Effective date: June 6, 2024
These Terms of Service (the “Terms”) and our Privacy Policy govern the relationship between you and Candlestick Tech, LLC (“Candlestick,” “our,” “we” or “us”) and apply to your use of the Services either as a business user that uses the Candlestick marketing platform or as an individual end user that signs up to receive marketing messages or other services from us. For business users, your access to and use of the Services may also be subject to additional terms or agreements between us and you.
Please read these Terms and our Privacy Policy carefully before using our Services. By signing up for Candlestick and using the Services, and by continuing to use the Services after any future changes to these Terms, you confirm that you have carefully read, understood, and agree to be bound to these Terms, particularly those provisions that restrict or exempt liabilities. In addition, our Privacy Policy describes how we collect, use, disclose, share, and otherwise process personal information when providing the Services, particularly for individual end users. If you do not agree to these Terms, or if you do not want us to collect, use, disclose, share, or otherwise process your information in the ways described in our Privacy Policy, you must not use (or you must stop using) the Services.
If you have accepted these Terms on behalf of a business user, you represent that you have been duly authorized with the authority to accept these Terms on behalf of that business user, and you expressly represent that the business user agrees to be bound by these Terms. In that case, the term “you” refers to the third party or parties on a joint and several basis. For individual end users, you must be 16 years of age or older and over the age of majority in your jurisdiction to use our Services. If you are under 18 years of age, or under the age of majority where you live, your legal guardian must provide consent to your use of the Services. As described below, you may not use the Services if United States law or other applicable law preclude you from receiving products from the United States or from using the Services.
SECTION 12 OF THESE TERMS CONTAINS AN INFORMAL DISPUTE RESOLUTION PROCESS, A BINDING AGREEMENT TO ARBITRATION, AND A CONSOLIDATED, CLASS ACTION, AND REPRESENTATIVE ACTION WAIVER, WHICH WAIVE YOUR RIGHT TO A COURT HEARING OR A TRIAL BEFORE A JUDGE OR JURY. IN ADDITION, SECTION 9 CONTAINS A RELEASE BY YOU OF CLAIMS FOR DAMAGE AGAINST US THAT MAY ARISE OUT OF THE USE OF THE ARRAY SERVICES. PLEASE READ THESE SECTIONS AND THESE TERMS CAREFULLY.
Candlestick operates a SMS marketing platform that helps drive player engagement and monetization through marketing messages and other services. The “Services” include our website, currently located at www.candlestick.com, the Candlestick software development kit (the “SDK”), the Candlestick marketing messages and other services, the Candlestick data platform, the technology used to provide the Services (as addressed in the EULA), and any related mobile applications, integrations, interfaces, features, and content. Candlestick may offer additional services or revise any of the Services, at its discretion, and these Terms will apply to all additional services or revised Services.
Our Messaging with You; Your Consent to Receive Text Messages — For individual end users, as part of the Services, you may receive push notifications, text messages, or other types of messages. As part of signing up for the Services or signing up through one of our partners (if applicable), you gave your consent to receive these marketing messages from Candlestick. Please note that messaging fees may apply depending on the message plan you have with your wireless carrier. If you have any questions about your text or data plan, please contact your wireless carrier.
You can cancel these messages at any time by replying “STOP.” After you send the SMS message “STOP” to us, we will send you an SMS message to confirm that you have been unsubscribed. If you want to join again, just send the SMS message “RESUME” to us, and we will start sending SMS messages to you again. Upon experiencing issues with the messaging program, please contact us at support@candlestick.com.
If you are experiencing issues with the messaging program you can reply with the keyword “HELP” for more assistance, or you can get help directly at support@candlestick.com. Carriers are not liable for delayed or undelivered messages.
Registration and Account Information — Individual end users create an account by signing up for the Services using their phone number (or other information). For business users, you may need to register and create an account to access the Services (or some portion of them). In either case, if you create an account, you must provide us with accurate, complete, and up-to-date account information. In addition, you may not authorize others to use your account, and you may not assign or otherwise transfer your account or these Terms to any other person or entity. You also understand that you must keep your account information secure and that you should not disclose your account credentials to anyone. You alone remain solely responsible for all activities that occur under your account, regardless of whether you know about them or not.
Updates or Changes to the Services or these Terms — Because our Services evolve over time, we may from time-to-time update, improve, enhance, conduct testing, and further develop the Services. In addition, we may add or remove functionalities or features of the Services at any time, and we may modify, suspend, restrict, terminate, or stop the Services (or any portion of them) at any time. We may also suspend, restrict, delete, or remove access to the Services (or any portion of them) or your account (if you have one) at any time. We may also modify or update these Terms at any time at our sole discretion. By continuing to use the Services after those modifications, you agree to be bound by the revised terms. If you do not agree to be bound by the revised Terms, then you must not use the Services anymore.
Third-Party Applications, Platforms, or Content — You understand that Candlestick operates independently of the third-party applications or platforms that may include the Services, allow individual end users to sign up for and access the Services, or be featured in the marketing messages or other services provided by Candlestick. You have an independent relationship with those third-party applications or platforms, governed by their terms of service or other documents. The Services may also include or feature third-party content. We are not responsible for the content, products, or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for, and assume all risk arising from, your use of any third-party apps, platforms, websites, or resources.
Your License to the Services — Subject to your agreement and continuing compliance with these Terms, we grant you a non-exclusive, non-transferable, non-sublicensable, revocable limited license to access and use the Services consistent with these Terms. You agree not to use the Services for any other purpose. Any unauthorized use will terminate this limited license and may also violate applicable laws.
Business Users’ License to Us — For business users, you hereby grant Candlestick a perpetual, irrevocable, sublicensable, non-exclusive, worldwide, and royalty-free right and license to copy, adapt, reproduce, distribute, display, publicly perform, and otherwise use your content, including artwork and graphics, including any intellectual property rights contained on these materials, for the purposes of providing the Services. In addition, you grant Candlestick all the necessary rights and permissions to: (a) use your digital assets’ intellectual property rights provided during the Services for the purpose of fulfilling Candlestick’s obligations; (b) if applicable, access, index, store, and cache requests made from digital assets to the Services; and (c) access and use your digital assets to provide the Services. You also grant Candlestick a perpetual, irrevocable, sublicensable, non-exclusive, worldwide, and royalty-free right and license to use and retain data collected from you for purposes of improving the Services.
Eligibility to Use the Services — You agree to use the Services consistent with these Terms and all laws and regulations, including United States export controls. In addition, you may not use the Services if you or any of your affiliates or, to your knowledge, any director, officer, manager, or employee of such entities: (i) cannot receive products, including services, from the United States (because for example you live in a country embargoed by the United States) or have been the target of sanctions by any governmental entity; and (ii) cannot access or use the Services in compliance with these Terms and under applicable laws.
Your Access to and Use of Our Software — For business users, you may have access to software development kits (SDKs), applications programming interfaces (APIs), pixels, other integrations, documentation, tools and assemblies, libraries, scripts, object code, sample source code, and similar developer material made available by Candlestick specifically for purposes of your access to and use of the Services. These Terms and the End User License Agreement (the “EULA”) govern your use of the software owned by Candlestick and provided to you only for purposes of the Services.
Except for the limited license granted herein, we and our licensors retain all legal right, title, and interest in and to the Services, including all of the intellectual property associated with the Services, the technologies used to provide the Services, any improvements or derivative products or services, and all other aspects of the Platform and the Services. We reserve all rights not expressly granted to you.
Restrictions on Your Access and Use — You agree not to access or use the Services (or any part of them) other than as permitted by these Terms. You agree not to modify, create derivative works based on, decompile, reverse engineer or disassemble, or otherwise attempt to extract source code from, the Services (or any part of them). In addition, you may not (a) copy, distribute, rent, lease, lend, sublicense, transfer or make the Services available to any third party; (b) attempt to defeat, avoid, by-pass, remove, deactivate or otherwise circumvent any software protection mechanisms in the Services; (c) modify, remove, or obscure any proprietary notices or legends that appear on the Services or during the use and operation thereof; (d) sell, assign, license, disclose, or otherwise transfer or make available the Services, any copies of the Services, or any information derived from the Services in any form to any third parties; or (e) remove or alter any proprietary notices or marks on the Services.
These Terms do not grant you or any other party any right, title, or interest in the Services, any content in the Services, or in our or our licensors’ trademarks, logos, and other intellectual property. We reserve all rights not expressly granted to you.
Our License to Your Feedback — If you make suggestions regarding any features, functionality, or performance of the Services that Candlestick adopts for any of its products or services, such features, functionality, and performance shall be deemed automatically assigned to Candlestick under these Terms and become our sole and exclusive property (without any obligation to compensate you). To the extent permitted by applicable law, you waive any moral rights you may have in such suggestions and feedback.
Our Privacy Policy — Our Privacy Policy describes how we collect, use, disclose, share, and otherwise process your personal information when providing the Services, particularly for individual end users. When you use our Services, you acknowledge that the Privacy Policy applies. If you do not want us to collect, use, disclose, share, and otherwise process your information in the ways described in our Privacy Policy, you must not use our Services.
Data Processing Agreement — For business users, to the extent that the parties share any Personal Data (as defined under applicable data protection laws), the processing of that Personal Data will be governed by the terms of the data processing agreement (or a similar agreement) entered into between us and incorporated into and made a part of these Terms.
Invoices to Business Users — For purposes of your use of the Services, Candlestick may provide you with access to an online reporting system. You acknowledge and understand that Candlestick will invoice you for marketing messages and other services provided by the Services exclusively based on the numbers in Candlestick’s online reporting system. Unless otherwise indicated, payment will be due within thirty (30) days of the invoice date, and all amounts will be payable in U.S. Dollars.
Past Due Accounts — If your payment method fails or any account(s) becomes past due, Candlestick may take steps to collect past due amounts using any available mechanisms, including netting or offsetting any past due amounts from payments due to you under any other agreement with us or our corporate parents. You agree to pay all expenses associated with any such mechanism, including reasonable attorneys’ fees, court costs, or collections’ fees, plus interest accruing on any past due amounts at the lesser of 1% per month or the lawful maximum.
Taxes — You will pay any direct or indirect local, state, federal or foreign taxes, levies (including any equalization levy), duties, or similar governmental assessments of any nature, including but not limited to VAT, GST, excise, sales, use, consumption, and withholding taxes (collectively, “Taxes”) or other charges in connection with its use of the Services. Candlestick’s fees do not include Taxes and you agree to pay, in addition to such fees, all applicable Taxes imposed by any taxing authority in connection with your use of the Services.
Changes to Fees or Charges — Upon prior notice, Candlestick reserves the right to change its fees and to institute new charges at any time.
Candlestick Confidential Information — “Candlestick Confidential Information” includes: (a) all software, technology, and documentation relating to the Services and any other non-public technical or business information; (b) the existence of, and information about, beta features in the Services (or any aspect of them); (c) the terms of any order with Candlestick, pricing information related to the Services, and any statistics provided by Candlestick concerning your use of the Services; and (d) any other information made available to you by Candlestick that either has been marked as confidential or would ordinarily be considered confidential given the nature of the information or the relevant circumstances. Candlestick Confidential Information does not include information (i) that you already knew prior to your use of the Services, (ii) that becomes public through no fault of yours or breach by you of these Terms, (iii) that you independently developed without use of Candlestick Confidential Information, or (iv) that you rightfully obtained from a third party without restriction on use or disclosure.
Use and Disclosure Restrictions — You agree not to use Candlestick Confidential Information except as permitted under these Terms or any other agreement, terms, or policies that govern your access and use of the Services. You further agree not to disclose Candlestick Confidential Information without our prior written consent. In addition, without our prior written consent, you will not post, copy, modify, transmit, disclose, show in public, create any derivative works from, distribute, make commercial use of, or reproduce any (i) Candlestick Confidential Information or (ii) copyrighted material, trademarks, or other proprietary information accessible through the Services. These restrictions do not prevent you from disclosing Candlestick Confidential Information: (a) pursuant to a court order or other lawful process, provided that you first give Candlestick sufficient advance notice of such disclosure pursuant to any such order or other lawful process; and (b) on an as-needed confidential basis to your legal or financial advisors.
For business users, if you access and use the Services, you represent and warrant that: (i) you own each digital asset that you use in connection with the Services or that you have the legal authority and authorization to act on behalf of the owner of such digital asset for purposes of these Terms; (ii) you have all necessary rights, power, and authority to enter into these Terms and to perform the acts required hereunder; (iii) any data supplied or disclosed to Candlestick under or in connection with the Services shall be controlled, collected, and transferred in accordance with any applicable data protection laws and regulations; and (iv) any data supplied or disclosed to us includes all necessary rights, licenses, consents, and permissions for Candlestick to receive, use, share, and transfer such data as set forth in these Terms.
To allow us to provide the Services according to these Terms, you may choose to pass to us end users’ telephone numbers or contact information obtained by you. If you pass end users’ telephone numbers or contact information to us, you represent and warrant that the owners of those telephone numbers or contact information have provided appropriate consent or otherwise opted-in to receive communications from you (and your partners) in accordance with applicable laws. You understand and agree that you will not submit any telephone numbers or other contact information to us, and you will not initiate any communications to those telephone numbers or contacts, unless the owner of that telephone number or contact information has provided all necessary consents required by applicable laws, including the consent and opt-in required for us to provide the Services to them. You must also inform the owner of any telephone number or contact information that they cancel messages from us at any time by replying “STOP.”
You also represent and warrant that the digital assets that you use in connection with the Services: (a) comply with all applicable laws and (b) do not breach and have not breached any third-party rights.
For individual end users, nothing in these Terms affects the statutory rights that you may have as a consumer of the Services. Some jurisdictions do not allow the exclusion of certain warranties or the limitation of certain liabilities. In those jurisdictions, the exclusions and limitations below shall apply only to the extent permitted by the laws of these jurisdictions.
Warranty Disclaimers — You access and use the Services at your own sole risk. Candlestick provides the Services on an “as is” and “as available” basis, and explicitly disclaims all warranties of any kind to the full extent permitted by applicable law.
Limitation of our Liability and Cap on Damages — To the full extent permissible by law, you acknowledge and agree that neither we nor any other party involved in creating or delivering the Services (including our affiliates and corporate parents), will be liable:
THE RISK OF USING THE SERVICES RESTS ENTIRELY WITH YOU, AS DOES THE RISK OF ANY FORM OF INJURY FROM THE SERVICES OR THE CONDUCT OF THIRD PARTIES.
In addition, to the full extent permissible by law, the aggregate (or total) liability of us (and any other party involved in creating, producing, or delivering the Services, including our affiliates and corporate parents) to you arising out of or relating to these Terms, your relationship with us, or your use of or access to the Services will not exceed the lesser of (a) one thousand U.S. dollars (US$1,000) or (b) the total amount paid by you in the three (3) month period immediately before you first assert any claim. These limitations and exclusions regarding damages apply even if any remedy fails to provide adequate compensation. Notwithstanding anything in the foregoing, if no amount has been paid to you in the three (3) month period immediately before you first assert any claim, our aggregate (total) liability in any form of action whatsoever in connection with these Terms, your relationship with us, or your use of or access to the Services will be the total sum of twenty U.S. dollars (US$20).
For Individual End Users — To the full extent permitted under applicable law, you agree to defend, indemnify, and hold harmless Candlestick, its affiliates, parent corporations, and licensors, and their respective officers, directors, employees, contractors, agents, licensors, suppliers, insurers, and reinsurers from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) resulting from your use of the Services or violation of these Terms.
For Business Users — You will indemnify and hold Candlestick, its officers, managers, directors, employees, corporate parents, affiliates, and subsidiaries, and each of their respective legal representatives, successors, and assigns, harmless (and, at Candlestick’s request, defend Candlestick) against any and all claims, demands, losses, costs, liabilities, and expenses (including reasonable attorneys’ fees) relating to or arising out of (a) your use of the Services, (b) your violation of any term of these Terms, including your representations and warranties, (c) your violation of any third-party rights, or (d) your violation of any applicable laws, rules, or regulations.
Procedure for Indemnification — At Candlestick’s option, you will assume control of the defense, but Candlestick retains the right to elect to take over the defense at any time. You may not enter into a settlement covered by this indemnification clause without Candlestick’s prior written consent. If Candlestick elects to assume control of the defense, you agree to cooperate fully in that defense.
Termination by Us — We may suspend or terminate these Terms, your account(s), or your access to and use of the Services (or any portion of them) at any time, for any reason or no reason, and without notice or explanation to you. In addition, we reserve the right to remove your account information or data from the Services for any reason or no reason, and without notice or explanation to you.
Termination by You — You may terminate these Terms and cancel your account at any time by contacting us at support@candlestick.com. For individual end users, you can cancel marketing messages sent by Candlestick at any time by replying “STOP.”
Survival and Effect of Termination — Upon suspension or termination of these Terms, your account(s), or your access to and use of the Services (or any portion of them), your right to use the Services will immediately cease and, for business users, you must promptly remove all software and pay any amounts owed to Candlestick pursuant to the applicable invoices. In addition, all provisions of these Terms which by their nature should survive will survive, including the confidentiality provisions, fees and payments, indemnification, warranty disclaimers, limitations of our liability, and dispute resolution provisions.
These Terms, and all claims or defenses based on, arising out of, or related to these Terms or our relationship under these Terms, including those arising from or related to the negotiation, execution, performance, or breach of these Terms, shall be governed by, and enforced in accordance with, the internal laws of the State of California, without reference to its choice of law rules or any principle calling for application of the law of any other jurisdiction.
Except as provided below, any disputes not subject to the Agreement to Arbitration set forth in these Terms shall be heard only in the state or federal courts located in Santa Clara County, California, unless we mutually agree to some other location. Each of us consents to venue and personal jurisdiction in Santa Clara County, California, for purposes of any such action.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND INCLUDES WAIVER OF A TRIAL BY JURY IN A COURT AND OF THE ABILITY TO BRING ANY CLASS ACTIONS OR REPRESENTATIVE ACTIONS.
Notice of Claim and Required Informal Dispute Resolution Process
In the event of any controversy or claim arising out of or relating to these Terms, we shall consult and negotiate with each other and, recognizing our mutual interests, attempt to reach a satisfactory solution, through first contacting Customer Support and then through the Informal Dispute Resolution Process described below. If these informal efforts do not resolve the concern or issue, as explained in more detail below, we each agree to resolve any dispute between us through binding arbitration or small claims court instead of in courts of general jurisdiction.
If you have any concerns about, or experience any issue with, the Services, most concerns or issues can be resolved by contacting us at support@candlestick.com. Before initiating the Informal Dispute Resolution Process (as described below) or any arbitration or court proceeding pursuant to this Section, you must first contact us to address your concerns or issues. Most disputes can be resolved that way.
If you have any concern or dispute that we cannot resolve, you agree to then try to resolve the dispute informally (the “Informal Dispute Resolution Process”) and in good faith by contacting us and providing a written notice of claim (the “Notice of Claim”) by sending an email to support@candlestick.com and legal@candlestick.com. For individual end users, the Notice of Claim must provide us with an individualized and detailed description of the nature and factual basis of your individual, personal claim(s), and the relief you seek. Your Notice of Claim may only include your individual personal claim(s) and may not be combined with a Notice of Claim for other individuals. After submitting your Notice of Claim, you then agree to meet and confer by email, telephonically, or by videoconference (such as Zoom), in good faith regarding your claim before taking any further action.
Except as provided below, if any dispute related to your Notice of Claim cannot be resolved through the Informal Dispute Resolution Process within sixty (60) days of our receipt of the Notice of Claim, this Section explains how you and we agree to resolve it. As explained in more detail below, we each agree to resolve any dispute between us through binding arbitration or small claims court instead of in courts of general jurisdiction. You understand and agree that you and we are giving up the right to sue in court and the right to have a trial before a judge or jury.
Agreement to Arbitration; Exceptions to Agreement to Arbitration
Except as provided below, if we cannot resolve our dispute through Customer Support or through an Informal Dispute Resolution Process (as described above), YOU AND WE AGREE TO RESOLVE ALL DISPUTES AND CLAIMS BETWEEN US IN INDIVIDUAL BINDING ARBITRATION, INCLUDING CLAIMS CONCERNING ANY ASPECT OF THE RELATIONSHIP BETWEEN US, THE SERVICES, OR THESE TERMS.
This Agreement to Arbitration is intended to be interpreted broadly, and it applies to all disputes or claims of any kind under any theory (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory) that you may have or assert against us.
You and we agree that the arbitrator shall have the exclusive authority to resolve any dispute arising out of or relating to these Terms or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope, applicability, or enforceability of this Agreement to Arbitration. This includes questions about whether any dispute between us is subject to this Agreement to Arbitration (i.e., the arbitrator will decide the arbitrability of any dispute) and whether all or any part of these terms are void or voidable.
Please note that an arbitration is a proceeding before a neutral arbitrator, instead of before a judge or jury. Arbitration is less formal than a lawsuit in court and provides more limited discovery. It follows different rules than court proceedings and is subject to very limited review by courts. The arbitrator will issue a written decision and provide a statement of reasons if requested by either party. YOU UNDERSTAND THAT YOU AND WE ARE GIVING UP THE RIGHT TO SUE IN COURT AND THE RIGHT TO HAVE A TRIAL BEFORE A JUDGE OR JURY.
Exceptions to Agreement to Arbitration
This Section does not apply to the following types of claims or disputes, which you or we may bring in court in accordance with these Terms:
For individual end users only — This Section does not prevent you from bringing your dispute to the attention of any federal, state, or local government agencies that can, if the law allows, seek relief from us for you. In addition, any of us can bring a claim in small claims court either in Santa Clara County, California, or the county where you live, or some other place we both agree on, if such claims meet the requirements to be brought in that small claims court. If either party files a claim in arbitration that could have been brought in small claims court, the other party may elect to resolve the claim through small claims court (rather than through arbitration) by providing notice to the other party before appointment of an arbitrator; upon receipt of such notice, the arbitration provider shall administratively close the case before assessing any fees, and the party bringing the claim must proceed in small claims court in lieu of arbitration.
Procedure for Arbitration
The Federal Arbitration Act applies to this Section. The arbitration will be governed by the (i) Streamlined Arbitration Rules & Procedures of JAMS and (ii) the Mass Arbitration Procedures and Guidelines of JAMS if five or more demands for arbitration are filed that share common factual or legal issues and if counsel for the parties submitting those demands are the same or coordinated (collectively the “Rules”), as modified by these Terms. The Rules are available at https://www.jamsadr.com/rules-streamlined-arbitration/ and https://www.jamsadr.com/mass-arbitration-procedures. The arbitrator will be bound by these Terms. In the event of a conflict between the rules of the arbitration provider and the Terms, including with respect to the assessment of the fees and costs of arbitration, these Terms will govern. In addition, the arbitrator shall administer and conduct any arbitration in accordance with California law, including the California Code of Civil Procedure, and the arbitrator shall apply substantive and procedural California law to any dispute or claim, without reference to rules or principles of conflicts of law. To the extent that the Rules conflict with California law, California law shall take precedence.
To start an arbitration proceeding, use the form available on the JAMS website (https://www.jamsadr.com/submit/). Any arbitration under this Section that must take place in person (rather than through a more convenient virtual forum) will take place pursuant to the Rules and these Terms. The parties agree that any live proceedings, including the arbitration hearing, will be conducted at a location reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances.
Except as provided below for individual end users, payment of all filing, administrative, arbitrator fees, and costs of arbitration will be governed by the Rules, except as modified by these Terms. Neither party shall be entitled to have their attorneys’ fees or costs paid by the other party; provided, however, that either party may seek to recover their attorneys’ fees and costs in arbitration if the arbitrator determines that the other party’s claims (or counterclaims) are frivolous or were brought for an improper purpose.
For individual end users only — If your claim is for US$25,000 or less, we agree to reimburse your share of the arbitration costs, including your share of arbitrator fees, at the conclusion of the proceeding, unless the arbitrator determines your claims are frivolous, your claims were brought for an improper purpose, or your arbitration costs are unreasonable as determined by the arbitrator. If you seek more than US$25,000, the arbitration costs, including arbitrator compensation, will be split between you and us according to the rules of the arbitration provider. Notwithstanding the above, if you demonstrate that you are unable to afford the fees or costs of arbitration, qualify for a statutory exemption, or if the arbitrator determines that your payment of any portion of the costs or fees would be cost-prohibitive (as compared to litigation), we will pay them. Irrespective of the amount you seek, neither party shall be entitled to have their attorneys’ fees or costs paid by the other party; provided, however, that either party may seek to recover their attorneys’ fees and costs in arbitration if the arbitrator determines that the other party’s claims (or counterclaims) are frivolous or were brought for an improper purpose.
For individual end users outside of the US only — In the event of any controversy or claim arising out of or relating to these Terms, including any question regarding its existence, validity, termination, or breach thereof, the parties shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a satisfactory solution. If they do not reach settlement within a period of sixty (60) days, then, upon notice by any party to the other(s), any unresolved controversy or claim shall be settled by arbitration administered by the International Centre for Dispute Resolution (“ICDR”) (www.icdr.org) in accordance with the provisions of its International Arbitration Rules. The place of arbitration shall be in London, England, and the number of arbitrators shall be one. The language to be used in the arbitral proceedings shall be English.
Except as may be required by law, neither a party nor its representatives may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of Studio. The European Union also operates an online dispute resolution platform which can be found at www.ec.europa.eu/consumers/odr.
Consolidated, Class Action, and Representative Action Waiver
For disputes arising between us and you, or any other user, you and we agree that we can only bring a claim against each other on an individual basis. NEITHER YOU NOR WE CAN BRING A CLAIM AS A PLAINTIFF OR CLASS MEMBER IN A CLASS ACTION, CLASS-WIDE ARBITRATION, CONSOLIDATED ACTION, OR REPRESENTATIVE ACTION. THE ARBITRATOR CANNOT COMBINE MORE THAN ONE PERSON’S CLAIM INTO A SINGLE CASE, AND CANNOT PRESIDE OVER ANY CONSOLIDATED, CLASS, OR REPRESENTATIVE ARBITRATION PROCEEDING, UNLESS WE BOTH AGREE OTHERWISE IN WRITING. NONETHELESS, IF ANY PORTION OF THIS CONSOLIDATED, CLASS ACTION, OR REPRESENTATIVE ACTION WAIVER IS DEEMED UNENFORCEABLE OR INVALID, THE ARBITRATOR SHALL HAVE AUTHORITY TO ISSUE ANY AND ALL REMEDIES AUTHORIZED BY LAW.
YOU UNDERSTAND THAT, ABSENT THIS AGREEMENT TO ARBITRATION, YOU WOULD HAVE HAD A RIGHT TO LITIGATE THROUGH A COURT, TO HAVE A JUDGE OR JURY DECIDE YOUR CASE, AND TO BE PARTY TO A CONSOLIDATED, CLASS, OR REPRESENTATIVE ACTION. HOWEVER, YOU UNDERSTAND AND CHOOSE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY AND ONLY THROUGH ARBITRATION.
Changes to this Section
Notwithstanding any provision in these Terms to the contrary, we agree that, if we make any future change to this Section, you may reject any such change by sending us written notice within thirty (30) days of the change to legal@candlestick.com.
For individual end users only — Opting out of the Agreement to Arbitration and Class Action Waiver
You have the right to opt out and not be bound by this Agreement to Arbitration by sending us written notice of your decision to opt out by contacting us at support@candlestick.com or legal@candlestick.com. The notice must be sent within thirty (30) days of your first use of the Services or availability of this opt-out, whichever is later; otherwise, you shall be bound to arbitrate disputes as set out in this Section. If you opt out of these arbitration provisions, we also will not be bound by them.
Severability
This Section applies to the full extent permitted by applicable law. If any competent authority deems any portion of this Section illegal or unenforceable, such provision will be severed and the remainder of this Section will be given full force and effect.
In addition, if any competent authority determines that applicable law precludes the arbitration of any claim, cause of action, or requested remedy, then that claim, cause of action, or requested remedy, and only that claim, cause of action, or requested remedy, will be severed from this Agreement to Arbitration and brought in a court of competent jurisdiction. If that occurs, then you and we agree that the severed claims, causes of action, or requested remedies will be stayed until all arbitrable claims, causes of action, and requested remedies have been resolved by the arbitrator.
Survival
This Section shall survive termination of these Terms.
Entire Agreement — These Terms (the EULA and any other agreements between us that govern your access to and use of the Services) constitute the entire and exclusive understanding and agreement between us and you regarding the Services, and these Terms supersede and replace all prior oral or written understandings or agreements between us and you regarding the Services.
Severability — If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible, and the other provisions of these Terms will remain in full force and effect.
Our Right of Assignment or Delegation — You may not assign or transfer these Terms, by operation of law or otherwise, without our prior written consent. We may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors, and permitted assigns.
No Waiver — Our failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by our duly authorized representative. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
California Notice for Individual End Users — Pursuant to California Civil Code Section 1789.3, Candlestick notes the following for consumers from California: the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at 1(916) 445-1254 or 1(800) 952-5210. We may be contacted in writing at Attention: “Legal”, 2100 Geng Road, Suite 210, Palo Alto, CA 94303, or at support@candlestick.com.
If you have any questions about these Terms or the Services, please contact us at support@candlestick.com.
