Last modified: September 20, 2022
1. AGREEMENT AND SERVICES
PLEASE NOTE THESE TERMS CONTAIN A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER. SEE SECTION 21 FOR DETAILS. IF YOU DO NOT WISH TO BE SUBJECT TO ARBITRATION, YOU MAY OPT OUT OF THE ARBITRATION PROVISION BY FOLLOWING THE INSTRUCTIONS SET FORTH IN SECTION 21.4, WITHIN THE SPECIFIED TIME FRAME.
These Terms apply to your use of Bagelcode Games or Bagelcode Services. By accessing or using the games that are offered via the Services (collectively, “Bagelcode Games” or “Games”), you agree to be legally bound by these Terms and all terms incorporated by reference. If you do not agree to these Terms in their entirety, do not use the Games or Services.
Bagelcode, Inc. and/or its Affiliates provide access to the Bagelcode Services subject to the conditions set forth in these Terms. For purposes of these Terms, the term “Affiliates” means, with respect to any party, any person or entity which controls, is controlled by, or is under common control with, such party, and the term “Bagelcode Services” or “Services” means the web sites of Bagelcode through which you access the Games, and any other sites on which these Terms are posted, and any other Bagelcode application through which you access, use or download the Games including through third-party sites or sources, and including the products and services available through any of the foregoing.
THE BAGELCODE SERVICES ARE STRICTLY FOR AMUSEMENT AND ENTERTAINMENT PURPOSES ONLY. THE SERVICES DO NOT CONSTITUTE ANY FORM OF REAL MONEY GAMBLING OR AN OPPORTUNITY TO WIN REAL MONEY OR PRIZES. YOU AGREE THAT NO ACTUAL MONEY OR ANYTHING OF MONETARY VALUE MAY BE GAINED WITH THE USE OF OUR SERVICES, AND NO ACTUAL MONEY IS REQUIRED TO PLAY. PRACTICE OR SUCCESS AT SOCIAL CASINO GAMING DOES NOT IMPLY FUTURE SUCCESS AT REAL MONEY GAMBLING.
BAGELCODE SERVICES ARE NOT INTENDED FOR DISTRIBUTION TO OR USE BY ANY PERSON OR ENTITY IN ANY JURISDICTION WHERE SUCH DISTRIBUTION OR USE WOULD BE CONTRARY TO THE LAW OR REGULATIONS OR WHICH WOULD SUBJECT BAGELCODE TO ANY REGISTRATION REQUIREMENT WITHIN SUCH JURISDICTION. YOU MUST COMPLY WITH ALL LAWS AND REGULATIONS OF THE JURISDICTION OR COUNTRY IN WHICH YOU RESIDE AND FROM WHICH YOU ACCESS THE BAGELCODE SERVICES. YOU AGREE YOU ARE SOLELY RESPONSIBLE FOR OBEYING THE LAWS APPLICABLE TO YOU AND TO NOT ACCESS OR USE THE SERVICES WHERE THEY ARE RESTRICTED OR PROHIBITED. BAGELCODE WILL NOT BE HELD LIABLE IF THOSE LAWS RESTRICT OR PROHIBIT YOUR USE OF OUR SERVICES.
3. ACCOUNT REGISTRATION
If you create a Bagelcode account within any Bagelcode Service, you must provide truthful and accurate information to us in creating such account. If Bagelcode has reasonable grounds to suspect that you have provided any information that is inaccurate, not current or incomplete, Bagelcode may suspend or terminate your ability to use or access a Bagelcode Service and refuse any and all current or future use of or access to any or all Bagelcode Services (or any portion thereof).
You may use Bagelcode’s Services only if you are 18 years or older, capable of forming a binding contract with us, and not otherwise barred from using the Services under applicable law. By accessing or using the Bagelcode Service, you warrant that you are of legal age, or the age of “majority” where you live, and that you accept full responsibility for the use of the Service. If you are between the ages thirteen (13) and eighteen (18), you may access the Bagelcode Service only under the supervision of a parent or legal guardian who also agrees to be bound by these Terms. Any access to or use of the Service by anyone under the age of thirteen (13) is strictly prohibited. Bagelcode reserves the right to limit the number of accounts a user can establish. This limit may change over time in our sole discretion.
You are solely responsible for all activity on any and all of your Bagelcode account(s) and for the security of your computer system. You should not reveal your username or password to any other person. Bagelcode will not ask you to reveal your password. If you forget your password, you can request to have a new password sent to your registered e-mail address.
4. NO REQUIREMENT TO PURCHASE
The Games are free to play, which means that you do not need to make purchases to experience them. You may claim a certain amount of in-Game currency without charge upon your initial login, and you may claim additional amounts of in-Game currency without charge at recurring intervals when you play the Games. If you exhaust your supply of available in-Game currency, you may wait until additional free in-Game currency is made available to you, or you may elect to purchase additional in-Game currency or watch an advertisement (as available) to receive additional in-Game currency. In-Game currency are “Virtual Items” as defined below and are licensed to you from Bagelcode for your use on and via the Services, subject to the limitations and other terms set out in greater detail below.
Bagelcode Service includes subscriptions as part of its Services to enhance player experience. This monthly subscription requires payment of a fee for use of the Early Access Services.
When you purchase a Subscription (each, a “Transaction”), you expressly authorize us (or our third-party payment processor) to charge you for such Transaction. You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. When you initiate a Transaction, you authorize us to provide your Payment Information to third parties so we can complete your Transaction and to charge your payment method for the type of Transaction you have selected (plus any applicable taxes and other charges). You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Payment Information). By initiating a Transaction, you agree to the pricing, payment and billing policies applicable to such fees and charges, as posted or otherwise communicated to you. All payments for Transactions are non-refundable and non-transferable except as expressly provided in these Terms. All fees and applicable taxes, if any, are payable in United States dollars.
If you purchase a Subscription, you will be charged the monthly Subscription fee, plus any applicable taxes, and other charges (“Subscription Fee”), on the month the Subscription began, and each month thereafter, at the then-current Subscription Fee. BY PURCHASING A SUBSCRIPTION, YOU AUTHORIZE BAGELCODE TO INITIATE RECURRING NON-REFUNDABLE PAYMENTS AS SET FORTH BELOW. If you purchase a Subscription, we (or our third-party payment processor) will automatically charge you each month, using the Payment Information you have provided until you cancel your Subscription. By agreeing to these Terms and electing to purchase a Subscription, you acknowledge that your Subscription has recurring payment features and you accept responsibility for all recurring payment obligations prior to cancellation of your Subscription by you or Bagelcode. Your Subscription continues until cancelled by you, or we terminate your access to or use of the Services or Subscription in accordance with these Terms.
5.3 Cancelling a Subscription
You may cancel your auto-renewing Subscription at least 24 hours before the end of your then-current Subscription period. AFTER THAT, YOUR ACCOUNT WILL BE CHARGED FOR RENEWAL WITHIN 24 HOURS PRIOR TO THE END OF THEN-CURRENT PERIOD. To cancel or manage your Subscription, you may access your user account setting within your respective platform service provider’s app store, or contact Bagelcode’s Customer Support for more help. If you cancel, your right to use the Services will continue until the end of your then current Subscription period and will then terminate without further charges.
6. ELECTRONIC COMMUNICATIONS
When you access a Bagelcode Service, send e-mails or electronically chat with Bagelcode, you are communicating with us electronically, and you consent to receive further communications from us electronically. We will communicate with you by e-mail or by posting notices in the Bagelcode Services. You agree that all agreements, notices, disclosures and other communications that Bagelcode provides to you electronically satisfy any legal requirement that such communications be in writing.
7. VIRTUAL ITEMS
Certain Bagelcode Services may provide you with the opportunity to license a variety of virtual items such as in-Game currency, virtual goods, and additional content packs (“Virtual Items”) that can be used while playing the Bagelcode Services. You may be required to pay a fee to obtain Virtual Items.
You have no property interest in any Virtual Items. Provided you comply with these Terms and the App Store Agreement(s), we grant you a personal, non-exclusive, non-transferable, non-sublicensable limited right and license to use any Virtual Item you gain access to, whether purchased or otherwise obtained, solely in connection with your use of the Services.
When Virtual Items are used in the Games, you could “win” and would be awarded additional Virtual Items, or you could “lose” and lose the future use of those Virtual Items. Virtual Items have no monetary value, and may not be sold, transferred, traded, cashed out, redeemed, or in any other way exchanged for real money or for any real goods or services.
Bagelcode has no liability for hacking or loss of your Virtual Items. Bagelcode has no obligation to, and will not, reimburse you for any Virtual Items lost due to your violation of these Terms. Bagelcode reserves the right, without prior notification, to limit the quantity of any Virtual Items you may possess or purchase, and/or to refuse to provide you with any Virtual Items. Price and availability of Virtual Items are subject to change without notice.
8. SOCIAL NETWORK SITES
If Bagelcode has reasonable grounds to suspect that you have provided any information that is inaccurate, not current or incomplete, Bagelcode may suspend or terminate your ability to use or access the Services and refuse any and all current or future use of or access to the Services (or any portion thereof).
9. REVIEWS, COMMUNICATIONS AND SUBMISSIONS
Our Services may allow you to store or share content such as text (in posts or communications with others), files, documents, graphics, images, music, software, audio and video. Anything (other than Feedback) that you post or otherwise make available through the Services is referred to as “User Content.”
Inappropriate, obscene, defamatory, offensive language, crude or explicit sexual content, discussions of any matters which are explicitly or by inference illegal in any way, discussions of illegal or any other drugs, and racially and ethnically offensive speech are examples of unsuitable User Content that are not permitted within the Bagelcode Services. User Content standards may vary depending on where you are within a Bagelcode Service, and the expectations of the relevant Game community. Some Game play may involve use of stronger language than others, including mild expletives. You should always use your best and most respectful and conservative judgment when interacting with our Services and submitting any User Content.
We expressly reserve the right, but have no obligation, to: (a) monitor any communications within the Bagelcode Services, including, without limitation, to ensure that appropriate standards of online conduct are being observed, and (b) immediately or at any time remove any User Content that we deem objectionable or unsuitable in our sole discretion. Bagelcode does not endorse, approve, or prescreen any User Content that you or other users post or communicate on or through any Bagelcode Services. Bagelcode does not assume any responsibility or liability for any User Content that is generated, posted or communicated by any user on or through the Bagelcode Services.
Without limiting the generality of these policies and standards, the following actions are examples of behavior that violate these Terms and may result in any or all of your Bagelcode account(s) being immediately suspended or terminated:
- Posting, transmitting, promoting, or distributing any content that is illegal, or otherwise violating any applicable law or regulation.
- Harassing or threatening any other user of a Bagelcode Service or any employee or contractor of Bagelcode.
- Impersonating another person, indicating that you are a Bagelcode employee or a representative of Bagelcode (if you are not), or attempting to mislead users by indicating that you represent Bagelcode in any way.
- Attempting to obtain a password, other account information, or other private information from any other user of a Bagelcode Service.
- Uploading any software, files, photos, images or any other content to a Bagelcode Service that you do not own or have the legal right to freely distribute, or that contain a virus or corrupted data, or any other malicious or invasive code or program.
- Posting messages for any purpose other than personal communication, including without limitation advertising, promotional materials, chain letters, pyramid schemes, political campaigning, soliciting funds, mass mailings and sending “spam”, or making any commercial use of any Bagelcode Service.
- Disrupting the normal flow of dialogue, or otherwise acting in a manner that we, as determined in our sole judgment, negatively affects or disrupts other users.
- Improperly using any game support functions or complaint buttons, or making false complaints or other reports to Bagelcode representatives.
- Posting or communicating any player’s real-world personal information within a Bagelcode Service or by or through a Bagelcode Service or any related bulletin board.
- Uploading or transmitting, or attempting to upload or transmit, any material that acts as a passive or active information collection or transmission mechanism, including, without limitation, gifs, 1×1 pixels, web bugs, and other similar devices.
- Using or launching any automated system, including, without limitation, any spider, bot, cheat utility, scraper or offline reader that accesses a Bagelcode Service, or using or launching any unauthorized script or other software.
- Using a false e-mail address or otherwise disguising the source of any content that you submit within a Bagelcode Service, or using tools which anonymize your internet protocol address in order to bypass region-specific restrictions.
- Interfering or circumventing any Bagelcode Service security feature or any feature that restricts or enforces limitations on use of or access to a Bagelcode Service.
- Attempting to sell any part of a Bagelcode Service, including, without limitation, any Virtual Items (if applicable), Bagelcode accounts and access to them in exchange for real currency or items of monetary or other value.
- Engaging in cheating or any other activity that Bagelcode deems to be in conflict with the spirit of a Bagelcode Service; or
- Encourage or enable anyone else to do any of the foregoing.
9.2 Public Nature of Communications
You acknowledge and agree that your submitted User Content, including your reviews and your communications with other users via online messaging, private messaging, forums or bulletin boards, and any other similar types of communications and submissions on or through any Bagelcode Service, are non-confidential, public communications, and you have no expectation of privacy concerning your use of or participation in any Bagelcode Services (other than with respect to the information you provide to us in establishing your Bagelcode account(s), if applicable). You acknowledge that personal information that you communicate publicly within any Bagelcode Service may be seen and used by others and may result in unsolicited communications. Bagelcode is not liable for any information that you choose to submit or communicate to other users on or through any Bagelcode Services, or for the actions of any other users of any Bagelcode Service with respect to personal information uploaded to the Bagelcode Services.
9.3 Your User Content
You represent and warrant that you have all necessary rights in and to any User Content that you post within any Bagelcode Service, that such User Content does not infringe any proprietary or other rights of third parties, and that all such User Content is accurate and will not cause injury to any person or entity. If any such User Content incorporates the name, voice, likeness and/or image of any individual, you represent and warrant that you have the right to grant Bagelcode permission to use any such name, voice, likeness and/or image of such individual appearing in the User Content you post throughout the world in perpetuity. Once you post or communicate any User Content on or through a Bagelcode Service, you expressly grant Bagelcode the complete, worldwide, fully sublicensable and irrevocable right to quote, re-post, use, reproduce, modify (for formatting purposes), adapt, publish, translate, display, distribute, transmit, and broadcast such User Content, including without limitation the name you submit in connection with such User Content, in any form, with or without attribution to you, and without any notice or compensation to you of any kind. We reserve the right to immediately remove any User Content that, in our sole discretion, we determine to be in violation of the rights of any third party.
9.4 Removal of User Content
You can remove your User Content by specifically deleting it. You should know that in certain instances, some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the Services. To the maximum extent permitted by law, we are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
9.5 Customer Reviews and Feedback
You may submit reviews of certain Bagelcode Services. Use of the reviews feature is for your personal, non-commercial use and is at your own option and risk, and you must comply with the policies set forth in these Terms.
When you post a review, we will display your rating of the Bagelcode Service, along with your user name and certain other information you may provide, such as your city and state location, skill level, favorite game and favorite genres. By submitting a review, you are consenting to the release of all information that you provide in that review to a public forum. If you do not want any such information to be shared in a public forum, do not use the review feature.
We appreciate feedback, comments, ideas, proposals and suggestions for improvements to the Services (“Feedback”). If you choose to submit Feedback, you agree that we are free to use it without any restriction or compensation to you.
10. BAGELCODE SOFTWARE
We may require that you download certain software from Bagelcode, its principals or its licensors onto your computer (“Bagelcode Software“). Subject to your compliance with these Terms, Bagelcode grants to you a non-exclusive, non-transferable, non-sublicensable, revocable, limited license to download and install the Bagelcode Software on your personal computers, mobile handsets, tablets, wearable devices, and/or other devices, and to run the Bagelcode Software solely for your own personal non-commercial purposes. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the Bagelcode Software; (ii) distribute, transfer, sublicense, lease, lend or rent the Bagelcode Software to any third party; (iii) reverse engineer, decompile or disassemble the Bagelcode Software (unless applicable law permits, despite this limitation); or (iv) make the functionality of the Bagelcode Software available to multiple users through any means.
Bagelcode retains all of its rights, title to, and ownership of all Intellectual Property Rights relating or applying to the Bagelcode Software and Services. All other trademarks not owned by Bagelcode that appear on the Bagelcode Services are the property of their respective owners, who may or may not be affiliated with or connected to Bagelcode.
NEITHER BAGELCODE, INC. NOR ITS LICENSORS ARE LIABLE FOR ANY DAMAGES IN CONNECTION WITH YOUR USE OF ANY BAGELCODE SOFTWARE (INCLUDING LIABILITY FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES OR DAMAGE TO YOUR COMPUTER HARDWARE OR SOFTWARE), AND THE ENTIRE RISK OF USE, INCLUDING, WITHOUT LIMITATION, ANY DAMAGE TO YOUR COMPUTER HARDWARE OR SOFTWARE, RESULTING FROM ANY USE OF THE BAGELCODE SOFTWARE, RESIDES WITH YOU.
11. ADDITIONAL INFORMATION: APPLE APP STORE
This Section applies to any Bagelcode Software that you acquire from the Apple App Store or use on an iOS device (“App”). Apple has no obligation to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the App purchase price to you (if applicable) and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. Apple is not responsible for addressing any claims by you or any third party relating to the App or your possession and use of it, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that your possession and use of the App infringe that third party’s intellectual property rights. Apple and its subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof. 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. You must also comply with any applicable third-party terms of service when using the App.
12. THIRD-PARTY LINKS AND THIRD-PARTY CONTENT AND SERVICES
Any and all software, content and services (including advertising) within a Bagelcode Service that are not owned by Bagelcode are “third-party content and services.” Bagelcode acts merely as an intermediary service provider of, and accepts no responsibility or liability for, third-party content and services. In addition, and without limiting the generality of the foregoing, certain Bagelcode Services may include links to sites operated by third parties, including advertisers and other content providers. Those sites may collect data or solicit personal information from you. Bagelcode does not control such sites, and is not responsible for their content, policies, or collection, use or disclosure of any information those sites may collect.
13. VIOLATION OF THESE TERMS
If you violate our Terms, Bagelcode reserves the right, in its sole discretion, to immediately terminate your participation in any or all Bagelcode Services, including any and all Bagelcode accounts you have established. You acknowledge that Bagelcode is not required to notify you prior to terminating any such account.
14. TERMINATION OF ANY BAGELCODE ACCOUNT
Bagelcode and you each have the right to terminate or cancel any of your Bagelcode account(s), if applicable, at any time for any reason, including for a breach of these Terms by you. Subject to applicable law, Bagelcode may manage, regulate, control, modify or eliminate your Virtual Items in its sole discretion in order to provide the Services, and Bagelcode will have no liability to you or anyone for exercising those rights.
As permitted under applicable law, Bagelcode reserves the right to collect fees, surcharges or costs incurred before you cancel your Bagelcode account(s) or a particular subscription. In the event that your Bagelcode account or a particular subscription is terminated or cancelled, no refund will be granted, no online time or other credits (e.g., points in an online game) will be credited to you or converted to cash or other form of reimbursement, and you will have no further access to your account or anything associated with it (such as points, tokens or Virtual Items), except where required under applicable law in your jurisdiction. Any delinquent or unpaid accounts must be settled before Bagelcode may allow you to create any new or additional accounts.
Without limiting the foregoing provisions, if you violate these Terms, Bagelcode may issue you a warning regarding the violation, or, in Bagelcode’s sole discretion, immediately terminate any and all Bagelcode accounts that you have established with any Bagelcode Service, with or without notice. In addition, subject to applicable law, all Virtual Items will be unconditionally forfeited if your Bagelcode Service account is terminated or suspended due to your violation of these Terms, or if Bagelcode discontinues any Bagelcode Service or any portion or feature of any Bagelcode Service.
15. INTELLECTUAL PROPERTY AND CONTENT RIGHTS
“Intellectual Property Rights” are patents, rights to inventions, copyright and related rights, trademarks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
“Content” refers to the names, logos, icons, concepts, themes, designs, animations, sounds, videos, any other production assets, operating manuals, and all other works or material recorded or embodied in the Services.
Bagelcode respects copyright law and expects its users to do the same. It is Bagelcode’s policy to terminate in appropriate circumstances account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see Bagelcode’s Copyright Policy at https://cdn.bagelgames.com/copyrightpolicy.html for further information.
16. LIMITATIONS ON WARRANTIES AND LIABILITY
YOU EXPRESSLY AGREE THAT THE USE OF ANY BAGELCODE SERVICE OR BAGELCODE SOFTWARE IS AT YOUR SOLE RISK. ALL BAGELCODE SERVICES AND BAGELCODE SOFTWARE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BAGELCODE DOES NOT GUARANTEE THAT YOU WILL BE ABLE TO ACCESS OR USE THE BAGELCODE SERVICE OR BAGELCODE SOFTWARE AT ANY PARTICULAR TIMES OR LOCATIONS, OR THAT THE BAGELCODE SERVICE, BAGELCODE SOFTWARE, NEWSLETTERS, E-MAILS OR OTHER COMMUNICATIONS SENT FROM BAGELCODE ARE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS.
YOU ACKNOWLEDGE AND AGREE THAT, SUBJECT TO APPLICABLE LAW, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH BAGELCODE IS TO STOP USING THE BAGELCODE SERVICES AND BAGELCODE SOFTWARE, AND TO CANCEL ANY AND ALL OF YOUR BAGELCODE ACCOUNTS, IF APPLICABLE. YOU ACKNOWLEDGE AND AGREE THAT BAGELCODE IS NOT LIABLE FOR ANY ACT OR FAILURE TO ACT ON ITS OWN PART, OR FOR ANY CONDUCT OF, OR COMMUNICATION OR USER CONTENT POSTED WITHIN A BAGELCODE SERVICE BY, ANY BAGELCODE SERVICE USER. IN NO EVENT SHALL BAGELCODE’S OR ITS EMPLOYEES’, CONTRACTORS’, OFFICERS’, DIRECTORS’ OR SHAREHOLDERS’ LIABILITY TO YOU EXCEED THE AMOUNT THAT YOU PAID TO BAGELCODE FOR YOUR PARTICIPATION IN ANY BAGELCODE SERVICE. IN NO CASE SHALL BAGELCODE OR ITS EMPLOYEES, CONTRACTORS, OFFICERS, DIRECTORS OR SHAREHOLDERS BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF ANY BAGELCODE SERVICE OR BAGELCODE SOFTWARE. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, SUCH LIABILITY SHALL BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW.
YOU FURTHER SPECIFICALLY ACKNOWLEDGE THAT BAGELCODE IS NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD BAGELCODE LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER USERS OF BAGELCODE SERVICES AND OPERATORS OF SOCIAL NETWORKING AND OTHER EXTERNAL SITES, AND THAT THE RISK OF USING OR ACCESSING BAGELCODE SERVICES AND BAGELCODE SOFTWARE, SOCIAL NETWORKING SITES AND OTHER EXTERNAL SITES, AND OF INJURY FROM THE FOREGOING, RESTS ENTIRELY WITH YOU.
You agree to defend, indemnify and hold harmless Bagelcode and their respective employees, contractors, officers, directors, shareholders, agents, representatives, vendors, and content providers from and against any and all liabilities, claims and expenses, including attorneys’ fees, that arise from a breach of these Terms for which you are responsible or in connection with your transmission of any content to, on or through any Bagelcode Service. Without limiting your indemnification obligations described herein, Bagelcode reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you.
18. EXPORT CONTROL LAWS
Certain Bagelcode Services may be subject to United States and international export controls. By accessing Bagelcode Services, you warrant that you are not located in any country, or exporting any Bagelcode Services, to any person or place to which the United States, European Union or any other jurisdiction has embargoed goods. You agree to abide by all applicable export control laws and further agree not to transfer or upload, by any means electronic or otherwise, any Bagelcode Services that may be subject to restrictions under such laws to a national destination prohibited by such laws without obtaining and complying with any required governmental authorizations.
19. OTHER LEGAL TERMS
PLEASE READ THIS “DISPUTE RESOLUTION BY BINDING ARBITRATION” PROVISION VERY CAREFULLY. IT LIMITS YOUR RIGHTS IN THE EVENT OF A DISPUTE BETWEEN YOU AND BAGELCODE, SUBJECT TO THE TERMS AND OPT-OUT OPTION SET FORTH BELOW.
21.1 Scope of Arbitration Provision
You and Bagelcode agree that any and all past, present and future dispute, claims, or causes of action arising out of or relating to your use of any of the Services, these Terms, or any other controversies or disputes between you and Bagelcode or any of Bagelcode’s affiliates, licensors, distributors, suppliers, service providers or agents, whether arising prior to or after you agreed to the Terms (collectively, “Dispute(s)”), shall be determined by arbitration, unless (A) your Country of Residence does not allow this arbitration agreement; (B) you opt out as provided in Section 21.4 below; or (C) your Dispute is subject to an exception to this agreement to arbitrate set forth in Section 21.8. You and Bagelcode further agree that any arbitration pursuant to this Section shall not proceed as a class, group or representative action.
“Country of Residence” for purposes of this Section 21 means the country in which you hold citizenship or legal permanent residence, as well as any country from which you regularly access and use the Bagelcode Services. If more than one country meets that definition for you, then your country of citizenship or legal permanent residence shall be your Country of Residence, and if you have more than one country of citizenship or legal permanent residence, it shall be the country with which you most closely are associated by permanent or most frequent residence.
21.2 Informal Dispute Resolution.
Bagelcode wants to address your concerns without the need for a formal legal dispute. Before filing a claim against Bagelcode, you agree to try to resolve the Dispute informally by contacting firstname.lastname@example.org. Similarly, Bagelcode will undertake reasonable efforts to contact you (if we have contact information for you) to resolve any claim we may possess informally before taking any formal action. If a Dispute is not resolved within 30 days after the email noting the Dispute is sent, you or Bagelcode may initiate an arbitration proceeding as described below.
21.3 We Both Agree to Arbitrate.
By agreeing to these Terms, you and Bagelcode each and both agree to resolve any Disputes through final and binding arbitration as discussed herein, except as set forth under “Exceptions to Agreement to Arbitrate” below.
If you do not wish to be subject to this arbitration agreement, you may opt out of this arbitration provision by sending a written notice to email@example.com within thirty (30) days of first accepting these Terms. You must date the written notice, and include your first and last name, address, and a clear statement that you do not wish to resolve disputes with Bagelcode through arbitration. If no written notice is submitted by the 30-day deadline, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except with regard to the exceptions set forth in 21.8 below. By opting out of the agreement to arbitrate, you will not be precluded from using the Bagelcode Service, but you and Bagelcode will not be permitted to invoke the mutual agreement to arbitrate to resolve Disputes under the terms otherwise provided herein.
21.5 Arbitration Procedure and Fees.
21.5.1 If your Country of Residence is the United States:
(a) You and Bagelcode agree that the American Arbitration Association (“AAA”) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes in effect at the time arbitration is sought (“AAA Rules”). Those rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a general Demand for Arbitration.) Arbitration will proceed on an individual basis and will be handled by a sole arbitrator. The single arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within fourteen (14) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules. The arbitrator(s) shall be authorized to award any remedies, including injunctive relief, that would be available to you in an individual lawsuit and that are not waivable under applicable law. Notwithstanding any language to the contrary in this Section 21.5.1(a), if a party seeks injunctive relief that would significantly impact other Bagelcode users as reasonably determined by either party, the parties agree that such arbitration will proceed on an individual basis but will be handled by a panel of three (3) arbitrators. Each party shall select one arbitrator, and the two party-selected arbitrators shall select the third, who shall serve as chair of the arbitral panel. That chairperson shall be a retired judge or an attorney licensed to practice law and with experience arbitrating or mediating disputes. In the event of disagreement as to whether the threshold for a three-arbitrator panel has been met, the sole arbitrator appointed in accordance with this Section shall make that determination. If the arbitrator determines a three-person panel is appropriate, the arbitrator may – if selected by either party or as the chair by the two party-selected arbitrators – participate in the arbitral panel. Except as and to the extent otherwise may be required by law, the arbitration proceeding, and any award shall be confidential.
(b) You and Bagelcode further agree that the arbitration will be held in New York, New York, or, if you so elect, all proceedings can be conducted via videoconference, telephonically or via other remote electronic means. If Bagelcode elects arbitration, Bagelcode shall pay all of the AAA filing costs and administrative fees (other than hearing fees). If you elect arbitration, filing costs and administrative fees (other than hearing fees) shall be paid in accordance with the AAA Rules, or in accordance with countervailing law if contrary to the AAA Rules. However, if the value of the relief sought is $10,000 or less, at your request, Bagelcode will pay all filing, administration, and arbitrator fees associated with the arbitration, unless the arbitrator(s) finds that either the substance of your claim or the relief sought was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). In such circumstances, fees will be determined in accordance with the AAA Rules. Each party shall bear the expense of its own attorneys’ fees, except as otherwise required by law. If your Country of Residence is the United States, this Section 21 “Dispute Resolution by Binding Arbitration” shall be construed under and be subject to the Federal Arbitration Act, notwithstanding any other choice of law set out in these Terms.
21.5.2 If your Country of Residence is not the United States, you and Bagelcode agree that the arbitration will be administered in English by the Korean Commercial Arbitration Board and in accordance with the KCAB International Arbitration Rules (“KCAB Rules”). Those rules can be found at www.kcabinternational.or.kr. Arbitration will be handled by a sole arbitrator in accordance with those rules. Except as and to the extent otherwise may be required by law, the arbitration proceeding and any award shall be confidential. You and Bagelcode further agree that the arbitration will be held in Seoul, Republic of Korea, or, if you so elect, all proceedings can be conducted via videoconference, telephonically or via other remote electronic means. The KCAB Rules will govern payment of all arbitration fees, or arbitration fees will be paid in accordance with the countervailing law of your Country of Residence if contrary to the KCAB Rules.
21.6 Arbitration Shall Proceed Individually.
Regardless of your Country of Residence or the rules of a given arbitration forum, you and Bagelcode agree that the arbitration of any Dispute shall proceed on an individual basis, and neither you nor Bagelcode may bring a claim as a part of a class, group, collective, coordinated, consolidated or mass arbitration (each, a “Collective Arbitration”). Without limiting the generality of the foregoing, a claim to resolve any Dispute against Bagelcode will be deemed a Collective Arbitration if (i) two (2) or more similar claims for arbitration are filed concurrently by or on behalf of one or more claimants; and (ii) counsel for the claimants are the same, share fees or coordinate across the arbitrations. “Concurrently” for purposes of this provision means that both arbitrations are pending (filed but not yet resolved) at the same time.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER YOU NOR BAGELCODE SHALL BE ENTITLED TO CONSOLIDATE, JOIN OR COORDINATE DISPUTES BY OR AGAINST OTHER INDIVIDUALS OR ENTITIES, OR ARBITRATE OR LITIGATE ANY DISPUTE IN A REPRESENTATIVE CAPACITY, INCLUDING AS A REPRESENTATIVE MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY, OR OTHERWISE SEEK TO RECOVER FOR LOSSES INCURRED BY A THIRD PARTY. IN CONNECTION WITH ANY DISPUTE (AS DEFINED ABOVE), ANY AND ALL SUCH RIGHTS ARE HEREBY EXPRESSLY AND UNCONDITIONALLY WAIVED. ANY CHALLENGE TO THE VALIDITY OF THIS SECTION 21.7 SHALL BE DETERMINED EXCLUSIVELY BY THE ARBITRATOR.
Notwithstanding your and Bagelcode’s agreement to arbitrate Disputes, either you or Bagelcode retain the following rights:
21.8.1 If your Country of Residence is the United States, you and Bagelcode retain the right (A) to bring an individual action in small claims court; and (B) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.
21.8.2 If your Country of Residence is not the United States, you and Bagelcode may assert claims, if they qualify, through the small claims process in the courts of your Country of Residence. Further, as applicable, this Section 21 does not deprive you of the protection of the mandatory provisions of the consumer protection laws in your Country of Residence; you shall retain any such rights and this agreement to arbitrate shall be construed accordingly.
21.9 Survival and Severability of This Arbitration Provision. This Section 21 “Dispute Resolution by Binding Arbitration” shall survive the termination or expiration of these Terms. With the exception of Section 21.7 “Class Action and Collective Arbitration Waiver,” if a court or arbitrator decides that any part of this Section 21 is invalid or unenforceable, then the remaining portions of this Section 21 shall nevertheless remain valid and in force. In the event that a court or arbitrator finds that all or any portion of Section 21.7 “Class Action and Collective Arbitration Waiver” to be invalid or unenforceable, then the entirety of this Section 21 “Dispute Resolution By Arbitration” shall be deemed void and any remaining Dispute must be litigated in court pursuant to Section 22.
22. GOVERNING LAW AND JUDICIAL FORUM FOR DISPUTES
Except to the extent preempted by the mandatory laws of your Country of Residence, the laws of the Republic of Korea, without regard to the principles of conflict or choice of laws, will govern these Terms and any Disputes. Except as otherwise required by applicable law or provided in Section 21, in the event that the agreement to arbitrate is found not to apply to you or your Dispute, you and Bagelcode agree that any judicial proceeding may only be brought in a court of competent jurisdiction in Seoul, Republic of Korea. Both you and Bagelcode consent to venue and personal jurisdiction there.
Except as otherwise set forth in Section 22, if any part of these Terms is determined by a court to be inapplicable or invalid, then the remainder shall still be given full force and effect.
24. GENERAL TERMS
24.1 Reservation of Rights
Bagelcode and its licensors exclusively own all right, title and interest in and to the Services, including all associated intellectual property rights. You acknowledge that the Services are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
24.2 Entire Agreement
These Terms constitute the entire and exclusive understanding and agreement between Bagelcode and you regarding the Services, and these Terms supersede and replace all prior oral or written understandings or agreements between Bagelcode and you regarding the Services. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible, and the other provisions of these Terms will remain in full force and effect. You may not assign or transfer these Terms, by operation of law or otherwise, without Bagelcode’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Bagelcode 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.
Any notices or other communications provided by Bagelcode under these Terms will be given: (i) via email; or (ii) by posting to the Services. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.
24.4 Waiver of Rights
Bagelcode’s 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 a duly authorized representative of Bagelcode. 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.
25. CONTACT US
16F Dongwoo Bldg
Republic of Korea 06162