Last Updated: June 9, 2022
Blitz Studios, Inc., and as applicable, its subsidiaries and affiliates (collectively, “Sleeper,” “we”, “our”, or “us”) own and operate the Sleeper mobile application and website, located at www.sleeper.app and www.sleeper.com, through which we offer free-to-play games, paid-entry contests of skill, and other games and fantasy sports-related products and services (collectively, the “Services”). Before accessing or using the Services, please read these General Terms of Use and any additional terms, rules, guidelines and conditions issued, from time to time, by Sleeper (collectively, the “Terms”) carefully.
By creating an account or otherwise accessing and using the Services, you agree to be bound by these Terms, our Privacy Policy, and all applicable rules that may be published on the Services by Sleeper, which form a legal agreement between you and us. If you do not agree to the aforementioned sets of terms, then you may not access or otherwise use the Services.
THESE TERMS CONTAIN DISCLAIMERS OF WARRANTIES, DISCLAIMERS OF LIABILITY, AND A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER THAT AFFECT YOUR RIGHTS FOR RESOLVING ANY DISPUTE WITH US, AS WELL AS AN INDEMNIFICATION PROVISION THAT MAKES YOU RESPONSIBLE FOR CERTAIN LOSSES. PLEASE READ THEM CAREFULLY.
1 THESE TERMS
1.1 You represent and warrant that you have the legal right and ability to agree to these Terms and that you have read, understood, and agree to the Terms with the intent to be legally bound by them.
1.2 By accessing or using the Services, you represent and warrant that you are the minimum age required to use each game, contest, or other feature within the Services that you access or use.
1.3 We reserve the right, at our sole discretion, to make changes to these Terms at any time. If we supplement, supersede, or make changes to these Terms, such amended Terms will be posted, and will take effect immediately, unless otherwise stated. You shall be responsible for reviewing and becoming familiar with any such changes, and your use of the Services following these changes, supplements, or other modifications shall constitute your acceptance of the Terms as amended.
2 USING THE SERVICES
2.1 You must create an account to access the Services. You agree to provide accurate, current and complete information about yourself and to maintain and promptly update any account information to keep it accurate, current, and complete. Only one (1) account per verified person is permitted. Your account is unique to you and non-transferrable. For the avoidance of doubt, you may not “co-own” an account with another person or entity. You may not use a username for your account that promotes a commercial venture or a username that we determine, in our sole discretion, is offensive or otherwise violates these Terms. We may require you to change your username or may unilaterally change your username without notice to you, in our sole discretion.
2.2 You are also solely responsible for maintaining the confidentiality of your account, including protecting your login credentials and restricting access to your devices. You agree that you shall take all steps necessary to protect your login details and keep them secret. You accept responsibility for all activities that occur under your account and/or from your devices. If you have reason to believe that someone is using your account without your permission, you should contact us immediately.
2.3 You consent to transact with us electronically and receive legal notices and other communications electronically, including by e-mail, text messaging, push notifications (in accordance with your device settings), and/or by notices posted on the Services. You agree that any requirement that a communication be sent to you in writing is satisfied by such electronic communication and that you are responsible for maintaining an Internet browser, mobile device or computing equipment capable of accessing the Services and said electronic communications.
2.4 You acknowledge and agree that we may monitor and record communications related to Service usage and geographic location information for any reason, including and without limitation, in order to ensure compliance with applicable laws and regulations. We reserve the right to report unusual or suspicious activity to the proper authorities.
2.5 Specific rules, controls, and guidelines for each service, game or contest offered on the Services can be found on our website and/or within the game or contest. Such rules, controls and guidelines form part of these Terms and are incorporated herein. You also agree that any supplemental or additional terms that apply to the use of any game, contest, or other feature offered on the Services form a part of these Terms, and you agree that you shall comply with any such supplemental or additional terms, rules, controls, and guidelines in respect of each individual game or contest which you choose to access and/or play through the Services.
2.6 Sleeper reserves the right to modify, suspend, or discontinue the Services (including, but not limited to, the availability of any feature, content, or game variant), whether temporarily or permanently at any time for any reason. You agree that Sleeper shall not be liable to you or any third-party for any modification, suspension, or discontinuation of the Services.
2.7 You agree that the sole and specific purpose of creating an account on Sleeper is to participate in Sleeper’s Services.
3 VIRTUAL MONEY & VIRTUAL GOODS
3.1 Certain Services may allow you to purchase a limited, revocable license to use virtual currencies such as Cookies (“Virtual Money”) or virtual items such as Mascots for use with our Services (“Virtual Goods”), pursuant to terms and conditions contained herein. Virtual Money and Virtual Goods are intended solely for personal and entertainment use on our Services. Virtual Money and Virtual Goods do not: (a) have an equivalent value in real currency; (b) act as a substitute for real currency; (c) act as consideration for any legally enforceable contract (except for the license to use Virtual Money and Virtual Goods under these Terms); or (d) earn interest. Virtual Money and Virtual Goods are not redeemable or exchangeable for real currency, monetary value, or convertible virtual currency from us or any other third-party, except as expressly required by applicable law. Transactions involving the exchange of Virtual Money or Virtual Goods for virtual items or virtual services on the Services are not legally enforceable, may not form the basis of any private right of action against us or any third-party, and are governed by us in our sole discretion and application of these Terms. Any license to use Virtual Money or Virtual Goods will terminate upon termination of these Terms or your account, and as otherwise provided herein.
3.2 All payments for Virtual Money or Virtual Goods are final and not refundable or exchangeable, to the maximum extent permitted by applicable law. You are responsible for the risk of loss of Virtual Goods or Virtual Money upon completion of a purchase (as further described below). You may not transfer, assign, sell, gift, exchange, trade, convert, lease, sublicense, rent, or distribute Virtual Money or Virtual Goods except through the Service and as expressly permitted by us. Any disposition or attempted disposition of Virtual Money or Virtual Goods in violation of these Terms will be void and will result in the immediate termination of your account and your license to use Virtual Money and Virtual Goods. We do not recognize or condone any third-party services that may be used to sell, exchange, transfer, or otherwise dispose of Virtual Money or Virtual Goods. We do not assume any responsibility for, and will not support, such transactions.
3.3 Neither us nor any third-party has any obligation to exchange Virtual Money or Virtual Goods for anything of value, including, but not limited to, real currency, to the maximum extent permitted by law. We, in our sole discretion, may impose limits on Virtual Money or Virtual Goods, including, but not limited to, the amount that may be acquired, earned, or redeemed.
3.4 In our sole discretion, we have the absolute right to manage, modify, suspend, revoke, and/or terminate your license to use Virtual Money or Virtual Goods without notice, refund, compensation or liability, to the maximum extent permitted by law. You acknowledge and agree that we may engage in actions that may impact the perceived value or acquired price of Virtual Money or Virtual Goods at any time, except as prohibited by applicable law. We make no guarantee as to the nature, quality or value of Virtual Money or Virtual Goods or the availability or supply thereof.
3.5 Virtual Money or Virtual Goods cannot be used, redeemed, or exchanged in any form or manner to participate in Sleeper’s paid-entry contests of skill, and are intended solely for personal and entertainment use on our Services.
4 SLEEPER WALLET & PAYMENT TERMS
4.1 You may be eligible to link your bank account and/or a credit card to your Sleeper account in order to create a wallet (a “Sleeper Wallet”). Your Sleeper Wallet can be used to fund participation in certain Services we offer, such as our paid-entry contests of skill.
4.2 In order to setup a Sleeper Wallet, you must: a) be a legal resident of the United States; b) be at least eighteen (18) years old; c) be physically located within one (1) of the fifty (50) U.S. states or the District of Columbia; d) possess a valid tax identification or social security number; e) possess (and have the authority to utilize) a valid bank account or credit card issued by a financial institution in the United States (subject to our availability to accept certain forms of payment); and f) undergo (and pass) an identity/background verification check.
4.3 By inputting a payment method (for a Sleeper Wallet or otherwise), you represent and warrant that you are the lawful owner of the payment method account. If you elect to save a payment method to the Services, you agree that your bank or card information will be saved for future transactions on your account, and you provide authorization to be charged for agreed upon payments. You may cancel this authorization by following the instructions in the Services. Our payment processing partners may have their own terms and conditions and you should ensure that you are in agreement with these prior to making any payment(s). If your transaction with our payment processing partners is not successful, then your payment will not be fulfilled. Depending on which financial institution you use, additional charges may be issued by your financial institutions as we have no control over such charges nor accept liability for them.
4.4 You agree that all payments are final and that we are under no obligation to refund any transaction once a payment has been made, subject to applicable law. For these purposes, a payment is complete at the time our servers validate your payment and successfully credit your account on our servers. Deposits made into your Sleeper Wallet will appear on your statement as SLEEPER. In the case of a dispute regarding the identity of a user submitting payment, that payment will be deemed to have been submitted by the user in whose name the respective individual account was registered.
4.5 If your Sleeper Wallet has no activity for twenty-four (24) consecutive months, it will be considered inactive. Sleeper assesses a monthly fee of $4.99 to maintain inactive wallets until it is reactivated by entering a paid-entry contest of skill, making a deposit, or withdrawing funds. Prior to deducting any fees due to wallet inactivity, Sleeper will provide you at least thirty (30) days-written notice.
4.6 Once a wallet is legally found to be abandoned, as determined by each state’s applicable law, it will be considered so and Sleeper may be required to remit the abandoned funds to the appropriate state agency as unclaimed property. Sleeper reserves the right to deduct fees associated with the delivery of abandoned funds subject to applicable law.
5 LICENSE AND INTELLECTUAL PROPERTY
5.1 As between you and us, we own the Services, including, without limitation, all software, text, graphics, tools, links, code, recommendations, and other content or material provided in or through use of the Services, and all Virtual Money and Virtual Goods, and all worldwide intellectual property rights in the foregoing.
5.2 We grant you a limited, personal, revocable, non-transferable and non-exclusive right and license to access and use the Services, in accordance with these Terms, for your personal and non-commercial use, as the Services were intended to be used. Any software provided through or used to operate the Services is licensed, not sold, to you by us, and such license is limited to object code only. Please note that our Services contain software governed by the license of a third-party, and you agree to abide by the terms and conditions of the same by using the Services. Except as expressly permitted herein, you must not, nor enable any other person to, rent, lease, lend, sell, redistribute, sublicense, copy, reverse engineer, decompile, translate, modify, rent, use as a service bureau, distribute copies of, adapt, create derivative works based on, or otherwise inappropriately use the Services.
5.3 Any trademark, service mark, copyright, logo, tradename, and/or the like (collectively, the “Marks”) contained in the Services, whether or not appearing in large print or with the trademark symbol, belongs exclusively to us or our licensors, and you may not use or display such Marks without our express written permission. Nothing in these Terms grants you any right to use our, or any third-party’s, Marks.
6 USER CONTENT
6.1 With respect to data, information, files and content you submit or make available through the Services (collectively, “User Content”), you grant us and our partners a worldwide, perpetual, irrevocable, royalty-free and non-exclusive license to use such User Content to manage, provide, monitor, repair, improve, promote, analyze and/or operate the Services, as well as for any other lawful purpose we desire. You are fully responsible for all User Content that you submit to us and agree not to provide User Content that violates these Terms. We are not responsible for any User Content and have no duty to monitor or protect your rights in any User Content that you may submit to us, but you do give us the right to enforce your rights in that content if we so choose, including but not limited to taking legal action (at our cost) on your behalf.
6.2 You use any information contained in User Content at your own risk. We have the right, in our sole discretion, but no obligation or duty, to monitor, review, edit, remove, delete, disable, refuse, restrict, and/or terminate access to your User Content or the Services (in whole or in part) at any time, without prior notice and in our sole discretion, for any or no reason. Where authorized by law, if you would like to request removal of User Content that you have posted to the Services, please notify us by e-mailing [email protected]. Even where we agree to remove User Content in accordance with applicable law, this may not result in complete or comprehensive removal of the User Content in question, from the Services.
6.3 Digital Millennium Copyright Act Notice: If you are a copyright owner, authorized to act on behalf of one, or authorized to act under exclusive right under copyright, please report alleged copyright infringements taking place on the Services by contacting us and including the following information:
· Identification of the copyrighted work claimed to have been infringed;
· Identification of the allegedly infringing material on the Services that is requested to be removed;
· Your name, address, and daytime telephone number, and an e-mail address if available, so that we may contact you if necessary;
· A statement that you have a good faith belief that the use of the copyrighted work is not authorized by the copyright owner, its agent, or the law;
· A statement that the information in the notification is accurate and, under penalty of perjury, that the signatory is authorized to act on behalf of the owner of an exclusive copyright right that is allegedly infringed; and
· An electronic or physical signature of the copyright owner or someone authorized on the owner’s behalf to assert infringement of copyright and to submit the statement.
6.4 If you believe that material you posted on the Services was removed or access to it was disabled by mistake or misidentification, you may file a counter-notification with us, which must include:
· Your physical or electronic signature;
· An 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 disabled;
· Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, e-mail address);
· A statement under penalty of perjury by you that you have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
· A statement that you will consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or if you reside outside the United States for any judicial district in which the Services may be found) and that you will accept service from the person (or an agent of that person) who provided the Services with the complaint at issue.
6.5 Notice of claims of copyright infringement on the Services (and counter-notices) can be sent to us via email at [email protected], or to the following location: 3960 Howard Hughes Parkway, Suite 500, Las Vegas, NV 89169, Attn: Blitz Studios, Inc., Legal.
7 PROHIBITED CONDUCT
7.1 When accessing and/or using our Services, you agree that you will not: (a) use our Services for fraudulent or abusive purposes; (b) use our Services in violation of any applicable law, regulation, or requirement, and/or the intellectual property, privacy, or similar rights of us or any other person; or (c) otherwise take any action that you know or reasonably should know is improper, unfair, fraudulent, or otherwise adverse to the operation of the Service or in any way detrimental to us or other users. Without limitation, you agree not to:
· Create more than one (1) account;
· Sell or otherwise transfer your profile;
· Use an account that does not belong to you;
· Falsify any personal information required to create an account, Sleeper Wallet, and/or claim a prize;
· Use of the Services for any illicit, illegal, and/or otherwise fraudulent purposes;
· Collude with any other individual(s) in an attempt to circumvent these Terms;
· Use our Services in any way that accumulates points or prizes through unauthorized methods such as unauthorized scripts or other automated means, or to cheat or design or assist in cheating;
· Disguise, anonymize, or hide your IP address and/or the source of any User Content that you may upload;
· Monitor, use, or copy any of our Services content or “scrape” any information about or regarding other people that use our Services or upload anything that collects information including but not limited to ‘pixel tags’ and cookies;
· Remove or amend any proprietary notices or other ownership information from our Services or attempt to decompile, reverse engineer, disassemble or hack any of our Services;
· Defeat or overcome any of our encryption technologies or security measures or otherwise circumvent technological measures designed to control access to, or elements of, our Services or upload or submit to the Services software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
· Use our Services for any commercial or business purpose or for the benefit of any third-party or to send unsolicited communications;
· Violate any portion of these Terms; or
· Abuse the Services in any way.
7.2 If we have reason to suspect or learn that you are violating these Terms, we may investigate, prohibit any and all current or future use of the Services by you, and/or take legal action as necessary including bringing a lawsuit for damages caused by the violation.
7.3 You further agree not to upload, communicate, transmit or otherwise make available any User Content: (a) that is or could reasonably be viewed as unlawful, harmful, harassing, defamatory, libelous, obscene or otherwise objectionable; (b) that is or could be viewed as invasive of another's privacy; (c) that is likely to, or could reasonably be viewed as likely to incite violence or racial or ethnic hatred; (d) which you do not have a right to make available lawfully (such as inside information, information which belongs to someone else or confidential information); (e) which infringes any intellectual property right or other proprietary right of others; or (f) which consists of any unsolicited or unauthorized advertising, promotional materials, 'junk mail', 'spam', 'chain letters', 'pyramid schemes' or any other form of solicitation. We have the right to remove User Content from our Services if we decide in our sole discretion that it results in or is a breach of any part of these Terms, or that it may bring us or our Services into disrepute. However, you acknowledge that we do not have an obligation to actively monitor User Content and we make no undertaking to do so.
8 WARRANTIES & DISCLAIMER
8.1 TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICES ARE PROVIDED ON AN ‘AS IS,’ ‘AS AVAILABLE,’ AND ‘WITH ALL FAULTS’ BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE MAKE NO REPRESENTATION OR WARRANTY THAT YOUR ACTIVITIES OR USE OF THE SERVICES IS LAWFUL IN ANY PARTICULAR JURISDICTION OR THAT THE SERVICES SHALL BE AVAILABLE AT ALL TIMES OR BE FREE OF ERROR. WE MAKE NO REPRESENTATION OR WARRANTY ABOUT THE SECURITY OR SAFETY OF THE SERVICES OR ABOUT THE ACCURACY, AVAILABILITY, RELIABILITY, COMPLETENESS, CURRENTNESS, SUITABILITY OR TIMELINESS OF THE SERVICES (OR ANY STATISTICS, CONTEST RESULTS, OR OTHER INFORMATION PROVIDED THROUGH THE SERVICES). YOU ASSUME ALL RISK FOR ANY DAMAGE TO YOUR MOBILE DEVICE OR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM OBTAINING/USING THE SERVICES, INCLUDING WITHOUT LIMITATION ANY DAMAGE RESULTING FROM ANY VIRUS, WORM, SPYWARE, TROJAN PROGRAMS, TIME BOMBS OR OTHER MALWARE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS. WE MAKE NO REPRESENTATION THAT PARTICIPATION IN PAID-ENTRY CONTESTS OF SKILL IS LAWFUL UNDER STATE LAW.
8.2 There will be times when our Services or a part or parts of them are not available for technical or maintenance related reasons, whether on a scheduled or unscheduled basis. Additionally, you are responsible for the internet connection and/or mobile charges that you may incur for accessing and/or using our Services.
8.3 You acknowledge and agree that your display name, scores, and other related details will be displayed to other users in connection with use of the Services.
8.4 The Services may provide links or access to third-party websites, services, and payment functionalities outside of our control. We do not endorse, recommend, or otherwise accept responsibility for any of these third-party websites or services, and we make no representation or warranties of any kind regarding them. We are not responsible for their content, quality, nature, reliability, privacy, data security, or other practices or their handling of information you make available to them. Your dealings with these third-parties, and any terms, conditions, warranties or representations associated therewith, are solely between you and such third parties. We encourage you to review their applicable terms and policies.
9 LIMITATION OF LIABILITY
9.1 Nothing in these Terms shall limit or exclude any liability that, under applicable law, cannot be limited or excluded.
9.2 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM AND WILL NOT BE LIABLE FOR ANY DAMAGE (INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL AND/OR EXEMPLARY DAMAGE (INCLUDING, WITHOUT LIMITATION, BODILY HARM, EMOTIONAL DISTRESS, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, OR OTHER ECONOMIC ADVANTAGE)) ARISING OUT OF OR IN CONNECTION WITH THE POSSESSION, USE, AND/OR MALFUNCTION OF THE SERVICES, INCLUDING BUT NOT LIMITED TO: (A) ANY STATEMENT OR CONDUCT OF YOU OR ANY OTHER USER OR THIRD PARTY ON THE SERVICES; (B) STOPPAGE OF USE BY YOU DURING OR AFTER COMMENCEMENT OF USE OF THE SERVICES; (C) THE USE OR INABILITY TO USE THE SERVICES; (D) ANY ACTIONS WE TAKE OR FAIL TO TAKE AS A RESULT OF COMMUNICATIONS YOU SEND TO US; (E) THEFT, TAMPERING, DESTRUCTION, OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, ENTRIES, IMAGES OR OTHER USER CONTENT OF ANY KIND; (F) ANY PHYSICAL ACTIVITY, PERSONAL INJURY, OR PROPERTY DAMAGE ARISING FROM OR RELATED TO YOUR USE OF THE SERVICES; (G) DATA THAT IS PROCESSED LATE OR INCORRECTLY OR IS INCOMPLETE OR LOST, INCLUDING ANY INACCURATE ENTRY INFORMATION; OR (H) ANYTHING OTHERWISE ARISING OUT OF OR RELATING TO THESE TERMS, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND EVEN IF WE HAVE PREVIOUSLY BEEN ADVISED OF, OR REASONABLY COULD HAVE FORESEEN, THE POSSIBILITY OF SUCH DAMAGES.
9.3 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR AGGREGATE LIABILITY IN CONNECTION WITH THE SERVICES OR UNDER THESE TERMS IS LIMITED TO THIRTY DOLLARS ($30.00). Allowable claims, if any, which you may bring against Sleeper must be brought no later than six (6) months after the date of the event THAT GAVE rise to the claim, and you hereby waive any right to bring any claim not brought within such period.
10 INDEMNITY
10.1 You agree to indemnify, release, defend, and hold harmless Blitz Studios, Inc. and its parents, subsidiaries, affiliates, and agencies, as well as the officers, directors, employees, shareholders and representatives of any of the foregoing entities, from and against any and all losses, liabilities, expenses, damages, costs (including reasonable attorneys’ fees and court costs), claims, and/or actions of any kind whatsoever arising or resulting from your use of the Services, your violation of these Terms, your receipt, ownership, use or misuse of any prize, and any of your acts or omissions that implicate publicity rights, defamation, and/or invasion of privacy. Sleeper reserves the right, at its own expense, to assume exclusive defense and control of any matter otherwise subject to indemnification by you and, in such case, you agree to cooperate with Sleeper in the defense of such matter.
11 TERMINATION & SUSPENSION
11.1 You may delete the Services from your device at any time or otherwise close your account.
11.2 We may suspend, change, or terminate these Terms and/or your access to the Services or portions of the Services immediately and without notice, for any reason, including without limitation: (a) your breach of these Terms; (b) a request by law enforcement or other government agency; (c) our discontinuation of or material modification to the Services; (d) an unexpected technical or security issue or problem; and/or (e) your inactivity.
11.3 You understand that if you close your account, or if we delete your account in accordance with these Terms, you may lose access to: (a) Virtual Money or Virtual Goods associated with your account and any data previously associated with your account (including, without limitation, the level or score you have reached in our Services); and (b) subject to and where permitted herein, any prepaid monies or prizes associated with your account.
11.4 YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN ANY ACCOUNT, INCLUDING ANY PREPAID MONIES OR PRIZES ASSOCIATED WITH IT, THAT YOU CREATE USING ANY OF OUR SERVICES. WE MAY SUSPEND, TERMINATE, MODIFY OR DELETE ANY OF THESE ACCOUNTS AT ANY TIME FOR ANY REASON OR NO REASON, WITH OR WITHOUT NOTICE TO YOU.
12 GOVERNING LAW & MANDATORY ARBITRATION
12.1 PLEASE READ THIS SECTION CAREFULLY BECAUSE IT AFFECTS YOUR RIGHTS. BY AGREEING TO MANDATORY BINDING ARBITRATION, YOU WAIVE YOUR RIGHT TO LITIGATE DISPUTES THROUGH A COURT AND TO HAVE A JUDGE OR JURY DECIDE YOUR CASE. THIS SECTION ALSO INCLUDES A CLASS ACTION WAIVER.
12.2 These Terms shall be governed by, and construed in accordance with, the laws of the State of Delaware without regards to the conflicts of law principles. If any clause or provision of these Terms is found to be invalid by any authority having competent jurisdiction, the invalidity of such clause or provision shall not affect the validity of the remaining clauses or provisions of these Terms, including but not limited to the class action waiver. You expressly agree that if you dispute the validity or enforceability of the individual arbitration provision and/or class action waiver in these Terms, you shall bring such dispute in the courts of the State of Delaware, and you expressly consent and agree to submit to the exclusive personal jurisdiction and venue of such courts.
12.3 All claims arising in connection with your use of the Services should be reported and brought to our attention as soon as possible in a written statement delivered to [email protected]. The parties shall use their best efforts to settle any dispute, claim, question, and/or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration. To the maximum extent permitted by law, you permanently and irrevocably waive your rights to bring any claim in connection with your use of the Services unless you bring it within one (1) year of the date of the event giving rise to such claim.
12.4 EXCEPT FOR DISPUTES THAT QUALIFY TO BE HEARD IN SMALL CLAIMS COURT, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL DISPUTES ARISING OUT OF OR RELATED TO THESE TERMS OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU, ON THE ONE HAND, AND SLEEPER OR ANY OF ITS AFFILIATES, LICENSORS, OR SUPPLIERS, ON THE OTHER HAND, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION, OR ANY OTHER THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY.
12.5 YOU AGREE THAT SLEEPER AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY. YOU FURTHER AGREE THAT ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS ONLY AND THAT CLASS ARBITRATIONS, CLASS ACTIONS AND OTHER REPRESENTATIVE ACTIONS ARE NOT PERMITTED. YOU HEREBY AGREE TO GIVE UP THE ABILITY TO BRING OR PARTICIPATE IN A CLASS ACTION OR OTHER REPRESENTATIVE ACTION IN COURT OR ARBITRATION.
12.6 The arbitration will be administered by JAMS in accordance with the provisions of its Comprehensive Arbitration Rules or Streamlined Arbitrations Rules, as appropriate, excluding any rules or procedures governing or permitting class actions. The JAMS Rules governing the arbitration may be accessed at http://www.jamsadr.com/ or by calling JAMS at (800) 352-5267. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or us that an in-person hearing is appropriate. Any in-person appearances will be held at a location that is reasonably convenient to the parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination will be made by the arbitrator. If you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, we will, to the extent required to make this section enforceable, 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. The arbitrator will be bound by these Terms, when not in conflict with applicable law, and the arbitrator’s decision will be binding and final, subject only to limited right of judicial review provided under the Federal Arbitration Act. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of these Terms, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. If the arbitrator decides that either the substance of your claim or the remedy you asked for is frivolous or brought for an improper purpose, we may use the applicable JAMS Rules to determine whether you are responsible for the filing, administrative and arbitrator fees. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in these Terms will preclude you from bringing issues to the attention of federal, state or local government agencies or from seeking public injunctive relief in court where that right cannot be waived under applicable state law.
12.7 If you are a resident of the United States, arbitration will take place in Clark County, Nevada. For residents outside the United States, arbitration shall be initiated in Clark County, Nevada, and you and we agree to submit to the personal jurisdiction of any federal or state court in Clark County, Nevada, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
12.8 To not be bound by the arbitration agreement set forth in this section, within thirty (30) days of using our Services, you must notify Sleeper in writing of your intent to opt-out of the arbitration provisions. The written intent to opt-out must include your first and last name, and be provided either by: (a) sending an email to [email protected]; or (b) sending a letter to the following address: 3960 Howard Hughes Parkway, Suite 500, Las Vegas, NV 89169, Attn: Blitz Studios, Inc., Legal.
13 GENERAL
13.1 These Terms constitute the entire agreement between you and us relating to its subject matter and supersedes all prior agreements, undertakings, representations, warranties, and arrangements of any nature relating to the same. Each party acknowledges that it has not been induced to enter into these Terms by any representation or warranty other than those contained in these Terms.
13.2 Upon termination of your account, your license to use the Services terminates. All provisions of these Terms which by their nature should survive termination shall do so, including, without limitation, Sections 2, 3, 4, 5 (except for 5.2), 6, 7, 8, 9, 10, 11, 12, and 13.
13.3 The failure of Sleeper to comply with any provision of these Terms due to an act of God, hurricane, pandemic, endemic, war, riot, earthquake, terrorism, act of public enemies, actions of governmental authorities outside of the control of Sleeper and/or other force majeure event will not be considered a breach of these Terms.
13.4 Use of the Services may involve transmission of data through your carrier or service provider’s network. You are responsible for all carrier, text/SMS, data, or other related fees or charges you incur from your carrier or service provider in connection with or related to your use of the Services. We assume no liability or responsibility for the payment of any charges you may incur.
13.5 We may, from time to time in our sole discretion, develop and provide updates to the Services, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, the “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that we have no obligation to provide any Updates or to continue to provide or enable any particular features or functionality of the Services.
13.6 You must not use, export or re-export the Services contrary to any law of the United States and/or any other jurisdiction including without limitation the Export Administration Regulations of the United States. You represent and warrant that: (a) you are not located in a country that is subject to a United States Government embargo or that has been designated by the United States government as a “terrorist supporting” country; and (b) you are not listed on any United States government list of prohibited or restricted parties.
13.7 We may assign these Terms, in whole or in part without your consent, but you are always free to terminate your use of the Services. No person who is not a party to these Terms (other than any person specifically identified as a third-party beneficiary) shall have any right under any law to enforce any part of these Terms, and no consent is required from any third-party to change these Terms. No failure or delay by us to exercise or enforce any right or benefit under these Terms shall be deemed a waiver of such right or benefit nor operate to prevent or limit the future exercise or enforcement of that right or benefit. If any term or condition of these Terms is held invalid, void or otherwise unenforceable by any court, governmental agency or authority of competent jurisdiction, the remainder of these Terms shall remain valid and enforceable.
13.8 Additional Terms for Apple’s App Store. In addition to the other terms set forth herein, the provisions of this section also apply to you if you obtained the Services from Apple’s App Store. These additional terms should not be read to limit any other provision of these Terms and should not be interpreted to affect the meaning of any other provision of these Terms. You acknowledge that these Terms are between you and us only, not with Apple, and Apple is not responsible for the Services. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Services. In the event of any failure of the Services to conform to any applicable warranty, you may notify Apple and Apple may refund any applicable purchase price for the Services to you; but, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Services. Apple is not responsible for addressing any claim by you or any third party relating to the Services or your possession and/or use of the Services, including, but not limited to: (a) any product liability claim; (b) any claim that the Services fail to conform to any applicable legal or regulatory requirement; and (c) any claim arising under consumer protection, privacy, or similar legislation. Apple is not responsible for the investigation, defense, settlement or discharge of any third party claim that the Services and/or your possession and use of the Services infringes any third party’s intellectual property rights. You may access and use the Services only on Apple-branded products that you own or control and as permitted by the usage rules set forth in the App Store Terms of Service. You agree to comply with all applicable third-party terms when using the Services. Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms, and, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary hereunder.
13.9 Additional Terms for the Google Play Store. In addition to the other terms set forth herein, the provisions of this section also apply to you if you obtained the Services from the Google Play Store. These additional terms should not be read to limit any other provision of these Terms and should not be interpreted to affect the meaning of any other provision of these Terms. You acknowledge that these Terms are between you and us only, not with Google, and Google is not responsible for the Services. You acknowledge that Google has no obligation whatsoever to furnish any maintenance and support services with respect to the Services. In the event of any failure of the Services to conform to any applicable warranty, you may notify Google and Google may refund any applicable purchase price for the Services to you; but, to the maximum extent permitted by applicable law, Google will have no other warranty obligation whatsoever with respect to the Services. Google is not responsible for addressing any claim by you or any third party relating to the Services or your possession and/or use of the Services, including, but not limited to: (a) any product liability claim; (b) any claim that the Services fail to conform to any applicable legal or regulatory requirement; and (c) any claim arising under consumer protection, privacy, or similar legislation. Google is not responsible for the investigation, defense, settlement or discharge of any third party claim that the Services and/or your possession and use of the Services infringes any third party’s intellectual property rights. You may access and use the Services only on an Android device that you own or control and as permitted by the usage rules set forth in the Google Play Store Terms of Service. You agree to comply with all applicable third-party terms when using the Services. Google and Google’s subsidiaries, are third party beneficiaries of these Terms, and, upon your acceptance of these Terms, Google will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary hereunder.
14 CONTACT
If you have an inquiry regarding these Terms, or questions generally, you may contact us as at: 3960 Howard Hughes Parkway, Suite 500, Las Vegas, NV 89169, Attn: Blitz Studios, Inc., or e-mail us at [email protected].