove or refuse to distribute any Content or User Content for any reason or no reason in our sole discretion;
- take any action with respect to any Content or User Content that we deem necessary or appropriate in our sole discretion, including if we believe that such User Content violates these Terms of Service, infringes any intellectual property right
or other right of any person or entity, threatens the personal safety of users of the Site or Services or the public, or could create liability for us;
- disclose your personally identifying information or other information about you to any third party who claims that User Content provided by you violates their rights, including their intellectual property rights or their right to privacy;
- take appropriate legal action, including without limitation, disclosing your personally identifying information or other information about you to law enforcement, for any suspected illegal or unauthorized use of the Site or Services;
- terminate or suspend your access to all or part of the Site or Services, and to reclaim and redistribute usernames, for any or no reason, including without limitation, any violation of these Terms of Service.
Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity, or other information, of anyone posting or distributing any User Content
on or through the Site or Services. We also reserve the right to access, review, monitor, display, read, preserve, store, and disclose any information and any User Content as we reasonably believe is necessary or appropriate to: (i) satisfy any
applicable law, regulation, legal process or governmental request; (ii) investigate potential violations of and/or enforce these Terms; (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support
requests, or (v) protect the rights, property or safety our users, our company or third parties.
YOU WAIVE AND HOLD OUR COMPANY (AND ITS OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, AND LICENSORS ("AFFILIATES”)) HARMLESS FROM ANY CLAIMS RESULTING FROM ANY OF THE ACTIONS OR
ACTIVITIES LISTED IN THIS SECTION, OR ACTION WE OR OUR AFFILIATES TAKE DURING OR AS A RESULT OF ANY INVESTIGATIONS.
We assume no liability for any action or inaction regarding transmissions, communications or User Content provided by any user or third party. We have no liability or responsibility to anyone for performance or non-performance of the activities
described in this section.
5. Your Limited License to the Site, Services, and Content
Subject to and conditioned on your compliance with these Terms, we grant you a limited, non-exclusive, non-transferable license to access and view the Site, User Content and Our Content solely in connection with your permitted use of the Site and Services,
and solely for your personal and non-commercial purposes.
You may not download, capture, save, distribute or rebroadcast any of Our Content or any others’ User Content. You may only download, capture, and/or save your User Content using the tools we make available for such purpose through the Site or Services.
However, you cannot use Derivative Works of your User Content, as defined in section 4.b, outside the Site or Services without the express prior written permission from Etermax.
Subject to and conditioned on your compliance with these Terms, we also grant you a limited nonexclusive, nontransferable, non-sublicensable license to download and install a copy of our game(s) or app(s) on a mobile device and to run such copy of such
game(s) or app(s) solely for your own personal, noncommercial purposes. Except as expressly permitted in these Terms, you may not: (a) copy, modify, or create derivative works based on the game(s), app(s), Site or Services; (b) distribute, transfer,
sublicense, lease, lend, or rent the game(s), app(s), Site or Services to any third party; (c) reverse engineer, decompile, or disassemble the game(s), app(s), Site or Services ; or (d) make the functionality of the game(s), app(s), Site or Services
available to multiple users through any means. We reserve all rights in and to the game(s), app(s), Site or Services not expressly granted to you under these Terms.
6. In-game Currencies/Goods
The services may include a virtual, in-game currency ("Virtual Currency") including, but not limited to Lives, Coins, Spins and Gems, that may be purchased from us for "real world" Currency if you are a legal adult in your country
of residence. The Services may also include virtual, in-game digital items and characters ("Virtual Goods") that may be purchased from us for "real world" Currency or for Virtual Currency. The purchase of Virtual Currency and Virtual
Goods is limited to Account holders who are either (a) 18 years of age or older; or (b) under the age of 18 and have the consent of a Parent to make the purchase. Parents of children under the age of 18 can consult the iOS or Google Play settings
for their App to restrict in-App purchases, but should also monitor their children’s Accounts for unexpected activity, including the purchase of Virtual Currency or Virtual Goods.
Regardless of the terminology used, you agree that Virtual Currency and Virtual Goods have no monetary value and do not constitute actual currency or property of any type. Virtual Currency and Virtual Goods may never be sold, transferred, exchanged
or redeemed for "real world" Currency, goods or other items of monetary value from us or anyone else.
6a. Purchases of Virtual Currency and Virtual Goods
Virtual Currency and Virtual Goods are categories of Content, You only get a limited, revocable, personal, non-transferable, and non-sublicenseable license to use Virtual Currency and Virtual Goods. You -6- acknowledge that you do not acquire any
ownership rights in or to the Virtual Currency, Virtual Goods, or other Content; any balance of Virtual Goods or Virtual Currency does not reflect any stored value.
You will only obtain Virtual Currency and/or Virtual Goods from us and through means provided by us, and not from any third-party platform, exchange, broker, or other mechanism, unless expressly authorized. Outside of the Service, you may not buy
or sell any Virtual Currency or Virtual Goods for "real world" Currency or otherwise exchange items for value. Any attempt to do so is in violation of these Terms and may result in a lifetime ban from the Services and possible legal
action. Once you acquire a license to Virtual Currency or Virtual Goods, you may not trade or transfer the Virtual Currency or Virtual Goods to another individual or account, unless such functionality is provided to you by us by way of a feature
or Service, whether inside a game or through some other method (e.g., our website).
Etermax may manage, control, regulate, modify or eliminate Virtual Currency and/or Virtual Goods at any time, with or without notice, in our sole discretion. Etermax shall have no liability to you or any third party in the event that we exercise
any such rights.
During the term of your license to your Virtual Currency, you have the right to redeem your Virtual Currency for selected Virtual Goods. If you are the Parent and you are accepting these Terms on behalf of your child, you accept and acknowledge
that your child has your consent to exercise this right independently. Pricing and availability of Virtual Currency and Virtual Goods are subject to change without notice. We reserve the right at any time to change and update our pricing and inventory
of Virtual Currency and Virtual Goods. As set forth below, all Virtual Currency, Virtual Goods, and other Content is provided "as is,” without any warranty. All purchases, sales and redemptions of Virtual Currencies and Virtual Goods are final
and non-refundable, except in our sole and absolute discretion.
6b. Our Discretion to Cancel any Virtual Currency or Virtual Goods and Effect of Termination on Virtual Currency and Virtual Goods
All Virtual Currencies and Virtual Goods are forfeited if your account is suspended or terminated for any reason, in our sole and absolute discretion, or if we discontinue the provision of the Services or any particular game. We may cancel, suspend,
or terminate your Account and your access to your Virtual Currency, Virtual Goods, the Content, or the Services, in our sole discretion and without prior notice, including, but not limited to, for the following reasons: (a) your Account is inactive
(i.e., not used or logged into) for one year; (b) you fail to comply with these Terms; (c) we suspect fraud or misuse by you of Virtual Currency, Virtual Goods, or other Content; (d) we suspect any other unlawful activity associated with your
Account; or (e) we are acting to protect the Services, our systems, the game, any of our users, or our reputation or the reputation of any of our partners.
YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED VIRTUAL CURRENCY OR VIRTUAL GOODS ACCOUNT IS CLOSED, WHETHER SUCH CLOSURE WAS VOLUNTARY OR INVOLUNTARY. Certain jurisdictions may provide additional statutory rights, including a Cooling-Off
Period which allows you to withdraw from a purchase. Nothing herein is meant to limit your return or cancellation rights for your purchase of Virtual Content under local law.
You agree that your Virtual Currencies and Virtual Goods will be forfeited and your account will be permanently suspended in our sole and absolute discretion if you attempt to buy or sell any Virtual Currency or Virtual Goods by selling, buying
or transferring any account connected with us.
7. Copyright and Intellectual Property Policy
We respond to notices of alleged copyright infringement and terminate accounts of repeat infringers according to the process set out in the U.S. Digital Millennium Copyright Act. If you believe that your work has been copied in a way that constitutes
copyright infringement, please forward the following information to the Copyright Agent named below:
- Your address, telephone number, and email address.
- A description of the copyrighted work that you claim has been infringed.
- A description of where the alleged infringing material is located.
- A statement by you that you have a good faith belief that the disputed use is not authorized by you, the copyright owner, its agent, or the law.
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest.
- A statement by you, made under penalty of perjury, that the above information is accurate and that you are the copyright owner or authorized to act on behalf of the copyright owner.
Dr. Luis Bonavita 1294
For clarity, only copyright infringement notices should go to our Copyright Agent. You acknowledge that if you fail to comply with all of the requirements of this section your notice may not be valid. After we receive your copyright infringement notice,
we may forward it to the party who submitted content at issue. Please note that when we forward your copyright infringement notice, it includes your personal information. By submitting a copyright infringement notice, you consent to having your information
revealed in this way.
If you believe the content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use such content, you
may submit a counter-notice to the address listed above containing the following information
- Your physical or electronic signature;
- Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
- A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
- Your name, physical address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Los Angeles, California, and a statement that you will accept service of process from the person who provided
notification of the alleged infringement.
After we receive your counter-notification, we will forward it to the party who submitted the original claim of copyright infringement. Please note that when we forward the counter-notification, it includes your personal information.
By submitting a counter-notification, you consent to having your information -8- revealed in this way. We will not forward the counter-notification to any party other than the original claimant.
After we send out the counter-notification, the claimant must then notify us within 10 days that he or she has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the content that was removed or disabled.
If we receive such notification we will be unable to restore the material. If we do not receive such notification, we may reinstate the material.
9. User Accounts
In order to access some features of the Site or Services, you will have to create an account. You may never use another's account without permission. When creating your account, you must provide accurate and complete information. You are solely
responsible for the activity that occurs on your account, and you must keep your account password secure. Etermax encourage you to use strong passwords (passwords that use a combination of upper and lower case letters, numbers and symbols). You must
notify us immediately of any breach of security or unauthorized use of your account.
We will not be liable for your losses caused by any unauthorized use of your account. However, you may be liable for the losses of Etermax or others due to such unauthorized use.
The Site and Services may contain links to other websites and online resources. A link to a third party’s website does not mean that we endorse it or that we are affiliated with it. We are not responsible or liable for any damage or loss related to
11. Changes to the Site or Services
We enhance and update the Site and Services often. We may change or discontinue the Site or Services at any time, with or without notice to you.
12. Termination and Survival
We reserve the right to not provide the Site or Services to any person. We also reserve the right to terminate any user’s right to access the Site or Services at any time, in our discretion. If you violate any of these Terms, your permission to use
the Site and Services automatically terminates.
You may end this legal agreement with Etermax at any time for any reason, by discontinuing the use of the Services and contacting email@example.com to delete your account. The provisions of Sections 3,
4, 6, 7 and 12 - 17 will survive the closure of your account and any expiration or termination of these Terms of Service, and you will continue to be responsible
for all of your activities during the time you used the Services.
13. Disclaimer and Limitations on Our Liability
YOU USE THE SITE AND SERVICES AT YOUR OWN RISK. THE SITE AND SERVICES ARE PROVIDED ON AN "AS IS” AND "AS AVAILABLE” BASIS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, OUR COMPANY AND ITS OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS,
PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, AND LICENSORS ("AFFILIATES”) DISCLAIMS ALL WARRANTIES, CONDITIONS, AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING THOSE RELATED TO MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE, AND NON- INFRINGEMENT AND THOSE ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
IN PARTICULAR, OUR COMPANY AND ITS AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY OR COMPLETENESS, TIMELINESS, SECURITY OR RELIABILITY OF THE SITE, SERVICES OR ANY CONTENT AVAILABLE ON OR THROUGH THE SITE OR SERVICES, OR THE CONTENT
OF ANY WEBSITES OR ONLINE SERVICES LINKED TO OR INTEGRATED WITH THE SITE OR SERVICES.
OUR COMPANY AND ITS AFFILIATES WILL HAVE NO LIABILITY FOR ANY: (a) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (b) PERSONAL INJURY, PROPERTY DAMAGE OR LOSS OF DATA RESULTING FROM YOUR ACCESS TO OR USE OF THE SITE OR SERVICES; (c) ANY UNAUTHORIZED
ACCESS TO OR USE OF OUR SERVERS OR OF ANY PERSONAL INFORMATION OR USER DATA; (d) ANY INTERRUPTION OF TRANSMISSION TO OR FROM THE SITE OR SERVICES, OR ANY DELETION OF OR FAILURE TO STORE OR TRANSMIT ANY CONTENT OR COMMUNICATIONS; (e) ANY BUGS, VIRUSES,
TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED ON OR THROUGH THE SITE OR SERVICES BY ANY THIRD PARTY; (f) FAILURE OF THE SITE OR SERVICES TO MEET USER EXPECTATIONS OR REQUIREMENTS; OR (g) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF
THE USE OF ANY CONTENT POSTED OR SHARED THROUGH THE SITE OR SERVICES.
YOU UNDERSTAND AND AGREE THAT ANY MATERIAL OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE OR SERVICES IS DONE AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE ARISING FROM DOING SO. NO ADVICE OR INFORMATION,
WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SITE OR SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE IN THESE TERMS.
Waiver of Consequential Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL WE BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING FOR LOSS OF PROFITS, REVENUE,
OR DATA) OR FOR THE COST OF OBTAINING SUBSTITUTE PRODUCTS OR SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, THE SITE OR SERVICES, HOWEVER CAUSED, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT, STRICT
LIABILITY OR OTHERWISE, AND WHETHER OR NOT WE’VE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Limitation of Total Liability. TO THE EXTENT PERMITTED BY LAW, OUR TOTAL CUMULATIVE LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, THE SITE OR SERVICES, FROM ALL CAUSES OF ACTION AND ALL THEORIES
OF LIABILITY (INCLUDING CONTRACT, WARRANTY, TORT, STRICT LIABILITY OR OTHERWISE), WILL BE LIMITED TO AND WILL NOT EXCEED THE FEES YOU’VE ACTUALLY PAID US DURING THE 6 MONTHS PRECEDING THE CLAIM GIVING RISE TO SUCH LIABILITY, TO A MAXIMUM OF $100 (100
Basis of Bargain. You understand and agree that we’ve set our prices and entered into these Terms with you in reliance upon the limitations of liability set forth in these Terms, which allocate risk between us and form the basis of
a bargain between the parties.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent we
may not, as a matter of applicable law, disclaim any implied warranty or limit our liabilities, the scope and duration of such warranty and the extent of our liability will be the minimum permitted under such law.
You agree to indemnify and hold harmless our company and its Affiliates from and against any and all claims, costs, proceedings, demands, losses, damages, and expenses (including, without limitation, reasonable attorney’s fees and legal costs) of any
kind or nature, arising from or relating to, any actual or alleged breach of these Terms by you or anyone using your account, or your User Content. If we assume the defense of such a matter, you will reasonably cooperate with us in such defense.
15. For residents in the United States – BINDING ARBITRATION AND CLASS ACTION WAIVER
These BINDING ARBITRATION AND CLASS ACTION WAIVER provisions apply to you if you are domiciled in and/or access, download and use our Services in the United States. This Section is made pursuant to a transaction in interstate commerce, and shall be
governed by the Federal Arbitration Act (the "FAA”).
You and Etermax agree that we will resolve any disputes between us through binding and final arbitration instead of through court proceedings. You and Etermax hereby waive any right to a jury trial of any Claim (defined below). All controversies, claims,
counterclaims, or other disputes arising between you and Etermax relating to or arising from these Terms, the Site, Services or any Content (each a "Claim”) shall be submitted for binding arbitration. The arbitration will be
conducted by the American Arbitration Association ("AAA") under its rules and procedures ("AAA Rules") including the AAA's Consumer Arbitration Rules. The AAA's rules are available at www.adr.org
or by calling the AAA at 1-800-778-7879.
Arbitration Procedures. The arbitration will be heard and determined by a single arbitrator. The arbitrator must be a lawyer with at least 10 years of experience or a retired judge. The arbitration hearing shall be held in New York
County, New York. However, if you reside in a state other than New York, you will offer Etermax the opportunity to make the hearing convenient to you by permitting Etermax to select to: (a) conduct the hearing solely on the basis of documents submitted
to the arbitrator, with the parties participating through telephonic or video conference hearings; or (b) arbitrate in your state of residence at a location reasonably convenient to you and Etermax. In addition, in cases where an in-person hearing
is held, you and/or Etermax may attend by telephone, unless the arbitrator requires otherwise.
The arbitrator's decision in any such arbitration will be final and binding upon the parties, except for a limited right of review as provided in the FAA. Judgment upon the award may be entered in any court having jurisdiction. The parties agree
that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including, without limitation, any pleadings, briefs or other documents submitted or exchanged and any testimony or other oral submissions
and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration or by applicable disclosure rules and regulations of securities regulatory authorities or
other governmental agencies.
Costs. If you demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Etermax will pay as much of the administrative costs and arbitrator's fees required for the arbitration as the arbitrator
deems necessary to prevent the cost of the arbitration from being prohibitive. In the final award, the arbitrator may apportion the costs of arbitration and the compensation of the arbitrator among the parties in such amounts as the arbitrator deems
appropriate. Each party shall bear the expense of that party's attorneys, experts, and witnesses, regardless of which party prevails in the arbitration, unless applicable law gives a party the right to recover any of those fees from the other
Class Action Waiver. Neither you nor Etermax may act as a class representative or private attorney general, nor participate as a member of a class of claimants, with respect to any Claim. Claims may not be arbitrated on a class or representative
basis, and there should also be no joinder or consolidation of parties. The arbitrator can decide only your and/or Etermax’s individual Claims. The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly
If any portion of this Section is found to be invalid or unenforceable, then that specific portion shall be of no force and effect and shall be severed, but the remainder of this Section shall continue in full force and effect; provided however, that
if the Class Action Waiver is deemed invalid, then this entire Section shall be null and void. No waiver of any provision of this Section of the Terms will be effective or enforceable unless recorded in a writing signed by the party waiving such a
right or requirement. Such a waiver shall not waive or affect any other portion of this Terms. This Section of the Terms will survive the termination of your relationship with Etermax.
Small Claims; Action by Government Agencies. This arbitration agreement does not preclude you or Etermax from seeking action by federal, state, or local government agencies. You and Etermax also have the right to bring qualifying claims
in small claims court. In addition, you and Etermax retain the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments or preliminary injunctions, and any such request shall not be deemed incompatible
with these Terms, nor a waiver of the right to have disputes submitted to arbitration as provided in these Terms.
THIS SECTION LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM, THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN AAA RULES, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF. THE ARBITRATOR'S DECISION WILL BE FINAL AND BINDING EXCEPT FOR A LIMITED RIGHT TO REVIEW AS PROVIDED IN THE FAA. OTHER RIGHTS THAT YOU OR ETERMAX WOULD HAVE INC OURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION.
16. Governing Law and Jurisdiction
Residents of the United: States For residents of the United States, these Terms will be governed by and construed in accordance with United States federal law and the laws of the State of New York, without giving effect to any conflict of laws
rules or provisions.
If any court or arbitrator determines that the "BINDING ARBITRATION AND CLASS ACTION WAIVER" paragraph set forth above is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then you and we irrevocably consent
to the exclusive jurisdiction and venue of state or federal courts in New York County, New York to resolve any Claims that are permitted proceed on a class basis, or otherwise determined not to be arbitrable. You consent and submit to the personal
jurisdiction of such courts for the purposes of any such action.
For Residents of Other Countries: These Terms shall be governed by and construed in accordance with the laws of Uruguay. All claims, legal proceedings or litigation arising in connection with the Services will be brought solely in the relevant
courts located in the city of Montevideo – Uruguay. You consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum.
17. Other Provisions
Under no circumstances will we be held liable for any delay or failure in performance due in whole or in part to any acts of nature or other causes beyond our reasonable control.
If any provision of these Terms is found to be unlawful or unenforceable, then that provision will be deemed severable from these Terms and will not affect the enforceability of any other provisions.
The failure by us to enforce any right or provision of these Terms will not prevent us from enforcing such right or provision in the future.
We may assign our rights and obligations under these Terms, including in connection with a merger, acquisition, sale of assets or equity, or by operation of law.
18. Third-Party Fees
You may incur access or data fees from third parties (such as your Internet provider or mobile carrier) in connection with your use of the Site, Services or content. You are responsible for all such fees.
19. Changes to these Terms
From time to time, we may change these Terms. If we change these Terms, we will give you notice by posting the revised Terms on the Site. Those changes will go into effect on the Revision Date shown in the revised Terms. By continuing to use the Site
or Services, you are agreeing to the revised Terms.
PLEASE PRINT A COPY OF THESE TERMS FOR YOU RECORDS AND PLEASE CHECK THE SITE FREQUENTLY FOR ANY CHANGES TO THESE TERMS.
Revised: April, 2017.
©2017 Etermax. All rights reserved.