IMPORTANT NOTICE FOR RESIDENTS IN NORTH AMERICA ONLY: THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED BELOW
IF YOU ARE UNDER THE AGE OF MAJORITY IN YOUR JURISDICTION PLEASE ASK YOUR PARENT OR GUARDIAN TO READ AND ACCEPT THIS AGREEMENT ON YOUR BEHALF BEFORE YOU USE THE PROGRAM. BY OPENING THIS PACKAGE, DOWNLOADING, INSTALLING, OR USING THE PROGRAM OR “CLICKING TO ACCEPT,” YOU ACCEPT THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, YOU ARE NOT PERMITTED TO INSTALL, COPY, OR USE THE PROGRAM. TO REJECT THESE TERMS, YOU MUST NOT “CLICK TO ACCEPT” THESE TERMS OR INSTALL, COPY, OR USE THE PROGRAM.
EXCEPT FOR THE ARBITRATION AND CLASS ACTION WAIVER CONTAINED HEREIN, 1ST AND BRAND, LLC RESERVES THE RIGHT TO MODIFY THIS AGREEMENT AT ANY TIME BY ANY MEANS, INCLUDING WITHOUT LIMITATION BY REQUIRING YOU TO “CLICK TO ACCEPT” THE AGREEMENT, AND YOUR CONTINUED USE OF THE PROGRAM CONSTITUTES YOUR ACCEPTANCE OF THE MODIFICATIONS. IF ANY FUTURE MODIFICATIONS TO THE AGREEMENT ARE UNACCEPTABLE TO YOU OR CAUSE YOU TO NO LONGER BE IN COMPLIANCE WITH THIS AGREEMENT, YOU MUST TERMINATE, AND IMMEDIATELY STOP USING, THE PROGRAM. IF ANY FUTURE MODIFICATIONS ARE IMPLEMENTED AS A “CLICK TO ACCEPT” AGREEMENT, YOU MAY NOT BE ABLE TO CONTINUE USING THE PROGRAM UNLESS YOU AFFIRMATIVELY ACCEPT THE MODIFIED AGREEMENT.
SCOPE OF TERMS
These Terms are applicable to this Program. Further, the Program team, 1st and Brand, 1st and Brand affiliates, suppliers, vendors, third party licensors and other authorized third parties (collectively herein “Resource Providers”) may provide activity or program specific Terms of Service, for example when 1st and Brand provides interactive materials and/or enables User Generated Content. If so, to the extent that these Terms do not conflict with the program specific Terms of Service, the Terms herein remain in full force and effect.
YOU ACCEPT THE TERMS AND CONDITIONS CONTAINED HEREIN BY ACCESSING OR USING THE PROGRAM. 1ST AND BRAND, ITS LICENSORS OR RESOURCE PROVIDERS RESERVE THE RIGHT TO MODIFY OR DISCONTINUE, TEMPORARILY OR PERMANENTLY, THE PROGRAM (OR ANY PART THEREOF) WITH OR WITHOUT NOTICE. 1st and Brand, LLC OR RESOURCE PROVIDERS MAY MAKE CHANGES TO THE PROGRAM, TO THE MOJI ARTWORK, OR TO OTHER PRODUCTS DESCRIBED THEREIN, AT ANY TIME WITHOUT NOTICE. 1st and Brand INC. AND RESOURCE PROVIDERS MAKE NO COMMITMENT TO UPDATE THE PROGRAM.
1st and Brand, LLC OR RESOURCE PROVIDERS MAY CHANGE OR MODIFY THESE TERMS OR ANY FEATURES OR FUNCTIONALITY OF THE PROGRAM. THE PROGRAM OR THE WEB SITE CHANGES WILL BECOME EFFECTIVE FOURTEEN (14) DAYS AFTER THEY ARE POSTED, EXCEPT THAT CHANGES FOR LEGAL OR ADMINISTRATIVE REASONS, INCLUDING WITHOUT LIMITATION, ADDING OR REMOVING AVATARS, REMOVING AVATAR MESSAGES, OR TO REFLECT NEW FEATURES OR FUNCTIONALITY WILL BE EFFECTIVE IMMEDIATELY. YOU ACCEPT ANY CHANGES TO THESE TERMS BY CONTINUING TO ACCESS OR USE THE PROGRAM OR THE WEB SITES AFTER THE CHANGES ARE POSTED.
1st and Brand, LLC will also gather information about your device and the use of this application to assess application usability and performance; this information will be collected using a third party service, which may include the sharing of anonymized data with authorized parties.
REGISTRATION AND SECURITY
By using the service and creating an account, you affirm that you are of legal age to enter into this Agreement or, if you are not, that you have obtained parental or guardian consent to enter into this Agreement.
You understand, Resource Providers may, from time to time, host a program or activity specific site that may require you to establish a member account and/or site password. In such cases, you are entirely responsible for maintaining the confidentiality of your password and account. Furthermore, you are entirely responsible for any and all activities that occur under your account. You agree to notify Resource Providers immediately of any unauthorized use of your account or any other breach of security. Resource Providers will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you could be held liable for losses incurred by Resource Providers or another party due to someone else using your account or password. You may not use anyone else’s account at any time, without the permission of the account holder.
LIMITED COPYRIGHT LICENSE
LIMITED USE LICENSE: Subject to any system requirements, Activision Publishing, Inc. (the copyright owner of the Program) grants you the non-exclusive, non-transferable, limited right and license to install and use one copy of the software component(s) of the Program solely for your personal use. All rights not specifically granted are reserved by Activision. The Program is licensed, not sold, for your use. Your license confers no title or ownership in the Program, and should not be construed as a sale of any rights in the Program. This Agreement shall also apply to patches or updates you may obtain for the Program, unless that patch or update is accompanied by additional terms. YOU ACKNOWLEDGE AND AGREE THAT, OTHER THAN LICENSE GRANTED TO YOU BY THIS AGREEMENT, YOU SHALL HAVE NO OWNERSHIP OR PROPERTY INTEREST IN ANY PRODUCT OR SERVICE PROVIDED CONTENT (AS DEFINED BELOW), INCLUDING, WITHOUT LIMITATION, ONLINE ACCOUNTS, ANY VIRTUAL CURRENCY OR GOODS, AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ALL RIGHTS IN AND TO SUCH PRODUCTS AND SERVICE PROVIDED CONTENT ARE AND SHALL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF ACTIVISION.
Activision is the copyright owner of the Program. Laws in the United States and other countries preserve for intellectual property owners certain exclusive intellectual property rights, including but not limited to copyrights in the Program. The Program may not be modified, reverse-engineered, decompiled, analyzed, distributed or reproduced in any manner to the extent allowed by law without the express, written consent of the copyright owner. The use of the Program shall NOT be deemed to grant either directly or indirectly, or by implication, estoppel, or otherwise, any license under the copyrights, patents or patent applications, trademarks or trademark applications of any intellectual property owner except for the normal, non-exclusive, license to use the Program and Program as expressly set out herein. All other rights expressly reserved.
Personal Non-Commercial Use: The Program is licensed to you for personal and non-commercial use. You may send message(s) using the Program (“Sticker Messages”) for sharing with others for personal and non-commercial use via transmitting messages, posts, or other expressed forms of digital communication using the Program. Unless otherwise specified or as provided in these Terms, you may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any information, software, products or services obtained from the Program.
You expressly understand and acknowledge that your Sticker Message(s) may be forwarded or reposted by recipients and such recipient use is beyond your control or the control of the Program, 1st and Brand, LLC or Resource Providers.
You understand that your Sticker Messages will be retained for a period not less than thirty (30) days. After such time only Sticker Messages stored on your computing device or smartphone will be available.
No Unlawful or Prohibited Use: You agree that you will not use nor encourage or permit others to use the Program, or create any Sticker Message for any purpose that is unlawful or prohibited by these Terms. Specifically, but without limitation, You may not:
Create, upload, post, email, transmit or otherwise make available any Sticker Message or other content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
Use the Program, Sticker Message or any other services or materials or activities to “stalk” or otherwise harass or harm another;
Impersonate any person or entity, including, but not limited to, a 1st and Brand, LLC or Resource Provider official employee, owner, or falsely state or otherwise misrepresent your affiliation with a person or entity or collect or store personal data about other users in connection with the prohibited conduct and activities;
Forge headers or otherwise manipulate identifiers in order to disguise the origin of any Sticker Message or other content transmitted through the Program;
Upload, post, email, transmit or otherwise make available any Sticker Message or any content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
Upload, post, email, transmit or otherwise make available any Sticker Message or any content that infringes any patent, trademark, trade secret, copyright or other proprietary rights (“Rights”) of any party;
Upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
Upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
You may not use the Program in any manner that could damage, disable, overburden, or impair any Resource Providers’ server, or network(s) connections, disobey any requirements, procedures, policies or regulations of networks connected to the Program, or interfere with any other party’s use and enjoyment of the Program;
You may not attempt to gain unauthorized access to the Program, other accounts, computer systems or networks connected to any Resource Providers’ server or program, through hacking, password mining or any other means or obtain or attempt to obtain any materials or information through any means not intentionally made available through the Program;
Intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, privacy and security laws and regulations, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law; and/or
Provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act.
Should 1st and Brand, LLC or Resource Providers determine, in its or their sole discretion that You have breached the foregoing paragraphs, 1st and Brand, LLC or Resource Providers in its or their sole discretion may, without any notice, terminate, disable, suspend or otherwise render inoperable the Program and Sticker Message(s).
In addition to the foregoing, please note that the Program may be suspended or discontinued at any time, and 1st and Brand, LLC does not guarantee that the Program, Sticker Messages, stickers purchased by you or available for purchase, or any Program related resource will remain available for any period of time. Without limiting the generality of this section, 1st and Brand, LLC expressly disclaims any and all liability for any interruption or suspension of the availability of the Program or stickers that you have purchased. 1st and Brand, LLC is not responsible for customer service related to the Resource Provider websites or other content and services of third-parties. Any question or request for service on such content or services must be addressed directly to the respective Resource Provider or content and service providers. Please note that downloading any content or sticker without the permission of the content owner may infringe the intellectual property rights of the owner. 1st and Brand, LLC and Activision expressly disclaim any and all liability associated with the purchase/use of a sticker or the downloading of content by you including, for example, infringement of third-party intellectual property rights, or any damage done to your computer, smart phone, or other devices due to the download of malicious content.
US Government Restricted Rights: The Program is provided with “RESTRICTED RIGHTS.” Use, duplication, or disclosure by the Government is subject to restrictions as set forth in FAR52.227-14 and DFAR252.227-7013 et seq. or its successor. Use of the Program by the Government constitutes acknowledgment of Resource Providers’ proprietary rights in them.
WARRANTY, LIMITATION OF LIABILITY, INDEMNIFICATION
Exclusions of Warranty: The Program and any other materials and software are provided by Resource Providers (including 1st and Brand, LLC) as a service to its customers and are provided without any warranty of any kind, express or implied. Specifically,
YOUR USE OF THE Program (INCLUDING RELATED MATERIALS AND SOFTWARE) IS AT YOUR SOLE RISK AND THAT THE PROGRAM IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY, OR FITNESS FOR ANY PARTICULAR PURPOSE.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PROGRAM IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, SMART PHONE OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF THE PROGRAM.
IN NO EVENT SHALL ACTIVISION, 1st and Brand, LLC, ITS SUPPLIERS OR RESOURCE PROVIDERS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DIRECT OR INDIRECT DAMAGES, CONSEQUENTIAL DAMAGES, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION) ARISING OUT OF THE USE OF OR INABILITY TO USE THE PROGRAM OR MATERIALS, EVEN IF ACTIVISION, 1st and Brand, LLC OR RESOURCE PROVIDER(S) HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
Limitation of Liability:
FOR RESIDENTS IN NORTH AMERICA:
NONE OF ACTIVISION, 1st and Brand, LLC OR RESOURCE PROVIDERS SHALL BE LIABLE FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES RESULTING FROM POSSESSION, USE, OR MALFUNCTION OF THE PROGRAM, INCLUDING DAMAGES TO PROPERTY, COMPUTER FAILURE OR MALFUNCTION AND, TO THE EXTENT PERMITTED BY LAW, DAMAGES FOR PERSONAL INJURIES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES. SUCH PARTY’S LIABILITY SHALL NOT EXCEED THE ACTUAL PRICE PAID FOR THE LICENSE TO USE THE PROGRAM. SOME STATES/COUNTRIES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS AND/OR THE EXCLUSION OR LIMITATION OF DAMAGES, SO THE ABOVE LIMITATIONS AND/OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.
FOR RESIDENTS OUTSIDE NORTH AMERICA:
NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE A PARTY’S LIABILITY TO YOU:
SUBJECT TO THIS, IN NO EVENT SHALL ACTIVISION, 1st and Brand, LLC OR RESOURCE PROVIDERS BE LIABLE TO YOU FOR ANY BUSINESS LOSSES AND ANY LIABILITY ANY SUCH PARTY DOES HAVE FOR LOSSES YOU SUFFER IS STRICTLY LIMITED TO LOSSES THAT WERE REASONABLY FORESEEABLE AND SHALL NOT, IN AGGREGATE, EXCEED THE GREATER OF THE FOLLOWING: THE TOTAL PRICE PAID BY YOU FOR THE PROGRAM (PLUS ANY PAID-FOR SERVICE PROVIDED CONTENT) OVER THE PREVIOUS 12-MONTHS FROM THE DATE ON WHICH THE LIABILITY ARISES; OR THE SUM OF GBP£500 OR EQUIVALENT AMOUNT UNDER THE CURRENT FOREIGN EXCHANGE RATE.
Accuracy and Completeness: None of Activision, 1st and Brand, LLC nor Resource Providers warrant the accuracy or completeness of the information, text, graphics, links or other items contained within the Program.
Indemnification: You agree to indemnify and hold 1st and Brand, LLC and its officers, agents, employees, partners, licensors, Activision, and Resource Providers harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of Sticker Message(s) you create or other content you submit, post, transmit or otherwise make available through the Program, your use of the the Program, your connection to the Program, your violation of these Terms or site specific Terms, or your violation of any rights of another.
CONTENT RELATED NOTICES
OWNERSHIP: All title, ownership rights, and intellectual property rights in and to the Program are owned by Activision, its affiliates or licensors. The Program is protected by the copyright laws of the United States of America, international copyright treaties, conventions and other laws. The Program may contain certain licensed materials, and Activision’s licensors may protect their rights in the event of any violation of this Agreement. NOTWITHSTANDING ANYTHING TO THE CONTRARY, YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN ANY ACCOUNT STORED OR HOSTED VIA THE PROGRAM, AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT ALL RIGHTS IN AND TO THESE ACCOUNTS ARE AND SHALL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF ACTIVISION. 1ST AND BRAND MAY SUSPEND, TERMINATE, MODIFY OR DELETE ANY OF THESE ACCOUNTS AT ANY TIME FOR ANY REASON OR NO REASON, WITH OR WITHOUT NOTICE TO YOU.
Translations: Where 1st and Brand, LLC has provided you with a translation of the English language version of these Terms, you agree that the translation is provided for your convenience only and that the English language versions of the Terms will govern your relationship with 1st and Brand, LLC. If there is any contradiction between the English language version of the Terms and the translation, the English language version shall take precedence.
CLAIMS OF COPYRIGHT INFRINGEMENT
1st and Brand, LLC respects intellectual property rights. Upon receipt of a notice of claimed infringement in conformance with the US Digital Millennium Copyright Act, 17 U.S.C. Section 512©(3), we will expeditiously remove or disable access to the allegedly infringing User Content or other content. 1st and Brand, LLC or Resource Providers will terminate, in appropriate circumstances, Accounts of users who repeatedly infringe copyright.
Notifications of claimed copyright infringement should be sent to 1st and Brand, LLC’s Designated Agent: CrashMoji@1st and Brand.com NOTIFICATIONS NOT COMPLIANT WITH THE DMCA PROCEDURE MAY NOT RECEIVE A RESPONSE.
User Content Submissions
Definition: User content submissions may include but are not limited to, user registration, the creation, sharing, distribution, posting, uploading, linking, downloading, transferring, viewing or an Sticker Message or Sticker Messages, participation, public sharing, posting, uploading, linking, downloading, and transferring, viewing, blogging, commenting, chat room, bulletin board and forum participation, or submitting or transmitting content, including, but not limited to graphics, art, software, code, data, text, video, audio, text, opinions, descriptions etc. (the “User Content”) via the Program. The content submitted by users, including Sticker Messages, is referred to here after as “User Content”.
Non-Endorsement: 1st and Brand, LLC does not endorse any User Content or any opinion, recommendation, or advice expressed therein, and 1st and Brand, LLC expressly disclaims any and all liability in connection with User Content. 1st and Brand, LLC does not permit copyright infringing activities and infringement of intellectual property rights on its Web Sites, and 1st and Brand, LLC will remove User Content if properly notified that such submission infringes on another’s intellectual property rights in accordance with the DMCA provisions. 1st and Brand, LLC reserves the right to remove User Content at its sole discretion and without prior notice.
License: Unless other specified in the Program or applicable activity terms and conditions, by posting, displaying, uploading, inputting, providing or submitting such User Content you grant 1st and Brand, LLC, Resource Providers, necessary sub-licensees and Program users, a perpetual, irrevocable and fully sub-licensable license to use worldwide, royalty-free and non-exclusive license, to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display the 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 for any and all commercial or non-commercial purposes. The foregoing license is subject in all respects to the rights of Activision as the owner of the Program.
Moderation or Pre-Screening: You acknowledge that 1st and Brand, LLC may or may not moderate or pre-screen Sticker Messages and other User Content. 1st and Brand, LLC and its designees retain the right, at 1st and Brand, LLC’s sole discretion to pre-screen, refuse, or remove any Sticker Message or other User Content from Web Sites. 1st and Brand, LLC, however, will have no liability related to the content of any such Sticker Message or other User Content, whether or not arising under the laws of copyright, libel, privacy, obscenity, or otherwise. Without limiting the foregoing, 1st and Brand, LLC shall have the right to remove any Sticker Message or other User Content that violates these Terms.
LINKS TO OTHER MATERIALS OR SITES
The linked sites are not under the control of 1st and Brand, LLC and 1st and Brand, LLC is not responsible for the content of any linked site or any link contained in a linked site. 1st and Brand, LLC reserves the right to terminate any link or linking program at any time. 1st and Brand, LLC does not endorse companies or products to which it links and reserves the right to note as such on its web pages. If you decide to access any of the third party sites linked to this Site, you do this entirely at your own risk.
For residents in North America– BINDING ARBITRATION AND CLASS ACTION WAIVER:
READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
These BINDING ARBITRATION AND CLASS ACTION WAIVER provisions apply to you if you are domiciled in and/or acquired and use the Program in the United States. These provisions may also apply to you if you are domiciled in and/or acquired and use the Program from outside the United States. See JURISDICTION AND APPLICABLE LAW below for details.
Initial Dispute Resolution: 1st and Brand, LLC’s Customer Support department is available on the web at appcontact@CrashMojiapp.com to address any concerns you may have regarding the Program. Most concerns are quickly resolved in this manner to our customers’ satisfaction. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.
Binding Arbitration: If the parties do not reach an agreed upon solution within a period of 30 days from the time informal dispute resolution is pursued pursuant to the paragraph above, then either party may initiate binding arbitration as the sole means to formally resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to this Agreement (including its interpretation, formation, performance and breach), the parties’ relationship with each other and/or your use of the Program shall be finally settled by binding arbitration administered by JAMS in accordance with the provisions of its Comprehensive Arbitration Rules or Streamlined Arbitrations Rules, as appropriate, excluding any rules or procedures governing or permitting class actions. This arbitration provision is made pursuant to a transaction involving interstate commerce, and the Federal Arbitration Act (the “FAA”) shall apply to the interpretation, applicability, enforceability and formation of this Agreement notwithstanding any other choice of law provision contained in this Agreement. 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 this Agreement, including without limitation any claim that all or any part of this Agreement is 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 binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
The JAMS Rules governing the arbitration may be accessed at http://www.jamsadr.com/ or by calling JAMS at (800) 352-5267. Your arbitration fees and your share of arbitrator compensation shall be governed by the JAMS Comprehensive Arbitration Rules, but shall not incorporate the JAMS Class Action Procedures, and, to the extent applicable, the Consumer Minimum Standards, including the then-current limit on arbitration filing fees. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, 1st and Brand, LLC will pay the additional cost. 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.
Location: If you are a resident of the United States, arbitration will take place at any reasonable location within the United States convenient for you. For residents outside the United States, arbitration shall be initiated in Los Angeles County, California, and you and 1st and Brand, LLC agree to submit to the personal jurisdiction of any federal or state court in Los Angeles 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.
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 1st AND BRAND, LLC 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.
Exception – Litigation of Intellectual Property and Small Claims Court Claims: Notwithstanding the parties’ decision to resolve all disputes through arbitration, any party may bring an action in state or federal court that only asserts claims for patent infringement or invalidity, copyright infringement, moral rights violations, trademark infringement, and/or trade secret misappropriation, but not, for clarity, claims related to the license granted to you for the Program under this Agreement. Any party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
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 in the “Binding Arbitration,” “Location,” and “Class Action Waiver” paragraphs above by sending written notice of your decision to opt-out to the following address: [insert 1st and brand address]. The notice must be sent within 30 days of purchasing the Program (or if no purchase was made, then within 30 days of the date on which you first access or use the Program and agree to these terms); otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt-out of these arbitration provisions, 1st and Brand, LLC also will not be bound by them.
Changes to this Section: 1st and Brand, LLC 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.
JURISDICTION AND APPLICABLE LAW
The Program is made available subject to the terms of this Agreement. If you acquired and use the Program from:
To the fullest extent permitted by applicable law, if any user outside of the United States is entitled to commence and/or participate in legal proceedings within the United States, then that user agrees to be bound by the BINDING ARBITRATION AND CLASS ACTION WAIVER provisions above.
MISCELLANEOUS: This Agreement is the complete agreement concerning this license between the parties and supersedes all prior agreements and representations between them. If any provision of this Agreement is held to be unenforceable, the applicable provision shall be reformed only to the extent necessary to make it enforceable and the remaining provisions of this Agreement shall not be affected, except as otherwise expressly provided herein.
TERMINATION: Without prejudice to any other rights of 1st and Brand, LLC, this Agreement will terminate automatically if you fail to comply with its terms and conditions. In the event of termination for this reason, you must destroy all copies of the Program and all of its component parts. You may also terminate the Agreement at any time by permanently deleting any installation of the Program, and destroying all copies of the Program in your possession or control. The following provisions shall survive termination of this Agreement: LICENSE CONDITIONS, OWNERSHIP, LIMITATION OF DAMAGES, TERMINATION, INDEMNITY, AVAILABILITY, ACCESS, BINDING ARBITRATION AND CLASS ACTION WAIVER, JURISDICTION AND APPLICABLE LAW, AND MISCELLANEOUS.