Raptr Terms of Service
Last Modified on May 1, 2017
PLEASE READ THIS AGREEMENT CAREFULLY; THIS IS A BINDING CONTRACT.
YOUR USE OF THE SITE, RAPTR DESKTOP APP AND/OR THE SERVICE, OR BY CLICKING “I ACCEPT” IF PRESENTED WITH THIS TOU IN A CLICK-THROUGH FORMAT, SIGNIFIES THAT YOU AGREE TO THIS TOU AND CONSTITUTES YOUR BINDING ACCEPTANCE OF THIS TOU, INCLUDING ANY MODIFICATIONS THAT RAPTR MAKES FROM TIME TO TIME.
ToU Updates. Raptr will revise this ToU as the Site, Raptr Desktop App and/or Service evolves. The next time you use the Service and/or Raptr Desktop App after such an update, you may be prompted to agree to or decline the revised ToU. You must agree to all revisions if you choose to continue using the Site, Raptr Desktop App and/or Service. By using the Site, Raptr Desktop App and/or Service, you agree to the then-current version of this ToU as posted on the Site at http://raptr.com/info/tos. If at any point you do not agree to any portion of the then-current version of this ToU, you must immediately stop using the Site, Raptr Desktop App and/or Service.
Software Updates. In an effort to improve the Service, Raptr may require that you download and install updates to the Raptr Desktop App. You acknowledge and agree that Raptr may update your Raptr Desktop App with or without notifying you.
Social Network. Personal Use. If you have a valid active Account, Raptr may allow you to create a public profile and participate in a social network provided through our Site, which may include forums, chat services and message services (the “Social Network”). You may post communications and other content to the Social Network, including certain Game-related images, videos and text solely as permitted by the Publishers and other third party rights holders, invite friends to the Social Network, share information on the Social Network, and otherwise communicate through the Social Network. You understand that much of the information included in the Social Network is from other users who are not employed by or under the control of Raptr. You further acknowledge that a large volume of information is available in the Social Network and that people participating in such Social Network may occasionally post messages or make statements, whether intentionally or unintentionally, that are inaccurate, misleading, deceptive, abusive or unlawful. Raptr neither endorses nor is responsible for such messages or statements, or for any opinion, advice, information or other information made or displayed through the Social Network by you or the other users. The opinions expressed through the Social Network reflect solely the opinions of you and/or the other users and may not reflect the opinions of Raptr. Raptr is not responsible for any errors or omissions in postings, for hyperlinks embedded in messages or for any results obtained from the use of the information contained in the Social Network. Under no circumstances will Raptr be liable for any loss or damage caused by your reliance on the information in the Social Network or your use of the Social Network. You should be aware that, when you disclose information about yourself through the Social Network, the information is being made publicly available and may be collected and used by other users. When you disclose any information in a Social Network, you do so at your own risk. Raptr reserves the right to, but has no obligation to, monitor the Social Network, or any postings or other materials that you or other users transmit or post through the Social Network, to alter or remove any such materials, and to disclose such materials and the circumstances surrounding their transmission to any third party in order to operate the Site properly or to comply with legal obligations or governmental requests.
Publisher Use. If you are a Publisher of one of the Games featured through the Site, you may use the Site and Service, as made available to you by Raptr solely to promote such Games by posting related promotional content from time to time (“Promotional Content”). You shall not use the Site to promote any other product or service other than your Games that are featured on the Site and shall ensure that the Promotional Content complies with this ToU. Your right to use the Service to promote the Games that are featured on the Site may be terminated by Raptr at anytime and for any reason. If you are not a Publisher of one of the Games featured on the Site, you may not use the Site and/or Service to promote any products or services at any time unless you receive prior written permission from Raptr.
Termination of Service. The Service is owned and maintained by Raptr, and Raptr reserves the right to deny service to any user, including Publishers, at Raptr’s sole and absolute discretion. The Service is offered with the understanding that Raptr may terminate any Account registered to you and/or your access to the Service at any time, for any reason or no reason, including without limitation for any violation of the ToU. Raptr may stop offering and/or supporting the Service or change the Service at any time.
Accounts and Security.
Eligibility. You represent that you are an adult and have the legal capacity to enter a contract in the jurisdiction where you reside. You may allow your minor children for whom you are the parent or legal guardian to use the Service using your Account, provided, however, that you accept full responsibility for the conduct of the children using your Account.
Account. To access the Service, you must create an Account by completing the registration process. You may create only one (1) Account and you must complete the registration process by providing current, complete and accurate information (including your email address) when prompted. If your contact information changes, you agree that you will promptly update the Account information to reflect those changes. Creating more than one account as not directed by a Raptr representative in any attempt to exploit the service in any way can result in your account being placed in poor standing or banned and a loss of any and all benefits acquired under such circumstances.
Third Party Accounts. If you are a registered user of certain third party social networking accounts as specified on the Site, such as Facebook, PSN, XBLA, Steam, etc. (“Third Party Accounts”), you may use your Third Party Account information by logging into your Third Party Accounts through the Site to do some or all of the following: (i) log into your Account on the Site; (ii) enable you to automatically fill in certain information in your Account profile; (iii) find your friends from your Third Party Accounts on the Service; (iv) invite your friends from your Third Party Accounts to the Service; (v) send posts and/or messages with respect to the Service through your Third Party Accounts; (vi) track your Game accomplishments through the Service from data provided by your Third Party Accounts; and/or (vii) perform other actions as permitted by the Service and your Third Party Accounts from time to time. Your Third Party Accounts are subject to separate terms and conditions provided by the Third Party Account providers. You hereby acknowledge that the Third Party Account providers are not responsible for any liability as a result of your use of the Service and that the Service is in no way sponsored, endorsed or administered by the Third Party Account providers. Further, you acknowledge that Raptr is not responsible for and does not guarantee continued functionality between the Site and your Third Party Accounts, and is not responsible for any effect your use of the Site has on your Third Party Accounts.
Account Security. Maintaining account security is very important. You are entirely responsible for maintaining the confidentiality of the Account username and password. You agree to notify Raptr immediately if you believe that an Account username and/or password have been compromised.
Account Sharing or Transfers. You may not share, transfer or sell any Account, except that you may permit your minor child to use an Account registered to you so long as you accept full responsibility for the conduct of that child. You may not disclose your username and password to anyone other than a minor child as set forth herein. Notwithstanding anything contained herein, under no circumstances shall you provide access to the Site a child under the age of 13 or allow a child under the age of 13 to use your Account.
Deactivation. You have the right to cancel any Account registered to you at any time. You may cancel any Account registered to you by following the instructions on the Site.
Effect of Account Termination or Cancellation. If you voluntarily terminate an Account, you may reactivate that Account at any time through the account interface on the Site. Accounts terminated by Raptr for any type of abuse, including without limitation a violation of these ToU, may not be reactivated for any reason.
Raptr App License.
License Grant. Subject to the terms of this ToU, Raptr hereby grants a limited, non-exclusive, personal, non-sublicensable, non-assignable license to download, install and use the Raptr Desktop App. The Raptr Desktop App may only be used in connection with the Service and in accordance with this ToU and any rules, restrictions or documentation set forth by Raptr from time to time.
Uninstalling the Raptr Desktop App. If you wish to uninstall the Raptr Desktop App, please go the the Uninstall A Program feature in Windows, and uninstall the Raptr Desktop App.
Restrictions and Conditions of Use.
Use of Site and Service. Raptr permits you to view and use a single copy of the Site and/or Service for your personal, non-commercial use (except as permitted in Section 5.2 of this ToU). You agree not to license, create derivative works from, transfer, sell or re-sell any information, content, or services obtained from the Site and/or Service.
No Violation of Laws. You agree that you will not, in connection with your use of the Site, Raptr App, Social Network or the Service, violate any applicable law or regulation. Without limiting the foregoing, you agree that you will not make available through the Site, Social Network, Raptr App, and/or Service any material or information that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy or publicity).
Misuse of Site and/or Service. You may not connect to or use the Site and/or Service in any way not expressly permitted by this ToU. Without limiting the foregoing, you agree that you will not (i) institute, assist, or become involved in any type of attack, including without limitation denial of service attacks, upon the Site and/or Service or otherwise attempt to disrupt the Site and/or Service or any other person's use of the Site and/or Service; or (ii) attempt to gain unauthorized access to the Site, Service, Social Network, Accounts registered to other users, or the computer systems or networks connected to the Site and/or Service. Furthermore, you may not use the Site, Social Network or Service to develop, generate, transmit or store information that: (a) is defamatory, harmful, abusive, obscene or hateful; (b) in any way obstructs or otherwise interferes with the normal performance of another person's use of the Site, Social Network and/or Service, (c) performs any unsolicited commercial communication not permitted by applicable law; (d) constitutes harassment or a violation of privacy or threatens other people or groups of people; (e) is harmful to children in any manner; or (f) constitutes phishing, pharming or impersonates any other person, or steals or assumes any person's identity (whether a real identity or online nickname or alias).
Misuse of the Raptr Desktop App. You may not use the Raptr Desktop App for any purpose other than: (i) to take part in the Social Network in accordance with this ToU; (ii) to utilize features of the Service through the Raptr Desktop App, including but not limited to tracking information related to your use of the Games, viewing Publisher content, and other related activities, which may be updated, modified or removed by Raptr from time to time; and (iii) as expressly set forth in this ToU. You expressly agree that you will not (i) sell, lease, license, sublicense, assign or grant a security interest in the Raptr Desktop App; (ii) decompile, disassemble, or reverse engineer the Raptr Desktop App, in whole or in part; (ii) write or develop any derivative software or any other software program based upon the Raptr Desktop App; (iii) provide, disclose, divulge or make available to, or permit use of the Raptr Desktop App by any third party, except that you may permit your minor child to use a properly obtained copy of the Raptr Desktop App as described herein so long as you accept full responsibility for the conduct of that child; or (iv) copy the Raptr Desktop App except as necessary to use the Raptr Desktop App in accordance with this ToU.
No Commercial Uses. You agree that you will not use the Site, Raptr Desktop App or the Service for any commercial purpose or the benefit of any third party or charge any person, or receive any compensation for, the use of the Site, Raptr Desktop App or the Service. Notwithstanding the foregoing, if you are a Publisher, you may use the Service to promote the Games listed through the Site and Service as set forth in Section 5.2 of this ToU.
No Data Mining or Harmful Code. You agree that you will not (i) obtain or attempt to obtain any information from the Service, including without limitation information about the processes of or data transmitted or received by the Raptr Desktop App; (ii) intercept, examine or otherwise observe any proprietary communications protocol used by the Raptr Desktop App or the Service, whether through the use of a network analyzer, packet sniffer or other device; or (iii) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan-horse routing, trap door, bitcode farming, points framing, time bomb or any other codes, instructions or third-party software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, damage or disassemble, Raptr App, the Site, the Social Network or the Service.
No Misuse of Third Party Software. You agree that you will not create, distribute or use any third party software provided through the Site, the Service or otherwise, in a manner designed to change, interfere with, misuse, abuse, unlawfully access, or otherwise manipulate the Service, Raptr Desktop App, Social Network or Site. The use of the Games in conjunction with the Service is permitted so long as you abide by the terms of the license that governs your use of those Games.
Content. “Content” means any communications, images, sounds, and all the material and information, including but not limited to the Promotional Content, that you upload or transmit through the Site, Social Network, Raptr Desktop App, Service and/or to your Account, or that other users upload or transmit, including without limitation any status updates, postings, messages and/or chat text. You hereby grant to us and our licensors, including without limitation our respective successors and assigns, a non-exclusive, perpetual, irrevocable, sublicensable, transferable, worldwide, royalty-free, paid-up right to reproduce, fix, adapt, modify, translate, reformat, create derivative works from, manufacture, introduce into circulation, publish, distribute, sell, license, sublicense, transfer, rent, lease, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, communicate to the public by telecommunication, display, perform, enter into computer memory, and use and practice such Content as well as all modified and derivative works thereof, without compensation to you. None of the Content will be subject to any obligation, whether of confidentiality, attribution or otherwise, on our part and we will not be liable for any use or disclosure of any Content. You agree that you may not upload or otherwise transmit on or through the Site, Social Network, Raptr Desktop App, Service and/or your Account any Content that is subject to any third-party rights.
Content Screening and Disclosure. We do not, and cannot, pre-screen or monitor all Content. However, we may or our representatives may monitor and/or record your communications (including without limitation status updates, postings, messages and/or chat text), and you hereby provide your irrevocable consent to such monitoring and recording. You acknowledge and agree that you have no expectation of privacy concerning the submission of any Content. We do not assume any responsibility or liability for Content that is generated by users of the Site, Social Network and/or Service. We have the right, but not the obligation, in our sole discretion to edit, refuse to post, or remove any Content. We also reserve the right, at all times and in our sole discretion, to disclose any Content (including without limitation private messages and chat text) for any reason, including without limitation (i) to satisfy any applicable law, regulation, legal process or governmental request; (ii) to enforce the terms of this ToU or any other agreement; (iii) to protect our legal rights and remedies; (iv) where we feel someone’s health or safety may be threatened; or (v) to report a crime or other offensive behavior.
Limits and Retention. Raptr may limit the amount and/or type of Content that you upload to the Site, Social Network, Raptr Desktop App, Service and/or your Account at Raptr’s sole discretion. Raptr may change such limitations at any time and may post such limitations on the Site from time to time. Raptr may retain or delete such Content at any time at Raptr’s sole discretion. You shall not rely on Raptr to retain such Content through your Account and agree to back up such Content on separate systems if you would like to retain a copy of such Content. Raptr shall have no obligation to provide the Content to you upon your request or otherwise.
Prohibited Content. You agree that you shall not upload, display or transmit any Content (including but not limited to links to any of the following Content, from any source, as it appears on third party sites or services) through the Site, Social Network, Raptr App, Service and/or your Account that: (i) is unlawful, libelous, defamatory, harassing, threatening, harmful, invasive of privacy or publicity rights, personally identifiable information of another user, abusive, inflammatory, fraudulent, deceptive, misleading or is otherwise objectionable; (ii) conveys expressions of bigotry, prejudice, racism, hatred or profanity; (iii) constitutes, assists or encourages a criminal offense, violates the rights of any party, or that otherwise creates liability or violates any local, state, national, or international law; (iv) infringes or encourages the infringement of any patents, trademarks, trade secrets, copyrights or other intellectual or proprietary right of any party; (v) contains any viruses, Trojan horses, worms, time bombs, cancelbots, farming bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept, expropriate any system, data or personal information or otherwise interfere with normal user experience; (vi) misrepresents its source or origin; (vii) installs any computer software or program or code without prior end-user consent or in a manner that is in violation of any applicable law or regulation; (viii) triggers a pop-up, pop-under, dialogue box, or initiates a downloadable application; or (ix) is for or associated with online gambling, online pharmacies, medicinal marijuana, pornographic products or services, alcohol, guns, or tobacco (collectively, the “Prohibited Content”).
Ownership. As between you and Raptr and/or its licensors, Raptr and/or its licensors own the Site, Social Network, Service, Raptr Desktop App, and all virtual assets made available in the Site, Social Network, Service and Raptr Desktop App, including, without limitation, all Accounts and other assets and data generated by the Service, including without limitation, the Game Data (but excluding the Games owned by the Publishers) (collectively, “Assets”). Raptr and its licensors reserve the exclusive right to create derivative works based on the Site, the Service, Raptr Desktop App and/or Assets. You agree that you will not create any work of authorship or create any derivative works based on the Site, Service, Raptr Desktop App and/or Assets except as expressly permitted by Raptr. Any reproduction or redistribution of the Site, Raptr Desktop App or the Assets, or use of the Service not in accordance with the ToU is expressly prohibited by law, and may result in severe civil and criminal penalties.
You hereby grant permission for the Software to utilize the processor and bandwidth of your computer for the limited purposes of facilitating the transfer of digital files and communication to users of the Software. The software shall be utilized to transfer only those files published on Raptr's managed and secured network.
Automatic Configuration And Collection of Configuration Data.
You hereby acknowledge that the Raptr Desktop App accesses and collects certain configuration information about You and Your computer in order to properly optimize Your system, to improve Your gameplay settings, and to improve Raptr’s products and services. Information collected by the Raptr Desktop App includes Your computer’s hardware configuration, operating system, driver configuration, installed games, game settings, performance, usage data, and usage metrics. You hereby consent to all of the foregoing and represent and warrant that You have the right to grant such consent. In addition, You agree that You are solely responsible for maintaining appropriate data backups and system restore points for Your computer and that Raptr will have no responsibility for any damage or loss to Your computer (including loss of data or access) arising from or relating to (a) any changes to the configuration, application settings, environment variables, registry, drivers, BIOS, or other attributes of Your computer and system software initiated through the Raptr Desktop App; or (b) installation of any software or third party software patches initiated through the Raptr Desktop App. Raptr is not responsible for the practices of sites or services controlled by other companies or organizations.
Links from the Site. The Site may contain links to websites, including the Publishers’ websites, and software, including the Games, operated by other parties. Raptr provides these links to other websites and software as a convenience, and use of these sites and software is at your own risk. The linked sites and software are not under the control of Raptr, and Raptr is not responsible for the content available on the third party sites or the software. Such links do not imply Raptr’s endorsement of information or material on any other site and Raptr disclaims all liability with regard to your access to and use of such linked websites and software.
Links to the Site. Unless otherwise set forth in a written agreement between you and Raptr, you must adhere to Raptr’s linking policy as follows: (i) the appearance, position and other aspects of the link may not be such as to damage or dilute the goodwill associated with Raptr’s and/or its licensors’ names and trademarks; (ii) the appearance, position and other attributes of the link may not create the false appearance that your organization or entity is sponsored by, affiliated with, or associated with Raptr; (iii) when selected by a user, the link must display the Site on full-screen and not within a “frame” on the linking Site; (iv) you must not associate the link with or place the link on a site with any Prohibited Content; and (v) Raptr reserves the right to revoke its consent to the link at any time and in its sole discretion.
Notice for Claims of Copyright Infringement.
If you are a copyright owner or agent thereof and believe that content posted on the Site by a Raptr user infringes upon your copyright, please submit notice, pursuant to the Digital Millennium Copyright Act (17 U.S.C. § 512(c)) to our Copyright Agent with the following information: (a) an electronic signature of the person authorized to act on behalf of the owner of the copyright; (b) a description of the copyrighted work that you claim has been infringed; (c) the URL of the location on our Site containing the material that you claim is infringing; (d) your address, telephone number, and email address; (e) 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; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
Our Copyright Agent can be reached by email at Feedback@Raptr.com. Please note that attachments cannot be accepted at the email address for security reasons. Accordingly, any notification of infringement submitted electronically with an attachment will not be received or processed.
Trademarks. Raptr and the Raptr logo are trademarks/service marks of Raptr. Unauthorized use of any Raptr trademark, service mark or logo may be a violation of federal and state trademark laws.
Copyright. The Site, Raptr App and the Service are protected by U.S. and international copyright laws. Except for your use as authorized above, you may not modify, reproduce or distribute the content, design or layout of the Site, the Raptr App and the Service, or individual sections of the content, design or layout of the Site without Raptr’s express prior written permission.
Unsolicited Idea Submissions. Neither Raptr nor any of its employees and/or contractors accept or consider unsolicited ideas, original creative artwork or other works, including, without limitation, ideas or suggestions for new or improved technologies, product enhancements, marketing plans or names for new technologies (collectively “Unsolicited Ideas”). Please do not send your Unsolicited Ideas to Raptr or its employees and/or contractors. Our policy is aimed at avoiding potential misunderstandings or disputes when Raptr’s products or strategies might seem similar to Unsolicited Ideas that are submitted. If, despite our request that you not send us your Unsolicited Ideas, you still submit your Unsolicited Ideas to us or to any of our employees and/or contractors, then, you hereby grant us and our designees a worldwide, non-exclusive, sublicensable, assignable, royalty-free, perpetual, irrevocable right to use, reproduce, distribute, create derivative works of, publicly perform, publicly display and license, digitally perform, make, have made, sell, offer for sale and import your Unsolicited Ideas, including, without limitation, all copyrights, trademarks, trade secrets, patents, industrial rights and all other intellectual and proprietary rights related thereto, in any media now known or hereafter developed, for any purpose whatsoever, commercial or otherwise, including, without limitation, giving the Unsolicited Ideas to others.
The Site and the Service are operated by Raptr in the United States. Those who choose to access the Site, and/or the Service from locations outside the United States do so on their own initiative and are responsible for compliance with applicable local laws.
The Site and the Service are not directed toward children under 13 years of age nor does Raptr knowingly collect information from children under 13. If you are under 13, please do not submit any personally identifiable information to Raptr.
DISCLAIMER OF WARRANTIES.
THE SITE, SERVICE, SOCIAL NETWORK AND RAPTR DESKTOP APP ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. RAPTR MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY CONTENT AVAILABLE THROUGH THE SITE, THE SOCIAL NETWORK, THE RAPTR DESKTOP APP AND/OR SERVICE. YOU ARE RESPONSIBLE FOR VERIFYING ANY INFORMATION BEFORE RELYING ON IT. USE OF THE SITE, THE SOCIAL NETWORK, THE RAPTR DESKTOP APP, THE SERVICE AND/OR THE CONTENT AVAILABLE ON THE SITE, THE SOCIAL NETWORK, RAPTR DESKTOP APP AND/OR SERVICE, INCLUDING THE ASSETS, IS AT YOUR SOLE RISK. RAPTR DOES NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE SITE, THE SOCIAL NETWORK, THE RAPTR DESKTOP APP AND/OR SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE SITE, THE SOCIAL NETWORK, THE RAPTR DESKTOP APP OR THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SITE, THE SOCIAL NETWORK, THE RAPTR DESKTOP APP OR THE SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimer may not apply to you.
LIMITATION OF LIABILITY; SOLE AND EXCLUSIVE REMEDY.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, RAPTR, ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE “RELATED PARTIES”) DISCLAIM ALL LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND FURTHER DISCLAIM ALL LOSSES, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SITE, THE SOCIAL NETWORK, THE RAPTR DESKTOP APP AND/OR SERVICE, EVEN IF RAPTR AND/OR RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE LIABILITY OF RAPTR OR ANY OF THE RELATED PARTIES EXCEED THE AMOUNT THAT YOU PAID TO US OR OUR DESIGNEES DURING THE SIX (6) MONTHS PRIOR TO THE TIME YOUR CAUSE OF ACTION AROSE, OR 0, WHICHEVER IS GREATER.
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of Raptr and its affiliates shall be limited to the fullest extent permitted by law.
Indemnification. You agree to indemnify, defend and hold Raptr and the Related Parties harmless from any claim, demand, damages or other losses, including reasonable attorneys’ fees, asserted by any third-party resulting from or arising out of your use of the Site, Service, Social Network, Raptr Desktop App, or any breach by you of this ToU or any other policies that Raptr may issue for the Site, Social Network, Raptr Desktop App and/or Service from time to time.
Governing Law; Jurisdiction. This ToU shall be is governed by, and will be construed under, the laws of the United States of America and the law of the State of California, without regard to conflict of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Except as provided in Section 23 below (and claims proceeding in any small claims court), all disputes arising out of or related to your use of the Site, Raptr App and/or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco, California and you agree to submit to the personal jurisdiction and venue of such courts.
Arbitration Procedures. You and Raptr agree that, except as provided in Section 23.4 below, all disputes, controversies and claims related to this ToU (each a “Claim”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in this ToU. In the event of a conflict between the terms set forth in this Section 23 and the JAMS Rules, the terms in this Section 23 will control and prevail.
Except as otherwise set forth in Section 23.4, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and we will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in this ToU, (i) you and Raptr may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (ii) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND RAPTR WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
Location. The arbitration will take place in your hometown area if you so notify Raptr in your notice of arbitration or within ten (10) days following receipt of Raptr’s arbitration notice. In the absence of a notice to conduct the arbitration in your hometown area, the arbitration will be conducted in San Francisco, California, unless the parties agree to video, phone and/or internet connection appearances.
Limitations. You and Raptr agree that any arbitration shall be limited to the Claim between Raptr and you individually. YOU AND RAPTR AGREE THAT (A) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (B) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (C) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
Exceptions to Arbitration. You and Raptr agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (i) any Claim seeking to enforce or protect, or concerning the validity of, any of your or Raptr’s intellectual property rights; (ii) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (iii) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
Severability. You and Raptr agree that if any portion this Section 23 is found illegal or unenforceable (except any portion of Section 23.4), that portion shall be severed and the remainder of the Section shall be given full force and effect. If Section 23.4 is found to be illegal or unenforceable then neither you nor Raptr will elect to arbitrate any Claim falling within that portion of Section 23.4 found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within San Francisco, State of California, United States of America, and you and Raptr agree to submit to the personal jurisdiction of that court.
TOU Revisions. This ToU may only be revised in a writing signed by Raptr, or published by Raptr on the Site.
No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Raptr as a result of this ToU or your use of the Site, the Service or the Raptr Desktop App.
Assignment. Raptr may assign this ToU, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the ToU without Raptr’s prior written consent, and any unauthorized assignment by you shall be null and void.
Severability. If any part of this ToU is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of the ToU shall be given full force and effect.
Attorneys’ Fees. In the event any litigation or arbitration is brought by either party in connection with this ToU, the prevailing party in such litigation or arbitration shall be entitled to recover from the other party all the reasonable costs, attorneys' fees and other expenses incurred by such prevailing party in the litigation.
No Waiver. Our failure to enforce any provision of this ToU shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by us of any provision, condition or requirement of this ToU shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
Notices. All notices given by you or required under this ToU shall be in writing and addressed to: Raptr, Inc. 555 Twin Dolphin Drive, Ste 630, Redwood City, CA 94065 ATTN: CEO.
Export Administration. You will comply fully with all relevant export laws and regulations of the United States, including, without limitation, the U.S. Export Administration Regulations (collectively “Export Controls”). Without limiting the generality of the foregoing, you will not, and you will require your representatives not to, export, direct or transfer the Raptr Desktop App, or any direct product thereof, to any destination, person or entity restricted or prohibited by the Export Controls.
U.S. Government Rights. If you are, or are entering into this ToU on behalf of, any agency or instrumentality of the United States Government, the Raptr Desktop App are “commercial computer software” and “commercial computer software documentation,” and pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable, use, reproduction, and disclosure of the Raptr Desktop App are governed by the terms of this ToU.
Equitable Remedies. You hereby agree that Raptr would be irreparably damaged if the terms of this ToU were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this ToU, in addition to such other remedies as we may otherwise have available to us under applicable laws.