Last Updated: May 15, 2020
NBA Top Shot is an application that provides users with the opportunity to purchase, collect, and showcase digital blockchain collectibles containing exclusive content from the National Basketball Association (the “NBA”) and its current and former players (collectively, the “App”).
THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION (SEE SECTION 15). PLEASE REVIEW THE ARBITRATION PROVISION CAREFULLY, SINCE IT AFFECTS YOUR RIGHTS. BY USING THE APP OR ANY PART OF IT, OR BY CLICKING “I ACCEPT” BELOW OR INDICATING YOUR ACCEPTANCE IN AN ADJOINING BOX, YOU UNDERSTAND AND AGREE TO BE BOUND BY THE ARBITRATION PROVISION.
1. THE APP
A. To most easily use the App, you should first install a web browser (such as the Google Chrome web browser). You will also need to use the Dapper® electronic wallet or another supported electronic wallet, which will enable you to purchase and store collectibles that you collect or purchase via the App. Each collectible is a Non-Fungible Token (an “NFT”) on the Flow™ blockchain network (“Flow”). You can use your electronic to purchase, store, and engage in transactions using your credit card, or via one or more cryptocurrencies that DLI may elect to accept from time to time.
B. Transactions that take place on the App are managed and confirmed via the Flow blockchain. You understand that your Flow public address will be made publicly visible whenever you engage in a transaction on the App.
C. We neither own nor control any other third party site, product, or service that you might access, visit, or use for the purpose of enabling you to use the various features of the App. We will not be liable for the acts or omissions of any such third parties, nor will we be liable for any damage that you may suffer as a result of your transactions or any other interaction with any such third parties.
D. You must provide accurate and complete registration information when you create an account for the App. By creating an account, you agree to provide accurate, current and complete account information about yourself, and to maintain and promptly update as necessary your account information. You are responsible for the security of your account and your electronic wallets. If you become aware of any unauthorized use of your password or of your account with us, you agree to notify us immediately at firstname.lastname@example.org.
2. EARNING, PURCHASING, AND COLLECTING YOUR MOMENTS
A. The App allows you to purchase, collect, and showcase NBA moments (each, a “Moment”). Each Moment is a non-fungible token (an “NFT”) on the Flow blockchain. Moments are comprised of a photograph of one or more NBA players, a video of one or more NBA players, and a set of statistics that are associated with one or more NBA players. Each Moment has a defined set of attributes – including, among other things, scarcity – which help determine the value of the Moment. That said, the value of each Moment is inherently subjective: some collectors might prefer to have a Moment featuring Kawhi Leonard, while another might prefer an equivalent Moment featuring LeBron James. Each NBA player can have more than one Moment associated with them, and those Moments will each have a different video, photo, statistics, scarcity, and attributes.
B. You can earn Moments for free by participating in certain challenges or marketing campaigns, or by completing certain in-App tasks that DLI may make generally available from time to time. You may also be able to purchase Moments directly in the App. You can also purchase Moments by buying packs of Moments on the App (each, a “Pack”). There are different types of Packs available for purchase on the App, and we reserve the right to modify the types and numbers of Packs available at our discretion. Depending on the type of Pack you buy, you will collect Moments of varying levels of scarcity. Before you buy a Pack, we will let know the types of Moments (but not the exact Moments) that are contained in that Pack.
C. The “Showcase” feature of the App allows to you organize your Moments into collections, and show them to your friends.
3. PAYMENTS; GAS FEES; TAXES
A. Any financial transactions that you engage in via the App will be conducted solely through the Flow network. We will have no insight into or control over these payments or transactions, nor do we have the ability to reverse any transactions. With that in mind, we will have no liability to you or to any third party for any claims or damages that may arise as a result of any transactions that you engage in via the App, or any other transactions that you conduct via the Flow network. We do not provide refunds for any purchases that you might make on or through the App – whether for Moments, Packs, or anything else.
B. You will be solely responsible to pay any and all sales, use, value-added and other taxes, duties, and assessments (except taxes on our net income) now or hereafter claimed or imposed by any governmental authority (collectively, “Taxes”) associated with your use of the App. Except for income taxes levied on DLI, you: (i) will pay or reimburse us for all national, federal, state, local or other taxes and assessments of any jurisdiction, including value added taxes and taxes as required by international tax treaties, customs or other import or export taxes, and amounts levied in lieu thereof based on charges set, services performed or payments made hereunder, as are now or hereafter may be imposed under the authority of any national, state, local or any other taxing jurisdiction; and (ii) shall not be entitled to deduct the amount of any such taxes, duties or assessments from payments made to us pursuant to these Terms. You confirm that you are not a resident in Canada nor are you registered for Goods and services tax / Harmonized sales tax (GST / HST) or Provincial sales taxes (PST) in Canada, and will inform DLI if your status changes in the future.
C. Flow requires the payment of a transaction fee (a “Gas Fee”) for every transaction that occurs on the Flow network. The Gas Fee funds the network of computers that run the decentralized Flow network. This means that you will need to pay a Gas Fee for each transaction that occurs via the App. Except as otherwise expressly set forth in these Terms, you will be responsible to pay any Gas Fee for any transaction that occurs via the App.
4. OWNERSHIP; LICENSE; RESTRICTIONS
A. Definitions. For the purposes of this Section 4, the following capitalized terms will have the following meanings:
“Art” means any art, design, and drawings (in any form or media, including, without limitation, video or photographs) that may be associated with a Moment that you Own.
“Own” means, with respect to a Moment, a Moment that you have purchased or otherwise rightfully acquired from a legitimate source, where proof of such purchase is recorded on the Flow blockchain.
“Purchased Moment” means a Moment that you Own.
“Third Party IP” means any third party patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, trademarks, know-how or any other intellectual property rights recognized in any country or jurisdiction in the world.
i. You Own the NFT. Each Moment is a non-fungible token (an “NFT”) on the Flow blockchain. When you purchase a Moment, you own the underlying NFT completely. This means that you have the right to trade your NFT, sell it, or give it away. Ownership of the NFT is mediated entirely by the Flow network: at no point will we seize, freeze, or otherwise modify the ownership of any Moment.
ii. DLI Owns the App. You acknowledge and agree that DLI (or, as applicable, our licensors) owns all legal right, title and interest in and to all other elements of the App, and all intellectual property rights therein (including, without limitation, all Art, designs, systems, methods, information, computer code, software, services, “look and feel”, organization, compilation of the content, code, data, and all other elements of the App (collectively, the “DLI Materials”)). You acknowledge that the DLI Materials are protected by copyright, trade dress, patent, and trademark laws, international conventions, other relevant intellectual property and proprietary rights, and applicable laws. All DLI Materials are the copyrighted property of DLI or its licensors, and all trademarks, service marks, and trade names associated with the App or otherwise contained in the DLI Materials are proprietary to DLI or its licensors. Except as expressly set forth herein, your use of the App does not grant you ownership of or any other rights with respect to any content, code, data, or other DLI Materials that you may access on or through the App. We reserve all rights in and to the DLI Materials that are not expressly granted to you in these Terms. For the sake of clarity, you understand and agree: (a) that your purchase of a Moment, whether via the App or otherwise, does not give you any rights or licenses in or to the DLI Materials (including, without limitation, our copyright in and to the associated Art) other than those expressly contained in these Terms; (b) that you do not have the right, except as otherwise set forth in these Terms, to reproduce, distribute, or otherwise commercialize any elements of the DLI Materials (including, without limitation, any Art) without our prior written consent in each case, which consent we may withhold in our sole and absolute discretion; and (c) that you will not apply for, register, or otherwise use or attempt to use any DLI trademarks or service marks, or any confusingly similar marks, anywhere in the world without our prior written consent in each case, which consent we may withhold at our sole and absolute discretion.
C. License to Art. Subject to your continued compliance with these Terms, DLI grants you a worldwide, non-exclusive, non-transferable, royalty-free license to use, copy, and display the Art for your Purchased Moments, solely for the following purposes: (i) for your own personal, non-commercial use; (ii) as part of a marketplace that permits the purchase and sale of your Purchased Moments, provided that the marketplace cryptographically verifies each Moment owner’s rights to display the Art for their Purchased Moment to ensure that only the actual owner can display the Art; or (iii) as part of a third party website or application that permits the inclusion, involvement, or participation of your Purchased Moment, provided that the website/application cryptographically verifies each Moment’s owner’s rights to display the Art for their Purchased Moment to ensure that only the actual owner can display the Art, and provided that the Art is no longer visible once the owner of the Purchased Moment leaves the website/application.
D. Restrictions. You agree that you may not, nor permit any third party to do or attempt to do any of the foregoing without DLI’s (or, as applicable, DLI’s licensors’) express prior written consent in each case: (i) modify the Art for your Purchased Moment in any way, including, without limitation, the shapes, designs, drawings, attributes, or color schemes; (ii) use the Art for your Purchased Moment to advertise, market, or sell any third party product or service; (iii) use the Art for your Purchased Moment in connection with images, videos, or other forms of media that depict hatred, intolerance, violence, cruelty, or anything else that could reasonably be found to constitute hate speech or otherwise infringe upon the rights of others; (iv) use the Art for your Purchased Moment in movies, videos, or any other forms of media, except to the limited extent that such use is expressly permitted in these Terms or solely for your own personal, non-commercial use; (v) sell, distribute for commercial gain (including, without limitation, giving away in the hopes of eventual commercial gain), or otherwise commercialize merchandise that includes, contains, or consists of the Art for your Purchased Moment; (vi) attempt to trademark, copyright, or otherwise acquire additional intellectual property rights in or to the Art for your Purchased Moment; or (vii) otherwise utilize the Art for your Purchased Moment for your or any third party’s commercial benefit. To the extent that Art associated with your Purchased Moment contains Third Party IP (e.g., licensed intellectual property from the NBA or an NBA player), you understand and agree as follows: (x) that you will not have the right to use such Third Party IP in any way except as incorporated in the Art, and subject to the license and restrictions contained herein; (y) that, depending on the nature of the license granted from the owner of the Third Party IP, DLI may need to pass through additional restrictions on your ability to use the Art; and (z) to the extent that DLI informs you of such additional restrictions in writing (email is permissible), you will be responsible for complying with all such restrictions from the date that you receive the notice, and that failure to do so will be deemed a breach of this license. The restrictions in this Section will survive the expiration or termination of these Terms.
E. Other Terms of License. The license granted in Section 4.C above applies only to the extent that you continue to Own the applicable Purchased Moment. If at any time you sell, trade, donate, give away, transfer, or otherwise dispose of your Purchased Moment for any reason, the license granted in Section 4.C will immediately expire with respect to that Moment without the requirement of notice, and you will have no further rights in or to the Art for that Moment.
F. Feedback. You may choose to submit comments, bug reports, ideas or other feedback about the App, including without limitation about how to improve the App (collectively, “Feedback”). By submitting any Feedback, you agree that we are free to use such Feedback at our discretion and without additional compensation to you, and to disclose such Feedback to third parties (whether on a non-confidential basis, or otherwise). You hereby grant us a perpetual, irrevocable, nonexclusive, worldwide license under all rights necessary for us to incorporate and use your Feedback for any purpose.
G. Your Obligations. You agree that you are responsible for your own conduct while accessing or using the App, and for any consequences thereof. You agree to use the App only for purposes that are legal, proper and in accordance with these Terms and any applicable laws or regulations. By way of example, and not as a limitation, you may not, and may not allow any third party to: (i) send, upload, distribute or disseminate any unlawful, defamatory, harassing, abusive, fraudulent, obscene, or otherwise objectionable content; (ii) distribute viruses, worms, defects, Trojan horses, corrupted files, hoaxes, or any other items of a destructive or deceptive nature; (iii) impersonate another person (via the use of an email address or otherwise); (iv) upload, post, transmit or otherwise make available through the App any content that infringes the intellectual proprietary rights of any party; (v) use the App to violate the legal rights (such as rights of privacy and publicity) of others; (vi) engage in, promote, or encourage illegal activity (including, without limitation, money laundering); (vii) interfere with other users' enjoyment of the App; (viii) exploit the App for any unauthorized commercial purpose; (ix) modify, adapt, translate, or reverse engineer any portion of the App; (x) remove any copyright, trademark or other proprietary rights notices contained in or on the App or any part of it; (xi) reformat or frame any portion of the App; (xii) display any content on the App that contains any hate-related or violent content or contains any other material, products or services that violate or encourage conduct that would violate any criminal laws, any other applicable laws, or any third party rights; (xiii) use any spider, site search/retrieval application, or other device to retrieve or index any portion of the App or the content posted on the App, or to collect information about its users for any unauthorized purpose; (xiv) create user accounts by automated means or under false or fraudulent pretenses; or (xv) access or use the App for the purpose of creating a product or service that is competitive with any of our products or services. If you engage in any of the activities prohibited by this Section, we may, at our sole and absolute discretion, without notice to you, and without limiting any of our other rights or remedies at law or in equity, immediately suspend or terminate your user account and/or delete your Moments’ images and descriptions from the App. If we delete your Moments’ images and descriptions from the App, such deletion will not affect your ownership rights in any NFTs that you already Own, but you will not receive a refund of any amounts you paid for those Moments.
You may terminate these Terms at any time by canceling your account on the App and discontinuing your access to and use of the App. You will not receive any refunds if you cancel your account, or otherwise terminate these Terms. You agree that we, in our sole discretion and for any or no reason, may terminate these Terms and suspend and/or terminate your account(s) for the App. You agree that any suspension or termination of your access to the App may be without prior notice, and that we will not be liable to you or to any third party for any such suspension or termination. If we terminate these Terms or suspend or terminate your access to or use of the App due to your breach of these Terms or any suspected fraudulent, abusive, or illegal activity, then termination of these Terms will be in addition to any other remedies we may have at law or in equity. Upon any termination or expiration of these Terms, whether by you or us, you may no longer have access to information that you have posted on the App or that is related to your account, and you acknowledge that we will have no obligation to maintain any such information in our databases or to forward any such information to you or to any third party. Sections 1 and 3 through 16 will survive the termination or expiration of these Terms for any reason.
A. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR ACCESS TO AND USE OF THE APP IS AT YOUR SOLE RISK, AND THAT THE APP IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WE, OUR SUBSIDIARIES, AFFILIATES, AND LICENSORS MAKE NO EXPRESS WARRANTIES AND HEREBY DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE APP AND ANY PART OF IT, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, CORRECTNESS, ACCURACY, OR RELIABILITY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE, OUR PARENT, SUBSIDIARIES, AFFILIATES, AND LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (I) YOUR ACCESS TO OR USE OF THE APP WILL MEET YOUR REQUIREMENTS, (II) YOUR ACCESS TO OR USE OF THE APP WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, (III) USAGE DATA PROVIDED THROUGH THE APP WILL BE ACCURATE, (IV) THE APP OR ANY CONTENT, SERVICES, OR FEATURES MADE AVAILABLE ON OR THROUGH THE APP ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (V) THAT ANY DATA THAT YOU DISCLOSE WHEN YOU USE THE APP WILL BE SECURE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES IN CONTRACTS WITH CONSUMERS, SO SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
B. YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET, AND AGREE THAT WE HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY BREACH OF SECURITY UNLESS IT IS DUE TO OUR GROSS NEGLIGENCE.
C. WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSSES YOU INCUR AS THE RESULT OF YOUR USE OF THE FLOW NETWORK, OR YOUR ELECTRONIC WALLET, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (i) USER ERROR, SUCH AS FORGOTTEN PASSWORDS OR INCORRECTLY CONSTRUED SMART CONTRACTS OR OTHER TRANSACTIONS; (ii) SERVER FAILURE OR DATA LOSS; (iii) CORRUPTED WALLET FILES; OR (iv) UNAUTHORIZED ACCESS OR ACTIVITIES BY THIRD PARTIES, INCLUDING BUT NOT LIMITED TO THE USE OF VIRUSES, PHISHING, BRUTE-FORCING OR OTHER MEANS OF ATTACK AGAINST THE APP, THE FLOW NETWORK, OR ANY ELECTRONIC WALLET.
D. MOMENTS ARE INTANGIBLE DIGITAL ASSETS THAT EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN THE FLOW NETWORK. ALL SMART CONTRACTS ARE CONDUCTED AND OCCUR ON THE DECENTRALIZED LEDGER WITHIN THE FLOW PLATFORM. WE HAVE NO CONTROL OVER AND MAKE NO GUARANTEES OR PROMISES WITH RESPECT TO SMART CONTRACTS.
E. DLI IS NOT RESPONSIBLE FOR LOSSES DUE TO BLOCKCHAINS OR ANY OTHER FEATURES OF THE FLOW NETWORK, OR ANY ELECTRONIC WALLET, INCLUDING BUT NOT LIMITED TO LATE REPORT BY DEVELOPERS OR REPRESENTATIVES (OR NO REPORT AT ALL) OF ANY ISSUES WITH THE BLOCKCHAIN SUPPORTING THE FLOW NETWORK, INCLUDING FORKS, TECHNICAL NODE ISSUES, OR ANY OTHER ISSUES HAVING FUND LOSSES AS A RESULT.
7. LIMITATION OF LIABILITY
A. YOU UNDERSTAND AND AGREE THAT DLI, ITS PARENT, SUBSIDIARIES, AFFILIATES, AND LICENSORS WILL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES WHICH YOU MAY INCUR, HOWSOEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF PROFITS (WHETHER INCURRED DIRECTLY OR INDIRECTLY), LOSS OF GOODWILL OR BUSINESS REPUTATION, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR ANY OTHER INTANGIBLE LOSS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
B. YOU AGREE THAT DLI’S TOTAL, AGGREGATE LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR ACCESS TO OR USE OF (OR YOUR INABILITY TO ACCESS OR USE) ANY PORTION OF THE APP, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, IS LIMITED TO THE GREATER OF (A) THE AMOUNTS YOU ACTUALLY PAID US UNDER THESE TERMS IN THE 12 MONTH PERIOD PRECEDING THE DATE THE CLAIM AROSE, OR (B) $100.
C. YOU ACKNOWLEDGE AND AGREE THAT DLI HAS MADE THE APP AVAILABLE TO YOU AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN, WHICH REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN THE PARTIES AND FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN US. DLI WOULD NOT BE ABLE TO PROVIDE THE APP TO YOU WITHOUT THESE LIMITATIONS.
D. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, AND SOME JURISDICTIONS ALSO LIMIT DISCLAIMERS OR LIMITATIONS OF LIABILITY FOR PERSONAL INJURY FROM CONSUMER PRODUCTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO PERSONAL INJURY CLAIMS.
8. ASSUMPTION OF RISK
You accept and acknowledge each of the following:
A. The prices of blockchain assets are extremely volatile. Fluctuations in the price of other digital assets could materially and adversely affect the value of your Moments, which may also be subject to significant price volatility. We cannot guarantee that any purchasers of Moments will not lose money.
B. You are solely responsible for determining what, if any, taxes apply to your Moment-related transactions. DLI is not responsible for determining the taxes that apply to your transactions on the App.
C. The App does not store, send, or receive Moments. This is because Moments exist only by virtue of the ownership record maintained on the App’s supporting blockchain in the Flow network. Any transfer of Moments occurs within the supporting blockchain in the Flow network, and not on the App.
D. There are risks associated with using an Internet-based currency, including, but not limited to, the risk of hardware, software and Internet connections, the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to information stored within your electronic wallet. You accept and acknowledge that DLI will not be responsible for any communication failures, disruptions, errors, distortions or delays you may experience when using the Flow network, however caused.
E. A lack of use or public interest in the creation and development of distributed ecosystems could negatively impact the development of the NBA Top Shot ecosystem, and therefore the potential utility or value of your Moments.
F. The regulatory regime governing blockchain technologies, cryptocurrencies, and tokens is uncertain, and new regulations or policies may materially adversely affect the development of the NBA Top Shot ecosystem, and therefore the potential utility or value of your Moments.
G. Upgrades to the Flow platform, a hard fork in the Flow platform, or a change in how transactions are confirmed on the Flow platform may have unintended, adverse effects on all blockchains using the Flow NFT standard, including the NBA Top Shot ecosystem.
You agree to hold harmless and indemnify DLI and its parent, subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners from and against any claim, liability, loss, damage (actual and consequential) of any kind or nature, suit, judgment, litigation cost, and attorneys' fees arising out of or in any way related to (i) your breach of these Terms, (ii) your misuse of the App, or (iii) your violation of applicable laws, rules or regulations in connection with your access to or use of the App. You agree that DLI will have control of the defense or settlement of any such claims.
10. EXTERNAL SITES
The App may include hyperlinks to other websites or resources (collectively, “External Sites”), which are provided solely as a convenience to our users. We have no control over any External Sites. You acknowledge and agree that we are not responsible for the availability of any External Sites, and that we do not endorse any advertising, products or other materials on or made available from any External Sites. Furthermore, you acknowledge and agree that we are not liable for any loss or damage which may be incurred as a result of the availability or unavailability of the External Sites, or as a result of any reliance placed by you upon the completeness, accuracy or existence of any advertising, products or other materials on, or made available from, any External Sites.
11. CHANGES TO THE TERMS
We may make changes to the Terms from time to time. When we make changes, we will make the updated Terms available on the App and update the “Last Updated” date at the beginning of these Terms accordingly. Please check these Terms periodically for changes. Any changes to the Terms will apply on the date that they are made, and your continued access to or use of the App after the Terms have been updated will constitute your binding acceptance of the updates. If you do not agree to any revised Terms, you may not access or use the App.
12. CHANGES TO THE APP
We are constantly innovating the App to help provide the best possible experience. You acknowledge and agree that the form and nature of the App, and any part of it, may change from time to time without prior notice to you, and that we may add new features and change any part of the App at any time without notice.
You affirm that you are over the age of 18. The App is not intended for children under 18. If you are under the age of 18, you may not use the App or play the Game. We do not knowingly collect information from or direct any of our content specifically to children under the age of 18. If we learn or have reason to suspect that you are a user who is under the age of 18, we will unfortunately have to close your account. Other countries may have different minimum age limits, and if you are below the minimum age for providing consent for data collection in your country, you may not use the App without obtaining your parents’ or legal guardians’ consent. IF YOU ARE UNDER THE AGE OF 18 OR THE LEGAL AGE OF MAJORITY WHERE YOU RESIDE (IF THAT JURISDICTION HAS AN OLDER AGE OF MAJORITY), THEN YOU AGREE TO REVIEW THESE TERMS WITH YOUR PARENT OR GUARDIAN TO MAKE SURE THAT BOTH YOU AND YOUR PARENT OR GUARDIAN UNDERSTAND AND AGREE TO THESE TERMS. YOU AGREE TO HAVE YOUR PARENT OR GUARDIAN REVIEW AND ACCEPT THESE TERMS ON YOUR BEHALF. IF YOU ARE A PARENT OR GUARDIAN AGREEING TO THE TERMS FOR THE BENEFIT OF ANYONE UNDER THE AGE OF 18, THEN YOU AGREE TO AND ACCEPT FULL RESPONSIBILITY FOR THAT CHILD'S USE OF THE APP, INCLUDING ALL FINANCIAL CHARGES AND LEGAL LIABILITY THAT HE OR SHE MAY INCUR.
15. DISPUTE RESOLUTION; ARBITRATION
Please read this Section 15 carefully. It requires you to arbitrate disputes with DLI, its parent, subsidiaries, and affiliates, and limits the manner in which you can seek relief from us.
All disputes arising out of or in connection with these Terms, including without limitation your access or use of the App, or to any products sold or distributed through the App, will be referred to and finally resolved by arbitration under the rules of the British Columbia International Commercial Arbitration Centre. The appointing authority will be the British Columbia International Commercial Arbitration Centre. The case will be adjudicated by a single arbitrator and will be administered by the British Columbia International Commercial Arbitration Centre in accordance with its applicable rules. Each party will cover its own fees and costs associated with the arbitration proceedings; however, if the arbitrator finds that you cannot afford to pay the fees and costs reasonably associated with the arbitration proceedings, DLI will pay them for you. The place of arbitration will be Vancouver, British Columbia, Canada. You may choose to have the arbitration conducted by telephone, based on written submissions. The language of the arbitration will be English. The award of the arbitrator will be final and binding, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing, DLI may seek and obtain injunctive relief in any jurisdiction in any court of competent jurisdiction, and you agree that these Terms are specifically enforceable by DLI through injunctive relief and other equitable remedies without proof of monetary damages.
WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATED TO THESE TERMS, INCLUDING WITHOUT LIMITATION DISPUTES RELATED TO THE APP, OR ANY PRODUCTS SOLD OR DISTRIBUTED THROUGH THE APP: (I) YOU HEREBY EXPRESSLY GIVE UP YOUR RIGHT TO HAVE A TRIAL BY JURY; AND (II) YOU HEREBY EXPRESSLY GIVE UP YOUR RIGHT TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS IN ANY LAWSUIT, INCLUDING BUT NOT LIMITED TO CLASS ACTION LAWSUITS INVOLVING ANY SUCH DISPUTE.
These Terms constitute the entire legal agreement between you and DLI, govern your access to and use of the App, and completely replace any prior or contemporaneous agreements between the parties related to your access to or use of the App, whether oral or written. There are no third party beneficiaries to these Terms. The parties are independent contractors, and nothing in these Terms create any agency, partnership, or joint venture. The language in these Terms will be interpreted as to its fair meaning, and not strictly for or against any party. You may not assign any or your rights or obligations under these Terms, whether by operation of law or otherwise, without our prior written consent. We may assign our rights and obligations under these Terms in our sole discretion to an affiliate, or in connection with an acquisition, sale or merger. Should any part of these Terms be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions will remain in full force and effect. Our failure to enforce any provision of these Terms will not be deemed a waiver of such provision, nor of the right to enforce such provision. These Terms will be governed by and construed in accordance with the laws of the province of British Columbia, Canada and the federal laws of Canada applicable therein, excluding its conflicts of law rules and principles. Subject to Section 17, any legal action or proceeding arising under these Terms will be brought exclusively in the federal or provincial courts located in Vancouver, British Columbia, and the parties irrevocably consent to the personal jurisdiction and venue there. We will not be liable for any failure or delayed performance of our obligations that result from any condition beyond our reasonable control, including, but not limited to, governmental action, acts of terrorism, earthquake, fire, flood, pandemic, acts of God, labor conditions, power failures, Internet disturbances, or acts or omissions of third parties. You agree that we may provide you with notices (including, without limitation those regarding changes to these Terms) by email, regular mail, or postings on the App. By providing us with your email address, you consent to our using the email address to send you any notices required by law in lieu of communication by postal mail.