TINYBUILD TERMS OF SERVICE
Last Updated: 9th of March 2021
These Terms of Service (“Terms”) apply to your access to and use of the websites, mobile applications, and other online products and services (collectively, the “Services”) provided by tinyBuild, LLC (“tinyBuild” or “we”). By using our Services, you agree to these Terms, including the mandatory arbitration provision and class action waiver in Section 12. If you do not agree to these Terms, do not use our Services.
You must be at least 16 years of age to use our Services. If you are under 18 years of age (or the age of legal majority where you live), you may use our Services only under the supervision of a parent or legal guardian who agrees to be bound by these Terms. If you are a parent or legal guardian of a user under the age of 18 (or the age of legal majority), you agree to be fully responsible for the acts or omissions of such user in relation to our Services. If you use our Services on behalf of another person or entity, (a) all references to “you” throughout these Terms will include that person or entity, (b) you represent that you are authorized to accept these Terms on that person’s or entity’s behalf, and (c) in the event you or the person or entity violates these Terms, the person or entity agrees to be responsible to us.
2 Prohibited Conduct
(a) You will not violate any applicable law, contract, intellectual property right or other third-party right or commit a tort, and you are solely responsible for your conduct while using our Services. You will not:
▪ Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
▪ Impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity;
▪ Sell, resell or commercially use our Services;
▪ Copy, reproduce, distribute, publicly perform or publicly display all or portions of our Services, except as expressly permitted by us or our licensors;
▪ Modify our Services, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Services;
▪ Use our Services other than for their intended purpose and in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Services or that could damage, disable, overburden or impair the functioning of our Services in any manner;
▪ Reverse engineer any aspect of our Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Services;
▪ Use any data mining, robots or similar data gathering or extraction methods designed to scrape or extract data from our Services;
▪ Develop or use any applications that interact with our Services without our prior written consent;
▪ Send or distribute spam, unsolicited or bulk commercial electronic communications, chain letters, or pyramid schemes;
▪ Bypass or ignore instructions contained in our robots.txt file; or
▪ Use our Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.
(b) Enforcement of this Section 2 is solely at tinyBuild’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances. In addition, this Section 2 does not create any private right of action on the part of any third party or any reasonable expectation that the Services will not contain any content that is prohibited by such rules.
(c) Please note that parental control protections (such as computer hardware, software or filtering services) may be commercially available to assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections should be available at: https://en.wikipedia.org/wiki/Comparison_of_content-control_software_and_providers (last checked on January 19, 2021).
3 Ownership; Limited License
The Services, including the text, graphics, images, photographs, videos, illustrations and other content contained therein, are owned by tinyBuild or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to the Services are reserved by us or our licensors. Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services. Any use of the Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited, will terminate the license granted herein and violate our intellectual property rights.
tinyBuild and our logos, our product or service names, our slogans and the look and feel of the Services are trademarks of tinyBuild and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Services are the property of their respective owners. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by us.
You may voluntarily submit or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials or other information about tinyBuild or our Services (collectively, “Feedback”). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including to develop, copy, publish, or improve the Feedback in tinyBuild’s sole discretion. You understand that tinyBuild may treat Feedback as nonconfidential.
6 Third-Party Content
We may provide information about third-party products, services, games, activities or events, or we may allow third parties to make their content and information available on or through the Services (collectively, “Third-Party Content”). We provide Third-Party Content as a service to those interested in such content. Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the third party. tinyBuild does not control or endorse, and makes no representations or warranties regarding, any Third-Party Content, and your access to and use of such Third-Party Content is at your own risk.
To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless tinyBuild and our respective officers, directors, agents, partners and employees (individually and collectively, the “tinyBuild Parties”) from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Claims”) arising out of or related to (a) your access to or use of the Services; (b) your violation of these Terms; (c) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); or (d) your conduct in connection with the Services. You agree to promptly notify tinyBuild Parties of any third-party Claims, cooperate with tinyBuild Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including attorneys' fees). You also agree that the tinyBuild Parties will have control of the defense or settlement, at tinyBuild's sole option, of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and tinyBuild or the other tinyBuild Parties.
Your use of our Services is at your sole risk. Except as otherwise provided in a writing by us, our Services and any content therein are provided “as is” and “as available” without warranties of any kind, either express or implied, including implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, tinyBuild does not represent or warrant that our Services are accurate, complete, reliable, current or error-free. While tinyBuild attempts to make your use of our Services safe, we cannot and do not represent or warrant that our Services or servers are free of viruses or other harmful components. You assume the entire risk as to the quality and performance of the Services.
9 Limitation of Liability
(a) To the fullest extent permitted by applicable law, tinyBuild and the other tinyBuild Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, strict liability, warranty, or otherwise—for any indirect, consequential, exemplary, incidental, punitive or special damages or lost profits, even if tinyBuild or the other tinyBuild Parties have been advised of the possibility of such damages.
(b) The total liability of tinyBuild and the other tinyBuild Parties for any claim arising out of or relating to these Terms or our Services, regardless of the form of the action, is limited to $10.
(c) The limitations set forth in this Section 9 will not limit or exclude liability for the gross negligence, fraud or intentional misconduct of tinyBuild or the other tinyBuild Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of certain other types ofdamages, so the above limitations or exclusions may not apply to you.
To the fullest extent permitted by applicable law, you release tinyBuild and the other tinyBuild Parties from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. If you are a consumer who resides in California, you hereby waive your rights under California Civil Code § 1542, which provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
11 Transfer and Processing Data
In order for us to provide our Services, you agree that we may process, transfer and store information about you in the United States and other countries, where you may not have the same rights and protections as you do under local law.
12 Dispute Resolution; Binding Arbitration
Please read the following section carefully because it requires you to arbitrate certain disputes and claims with tinyBuild and limits the manner in which you can seek relief from us, unless you opt out of arbitration by following the instructions set forth below. No class or representative actions or arbitrations are allowed under this arbitration provision. In addition, arbitration precludes you from suing in court or having a jury trial.
(a) No Representative Actions. You and tinyBuild agree that any dispute arising out of or related to these Terms or our Services is personal to you and tinyBuild and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action or any other type of representative proceeding.
(b) Arbitration of Disputes. Except for small claims disputes in which you or tinyBuild seeks to bring an individual action in small claims court located in the county of your billing address or disputes in which you or tinyBuild seeks injunctive or other equitable relief for the alleged infringement or misappropriation of intellectual property, you and tinyBuild waive your rights to a jury trial and to have any other dispute arising out of or related to these Terms or our Services, including claims related to privacy and data security, (collectively, “Disputes”) resolved in court. Instead, for any Dispute that you have against tinyBuild you agree to first contact tinyBuild and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to tinyBuild by email at firstname.lastname@example.org or by certified mail addressed to 1100 Bellevue Way NE, Ste 8A #317 Bellevue, WA, 98004. The Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the Dispute; and (c) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and tinyBuild cannot reach an agreement to resolve the Dispute within thirty (30) days after such Notice is received, then either party may submit the Dispute to binding arbitration administered by JAMS or, under the limited circumstances set forth above, in court. All Disputes submitted to JAMS will be resolved through confidential, binding arbitration before one arbitrator. Arbitration proceedings will be held in King County, Washington unless you are a consumer, in which case you may elect to hold the arbitration in your county of residence. For purposes of this Section 12, a “consumer” means a person using the Services for personal, family or household purposes. You and tinyBuild agree that Disputes will be held in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”). The most recent version of the JAMS Rules are available on the JAMS website and are hereby incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason.
(c) You and tinyBuild agree that these Terms affect interstate commerce and that the enforceability of this Section 12 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
(d) The arbitration will allow for the discovery or exchange of non-privileged information relevant to the Dispute. The arbitrator, tinyBuild, and you will maintain the confidentiality of any arbitration proceedings, judgments and awards, including information gathered, prepared and presented for purposes of the arbitration or related to the Dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality, unless the law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.
(e) You and tinyBuild agree that for any arbitration you initiate, you will pay the filing fee (up to a maximum of $250 if you are a consumer), and tinyBuild will pay the remaining JAMS fees and costs. For any arbitration initiated by tinyBuild, tinyBuild will pay all JAMS fees and costs. You and tinyBuild agree that the state or federal courts of the State of Washington and the United States sitting in King County, Washington have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
(f) Any Dispute must be filed within one year after the relevant claim arose; otherwise, the Dispute is permanently barred, which means that you and tinyBuild will not have the right to assert the claim.
(g) You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this Section 12 by emailing email@example.com. In order to be effective, the opt-out notice must include your full name and address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 13.
(h) If any portion of this Section 12 is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 12 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 12; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 12 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 12 will be enforceable.
13 Governing Law and Venue
Any dispute arising from these Terms and your use of the Services will be governed by and construed and enforced in accordance with the laws of Washington, except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of Washington or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of Washington and the United States, respectively, sitting in King County, Washington.
14 Modifying and Terminating our Services
We reserve the right to modify our Services or to suspend or stop providing all or portions of our Services at any time. You also have the right to stop using our Services at any time. We are not responsible for any loss or harm related to your inability to access or use our Services.
We may make changes to these Terms from time to time. If we make changes, we will provide you with notice of such changes, such as by sending an email, providing a notice through our Services or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of our Services after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop using our Services.
If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.
17 Additional Terms Applicable to Mobile Devices
The following terms apply if you install, access or use the Services on any device that contains the iOS mobile operating system (the “iOS App”) developed by Apple Inc. (“Apple”).
● Acknowledgement. You acknowledge that these Terms are concluded solely between us, and not with Apple, and tinyBuild, not Apple, is solely responsible for the iOS App and the content thereof. You further acknowledge that the usage rules for the iOS App are subject to any additional restrictions set forth in the Usage Rules for the Apple iOS App Store Terms of Service as of the date you download the App, and in the event of any conflict, the Usage Rules in the App Store will govern if they are more restrictive. You acknowledge and agree that you have had the opportunity to review the Usage Rules.
● Scope of License. The license granted to you is limited to a non-transferable license to use the iOS App on any iPhone, iPod touch or iPad that you own or control as permitted by the Usage Rules set forth in the Apple App Store Terms of Service.
● Maintenance and Support. You and tinyBuild acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
● Warranty. You acknowledge that Apple is not responsible for any product warranties, whether express or implied by law, with respect to the App. In the event of any failure of the iOS App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, paid to Apple for the iOS App by you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. The parties acknowledge that to the extent that there are any applicable warranties, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any such applicable warranty would be the sole responsibility of tinyBuild. However, you understand and agree that in accordance with these Terms, tinyBuild has disclaimed all warranties of any kind with respect to the App, and therefore, there are no warranties applicable to the App.
● Product Claims. You and tinyBuild acknowledge that as between Apple and tinyBuild, tinyBuild, not Apple, is responsible for addressing any claims relating to the iOS App or your possession and/or use of the iOS App, including, but not limited to (a) product liability claims, (b) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement, and (c) claims arising under consumer protection or similar legislation.
● Intellectual Property Rights. The parties acknowledge that, in the event of any third-party claim that the iOS App or your possession and use of the iOS App infringe that third party’s intellectual property rights, tinyBuild, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required under these Terms.
● Legal Compliance. You represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
● Developer Name and Address. Any questions, complaints or claims with respect to the iOS App should be directed to:
1100 BELLEVUE WAY NE, STE 8A # 317
BELLEVUE, WA, 98004, UNITED STATES
● Third-Party Terms of Agreement. You agree to comply with any applicable third-party terms when using the Services.
● Third-Party Beneficiary. The parties acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms, and that, 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 thereof).
The following terms apply if you install, access or use the Services on any device that contains the Android mobile operating system (the “Android App”) developed by Google, Inc. (“Google”):
● You acknowledge that these Terms are between You and us only, and not with Google.
● Your use of our Android App must comply with Google’s then-current Android Market Terms of Service.
● Google is only a provider of the Android Market where You obtained the Android App. We, and not Google, are solely responsible for our Android App and the Services and Content available thereon. Google has no obligation or liability to You with respect to Our Android App or these Terms.
● You acknowledge and agree that Google is a third-party beneficiary to the Terms as they relate to our Android App.
The failure of tinyBuild to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. These Terms reflect the entire agreement between the parties relating to the subject matter hereof and supersede all prior agreements, representations, statements and understandings of the parties. The section titles in these Terms are for convenience only and have no legal or contractual effect. Use of the word “including” will be interpreted to mean “including without limitation.” Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. You agree that communications and transactions between us may be conducted electronically.