Terms of Service
Updated March 4, 2024
1. CHANGES TO TERMS OF USE AND RELATED POLICIES
1.1. Arctail, Inc. reserves the right to modify or amend these Terms of
Use (ToU) at any time. If we make any changes, they will be reflected in
the ToU on the Arctail platform, accessible under "Terms of Use." We may
also notify you by email regarding any significant changes to the ToU.
Whether or not you receive or review such notifications, you agree that
you will be bound by any changes and that it is your responsibility to
review the ToU as posted on the Arctail platform before accessing the
platform or engaging in any services. Your continued use of the services
after any changes are posted shall constitute your consent and agreement
to the ToU as modified.
1.2. Periodically, we may also modify our Privacy Policy, Betting Rules, and Responsible Gaming Policy, which are incorporated into these Terms. If we make changes, they will be updated on the platform. You agree that you will be bound by any such changes and that it is your responsibility to regularly review these Rules and Policies as posted on the Arctail platform prior to accessing the platform or engaging in any services. Your continued use of the services after any changes are posted will constitute your further consent and agreement to the incorporated policies as changed or amended.
1.2. Periodically, we may also modify our Privacy Policy, Betting Rules, and Responsible Gaming Policy, which are incorporated into these Terms. If we make changes, they will be updated on the platform. You agree that you will be bound by any such changes and that it is your responsibility to regularly review these Rules and Policies as posted on the Arctail platform prior to accessing the platform or engaging in any services. Your continued use of the services after any changes are posted will constitute your further consent and agreement to the incorporated policies as changed or amended.
2. DEFINITIONS
Content: Refers to text, graphics, user interfaces, visual interfaces,
photographs, trademarks, logos, sounds, music, artwork, computer code, and
other material used, displayed, or available as part of the Games and
Platform, including virtual coins.
Customer Account: An account held by a Player on the Arctail platform.
Excluded Territory: Refers to any region or jurisdiction where participation in Arctail's eSports sweepstakes activities is prohibited or restricted by law. Players are responsible for understanding and complying with any and all laws, rules, and regulations pertaining to their eligibility to participate in betting activities on Arctail in their respective jurisdictions.
Gold Coins: These are virtual coins used on Arctail for practice bets. They carry no monetary value and cannot be converted to cash. Gold Coins are awarded to users free of charge for use in practicing sweepstakes strategies and learning the platform.
Arc Cash: This is Arctail’s USD currency, equivalent to real money. One Arc Cash equals one US Dollar. Users can use Arc Cash for real bets on the platform and withdraw their winnings in real money. Arc Cash is provided to users as daily bonuses and can also be won through sweepstakes activities on the platform.
Arctail eSports sweepstakes Game: Any game or mode available on Arctail's platform that involves social betting on eSports, specifically Fortnite competitions. Players use Arc Cash or Gold Coins for placing bets. Winnings and rewards are based on the outcomes of the eSports events and players' social betting strategies.
Customer Account: An account held by a Player on the Arctail platform.
Excluded Territory: Refers to any region or jurisdiction where participation in Arctail's eSports sweepstakes activities is prohibited or restricted by law. Players are responsible for understanding and complying with any and all laws, rules, and regulations pertaining to their eligibility to participate in betting activities on Arctail in their respective jurisdictions.
Gold Coins: These are virtual coins used on Arctail for practice bets. They carry no monetary value and cannot be converted to cash. Gold Coins are awarded to users free of charge for use in practicing sweepstakes strategies and learning the platform.
Arc Cash: This is Arctail’s USD currency, equivalent to real money. One Arc Cash equals one US Dollar. Users can use Arc Cash for real bets on the platform and withdraw their winnings in real money. Arc Cash is provided to users as daily bonuses and can also be won through sweepstakes activities on the platform.
Arctail eSports sweepstakes Game: Any game or mode available on Arctail's platform that involves social betting on eSports, specifically Fortnite competitions. Players use Arc Cash or Gold Coins for placing bets. Winnings and rewards are based on the outcomes of the eSports events and players' social betting strategies.
3. YOUR PARTICIPATION
3.1. You hereby declare and warrant that:
(a) You are over 18 years of age or the higher minimum age as required by the laws or regulations in the jurisdiction in which you are located at the time of accessing the Service. You must be allowed under the laws applicable to you to participate in the sweepstakes games offered on the Arctail platform.
(b) You use Arctail's services for recreational and entertainment purposes only.
(c) You participate in Arctail's games on your own behalf and not on behalf of any other person.
(d) All information that you provide to Arctail during the term of validity of these Terms of Use is true, complete, and correct, and you will immediately notify us of any changes to such information.
(a) You are over 18 years of age or the higher minimum age as required by the laws or regulations in the jurisdiction in which you are located at the time of accessing the Service. You must be allowed under the laws applicable to you to participate in the sweepstakes games offered on the Arctail platform.
(b) You use Arctail's services for recreational and entertainment purposes only.
(c) You participate in Arctail's games on your own behalf and not on behalf of any other person.
(d) All information that you provide to Arctail during the term of validity of these Terms of Use is true, complete, and correct, and you will immediately notify us of any changes to such information.
4. YOUR CUSTOMER ACCOUNT
Single Account
4.1. You are allowed to have only one Customer Account on Arctail. If you attempt
to open more than one Customer Account, all accounts you have opened or try
to open may be cancelled or suspended and the consequences described in Section
13.3 may be enforced.
4.2. You must notify Arctail immediately if you notice that you have more than one registered Customer Account on the platform.
4.3. You are prohibited from allowing anyone else to access or use your Customer Account for any purpose.
Accuracy
4.4. You are required to keep your registration details up to date at all times.
If you change your address, email, phone number, or any other contact or personal
information, contact Arctail's support to update your details. The name that
you provide to us at registration must be identical to that listed on your
government-issued identification.
Password
4.5. As part of the registration process, you will have to choose a password
to log into Arctail. It is your sole and exclusive responsibility to ensure
that your login details are kept securely. You must not disclose your login
details to anyone. Arctail is not responsible for any abuse or misuse of your
Customer Account by third parties due to your disclosure of your login details
to any third party, whether such disclosure is intentional or accidental, active
or passive. If your password is lost or stolen, or if there is unauthorized
use of your account, contact Arctail immediately.
Account Transfers
4.6. You are not allowed to transfer Gold Coins or Arc Cash between Customer
Accounts or from your Customer Account to other players, or to receive Gold
Coins or Arc Cash from other Customer Accounts into your Customer Account,
or to transfer, sell, and/or acquire Customer Accounts.
Inactive Customer Accounts
4.7. Arctail reserves the right to deactivate your Customer Account if it is
deemed to be an Inactive Account.
Closing of Customer Accounts
4.8. If you wish to close your Customer Account, you may do so at any time
by selecting the “Contact Us” link on the Platform and submitting a request
to close your Customer Account. The effective closure of the Customer Account
will correspond with the termination of the Terms of Use.
4.9. You will be able to open your Customer Account again by sending a request to Arctail's Customer Support team. All requests for the re-opening of an account will be evaluated by our Customer Support and Compliance teams, which shall abide by strict customer protection guidelines.
4.10. All virtual coins are forfeited if your Customer Account is terminated or suspended for any reason in Arctail’s sole and absolute discretion or if the Service is no longer available. To the extent legally permissible, if your Customer Account or a particular subscription for the Service associated with your Customer Account is terminated, suspended, and/or if any virtual coins are selectively removed or revoked from your Customer Account, no refund will be granted, no virtual coins will be credited to you or converted to cash or other forms of reimbursement.
Discretion to Refuse or Close Accounts
4.11. Arctail reserves the right to refuse to open a Customer Account or to
close a Customer Account in its sole discretion.
(g) Any funds you use on the platform, including for the purchase of Arc Cash, are not tainted with any illegality and do not originate from any illegal activity or source, including but not limited to money laundering or other ill-gotten means.
(h) You will not be involved in any fraudulent, collusive, fixing, or other unlawful activities in relation to your or third parties’ participation in any of the games on Arctail. Furthermore, you will not use any software-assisted methods or techniques, including but not limited to bots designed to play automatically, or hardware devices for your participation in any of the games. Arctail reserves the right to invalidate any participation in the event of such behavior.
Lawful Use
3.2. It is your responsibility to ensure that your use of the Platform is lawful
in your jurisdiction. Any person who knowingly breaches this clause, including
any attempt to circumvent this restriction (for example, by using a VPN, proxy,
or similar service that masks or manipulates the identification of your real
location), or by providing false or misleading information about your location
or place of residence, or by participating through a third party or on behalf
of a third party located in a jurisdiction where it is unlawful to participate,
is in breach of these Terms of Use. Engaging in such actions may be considered
fraud and could be subject to criminal prosecution.
Eligibility
3.3. Employees, contractors, and former employees and contractors (less than
3 years since cessation of employment) of Arctail, any of its respective affiliates,
advertising agencies, or any other company or individual involved with the
design, production, execution, or distribution of the games, as well as their
immediate family members (spouse, parents, siblings, and children, whether
the relationship is by birth, marriage, or adoption) and household members
(people who share the same residence for at least 3 months of the year), are
not eligible to participate.
5. PROMOTIONS
5.1. All promotions, including Sweepstakes Games, contests, special
offers and bonuses are subject to these Terms of Use, the Binding
Arbitration and Class Waiver Agreement, the Sweepstakes Rules and
subject to any additional terms that may be published at the time of the
promotion.
5.2. Arctail reserves the right to withdraw or modify such promotions without prior notice to you.
5.3. If, in the reasonable opinion of Arctail, we form the view that a Player is abusing any promotion, to derive any advantage or gain for themselves or another Player, including by way of Fraudulent Conduct, we may, at our sole discretion, withhold, deny or cancel any advantage, bonus or Prize as we see fit, or terminate of suspend the Account of such Player.
5.2. Arctail reserves the right to withdraw or modify such promotions without prior notice to you.
5.3. If, in the reasonable opinion of Arctail, we form the view that a Player is abusing any promotion, to derive any advantage or gain for themselves or another Player, including by way of Fraudulent Conduct, we may, at our sole discretion, withhold, deny or cancel any advantage, bonus or Prize as we see fit, or terminate of suspend the Account of such Player.
6. FRAUDULENT CONDUCT
6.1. You will not, directly or indirectly:
(a) hack into any part of the Games or Platform through password mining, phishing, or any other means;
(b) attempt to modify, reverse engineer, or reverse-assemble any part of the Games or Platform;
(c) knowingly introduce viruses, Trojans, worms, logic bombs, spyware, malware, or other similar material;
(d) circumvent the structure, presentation or navigational function of any Game so as to obtain information that Arctail has chosen not to make publicly available on the Platform;
(e) engage in any form of cheating or collusion;
(f) use the Service, Platform, or the systems of Arctail to facilitate any type of illegal money transfer (including money laundering proceeds of crime);
(g) participate in or take advantage of, or encourage others to participate in or take advantage of schemes, organizations, agreements, or groups designed to share:
(i) special offers or packages emailed to a specific set of players and redeemable by URL; or
(ii) identification documents (including, but not limited to, photographs, bills and lease documents) for the purpose of misleading Arctail Inc. as to a Player’s identity.
6.2. You must not use the Platform for any unlawful or fraudulent activity or prohibited transaction (including Fraudulent Conduct) under the laws of any jurisdiction that applies to you. We monitor all transactions to prevent money laundering.
6.3. If Arctail suspects that you may be engaging in, or have engaged in fraudulent, unlawful or improper activity, including money laundering activities or any conduct which violates these Terms of Use, your access to the Service will be deactivated immediately and your Customer Account may be suspended. If your Customer Account is deactivated or suspended under such circumstances, Arctail is under no obligation to reverse any Arctail Coin purchases you have made or to redeem any Arctail Cash that may be in your Customer Account. In addition, Arctail may pass any necessary information on to the relevant authorities, other online service providers, banks, credit card companies, electronic payment providers or other financial institutions. You will cooperate fully with any Arctail investigation into such activity.
6.4 If you suspect any unlawful or fraudulent activity or prohibited transaction by another Player, please notify us immediately via the means of communication listed in the Customer Complaints procedure (described in Section 10).
(a) hack into any part of the Games or Platform through password mining, phishing, or any other means;
(b) attempt to modify, reverse engineer, or reverse-assemble any part of the Games or Platform;
(c) knowingly introduce viruses, Trojans, worms, logic bombs, spyware, malware, or other similar material;
(d) circumvent the structure, presentation or navigational function of any Game so as to obtain information that Arctail has chosen not to make publicly available on the Platform;
(e) engage in any form of cheating or collusion;
(f) use the Service, Platform, or the systems of Arctail to facilitate any type of illegal money transfer (including money laundering proceeds of crime);
(g) participate in or take advantage of, or encourage others to participate in or take advantage of schemes, organizations, agreements, or groups designed to share:
(i) special offers or packages emailed to a specific set of players and redeemable by URL; or
(ii) identification documents (including, but not limited to, photographs, bills and lease documents) for the purpose of misleading Arctail Inc. as to a Player’s identity.
6.2. You must not use the Platform for any unlawful or fraudulent activity or prohibited transaction (including Fraudulent Conduct) under the laws of any jurisdiction that applies to you. We monitor all transactions to prevent money laundering.
6.3. If Arctail suspects that you may be engaging in, or have engaged in fraudulent, unlawful or improper activity, including money laundering activities or any conduct which violates these Terms of Use, your access to the Service will be deactivated immediately and your Customer Account may be suspended. If your Customer Account is deactivated or suspended under such circumstances, Arctail is under no obligation to reverse any Arctail Coin purchases you have made or to redeem any Arctail Cash that may be in your Customer Account. In addition, Arctail may pass any necessary information on to the relevant authorities, other online service providers, banks, credit card companies, electronic payment providers or other financial institutions. You will cooperate fully with any Arctail investigation into such activity.
6.4 If you suspect any unlawful or fraudulent activity or prohibited transaction by another Player, please notify us immediately via the means of communication listed in the Customer Complaints procedure (described in Section 10).
7. INTELLECTUAL PROPERTY
7.1. The computer software, the computer graphics, the Platform and the
user interface that we make available to you is owned by, or licensed to,
Arctail or its associates and protected by copyright laws. You may only
use the software for your own personal, recreational uses in accordance
with all rules, terms of use we have established (including these Terms of
Use and the Sweepstakes Rules) and in accordance with all applicable laws,
rules and regulations.
7.2. You acknowledge that Arctail Inc. is the proprietor or authorized licensee of all intellectual property in relation to any Content.
7.3. Your use of the Games and Platform does not provide you with any intellectual property rights in the Content, Games or Platform.
7.4. You grant us, and represent and warrant that you have the right to grant us, an irrevocable, perpetual, worldwide, non-exclusive, royalty-free license to use in whatever way we see fit, any information, images, videos, comments, messages, music or profiles you publish or upload to any website or social media page controlled and operated by Arctail.
7.5. You must not reproduce or modify the Content in any way, including by removing any copyright or trademark notice.
7.6. All trademarks and logos displayed in the Games and Platform are the property of their respective owners and are protected by applicable trademark and copyright laws.
7.7. Arctail requires the Players to respect the intellectual property rights of others. If you are the owner of copyright and you believe that your work has been used in the Service in a way that constitutes copyright infringement, please provide our Copyright Agent with a notice meeting all of the requirements of the Digital Millennium Copyright Act (“DMCA”).
Your notice should contain the following information:
(a) a physical or electronic signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
(b) a clear description of the copyrighted work or other intellectual property that you claim has been infringed;
(c) a description of where the material that you claim is infringing is located in the Services;
(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 or intellectual property owner or authorized to act in the copyright or intellectual property owner’s behalf.
Before you file your DMCA notice, please carefully consider whether or not the use of the copyrighted material at issue is protected by the Fair Use doctrine. If you file a DMCA notice when there is no infringing use, you could be liable for costs and attorneys’ fees.
7.2. You acknowledge that Arctail Inc. is the proprietor or authorized licensee of all intellectual property in relation to any Content.
7.3. Your use of the Games and Platform does not provide you with any intellectual property rights in the Content, Games or Platform.
7.4. You grant us, and represent and warrant that you have the right to grant us, an irrevocable, perpetual, worldwide, non-exclusive, royalty-free license to use in whatever way we see fit, any information, images, videos, comments, messages, music or profiles you publish or upload to any website or social media page controlled and operated by Arctail.
7.5. You must not reproduce or modify the Content in any way, including by removing any copyright or trademark notice.
7.6. All trademarks and logos displayed in the Games and Platform are the property of their respective owners and are protected by applicable trademark and copyright laws.
7.7. Arctail requires the Players to respect the intellectual property rights of others. If you are the owner of copyright and you believe that your work has been used in the Service in a way that constitutes copyright infringement, please provide our Copyright Agent with a notice meeting all of the requirements of the Digital Millennium Copyright Act (“DMCA”).
Your notice should contain the following information:
(a) a physical or electronic signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
(b) a clear description of the copyrighted work or other intellectual property that you claim has been infringed;
(c) a description of where the material that you claim is infringing is located in the Services;
(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 or intellectual property owner or authorized to act in the copyright or intellectual property owner’s behalf.
Before you file your DMCA notice, please carefully consider whether or not the use of the copyrighted material at issue is protected by the Fair Use doctrine. If you file a DMCA notice when there is no infringing use, you could be liable for costs and attorneys’ fees.
8. DISRUPTIONS AND CHANGE
No warranties
8.0. THE SERVICE, IN WHOLE AND IN PART (INCLUDING, WITHOUT LIMITATION, ALL CONTENT, AND USER MATERIALS), ARE PROVIDED, TRANSMITTED, DISTRIBUTED, AND MADE AVAILABLE “AS IS” AND “AS AVAILABLE” WITHOUT EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE MAKE NO WARRANTY: (A) THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; (B) THAT DEFECTS OR ERRORS IN THE SERVICE WILL BE CORRECTED; (C) THAT THE SERVICE WILL BE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS; (D) AS TO THE QUALITY, ACCURACY, COMPLETENESS AND VALIDITY OF ANY INFORMATION OR MATERIALS IN CONNECTION WITH THE SERVICE; (E) THAT YOUR USE OF THE SERVICE WILL MEET YOUR REQUIREMENTS; OR (F) THAT TRANSMISSIONS OR DATA WILL BE SECURE.
Exceptions
8.1. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER, EXCLUSION OR LIMITATION
OF CERTAIN WARRANTIES, LIABILITIES AND DAMAGES, SO SOME OF THE ABOVE DISCLAIMERS,
EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, OUR
WARRANTIES AND LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW.
Malfunctions
8.2. Arctail is not liable for any downtime, server disruptions, lagging, or any technical or political disturbance to the Game play, nor attempts by you to participate by methods, means or ways not intended by us.
8.3. Arctail shall have no liability for any damages or losses which are deemed or alleged to have arisen out of or in connection with any Platform or its content including, without limitation, delays or interruptions in operation or transmission, loss or corruption of data, communication or lines failure, any person’s misuse of a Platform or its content or any errors or omissions in content.
8.4. In the event of a Platform system malfunction all Game play on that Platform is void.
8.5. In the event a Game is started but fails to conclude because of a failure of the system, Arctail will reinstate the amount of Arctail Coins or Arctail Cash played (whichever applicable) in the Game to you by crediting it to your Customer Account. Arctail reserves the right to alter Player balances and account details to correct such mistakes.
8.6. Arctail reserves the right to remove any part of the Games from the Platform at any time. Any part of the Games that indicate incorrect behavior affecting Prize redemption, Game data, Arctail Coin balances, Arctail Cash balances or other balances, that may be due to misconfiguration or a bug, will be cancelled and removed from the Platform. Player balances and Customer Account details may be altered in such cases in order to correct any mistake.
Change
8.7. Arctail reserves the right to suspend, modify, remove, or add Content to its application or Games at its sole discretion with immediate effect and without notice to you. We will not be liable to you for any loss suffered as a result of any changes made or for any modification or suspension of or discontinuance of the application or Games and you will have no claims against Arctail in such regard.
Service Suspension
8.8. We may temporarily suspend the whole or any part of the Service for any reason at our sole discretion. We may, but will not be obliged to, give you as much notice as is reasonably practicable of such suspension. We will restore the Service, as soon as is reasonably practicable, after such temporary suspension.
9. VIRUSES
9.1. Although we take all reasonable measures to ensure that the Platform
and Games are free from computer viruses, we cannot and do not guarantee
that the Platform and Games are free of such problems. It is your
responsibility to protect your systems and have in place the ability to
reinstall any data or programs lost due to a virus.
10. COMPLAINTS AND CUSTOMER SUPPORT
10.1. If you would like to contact our Customer Support department, you
may contact us by selecting the “Contact Us” link on the Platform and
filling in the form or by emailing hello@arctail.com.
10.3. INITIAL DISPUTE RESOLUTION PROCEDURE
Before You assert any claim for damages or relief of any kind in an arbitration proceeding as provided for in this Section, the parties shall make a good faith attempt to resolve the dispute by following the procedure in this Section 10.3. The parties agree, before either party may initiate or demand arbitration against the other, we will individually and personally meet and confer, by telephone or videoconference, in a good-faith effort to resolve informally any claim covered by these Terms. Multiple individuals with disputes cannot participate in the same informal telephonic dispute resolution conference. If you are represented by counsel (which such representation will be at your sole cost and expense), your counsel may participate in the conference, but you shall also attend and participate in the conference.
The party initiating the claim must give notice to the other party in writing of its intent to initiate an informal dispute resolution conference, which shall occur within thirty (30) days after the other party receives such notice, unless an extension is mutually agreed upon by the parties. To notify Arctail that you intend to initiate an informal dispute resolution conference, send us a communication in writing to hello@arctail.com with “Complaint” in the Subject Line, and text including the following information:
(a) your username;
(b) your first and last name, as registered on your Customer Account;
(c) a detailed explanation of the complaint/claim;
(d) any specific dates and times associated with the complaint/claim (if applicable); and
(e) the remedy or action you are seeking from Arctail.
If We wish to initiate a Complaint, we will send a similar communication to You at the email and/or land address associated with your account.
Failure to submit a written communication with the information outlined above may result in a delay in our ability to identify and respond to your complaint/claim in a timely manner and will extend the 30 day time period for resolution before a formal arbitration may be commenced. Upon receipt of Your Complaint, we will endeavor to reply to your communication within 48 hours. Further, best efforts will be made to resolve any complaint/claim promptly and, at a maximum, within 30 days.
After 30 days have passed since the submission of your Complaint which included all of the information required in Section 10.3, if for some reason you are not satisfied with the resolution of your complaint/claim, you may then, and only then, pursue an arbitration claim as provided in Section 13 below. The same rule and requirement applies to Arctail.
The parties shall use their best efforts to settle any dispute, claim, question, or disagreement and engage in good faith negotiations which shall be a condition to either party initiating an arbitration claim as provided in these Terms. If the parties do not reach an agreed upon solution within a period of thirty (30) days from the time informal dispute resolution begins, then either party may initiate binding arbitration as the sole means to resolve claims, subject to these Terms. The aforementioned informal dispute resolution process is a prerequisite and condition precedent to commencing any formal dispute resolution proceeding, including litigation if You have successfully opt-out of the arbitration agreement. The parties agree that any relevant limitations period and filing fees or other deadlines will be tolled solely by the amount of time the parties initiate and engage in this informal dispute resolution process.
Regardless of whether you decide to opt out of arbitration, pursuant to this Agreement, the terms set forth in this Section 10.3 Initial Dispute Resolution shall remain in full force and effect.
10.3. INITIAL DISPUTE RESOLUTION PROCEDURE
Before You assert any claim for damages or relief of any kind in an arbitration proceeding as provided for in this Section, the parties shall make a good faith attempt to resolve the dispute by following the procedure in this Section 10.3. The parties agree, before either party may initiate or demand arbitration against the other, we will individually and personally meet and confer, by telephone or videoconference, in a good-faith effort to resolve informally any claim covered by these Terms. Multiple individuals with disputes cannot participate in the same informal telephonic dispute resolution conference. If you are represented by counsel (which such representation will be at your sole cost and expense), your counsel may participate in the conference, but you shall also attend and participate in the conference.
The party initiating the claim must give notice to the other party in writing of its intent to initiate an informal dispute resolution conference, which shall occur within thirty (30) days after the other party receives such notice, unless an extension is mutually agreed upon by the parties. To notify Arctail that you intend to initiate an informal dispute resolution conference, send us a communication in writing to hello@arctail.com with “Complaint” in the Subject Line, and text including the following information:
(a) your username;
(b) your first and last name, as registered on your Customer Account;
(c) a detailed explanation of the complaint/claim;
(d) any specific dates and times associated with the complaint/claim (if applicable); and
(e) the remedy or action you are seeking from Arctail.
If We wish to initiate a Complaint, we will send a similar communication to You at the email and/or land address associated with your account.
Failure to submit a written communication with the information outlined above may result in a delay in our ability to identify and respond to your complaint/claim in a timely manner and will extend the 30 day time period for resolution before a formal arbitration may be commenced. Upon receipt of Your Complaint, we will endeavor to reply to your communication within 48 hours. Further, best efforts will be made to resolve any complaint/claim promptly and, at a maximum, within 30 days.
After 30 days have passed since the submission of your Complaint which included all of the information required in Section 10.3, if for some reason you are not satisfied with the resolution of your complaint/claim, you may then, and only then, pursue an arbitration claim as provided in Section 13 below. The same rule and requirement applies to Arctail.
The parties shall use their best efforts to settle any dispute, claim, question, or disagreement and engage in good faith negotiations which shall be a condition to either party initiating an arbitration claim as provided in these Terms. If the parties do not reach an agreed upon solution within a period of thirty (30) days from the time informal dispute resolution begins, then either party may initiate binding arbitration as the sole means to resolve claims, subject to these Terms. The aforementioned informal dispute resolution process is a prerequisite and condition precedent to commencing any formal dispute resolution proceeding, including litigation if You have successfully opt-out of the arbitration agreement. The parties agree that any relevant limitations period and filing fees or other deadlines will be tolled solely by the amount of time the parties initiate and engage in this informal dispute resolution process.
Regardless of whether you decide to opt out of arbitration, pursuant to this Agreement, the terms set forth in this Section 10.3 Initial Dispute Resolution shall remain in full force and effect.
11. BINDING ARBITRATION & CLASS ACTION WAIVER AGREEMENT
PLEASE READ THIS ARBITRATION & CLASS ACTION WAIVER AGREEMENT (the
“Agreement”) CAREFULLY. THIS AGREEMENT INCLUDES A MANDATORY ARBITRATION
PROVISION WHICH SETS FORTH HOW PAST, PENDING OR FUTURE DISPUTES BETWEEN
YOU AND ARCTAIL, INC. SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION
ON AN INDIVIDUAL BASIS ONLY AND FOR YOUR OWN LOSSES ONLY. UNDER THIS
AGREEMENT, YOU MAY NOT PROCEED AS A CLASS REPRESENTATIVE, MEMBER OR PART
OF ANY PROPOSED CLASS, COLLECTIVE ACTION OR MASS ARBITRATION, PRIVATE
ATTORNEY GENERAL SUIT OR ANY REPRESENTATIVE PROCEEDING, OR OTHERWISE SEEK
TO RECOVER ON BEHALF OF OTHERS OR FOR THE BENEFIT OF OTHERS IN ANY TYPE OF
CLAIM OR ACTION. ARBITRATION MEANS YOU WILL NOT BE ABLE TO SEEK DAMAGES IN
COURT OR PRESENT YOUR CASE TO A JURY.
11.1. ACCEPTANCE OF TERMS
By using, or otherwise accessing the Service, or clicking to accept or agree to this Agreement where that option is made available, you accept and agree to this Agreement. If you do not agree to this Agreement, then you may not access or use the Platform or Service. All of your activity on the Website or Platform and all or your transactions with Arctail, including all events which occurred before your acceptance of this Agreement, are subject to this Agreement.
11.2. SCOPE OF AGREEMENT TO ARBITRATE
You and Arctail agree that any past, pending, or future dispute, claim or controversy arising out of or relating to any purchase or transaction by You, your access to or use of any Platform or the Service, or to this Agreement, the Terms of Use, the Sweepstakes Rules or Privacy Policy (including without limitation any dispute concerning the breach, enforcement, construction, validity, interpretation, enforceability, or arbitrability of this Agreement or the Terms of Use) (a “Dispute”), shall be determined by arbitration, including claims that arose before acceptance of any version of this Agreement, except that you and Arctail are NOT required to arbitrate any Dispute in which either party seeks equitable and other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. In addition, in the event of any Dispute concerning or relating to this Agreement — including the scope, validity, enforceability, or severability of this Agreement or its provisions, as well as the arbitrability of any claims—you and Arctail agree and delegate to the arbitrator the exclusive jurisdiction to rule on his or her own jurisdiction over the Dispute, including any objections with respect to the scope, validity, enforceability, or severability of this Agreement or its provisions, as well as the arbitrability of any claims or counterclaims presented as part of the Dispute.
11.3. Separate Agreement.
The parties acknowledge that this Agreement is a separate agreement between the parties governed by the Federal Arbitration Act, and that any alleged or determined invalidity or illegality of all or any part of the Terms of Use, the Service, the Platform, the Sweepstakes Rules or the Privacy Policy shall have no effect upon the validity and enforceability of this Agreement.
11.4. INITIATING ARBITRATION
Following the conclusion of the initial dispute resolution process required by this Agreement, you may seek arbitration of a Dispute in accordance with the provisions of this Agreement. The arbitration shall be conducted by the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rules (“AAA Rules”), except as modified by this Agreement. The AAA Rules are available on the AAA’s website www.adr.org, or by calling the AAA at (800) 778-7879, or its then current telephone number as provided on its web site, or by sending a written request to: The American Arbitration Association, 1101 Laurel Oak Road, Suite 100, Voorhees, NJ 08043. In the event the AAA is unavailable or unwilling to hear the dispute in accordance with this Agreement, the parties shall agree to, or a court shall select, another arbitration provider.
By signing a demand for arbitration, a party certifies, to the best of their knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (i) the demand for arbitration is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (ii) the claims and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (iii) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery. The Arbitrator shall be authorized to afford any relief or impose any sanctions available under Federal Rule of Civil Procedure 11 or any applicable state law for either party’s violation of this requirement.
11.5. OPTION AND PROCEDURE TO OPT OUT OF ARBITRATION
IF YOU HAVE NOT PREVIOUSLY AGREED TO AN ARBITRATION PROVISION IN CONNECTION WITH YOUR USE OF OUR SERVICE, YOU MAY OPT OUT OF THE AGREEMENT TO ARBITRATE BY FOLLOWING THE INSTRUCTIONS BELOW. IF YOU DO NOT OPT-OUT, THE ARBITRATION PROVISIONS WILL APPLY RETROACTIVELY TO ALL CLAIMS YOU MAY POSSESS, WHETHER ASSERTED TO DATE OR NOT.
IF YOU DO NOT WISH TO AGREE TO THE PROVISIONS OF THIS AGREEMENT REQUIRING ARBITRATION AND CLASS ACTION WAIVER AND YOU HAVE NOT PREVIOUSLY AGREED TO AN ARBITRATION PROVISION IN CONNECTION WITH YOUR USE OF OUR SERVICE, YOU MUST, WITHIN THIRTY (30) DAYS OF ENTERING THIS AGREEMENT, SEND AN E-MAIL FROM THE EMAIL ADDRESS ASSOCIATED WITH YOUR ACCOUNT to hello@arctail.com including THE WORDS “OPT OUT” IN THE SUBJECT LINE AND IN THE BODY OF THE EMAIL, YOUR FULL NAME, ADDRESS AND A STATEMENT THAT YOU WISH TO OPT-OUT OF ARBITRATION.
***EMAILS SENT TO OPT OUT AFTER THE 30 DAY PERIOD SHALL NOT BE EFFECTIVE.***
Whether to agree to arbitration is an important decision. It is your decision to make and you are not required to rely solely on the information provided in these terms of use. You should take reasonable steps to conduct further research and to consult with counsel (at your expense) regarding the consequences of your decision.
11.6. LOCATION OF ARBITRATION & APPLICABLE RULES
You and Arctail agree that:
(a) provided the Dispute involves solely individual claims for damages in accordance with the Agreement, the American Arbitration Association (“AAA”) will administer the arbitration under its Consumer Rules in effect at the time arbitration is sought, available at www.adr.org, and the arbitration shall be conducted via telephone or other remote electronic means. However, the parties agree: to select an arbitrator pursuant to the procedure set forth in R-12 of the Commercial Part Rules (instead of the Consumer Part Rules); that the AAA will only include arbitrators from the AAA National Registry Commercial Part list on the parties’ arbitrator selection list (instead of the Consumer list); and the AAA will only include arbitrators who are practicing attorneys or retired federal court judges who have at least ten years of substantive expertise in litigating and resolving of complex business disputes, including motions to compel arbitration and litigation or adjudication regarding whether disputes are arbitrable.
(b) You and Arctail agree that the arbitration of any Dispute shall proceed on an individual basis and neither you nor Arctail may bring a claim as a part of a Collective Arbitration.
(i) Without limiting the generality of the Agreement, and as an example only, a claim to resolve a Dispute against Arctail will be deemed a Collective Arbitration if: (a) two (2) or more similar claims for arbitration are pending concurrently by or on behalf of one or more claimants; and (b) counsel for the two or more claimants are the same, share fees or coordinate in any way across the arbitrations.
(c) If, notwithstanding the terms of this Agreement, to the extent a party attempts to assert any claims or seek relief on behalf of or for the use of other persons or a class under any theory, or in which injunctive relief is sought by a party that would significantly impact other Arctail users or the operation of the Platform, the Commercial Arbitration Rules shall apply and, as appropriate, the Supplementary Rules for Class Action of the AAA may apply.
(d) the applicable AAA rules will govern payment of all arbitration fees.
(e) except as otherwise may be required by the AAA Rules, the arbitration will be held in Philadelphia, Pennsylvania.
(f) the arbitrator shall be authorized to award any remedies, including injunctive relief, that would be available in an individual lawsuit and that are not waivable under applicable law, however, any relief must be individualized to you and shall not affect any other persons.
(g) except as and to the extent otherwise may be required by law, the arbitration proceeding, pleadings, and any award shall be confidential, except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement.
11.7. WAIVER OF CLASS RELIEF AND COLLECTIVE ACTION
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER YOU NOR ARCTAIL SHALL BE ENTITLED TO BRING, CONSOLIDATE, JOIN OR COORDINATE DISPUTES BY OR AGAINST OTHER INDIVIDUALS OR ENTITIES, OR PARTICIPATE IN ANY COLLECTIVE ARBITRATION OR ARBITRATE OR LITIGATE ANY DISPUTE IN A REPRESENTATIVE CAPACITY. YOU MAY ONLY ARBITRATE OR LITIGATE ON AN INDIVIDUAL BASIS ONLY AND FOR YOUR OWN LOSSES ONLY. UNDER THIS AGREEMENT, YOU MAY NOT PROCEED IN ARBITRATION OR COURT AS A CLASS REPRESENTATIVE, MEMBER OR PART OF ANY PROPOSED CLASS, COLLECTIVE ACTION OR MASS ARBITRATION, PRIVATE ATTORNEY GENERAL SUIT OR ANY REPRESENTATIVE PROCEEDING, OR OTHERWISE SEEK TO RECOVER ON BEHALF OF OTHERS OR FOR THE BENEFIT OF OTHERS IN ANY TYPE OF CLAIM OR ACTION. YOU AND ARCTAIL ARE EACH WAIVING RESPECTIVE RIGHTS TO PARTICIPATE IN A CLASS ACTION. BY ACCEPTING THIS AGREEMENT, YOU GIVE UP YOUR RIGHT TO PARTICIPATE IN ANY PAST, PENDING OR FUTURE CLASS ACTION OR ANY OTHER CONSOLIDATED OR REPRESENTATIVE PROCEEDING, INCLUDING ANY EXISTING AS OF THE DATE YOU AGREED TO THIS AGREEMENT. YOU ALSO EXPRESSLY WAIVE AND RELEASE, TO THE FULLEST EXTENT AVAILABLE AT LAW, ANY CLAIM PURPORTED TO BE ASSERTED BY ANY OTHER PERSON ON YOUR BEHALF OR FOR YOUR USE OR BENEFIT.
11.8. WAIVER OF JURY TRIAL.
EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE PLATFORM OR SERVICES OR ANY TRANSACTIONS BETWEEN THE PARTIES, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER THEORY.
11.9. SEVERABILITY
This Agreement applies solely to the extent permitted by law. If for any reason any provision of this Agreement or portion thereof, is found by a court of competent jurisdiction to be unlawful, void, or unenforceable, that part of this Agreement will be deemed severable and shall not affect the validity and enforceability of the remainder of this Agreement which shall continue in full force and effect. The parties agree further that if any part of this Agreement is deemed to be illegal, invalid, void or for any reason unenforceable, that the invalid or unenforceable provision should, to the greatest extent possible, be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision.
11.1. ACCEPTANCE OF TERMS
By using, or otherwise accessing the Service, or clicking to accept or agree to this Agreement where that option is made available, you accept and agree to this Agreement. If you do not agree to this Agreement, then you may not access or use the Platform or Service. All of your activity on the Website or Platform and all or your transactions with Arctail, including all events which occurred before your acceptance of this Agreement, are subject to this Agreement.
11.2. SCOPE OF AGREEMENT TO ARBITRATE
You and Arctail agree that any past, pending, or future dispute, claim or controversy arising out of or relating to any purchase or transaction by You, your access to or use of any Platform or the Service, or to this Agreement, the Terms of Use, the Sweepstakes Rules or Privacy Policy (including without limitation any dispute concerning the breach, enforcement, construction, validity, interpretation, enforceability, or arbitrability of this Agreement or the Terms of Use) (a “Dispute”), shall be determined by arbitration, including claims that arose before acceptance of any version of this Agreement, except that you and Arctail are NOT required to arbitrate any Dispute in which either party seeks equitable and other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. In addition, in the event of any Dispute concerning or relating to this Agreement — including the scope, validity, enforceability, or severability of this Agreement or its provisions, as well as the arbitrability of any claims—you and Arctail agree and delegate to the arbitrator the exclusive jurisdiction to rule on his or her own jurisdiction over the Dispute, including any objections with respect to the scope, validity, enforceability, or severability of this Agreement or its provisions, as well as the arbitrability of any claims or counterclaims presented as part of the Dispute.
11.3. Separate Agreement.
The parties acknowledge that this Agreement is a separate agreement between the parties governed by the Federal Arbitration Act, and that any alleged or determined invalidity or illegality of all or any part of the Terms of Use, the Service, the Platform, the Sweepstakes Rules or the Privacy Policy shall have no effect upon the validity and enforceability of this Agreement.
11.4. INITIATING ARBITRATION
Following the conclusion of the initial dispute resolution process required by this Agreement, you may seek arbitration of a Dispute in accordance with the provisions of this Agreement. The arbitration shall be conducted by the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rules (“AAA Rules”), except as modified by this Agreement. The AAA Rules are available on the AAA’s website www.adr.org, or by calling the AAA at (800) 778-7879, or its then current telephone number as provided on its web site, or by sending a written request to: The American Arbitration Association, 1101 Laurel Oak Road, Suite 100, Voorhees, NJ 08043. In the event the AAA is unavailable or unwilling to hear the dispute in accordance with this Agreement, the parties shall agree to, or a court shall select, another arbitration provider.
By signing a demand for arbitration, a party certifies, to the best of their knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (i) the demand for arbitration is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (ii) the claims and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (iii) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery. The Arbitrator shall be authorized to afford any relief or impose any sanctions available under Federal Rule of Civil Procedure 11 or any applicable state law for either party’s violation of this requirement.
11.5. OPTION AND PROCEDURE TO OPT OUT OF ARBITRATION
IF YOU HAVE NOT PREVIOUSLY AGREED TO AN ARBITRATION PROVISION IN CONNECTION WITH YOUR USE OF OUR SERVICE, YOU MAY OPT OUT OF THE AGREEMENT TO ARBITRATE BY FOLLOWING THE INSTRUCTIONS BELOW. IF YOU DO NOT OPT-OUT, THE ARBITRATION PROVISIONS WILL APPLY RETROACTIVELY TO ALL CLAIMS YOU MAY POSSESS, WHETHER ASSERTED TO DATE OR NOT.
IF YOU DO NOT WISH TO AGREE TO THE PROVISIONS OF THIS AGREEMENT REQUIRING ARBITRATION AND CLASS ACTION WAIVER AND YOU HAVE NOT PREVIOUSLY AGREED TO AN ARBITRATION PROVISION IN CONNECTION WITH YOUR USE OF OUR SERVICE, YOU MUST, WITHIN THIRTY (30) DAYS OF ENTERING THIS AGREEMENT, SEND AN E-MAIL FROM THE EMAIL ADDRESS ASSOCIATED WITH YOUR ACCOUNT to hello@arctail.com including THE WORDS “OPT OUT” IN THE SUBJECT LINE AND IN THE BODY OF THE EMAIL, YOUR FULL NAME, ADDRESS AND A STATEMENT THAT YOU WISH TO OPT-OUT OF ARBITRATION.
***EMAILS SENT TO OPT OUT AFTER THE 30 DAY PERIOD SHALL NOT BE EFFECTIVE.***
Whether to agree to arbitration is an important decision. It is your decision to make and you are not required to rely solely on the information provided in these terms of use. You should take reasonable steps to conduct further research and to consult with counsel (at your expense) regarding the consequences of your decision.
11.6. LOCATION OF ARBITRATION & APPLICABLE RULES
You and Arctail agree that:
(a) provided the Dispute involves solely individual claims for damages in accordance with the Agreement, the American Arbitration Association (“AAA”) will administer the arbitration under its Consumer Rules in effect at the time arbitration is sought, available at www.adr.org, and the arbitration shall be conducted via telephone or other remote electronic means. However, the parties agree: to select an arbitrator pursuant to the procedure set forth in R-12 of the Commercial Part Rules (instead of the Consumer Part Rules); that the AAA will only include arbitrators from the AAA National Registry Commercial Part list on the parties’ arbitrator selection list (instead of the Consumer list); and the AAA will only include arbitrators who are practicing attorneys or retired federal court judges who have at least ten years of substantive expertise in litigating and resolving of complex business disputes, including motions to compel arbitration and litigation or adjudication regarding whether disputes are arbitrable.
(b) You and Arctail agree that the arbitration of any Dispute shall proceed on an individual basis and neither you nor Arctail may bring a claim as a part of a Collective Arbitration.
(i) Without limiting the generality of the Agreement, and as an example only, a claim to resolve a Dispute against Arctail will be deemed a Collective Arbitration if: (a) two (2) or more similar claims for arbitration are pending concurrently by or on behalf of one or more claimants; and (b) counsel for the two or more claimants are the same, share fees or coordinate in any way across the arbitrations.
(c) If, notwithstanding the terms of this Agreement, to the extent a party attempts to assert any claims or seek relief on behalf of or for the use of other persons or a class under any theory, or in which injunctive relief is sought by a party that would significantly impact other Arctail users or the operation of the Platform, the Commercial Arbitration Rules shall apply and, as appropriate, the Supplementary Rules for Class Action of the AAA may apply.
(d) the applicable AAA rules will govern payment of all arbitration fees.
(e) except as otherwise may be required by the AAA Rules, the arbitration will be held in Philadelphia, Pennsylvania.
(f) the arbitrator shall be authorized to award any remedies, including injunctive relief, that would be available in an individual lawsuit and that are not waivable under applicable law, however, any relief must be individualized to you and shall not affect any other persons.
(g) except as and to the extent otherwise may be required by law, the arbitration proceeding, pleadings, and any award shall be confidential, except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement.
11.7. WAIVER OF CLASS RELIEF AND COLLECTIVE ACTION
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER YOU NOR ARCTAIL SHALL BE ENTITLED TO BRING, CONSOLIDATE, JOIN OR COORDINATE DISPUTES BY OR AGAINST OTHER INDIVIDUALS OR ENTITIES, OR PARTICIPATE IN ANY COLLECTIVE ARBITRATION OR ARBITRATE OR LITIGATE ANY DISPUTE IN A REPRESENTATIVE CAPACITY. YOU MAY ONLY ARBITRATE OR LITIGATE ON AN INDIVIDUAL BASIS ONLY AND FOR YOUR OWN LOSSES ONLY. UNDER THIS AGREEMENT, YOU MAY NOT PROCEED IN ARBITRATION OR COURT AS A CLASS REPRESENTATIVE, MEMBER OR PART OF ANY PROPOSED CLASS, COLLECTIVE ACTION OR MASS ARBITRATION, PRIVATE ATTORNEY GENERAL SUIT OR ANY REPRESENTATIVE PROCEEDING, OR OTHERWISE SEEK TO RECOVER ON BEHALF OF OTHERS OR FOR THE BENEFIT OF OTHERS IN ANY TYPE OF CLAIM OR ACTION. YOU AND ARCTAIL ARE EACH WAIVING RESPECTIVE RIGHTS TO PARTICIPATE IN A CLASS ACTION. BY ACCEPTING THIS AGREEMENT, YOU GIVE UP YOUR RIGHT TO PARTICIPATE IN ANY PAST, PENDING OR FUTURE CLASS ACTION OR ANY OTHER CONSOLIDATED OR REPRESENTATIVE PROCEEDING, INCLUDING ANY EXISTING AS OF THE DATE YOU AGREED TO THIS AGREEMENT. YOU ALSO EXPRESSLY WAIVE AND RELEASE, TO THE FULLEST EXTENT AVAILABLE AT LAW, ANY CLAIM PURPORTED TO BE ASSERTED BY ANY OTHER PERSON ON YOUR BEHALF OR FOR YOUR USE OR BENEFIT.
11.8. WAIVER OF JURY TRIAL.
EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE PLATFORM OR SERVICES OR ANY TRANSACTIONS BETWEEN THE PARTIES, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER THEORY.
11.9. SEVERABILITY
This Agreement applies solely to the extent permitted by law. If for any reason any provision of this Agreement or portion thereof, is found by a court of competent jurisdiction to be unlawful, void, or unenforceable, that part of this Agreement will be deemed severable and shall not affect the validity and enforceability of the remainder of this Agreement which shall continue in full force and effect. The parties agree further that if any part of this Agreement is deemed to be illegal, invalid, void or for any reason unenforceable, that the invalid or unenforceable provision should, to the greatest extent possible, be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision.
12. DEACTIVATION / LIMITATION / SUSPENSION OF ACCOUNT
12.1. Arctail hereby reserves the right to deactivate, limit, or suspend
your Customer Account for any reason whatsoever at any time without
notifying you.
12.2. Without limiting Section 12.1, we hereby reserve the right, at our sole discretion, to deactivate or suspend your Customer Account (notwithstanding any other provision contained in these Terms of Use) where we have reason to believe that you have engaged or are likely to engage in any of the following activities:
(a) you breached, or assisted another party to breach, any provision of these Terms of Use or the Sweepstakes Rules, or we have a reasonable ground to suspect such breach;
(b) you have more than one Customer Account on any Platform;
(c) the name registered on your Customer Account does not match the name on the financial/bank account and/or the credit/debit card(s) used to make purchases on the said Customer Account;
(d) your communication with us through email, social media, or other means consists of harassment or offensive behavior or comments, including (but not limited to) threatening, derogatory, abusive or defamatory statements or remarks, libel, and/or publishing publicly such statements about the Company or individuals associated with the Company;
(e) your Customer Account is deemed to be an Inactive Account;
(f) you become bankrupt;
(g) you provide incorrect or misleading information while registering or verifying a Customer Account including, but not limited to, name, state of residence, date of birth and/or any other identity details;
(h) your identity cannot be verified;
(i) you attempt to use your Customer Account through a VPN, proxy or similar service that masks or manipulates the identification of your real location, or by otherwise providing false or misleading information regarding your citizenship, location or place of residence, or by playing Games using the website through a third party or on behalf of a third party;
(j) you are not over 18 years of age;
(k) you are located in or participated from an Excluded Territory;
(l) you have allowed or permitted (whether intentionally or unintentionally) someone else to participate using your Customer Account;
(m) you have played in tandem with other Player(s) as part of a club, group, etc., or played the Games in a coordinated manner with other Player(s) involving the same (or materially the same) selections;
(n) where Arctail has received a “charge back”, claim or dispute and/or a “return” notification via a payment mechanism used on your financial/bank account or online wallet;
(o) you have failed our due diligence procedures, or are found to be colluding, cheating, money laundering or undertaking any kind of fraudulent activity;
(p) it is determined by Arctail that you have employed or made use of any system (including, but not limited to, machines, computers, software or other automated systems such as bots) designed specifically to gain an unfair advantage and/or intentionally exploit mispriced markets that may be available occasionally on the Platform; or
(q) it is determined by Arctail that you intentionally and knowingly exploited (or attempted to exploit) system or data errors by making picks on obviously incorrect markets and lines (e.g. past post, reversed lines, and others.)
12.3. If Arctail deactivates or suspends your Customer Account for any of the reasons referred to in Section 12.2 above, you will be liable for any and all claims, losses, liabilities, damages, costs and expenses incurred or suffered by Arctail (together “Claims” ) arising therefrom and you will indemnify and hold Arctail Inc. harmless on demand for such Claims.
12.4. If we have reasonable grounds to believe that you have participated in any of the activities set out in Section 12.2 above, then we reserve the right to withhold all or part of the balance and/or recover from your Customer Account any Prizes or virtual funds that are attributable to any of the activities contemplated in Section 12.2. In such circumstances, your details may be passed on to any applicable regulatory authority, regulatory body or any other relevant external third parties.
12.5. If your Customer Account is confirmed to have been deactivated due to fraudulent or illegal activity by you, the redeemed value of any Prizes credited to your Customer Account will be forfeited.
12.6. Arctail is a platform for recreational use only. If your Customer Account is determined, in our best judgment, to be professional or non-recreational, we reserve the right to limit your ability to play.
12.7. If your Customer Account is deactivated, limited, or suspended you, and other members of your household, are not permitted to open a new account, unless expressly authorized by Arctail in writing.
12.8. The rights set out in this Section 12 are without prejudice to any other rights that we may have against you under these Terms of Use or otherwise.
12.2. Without limiting Section 12.1, we hereby reserve the right, at our sole discretion, to deactivate or suspend your Customer Account (notwithstanding any other provision contained in these Terms of Use) where we have reason to believe that you have engaged or are likely to engage in any of the following activities:
(a) you breached, or assisted another party to breach, any provision of these Terms of Use or the Sweepstakes Rules, or we have a reasonable ground to suspect such breach;
(b) you have more than one Customer Account on any Platform;
(c) the name registered on your Customer Account does not match the name on the financial/bank account and/or the credit/debit card(s) used to make purchases on the said Customer Account;
(d) your communication with us through email, social media, or other means consists of harassment or offensive behavior or comments, including (but not limited to) threatening, derogatory, abusive or defamatory statements or remarks, libel, and/or publishing publicly such statements about the Company or individuals associated with the Company;
(e) your Customer Account is deemed to be an Inactive Account;
(f) you become bankrupt;
(g) you provide incorrect or misleading information while registering or verifying a Customer Account including, but not limited to, name, state of residence, date of birth and/or any other identity details;
(h) your identity cannot be verified;
(i) you attempt to use your Customer Account through a VPN, proxy or similar service that masks or manipulates the identification of your real location, or by otherwise providing false or misleading information regarding your citizenship, location or place of residence, or by playing Games using the website through a third party or on behalf of a third party;
(j) you are not over 18 years of age;
(k) you are located in or participated from an Excluded Territory;
(l) you have allowed or permitted (whether intentionally or unintentionally) someone else to participate using your Customer Account;
(m) you have played in tandem with other Player(s) as part of a club, group, etc., or played the Games in a coordinated manner with other Player(s) involving the same (or materially the same) selections;
(n) where Arctail has received a “charge back”, claim or dispute and/or a “return” notification via a payment mechanism used on your financial/bank account or online wallet;
(o) you have failed our due diligence procedures, or are found to be colluding, cheating, money laundering or undertaking any kind of fraudulent activity;
(p) it is determined by Arctail that you have employed or made use of any system (including, but not limited to, machines, computers, software or other automated systems such as bots) designed specifically to gain an unfair advantage and/or intentionally exploit mispriced markets that may be available occasionally on the Platform; or
(q) it is determined by Arctail that you intentionally and knowingly exploited (or attempted to exploit) system or data errors by making picks on obviously incorrect markets and lines (e.g. past post, reversed lines, and others.)
12.3. If Arctail deactivates or suspends your Customer Account for any of the reasons referred to in Section 12.2 above, you will be liable for any and all claims, losses, liabilities, damages, costs and expenses incurred or suffered by Arctail (together “Claims” ) arising therefrom and you will indemnify and hold Arctail Inc. harmless on demand for such Claims.
12.4. If we have reasonable grounds to believe that you have participated in any of the activities set out in Section 12.2 above, then we reserve the right to withhold all or part of the balance and/or recover from your Customer Account any Prizes or virtual funds that are attributable to any of the activities contemplated in Section 12.2. In such circumstances, your details may be passed on to any applicable regulatory authority, regulatory body or any other relevant external third parties.
12.5. If your Customer Account is confirmed to have been deactivated due to fraudulent or illegal activity by you, the redeemed value of any Prizes credited to your Customer Account will be forfeited.
12.6. Arctail is a platform for recreational use only. If your Customer Account is determined, in our best judgment, to be professional or non-recreational, we reserve the right to limit your ability to play.
12.7. If your Customer Account is deactivated, limited, or suspended you, and other members of your household, are not permitted to open a new account, unless expressly authorized by Arctail in writing.
12.8. The rights set out in this Section 12 are without prejudice to any other rights that we may have against you under these Terms of Use or otherwise.
13. INDEMNITY AND LIMITATION OF LIABILITY
Indemnity
13.1. YOU HEREBY AGREE TO INDEMNIFY AND HOLD HARMLESS (INCLUDING REASONABLE
ATTORNEY’S FEES AND COSTS OF SUIT) ARCTAIL, ITS DIRECTORS, OFFICERS, EMPLOYEES,
SHAREHOLDERS, AGENTS, AFFILIATES, CONSULTANTS, SUPPLIERS, ADVERTISERS, PAYMENT
SERVICES PROMOTERS, PARTNERS, AND THEIR AGENTS, EMPLOYEES, OFFICERS, AND DIRECTORS,
OUR ULTIMATE PARENT AND PARENT COMPANIES AND ANY OF OUR OR THEIR SUBSIDIARIES
AGAINST ANY AND ALL COSTS, EXPENSES, LIABILITIES AND DAMAGES (WHETHER DIRECT,
INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE OR OTHER) ARISING FROM
ANY PARTICIPATION BY YOU, INCLUDING WITHOUT LIMITATION:
(a) VISITING, USE OR RE-USE OF THE PLATFORM;
(b) USE OR RE-USE OF THE PLATFORM BY MEANS OF TELECOMMUNICATION SERVICES;
(c) RE-USE OF ANY MATERIALS AT, OR OBTAINED FROM, THE PLATFORM OR ANY OTHER SOURCE WHATSOEVER;
(d) ENTRY TO, OR USE OR RE-USE OF THE PLATFORM SERVERS;
(e) FACILITATING OR MAKING A PAYMENT INTO YOUR CUSTOMER ACCOUNT;
(f) PLAYING THE GAMES THROUGH ANY DELIVERY MECHANISM OFFERED; AND
(g) ACCEPTANCE AND USE OF ANY PRIZE.
Limitation of Liability
13.2. BY ACCESSING, USING OR DOWNLOADING THE SERVICE, YOU ACKNOWLEDGE AND AGREE THAT SUCH USE IS AT YOUR OWN RISK AND THAT NONE OF THE PARTIES INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICE OR ARCTAIL, OR ANY OF ITS AFFILIATES, SUBSIDIARIES OR ANY OF THEIR EMPLOYEES, AGENTS OR CONTRACTORS (COLLECTIVELY “RELEASED PARTIES”) ARE LIABLE FOR ANY DIRECT, INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES, OR ANY OTHER LOSSES, COSTS, OR EXPENSES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF DATA, LEGAL FEES, EXPERT FEES, COST OF PROCURING SUBSTITUTE SERVICES, LOST OPPORTUNITY, OR OTHER DISBURSEMENTS) WHICH MAY ARISE, DIRECTLY OR INDIRECTLY, THROUGH THE ACCESS TO, USE OF, AND/OR RELIANCE ON ANY MATERIAL OR CONTENT ON THE SERVICE OR PLATFORM, OR BROWSING OF THE SERVICE OR THROUGH YOUR DOWNLOADING OF ANY MATERIALS, DATA, TEXT, IMAGES, VIDEO OR AUDIO FROM THE SERVICE OR WEBSITE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13.3. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE TOTAL LIABILITY OF THE RELEASED PARTIES TO YOU IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE, FOR ANY LOSS OR DAMAGE WHATSOEVER ARISING FROM ANY CAUSE, WHETHER DIRECT OR INDIRECT, OR FOR ANY AMOUNTS (EVEN WHERE WE HAVE BEEN NOTIFIED BY YOU OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE) EXCEED THE VALUE OF THE ARCTAIL COIN PURCHASES YOU HAVE MADE VIA YOUR CUSTOMER ACCOUNT IN RESPECT OF THE RELEVANT GAME OR PRODUCT THAT GAVE RISE TO THE RELEVANT LIABILITY. THE RELEASED PARTIES ACCEPT NO LIABILITY FOR ANY LOSS OR DAMAGE WHATSOEVER ARISING BEYOND THIS AMOUNT WHICH IS DEEMED OR ALLEGED TO HAVE ARISEN OUT OF OR IN CONNECTION WITH YOUR PARTICIPATION. THIS INCLUDES, WITHOUT LIMITATION, DELAYS OR INTERRUPTIONS IN OPERATION OR TRANSMISSION, LOSS OR CORRUPTION OF DATA, COMMUNICATION OR LINES FAILURE, ANY PERSON’S MISUSE OF THE GAMES OR THE PLATFORM OR THEIR CONTENT OR ANY ERRORS OR OMISSIONS IN THE CONTENT OF THE GAMES OR THE PLATFORM.
Statute of Limitations
13.4. You and Arctail agree that any claims, regardless of form, arising out
of or related to the Platform (including the Service) or these Terms of Use
or Privacy Policy must BE FILED within ONE (1) YEAR of the action, omission,
event or occurrence giving rise to the claim or suit, after which such claims
will be time-barred and prohibited, without regard to any longer period of
time which may be provided by any period of limitation or repose by law or
statute.
Negligence
13.5. NOTHING IN THESE TERMS OF USE WILL OPERATE SO AS TO EXCLUDE ANY LIABILITY
OF ARCTAIL INC. FOR FRAUD, DEATH OR PERSONAL INJURY THAT IS CAUSED BY ARCTAIL
INC’S NEGLIGENCE.
14. ARCTAIL INC. NOT A FINANCIAL INSTITUTION
Interest
14.1. You will not receive any interest on outstanding Prizes and you will not treat Arctail as a financial institution.
No legal or tax advice
14.2. Arctail does not provide advice regarding tax and/or legal matters. Players who wish to obtain advice regarding tax and legal matters are advised to contact appropriate experts and advisors in the field.
No arbitrage
14.3. You are strictly prohibited from utilizing the Service and the systems of Arctail to facilitate arbitrage through currency exchange transactions. Where Arctail deems that you have deliberately used the systems for financial gain through arbitrage, any gains will be forfeited and deducted from your balance without warning or notification.
15. OTHER
Entire Agreement
15.1. These Terms of Use, along with the Binding Arbitration and Class Action Waiver Agreement, constitute the entire agreement between you and us with respect to your use of the Platform or Service and supersede all prior agreements or contemporaneous communications and proposals, whether electronic, oral or written.
Survival
15.2. SECTIONS 4, 5, 8, 11, 13, 15.3 and 15.13 SHALL BE DEEMED TO SURVIVE THE TERMINATION OF THESE TERMS OF USE OR YOUR ACCOUNT FOR ANY REASON.
Tax
15.3. You are solely responsible for any state, local or federal taxes which may apply to Your use of the Service.
Force Majeure
15.4. Arctail Inc. will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under these Terms of Use that is caused by events outside of our reasonable control, including but not limited to an act of God, hurricane, war, fire, riot, earthquake, weather, pandemic or endemic, terrorism, act of public enemies, strikes, labor shortage, actions of governmental authorities or other force majeure event.
No agency
15.5. Nothing in these Terms of Use will be construed as creating any agency, partnership, trust arrangement, fiduciary relationship, or any other form of joint enterprise between you and us.
Severability
15.6. If any of the Terms of Use are determined by any competent authority to be invalid, unlawful, or unenforceable to any extent, such term, condition or provision will, to that extent, be severed from these Terms of Use. All remaining terms, conditions and provisions will continue to be valid to the fullest extent permitted by law. In such cases, the part deemed invalid or unenforceable will be amended in a manner consistent with the applicable law to reflect, as closely as possible, the intent of the original provision.
Explanation of Terms of Use
15.7. We consider these Terms of Use to be open and fair. If you need any explanation regarding these Terms of Use or any other part of our Service contact hello@arctail.com
15.8. The Terms of Use prevail over any communication via email or chat.
15.9. All correspondence between you and us may be recorded.
Assignment
15.10. These Terms of Use are personal to you, and are not assignable, transferable, or sub-licensable by you except with our prior written consent. We reserve the right to assign, transfer or delegate any of our rights and obligations hereunder to any third party without notice to you.
Business Transfers
15.11. In the event of a change of control, merger, acquisition, or sale of assets of Arctail Inc., your Customer Account and associated data may be part of the assets transferred to the purchaser or acquiring party. In such an event, we will provide you with notice via email or via our Platform explaining your options regarding the transfer of your Customer Account.
Language
15.12. These Terms of Use may be published in several languages for information purposes and ease of access by players, but will all reflect the same principles. It is only the English version that is the legal basis of the relationship between you and us and in case of any discrepancy between a non-English version and the English version of these Terms of Use, the English version will prevail.
Applicable Law, Jurisdiction and Venue
15.13. All issues and questions concerning the construction, validity, interpretation and enforceability of these Terms of Use, shall be governed by, and construed in accordance with, the laws of the State of Pennsylvania, without giving effect to any choice of law or conflict of law rules (whether of the State of Pennsylvania or any other jurisdiction), which would cause the application of the laws of any jurisdiction other than the State of Pennsylvania. To the extent any lawsuit is filed by the Parties in the limited circumstances allowed by the Binding Arbitration and Class Action Waiver Agreement, the parties agree that such litigation shall be subject to the exclusive venue of state or federal courts located in Philadelphia, Pennsylvania, and the parties further agree that they are subject to the specific jurisdiction of such courts and waive any right to contest jurisdiction or transfer venue.