Welcome to Devster LLC, a Florida limited liability company. This Agreement governs your access and use of products, content and services offered by Devster LLC, a Florida limited liability company, and its subsidiaries (“Devster LLC”), such as game software and related updates, upgrades and features, and all online and mobile services, platforms, websites, and live events hosted by or associated with Devster LLC (collectively “Devster LLC Services”). This Agreement is between you and the Devster LLC entity listed in Section 13B below.
BY USING Devster LLC SERVICES, YOU AGREE TO THESE TERMS. IF YOU DO NOT AGREE, DO NOT INSTALL OR USE THE DEVSTER LLC SERVICES. FOR RESIDENTS OF CERTAIN COUNTRIES, YOU AGREE TO THE ARBITRATION AGREEMENT AND CLASS ACTION
1. Devster LLC Account
You need a Devster LLC Account to access and use many Devster LLC Services, including to play online.
To create a Devster LLC Account, you must have a valid email address, and provide truthful and accurate information. You must be eligible to use the Devster LLC Service for which you are registering and must be a resident of a country where use of Devster LLC Services is permitted.
You must be at least 13 years of age (or the minimum age of your country of residence) to create a Devster LLC Account. If your age is between the relevant minimum age and 18 (or the age of majority where you live), you and your parent or guardian must review this Agreement together. Parents and guardians are responsible for the acts of children under 18 years of age when using Devster LLC Services. Devster LLC recommends that parents and guardians familiarize themselves with parental controls on devices they provide their child.
You are responsible for the activity on your Devster LLC Account. Your Devster LLC Account may be suspended or terminated if someone else uses it to engage in activity that violates this Agreement.
You may cancel your Devster LLC Account or a subscription to a Devster LLC Service at any time by contacting Devster LLC’s Customer Service email@example.com. To complete your request, Devster LLC may collect fees or costs incurred, if allowed by law, and any amounts owed to third-party vendors or content providers.
The Devster LLC Services are licensed to you, not sold. Devster LLC grants you a personal, limited, non-transferable, revocable and non-exclusive license to use the Devster LLC Services to which you have access for your non-commercial use, subject to your compliance with this Agreement. You may not access, copy, modify or distribute any Devster LLC Service, Content or Entitlements (as those terms are defined below), unless expressly authorized by Devster LLC or permitted by law. You may not reverse engineer or attempt to extract or otherwise use source code or other data from Devster LLC Services, unless expressly authorized by Devster LLC or permitted by law. Devster LLC or its licensors own and reserve all other rights, including all right, title and interest in the Devster LLC Services and associated intellectual property rights.
3. Content and Entitlements
The Devster LLC Services include Content and Entitlements. Content is the software, technology, text, forum posts, chat posts, profiles, widgets, messages, links, emails, music, sound, graphics, pictures, video, code, and all audio visual or other material appearing on or coming from Devster LLC Services, as well as the design and appearance of our websites. Content also includes user-generated Content (“UGC”). UGC includes Devster LLC Account personas, forum posts, profile content and other Content contributed by users to Devster LLC Services. All Content is either owned by Devster LLC or its licensors, or is licensed to Devster LLC and its licensors pursuant to Section 5 below.
Entitlements are rights that Devster LLC licenses to you to access or use the online or off-line elements of Devster LLC Services. Examples of Entitlements include access to digital or unlockable Content; additional or enhanced functionality (including multiplayer services); subscriptions; virtual assets; unlock keys or codes, serial codes or online authentication; in-game achievements; and virtual points, coins, or currencies.
We refer to these virtual points, coins or currencies as “Virtual Currency”. When you obtain Devster LLC Virtual Currency from us or our authorized partners, you receive a personal, limited, non-assignable, non-exclusive, revocable license to access and select the Entitlements that Devster LLC expressly makes available to you.
Devster LLC Virtual Currency has no monetary value and has no value outside of our products and services. Devster LLC Virtual Currency cannot be sold, traded, transferred, or exchanged for cash; it only may be redeemed for Entitlements available for the Devster LLC Service. Devster LLC Virtual Currency is non-refundable, and you are not entitled to a refund for any unused Devster LLC Virtual Currency. Once you redeem Devster LLC Virtual Currency for an Entitlement, that Entitlement is not returnable, exchangeable, or refundable. If you live in Japan, you agree to use any Devster LLC Virtual Currency within 180 days from the date of purchase.
You will provide at your own expense the equipment, Internet connection and charges required to access and use Devster LLC Services.
4. Availability of Devster LLC Services and Updates
We do not guarantee that any Devster LLC Service, Content or Entitlement will be available at all times, in all locations, or at any given time or that we will continue to offer a particular Devster LLC Service, Content or Entitlements for any particular length of time. Devster LLC does not guarantee that Devster LLC Services can be accessed on all devices, by means of a specific Internet or connection provider, or in all geographic locations.
From time to time, Devster LLC may update, change or modify a Devster LLC Service, Content or Entitlements, without notice to you. These updates and modifications may be required in order to continue to use Devster LLC Services.
DEVSTER LLC may need to update, or reset certain parameters to balance game play and usage of Devster LLC Services. These updates or “resets” may cause you setbacks within the relevant game world and may affect characters, games, groups or other Entitlements under your control.
5. Your UGC
You are responsible for your UGC. You may not upload UGC that infringes a third party’s intellectual property rights or that violates the law, this Agreement or a third party’s right of privacy or right of publicity.
DEVSTER LLC may, in its sole discretion, remove, edit or disable UGC for any reason, including if Devster LLC reasonably determines that UGC violates this Agreement. Devster LLC does not assume any responsibility or liability for UGC, for removing it, or not removing it or other Content. Devster LLC does not pre-screen all UGC and does not endorse or approve any UGC available on Devster LLC Services.
When you contribute UGC, you grant to Devster LLC, its licensors and licensees a non-exclusive, perpetual, transferable, worldwide, sublicensable license to use, host, store, reproduce, modify, create derivative works, publicly perform, publicly display or otherwise transmit and communicate the UGC, or any portion of it, in any manner or form and in any medium or forum, whether now known or later devised, without notice, payment or attribution of any kind to you or any third party. You also grant to all other users who can access and use your UGC on a Devster LLC Service the right to use, copy, modify, display, perform, create derivative works from, and otherwise communicate and distribute your UGC on or through the relevant Devster LLC Service without further notice, attribution or compensation to you.
6. Rules of Conduct
When you access or use a Devster LLC Service, you agree that you will not:
• Violate any law, rule or regulation.
• Interfere with or disrupt any Devster LLC Service or any server or network used to support or provide a Devster LLC Service, including any hacking or cracking into a Devster LLC Service.
• Use any software or program that damages, interferes with or disrupts a Devster LLC Service or another’s computer or property, such as denial of service attacks, spamming, hacking, or uploading computer viruses, worms, Trojan horses, cancelbots, spyware, corrupted files and time bombs.
• Interfere with or disrupt another player’s use of a Devster LLC Service. This includes disrupting the normal flow of game play, chat or dialogue within a Devster LLC Service by, for example, using vulgar or harassing language, being abusive, excessive shouting (all caps), spamming, flooding or hitting the return key repeatedly.
• Harass, threaten, bully, embarrass, spam or do anything else to another player that is unwanted, such as repeatedly sending unwanted messages or making personal attacks or statements about race, sexual orientation, religion, heritage, etc. Hate speech is not tolerated.
• Contribute UGC or organize or participate in any activity, group or guild that is inappropriate, abusive, harassing, profane, threatening, hateful, offensive, vulgar, obscene, sexually explicit, defamatory, infringing, invades another’s privacy, or is otherwise reasonably objectionable.
• Publish, post, upload or distribute UGC or content that is illegal or that you don’t have permission to freely distribute.
• Publish, post, upload or distribute any content, such as a topic, name, screen name, avatar, persona, or other material or information, that Devster LLC (acting reasonably and objectively) determines is inappropriate, abusive, hateful, harassing, profane, defamatory, threatening, obscene, sexually explicit, infringing, privacy-invasive, vulgar, offensive, indecent or unlawful.
• Post a message for any purpose other than personal communication. Prohibited messages include advertising, spam, chain letters, pyramid schemes and other types of solicitation or commercial activities.
• Impersonate another person or falsely imply that you are a Devster LLC employee or representative.
• Improperly use in-game support or complaint buttons or make false reports to Devster LLC staff.
• Attempt to obtain, or phish for, a password, account information, or other private information from anyone else on Devster LLC Services.
• Make use of any payment methods to access or purchase Devster LLC Services for fraudulent purposes, without permission of the authorized owner, or otherwise concerning a criminal offence or other unlawful activity.
• Use any robot, spider or other automated device or process to access Devster LLC Services for any purpose such as scraping data or copying material.
• Modify any file or any other part of the Devster LLC Service that Devster LLC does not specifically authorize you to modify.
• Use or distribute unauthorized software programs or tools (such as “auto”, “macro”, hack or cheat software), or use exploits, bugs or problems in a Devster LLC Service to gain unfair advantage.
• Engage or assist in cheating or other anticompetitive behavior (such as boosting, collusion, and match or matchmaking manipulation).
• Use or distribute counterfeit software or Devster LLC Content, including Devster LLC Virtual Currency.
• Attempt to use a Devster LLC Service on or through any service that is not controlled or authorized by Devster LLC.
• Sell, buy, trade or otherwise transfer or offer to transfer your Devster LLC Account, any personal access to Devster LLC Services, or any Devster LLC Content associated with your Devster LLC Account, including Devster LLC Virtual Currency and other Entitlements, either within a Devster LLC Service or on a third-party website, or in connection with any out-of-game transaction, unless expressly authorized by Devster LLC.
• Use a Devster LLC Service in a country in which Devster LLC is prohibited from offering such services under applicable export control laws.
• If a Devster LLC Service requires you to create a “username” or a “persona” to represent yourself in-game and online, you should not use your real name and may not use a username or persona that is used by someone else or that Devster LLC determines is vulgar or offensive or violates someone else’s rights.
• Engage in any other activity that significantly disturbs the peaceful, fair and respectful gaming environment of a Devster LLC Service.
• Use information about users publicly available in any Devster LLC Service (e.g. on a leaderboard) for any purpose unrelated to the Service, including to attempt to identify such users in the real world.
• Promote, encourage or take part in any prohibited activity described above.
If you or someone using your Devster LLC Account violates these rules and fails to remedy this violation after a warning, Devster LLC may take action against you, including revoking access to certain or all Devster LLC Services, Content or Entitlements, or terminating your Devster LLC Account as described in Section 8. In case of severe violations, Devster LLC may take these actions without issuing a prior warning. Some examples of severe violations include, but are not limited to: promoting, encouraging or engaging in hacking, selling Devster LLC accounts or entitlements (including virtual currencies and items) without Devster LLC’s permission, extreme harassment, or threatening illegal activities. When practical, Devster LLC will notify you of the action it will take in response to violations of these rules or breach of this Agreement.
Specific Devster LLC Services may post additional rules that apply to your conduct on those services.
If you encounter another user who is violating any of these rules, please report this activity to Devster LLC using the “Help” or “Report Abuse” functions in the relevant Devster LLC Service, if available, or contact Customer Support at firstname.lastname@example.org.
DEVSTER LLC may, in its discretion, monitor or record online activity or Content on Devster LLC Services and may remove any Content from any Devster LLC Service at its discretion. Remember that your communications and your UGC in a Devster LLC Service are public and will be seen by others.
This Section applies to Devster LLC’s games and game subscriptions (“DEVSTER LLC Games”), including Devster LLC Games that run on a Personal Computer (“DEVSTER LLC PC Games”), and the Devster LLC-owned client application and related services that distributes Devster LLC PC Games (the “DEVSTER LLC Desktop”).
A. Technical and Content Protection Measures
DEVSTER LLC utilizes technical or content protection measures, developed by Devster LLC or third-party partners, for Devster LLC Services in order to prevent piracy and the unauthorized copying or use of Devster LLC Games. Attempting to circumvent, disable or tamper with these measures shall terminate this license.
B. DEVSTER LLC Desktop
To play Devster LLC PC Games, Devster LLC may require you to install and use the Devster LLC Desktop client application or successor application. a Devster LLC Account, your acceptance of this Agreement, and an Internet connection are required for the Devster LLC Desktop to authenticate and verify your license to the Devster LLC PC Game (“Authenticate” or “Authentication”).
To access and use Devster LLC Services associated with a Devster LLC PC Game, you may first need to register with the serial code enclosed with a Devster LLC PC Game. The serial code provided with the Devster LLC PC Game will be verified during Authentication. Authentication is limited to one Devster LLC Account per serial code, which means the Devster LLC PC Game is not transferable. You may only launch and access a Devster LLC PC Game on no more than five unique machines in any rolling 24-hour period.
The Devster LLC Desktop and Devster LLC PC Games may download and install updates, upgrades and additional features that Devster LLC deems reasonable, beneficial to you, and/or reasonably necessary, with or without notice. You agree that Devster LLC has no obligation to support previous version(s) of the Devster LLC Desktop upon the availability of an update, upgrade and/or implementation of additional features. Devster LLC may provide you with the option to download, install and use an alpha or beta version of the Devster LLC Desktop under these same terms.
Instructions to uninstall the Devster LLC Desktop client can be found by emailing email@example.com.
You may uninstall Devster LLC PC Games at any time using the Devster LLC Desktop interface and deleting any remaining locally saved files.
C. Monitoring and Anti-Cheat Measures
DEVSTER LLC utilizes technologies to detect and prevent cheating in the use of Devster LLC Services. and in particular, Devster LLC Games. These technologies may be developed by Devster LLC or a third party.
When you launch an online-capable game, these technologies may activate using kernel, admin or user privileges, and monitor your gameplay and device’s RAM, processes, communications, and file storage for the purposes of detecting violations of, and enforcing, the Code of Conduct in Section 6, including the use of Unauthorized Third-Party Programs. An Unauthorized Third-Party Program is a third-party program or file (such as a “add-on”, “mod”, “hack”, “trainer”, or “cheat”) that Devster LLC believes (i) enables or facilitates cheating of any type; (ii) allows users to modify or hack the game interface, environment, and/or experience in any way not expressly authorized by Devster LLC; or (iii) intercepts, “mines”, or otherwise collects information from or through the game.
DEVSTER LLC may collect relevant information needed for our investigation and enforcement purposes such as your account information, details related to an Unauthorized Third-Party Program, any Devster LLC PC Game files that were modified, and times cheating was detected. We also may terminate your License and your Devster LLC Account if we determine you have been cheating.
When you exit an online-capable game, these anti-cheat technologies will be deactivated.
8. Termination and Other Sanctions
This Agreement is effective until terminated by you or Devster LLC. Devster LLC may terminate your access and use of any Devster LLC Services or your Devster LLC Account if Devster LLC determines that you have violated this Agreement or that there has been otherwise unlawful, improper or fraudulent use of Devster LLC Services on your Devster LLC Account. When practical, Devster LLC will notify you of the termination. You may lose your username and persona as a result of a Devster LLC Account termination. If you have more than one Devster LLC Account, depending on the type of violation or misuse, Devster LLC may terminate all of your Devster LLC Accounts and all related Entitlements. If your Devster LLC Account is terminated, you will not have access to your Devster LLC Account or Entitlements and may be barred from accessing or using any Devster LLC Service again. Upon termination, your license under this Agreement also shall terminate.
Instead of termination and prior to any termination, Devster LLC may issue you a warning, suspend or alter your access to a particular Devster LLC Service or your Devster LLC Account, remove or revoke Entitlements at a Devster LLC Account or device level, remove or delete any Content which is in violation with this Agreement, or ban your device or machine from accessing specific Devster LLC Services. If Devster LLC takes any action described in this Section, you will not be entitled to a refund (subject to any statutory refund rights) and no Entitlements will be credited to you or converted to cash or other forms of reimbursement.
DEVSTER LLC may terminate any Devster LLC Service at any time by giving at least thirty days’ notice either via email (if available), within the affected Devster LLC Service, or on the service updates page of Devster LLC’s website. After online service termination, no software updates will be applied to our games and we can’t guarantee our games will continue to function on newer or updated operating systems or be available for download via application distribution services such as the iOS App Store and the Google Play Store. Any games available via such application distribution services after online service termination may be removed without further notice to you.
If you believe that any action has been taken against your Account or device in error, please contact Customer Support at firstname.lastname@example.org.
If you terminate this agreement, you agree to cease all use of Devster LLC Services.
Sections 5, 8-9, 11-15 of this Agreement survive termination of this Agreement.
9. Use of Data
When you use a Devster LLC Service, Devster LLC may collect and store data from your computer or device, including information about your computer or device, hardware, installed software, and operating system (such as IP Address and device ID), information about your Devster LLC Service usage, gameplay and usage statistics, system interactions and peripheral hardware. If you play a Devster LLC Service offline, this data will be stored on your device and transmitted to Devster LLC when your device connects to the Internet. Devster LLC uses this information to operate its business, improve its products and services, provide services to and communicate with you (including for marketing purposes), provide software updates, dynamically serve content and software support, enforce this Agreement, and trouble-shoot bugs or otherwise enhance your experience. If you participate in online services, Devster LLC also may collect, use, store, transmit and publicly display statistical data regarding game play (including scores, rankings and achievements), or identify content that is created and shared by you with other players.
You can manage certain data collection preferences in the Settings tab of the Devster LLC PC Game client.
10. Other Software, Utilities and Tools
Devster LLC Services may require or allow you to download software, software updates or patches, or other utilities and tools from Devster LLC or its licensors onto your computer, entertainment system or device. These technologies may be different across platforms, and the performance of Devster LLC Services may vary depending on your computer and other equipment. You understand that certain updates to these technologies may be required in order to continue use of a Devster LLC Services. Some of these updates may contain locked features or content that require you to pay an additional fee to access them. You consent to Devster LLC automatically installing any available updates for Devster LLC Services. Failure to install available updates may render Devster LLC Services, including Devster LLC PC Games, unplayable.
11. Third Parties
Some Devster LLC Services may give you the option of playing on servers not owned or controlled by Devster LLC. Devster LLC does not control those services and is not responsible for your use of the Devster LLC Service on or through them. These third-party services may subject you to additional or different terms and restrictions.
Devster LLC Services may include hyperlinks to third-party websites. Those sites may collect data or solicit personal information from you. Devster LLC does not control those sites and is not responsible for their content or for their collection, use or disclosure of personal information.
12. Warranties; Limitation of Liability
IF YOU LIVE IN THE EUROPEAN ECONOMIC AREA (EEA), UNITED KINGDOM OR SWITZERLAND, THE DEVSTER LLC SERVICES WILL BE PROVIDED WITH REASONABLE CARE AND SKILL AND NO OTHER PROMISES OR WARRANTIES ABOUT THE DEVSTER LLC SERVICES ARE MADE. IF YOU LIVE OUTSIDE THE EEA, UNITED KINGDOM AND SWITZERLAND, DEVSTER LLC SERVICES ARE LICENSED AND PROVIDED “AS IS.” YOU USE THEM AT YOUR OWN RISK. TO THE FULL EXTENT PERMITTED UNDER APPLICABLE LAW, DEVSTER LLC GIVES NO EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS, AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR PRACTICE. DEVSTER LLC DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE PRODUCT OR DEVSTER LLC SERVICE; THAT THE DEVSTER LLC SERVICE WILL MEET YOUR REQUIREMENTS; THAT OPERATION OF THE DEVSTER LLC SERVICE WILL BE UNINTERRUPTED OR FREE FROM ERRORS, BUGS, CORRUPTION, LOSS, INTERFERENCE, HACKING OR VIRUSES, OR THAT DEVSTER LLC SERVICES WILL INTEROPERATE OR BE COMPATIBLE WITH ANY OTHER SOFTWARE. DEVSTER LLC DOES NOT WARRANT OR GUARANTEE ANY THIRD-PARTY PRODUCT OR SERVICE OFFERED VIA THE DEVSTER LLC DESKTOP STORE.
IF YOU LIVE IN THE EEA, UNITED KINGDOM OR SWITZERLAND, DEVSTER LLC AND ITS EMPLOYEES, LICENSORS AND BUSINESS PARTNERS WILL NOT BE LIABLE TO YOU FOR ANY LOSSES OR DAMAGES ARISING FROM YOUR ACTIONS OR BREACH OF THIS AGREEMENT, OR WHICH ARISE AS A RESULT OF A THIRD PARTY’S (OR ANY OTHER) ACTS OR OMISSIONS BEYOND OUR CONTROL. IF YOU LIVE OUTSIDE THE EEA, UNITED KINGDOM AND SWITZERLAND, TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, DEVSTER LLC AND ITS EMPLOYEES, LICENSORS AND BUSINESS PARTNERS SHALL NOT BE LIABLE TO YOU FOR ANY LOSSES THAT WERE NOT CAUSED BY DEVSTER LLC’S BREACH OF THIS AGREEMENT, OR INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES. THE TYPES OF EXCLUDED DAMAGES INCLUDE, FOR EXAMPLE, FINANCIAL LOSS (SUCH AS LOSS INCOME OR PROFITS), COST OF SUBSTITUTE GOODS OR SERVICES, BUSINESS INTERRUPTION OR STOPPAGE, LOSS OF DATA, LOSS OF GOODWILL, AND COMPUTER FAILURE OR MALFUNCTION. THIS LIMITATION APPLIES TO ANY CLAIM ARISING OUT OF OR RELATED TO THIS LICENSE OR DEVSTER LLC SERVICE, WHETHER BASED IN CONTRACT, TORT, STATUTE, STRICT LIABILITY OR OTHERWISE. IT ALSO APPLIES EVEN IF DEVSTER LLC KNEW OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF SUCH DAMAGE. YOU MAY RECOVER ONLY DIRECT DAMAGES IN ANY AMOUNT NO GREATER THAN WHAT YOU ACTUALLY PAID FOR THE APPLICABLE DEVSTER LLC SERVICE. DEVSTER LLC DOES NOT LIMIT ITS LIABILITY FOR FRAUD, GROSS NEGLIGENCE, WILFUL MISCONDUCT, OR FOR DEATH OR PERSONAL INJURY. SOME JURISDICTIONS DO NOT ALLOW THE ABOVE EXCLUSIONS AND LIMITATIONS, SO SOME OR ALL OF THEM MAY NOT APPLY TO YOU.
If you purchased a physical copy of a Devster LLC Service from a physical retail store in the United States and you do not agree to the terms of this Agreement and have not installed or used the Devster LLC Service, you may return it for a refund or exchange within thirty (30) days from the date of purchase to the original place of purchase.
13. General Terms
A. Entire Agreement
This Agreement, together with any other Devster LLC terms that govern your use of Devster LLC Services, constitutes the entire agreement between you and Devster LLC. The Agreement may not be amended or modified unless made in writing and signed by Devster LLC. The failure of Devster LLC to exercise any right under this Agreement shall not constitute a waiver of the right or any other right. If any part of this Agreement is held to be unenforceable, all other parts of this Agreement shall continue in full force and effect.
B. Governing Law
This Agreement is between you and Devster LLC, 5150 Horseshoe Trail, Dallas, Texas 75209; (ii) the laws of the State of Texas, United States of America, excluding its conflicts-of-law rules, govern this Agreement and your use of Devster LLC Services; and (iii) you expressly agree that for claims and disputes not subject to the arbitration agreement below, exclusive jurisdiction for any claim or action arising out of or relating to this Agreement or Devster LLC Services shall be the federal or state courts that govern Collin County, Texas, and you expressly consent to the exercise of personal jurisdiction of such courts.
You agree to follow U.S. and other export control laws and agree not to transfer a Devster LLC Service to a foreign national, or national destination, that is prohibited by such laws. You also acknowledge you are not a person with whom Devster LLC is prohibited from doing business under these export control laws.
14. Changes to this Agreement
DEVSTER LLC may modify this Agreement from time to time, so please review it frequently. For Devster LLC players who accepted a previous version of this Agreement, the revisions will become effective 30 days after posting. Your continued use of Devster LLC Services means you accept the changes. Once you accept a version of the Agreement, we will not enforce future material changes without your express agreement to them. If you are asked to accept material changes to this Agreement and you decline to do so, you may not be able to continue to use the Devster LLC Service provided.
15. Dispute Resolutions by Binding Arbitration
THIS SECTION APPLIES TO ALL CONSUMERS AND PEOPLE WHO ACCEPTED THE TERMS OF THIS AGREEMENT. BY ACCEPTING THE TERMS OF THIS AGREEMENT, YOU AND DEVSTER LLC EXPRESSLY WAIVE THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION.
This Section 15 offers a streamlined way to resolve disputes between us if they arise. Most of your concerns can be resolved quickly and satisfactorily by emailing email@example.com. If Devster LLC cannot resolve your concern, you and Devster LLC agree to be bound by the procedure set forth in this Section to resolve any and all disputes between us.
This Section 15 is an agreement between you and Devster LLC, and applies to our respective agents, employees, subsidiaries, predecessors, successors, beneficiaries and assigns. This agreement to arbitrate evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this Section 15 and any arbitration carried out under this Section. This Section 15 shall be interpreted broadly and shall survive termination of this Agreement.
A. Claims Covered by Arbitration
All disputes, claims or controversies arising out of or relating to this Agreement, any Devster LLC Service and its marketing, or the relationship between you and Devster LLC, including the validity, enforceability, and scope of this Section 15 (“Disputes”), shall be determined exclusively by binding arbitration. This includes claims that accrued before you entered into this Agreement. The only Disputes not covered by this Section 15 are claims regarding the infringement, protection or validity of your, Devster LLC’s or Devster LLC’s licensors’ trade secrets, copyright, trademark or patent rights.
B. Informal Negotiations
You and Devster LLC shall first attempt to resolve any Dispute informally for at least 30 days before initiating arbitration. The informal negotiations begin upon receipt of written notice from one party to the other (“Notice of Dispute”). The Notice of Dispute must: (a) include the full name and contact information of the complaining party; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought. Devster LLC will send its Notice of Dispute to your billing or email address. You will send your Notice of Dispute to: Devster LLC, 5150 Horseshoe Trail, Dallas, Texas 75209, ATTENTION: Legal Department.
C. Binding Arbitration
If you and Devster LLC cannot resolve a Dispute informally, you or Devster LLC may elect to have the Dispute finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. The arbitration shall be administered by the American Arbitration Association under its Consumer Arbitration Rules (“AAA Consumer Rules”), with the following modifications:
1. Arbitration fees and costs shall be governed by the AAA Consumer Rules. If such costs are determined by the arbitrator to be excessive, or if you send Devster LLC a notice to the Notice of Dispute address above indicating that you are unable to pay the administrative fees required to initiate an arbitration, Devster LLC may elect to pay all AAA administrative fees.
2. If the Dispute does not exceed $25,000, the arbitration will be conducted solely on the basis of written submissions.
3. The parties may bring any dispositive motion or motions during the course of the proceedings.
4. The arbitrator shall make a decision in writing, which will include the findings and conclusions on which the decision is based. The arbitrator has the authority to issue any relief allowed by applicable law, but may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.
The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. You and Devster LLC may litigate in court to compel arbitration, to stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
YOU AND DEVSTER LLC AGREE THAT DEVSTER LLC MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING AS TO ALL DISPUTES. The arbitrator shall not consolidate another person’s claims with your claims, and shall not preside over any type of representative or class proceeding. If this paragraph D is found to be unenforceable, then the entirety of this agreement to arbitrate shall be null and void.
Arbitration shall be initiated in the County of Collin, State of Texas, United States of America, and you and Devster LLC agree to submit to the personal jurisdiction of that court, in order to compel arbitration, to stay the proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
If the arbitrator rules in your favor on the merits of any claim you bring against Devster LLC and issues you an award that is greater in monetary value than Devster LLC’s last written settlement offer made before Devster LLC makes its final written submissions to the arbitrator, then Devster LLC will:
1. Pay you 150% of your arbitration award, up to $5,000 USD over and above your arbitration award; and
2. Reimburse the arbitration fees that you paid to the AAA.
G. Changes to this Arbitration Agreement
DEVSTER LLC will not enforce material changes to this agreement to arbitrate, unless you expressly agree to the changes.
If any clause within this Section 15 (other than the Class Action Waiver clause set forth in paragraph D above) is found to be unenforceable, that clause will be severed from this Section 15 and the remainder of this Section 15 will remain in full force and effect.