Icebreaker Entertainment’s Terms and Conditions of Use

These terms and conditions of use (this “Agreement”) are entered into by and between you (“you” or “user”) and Icebreaker Entertainment, LLC, a New York limited liability company and owner of the Rescue Pop website, on behalf of itself and all its subsidiaries, affiliates, brands, and entities that it controls, (collectively, “Icebreaker,” “we,” “us,” or “our”).

This Agreement, together with any documents this Agreement expressly incorporates by reference, governs your access to and use of the websites, including the Rescue Pop website, social media accounts, content, information, features, tools, resources, online offerings, applications, and other products and services produced, maintained, distributed, or provided by Icebreaker, whether as a guest or a registered user (the “Services”).

 

Please read this Agreement carefully; it is a binding legal contract between you and Icebreaker.

 

  1. Acceptance of Agreement.

By accessing or using our Services or any other products or services made available or enabled via the Services, clicking on a button, or taking another action to signify your acceptance of this Agreement, you: (a) agree to be bound by this Agreement and any future amendments and additions to this Agreement as published through the Services; (b) represent you are of legal age in your jurisdiction of residence to form a binding contract; and (b) represent that you have the authority to enter into this Agreement personally and, if applicable, on behalf of any company, organization or other legal entity on whose behalf you use the Services. Except as otherwise provided herein, if you do not agree to be bound by this Agreement, you may not access or use our offered Services.

 

SECTION 19 OF THIS AGREEMENT IS AN ARBITRATION CLAUSE THAT REQUIRES MOST DISPUTES BETWEEN US TO BE RESOLVED THROUGH BINDING AND FINAL ARBITRATION INSTEAD OF IN COURT. SEE SECTION 19 FOR MORE INFORMATION REGARDING THIS ARBITRATION CLAUSE, AND HOW TO OPT OUT.

 

  1. Changes to this Agreement.

Subject to Section 19(i) of this Agreement, we may modify this Agreement or its policies at any time in our sole discretion. All changes are effective immediately when we post them. Your continued access and use of the Services following the posting of a revised Agreement means that you accept and agree to the changes. You should check this page regularly and review this Agreement so that you are aware of any changes, as they are binding and enforceable on you.

 

  1. Your Responsibilities.

You are responsible for obtaining and maintaining at your own cost all equipment and services needed for access to and use of the Services. When you register with us and each time you access the Services, you may be providing certain information about yourself. You agree that we may use any information that we obtain about you in accordance with the provisions of our Privacy Policy. If you elect to register with us, you agree to: (a) provide true, accurate, current, and complete information as prompted by the registration form; and (b) maintain and update such information to keep it true, accurate, current, and complete at all times. In addition, you agree not to use the Services to: (a) violate any local, state, national, or international regulation or law; (b) transmit any material that is abusive, harassing, tortious, defamatory, vulgar, pornographic, obscene, libelous, invasive of an individual’s privacy, hateful, or racially, ethnically, or otherwise objectionable; (c) transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation; (d) transmit any material that contains adware, malware, spyware, software viruses, or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (e) stalk, harass, or harm another individual, including revealing the real name of any fellow user that has chosen to use an alias on the Services; (f) impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity; (g) use any “robot,” “spider,” “rover,” “scraper” or any other data-mining technology or automatic or manual process to monitor, cache, frame, mask, extract data from, copy or distribute any data from the Services, our network or databases; or (h) interfere with or disrupt the Services or servers or our networks, or disobey any requirements, procedures, policies, or regulations of networks connected to the Services.

 

  1. User Submissions.

Icebreaker does not claim ownership of any information, data, text, music, sound, photographs, graphics, video, messages, tags or other materials you submit for display or distribution to us or others through the Services (collectively, “User Submissions”). As between you and us, you own all rights to your User Submissions. However, you grant to us and our affiliates, representatives, sublicensees and assigns an irrevocable, perpetual, non-exclusive, fully-paid, license (sublicensable through multiple tiers) throughout the universe to use, distribute, syndicate, license, reproduce, modify, adapt, publish, translate, publicly perform, create derivate works and publicly display your User Submissions (in whole or in part) in any format or medium now known or later developed; provided, however, that our exercise of our rights under the foregoing license shall at all times be subject to the limitations upon disclosure of your User Submissions imposed on us under our Privacy Policy. We reserve the right to display advertisements in connection with User Submissions and to use User Submissions for advertising and promotional purposes without any compensation to you. These advertisements may be targeted to the content or information stored on the Services. In consideration for us granting you access and use of the Services, you agree that we may place such advertisements throughout our Services. We do not pre-screen User Submissions, and you agree that you are solely responsible for all of your User Submissions. We are not required to host, display, or distribute any User Submissions, and may remove at any time or refuse any User Submissions in our sole discretion. We are not responsible for any loss, theft or damage of any kind to any User Submissions. You represent and warrant that your User Submissions and our authorized use of such submissions do not and will not infringe the rights of any third party (including, without limitation, intellectual property rights, rights of privacy or publicity, or any other legal or moral rights). You, and not we, are responsible for any consequences of sharing personal information about yourself on public areas of the Service, such as your home address or the home address of others.

 

We own all rights, title, and interests in any compilation, collective work or other derivative work created by us using or incorporating your User Submissions. When you use a feature on the Services that allows users to share, transform, readapt, modify, or combine User Submissions with other content, you grant us and our users an irrevocable, non-exclusive, royalty free, perpetual, right and license in the universe to use, reproduce, modify, display, remix, perform, distribute, redistribute, adapt, promote, create derivative works, and syndicate User Submissions in any medium and through any form of technology or distribution and to permit any derivative works to be licensed under these same license terms. The rights granted under this section will survive the termination of this Agreement.

 

All content and materials provided on the Services are intended for general information, general discussion, education, and entertainment purposes only. Do not construe that such content is either endorsed or verified by us. THE CONTENT IS PROVIDED “AS IS,” AND YOUR USE OR RELIANCE ON SUCH MATERIALS ARE SOLELY AT YOUR OWN RISK. For example, we are committed to providing information about various animal breeds, most notably cat and dog breeds. While breed characteristics and traits noted on the Services may be commonly associated with the breed, each animal is unique and may exhibit very different tendencies. Dogs and cats are individuals whose personalities vary. Our Services may also

contain information or content relating to pet nutrition, health and medical needs, including their treatment. We provide this content for informational purposes only and it is not meant to be a substitute for the advice provided to you by your own veterinarian or other licensed professional. You should not use our Services our any content you find on our Rescue Pop website to attempt to diagnose a pet’s medical condition. Please consult your own veterinarian or licensed professional.

 

  1. Feedback.

You agree that your submission of any ideas, suggestions, documents, and proposals to Icebreaker (“Feedback”) is at your own risk and that Icebreaker has no obligations with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Icebreaker the right to use any Feedback in any way at any time without any additional approval by you or compensation to you.

 

  1. Ownership of and License to Use Icebreaker Properties.

Use of the Services. Except with respect to User Submissions, Icebreaker and its suppliers own all rights, title and interest in the Services. The Services are protected by copyright, trademark, and other intellectual property laws throughout the world. Subject to this Agreement, Icebreaker grants you a limited license to use the Services solely for your personal, non-commercial purposes. Any future release, update or other addition to the Services shall be subject to this Agreement. Icebreaker, its suppliers and service providers reserve all rights not granted in this Agreement.

 

Trademarks. Rescue Pop’s stylized name and other related graphics, logos, service marks and trade names used on or in connection with the Services are the trademarks of Icebreaker and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners. You will not remove, alter or obscure any copyright notice, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.

 

  1. Restrictions on Use of Services.

The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion of the Services without our prior written approval; (b) you shall not frame or use framing techniques to enclose any trademark, logo or Services (including images, text, page layout or form) of Icebreaker, including but not limited to Rescue Pop; (c) you shall not use any metatags or other “hidden text” using Icebreaker’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not 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 the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Site 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); (f) you shall not access the Services to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services; (i) you shall not interfere with or attempt to interfere with the proper functioning of the Services or use the Services in any way not expressly permitted by this Agreement; and (j) you shall not attempt to harm our Services, including but not limited to, by violating or attempting to violate any related security features, introducing viruses, worms, or similar harmful code into the Services, 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 Services. Any unauthorized use of the Services terminates the licenses granted by Icebreaker pursuant to this Agreement.

 

  1. Copyright Infringement and Trademark Rights.

We respect the intellectual property rights of others. Accordingly, we have a policy of removing User Submissions that violate copyright law, suspending access to the Services (or any portion thereof) to any user who uses the Services in violation of copyright law, and/or terminating in appropriate circumstances the account of any user who uses the Services in violation of copyright law. Pursuant to Title 17 of the United States Code, Section 512, we have implemented procedures for receiving written notification of claimed copyright infringement and for processing such claims in accordance with such law. If you believe a user of the Services is infringing your copyright, please provide written notice to our agent listed below for notice of claims of copyright infringement.

 

Icebreaker Entertainment, LLC
Attn: General Counsel
201 E. 87th Street, Suite 3D
New York, NY 10128
Tel: (212) 360-1706
Email: info@rescuepop.com

 

Your written notice must: (a) contain your physical, “wet ink” signature; (b) identify the copyrighted work alleged to have been infringed; (c) identify the allegedly infringing material in a sufficiently precise manner to allow us to locate that material; (d) contain adequate information by which we can contact you (including postal address, telephone number, and e-mail address); (e) contain a statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, the copyright owner’s agent, or the law; (f) contain a statement that the information in the written notice is accurate; and (g) contain a statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner. Please do not send notices or inquiries unrelated to alleged copyright infringement to our designated copyright agent.

 

If you believe that your trademark is being used somewhere on the Services in a way that constitutes trademark infringement, the owner or an agent of the owner may notify us at info@rescuepop.com. We ask that any complaints provide the accurate identity of the owner, how we may contact you, and the specific nature of the alleged infringement.

 

  1. Termination.

At its sole discretion, Icebreaker may modify or discontinue the Services, or may modify, suspend or terminate your access to the Services, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Services, Icebreaker reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal or injunctive redress. Even after your right to use the Services is terminated, this Agreement will remain enforceable against you and unpaid amounts you owe to Icebreaker for Services purchased will remain due.

 

YOU AGREE THAT ICEBREAKER SHALL NOT BE LIABLE TO YOU OR ANY THIRD-PARTY FOR REMOVING YOUR USER SUBMISSIONS OR SUSPENDING OR TERMINATING YOUR ACCESS TO THE SERVICES (OR ANY PORTION THEREOF). Upon termination, we have no obligation to retain, store, or provide you with any data, information or other content that you uploaded, stored, or transferred on or through the Services. You may discontinue your participation in and access to the Services at any time.

 

  1. Modifications to the Services.

We reserve the right to modify or discontinue all or any aspect of the Services with or without notice to you. YOU AGREE THAT WE SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY SHOULD ICEBREAKER EXERCISE ITS RIGHT TO MODIFY OR DISCONTINUE THE SERVICES.

 

  1. Fees.

We reserve the right at any time to charge fees for access to the Services or to any specific new feature or content that we may introduce from time to time. In no event will you be charged for access to any Services unless we obtain your prior agreement to pay such fees. If you do not consent to the payment of such fees, however, you may not have access to paid content or services. Details regarding the content or services you will receive in exchange for fees, as well as the payment terms and conditions that apply, will be disclosed to you prior to your agreement to pay such fees. You agree to pay such fees if you sign up for any fee-based service. Any such terms and conditions shall be deemed to be a part of (and are hereby incorporated by reference into) this Agreement.

 

  1. Password and Security.

You are responsible for maintaining the confidentiality of your password to access the Services, and you are solely responsible for all activities that occur under your password. You agree to immediately notify us of any unauthorized use of your password or any other breach of security related to the Services. We reserve the right to require you to alter your password if we believe that your password is no longer secure. YOU AGREE THAT WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE ARISING FROM YOUR FAILURE TO ADEQUATELY SAFEGUARD YOUR PASSWORD.

 

  1. Third-Party Links and Affiliate Links.

The Services may contain links to third-party services such as third-party websites, applications, or ads (“Third-Party Links”). When you click on such a link, we will not warn you that you have left the Services. Icebreaker does not control and is not responsible for Third-Party Links and the contents of Third-Party Links. Icebreaker provides these Third-Party Links only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to them, or any content, products or services accessible through such links. Your use of all Third-Party Links is at your own risk.

 

The Services may also contain links to third-party products or services that are monetized using affiliate marketing partners or programs (“Affiliate Links”). If you purchase a product or service through an Affiliate Link, Icebreaker may receive revenue from that purchase.

 

  1. Applications.

We may offer software applications to help you gain access to our Services. In such circumstances, we grant you a personal, non-exclusive, non-transferable, limited license to install such software applications solely on the devices you will use to access the Services. You agree that we may provide you from time to time with automatic upgrades of these applications, which you will accept for installation. Please note that certain retail application stores that offer our applications may have separate sales terms that will be binding on you if you elect to download our applications from such merchants. Our software is a “commercial item,” as that term is defined in 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the software with only those rights set forth herein. Your use of the software must comply with all applicable import and export control laws and regulations of the United States and other countries.

 

  1. Indemnification.

You agree to indemnify and hold Icebreaker, its corporate parents, subsidiaries, and affiliates, and the officers, directors, employees, agents, representatives, partners and licensors of each (collectively, the “Icebreaker Parties”) harmless from any damages, losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any claims concerning: (a) User Submissions; (b) your misuse of the Services; (c) your violation of this Agreement; (d) your violation of any rights of another party, including any users; or (e) your violation of any applicable laws, rules or regulations. Icebreaker reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Icebreaker in asserting any available defenses. This provision does not require you to indemnify any of the Icebreaker Parties for any unconscionable commercial practice by such party or for such party’s negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact. You agree that the provisions in this section will survive any termination of this Agreement or your access to the Services.

 

  1. Disclaimer of Warranties.

YOU EXPRESSLY AGREE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK. WE PROVIDE THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO ICEBREAKER’S SERVICES (INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, AND NON-INFRINGEMENT). ICEBREAKER MAKES NO WARRANTY THAT ICEBREAKER’S SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. YOU ACKNOWLEDGE THAT ACCESS TO DATA (INCLUDING, BUT NOT LIMITED TO, DOCUMENTS, PHOTOGRAPHS, AND SOFTWARE FILES) STORED BY YOU OR OTHERS ON THE SERVICES IS NOT GUARANTEED AND THAT WE SHALL NOT BE RESPONSIBLE TO YOU FOR ANY LOSS OF DATA CAUSED BY THE SERVICES OR THEIR UNAVAILABILITY. WE MAKE NO WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES, OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE ARISING THEREFROM. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ICEBREAKER OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

 

CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

 

  1. Limitation of Liability.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE ICEBREAKER PARTIES SHALL NOT BE LIABLE FOR ANY LOSS OF PROFITS OR REVENUE OR FOR INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF DATA, PRODUCTION, OR USE, BUSINESS INTERRUPTION OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT ICEBREAKER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

UNDER NO CIRCUMSTANCES WILL THE TOTAL AGGREGATE AMOUNT THAT THE Icebreaker PARTIES ARE LIABLE TO YOU EXCEED THE GREATER OF (A) THE TOTAL AMOUNT ACTUALLY PAID TO ICEBREAKER BY YOU DURING THE THREE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY, (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE OR REGULATION UNDER WHICH SUCH CLAIM ARISES, OR (C) ONE HUNDRED DOLLARS ($100). THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF AN ICEBREAKER PARTY FOR (X) DEATH, TANGIBLE PROPERTY DAMAGE, OR PERSONAL INJURY CAUSED BY AN ICEBREAKER PARTY’S GROSS NEGLIGENCE OR FOR (Y) ANY INJURY CAUSED BY AN ICEBREAKER PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.

 

THE ICEBREAKER PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT, USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.

 

THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ICEBREAKER AND YOU.

 

THE LAWS OF SOME STATES DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU AND YOU MIGHT HAVE OTHER RIGHTS. IN ADDITION, THE FOREGOING DISCLAIMER OF PUNITIVE AND EXEMPLARY DAMAGES SHALL NOT APPLY TO USERS WHO RESIDE IN THE STATE OF NEW JERSEY.

 

  1. International Users.

The Services are based in the United States. Icebreaker makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.

 

  1. Dispute Resolution.

Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires you to arbitrate most disputes with Icebreaker and limits the manner in which you can seek relief from us.

 

(a) Applicability of Arbitration Agreement. You agree that any dispute between you and us relating in any way to the Services, our advertising or marketing practices, or this Agreement, will be resolved by binding arbitration, rather than in court, except that (a) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (b) you or Icebreaker 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). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.

 

IF YOU AGREE TO ARBITRATION WITH ICEBREAKER, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST ICEBREAKER ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING COVERED CLAIMS AGAINST ICEBREAKER ONLY IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS ARBITRATION AGREEMENT.

 

(b) Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to the following address:

 

Icebreaker Entertainment, LLC
Attn: General Counsel
201 E. 87th Street, Suite 3D
New York, NY 10128
Tel: (212) 360-1706
Email: info@rescuepop.com

 

The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims with an amount in controversy under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’ most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and you cannot obtain a waiver from JAMS, Icebreaker will pay them for you. In addition, Icebreaker will reimburse all such JAMS’ filing, administrative, hearing and/or other fees for claims with an amount in controversy totaling less than $10,000 unless the arbitrator determines the claims are frivolous.

 

You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

 

(c) Authority of Arbitrator. The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator will decide the rights and liabilities, if any, of you and Icebreaker. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.

 

(d) Waiver of Jury Trial. YOU AND ICEBREAKER HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT (OTHER THAN SMALL CLAIMS COURT AS PERMITTED HEREIN) AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Icebreaker are instead electing that all covered claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in section 19(a) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

 

(e) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, COLLECTIVE OR REPRESENTATIVE BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE FOR CLAIMS COVERED BY THIS ARBITRATION AGREEMENT, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Notwithstanding anything to the contrary herein, in the event that this section 19(e) is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor we shall be entitled to arbitration of such claim or dispute and instead the applicable claim or dispute shall be resolved in a court as set forth in section 20(e).

 

(f) 30-Day Right to Opt-Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending a timely written notice, within thirty-five (35) days after first becoming subject to this Arbitration Agreement, of your decision to opt-out to the following address:

 

Icebreaker Entertainment, LLC
Attn: General Counsel
201 E. 87th Street, Suite 3D
New York, NY 10128
Tel: (212) 360-1706
Email: info@rescuepop.com

 

Your notice must include your name and address, your username (if any), the email address you used to set up your account (if you have one), and a clear 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 with us or may enter into in the future with us.

 

(g) Severability. Subject to section 19(e), 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.

 

(h) Survival of Agreement. This Arbitration Agreement will survive the termination or expiration of the Agreement or your relationship with Icebreaker.

 

(i) Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Icebreaker makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) of which you had already provided notice to Icebreaker.

 

  1. General Provisions.

(a) Electronic Communications. The communications between you and Icebreaker use electronic means, whether you visit the Services or send Icebreaker e-mails, or whether Icebreaker posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Icebreaker in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications and documents that Icebreaker provides to you electronically will have the same legal effect that such communications or documents would have if they were set forth in “writing.” The foregoing sentence does not affect your statutory rights.

 

(b) Assignment. This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Icebreaker’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.

 

(c) Force Majeure. Icebreaker 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, embargoes, acts of civil or military authorities, fire, pandemics, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.

 

(d) Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us at the following address:

 

Icebreaker Entertainment, LLC
Attn: Customer Service
201 E. 87th Street, Suite 3D
New York, NY 10128
Tel: (212) 360-1706
Email: info@rescuepop.com

 

(e) Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Icebreaker agree that all claims and disputes arising out of or relating to this Agreement will be litigated exclusively in the state courts in New York, New York or federal courts located in the Southern District of New York.

 

(f) Governing Law. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of New York, consistent with the Federal Arbitration Act, without giving effect to any conflict of law or other 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 this agreement.

 

(g) Notice. Where Icebreaker requires that you provide an e-mail address, you are responsible for providing Icebreaker with your most current e-mail address. In the event that the last e-mail address you provided to Icebreaker is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by this Agreement, Icebreaker’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Icebreaker at the following address:

 

Icebreaker Entertainment, LLC
Attn: General Counsel
201 E. 87th Street, Suite 3D
New York, NY 10128
Tel: (212) 360-1706
Email: info@rescuepop.com

 

Such notice shall be deemed given when received by Icebreaker by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address.

 

(h) 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.

 

(i) Severability. Subject to Section 19(e), if any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.

 

(j) Export Control. You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Services, you represent and warrant that (x) 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 (y) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law.

 

(k) Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.

 

(l) Entire Agreement. This 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.        

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