Date of Last Revision: February 22, 2016
Welcome to Realtime Brackets!
Hubstar, Inc., doing business as Realtime Brackets (“Realtime Brackets,” “we,” “us,” “our”), provides its services (described below) to you through its website located at www.rtbrackets.com (the “Site”) and through its mobile applications and its related services provided in connection with partner sites (collectively, such services, including any new features and applications, and the Site, the “Service”), subject to the following Terms of Service (as amended from time to time, these “Terms of Service”). We reserve the right, in our sole discretion, to change or modify portions of these Terms of Service at any time. You should periodically visit this page to review the current Terms of Service so you are aware of any revisions to which you are bound. If we make any revisions, we will post them on this page and will indicate at the top of this page the date these Terms of Service were last revised. We may also notify you of any material changes, through a pop-up notice, email notification or through other reasonable means. Any such changes will become effective immediately. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new Terms of Service. If you do not agree to abide by these or any future Terms of Service, do not use or access (or continue to use or access) the Service.
THESE TERMS OF SERVICE CONTAINS AN ARBITRATION AGREEMENT, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION. UNDER THE ARBITRATION AGREEMENT, (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST REALTIME BRACKETS ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
Access and Use of the Service
Service Description: The Service is designed to serve as a single sign on destination for free-to-play skill- and prediction-based social games. Through the Service, you may access various sports content and have the opportunity to enter related games, such as the college basketball tournament competition.
Member Account, Password and Security: You are responsible for maintaining the confidentiality of your password and other account information that you use to access the Service, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify Realtime Brackets of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Service. Realtime Brackets will not be liable for any loss or damage arising from your failure to comply with your security obligations and this Section.
Modifications to Service: Realtime Brackets reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Realtime Brackets will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
General Practices Regarding Use and Storage: You acknowledge that Realtime Brackets may establish general practices and limits concerning use of the Service, including without limitation the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on Realtime Brackets’ servers on your behalf. You agree that Realtime Brackets has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Service. You acknowledge that Realtime Brackets reserves the right to terminate accounts that are inactive for an extended period of time or for any other reason. You further acknowledge that Realtime Brackets reserves the right to change these general practices and limits at any time, in our sole discretion, with or without notice.
Mobile Services: The Service includes certain services that are available via a mobile device, including (i) the ability to upload content to the Service via a mobile device, (ii) the ability to browse the Service and the Site from a mobile device and (iii) the ability to access games and certain other features through an application downloaded and installed on a mobile device (collectively, the “Mobile Services”). To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices.
For additional information on the Mobile Services and mobile applications, please see the section titled “Mobile Applications” below.
Conditions of Use
User Conduct: You are solely responsible for all code, video, images, information, data, text, software, music, sound, photographs, graphics, messages or other materials (“content”) that you upload, post, publish or display (hereinafter, “upload”) or email or otherwise use via the Service. The following are examples of the kind of content and/or use that is illegal or prohibited by Realtime Brackets. Realtime Brackets reserves the right to investigate and take appropriate legal action against anyone who, in Realtime Brackets’ sole discretion, violates this provision, including without limitation, removing the offending content from the Service, suspending or terminating the account of such violators and reporting such violators to the law enforcement authorities. You agree to not use the Service to:
email or otherwise upload any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains 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; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; or (vii) in the sole judgment of Realtime Brackets, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose Realtime Brackets or its users to any harm or liability of any type;
interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; or
violate any applicable local, state, national or international law, or any regulations having the force of law;
impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
post personally identifying information about others;
solicit personal information from anyone under the age of 18;
harvest or collect email addresses or other contact information of other users from the Service by electronic or other means for any purpose, including for the purpose of sending unsolicited emails or other unsolicited communications;
advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;
further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or
obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service.
Special Notice for International Use; Export Controls: Software available in connection with the Service and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. You expressly agree to comply with such restrictions and not to export or re-export any Software to countries or persons prohibited under the U.S. export control laws. By downloading or using any Software, you are expressly agreeing that you are not in a country where such export or use is prohibited or are a person or entity for which such export or use is prohibited. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Service, including as it concerns online conduct and acceptable content. We make no claims concerning whether Software may be downloaded, viewed, or be appropriate for use outside of the United States. You are solely responsible for your compliance with the laws of your specific jurisdiction regarding the import, export, or re-export of any Software.
Commercial Use Not Permitted: Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Service, use of the Service, or access to the Service. The Service is for your personal use.
Apple- and Google-Enabled Software Applications
As part of the Service, Realtime Brackets may offer mobile apps that are intended to be operated in connection with products made commercially available by Apple Inc. (“Apple,” and such apps, “Apple-Enabled Software”) or third parties that operate using the Android operating system, which is owned by Google Inc. (“Google,” which, together with Apple, is referred to herein as the “Marketplace Provider;”; such software together with the Apple-Enabled Software, the “Marketplace-Enabled Software”). With respect to the Marketplace Enabled Software, in addition to the other terms and conditions set forth in this Agreement, the following terms and conditions apply:
Realtime Brackets and you acknowledge that these Terms of Service are concluded between Realtime Brackets and you only, and not with the Marketplace Provider, and that as between Realtime Brackets and the Marketplace Provider, Realtime Brackets, not the Marketplace Provider, is solely responsible for the Marketplace-Enabled Software and the content thereof.
You may not use the Marketplace-Enabled Software in any manner that is in violation of or inconsistent with the usage rules set forth for Marketplace-Enabled Software in, or otherwise be in conflict with, the applicable market place terms of service (the “App Store Terms of Service”).
Your license to use the Marketplace-Enabled Software is limited to a non-transferable license to use the Marketplace-Enabled Software on an iOS Product or Android-based product, as applicable, that you own or control, as permitted by the usage rules set forth in the App Store Terms of Service.
The Marketplace Provider has no obligation whatsoever to provide any maintenance or support services with respect to the Marketplace-Enabled Software.
The Marketplace Provider is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to you, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be Realtime Brackets’ sole responsibility, to the extent it cannot be disclaimed under applicable law.
Realtime Brackets and you acknowledge that Realtime Brackets, not the Marketplace Provider, is responsible for addressing any claims of you or any third party relating to the Marketplace-Enabled Software or your possession and/or use of that Marketplace-Enabled Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Marketplace-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
In the event of any third-party claim that the Marketplace-Enabled Software or the end-user’s possession and use of that Marketplace-Enabled Software infringes that third party’s intellectual property rights, as between Realtime Brackets and the Marketplace Provider, Realtime Brackets, not the Marketplace Provider, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
If you have any questions, complaints or claims with respect to the Marketplace-Enabled Software, they should be directed to Realtime Brackets.
Realtime Brackets and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Service with respect to the Apple-Enabled Software, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you with respect to the Apple-Enabled Software as a third party beneficiary thereof.
The Google Play marketplace is owned and operated by Google. Your use of Google Play is governed by a legal agreement between you and Google consisting of the Google Terms of Service (found at http://www.google.com/accounts/TOS) and the Google Play Terms of Service (found at https://play.google.com/intl/en-US_us/about/play-terms.html). In addition, your use of Google Play is subject to the Google Play Business and Program Policies (http://play.google.com/about/android-developer-policies.html The Google Play Market Terms of Service, Google Play Business and Program Policies, and Google Terms of Service will take precedence in that order in the event of a conflict between them, to the extent of such conflict.
App Updates: You acknowledge and agree that we may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of our mobile app(s) and the Service. You consent to these updates and agree such updates may be automatically installed without providing any additional notice or receiving any additional consent from you. If you do not want such updates, your remedy is to stop using the applicable app. You acknowledge that you may be required to install updates to use our apps, and you agree to promptly install any updates Realtime Brackets provides if the update does not automatically install. By continuing to use an app after an update, you renew your agreement to these Terms of Service.
Push Messaging Express Consents: By consenting to receive content-related messages from Realtime Brackets when you register for a Realtime Brackets account, you expressly agree that we may communicate with you regarding an applicable app or the Service generally by push notification directed to your mobile device and that certain information about your usage of the app may be communicated to us.
Electronic Notices: By using the Service, you agree that we may communicate with you electronically via email regarding security, privacy and/or administrative issues relating to your use of the Service. If we learn of a security system’s breach, we may attempt to notify you electronically by posting a notice on the Service or sending an email to you. You may have a legal right to receive this notice in writing. To receive free written notice of a security breach (or to withdraw your consent from receiving electronic notice), please notify us at Support@rtbrackets.com.
Intellectual Property Rights
Service Content, Software and Trademarks: You acknowledge and agree that the Service may contain content or features that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws (“Service Content”). Except as expressly authorized by Realtime Brackets, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Service Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally upload to the Service. You may not remove or alter any proprietary notices or marks on the Service or any portion thereof. In connection with your use of the Service you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. Any use of the Service or the Service Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Service or distributed in connection therewith are the property of Realtime Brackets, our affiliates and our partners (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Realtime Brackets.
The Realtime Brackets name and logos are trademarks and service marks of Realtime Brackets (collectively the “Realtime Brackets Trademarks”). Other Realtime Brackets product and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Realtime Brackets. Nothing in these Terms of Service or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Realtime Brackets Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of Realtime Brackets Trademarks will inure to our exclusive benefit.
Third-Party Material: Under no circumstances will Realtime Brackets be liable in any way for any content or materials of any users or third parties, including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that Realtime Brackets does not pre-screen content provided by users or third parties, but that Realtime Brackets and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Service. Without limiting the foregoing, Realtime Brackets and its designees will have the right to remove any content that violates these Terms of Service or is deemed by Realtime Brackets, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
User Content Transmitted Through the Service: With respect to the content or other materials you upload through the Service or share with other users or recipients (collectively, “User Content”), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein , or that you otherwise have the right to grant the license set forth in this paragraph. You also acknowledge and agree that, to the extent that you include personal information in User Content, such personal information will be public, and we are not responsible for how others may use it. You are solely responsible for User Content and you or a third-party licensor, as appropriate, retain all rights in User Content not expressly granted in these Terms of Service. By uploading any User Content you hereby grant and will grant Realtime Brackets and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of the Service or the promotion, advertising or marketing thereof in any form, medium or technology now known or later developed.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Service (“Submissions”), provided by you to Realtime Brackets are non-confidential and Realtime Brackets will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You acknowledge and agree that Realtime Brackets may preserve content and may also disclose content, including but not limited to User Content, if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; (d) protect the rights, property, or personal safety of Realtime Brackets, its users and the public; or (e) to facilitate your voluntary entry into a game or contest hosted by a third party. You understand that the technical processing and transmission of the Service, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
Copyright Complaints: Realtime Brackets respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify Realtime Brackets of your infringement claim in accordance with the procedure set forth below.
Realtime Brackets will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to Realtime Brackets’ Copyright Agent at email@example.com (Subject line: “DMCA Takedown Request”). You may also contact us by mail at:
10 Union Street
Hingham, MA 02043
To be effective, the notification must be in writing and contain the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of where the material that you claim is infringing is located on the Service, with enough detail that we may find it on the Service;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
- a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Counter-Notice: If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the content in your User Content, you may send a written counter-notice containing the following information to the Copyright Agent:
- your physical or electronic signature;
- identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
- a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content;
- your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within Suffolk County, Massachusetts, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, Realtime Brackets will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.
Repeat Infringer Policy: In accordance with the DMCA and other applicable law, Realtime Brackets has adopted a policy of terminating, in appropriate circumstances and at Realtime Brackets' sole discretion, users who are deemed to be repeat infringers. Realtime Brackets may also at its sole discretion limit access to the Service and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
The Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet. In particular, the Service may provide links or other access to third-party sources that are hosting a related sports game or contest. Realtime Brackets has no control over and is not responsible such sites and resources, and links to such sites and resources do not indicate Realtime Brackets’ endorsement of or affiliation with such sites and resources. You further acknowledge and agree that Realtime Brackets will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Service are between you and the third party, and you agree that Realtime Brackets is not liable for any loss or claim that you may have against any such third party.
Social Networking Services
In addition, Realtime Brackets is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with Social Networking Services. As such, Realtime Brackets is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Social Networking Services. Realtime Brackets enables these features merely as a convenience and the integration or inclusion of such features does not imply an endorsement or recommendation of any Social Networking Service.
Indemnity and Release
You agree to release, defend, indemnify and hold Realtime Brackets and its affiliates and their officers, employees, directors, agents vendors, partners, contractors, agents, licensors or other representatives and all of their successors and assigns (collectively, the “Realtime BracketsParties”) harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Service, any User Content, your connection to the Service, your violation of these Terms of Service or your violation of any rights of another. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
Disclaimer of Warranties
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE REALTIME BRACKETS PARTIES EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
THE REALTIME BRACKETS PARTIES MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE REALTIME BRACKETS PARTIES WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE REALTIME BRACKETS PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM 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 RELATING TO THE SERVICE. IN NO EVENT WILL THE REALTIME BRACKETS PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID REALTIME BRACKETS IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
Dispute Resolution By Binding Arbitration: PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
Agreement to Arbitrate: This Section entitled “Dispute Resolution By Binding Arbitration” is referred to in these Terms of Service as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Realtime Brackets and/or the Realtime Brackets Parties, whether arising out of or relating to these Terms of Service (including any alleged breach thereof), the Service, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into these Terms of Service, you and Realtime Brackets are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
Prohibition of Class and Representative Actions and Non-Individualized Relief: YOU AND REALTIME BRACKETS AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND REALTIME BRACKETS AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S).
Pre-Arbitration Dispute Resolution: Realtime Brackets is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at Support@rtbrackets.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Realtime Brackets should be sent to Hubstar, Inc. at 10 Union Street, Hingham, MA 02043 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Realtime Brackets and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Realtime Brackets may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Realtime Brackets or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Realtime Brackets is entitled.
Arbitration Procedures: Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless Realtime Brackets and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, Realtime Brackets agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
Costs of Arbitration: Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is [$25,000] or less, at your request, Realtime Brackets will pay all Arbitration Fees. If the value of relief sought is more than [$25,000] and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Realtime Brackets will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Realtime Brackets will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
Confidentiality: All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
Severability: Without limiting the severability provision below in these Terms of Service, if a court or the arbitrator decides that any term or provision of this Arbitration Agreement other than Section (b) above is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of Section (b) is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of the Terms of Service will continue to apply.
Future Changes to Arbitration Agreement: Notwithstanding any provision in these Terms of Service to the contrary, Realtime Brackets agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending Realtime Brackets written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement.
You agree that Realtime Brackets, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service for lack of use or if Realtime Brackets believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. Realtime Brackets may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of these Terms of Service may be effected without prior notice, and acknowledge and agree that Realtime Brackets may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Realtime Brackets will not be liable to you or any third party for any termination of your access to the Service.
You may terminate your account at any time and for any reason by notifying us via email at Support@rtbrackets.com. Termination of your account will be effective within a commercially reasonable time after we receive notification from you.
You understand that your User Content may remain on the Service at Realtime Brackets’ discretion following the termination of your account unless you expressly request the removal of such User Content by contacting us at Support@rtbrackets.com. You understand that such content may remain on publicly viewable areas of the Service if other users have posted or reposted it, and that your User Content may remain on our servers or in our records after it is no longer viewable by other users of the Service.
You agree that you are solely responsible for your interactions with any other user in connection with the Service and Realtime Brackets will have no liability or responsibility with respect thereto. Realtime Brackets reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Service.
U.S. Government Restricted Rights
The Service and Software are provided with “RESTRICTED RIGHTS.” Use, duplication, or disclosure by the Government is subject to the restrictions contained in 48 CFR 52.227-19 and 48 CFR 252.227-7013 et seq. or its successor. Use of the Service or Software by the Government constitutes acknowledgement of our proprietary rights in the Service and Software.
These Terms of Service constitute the entire agreement between you and Realtime Brackets and govern your use of the Service, superseding any prior agreements between you and Realtime Brackets with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate or third-party services, third-party content or third-party software. These Terms of Service will be governed by the laws of the Commonwealth of Massachusetts without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Realtime Brackets agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Boston, Massachusetts. The failure of Realtime Brackets to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign these Terms of Service without the prior written consent of Realtime Brackets, but Realtime Brackets may assign or transfer these Terms of Service, in whole or in part, without restriction. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Service.
Questions? Concerns? Suggestions?
Please contact us at Support@rtbrackets.com to report any violations of these Terms of Service or to pose any questions regarding these Terms of Service or the Service.