Terms of Service

Last Changes to Terms of Service:      March 13th, 2020

 

The policies below are applicable to all apps published by Tenacious Entertainment, LLC and its related companies; the Tenacious network of websites, including the website located at www.tenaciousentertainment.com (including any versions optimized for viewing on a wireless or tablet device); all e-mail newsletters published or distributed by; and all other interactive features and communications provided by Tenacious Entertainment, however accessed and/or used, that are operated by us, made available by us, or produced and maintained by Tenacious Entertainment (collectively “Tenacious” or “we”, “us”, or “our”) (“App”). BY USING OUR APP, YOU ARE ACCEPTING THE PRACTICES DESCRIBED IN THESE TERMS OF SERVICE.  IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, PLEASE DO NOT USE THE APP AND EXIT IMMEDIATELY. WE RESERVE THE RIGHT TO MODIFY OR AMEND THESE TERMS OF SERVICE FROM TIME TO TIME WITHOUT NOTICE. YOUR CONTINUED USE OF OUR APP FOLLOWING THE POSTING OF CHANGES TO THESE TERMS WILL MEAN YOU ACCEPT THOSE CHANGES. UNLESS WE PROVIDE YOU WITH SPECIFIC NOTICE, NO CHANGES TO OUR TERMS OF USE WILL APPLY RETROACTIVELY.  You may be able to access and view some materials for free and without registering for an account, but certain features may only be available if you (a) register for an account and sign in to the associated service; or (b) if you subscribe to the service and pay the associated subscription fee.

 

YOU MUST BE THIRTEEN YEARS OF AGE OR OLDER TO REGISTER AND USE THE APP.  YOU MUST BE EIGHTEEN YEARS OF AGE OR OLDER TO CONTRIBUTE USER SUBMISSIONS TO THE APP.  TENACIOUS WILL DELETE ANY USER SUBMISSIONS WHERE IT DISCOVERS THE CONTRIBUTOR IS UNDER 18 YEARS OF AGE.

 

PLEASE READ THESE TERMS OF SERVICE CAREFULLY. IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS INCLUDING MANDATORY ARBITRATION, NO CLASS RELIEF, AND WAIVER OF YOUR RIGHT TO A JURY TRIAL.  PLEASE TAKE A FEW MINUTES TO REVIEW SECTION 28.

 

This is a legal agreement between you (“you” or “user”) and Tenacious that states the material terms and conditions that govern your use of the App.  This agreement, together with all updates, supplements, additional terms, and all of Tenacious’ rules and policies collectively constitute this “Agreement” between you and Tenacious. BY ACCESSING THE APP, YOU AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF SERVICE AND CONDITIONS OF USE STATED HEREIN, PLEASE DO NOT USE THIS APP AND DELETE THE APP FROM YOUR DEVICE.

 

You are responsible for all internet access, mobile data or other charges incurred when using the Discovery Sites. Remember that streaming and downloading audio-visual content such as videos and games can use up a lot of data.

 

  1. Apple Disclaimer. The following paragraph applies to any version of the Services that you acquire from the Apple App Store.  This Agreement is entered into between You and Tenacious.  Apple, Inc. (“Apple”) is not a party to this Agreement and shall have no obligations with respect to the App.  Tenacious, not Apple, is solely responsible for the App and the content thereof as set forth hereunder.  However, Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement.  Upon Your acceptance of this Agreement, Apple shall have the right (and will be deemed to have accepted the right) to enforce this Agreement against You as a third party beneficiary thereof.  You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S Government list of prohibited or restricted parties.  This Agreement incorporates by reference the Licensed Application End User License Agreement published by Apple, for purposes of which, You are “the end-user.” In the event of a conflict in the terms of the Licensed Application End User License Agreement and this Agreement, the terms of this Agreement shall control.

 

  1. Access License. Tenacious grants you a limited, revocable, non-exclusive, non-transferable license to access and make use of the App or its content. This license does not include any resale or commercial use of the App or its contents, or any use of data mining, robots, or similar data gathering and extraction tools. Except as expressly permitted herein, the App and/or any portion of the App, including without limitation your account or any virtual goods or items that are part of your account, may not be reproduced, sold, resold, visited or otherwise exploited for any purpose without Tenacious’ express written consent. Any unauthorized use, unauthorized sale or resale, or any attempt to bypass any limitations places on the App, including those limitations designed to ensure fair play, automatically terminates the permissions and/or licenses granted by us to you. Some features may not be available on all devices.

 

  1. Copyright and Ownership. All of the content featured or displayed on the App, including without limitation text, graphics, photographs, images, moving images, sound, and illustrations (“Content”), is owned by Tenacious, its licensors, vendors, agents and/or its Content providers. All elements of the App, including without limitation the general design and the Content, are protected by trade dress, copyright, moral rights, trademark and other laws relating to intellectual property rights. The App may only be used for the intended purpose for which such App is being made available. Except as permitted by copyright law, you may not modify any of the materials and you may not copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer or sell any information or work contained on the App. Except as authorized under the copyright laws, you are responsible for obtaining permission before reusing any copyrighted material that is available on the App. You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of the App. The App, its Content and all related rights shall remain the exclusive property of Tenacious or its licensors, vendors, agents, and/or its Content providers unless otherwise expressly agreed. You will not remove any copyright, trademark or other proprietary notices from material found on the App.

 

  1. Virtual Items. Notwithstanding any provision to the contrary herein, you agree that you have no right or title in or to any content that appears in the App, including without limitation the virtual goods or currency appearing or originating in any Tenacious game, whether earned in a game or purchased from Tenacious, or any other attributes associated with your account or stored on or in the App.

 

  1. Trademarks/No Endorsement. All trademarks, service marks and trade names of Tenacious used herein (including but not limited to: Tenacious name, Tenacious corporate logo, the App name, the App design, and any logos) (collectively “Marks”) are trademarks or registered trademarks of Tenacious or its affiliates, partners, vendors or licensors. You may not use, copy, reproduce, republish, upload, post, transmit, distribute, or modify Tenacious trademarks in any way, including in advertising or publicity pertaining to distribution of materials on the App, without Tenacious’ prior written consent. You shall not use Tenacious’ name or any language, pictures or symbols which could, in Tenacious’ judgment, imply Tenacious’ endorsement in any (i) written or oral advertising or presentation, or (ii) brochure, newsletter, book, or other written material of whatever nature, without prior written consent.

 

  1. Account Registration and Security. You understand that you will need to create an account to have access to all of the parts of the App. You will: (a) provide true, accurate, current and complete information about yourself as prompted by the App’s registration or subscription page (such information being the “Registration Data”) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Tenacious has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Tenacious has the right to suspend or terminate your account and refuse any and all current or future use of the App (or any portion thereof).  You are entirely responsible for the security and confidentiality of your password and account. Furthermore, you are entirely responsible for any and all activities that occur under your account.  You will not share your account information or your user name and password with any third party or permit any third party to logon to the App using your account information.  You agree to immediately notify us of any unauthorized use of your account or any other breach of security of which you become aware. You are responsible for taking precautions and providing security measures best suited for your situation and intended use of the App. We have the right to provide user billing, account, Content or use records, and related information under certain circumstances (such as in response to legal responsibility, lawful process, orders, subpoenas, or warrants, or to protect our rights, customers or business). Please note that anyone able to provide your personally identifiable information will be able to access your account so you should take reasonable steps to protect this information.

 

  1. Solicited Submission Policy. Where Tenacious has specifically invited or requested submissions or comments, Tenacious encourages you to submit content (e.g. comments to blog posts, participation in communities, tips, etc.) to Tenacious that they have created for consideration in connection with the Site (“User Submissions”).  User Submissions remains the intellectual property of the individual user. By posting content on our Site, you expressly grant Tenacious a non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up worldwide, fully sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, transmit, perform and display such content and your name, voice, and/or likeness as contained in your User Submission, in whole or in part, and in any form throughout the world in any media or technology, whether now known or hereafter discovered, including all promotion, advertising, marketing, merchandising, publicity and any other ancillary uses thereof, and including the unfettered right to sublicense such rights, in perpetuity throughout the universe. Any such User Submissions are deemed non-confidential and Tenacious shall be under no obligation to maintain the confidentiality of any information, in whatever form, contained in any User Submission.

 

  1. Inappropriate User Submissions. All User Submissions will comply with these terms and any other applicable posted policies.  In particular, Tenacious does not encourage, and does not seek User Submissions that result from any activity that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; or (iii) may constitute a crime or tort.  You agree that you have not and will not engage in any of the foregoing activities in connection with producing your User Submission. Without limiting the foregoing, you agree that in conjunction with your submission, you will not inflict emotional distress on other people, will not humiliate other people (publicly or otherwise), will not assault or threaten other people, will not enter onto private property without permission, will not impersonate any other person or misrepresent your affiliation, title, or authority, and will not otherwise engage in any activity that may result in injury, death, property damage, and/or liability of any kind. Tenacious will reject any User Submissions in which Tenacious believes, in its sole discretion, that any such activities have occurred.  If notified by a user of a submission that allegedly violates any provision of these Terms of Use, Tenacious reserves the right to determine, in its sole discretion, if such a violation has occurred, and to remove any such submission from the App at any time and without notice.

 

  1. Inappropriate Material. You are prohibited from using the App to post or send any unlawful, infringing, threatening, defamatory, libelous, obscene, pornographic or profane material or any material that infringes or misappropriates third party intellectual property or could constitute or encourage conduct that would be considered a criminal offense or otherwise violate any law. You further agree that sending or posting unsolicited advertisements or “spam” on or through the App is expressly prohibited by this Agreement. In addition to any remedies that we may have at law or in equity, if we determine, in our sole discretion, that you have violated or are likely to violate the foregoing prohibitions or any applicable rules or policies linked to in these Terms of Service, we may take any action we deem necessary to cure or prevent the violation, including without limitation, banning you from using the App and/or the immediate removal of the related materials from the App at any time without notice. We will fully cooperate with any law enforcement authorities or court order or subpoena requesting or directing us to disclose the identity of anyone posting such materials.

 

  1. Access and Interference. You agree that you will not use any robot, spider, scraper or other automated means to access the App for any purpose without our express written permission. Additionally, you agree that you will not: (i) take any action that imposes, or may impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure; (ii) interfere or attempt to interfere with the proper working of the site or any activities conducted on the App; or (iii) bypass any measures we may use to prevent or restrict access to the App.

 

  1. Right to Takedown Content. Except as disclosed in our Privacy Policy, we will not monitor, edit, or disclose the contents of a user’s e-mail or Content posted to the App unless required in the course of normal maintenance of the App and its systems or unless required to do so by law or in the good-faith belief that such action is necessary to: (1) comply with the law or comply with legal process served on Tenacious or the App; (2) protect and defend the rights or property of Tenacious, the App, or the users of the App; or (3) act in an emergency to protect the personal safety of our users, the App, or the public. Users shall remain solely responsible for the content of their messages and Tenacious shall have no obligation to prescreen any such content. However, we shall have the right in our sole discretion to edit, refuse to post or remove any material submitted to or posted on the App at any time without notice. Without limiting the foregoing, we shall have the right to remove any material that we find to be in violation of the provisions hereof or otherwise objectionable, and the additional right to deny any user who fails to conform to any provision of these Terms of Service access to the App or any part thereof.

 

  1. User Published Content. User published Content and User Submissions do not represent the views of Tenacious or any individual associated with Tenacious, and we do not control this Content. In no event shall you represent or suggest, directly or indirectly, Tenacious’ endorsement of user published Content. Tenacious does not vouch for the accuracy or credibility of any user published Content on our App or User Submissions published through our Services, and do not take any responsibility or assume any liability for any actions you may take as a result of reviewing any such user published Content or User Submission. Through your use of the App and Services, you may be exposed to Content that you may find offensive, objectionable, harmful, inaccurate or deceptive. There may also be risks of dealing with underage persons, people acting under false pretense, international trade issues and foreign nationals. By using our App and Services, you assume all associated risks.

 

  1. Advertising Rights. Tenacious reserves the right to sell, license and/or display any advertising, attribution, links, promotional and/or distribution rights in connection with the App, and Tenacious and its licensors or affiliates will be entitled to retain any and all revenue generated from any sales or licenses of such advertising, attribution, links, or promotional or distribution rights. Nothing in these terms obligates or may be deemed to obligate Tenacious to sell, license or offer to sell or license any advertising, promotion or distribution rights.

 

  1. Third Party Links. From time to time, the App may contain links to websites that are not owned, operated or controlled by Tenacious or its affiliates. All such links are provided solely as a convenience to you. If you use these links, you will leave the App. Neither we nor any of our respective affiliates are responsible for any content, materials or other information located on or accessible from any other website. Neither we nor any of our respective affiliates endorse, guarantee, or make any representations or warranties regarding any other websites, or any content, materials or other information located or accessible from any other websites, or the results that you may obtain from using any other websites. If you decide to access any other websites linked to or from this App, you do so entirely at your own risk.

 

  1. Transactional Partners. In some cases we partner with another Tenacious to co-promote their services within our App.  In these cases, you are transacting directly with the other party.  On those pages or locations, the transactional partners’ brand is clearly visible and their terms of service are posted.  When using these partner pages, you are bound by partner terms of service in addition to remaining bound by Tenacious Terms of Service.  When there is a conflict between these Terms of Service and the partner’s terms of service, their terms of service will prevail.

 

  1. Purchases of Virtual Items. In the App you may purchase, with “real world” money, a limited, personal, non-transferable, non-sublicensable, revocable license to use (a) “virtual currency” for use in the App; (b) “virtual in-game items” (together with “virtual currency”, “Virtual Items”); and (c) other goods or services (“Merchandise”). You are only allowed to purchase Virtual Items from us or our authorized partners through the App, and not in any other way, including without limitation from other users in the App.  Tenacious may manage, regulate, control, modify or eliminate Virtual Items and/or their value and/or Merchandise at any time, with or without notice. Tenacious shall have no liability to you or any third party in the event that Tenacious exercises any such rights.  The transfer of Virtual Items and Merchandise is prohibited except where expressly authorized in the App.  Other than as expressly authorized in the App, you shall not sell, purchase, redeem or otherwise transfer Virtual Items or Merchandise to any person or entity or attempt any of the aforesaid, including but not limited to Tenacious, another user or any third party.  ALL PURCHASES AND REDEMPTIONS OF VIRTUAL ITEMS MADE THROUGH THE SERVICE ARE FINAL AND NON-REFUNDABLE.  The provision of Virtual Items for use in the Apps is a service provided by Tenacious that commences immediately upon acceptance by Tenacious of your purchase.

 

  1. Fees. For all charges or deposits for any events, products and services ordered by you on or through the App, Tenacious or its vendors or agents will bill your bank card or alternative payment method offered by Tenacious and you agree to pay all such charges or deposits. When you provide bank card information, account numbers or other information necessary to facilitate payment to us or our vendors, you represent to us that you are the authorized user of the bank card that is used to pay for the products and services. In the event legal action is necessary to collect on balances due, you agree to reimburse Tenacious and its vendors or agents for all expenses incurred to recover sums due, including attorneys’ fees and other legal expenses.  You are responsible for purchase of, and payment of charges for, all Internet access services and telecommunications services needed for use of the App.  You understand that we will hold and store such bank card or payment information to facilitate payment and deposit, damage reimbursement, and other liability purposes.

 

  1. Promotional Codes. On occasion, Tenacious may issue promotion codes that may be redeemed at the time of check out.  These codes are non-transferable and may only be used by the intended recipient; these codes have no cash value and are not redeemable for cash.  We reserve the right to cancel any promotion code and reduction redemption when the total value of the promotional code exceeds the price of the item.  Multiple promotional codes may not be combined.  Tenacious is not responsible for any financial loss arising out of our refusal, cancelation, or withdrawal of a promotion or any failure or inability of a customer to use a promotional code for any reason.

 

  1. Eligibility to Subscribe to Services. You may subscribe to the Services offered on this App in any location worldwide.  Tenacious makes no promise, however, that the Services available on the App are appropriate or available for use in locations outside the United States (“Territory”), and accessing the App from territories where its contents are illegal or unlawful is prohibited, including from those territories prohibited by the United States State Department or other U.S. government entity.  If You choose to access the App from locations outside the Territory, You do so at your own risk.  It is your responsibility to ascertain and obey all applicable local, state, federal and international laws (including minimum age requirements) in regard to Services you subscribe to through this App.

 

  1. Termination. You or we may suspend or terminate your account or your use of this App at any time, for any reason or for no reason. You are personally liable for any orders placed or charges incurred through your account prior to termination. We may also block your access to our App in the event that (a) you breach these Terms of Service; (b) we are unable to verify or authenticate any information you provide to us; or (c) we believe that your actions may cause financial loss or legal liability for you, our users or us.

 

  1. Representations and Warranties. You represent that You are over the age of 18, have the right and authority to enter into this Agreement, are fully able and competent to satisfy the terms, conditions, and obligations herein, and Your use of the App is and will be in compliance with all applicable laws.  You represent that you have read, understood, agree with, and will abide by the terms of this agreement.  In addition, you represent and warrant that your User Submissions and all elements thereof are (a) owned or controlled solely and exclusively by you, you have prior written permission from the rightful owner of the content included in your User Submissions, or you are otherwise legally entitled to grant Tenacious all of the rights granted herein; and (b) Tenacious’ use of your User Submissions as described or contemplated herein do not and will not infringe on the copyrights, trademark rights, publicity rights or other rights of any person or entity, violate any law, regulation or right of any kind whatsoever, or otherwise give rise to any actionable claim or liability, including without limitation rights of publicity and privacy, and defamation.  Furthermore, You shall be solely responsible for your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, you affirm, represent and warrant the following:  (i) You have obtained all consents, and possess all copyright, patent, trademark, trade secret and any other proprietary rights, or the necessary licenses thereto, to grant the license in Section 3; (ii) if necessary you have the written consent of each and every identifiable natural person in the User Submission to use such persons name or likeness in the manner contemplated by the App and this Agreement, and each such person has released you from any liability that may arise in relation to such use; (iii) You have read, understood, agree with, and will abide by the terms of this agreement; (iv) You are not, and have not been an agent of Tenacious and were not and are not acting on behalf of, or as a representative of, Tenacious or any other party in connection with the User Submission; (v) the User Submission and Tenacious’ use thereof as contemplated by this Agreement and Tenacious App will not infringe any rights of any third party, including but not limited to any Intellectual Property Rights, privacy rights and rights of publicity; (vi) You have not and will not engage in any of the following in connection with the production of, your appearance in, or contribution(s) to your User Submission: infliction of injury to any person or animal, humiliation of any person (whether public or private), infliction of emotional distress on any person, assault or battery of any person, damage to any property without permission, entry on any property without permission, or any other act or omission that could give rise to civil and/or criminal liability; (vii) The User Submission does not contain: (a) material falsehoods or misrepresentations that could harm Tenacious or any third party; (b) content that is unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing or encourages conduct that would be considered a criminal offense, give rise to civil liability or violate any law; (c) advertisements or solicitations of business; or (d) impersonations of third parties, other than those which are readily apparent.

 

  1. DISCLAIMERS. Your use of the App is at your risk. THE INFORMATION, MATERIALS AND SERVICES PROVIDED ON OR THROUGH THE APP ARE PROVIDED “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY. NEITHER TENACIOUS, NOR ANY OF ITS AFFILIATES WARRANT THE ACCURACY OR COMPLETENESS OF THE INFORMATION, MATERIALS OR SERVICES PROVIDED ON OR THROUGH THE APP. THE INFORMATION, MATERIALS AND SERVICES PROVIDED ON OR THROUGH THE APP MAY BE OUT OF DATE, AND NEITHER TENACIOUS, NOR ANY OF ITS AFFILIATES MAKES ANY COMMITMENT OR ASSUMES ANY DUTY TO UPDATE SUCH INFORMATION, MATERIALS OR SERVICES. THE FOREGOING EXCLUSIONS OF IMPLIED WARRANTIES DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM TENACIOUS OR THROUGH THE APP WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

 

  1. LIMITATIONS OF LIABILITY. TENACIOUS DOES NOT ASSUME ANY RESPONSIBILITY, OR WILL BE LIABLE, FOR ANY DAMAGES TO, OR ANY VIRUSES THAT MAY INFECT YOUR COMPUTER, TELECOMMUNICATION EQUIPMENT, OR OTHER PROPERTY CAUSED BY OR ARISING FROM YOUR ACCESS TO, USE OF, OR BROWSING THIS APP, OR YOUR DOWNLOADING OF ANY INFORMATION OR MATERIALS FROM THIS APP. IN NO EVENT WILL TENACIOUS, OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, AGENTS, SUCCESSORS OR ASSIGNS, NOR ANY PARTY INVOLVED IN THE CREATION, PRODUCTION OR TRANSMISSION OF THE APP, BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE APP, OR THE MATERIALS, INFORMATION OR SERVICES CONTAINED ON ANY OR ALL OF THE APP, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS OF LIABILITY DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS.

 

IN THE EVENT OF ANY PROBLEM WITH THE APP OR ANY MATERIALS, INFORMATION OR SERVICES CONTAINED ON ANY OR ALL OF THE APP, YOU AGREE THAT YOUR SOLE REMEDY IS TO CEASE USING THE APP. IN NO EVENT SHALL TENACIOUS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE EXCEED THE GREATER OF (A) TWENTY FIVE DOLLARS (US $25.00) OR (B) THE VALUE OF THE SERVICES PURCHASED OR SUBSCRIBED BY YOU ON THE APP.

 

  1. Indemnity. You agree to defend, indemnify and hold Tenacious and any affiliated entity or individual harmless from any and all liabilities, costs, and expenses, including reasonable attorneys’ fees, related to or in connection with (i) the use of the App or your placement or transmission of any User Submission or other content, message or information on this App by you or your authorized users; (ii) your violation of any term of this Agreement, including without limitation, your breach of any of the representations and warranties above; (iii) your violation of any third party right, including without limitation any right of privacy, publicity rights or intellectual property rights; (iv) your violation of any law, rule or regulation of the United States or any other country; (v) any claim or damages that arise as a result of any User Submission that you provide to Tenacious, including without limitation any claim or damages arising from a defamation or invasion of privacy claim; or (vi) any other party’s access and use of the App with your unique username, password or other appropriate security code.
  2. Release. In the event that you have a dispute with one or more other users of the App, you release Tenacious (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.

 

  1. Force Majeure. Neither Tenacious nor you shall be responsible for damages or for delays or failures in performance resulting from acts or occurrences beyond their reasonable control, including, without limitation: fire, lightning, explosion, power surge or failure, water, acts of God, war, revolution, civil commotion or acts of civil or military authorities or public enemies: any law, order, regulation, ordinance, or requirement of any government or legal body or any representative of any such government or legal body; or labor unrest, including without limitation, strikes, slowdowns, picketing, or boycotts; inability to secure raw materials, transportation facilities, fuel or energy shortages, or acts or omissions of other common carriers.

 

  1. Privacy. Data collection and use, including data collection and use of personally identifiable information is governed by Tenacious’ Privacy Policy [https://tenaciousentertainment.com/privacy-policy/ ] which is incorporated into and is a part of this Agreement.

 

  1. Dispute Resolution. PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND HOW CLAIMS THAT YOU AND DISCOVERY HAVE AGAINST EACH OTHER ARE RESOLVED.  This Section is deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and Tenacious agree that we intend that this Section satisfies the “writing” requirement of the Federal Arbitration Act. This Section can only be amended by mutual agreement.

 

We believe that arbitration is a faster, more convenient and less expensive way to resolve any disputes or disagreements that you may have with us. Therefore, pursuant to these Terms of Service, if you have any dispute or disagreement with us regarding (i) your use of or interaction with the App, (ii) any purchases or other transactions or relationships with Tenacious, or (iii) any data or information you may provide to Tenacious or that Tenacious may gather in connection with such use, interaction or transaction (collectively, “Tenacious Transactions or Relationships”), you will not have the right to pursue a claim in court, or have a jury decide the claim and you will not have the right to bring or participate in any class action or similar proceeding in court or in arbitration. By using or interacting with the App, or engaging in any other Tenacious Transactions or Relationships with us, you agree to binding arbitration as provided below.

 

We will make every reasonable effort to informally resolve any complaints, disputes, or disagreements that you may have with us. If those efforts fail, by using the App, you agree that any complaint, dispute, or disagreement you may have against Tenacious, and any claim that Tenacious may have against you, arising out of, relating to, or connected in any way with these Terms of Service, our Privacy Policy, or any Tenacious Transactions or Relationships shall be resolved exclusively by final and binding arbitration (“Arbitration”) administered by JAMS or its successor (“JAMS”) and conducted in accordance with the JAMS Streamlined Arbitration Rules And Procedures in effect at the time the Arbitration is initiated or, if the amount in controversy exceeds $100,000, in accordance with the JAMS Comprehensive Arbitration Rules And Procedures then in effect (respectively, the “Applicable Rules”). The Applicable Rules can be found at www.jamsadr.com. If JAMS is no longer in existence, the Arbitration shall be administered by the American Arbitration Association or its successor (the “AAA”) instead, and conducted in accordance with the AAA Commercial Arbitration Rules in effect at that time (which shall be the “Applicable Rules” in such circumstances). If JAMS (or, if applicable, AAA) at the time the arbitration is filed has Minimum Standards of Procedural Fairness for Consumer Arbitrations in effect which would be applicable to the matter in dispute, Tenacious agrees to provide the benefit of such Minimum Standards to you to the extent they are more favorable than the comparable arbitration provisions set forth in this Section, provided, however, that in no event may such Minimum Standards contravene or restrict the application of subpart (d) or (h) below. Furthermore, this Section shall not prevent any party from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.

 

You further agree that:

 

(a)        Arbitrator Will Interpret This Agreement. The Arbitrator, and not any federal, state or local court or agency, shall have the exclusive authority to resolve any dispute arising under or relating to the validity, interpretation, applicability, enforceability or formation of these Terms of Service and/or these arbitration provisions in this Section hereof, including but not limited to any claim that all or any part of these Terms of Service is void or voidable;

 

(b)        Location of Arbitration. The Arbitration shall be held either: (i) at a location determined by JAMS (or, if applicable, AAA) pursuant to the Applicable Rules (provided that such location is reasonably convenient for you and does not require travel in excess of 100 miles from your home or place of business); or (ii) at such other location as may be mutually agreed upon by you and Tenacious; or (iii) at your election, if the only claims in the arbitration are asserted by you and are for less than $10,000 in aggregate, by telephone or by written submission;

 

(c)        Governing Law. The Arbitrator (i) shall apply internal laws of the State of Washington consistent with the Federal Arbitration Act and applicable statutes of limitations, or, to the extent (if any) that federal law prevails, shall apply the law of the U.S., irrespective of any conflict of law principles; (ii) shall entertain any motion to dismiss, motion to strike, motion for judgment on the pleadings, motion for complete or partial summary judgment, motion for summary adjudication, or any other dispositive motion consistent with Washington State or federal rules of procedure, as applicable; (iii) shall honor claims of privilege recognized at law; and (iv) shall have authority to award any form of legal or equitable relief;

 

(d)        No Class Relief. The Arbitration can resolve only your and/or Tenacious’ individual claims, and the Arbitrator shall have no authority to entertain or arbitrate any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated;

(e)        Written Award. The Arbitrator shall issue a written award supported by a statement of decision setting forth the Arbitrator’s complete determination of the dispute and the factual findings and legal conclusions relevant to it (an “Award”). Judgment upon the Award may be entered by any court having jurisdiction thereof or having jurisdiction over the relevant party or its assets;

 

(f)         Arbitration Costs. In the event that you are able to demonstrate that the costs of Arbitration will be prohibitive as compared to the costs of litigation, Tenacious will pay as much of your filing and hearing fees in connection with the Arbitration as the Arbitrator deems necessary to prevent the arbitration from being cost-prohibitive, regardless of the outcome of the Arbitration, unless the Arbitrator determines that your claim(s) were frivolous or asserted in bad faith;

 

(g)        Reasonable Attorney’s Fees. In the event you recover an Award greater than Tenacious’ last written settlement offer, the Arbitrator shall also have the right to include in the Award Tenacious’ reimbursement of your reasonable and actual out-of-pocket attorneys’ fees associated with the Arbitration, but Tenacious shall in all events bear its own attorneys’ fees;

 

(h)        Interpretation and Enforcement of Arbitration Clause. With the exception of “No Class Relief” above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Applicable Rules, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, “No Class Relief” is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor Tenacious shall be entitled to arbitrate their dispute, and must instead bring any claims in a court of competent jurisdiction;

 

(i)         Modification of Arbitration Clause With Notice. Tenacious may modify these arbitration provisions, but such modifications shall only become effective thirty (30) days after Tenacious has given notice of such modifications and only on a prospective basis for claims arising from Tenacious Transactions and Relationships occurring after the effective date of such notification; and

 

(j)         Small Claims Matters are Excluded. No Class Relief or Joinder of Claims. Notwithstanding the foregoing arbitration provisions, at your option, you may bring any claim you have against Tenacious in your local small claims court within the U.S., if your claim is within such court’s jurisdictional limit; provided that such court does not have the authority to entertain any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated in such proceeding.

 

  1. General. Any claim relating to, and the use of, this App and the materials contained herein is governed by the laws of the State of Washington You consent to the exclusive jurisdiction of the state and federal courts located in King County, Washington. A printed version of these Terms of Service will be admissible in judicial and administrative proceedings based upon or relating to these Terms of Service to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

 

These Terms of Service set forth the entire understanding and agreement between us with respect to the subject matter hereof.  We do not guarantee continuous, uninterrupted or secure access to our App, and operation of the App may be interfered with by numerous factors outside of our control. If any provision of these Terms of Service is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. You agree that these Terms of Service and all incorporated agreements may be automatically assigned by Tenacious in our sole discretion. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. All sections which by their context ought to survive this agreement shall survive any termination or expiration of this Agreement.

  1. DIGITAL MILLENNIUM COPYRIGHT ACT (“DMCA”) NOTICE. In operating the App, we may act as a “services provider” (as defined by DMCA) and offer services as online provider of materials and links to third party web sites. As a result, third party materials that we do not own or control may be transmitted, stored, accessed or otherwise made available using the App. Tenacious has in place certain legally mandated procedures regarding allegations of copyright infringement occurring on the App. Tenacious has adopted a policy that provides for the immediate removal of any content or the suspension of any user that is found to have infringed on the rights of Tenacious or of a third party, or that has otherwise violated any intellectual property laws or regulations, or any of the terms and conditions of this Agreement. If you believe any material available via the App infringes a copyright, you should notify us using the notice procedure for claimed infringement under the DMCA (17 U.S.C. Sect. 512(c)(2)). We will respond expeditiously to remove or disable access to the material claimed to be infringing and will follow the procedures specified in the DMCA to resolve the claim between the notifying party and the alleged infringer who provided the Content. Our designated agent (i.e., proper party for notice) to whom you should address infringement notices under the DMCA is copyrightagent@tenacious.com.

Please provide the following notice:

 

  1. Identify the copyrighted work or other intellectual property that you claim has been infringed;
  2. Identify the material on the App that you claim is infringing, with enough detail so that we may locate it on the App;
  3. 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;
  4. A statement by you declaring under penalty of perjury that (a) the above information in your notice is accurate, and (b) that you are the owner of the copyright interest involved or that you are authorized to act on behalf of that owner;
  5. Your address, telephone number, and email address; and
  6. Your physical or electronic signature.

We may give notice to our users of any infringement notice by means of a general notice on any of our Apps, electronic mail to a user’s e-mail address in our records, or by written communication sent by first-class mail to a user’s physical address in our records. If you receive such an infringement notice, you may provide counter-notification in writing to the designated agent that includes the information below. To be effective, the counter-notification must be a written communication that includes the following:

 

  1. Your physical or electronic signature;
  2. Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
  3. A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
  4. Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a Federal District Court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which we may be found, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.

 

  1. Additional Assistance. If you do not understand any of the foregoing Terms of Service or if you have any questions or comments, we invite you to contact us by email at support@tenaciousentertainment.com.

 

  1. Copyright Notice. All design, graphics, text selections, arrangements, and all software are Copyright © 2020, Tenacious Entertainment, LLC and its related companies or its licensors. ALL RIGHTS RESERVED.