Forfeit Mobile Application Terms of Use Agreement
Last Updated Date: [12.13.2023]
Welcome and thank you for your interest in Forfeit, Inc (“Forfeit”, “we”, “us” or “our”). This Forfeit Mobile Application Terms of Use Agreement (“Terms of Use”, together with any applicable Supplemental Terms (as defined in Section 1.3 (Supplemental Terms)), the “Agreement”) describes the terms and conditions that apply to your use of (i) any mobile application(s) that we offer subject to these Terms of Use (each, an “Application”), and (ii) the services, content, and other resources available on or enabled via our Application (collectively, the “Service”).
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT GOVERNS THE USE OF THE SERVICE AND APPLIES TO ALL USERS VISITING OR ACCESSING THE SERVICE. BY ACCESSING OR USING THE SERVICE IN ANY WAY, ACCEPTING THIS AGREEMENT BY CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE ACCOUNT REGISTRATION PROCESS, OR DOWNLOADING THE APPLICATION, YOU REPRESENT THAT: (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH FORFEIT, (3) YOU ARE NOT BARRED FROM USING THE SERVICE UNDER THE LAWS OF THE UNITED STATES, YOUR PLACE OF RESIDENCE, OR ANY OTHER APPLICABLE JURISDICTION; AND (4) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY OR ON BEHALF OF THE ENTITY IDENTIFIED IN THE ACCOUNT REGISTRATION PROCESS OR FOR WHICH YOU ARE ENTERING INTO THIS AGREEMENT, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND THAT ENTITY TO THIS AGREEMENT AND. IF THE INDIVIDUAL ENTERING INTO THIS AGREEMENT IS DOING SO ON BEHALF OF AN ENTITY, ALL REFERENCES TO “YOU” OR “YOUR” IN THIS AGREEMENT WILL ALSO BE DEEMED TO REFER TO SUCH ENTITY. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THE SERVICE.
IF YOU MAKE A COMMITMENT THROUGH THE SERVICE, THEN YOU AUTHORIZE FORFEIT TO CHARGE YOUR PAYMENT METHOD UP TO THE AMOUNT YOU HAVE SELECTED FOR THAT COMMITMENT IF YOU FAIL TO VERIFY YOUR COMMITMENT. IF YOU SUBSEQUENTLY FAIL TO VERIFY THAT SAME COMMITMENT, FORFEIT MAY CHARGE YOUR PAYMENT METHOD FOR EACH SUCCESSIVE COMMITMENT FAILURE UP TO THREE (3) TIMES IN A ROW. YOU MAY TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 13.2 (TERMINATION OF SERVICE) BELOW AT ANY TIME OR SUBMIT AN APPEAL FOR REVIEW FOR ANY CHARGES.
SECTION 15 (ARBITRATION AGREEMENT) CONTAINS PROVISIONS THAT GOVERN HOW TO RESOLVE DISPUTES BETWEEN YOU AND FORFEIT. AMONG OTHER THINGS, SECTION 15 (ARBITRATION AGREEMENT) INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND US SHALL BE RESOLVED BY BINDING AND FINAL ARBITRATION. SECTION 15 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ SECTION 15 (ARBITRATION AGREEMENT) CAREFULLY.
UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT (AS DEFINED IN SECTION 15) WITHIN THIRTY (30) DAYS IN ACCORDANCE WITH SECTION 15.10 (30-DAY RIGHT TO OPT OUT): (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
ANY DISPUTE, CLAIM, OR REQUEST FOR RELIEF RELATING IN ANY WAY TO YOUR USE OF THE SERVICE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
SECTION 1.5 (FORFEIT COMMUNICATIONS) OF THIS AGREEMENT, BELOW, CONTAINS YOUR CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING VIA EMAIL, TEXT MESSAGE, CALL, AND PUSH NOTIFICATION.
THE AGREEMENT IS SUBJECT TO CHANGE BY FORFEIT IN ITS SOLE DISCRETION AT ANY TIME AS SET FORTH IN SECTION 16.6 (AGREEMENT UPDATES).
1. USE OF THE SERVICE. The Service is protected by applicable intellectual property (including copyright) laws. Unless subject to a separate license agreement between you and Forfeit, your right to access and use any and all of the Service is subject to this Agreement.
1.1 Description of the Service. The Application helps hold you accountable to your goals. By submitting a goal (“Commitment”), selecting a means of verification (such as sending a photo of the completed goal), and selecting a corresponding penalty amount (“Penalty”) to be charged if you fail to timely verify your compliance with the Commitment through the Application, you agree that Forfeit may charge your credit card the Penalty selected by you each time you fail to verify your Commitment. If you subsequently verify the same Commitment and then fail one or more times to timely verify the Commitment, you will be charged a Penalty for each such failure, subject to the following 3 in a row rule. If you fail to verify the same Commitment three (3) times in a row or more, Forfeit will cap the charges at three (3) charges for that series of failures to verify. You are able to contact Forfeit through the Application to request an appeal to review Penalty charges. Forfeit, in its sole discretion, will determine the outcome of the appeal.
1.2 Application License. Subject to your compliance with this Agreement, Forfeit grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install, and use a copy of the Application on a single Device (as defined below) that you own or control and to run such copy of the Application solely for your own personal purposes.
1.3 Supplemental Terms. Your use of, and participation in, certain features and functionality of the Service, such as our website, may be subject to additional terms (“Supplemental Terms”). Such Supplemental Terms will either be set forth in the applicable supplemental Service or will be presented to you for your acceptance when you sign up to use the supplemental Service. If these Terms of Use are inconsistent with the Supplemental Terms, then the Supplemental Terms control with respect to such supplemental Service.
1.4 Updates. You understand that the Service is evolving. As a result, Forfeit may require you to install updates to the Applications that you have installed on the devices through which you access or use the Service (“Device”). You acknowledge and agree that Forfeit may update the Service with or without notifying you. You may need to update third-party software from time to time in order to continue to use the Service. Any future release, update, or other addition to the Service shall be subject to this Agreement.
1.5 Forfeit Communications.
1.5 (a) Generally. By entering into this Agreement or using the Service, you agree to receive communications from us, including via email, and/or push notifications. Communications from us and our affiliated companies may include, but are not limited to, (i) operational communications concerning your Account or the use of the Service, (ii) updates concerning new and existing features on the Service, (iii) communications concerning promotions ran by us or our third-party partners, and (iv) news concerning Forfeit and industry developments.
2. REGISTRATION.
2.1 Registering Your Account. In order to access certain features of the Service you may be required to register an account on the Service (“Account”) or have an account with the app store from which you downloaded the Application (“Third-Party Account”).
2.2 Access Through a Third-Party Account. You may link your Account with Third-Party Accounts by allowing Forfeit to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Forfeit and/or grant Forfeit access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Forfeit to pay any fees or making Forfeit subject to any usage limitations imposed by such third-party service providers. YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND FORFEIT DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. Forfeit makes no effort to review any Third-Party Account Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Forfeit is not responsible for any Third-Party Account Content.
2.3 Registration Data. In registering an account on the Service, you shall (i) provide true, accurate, current, and complete information about yourself as prompted by the registration form (the “Registration Data”), and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current, and complete.
2.4 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and will forever be owned by and inure to the benefit of Forfeit. Furthermore, you are responsible for all activities that occur under your Account. You shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Service by minors. You are responsible for any use of your credit card or other payment instrument (e.g., PayPal) by minors. You may not share your Account or password with anyone, and you agree to notify Forfeit immediately of any unauthorized use of your password or any other breach of security. If you provide any information that is untrue, inaccurate, not current, or incomplete, or Forfeit has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current, or incomplete, Forfeit has the right to suspend or terminate your Account and refuse any and all current or future use of the Service (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You shall not have more than one Account per platform at any given time. Forfeit reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Service if you have been previously removed by Forfeit, or if you have been previously banned from any of the Service.
2.5 Necessary Equipment and Software. You must provide all Devices and other equipment or software necessary to access or use the Service. You are solely responsible for any fees, including internet connection or mobile fees, that you incur when accessing the Service.
3. RESPONSIBILITY FOR CONTENT.
3.1 Types of Content. You acknowledge that any information, data, text, software, music, sound, photographs, graphics, video, messages, tags, and/or other materials accessible through the Service (collectively, “Content”), is the sole responsibility of the party from whom such Content originated. This means that you, and not Forfeit, are entirely responsible for all Content that you upload, post, email, transmit, or otherwise make available (“Make Available”) through the Service, including the Third-Party Account Content (“Your Content”), and that other users of the Service, and not Forfeit, are similarly responsible for all Content that they Make Available through the Service (“User Content”). Your Content in your profile may not contain nudity, violence, sexually explicit, or offensive subject matter as determined by Forfeit in its sole discretion. You may not post or submit for print services a photograph of another person without that person’s permission.
3.2 Storage. Unless expressly agreed to by Forfeit in writing elsewhere, Forfeit has no obligation to store any of Your Content. Forfeit has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit, or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Service. Certain features and functionality of the Service may enable you to specify the level at which the Service restricts access to Your Content. In such cases, you are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that Forfeit retains the right to create reasonable limits on Forfeit’s use and storage of Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Service and as otherwise determined by Forfeit in its sole discretion.
4. OWNERSHIP.
4.1 The Service. Except with respect to Your Content and User Content (each as defined below), you agree that Forfeit and its suppliers or licensors own all rights, title and interest in the Service (including but not limited to, any computer code, themes, objects, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, documentation, and Forfeit software). You shall not remove, alter, or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any the Service.
4.2 Trademarks. Forfeit, Inc and all related stylizations, graphics, logos, service marks, and trade names used on or with the Service are the trademarks of Forfeit and may not be used without permission in connection with your, or any third-party, products, or services. Other trademarks, service marks and trade names that may appear on or in the Service are the property of their respective owners.
4.3 Your Content. Forfeit does not claim ownership of Your Content. However, when you Make Available any Content on or in the Service, you represent that you own and/or have sufficient rights to Your Content to grant the license set forth in Section 4.4 (License to Your Content).
4.4 License to Your Content. Subject to any applicable Account settings that you select, you grant Forfeit a non-exclusive, transferable, perpetual, irrevocable, worldwide, fully-paid, royalty-free right (including any moral rights) license to use, copy, reproduce, modify, adapt, prepare derivative works from, translate, distribute Your Content (in whole or in part) for the purposes of operating and providing the Service to you and to our other users. Please remember that other users may be able to search for, see, use, modify and/or reproduce any of Your Content that you submit to any “public” area of the Service.
4.5 Username. Notwithstanding anything contained herein to the contrary, by submitting Your Content to any area on the Service, including your user profile, you hereby expressly permit Forfeit to identify you by your username (which may be a pseudonym) as the contributor of Your Content in any publication in any form, media or technology now known or later developed in connection with Your Content.
4.6 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Forfeit through its suggestion, feedback, forum, or similar pages (“Feedback”) is at your own risk and that Forfeit has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Forfeit a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Service and/or Forfeit’s business.
5. USER CONDUCT AND CERTAIN RESTRICTIONS. As a condition of use, you agree not to use the Service for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party) to: (i) license, sell, rent, lease, transfer, assign, reproduce, distribute, host, or otherwise commercially exploit the Service or any portion of the Service; (ii) frame or utilize framing techniques to enclose any trademark or logo located on the Service or any other portion of the Service (including images, text, page layout or form); (iii) use any metatags or other “hidden text” using Forfeit’s name or trademarks; (iv) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Service except to the extent the foregoing restrictions are expressly prohibited by applicable law; (v) use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Service (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Service for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (vi) remove or destroy any copyright notices or other proprietary markings contained on or in the Service; or (vii) take any action or Make Available any Content on or through the Service that: (A) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (B) constitutes unauthorized or unsolicited advertising, junk or bulk email; (iii) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without Forfeit’s prior written consent; (iv) impersonates any person or entity, including any employee or representative of Forfeit; or (v) interferes with or attempts to interfere with the proper functioning of the Service or use the Service in any way not expressly permitted by this Agreement, including but not limited to violating or attempting to violate any security features of the Service, introducing viruses, worms, or similar harmful code into the Service, or interfering or attempting to interfere with use of the Services by any other user, host, or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Service. The rights granted to you in this Agreement are subject to your compliance with the restrictions set forth in this section. Any unauthorized use of the Service terminates the licenses granted by Forfeit pursuant to this Agreement.
6. INVESTIGATIONS, MONITORING, & NO OBLIGATION TO PRE-SCREEN CONTENT. Forfeit may, but is not obligated to, investigate, monitor, pre-screen, remove, refuse, or review the Service and/or Content, including Your Content and User Content, at any time. You hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications.
Without limiting the foregoing, Forfeit reserves the right to: (a) remove or refuse to post any of Your Content for any or no reason in our sole discretion; (b) take any action with respect to any of Your Content that we deem necessary or appropriate in our sole discretion, including if we believe that such Content violates this Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Service or the public, or could create liability for Forfeit; (c) disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy; (d) take appropriate legal action, including without limitation, referral to and cooperation with law enforcement and/or other applicable legal authorities, for any illegal or unauthorized use of the Service or if Forfeit otherwise believes that criminal activity has occurred; and/or (e) terminate or suspend your access to all or part of the Service for any or no reason, including without limitation, any violation of this Agreement. Upon determination of any possible violations by you of any provision of this Agreement, Forfeit, may, at its sole discretion immediately terminate your license to use the Service, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
If Forfeit believes that criminal activity has occurred, Forfeit reserves the right to, except to the extent prohibited by applicable law, disclose any information or materials on or in the Service, including Your Content, in Forfeit’s possession in connection with your use of the Service, to (i) comply with applicable laws, legal process or governmental request, (ii) enforce this Agreement, (iii) respond to any claims that Your Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of Forfeit, its users or the public, and all enforcement or other government officials, as Forfeit in its sole discretion believes to be necessary or appropriate.
7. INTERACTIONS WITH OTHER USERS.
7.1 User Responsibility. You are solely responsible for your interactions with other users of the Service and any other parties with whom you interact through the Service; provided, however, that Forfeit reserves the right, but has no obligation, to intercede in any disputes between you and any other users. You agree that Forfeit will not be responsible for any liability incurred as the result of your interactions with other users.
7.2 Content Provided by Other Users. The Service may contain User Content provided by other users. Forfeit is not responsible for and does not control User Content. Forfeit does not approve or endorse, or make any representations or warranties with respect to, User Content. You use all User Content and interact with other users at your own risk.
8. THIRD-PARTY SERVICE.
8.1 Third-Party Websites, Applications and Ads. The Service may contain links to third-party websites (“Third-Party Websites”) and applications (“Third-Party Applications”) (collectively, the “Third-Party Services”). When you click on a link to a Third-Party Services we will not warn you that you have left the Service and you become subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Services are not under the control of Forfeit. Forfeit is not responsible for any Third-Party Services. Forfeit provides these Third-Party Services only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Services , or any product or service provided in connection therewith. You use all links in Third-Party Services at your own risk. When you leave our Service, this Agreement and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Services and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
8.1 (a) Sharing Your Content and Information Through Third-Party Services. Forfeit may provide tools through the Service that enable you to export information, including Your Content, to Third-Party Services, including through features that allow you to link your Account with an SNS account, or through our implementation of third-party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that Forfeit may transfer that information to the applicable Third-Party Service. Forfeit is not responsible for any Third-Party Service’s use of your exported information.
8.2 Third-Party Application Access. With respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you shall only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple Media Terms of Service, except that such App Store Sourced Application may be accessed, acquired, and used by other accounts associated with the purchaser via Apple’s Family Sharing function, volume purchasing, or Legacy Contacts function. Notwithstanding the first sentence in this section, with respect to any Application accessed through or downloaded from the Google Play store (a “Google Play Sourced Application”), you may have additional license rights with respect to use of the Application on a shared basis within your designated family group.
8.3 Accessing and Downloading the Application from the Apple App Store. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
8.3 (a) You acknowledge and agree that (i) this Agreement is concluded between you and Forfeit only, and not Apple, and (ii) Forfeit, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
8.3 (b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
8.3 (c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Forfeit and Apple, any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Forfeit.
8.3 (d) You and Forfeit acknowledge that, as between Forfeit and Apple, Apple is not responsible for addressing any claims you have or of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
8.3 (e) You and Forfeit acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Forfeit and Apple, Forfeit, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement.
8.3 (f) You and Forfeit acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
8.3 (g) Without limiting any other terms of this Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
9. FEES AND PURCHASE TERMS.
9.1 Third-Party Service Provider. The Forfeit uses Stripe, Inc. and its affiliates as the third-party service provider for payment services (e.g., card acceptance, merchant settlement, and related services) (“Third-Party Service Provider”). By buying or selling on any portion of the Service, you shall provide your payment details and any additional information required to complete your order directly to our Third-Party Service Provider. You agree to be bound by Stripe’s Privacy Policy (currently accessible at https://stripe.com/us/privacy) and its Terms of Service (currently accessible at https://stripe.com/ssa) and hereby consent and authorize the Forfeit and Stripe to share any information and payment instructions you provide with one or more Third-Party Service Provider(s) to the minimum extent required to complete your transactions. Please note that online payment transactions may be subject to validation checks by our Third-Party Service Provider and your card issuer, and we are not responsible if your card issuer declines to authorize payment for any reason. For your protection, our Third-Party Service Provider uses various fraud prevention protocols and industry standard verification systems to reduce fraud and you authorize it to verify and authenticate your payment information. Your card issuer may charge you an online handling fee or processing fee. We are not responsible for this. In some jurisdictions, our Third-Party Service Provider may use third parties under strict confidentiality and data protection requirements for the purposes of payment processing services.
9.2 Payment. If you fail to verify a Commitment, you will be charged, and you shall pay all such fees or charges (“Fees”), up to the Penalty amount that you have selected for that Commitment. Forfeit reserves the right to charge your payment method for each Penalty incurred, and, if you fail to verify the same Commitment subsequently, Forfeit is authorized to charge your payment method for each such failure, provided Forfeit will stop charging the Penalty for a given Commitment after you have been charged a Penalty for three (3) successive failures in a row. You must provide Forfeit and our Third-Party Service Provider with accurate and up-to-date payment information, as a condition to purchasing the Service. Your agreement with your payment provider (e.g., card-issuing bank, PayPal, etc.) (each, a “Payment Provider”) governs your use of your payment method, and you must refer to that agreement, not this Agreement, to determine your rights and liabilities. By providing Forfeit and/or our Third-Party Service Provider with your payment information, you agree that Forfeit and/or our Third-Party Service Provider is authorized to immediately invoice your Account for all Fees due and payable to Forfeit hereunder and that no additional notice or consent is required. You shall immediately notify Forfeit of any change in your payment information to maintain its completeness and accuracy. Forfeit reserves the right at any time to change its prices and billing methods in its sole discretion. You will not be charged a higher Fee without notifying you of any changes to the Fees. You agree to have sufficient funds or credit available upon placement of any order to ensure that the purchase price is collectible by us. Your failure to provide accurate payment information to Forfeit and/or our Third-Party Service Provider or our inability to collect payment from your Payment Provider constitutes your material breach of this Agreement. Except as set forth in this Agreement, all Fees for the Service are non-refundable.
10. DISCLAIMER OF WARRANTIES.
10.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK, AND THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. FORFEIT PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENTARISING FROM USE OF THE SERVICE.
10.1 (a) FORFEIT PARTIES MAKE NO WARRANTY, REPRESENTATION, OR CONDITION THAT: (1) THE SERVICE WILL MEET YOUR REQUIREMENTS (SUCH AS THE QUALITY, EFFECTIVENESS, REPUTATION, AND OTHER CHARACTERISTICS OF SERVICE); OR (2) YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.
10.1 (b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICE IS ACCESSED AT YOUR OWN RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICE, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
10.1 (c) FROM TIME TO TIME, FORFEIT MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT FORFEIT’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
10.2 No Liability for Conduct of Third Parties. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH THIRD PARTIES TO THE SERVICE. YOU ACKNOWLEDGE AND AGREE THAT FORFEIT PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD FORFEIT PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF ECONOMIC DAMAGES FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. YOU UNDERSTAND THAT FORFEIT DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS. FORFEIT MAKES NO WARRANTY THAT THE GOODS OR SERVICE PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS.
11. LIMITATION OF LIABILITY.
11.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL FORFEIT PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT FORFEIT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICE OR THIRD PARTIES, ON ANY THEORY OF LIABILITY, INCLUDING TO THE EXTENT RESULTING FROM: (i) THE USE OR INABILITY TO USE THE SERVICE; (ii) ANY GOODS, DATA, INFORMATION OR SERVICE PURCHASED OR OBTAINED; OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATED TO THE SERVICE, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATION OF LIABILITY DOES NOT APPLY TO LIABILITY OF A FORFEIT PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A FORFEIT PARTY’S NEGLIGENCE; OR FOR (A) ANY INJURY CAUSED BY A FORFEIT PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION. FORFEIT DOES NOT IN ANY WAY SEEK TO EXCLUDE OR LIMIT LIABILITY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY FORFEIT’S NEGLIGENCE; (ii) FRAUD OR FRAUDULENT MISREPRESENTATION; OR (iii) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY ENGLISH OR EU LAW.
11.2 Cap on Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, FORFEIT PARTIES SHALL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (i) THE TOTAL AMOUNT PAID TO FORFEIT BY YOU DURING THE THREE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; (ii) $100; OR (iii) IF APPLICABLE, THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY DOES NOT APPLY TO LIABILITY OF A FORFEIT PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A FORFEIT PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A FORFEIT PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
11.3 User Content. FORFEIT ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
11.4 Exclusion of Damages. THE FOREGOING LIMITATIONS OF LIABILITY APPLY TO THE FULLEST EXTENT ALLOWED BY LAW.
11.5 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN FORFEIT AND YOU.
12. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT. It is Forfeit’s policy to terminate membership privileges of any user who repeatedly infringes copyright upon prompt notification to Forfeit by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Service in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that you claim has been infringed; (iii) a description of the location on the Service of the material that you claim is infringing; (iv) your address, telephone number and email address; (v) a written 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 (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Forfeit’s Copyright Agent for notice of claims of copyright infringement is as follows: [Include name or title, and physical address of Copyright Agent].
13. TERM AND TERMINATION.
13.1. Term. The term of this Agreement commences on the date when you accept this Agreement (as described in the preamble above) and continues in full force and effect while you use the Service, unless terminated earlier in accordance with this Agreement.
13.2 Termination of Service. If you have materially breached any provision of this Agreement, or if Forfeit is required to do so by law (e.g., where the provision of the Service is, or becomes, unlawful), Forfeit has the right to, immediately and without notice, suspend or terminate any Service provided to you. Forfeit reserves the right to terminate this Agreement or your access to the Service at any time without cause upon notice to you. You agree that all terminations for cause are made in Forfeit’s sole discretion and that Forfeit shall not be liable to you or any third party for any termination of your Account.
13.3 Termination by You. If you want to terminate this Agreement, you may do so by cancelling your Account for all of the Service that you use ANY SUCH TERMINATION WILL BE EFFECTIVE IMMEDIATELY.
13.4 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Service also includes deletion of your password and all related information, files, and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate. You understand that any termination of Service may involve deletion of Your Content, if any, associated therewith from our live databases. Forfeit will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of this Agreement which by their nature should survive, will survive termination of Service, including without limitation, ownership provisions, warranty disclaimers, and limitations of liability.
13.5 No Subsequent Registration. If this Agreement is terminated for cause by Forfeit or if your Account or ability to access the Service is discontinued by Forfeit due to your violation of any portion of this Agreement or for conduct otherwise deemed inappropriate, then you agree that you shall not attempt to re-register with or access the Service through use of a different name or otherwise.
14. INTERNATIONAL USERS. The Service may be accessed from countries around the world and may contain references to Service and Content that are not available in your country. These references do not imply that Forfeit intends to announce such Service or Content in your country. The Service is controlled and offered by Forfeit from its facilities in the United States of America. Forfeit makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other countries do so at their own volition and are responsible for compliance with local law.
15. ARBITRATION AGREEMENT. Please read this section (the “Arbitration Agreement”) carefully. It is part of your contract with Forfeit and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
15.1 Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and Forfeit agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Service, any communications you receive, any products sold or distributed through the Service or this Agreement and prior versions of this Agreement, including claims and disputes that arose between you and us before the effective date of this Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (i) you and Forfeit may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (ii) you or Forfeit may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of this Agreement as well as claims that may arise after the termination of this Agreement.
15.2 Informal Dispute Resolution. There might be instances when a Dispute arises between you and Forfeit. If that occurs, Forfeit is committed to working with you to reach a reasonable resolution. You and Forfeit agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome (“Informal Dispute Resolution”). You and Forfeit therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.
The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within forty-five (45) days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to Forfeit that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to josh@forfeit.app . The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your Account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute.
The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
15.3 Waiver of Jury Trial. YOU AND FORFEIT HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Forfeit are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 15.1 (Applicability of Arbitration Agreement). There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
15.4 Waiver of Class and Other Non-Individualized Relief. YOU AND FORFEIT AGREE THAT, EXCEPT AS SPECIFIED IN SECTION 15.9 (BATCH ARBITRATION), EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under Section 15.9 (Batch Arbitration). Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this Section are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Forfeit agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of California. All other Disputes shall be arbitrated or litigated in small claims court. This section does not prevent you or Forfeit from participating in a class-wide settlement of claims.
15.5 Rules and Forum. This Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and Forfeit agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf.
A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable Account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.
If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses 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 (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
Unless you and Forfeit otherwise agree, or the Batch Arbitration process discussed in Section 15.9 (Batch Arbitration) is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely as set forth in the applicable AAA Rules.
You and Forfeit agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
15.6 Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under Section 15.9 (Batch Arbitration) is triggered, the AAA will appoint the arbitrator for each batch.
15.7 Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to Section 15.4 (Waiver of Class and Other Non-Individualized Relief), including any claim that all or part of Section 15.4 (Waiver of Class and Other Non-Individualized Relief) is unenforceable, illegal, void or voidable, or that such Section 15.4 (Waiver of Class and Other Non-Individualized Relief) has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in Section 15.9 (Batch Arbitration), all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in Section 15.9 (Batch Arbitration). The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
15.8 Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Forfeit need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
15.9 Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Forfeit agree that in the event that there are one-hundred (100) or more individual Requests of a substantially similar nature filed against Forfeit by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Forfeit.
You and Forfeit agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.
This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
15.10 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: josh@forfeit.app, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
15.11 Invalidity, Expiration. Except as provided in Section 15.4 (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Forfeit as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
15.12 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Forfeit makes any future material change to this Arbitration Agreement, we will notify you. Unless you reject the change within thirty (30) days of such change become effective by writing to josh@forfeit.app, your continued use of the Service, including the acceptance of products and services offered on the Service following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of this Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Service, any communications you receive, any products sold or distributed through the Service or this Agreement, the provisions of this Arbitration Agreement as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement) remain in full force and effect. Forfeit will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of this Agreement.
16. GENERAL PROVISIONS.
16.1 Electronic Communications. The communications between you and Forfeit may take place via electronic means, whether you visit the Service or send Forfeit emails, or whether Forfeit posts notices on the Service or communicates with you via email. For contractual purposes, you (i) consent to receive communications from Forfeit in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Forfeit electronically provides to you satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
16.2 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Forfeit’s prior written consent. Forfeit may, without your consent, freely assign and transfer this Agreement, including any of its rights, obligations, or licenses granted under this Agreement. Any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
16.3 Force Majeure. Forfeit shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor, or materials. If a force majeure event occurs that affects Forfeit’s performance of its obligations under this Agreement: (i) Forfeit will contact you as soon as reasonably possible to notify you; and (ii) Forfeit’s obligations under this Agreement will be suspended and the time for Forfeit’s performance of its obligations will be extended for the duration of the force majeure event.
16.4 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Service, please contact us at: josh@forfeit.app. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
16.5 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Service of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
16.6 Agreement Updates. When changes are made, Forfeit will make a new copy of this Terms of Use and/or Supplemental Terms, as applicable, available on the Service, and we will also update the “Last Updated” date at the top of this Agreement. If we make any material changes, and you have registered an Account with us, we will also send an email with an updated copy of this Agreement to you at the last email address you provided to us pursuant to this Agreement. Unless otherwise stated in such update, any changes to this Agreement will be effective immediately for users without an Account. Forfeit may require you to provide consent to the updated Agreement in a specified manner before further use of the Service is permitted. IF YOU DO NOT AGREE TO ANY CHANGE(S) AFTER RECEIVING A NOTICE OF SUCH CHANGE(S), YOU SHALL STOP USING THE SERVICE.
16.7 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Forfeit agree that all claims and disputes arising out of or relating to this Agreement will be litigated exclusively in the state or federal courts located in California, if you are a resident of the United States.
16.8 Governing Law and Jurisdiction. IF YOU ARE A RESIDENT OF THE UNITED STATES,THIS AGREEMENT AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT. IF YOU ARE A RESIDENT OF THE UK OR EU, EACH PARTY IRREVOCABLY AGREES THAT THE COURTS OF ENGLAND AND WALES SHALL HAVE EXCLUSIVE OR NON-EXCLUSIVE JURISDICTION TO SETTLE ANY DISPUTE OR CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER OR FORMATION (INCLUDING NON-CONTRACTUAL DISPUTES OR CLAIMS).
16.9 Choice of Language. It is the express wish of the parties that this Agreement and all related documents have been drawn up in English. This Agreement, and any contract between you and us, are only in the English language. C’est la volonté expresse des parties que la presente convention ainsi que les documents qui s’y rattacent soient rediges en anglais.
16.10 Notice. Where Forfeit requires that you provide an email address, you are responsible for providing Forfeit with a valid and current email address. In the event that the email address you provided to Forfeit is not valid, or for any reason is not capable of delivering to you any notices required by this Agreement, Forfeit’s dispatch of the email containing such notice will nonetheless constitute effective notice. You may give notice to Forfeit at the following email address: josh@forfeit.app. Such notice shall be deemed given when received by Forfeit by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address.
16.11 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
16.12 Severability. If any portion of this Agreement is held invalid or unenforceable, that portion must be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions must remain in full force and effect.
16.13 Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
17. INTERNATIONAL PROVISIONS. The following provisions apply only if you are located in the countries listed below.
17.1 United Kingdom. A third party who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of this Agreement, but this does not affect any right or remedy of such third party which exists or is available apart from that Act.
17.2 Germany. Notwithstanding anything to the contrary in Section 11 (Limitation of Liability), Forfeit is also not liable for acts of simple negligence (unless they cause injuries to or death of any person), except when they are caused by a breach of any substantial contractual obligations (vertragswesentliche Pflichten).