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Welcome to Onplay. These terms of use (“Agreement” or these “Terms”) govern your access and use of Onplay, an iOS mobile application operated by Mistplay, Inc. (here, “Onplay,” “we,” “us” or “our”) and the content, features, and playtesting opportunities we offer in connection with Onplay (the “Services”). The Services governed by these Terms do not include Mistplay’s other applications, products, or services.
We created Onplay to build a community of users that are passionate about improving the mobile gaming experience.Onplay offers users the opportunity to discover, install, test, and share insights about our Game Partners’ (as defined below) games in response to an advertisement presented within the Onplay App. Onplay users will also be invited to participate in Onplay’s Rewards Program (as defined below) and earn points that can be redeemed for rewards such as gift cards based on timely completion of insight surveys within Onplay. Insight surveys are delivered based on a user’s progress in a Game Partner’s game. If you do not consent to and enable tracking, we will use other means to verify game installs for attribution purposes. You will still be able to use Onplay and will be offered opportunities to provide insights and feedback about Game Partners’ games.
The terms “personal data” and “personal information” generally mean any information that directly or indirectly identifies you, which is any individual user (the “User” or “you”) that uses or accesses the Services. By entering into and accepting these Terms, you acknowledge that your personal information will be used in accordance with the Onplay Privacy Notice (“Privacy Notice”).
1.1. This Agreement will remain in full force and effect while you use the Services and/or have a Onplay account (the “Term”), unless terminated as described below.
1.2. To access the Services, you have to sign up and create an account. To create an account with Onplay, you must provide login details you make available through a third party (e.g., Apple, Google, Facebook), or login using your email address if the option is available, and you must agree to these Terms and acknowledge the Privacy Notice.
Eligibility for an account and to use our Services is subject to the following representations and warranties that you make: i) all information you submit to Onplay is truthful and will remain accurate and complete, ii) you have the legal capacity to agree to these Terms, iii) you are at least 18 years old, iv) you are a human (not a bot and/or AI program) and not accessing the Services to engage in fraudulent activity; and iv) you are located and residing in the United States of America.
2.1. Onplay offers users access to content and information relating to Game Partner Games. Onplay also offers mobile game users and developers an opportunity to communicate more intentionally, with Game Developers providing opportunities for mobile game users to provide feedback relating to Game Partner Games.
2.2. In addition, Imply offers users the option of participating in a rewards program where they can earn Points for responding to certain Game Partner Offers. These Points can be redeemed for rewards when users discover, test, play, and engage with content and offers related to Game Partner Games displayed in the Services. We are constantly changing and improving our Services and may at any time add or remove functionalities or features of the Service, including, but not limited to, new ways for Game Partners or other Partners to seek valuable feedback from users and for users to communicate more intentionally with Game Partners or other Partners, including opportunities to earn rewards for such feedback. New features added to the Services will become subject to these Terms.
2.3. We do not guarantee that all Services will be available at all times, in all locations, to all users, due to technical, regulatory and other restrictions. Content and features within the Service may vary by User and location.
2.4. You may not use any technology or technique, such as a VPN service, to obscure or disguise your location. We may use technologies to secure our platform, prevent fraudulent activity, verify your geographic location, restrict access to the Services from other locations, and otherwise enforce these Terms and our Community Guidelines.
2.5. You may not use Onplay if you: i) are located outside of the United States, ii) are subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by the United Nations Security Council, the U.S. Government (e.g., the Specially Designated Nationals List and Foreign Sanctions Evaders List of the U.S. Department of Treasury or the Consolidated Canadian Autonomous Sanctions List), the European Union or its Member States or other applicable government authority. Any violation of this section may result in loss of features, up to and including termination of User’s account and forfeiture of all accumulated Points. User will indemnify Onplay’s owner (Mistplay) for any costs, fines or damages incurred by Onplay due to User's failure to comply with this paragraph.
2.6. Onplay is not liable for any delay or failure to perform under this Agreement resulting from causes genuinely beyond Onplay’s reasonable control, such as acts of God, war, government mandates, pandemics, failure of transportation, or communication.
2.7. To the extent allowed by applicable law, Onplay reserves the right to withdraw, update, or amend the Services in Onplay’s sole discretion without notice. Onplay will not be liable in the event that, for any reason, all or any part of the Services are unavailable at any time or for any period. From time to time, Onplay may restrict or terminate access to all or any part of the Services to you or any other Users. Content on the Services may be out of date at any given time, and Onplay is under no obligation to update any such content.
3.1. We reserve the right to update and change this Agreement at any time. You can always review the last updated version of the Agreement on our website here. Where required by applicable laws, if we materially change this Agreement, we will provide you with reasonable advance notice and the opportunity to review the changes, except: i) when we launch a new product or feature, or ii) in urgent situations, such as preventing ongoing abuse or responding to legal requirements. All changes are effective immediately when we post them and apply to all access to and usage of the Services thereafter. While your continued use of our Services means that you agree with such changes, we may from time to time ask you to affirmatively accept updates to this Agreement. If you do not agree to new terms, please stop using the Services, close your account, and delete the Onplay mobile app from your device.
4.1. The Onplay App is proprietary software and subject to protection under applicable copyright and other laws relating to protection of intellectual property. Unless you have our written permission to do so, you may not: i) copy, modify or distribute any part of the Services, ii) reverse engineer or attempt to reconstruct or discover any source code or other data, except your own personal account information, from the Services, iii) use unauthorized modified versions of the Services, including without limitation, for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Services, or iv) remove any product identification, copyright or other notices from the Services.
4.2. In providing Services, Onplay may offer Users the opportunity to install and test games developed by Game Partners (“Games”). We do not control or take responsibility for the Games, their operation, or the content and features provided through them.
4.3. The privacy practices and terms of use that govern your use of and access to the Games are solely between you and the applicable publisher of such games, the Game Partner. It is your responsibility to read and comply with all terms and policies set by the Game Partners.
4.4. Our links to and promotions of Games do not indicate any approval or endorsement by Onplay of any content or material contained within the Games. We disclaim all liability for your use and play of the Games, and for any direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary, or other damages arising from any use of the Games. These limitations shall apply even if Onplay has been advised of the possibility of such damages.
4.5. All modifications, extensions, scripts and other derivative works of the Services provided or developed by Onplay are owned exclusively by Mistplay or its licensors. If you provide us with any suggestions, creative ideas, improvements, insights, comments and ideas or other feedback related to the Services or the Games promoted within the Services (collectively, “Feedback”), we will be entitled to use that Feedback without restriction. You acknowledge that the incentives, rewards, or Points that Onplay provides for your Feedback is valuable consideration; and in exchange, you grant Mistplay a royalty-free, non-exclusive, worldwide, license to the Feedback for as long as permitted by applicable legislation, including the right to use, integrate, reproduce, analyze, combine, aggregate, report, distribute, sell, monetize, transform, create derivatives of, and publicly display such Feedback and its derivatives without obligation of further compensation or attribution to you. You agree that we are under no obligation of confidentiality or to credit you with respect to Feedback you provide, even if you state such restrictions in your submission. You have no obligation to provide Feedback.
4.6. The Services may include community features, the functionality of which may change from time to time. In your use of the Services, you declare and warrant to comply with Community Guidelines with respect to any content, username, or information you provide into the Services. Onplay reserves the right to remove and disable any content or username that we deem to be illegal, profane, obscene, offensive, or in violation of the Community Guidelines.
5.1. Onplay Users may earn Points in exchange for certain activities such as providing their Feedback and answering surveys about games in connection with Onplay’s playtesting Services. Your ability to accumulate Points, or the rate at which you are able to earn Points, may be dependent on Onplay’s ability to receive Gameplay Data from Game Partners and track your gameplay time through permissions in Onplay and in your device settings and the accuracy of this data.
5.2. The amount of Points earned in response to Reward Offers presented in Onplay varies and is not the same for all Users. Different Users might receive different amounts of Points as detailed in the Onplay Services, even for identical actions or interactions. We may use artificial intelligence and machine learning tools to analyze behavior, tailor the Game Partner Survey and Feedback Requests and related Reward Offers presented to you, detect fraudulent or unusual activity, and set rates or multipliers at which Points accumulate based on factors, including but not limited to you Gameplay Data and Usage Data or, to the extent a reward tier program is introduced, your status within the reward tiers program (which may offer enhanced earning opportunities and rewards based on Users meeting criteria for certain tiers). Game and Reward Offer availability may vary for each User based on User Profile Data, Usage Data, and Gameplay Data, such as preferences, games and game categories selected for play testing or interactions with the Services and in-game activity.
5.3. Users can redeem Points for different rewards Onplay makes available in the Shop screen within the Services for each User. The Shop and the rewards therein may vary. The rewards may include gift cards, gift certificates, prepaid cash cards, content codes, game currency, coupons, or other special offers (collectively “Rewards”). The representative value of Points will be applied against the pre-tax purchase amount (i.e., excluding taxes, fees, and shipping and handling charges as applicable) for each Reward. You are responsible for all federal, state, and local taxes and any other costs of accepting and using the Reward.
5.4. The specific requirements to earn Points may be viewed within the Services or where we present an opportunity for you to earn them. Restrictions apply to earning Points including: i) your ability to participate in the Rewards Program itself, ii) the number of Points you can earn for a survey, or iii) the number of Points required for redemption of a Reward. Information on earning Points for a particular Rewards Offer will be available in the Onplay mobile app.
5.5. Points cannot be redeemed for cash or in any way resold, exchanged or returned for a cash refund, unless such redemption rights are required by law. Points are promotional and have no cash, monetary or other value. While we may use terms like "buy", "purchase", "earn", "cashback", “cash out” or "currency" to reference Points, we do so only for convenience and such terms in no way indicate that Onplay is offering real-world fiat currency. You may redeem Points for gift cards or other Rewards having an aggregate value of no more than $550 USD (or local currency equivalent) per calendar year. We may limit the amount of Points you can receive to comply with our legal or business obligations, and Points may be time-limited or can expire. To the extent permissible by applicable laws, if you do not earn any points within a 180 day period, your Points will expire and will not be available to redeem for Rewards. We provide up to thirty days’ notice of Points expiration in an account that is not terminated, if notice is required under laws that apply to you. Expired points will be deemed forfeited.
5.6. To redeem your Points for Rewards, you will have to visit the Shop screen within the Services to see your available Points and select from the catalog of those Rewards available to you. While you may earn Points from Onplay for your insights and Feedback, Onplay is not a party to any legal transactions or financial transactions carried out between you and a Game Partner or any other Third Parties.
5.7. We are not responsible for any improper fulfillment of an obligation by the Game Partner or any Third Parties, including gift card merchants. If you encounter problems with the games, including game content, in-game advertisements, in-game purchases, or your communications and transactions within the game, you should contact the Game Partner directly to resolve those concerns. You understand that we are not liable for the activity of the Game Partners or the merchants of gift cards. Onplay is not affiliated with or endorsed by any Third Party provider of Rewards, such as merchants and brands displayed on the gift cards. Onplay is not responsible for any lost, stolen or malfunctioning Rewards except to the extent caused by gross negligence or willful misconduct of Onplay. For instance, you may be required to use the gift cards within a particular time period, and there may be limitations to their use or redemption. You should carefully read any terms and policies that may apply to the Rewards (including gift cards), as they are separate from this Agreement and also separate from your relationship with Onplay.
5.8. Points earned through the Services are not valid for any other program and may not be used in combination with any other program offered by Third Parties. Also, Points earned within the Onplay mobile application cannot be combined with Points earned in any other rewards program offered though our other services (e.g. Mistplay Android App, Mistplay Progressive Web Application). Points are non-transferable between accounts.
5.9. We reserve the right to change, suspend, or cancel all or a portion of a Rewards Program or the Services at any time and to run tests or experiments to evaluate the effectiveness of different reward structures, incentives, and other features available through our Services. This testing may include varying the type, frequency, and value of Points, and Rewards offered. Onplay may post additional rules that apply to your participation in the Rewards Program and how to earn Points when using our Services.
6.1. You acknowledge that Onplay needs to collect, store and use personal information and data in the context of the Services as a data controller. Please refer to the Onplay Privacy Notice for more information.
6.2. You acknowledge that Onplay may use tracking technologies. Please refer to our Privacy Notice for more information.
6.3. Onplay Users may also choose to participate in Onplay’s Rewards Program, in which Users can earn Points and redeem Rewards (e.g., digital gift cards) for Users’ timely completion of surveys or other offers relating to Game Partner Games presented within Onplay. In order for us to reward your participation with Points, Onplay needs to know when to serve surveys that ask questions about an installed game. This requires Onplay and the Game Partner to attribute (i.e., verify) game installation and track the following User activities: play time, game progression, viewing of advertisements, and in-game purchases.
6.4. To prevent fraudulent account registration and Rewards redemption, we may require Users to share information that may be deemed sensitive or protected data under applicable laws and use that data solely for this purpose – to prevent fraud and enforce these terms. Users who do not provide information required for verification may be unable to register for an Onplay account and/or redeem Rewards and their account may be suspended.
7.1. You are required to comply with applicable laws at all times when using the Services. In particular, the following restrictions apply to your use of the Services. You are not allowed to:
7.2. Any account, device or User that appears to operate in violation of Section 7 (Rules of Conduct) is in material breach of this Agreement and may be suspected of, and reported to the authorities for, fraudulent activity. If we reasonably believe that any User activities or Points gained are the result of fraud, illegality or violation of these Terms, including the Rules of Conduct in this Section, we will investigate and take action, including but not limited to removing any Points, suspending access to Points, Rewards, or an account, or permanently blocking an account or device, with notice where required by law. We will consider in good faith any information from the User to show that the account has been used without fraud and in accordance with these Terms. If you have questions about Onplay’s assessment of your account’s compliance with the Rules of Conduct, you may reach Onplay Customer Support here: ONPLAY Customer Support.
8.1. You may stop using the Services at any time, for any reason, by uninstalling the Onplay mobile application or discontinuing your use of the Services.
8.2. Onplay reserves the right to temporarily suspend or permanently terminate this Agreement and your account if: i) we are required to do so to comply with a legal requirement (e.g. U.S. sanctions laws) or a court order, ii) we believe with reason that there has been conduct that creates (or could create) liability or harm to Onplay or its affiliates, any User or third party, iii) you materially or repeatedly breach terms of this Agreement (e.g. breach of Section 7); iv) your account remains inactive for a period of 180 days or more, v) we wind down or cease making the Services available. If we cease providing the Services, we will notify you within the Service, and if practicable, we will provide you at least thirty (30) days’ notice to make a redemption request (subject to any minimum redemption amount for a gift card). To the extent you provide us with a valid email address, we will provide notice in app and to the email address you have identified as affiliated with the account. If you do not make a redemption request within thirty (30) days of this notice of suspension or termination of services, your entire Points balance will expire. If you cancel or inactivate your account, any then currently existing Points will automatically expire upon cancellation or inactivation. It is your responsibility to make a redemption request (subject to any minimum redemption amount of points balance requirement described above) before cancellation or inactivation.
8.3. In addition, we reserve the right to, with or without notice, terminate any account which has been inactive for a consecutive period of eighteen (18) months. An account is deemed inactive when: i) no Points have been earned or redeemed and ii) there has been no access or attempt to access the Services (together “Inactive Accounts”). If the Inactive Account contains any Points or Rewards, they will be considered void subject to notice, only if required by local law.
8.4. After your account is terminated, you will not be able to access the Services and may not participate in any of the Services again without Onplay’s express permission. Any Gameplay Data, virtual items, accumulated Points or balances may no longer be available to you. Termination of this Agreement by Onplay will not limit or restrict Onplay from pursuing any other remedies available to it, including seeking damages or injunctive relief. You acknowledge that you will not receive money or any other form of compensation for unused Points when your account is closed.
9.1. The Services contain copyrighted material, trademarks, materials protected by authors rights and other proprietary information. All of the elements comprising the Services (inter alia, texts, images, domain name, trademarks, logos, audio and video files, software, photos, technology, graphic design, etc.) are protected by intellectual and industrial property law. The entire contents of the Services are protected as a collective work and database under copyright and database laws.
9.2. Mistplay owns a copyright in the selection, coordination, arrangement, and enhancement of such content, as well as in the content original to it. Users may not modify, reverse-engineer, publish, transmit, participate in the transfer or sale, create derivative works or in any way exploit any of the content, in whole or in part.
9.3. Except if expressly permitted by applicable law, no copying, reproduction, modification, public communication, assignment, redistribution, retransmission, publication, or commercial exploitation of downloaded material will be permitted without the express permission of Mistplay and the copyright owner (if different from Mistplay). In the event of any permitted copying, redistribution or publication of copyrighted material, no changes in or deletion of author attribution, trademark notice or copyright notice shall be made.
10.1. THE SERVICES ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH ALL FAULTS AND DEFECTS, WHETHER KNOWN OR UNKNOWN, WITHOUT WARRANTY OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, MISTPLAY (ON ITS OWN BEHALF AND ON BEHALF OF EACH OF ITS AFFILIATES) EXPRESSLY DISCLAIMS (AND YOU HEREBY WAIVE) ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING ALL (A) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SATISFACTORY QUALITY, OR NON-INFRINGEMENT, (B) REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE ACCURACY, COMPLETENESS, AVAILABILITY, TIMELINESS, USEFULNESS, OR RELIABILITY OF THE SERVICE (INCLUDING ANY CONTENT THEREON), AND (C) REPRESENTATIONS AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING ANY OF THE FOREGOING, ONPLAY MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND THAT THE SERVICE WILL MEET ANY OF YOUR REQUIREMENTS, ACHIEVE ANY RESULT, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, SYSTEM, OR SERVICE, OR ARE UNINTERRUPTED, ACCURATE, FREE OF CONTENT ERRORS, VIRUSES, UNAUTHORIZED ACCESS, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR DEVICES, SOFTWARE, DATA OR NETWORKS. MISTPLAY WILL NOT HAVE ANY RESPONSIBILITY OR LIABILITY IN CONNECTION WITH ANY VIRUS, HARMFUL CODE, UNAUTHORIZED ACCESS, OR THIRD-PARTY MATERIAL (INCLUDING GAMES). You are responsible for implementing sufficient procedures and controls to satisfy your particular security requirements.
10.2. EXCEPT AS REQUIRED BY LAW, IN NO EVENT WILL ONPLAY, ANY OF ITS AFFILIATES, OR ANY OF THE RESPECTIVE LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS OF ANY OF THE FOREGOING BE RESPONSIBLE OR LIABLE FOR ANY KIND OF DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SERVICES, ACCESS REWARDS, OR ANY THIRD PARTY SERVICES. DAMAGES UNDER THIS LIMITATION OF LIABILITY INCLUDE DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO PERSONAL INJURY (INCLUDING DEATH OR EPILEPTIC SEIZURE TRIGGERED BY AN ADVERTISEMENT OF OUR SERVICES), PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR AN ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, OR LOSS OF DATA, WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE) BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. USER FURTHER AGREES THAT MISTPLAY, ANY OF ITS AFFILIATES, OR ANY OF THE RESPECTIVE LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS OF ANY OF THE FOREGOING SHALL NOT BE LIABLE TO USER NOR TO ANY THIRD PARTY FOR ANY TERMINATION OF USER ACCESS TO THE SERVICES OR DELETION OF USER DATA. THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW (INCLUDING CONSUMER PROTECTION LAW). UNDER NO CIRCUMSTANCE SHALL ONPLAY’S OR ITS AFFILIATES’ MAXIMUM LIABILITY IN CONNECTION WITH THESE TERMS IN THE AGGREGATE EXCEED THE GREATER OF: (A) THE AMOUNT ACTUALLY PAID BY YOU SPECIFICALLY FOR THE SERVICES; AND (B) $100.00. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY AND, SOLELY TO THE EXTENT NOT SO ALLOWED, SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. You acknowledge and agree that the above exclusions and limitations of liability are reasonable in accordance with each of your and Onplay’s obligations and level of risk under these Terms. The limitation of liability does not apply to liability resulting from our gross negligence or willful misconduct.
10.3. You access the Services on your own initiative and are responsible for compliance with all local laws that apply to you. If you violate or breach any term within this Agreement or if you face a claim that your actions or content violated the rights of a third party, you agree to defend, indemnify, and hold harmless Onplay, its affiliates, and the respective licensors, service providers, suppliers, officers, directors, employees, contractors, agents, successors, and assigns of each of the foregoing, as permitted by law, from and against any and all claims, liabilities, judgments, awards, losses, costs and damages, including reasonable attorney fees arising out of or relating to: (a) your access to or use of the Services; (b) your breach of these Terms; or (c) any unauthorized access to or use of your account on the Services.
10.4. The limitations of liability in this Section 10 also apply to Mistplay’s affiliates, officers, directors, employees and agents. The terms in this Section 10 shall apply to the fullest extent permissible under local laws.
These Terms shall be governed by and construed in accordance with the laws applicable in New York, New York, USA, without regard to its conflict of laws principles. For disputes not subject to Section 12 (Dispute Resolution by Binding Arbitration), any actions or claims brought under this Agreement shall be brought before the competent state or federal courts located in New York, New York, USA.
12.1. BY ACCEPTING THE TERMS YOU AND ONPLAY ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE ANY AND ALL CONTROVERSIES, CLAIMS, AND DISPUTES ARISING OUT OF OR RELATED TO THESE TERMS OR THE INTERPRETATION, PERFORMANCE, OR BREACH HEREOF, INCLUDING ALLEGED VIOLATIONS OF ANY STATE OR FEDERAL STATUTORY OR COMMON LAW RIGHT OR DUTY AND THE DETERMINATION OF THE SCOPE OR APPLICABILITY OF THIS AGREEMENT TO ARBITRATE IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
12.2. ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING
STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM YOUR USE OF THE SITE AND THESE TERMS OF USE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
12.3. The arbitration will be by a single arbitrator administered by the American Arbitration Association (“AAA”) in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this Section. (The AAA Rules are available at adr.org or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.
12.4. The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the Agreement is void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator will be final and binding on you and us and may be entered as a judgment in any court of competent jurisdiction. The arbitrator will have discretion to include the payment of your or our arbitration costs and legal fees in any award.
12.5. You may elect to pursue your claim in small claims court rather than arbitration if you provide us with written notice (via first class mail to the address set forth below) of your intention to do so within sixty (60) days after your registration for our Service. The arbitration or small claims court proceeding will be limited solely to your individual dispute or controversy.
12.6. You agree to an arbitration on an individual basis. In any dispute, NEITHER YOU NOR ONPLAY WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.
12.7. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS AND SHALL BE DEEMED PERMANENTLY BARRED.
12.8. Notwithstanding anything to the contrary, in addition to any and all remedies available at law, Onplay shall be entitled to seek an injunction or other equitable remedies in all legal proceedings in the event of any threatened or actual violation by you of any of these Terms.
12.9. These binding arbitration provisions shall not apply to the extent prohibited by applicable law, and if any provision of this Section 12 is found unenforceable in any final, non-appealable decision by a court of competent jurisdiction, the unenforceable provisions will be severed and the remaining arbitration terms will be enforced, and any portion of any claims or actions which may be resolved by arbitration shall be so resolved, subject to all enforceable provisions of this Section.
13.1. When you access or use the Services, provide your email address to one of our representatives, or send us emails, you are communicating with us electronically. In so doing, you consent to receive communications from us electronically. We will communicate with you by email or by posting notices on the Services. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically, whether in app or by email, satisfy any legal requirement that such communication be in writing.
13.2. If one or more of the provisions of this Agreement is held to be invalid, illegal, or unenforceable in any respect by a court of competent jurisdiction, then the validity, legality, and enforceability of the remaining provisions of this Agreement shall be unaffected.
13.3. The parties’ failure to require or enforce your performance of any specific term of this Agreement or the non-exercise of any right under this Agreement shall not be considered a waiver of the right to rely on that provision of the Agreement in any other instance.
13.4. This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous written, electronic, or oral communications, representations, agreements, or understandings between the parties with respect thereto. The headings in this Agreement have been inserted solely for ease of reference and shall not modify, in any manner whatsoever, the meaning or scope of the provisions hereof.
13.5. If you identify any data entry error or would like to withdraw your consent to these Terms, you may submit an appropriate request to customer support here or by sending an email to support@onplayios.zendesk.com. In such a case, we may request information to confirm your account status before closing and deleting your account.
13.6. In the event this Agreement is terminated, all terms that by their nature are intended to survive termination of this Agreement shall survive, including but not limited to terms related to intellectual property, warranty disclaimer, limitation of liability, and indemnity, governing law and jurisdiction, and dispute resolution by binding arbitration.