IMPORTANT NOTICE: THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN SECTION 15
1. Acceptance of terms
Win-Win may issue additional terms, rules and conditions of participation in particular Tournaments. You agree to be subject to them if you participate in such Tournaments.
You hereby 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.
By entering a tournament, you are representing and warranting that:
- you are of 18 years of age or older
- you are a citizen or resident of the United States of America and that you have an address in the United States of America;
- at the time of tournament entry you are physically located in the United States of America in which participation in the tournament is not prohibited by applicable law;
- you are not listed on any U.S. Government list of prohibited or restricted parties;
- you are not subject to backup withholding tax because: (a) you are exempt from backup withholding, or (b) you have not been notified by the Internal Revenue Service (IRS) that you are subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified you that you are no longer subject to backup withholding.
- you do not, by virtue of affiliation with another daily fantasy site, have access to the site’s pre-release non-public confidential data about contest-related information.
If Win-Win determines that you do not meet the eligibility requirements of this section, then you are not authorized to use the Service. Win-Win may require you to provide proof that you are eligible to participate according to this section prior to receiving a prize. This includes by requesting that you fill out an affidavit of eligibility or other verification information (as discussed in Section 4 below). If Win-Win otherwise determines that you do not meet the eligibility requirements of this section, in addition to any rights that Win-Win may have in law or equity, Win-Win reserves the right to terminate your account, withhold or revoke the awarding of any prizes associated with your account. In such a situation, Win-Win may award prizes to the other entrants in the relevant contest in a manner consistent with the prize structure of the contest, to be precisely determined by Win-Win in its sole discretion. Win-Win employees may use the Service for the purpose of testing the user experience, but may not be awarded certain prizes. Relatives of Win-Win employees with whom they share a household are not eligible to participate in Tournaments. Win-Win consultants or promoters of the Service may play in Tournaments without such limitation, but only if (i) their arrangement with Win-Win does not permit them to have any access to non-public Service data or any other data not made available to all entrants on the Service and (ii) they do not receive any other advantages in their play on the Service.
Employees or operators of other daily fantasy sites that charge entry fees or offer cash prizes, including but not limited to FanDuel, DraftKings and Yahoo, and individuals who, by virtue of affiliation with another daily fantasy site, have access to the site’s pre-release non-public confidential data about game-related information may not enter any Tournaments in which a prize is awarded. If such person enters a Win-Win contest that awards prizes, Win-Win will disqualify the entry, will not award a prize, and may report such person’s violation of this provision to the daily fantasy site for which the entrant is employed by, operates or affiliated with. Additionally, Win-Win may maintain information about the entrant sufficient to assist Win-Win in blocking the user from entering future Win-Win Tournaments, unless and until Win-Win determines, in its sole discretion, that the entrant is no longer an employee or operator of another daily fantasy site or no longer has access to pre-release non-public confidential data about game-related information by virtue of affiliation with a daily fantasy site.
Win-Win is not affiliated with or sponsored by the National Football League, the National Basketball Association or Major League Baseball.
4. Conditions of participation
In order to participate in a contest on the Service, you must register for an account. By registering as a user of the Service, you agree to provide accurate, current and complete information about yourself as prompted (such information being the “Registration Data”) and maintain and promptly update the Registration Data to keep it accurate, current and complete. If you provide any information that is inaccurate, not current or incomplete, or Win-Win has reasonable grounds to suspect that such information is inaccurate, not current or incomplete, Win-Win may deny you access to areas requiring registration, or terminate your account, at its sole discretion.
You may establish, maintain, use and control only one account on the Service. Each account on the Service may only be owned, maintained, used and controlled by one individual. For avoidance of doubt, users may not “co-own” accounts on the Service. In the event Win-Win determines that you have opened, maintained, used or controlled more than one account, in addition to any other rights that Win-Win may have, Win-Win reserves the right to suspend or terminate any or all of your accounts and terminate, withhold or revoke the awarding of any prizes.
You agree that the sole and specific purpose of creating an account on Win-Win is to participate in charitable fantasy sports tournaments on the Service. Win-Win shall be entitled to suspend, limit or terminate your account if we determine, in our sole discretion, that you are depositing funds without the intention of using them in Tournaments on the Service. In such circumstances, we may also report such activity to relevant authorities.
4.2 Account Password and Security
At the time of registration for online account access, you must provide a valid email address and supply a Username and Password to be used in conjunction with your account. You may not use a Username that promotes a commercial venture or a Username that Win-Win in its sole discretion deems offensive. Many portions of the Service require registration for access (the "Member Areas"). You are responsible for maintaining the confidentiality of your Username and Password, and are fully responsible for all uses of your Username and Password, whether by you or others. You agree to (a) never to use the same Password for the Service that you use or have ever used outside of the Service; (b) keep your Username and Password confidential and not share them with anyone else; (c) immediately notify Win-Win of any unauthorized use of your Username and Password or account or any other breach of security; and (d) use only your own Username and Password to access the Service’s Member Areas. Win-Win cannot and will not be liable for any loss or damage arising from your failure to comply with this Section.
You acknowledge and agree that Win-Win is authorized to act on instructions received through the use of your Username and Password, and that Win-Win may, but is not obligated to, deny access or block any transaction made through use of your Username and Password without prior notice if we believe your Username and Password are being used by someone other than you, or for any other reason.
Win-Win may require you to change your Username or may unilaterally change your Username.
4.3 Communications and Information Practices
As a result of your registration for the Service, you may receive certain commercial communications from Win-Win. You understand and agree that these communications are part of your registration, and that, to the extent required by law, you may opt out of receiving these communications at any time by either using the unsubscribe functionality or sending an email to unsubscribe [at] winwinfantasy [dot] com. Following such an opt-out, we may still communicate with you via email to the extent permitted by applicable law.
4.4 Disqualification and Cancellation
Win-Win also reserves the right to cancel Tournaments, in our sole discretion, without any restrictions.
If for any reason the Service is not running as originally planned (e.g., if the Win-Win Platform becomes corrupted or does 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 Win-Win corrupts or affects the administration, security, fairness, integrity or proper conduct of the Service), Win-Win 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 Service, and select the winner(s) from all eligible entries received. If such cancellation, termination, modification or suspension occurs, notification may be posted on the Win-Win Platform.
The failure of Win-Win to comply with any provision of these Terms due to an act of God, hurricane, war, fire, riot, earthquake, terrorism, act of public enemies, actions of governmental authorities outside of the control of Win-Win (excepting compliance with applicable codes and regulations) or other force majeure event will not be considered a breach of these Terms.
You, not Win-Win, are responsible for filing and paying applicable state and federal taxes on any prizes that would require filing and payment. Win-Win does not provide tax advice, nor should any statements in this agreement or on the Service be construed as tax advice.
By entering a contest, you consent to Win-Win’s and its service providers’ and business partners’ use of your name, voice, likeness, location and photograph in connection with the development, production, distribution and/or exploitation (including marketing and promotion) of the selected Tournaments and/or other Win-Win Tournaments and Win-Win generally, unless otherwise prohibited by law. Win-Win and its business partners reserve the right to make public statements about the entrants and winner(s), on-air, on the Internet, or otherwise, prior to, during, or following the contest. Entrants agree that Win-Win may announce any winner's name on-air or on any of its websites or any other location at any time in connection with the marketing and promotion of Win-Win or other Tournaments operated by Win-Win. You agree that participation in and (where applicable) the winning of a prize in connection with a tournament constitute complete compensation for your obligations under this paragraph, and you agree not to seek to charge a fee or impose other conditions on the fulfillment of these obligations. The rules specific to certain Tournaments may contain additional publicity obligations or may require a written signature on a separate publicity waiver.
5. Game Rules
5.1 Game of Skill
Win-Win is a game of skill. Winners are determined by the criteria stated in each tournament’s rules and details. For each tournament, winners are determined by the individuals who use their skill and knowledge of relevant professional sports information and fantasy sports rules to accumulate the most fantasy points. Fantasy points are accumulated through the performance of individual athletes across multiple sports events. All entries in Win-Win must be made up of players drawn from a minimum of two sporting events.
5.2 Contest Term
Win-Win offers Tournaments for multiple professional sports events generally taking place on a single day or at most a week.
After each tournament ends, the tentative winners are announced (generally by the following day) but remain subject to final verification. The entrants in each tournament who accumulate the most fantasy points and comply with eligibility requirements and applicable rules will win prizes as set out in the posted tournament details. Winners will be contacted about prize fulfillment after the tournament. In the event of a tie, Win-Win reserves the right in its sole discretion to determine the means of breaking the tie.
Win-Win offers a number of different types of Tournaments. For each tournament, we announce the donation associated with the Tournament and its prizes in advance on the Tournament page. For a summary of donation amounts and prizes for currently open Tournaments please login to the Win-Win Platform and visit the Tournaments screen.
Winners are based on the results as of the time when final scoring is tabulated by Win-Win. Once winners are initially announced by Win-Win, the scoring results will not be changed in light of official adjustments made by the professional leagues, though we reserve the right to make adjustments based on errors or irregularities in the transmission of information to us from our stats provider or in our calculation of results. We also may make adjustments in the event of noncompliance with the Terms. Win-Win has no obligation to delay the awarding of a prize in anticipation of any adjustment, and we reserve the right to reverse payments in the event of any adjustment. You agree to cooperate with our efforts to reverse payments.
No substitution or transfer of a prize is permitted. All taxes associated with the receipt or use of any prize are the sole responsibility of the winner. In the event that the awarding of any prizes to winners of the Tournament is challenged by any legal authority, Win-Win reserves the right in its sole discretion to determine whether or not to award or adjust such prizes. In all disputes arising out of the determination of the winner of Win-Win Tournaments, Win-Win is the sole judge and its actions are final and binding.
Winners are generally posted on the Win-Win Platform after the conclusion of each Tournament by 5 PM PT on the following business day. Winners may be requested to return via email or regular mail an affidavit of eligibility, a publicity agreement and any appropriate tax forms by a specified deadline. Failure to comply with this requirement can result in disqualification. Any prize notification returned as undeliverable may result in disqualification and selection of an alternate winner. In addition, a list of winners and their names for each game play period may be obtained by writing to: Win-Win App Inc. 880 20th St. Oakland, CA 94607
As a condition of use, you promise not to use the Services for any purpose that is unlawful or prohibited by these Terms, or any other purpose not reasonably intended by Win-Win. By way of example, and not as a limitation, you agree not to:
- abuse, harass, impersonate, intimidate or threaten other Win-Win users;
- post or transmit, or cause to be posted or transmitted, any Content that are infringing, libelous, defamatory, abusive, offensive, obscene, pornographic or otherwise violates any law or right of any third party;
- use the Service for any unauthorized purpose, or in violation of any applicable law, including intellectual property laws;
- post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any Win-Win user;
- create or submit unwanted email ("Spam") to any other Win-Win users;
- infringe upon the intellectual property rights of Win-Win, its users, or any third party;
- submit comments linking to affiliate programs, multi-level marketing schemes, sites repurposing existing stories or off-topic content;
- post, email, transmit, upload, or otherwise make available any material that contains software viruses or any other computer code, files or programs designed or functioning to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
- use any robot, spider, scraper, sniping software or other automated means to access the Service for any purpose without our express written permission. Additionally, you agree that you will not: (1) take any action that imposes, or may impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure; (2) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; or (3) bypass any measures we may use to prevent or restrict access to the Service;
- use artificial means, including creating multiple user accounts, to inflate your position and standing with the Win-Win leader boards and community;
- advertise to, or solicit, any user to buy or sell any products or Service, or use any information obtained from the Service in order to contact, advertise to, solicit, or sell to users without their prior explicit consent;
- sell or otherwise transfer your profile;
- attempt to influence the play in any sporting event from which athletes are available for selection in Win-Win Tournaments on Win-Win in which you are involved or in which you have a direct or indirect interest.
6.1 User Content
You understand that all Content made available on the Service by a user (“User Content”), including but not limited to profile information and communications with other users, whether privately transmitted or made publicly available, is the sole responsibility of the person from which such User Content originated. This means that you, not Win-Win, are entirely responsible for all User Content that you upload, post, share, email, transmit, or otherwise make available via the Service. Under no circumstances will Win-Win be liable in any way for any User Content.
You acknowledge that Win-Win may or may not pre-screen User Content, but that Win-Win and its designees have the right (but not the obligation) in their sole discretion to pre-screen, refuse, permanently delete, restore, modify and/or move any User Content available via the Service. Without limiting the foregoing, Win-Win and its designees shall have the right to remove any User Content that violates these Terms or is otherwise objectionable in Win-Win's sole discretion. You understand that by using the Service, you may be exposed to User Content that you may consider to be offensive or objectionable. You agree that you must evaluate, and bear all risks associated with, the use or disclosure of any User Content. You further acknowledge and agree that you bear the sole risk of reliance on any Content available on or through the Service.
With respect to User Content you submit or otherwise make available on or to the Service, you grant Win-Win an irrevocable, fully sub-licensable, perpetual, world-wide, royalty-free, non-exclusive license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such User Content (in whole or in part), and to incorporate such User Content into other works, in any format or medium now known or later developed.
You are solely responsible for your interactions with other users of the Service. Win-Win reserves the right, but has no obligation, to monitor disputes between you and other users.
8. Warranty disclaimers
You expressly understand and agree that your use of the Service is at your sole risk. The Service (including the Service and the Content) are provided on an "AS IS" and "as available" basis, without warranties of any kind, either express or implied, including, without limitation, implied warranties of merchantability, fitness for a particular purpose or non-infringement. You acknowledge that Win-Win has no control over, and no duty to take any action regarding: which users gain access to or use the Service; what effects the Content may have on you; how you may interpret or use the Content; or what actions you may take as a result of having been exposed to the Content. You release Win-Win from all liability for you having acquired or not acquired Content through the Service. The Service may contain, or direct you to other websites containing information that some people may find offensive or inappropriate. Win-Win makes no representations concerning any Content contained in or accessed through the Service, and Win-Win will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Service.
9. Limitation on liability
YOU ACKNOWLEDGE AND AGREE THAT YOU ASSUME FULL RESPONSIBILITY FOR YOUR USE OF THE WIN-WIN PLATFORM AND SERVICE. YOU ACKNOWLEDGE AND AGREE THAT ANY INFORMATION YOU SEND OR RECEIVE DURING YOUR USE OF THE WIN-WIN PLATFORM AND SERVICE MAY NOT BE SECURE AND MAY BE INTERCEPTED OR LATER ACQUIRED BY UNAUTHORIZED PARTIES. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE WIN-WIN PLATFORM AND SERVICE IS AT YOUR OWN RISK. RECOGNIZING SUCH, YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER WIN-WIN NOR ITS SUPPLIERS OR LICENSORS WILL BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR OTHER DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER TANGIBLE OR INTANGIBLE LOSSES OR ANY OTHER DAMAGES BASED ON CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY (EVEN IF WIN-WIN HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM THE WIN-WIN PLATFORM OR SERVICE; THE USE OR THE INABILITY TO USE THE WIN-WIN PLATFORM OR SERVICE; UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE WIN-WIN PLATFORM OR SERVICE; ANY ACTIONS WE TAKE OR FAIL TO TAKE AS A RESULT OF COMMUNICATIONS YOU SEND TO US; ANY INCORRECT, ILLEGIBLE, MISDIRECTED, STOLEN, INVALID OR INACCURATE ENTRY INFORMATION; HUMAN ERRORS; TECHNICAL MALFUNCTIONS; FAILURES, INCLUDING PUBLIC UTILITY OR TELEPHONE OUTAGES; OMISSIONS, INTERRUPTIONS, LATENCY, DELETIONS OR DEFECTS OF ANY DEVICE OR NETWORK, PROVIDERS, OR SOFTWARE (INCLUDING, BUT NOT LIMITED TO, THOSE THAT DO NOT PERMIT AN ENTRANT TO PARTICIPATE IN THE SERVICE); ANY INJURY OR DAMAGE TO COMPUTER EQUIPMENT; INABILITY TO FULLY ACCESS THE WIN-WIN PLATFORM OR SERVICE OR ANY OTHER WEBSITE; THEFT, TAMPERING, DESTRUCTION, OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, ENTRIES, IMAGES OR OTHER CONTENT OF ANY KIND; DATA THAT IS PROCESSED LATE OR INCORRECTLY OR IS INCOMPLETE OR LOST; TYPOGRAPHICAL, PRINTING OR OTHER ERRORS, OR ANY COMBINATION THEREOF; OR ANY OTHER MATTER RELATING TO THE WIN-WIN PLATFORM OR SERVICE. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, WIN-WIN'S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO WIN-WIN FOR GENERAL USE OF THE WIN-WIN PLATFORM OR SERVICE DURING THE TERM OF YOUR REGISTRATION FOR THE SITE, NOT INCLUDING ANY ENTRY FEES FOR TOURNAMENTS COMPLETED PRIOR TO THE CIRCUMSTANCES GIVING RISE TO THE CLAIM.
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 may not apply to you.
10. Our proprietary rights
All title, ownership and intellectual property rights in and to the Service are owned by Win-Win or its licensors. You acknowledge and agree that the Service contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Except as expressly authorized by Win-Win, you agree not to copy, modify, rent, lease, loan, sell, distribute, perform, display or create derivative works based on the Service, in whole or in part.
The Service provides, or third parties may provide, links to other World Wide Web sites, applications or resources. Because Win-Win has no control over such sites, applications and resources, you acknowledge and agree that Win-Win is not responsible for the availability of such external sites, applications or resources, and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that Win-Win 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 use of or reliance on any such content, goods or services available on or through any such site or resource.
12. Termination and suspension
Win-Win may terminate or suspend all or part of the Service and your Win-Win account immediately, without prior notice or liability, if you breach any of the terms or conditions of the Terms. Upon termination of your account, your right to use the Service will immediately cease. If you wish to terminate your Win-Win account, you may contact us via the contact form with a note to say you wish to terminate your account.
The following provisions of the Terms survive any termination of these Terms: CONDITIONS OF PARTICIPATION (except for Registration and Account Password and Security); GAME RULES (only Bonuses and Promotions); CONDUCT (only User Content); INDEMNITY; WARRANTY DISCLAIMERS; LIMITATION ON LIABILITY; OUR PROPRIETARY RIGHTS; LINKS; TERMINATION; NO THIRD PARTY BENEFICIARIES; BINDING ARBITRATION AND CLASS ACTION WAIVER; GENERAL INFORMATION.
If your account is subject to a suspension, you must respect the restrictions and limitations imposed on your account as part of the suspension, and you should communicate with Win-Win regarding restoration of your account only via [email protected]
13. 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.
14. Notice and procedure for making claims of copyright infringement
Win-Win may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of users who infringe the intellectual property of others. If you believe that your copyright or the copyright of a person on whose behalf you are authorized to act has been infringed, please provide Win-Win's Copyright Agent a written Notice containing the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of where the material that you claim is infringing is located on the Service;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
Win-Win's Copyright Agent can be reached in the following ways:
Mail: Win-Win App, Inc., 880 20th St. Oakland, CA 94607
Email: copyright [at] winwinfantasy [dot] com
You can leave a voicemail for our Copyright Agent at 510-926-6528, but you cannot use this number to submit a Notice or to otherwise inform us of alleged copyright infringement. To be valid, a Notice must be in writing and must follow the instructions above. You also may use the contact information in this Section to notify us of alleged violations of other intellectual property rights.
15. Binding arbitration and class action waiver
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT
15.1 Initial Dispute Resolution
Our Customer Support Department is available by phone (510-926-6528) or via the web to address any concerns you may have regarding the Service. Our Customer Service Department is able to resolve most concerns quickly to our users’ satisfaction. The parties shall use their best efforts through this Customer Service process to settle any dispute, claim, question, or disagreement and engage in good faith negotiations which shall be a condition to either party initiating a lawsuit or arbitration.
15.2 Binding Arbitration
If the parties do not reach an agreed upon solution within a period of 30 days from the time informal dispute resolution under the Initial Dispute Resolution provision, then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to these Terms (including their formation, performance and breach), the parties’ relationship with each other and/or your use of the Service shall be finally settled by binding arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules and the supplementary procedures for consumer related disputes of the American Arbitration Association (the “AAA”), excluding any rules or procedures governing or permitting class actions.
The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms, including, but not limited to any claim that all or any part of these Terms are void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written, and binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
The Commercial Arbitration Rules governing the arbitration may be accessed at www.adr.org or by calling the AAA at +1-800-778-7879. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, Win-Win will pay the additional cost. If the arbitrator finds the arbitration to be non-frivolous, Win-Win will pay all of the actual filing and arbitrator fees for the arbitration, provided your claim does not exceed $75,000. The arbitration rules also permit you to recover attorney’s fees in certain cases. The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
If you are a resident of the United States, arbitration will take place at any reasonable location within the United States convenient for you. If no preference is indicated, you and Win-Win agree to submit to the personal jurisdiction of any federal or state court in Santa Clara County, California, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
15.4 Class Action Waiver
The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND WIN-WIN AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
15.5 Exception - Litigation of Intellectual Property and Small Claims Court Claims
Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may bring an action in state or federal court to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
15.6 30-Day Right to Opt Out
You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt-out to the following address: Win-Win App Inc., 880 20th St. Oakland CA 94607. The notice must be sent within 30 days of 09/01/2016 or your first use of the Service, whichever is later, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt-out of these arbitration provisions, Win-Win also will not be bound by them.
15.7 Changes to this Section
Win-Win will provide 60-days’ notice of any changes to this section. Changes will become effective on the 60th day, and will apply prospectively only to any claims arising after the 60th day.
For any dispute not subject to arbitration you and Win-Win agree to submit to the personal and exclusive jurisdiction of and venue in the federal and state courts located in Santa Clara County, CA. You further agree to accept service of process by mail, and hereby waive any and all jurisdictional and venue defenses otherwise available.
The Terms and the relationship between you and Win-Win shall be governed by the laws of the State of Calfornia without regard to conflict of law provisions.
16. Application License
Subject to your compliance with these Terms, Win-Win grants you a limited non-exclusive, non-transferable license to download and install a copy of the app on a device that you exclusively control and to run such copy of the app solely for your own personal use. Win-Win reserves all rights in and to the app not expressly granted to you under these Terms. You will not run any version of the app on a jailbroken device.
If you have downloaded our app, you agree to promptly download and install any new version that we make available through the iTunes App Store or Google Play store, as applicable. Some new versions may contain updated Terms. Some new versions may contain security fixes and service improvements, whether or not we disclose that they do; accordingly, failure to promptly update your version of the App may in some cases expose you to increased security risks or Service malfunctions.
17. Additional Terms for Our iOS App
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 Win-Win, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Win-Win’s responsibility, but only to the extent provided by these Terms. Please read the entire Terms, as other sections of these Terms limit Win-Win’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.
18. General Information
18.1 Entire Agreement
These Terms (and any additional terms, rules and conditions of participation in particular Tournaments that Win-Win may post on the Service) constitute the entire agreement between you and Win-Win with respect to the Service and supersedes any prior agreements, oral or written, between you and Win-Win. In the event of a conflict between these Terms and the additional terms, rules and conditions of participation in particular Tournaments, the latter will prevail over the Terms to the extent of the conflict.
18.2 Waiver and Severability of Terms
The failure of Win-Win to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision. If any provision of the Terms is found by an arbitrator or court of competent jurisdiction to be invalid, the parties nevertheless agree that the arbitrator or court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect.
18.3 Statute of Limitations
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Service or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
18.4 Section Titles
The section titles in the Terms are for convenience only and have no legal or contractual effect.
Users with questions, complaints or claims with respect to the Service may contact us using the relevant contact information set forth above.