Signed in as:
filler@godaddy.com
Signed in as:
filler@godaddy.com
TERMS OF USE
Updated date: January 30, 2023
FIRST, AN IMPORTANT MESSAGE: PLEASE READ THESE TERMS OF USE (“Terms”, “Terms of Use”, or “Agreement”) CAREFULLY BEFORE USING THIS ONLINE OR MOBILE ENTERTAINMENT SERVICE, AS THEY AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS, INCLUDING, BUT NOT LIMITED TO, WAIVERS OF RIGHTS, LIMITATION OF LIABILITY, AND YOUR INDEMNITY TO US. THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN COURTS, JURY TRIALS, OR CLASS ACTIONS, AND LIMITS THE REMEDIES AVAILABLE IN THE EVENT OF A DISPUTE.
Welcome and thank you for using a service provided by Hobo Shack entertainment. These Terms of Use are a legally binding agreement between you and Hobo Shack and govern your use of our online, digital, or mobile services, including our websites, software, applications, games, and any of our other products and services in connection with which these Terms of Use are posted or from which they are linked (collectively, the “Service”).
Certain aspects of the Service may be subject to additional terms and conditions, which may include, among other things, particularized age requirements, codes of conduct, sweepstakes and contest rules, and payment or subscription terms (collectively, “Additional Terms”). When Additional Terms are made available in connection with any aspect of the Service, those Additional Terms also apply to your use of that aspect of the Service and control in the event of a conflict with these Terms.
By accessing or using the Service, you agree to be bound by these Terms and any applicable Additional Terms (which are incorporated herein by reference) and acknowledge our collection and use of your information as described in the Privacy Policy(ies) applicable to the Service (“Privacy Policy”). If you do not wish to be bound by these Terms or Additional Terms, do not access or use the Service.
We reserve the right, in our sole discretion, to modify these Terms (including applicable Additional Terms) from time to time. You agree that we may notify you of modified terms or policies by posting them on the Service, and agree that your continued use of the Service after such notice constitutes your agreement to the modified terms, which will govern your ongoing use of the Service. Thus, you should review the posted Terms of Use and applicable Additional Terms each time you use the Service. Any modifications to these Terms will supersede the prior version for all activity occurring after the revised version has been made available.
By accessing, previewing, or otherwise using the Service in any manner, you represent and warrant that you have sufficient legal capacity to enter into this Agreement or, if you lack such capacity (for instance, if you are a minor), that you have obtained parental or guardian consent to do so. You represent and warrant that you have read, understand, and agree to abide by these Terms and any applicable Additional Terms, and that you have read and understand the data collection and use practices set forth in the Privacy Policy.
Hobo Shack grants you a limited, non-exclusive, non-sublicensable, non-transferable, and fully revocable license to access, view, and use the Service for your personal, non-commercial use solely as provided by these Terms and as expressly permitted by the features and functionality of the Service, subject to your complete compliance with these Terms of Use and all applicable Additional Terms. The Service may allow you to view, preview, select, stream, and access certain content, including video, audio, graphics, photos, and text (collectively, “Content”). Such use may be limited (for example, to supported devices or by number of simultaneous streams per account; by geographic region; by time window; by subscription level; or otherwise, and access will require your use of an approved device with sufficient connectivity).
The Service and Content are protected by copyrights, trademarks, service marks, or other intellectual property rights that are owned by James Lewis or its licensors (Hobo Shack). Hobo Shack respects the intellectual property rights of others and asks that you do the same. Any unauthorized use of Content or any other aspect of the Service, or any portion thereof, will constitute a violation of copyright or other intellectual property rights, and Hobo Shack reserves the right to fully prosecute such violations and enforce its rights to the fullest extent of the law, including seeking both civil and criminal penalties. Violation of this Agreement in any manner automatically terminates the license granted to you herein and obligates you to cease all use of the Service and Content. Any authorization to copy material granted by Hobo Shack in any part of the Service for any reason is restricted to viewing a single copy for non-commercial, personal, entertainment use only, unless otherwise specified, and is subject to your keeping intact all copyright, trademark, and other proprietary notices.
Except as expressly provided herein, Hobo Shack does not grant you any other express or implied right or license in or to the Service or Content and all right, title, and interest that Hobo Shack has in the Service and Content are retained by Hobo Shack, including the right to modify, discontinue, or temporarily suspend any or all of the Service at any time, with or without notice.
No aspect of the Service constitutes legal, financial, medical, or other category of professional advice.
You may be required or permitted to create user accounts (each an “Account”) in order to access or use certain aspects of the Service. If you open an Account or otherwise access the Service on behalf of a company, organization, or other entity (a “Business User”), then you represent and warrant that you have the authority to also bind the Business User to these Terms, and hereby do so, and both you and the Business User will be responsible for any breach of this Agreement. You acknowledge and agree that you have no ownership or other proprietary interest in any Account. You agree that all of the details you provide in connection with your Account are about yourself or an applicable Business User and not about another individual or entity (whether real or fictitious), and that such details will be maintained by you as correct, current, and complete.
You agree that Hobo Shack has the right, in our sole discretion, to investigate any actual or suspected violation of these Terms and to suspend or terminate your Account and refuse you access to your Account, the Service, or the Content (or any portion thereof) for any reason, including if Hobo Shack believes the information you provide is not correct, current, or complete, or that you have otherwise violated this Agreement or any applicable law. You agree that Hobo Shack may report your conduct, activity, or identity to law enforcement or other appropriate authorities, take appropriate legal action against you, respond to subpoenas or other requests for information regarding your Account or use of the Service, or otherwise take action to protect our rights and the rights of any third party. BY ACCEPTING THESE TERMS, YOU WAIVE ANY CLAIMS RESULTING, DIRECTLY OR INDIRECTLY, FROM ANY ACTION TAKEN BY HOBO SHACK DURING OR AS A RESULT OF THESE INVESTIGATIONS.
You may not use anyone else’s Account at any time and you may not allow anyone else to use your Account at any time. You are responsible for all activity occurring under your Account, including all activities or transactions conducted through the use of your Account. You are responsible for maintaining the confidentiality of your Account username and password, and agree not to disclose your username and password to anyone. You agree not to transfer, resell, or otherwise convey your Account or the right to use your Account to anyone. You agree that Hobo Shack will not be liable for any loss you may incur as a result of someone else using your Account, either with or without your knowledge. You also agree that any information you provide is offered at your own risk, and that Hobo Shack cannot guarantee its protection from unauthorized access. If you have reason to believe that your Account is no longer secure, you must: (i) promptly change your password; and (ii) immediately notify us of the problem by sending an email to info@thehoboshack.com
Hobo Shack may require you to change your Account username and password.
You are solely responsible for all charges from your wireless provider including any data and messaging fees that you may incur if you use mobile devices to interact with the Service or to receive communications from Hobo Shack.
Hobo Shack may make certain mobile software applications (“Apps”) available for download in connection with the Service. You may only use Apps on approved devices, for personal use. You are not permitted to modify, transfer, or distribute any Apps. Hobo Shack does not guarantee that the Apps will be compatible with your device. Hobo Shack may choose to make available updates, bug fixes, or other changes or enhancements to the Apps from time to time; such updates may be automatic, at your election, or mandatory if you wish to continue using the Apps, at Hobo Shack’s discretion. You may not use or otherwise export or re-export the Apps, or any other software provided as part of the Service, except as authorized by United States law and the laws of the jurisdiction in which the software was obtained. In particular, but without limitation, neither the Apps, nor any other software, may be exported or re-exported into any U.S. embargoed countries or to any persons listed as prohibited under applicable law or regulation. If you download or use any software, you represent and warrant that you (i) 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) are not listed on any U.S. Government list of prohibited or restricted parties.
The additional terms in this Section 5.C apply only to your use of Apps downloaded through Apple Inc.’s (“Apple”) iTunes App Store (“iTunes Apps”). You agree that this Agreement is solely between you and Hobo Shack, not Apple, and that Apple is not responsible for iTunes Apps or their content. Apple has no obligation whatsoever to furnish any maintenance or support services in connection with iTunes Apps. You will not involve Apple in any claims relating to your use of iTunes Apps, or in any third-party claims alleging infringement of intellectual property rights by the iTunes Apps. You agree to comply with all third-party agreements in connection with your use of iTunes Apps (for example, your wireless provider agreement). Finally, you agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of the Agreement solely for the purpose of enforcing the applicable Terms against you in connection with your use of iTunes Apps.
Certain aspects of the Service may require payments. If you use those aspects of the Service, you agree to the applicable pricing and payment terms. Such terms will be displayed in connection with that aspect of the Service requiring payment. Hobo Shack may update pricing and payment terms at any time and in its sole discretion, with any changes to subscription fees taking effect upon the conclusion of your current subscription term unless otherwise specified. The transaction is with the specific Hobo Shack entity identified by the aspect of the Service used to make the purchase.
All/some payment transactions may be administered by a third-party payment processor or third-party store (for example, Google Play). Hobo Shack expressly disclaims any liability for the processing of any transactions by a third party, including any errors in invoicing or payment processing or any breach in security with respect to your payment information associated with the third-party’s handling of the transaction. Hobo Shack is not responsible or liable to you for any credit card, bank-related, or other financial service charges and fees related to your transactions. You represent and warrant that all payment information you provide is correct, current, and complete. You agree to pay all applicable charges (including any applicable taxes) billed to your chosen payment method. We reserve the right to refuse or cancel transactions, including due to pricing or other typographical errors.
All purchases are final and no refunds are available unless otherwise specified in applicable Additional Terms, including where your account is terminated or suspended preventing your access to paid aspects of the Service, such as any remaining subscription terms. Subscriptions have no monetary value and are purchases of only a limited, personal, non-transferrable, non-exclusive, non-sublicensable, non-assignable, and fully revocable license to access the applicable portion of the Service. Unless otherwise specified (at initial sign-up or subsequently), subscriptions may renew automatically for up to the initial subscription term at a rate not exceeding the rate for the prior subscription period. If you sign up for a free trial subscription (if available), you will be automatically billed at the then-current rate at the conclusion of the free trial. You may cancel any automatically renewing subscription by using that aspect of the Service you used to set up your subscription, unless another cancellation method is specified in applicable Additional Terms.
The name and contact information of the service provider is set forth herein in conformance with Cal. Civ. Code § 1789.3. If you are a California resident, you may report any complaints to the Consumer Information Division of the California Department of Consumer Affairs at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
The Service may feature fictional credits, items, rewards, points, currency, or the like (collectively, “Virtual Items”). The Virtual Items may be used exclusively within the Service. You receive only a limited, personal, non-transferrable, non-exclusive, non-sublicensable, non-assignable, and fully revocable license to use the Virtual Items in connection with the Service and as governed by these Terms. You have no right, title, interest, or ownership in or to any Virtual Items. Virtual Items have no monetary value and are not redeemable for any sum of money. You will receive no compensation for any Virtual Items that are deleted, modified, or to which you lose access if your Account is terminated, suspended, or otherwise limited. Hobo Shack has the absolute right to manage, regulate, control, modify, or eliminate Virtual Items as we see fit in our sole discretion, and Hobo Shack will have no liability to you or anyone else for the exercise of such rights. For example, Virtual Items may be immediately lost, deleted from your Account, or otherwise forfeited if your Account is terminated or closed for any reason or when Hobo Shack discontinues, modifies, or updates an applicable aspect of the Service (for example, discontinuing a game featuring Virtual Items).
All purchases of licenses to Virtual Items are final and governed by the terms of Section 6 (Paid Services); by indicating your desire to purchase a license to any Virtual Items through the Service, including by clicking or tapping the relevant purchase button, you confirm that you want said items credited to your Account and in so doing you lose any cancellation rights you may have under applicable laws.
Any unauthorized transferring, trading, selling or exchanging of any Virtual Items to anyone, including other users of the Service, is strictly prohibited. Hobo Shack may take action it deems appropriate in response, including deletion of the Virtual Items or termination or suspension of any Account involved. You acknowledge and agree that Hobo Shack will have no liability for the use or loss of Virtual Items for any reason, including due to any unauthorized third-party activity, such as hacking, phishing, password mining, social engineering, or any other unauthorized activity. Hobo Shack may replace such lost Virtual Items under certain circumstances, in our sole discretion and on a case-by-case basis, without incurring any obligation or liability. If Hobo Shack revokes your license to Virtual Items, Hobo Shack will not have any liability to you for any time or money spent by you on Virtual Items, any Virtual Items associated with your Account, or for any other reason whatsoever.
The Service may link to, integrate with, or incorporate third party content, sites, services, or platforms, including advertisers, online merchants, and social networks (collectively, “Third Party Services”). Hobo Shack does not endorse and is not responsible for Third Party Services, whether in terms of their correctness, accuracy, validity, propriety, reliability, legality, security, or otherwise, and Hobo Shack disclaims all liability in connection therewith. References to Third Party Services do not imply endorsement of any Third Party Services by Hobo Shack or any association with its operators. Your dealings with Third Party Services are solely between you and the applicable Third Party Services. To learn more about Third Party Services, consult the Third Party Services’ respective terms of use and privacy policies.
From time to time, certain aspects of the Service may invite or otherwise allow you to submit or post a variety of content to the Service, such as text (including comments and reviews), images, videos, music, and other information, either directly to the Service or through a Third Party Service (collectively, “User Content”). Your User Content remains your own, unless as otherwise may be provided in Additional Terms. Please be aware, however, that User Content is not confidential and may be accessible by other users and the public. Moreover, by submitting or posting User Content to the Service (either directly or through a Third Party Service) you grant Hobo Shack a royalty-free, perpetual, irrevocable, non-exclusive, sublicensable, assignable, unrestricted, worldwide license to use the User Content, together with all consents or waivers including a publicity rights waiver and a waiver of moral rights (if any) in favor of Hobo Shack necessary to reproduce, distribute, publicly perform, publicly display, transmit, communicate to the public, modify and make derivative works of the User Content, by any means and in all media formats and channels now known or hereafter devised in perpetuity, and to advertise and promote such use, without further notice to, or permission from, you or any other person, and without compensation or reference to you or any other person.
Please retain copies of all User Content as Hobo Shack is under no obligation to store or return any User Content to you. Your submission of User Content will not be subject to any obligation of confidentiality, attribution, or otherwise. You are solely responsible for your User Content. Hobo Shack only acts as a passive conduit for User Content, and will not be liable for any use, disclosure, or exposure of any User Content, including possibly objectionable or offensive User Content, to you, any other user, or any third party. Hobo Shack is under no obligation to monitor User Content or use of the Service. However, Hobo Shack has the right to monitor or moderate User Content, in our sole discretion, and to enforce our or a third party’s intellectual property rights in any User Content. Hobo Shack reserves the right to discard or remove User Content from the Service in its sole discretion and without any liability whatsoever.
You represent and warrant the following as to your User Content:
You agree that you will not use the Service to upload, post, or otherwise distribute any User Content that:
In using the Service you also agree not to:
Please be aware that Hobo Shack does not accept unsolicited submissions of concepts, creative ideas, suggestions, stories, scripts, or other potential creative content (“Unsolicited Submissions”). This is to avoid the possibility of future misunderstanding when projects developed by Hobo Shack staff or representatives might seem to others to be similar to their submitted concepts, creative ideas, suggestions, stories, scripts, or other potential creative content. Therefore, please do not send Hobo Shack any Unsolicited Submissions. In the event you do send us an Unsolicited Submission, you understand and agree that your Unsolicited Submission does not create any fiduciary relationship between you and Hobo Shack and that we are under no obligation to refrain from using the Unsolicited Submission (in whole or in part), to keep it confidential, or to compensate you for our use of it.
Hobo Shack makes no representation that every aspect of the Service is appropriate or available for use in any particular jurisdiction. When you choose to access and use the Service, you agree that:
If there is a conflict between any of the terms herein and your rights in your place of residence, your rights under applicable law will control as to those specific terms.
YOUR USE OF THE SERVICE IS AT YOUR OWN RISK. THE SERVICE IS PROVIDED "AS IS” AND "AS AVAILABLE" WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, HOBO SHACK DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. HOBO SHACK DOES NOT WARRANT THAT THE SERVICE WILL BE AVAILABLE, UNINTERRUPTED, SECURE, OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE OR THE SERVERS THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. HOBO SHACK DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICE, INFORMATION, SOFTWARE, CONTENT, OR OTHER MATERIALS AVAILABLE THROUGH THE SERVICE OR ANY WEBSITE, APP, PLATFORM, OR SERVICE LINKED TO THE SERVICE, WHETHER IN TERMS OF THEIR CORRECTNESS, ACCURACY, VALIDITY, PROPRIETY, RELIABILITY, LEGALITY, SECURITY, OR OTHERWISE. HOBO SHACK MAKES NO WARRANTIES THAT YOUR USE OF THE SERVICE, INFORMATION, SOFTWARE, CONTENT, OR OTHER MATERIALS AVAILABLE THROUGH THE SERVICE OR ANY WEBSITE, APP, OR SERVICE LINKED TO FROM THE SERVICE WILL NOT INFRINGE THE RIGHTS OF OTHERS; AND HOBO SHACK ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ERRORS OR OMISSIONS IN SUCH SERVICES, INFORMATION, SOFTWARE, CONTENT, OR OTHER MATERIALS AVAILABLE THROUGH THE SERVICE OR ANY OTHER WEBSITE, APP, PLATFORM OR SERVICE LINKED TO THE SERVICE. IF APPLICABLE LAW DOES NOT ALLOW THE EXCLUSION OF SOME OR ALL OF THE ABOVE IMPLIED WARRANTIES TO APPLY TO YOU, THE ABOVE EXCLUSIONS WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
HOBO SHACK DOES NOT ACCEPT ANY LIABILITY FOR ANY LOSS OR DAMAGE (DIRECT, INDIRECT, PUNITIVE, ACTUAL, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, OR OTHERWISE) ARISING FROM YOUR USE OR INABILITY TO USE THE SERVICE. IN NO EVENT WILL HOBO SHACK’S AGGREGATE LIABILITY TO YOU IN CONNECTION WITH THE SERVICE OR THESE TERMS EXCEED THE GREATER OF THE AMOUNT (IF ANY) PAID BY YOU TO HOBO SHACK IN THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $100. THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION APPLY TO ALL ACTIONS, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION, REGARDLESS OF THE BASIS UPON WHICH LIABILITY IS CLAIMED AND EVEN IF HOBO SHACK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. IF APPLICABLE LAW DOES NOT ALLOW ALL OR ANY PART OF THE ABOVE LIMITATION OF LIABILITY TO APPLY TO YOU, THE LIMITATIONS WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
SUBJECT TO SECTION 16 OF THIS AGREEMENT (DISPUTE RESOLUTION), TO THE EXTENT PERMITED BY APPLICABLE LAW, ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING IN ANY WAY TO THE SERVICE OR YOUR USE OF THE SERVICE, THESE TERMS OF USE, OR THE RELATIONSHIP BETWEEN US, MUST BE COMMENCED WITHIN ONE YEAR OF THE RELEVANT EVENTS. A DISPUTE IS COMMENCED IF IT IS FILED IN AN ARBITRATION OR, IF THE DISPUTE IS NON-ARBITRABLE, A COURT OF COMPETENT JURISDICTION, DURING THE ONE-YEAR PERIOD. IF YOU OR WE PROVIDE NOTICE OF A DISPUTE UNDER SECTION 16 (DISPUTE RESOLUTION), THE ONE-YEAR PERIOD IS TOLLED FOR 60 DAYS FOLLOWING RECEIPT OF THE NOTICE OF DISPUTE (ALTHOUGH FOR THE SAKE OF CLARITY, IT MAY BE FURTHER EXTENDED IF YOUR DISPUTE, CLAIM OR CONTROVERSY IS PART OF A MASS FILING AS CONTEMPLATED IN SECTION 16.9). EXCEPT AS SET FORTH IN SECTION 16, YOU AND WE EACH WAIVE—THAT IS, GIVE UP—THE RIGHT TO PURSUE ANY DISPUTE, CLAIM OR CONTROVERSY THAT IS NOT FILED WITHIN ONE YEAR AND ANY RIGHT YOU OR WE MAY HAVE HAD TO PURSUE THAT DISPUTE, CLAIM OR CONTROVERSY IN ANY FORUM IS PERMANENTLY BARRED.
You agree to indemnify and hold harmless Hobo Shack and its directors, officers, shareholders, parents, subsidiaries, affiliates, partners, agents, and licensors (collectively, the "Indemnified Parties") from and against all losses, expenses, damages and costs, including reasonable attorney fees and costs, resulting from: (i) your breach of any of the representations, warranties, and agreements made hereunder; (ii) your use of the Service; (iii) your placement or transmission of any User Content onto the Service; (iv) any use of your Account in violation of this Agreement or your failure to fulfill any obligations incurred through the use of your Account by you or a third party; or (v) your willful misconduct.
Summary:
We endeavor to resolve customer concerns quickly and to the customer’s satisfaction. Please contact us via email to OriginalHoboShack@gmail.com
In the unlikely event that you're not satisfied with customer service's solution, and you and Hobo Shack are unable to resolve a dispute through the Informal Dispute Resolution Procedures below, we each agree to resolve the dispute through binding arbitration or small claims court instead of in courts of general jurisdiction.
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Unless expressly limited by this Dispute Resolution provision, arbitrators can award the same damages and relief that a court can award. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted. In arbitration you may be entitled to recover attorneys’ fees from us to the same extent as you would be in court.
ARBITRATION AGREEMENT
(1) Claims Subject to Arbitration: To the fullest extent permitted by applicable law, Hobo Shack and you agree to arbitrate all disputes and claims between us, except for claims arising from bodily injury or that pertain to enforcing, protecting, or the validity of your or our intellectual property rights (or the intellectual property rights of any of our licensors, affiliates and partners). This Arbitration Agreement is intended to be broadly interpreted. It includes, but is not limited to:
• claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, fraud, misrepresentation or any other statutory or common-law legal theory;
• claims that arose before this or any prior Agreement (including, but not limited to, claims relating to advertising);
• claims for mental or emotional distress or injury not arising out of physical bodily injury;
• claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and
• claims that may arise after the termination of this Agreement.
References to “Hobo Shack,” “you,” “we” and “us” in this Arbitration Agreement include our respective predecessors in interest, successors, and assigns, as well as our respective past, present, and future parents, subsidiaries and affiliates (including James Lewis Films); those entities and our respective agents, employees, licensees, licensors, and providers of content as of the time your or our claim arises; and all authorized or unauthorized users or beneficiaries of Services under this or prior Agreements between us. Notwithstanding the foregoing, either party may elect to have claims heard in small claims court seeking only individualized relief, so long as the action is not removed or appealed to a court of general jurisdiction. This Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies. You agree that, by entering into this Agreement, you and we are each waiving the right to participate in a class action and to a trial by jury to the fullest extent permitted by applicable law. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act (9 U.S.C. §§ 1-16) governs the interpretation and enforcement of this arbitration provision. This Arbitration Agreement shall survive termination of this Agreement.
(2) Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures: You and we agree that good-faith, informal efforts to resolve disputes often can result in a prompt, cost-effective and mutually beneficial outcome. Therefore, a party who intends to initiate arbitration or file a claim in small claims court must first send to the other a written Notice of Dispute (“Notice”). A Notice from you to Hobo Shack must be emailed to OriginalHoboShack@gmail.com (“Notice Address”). Any Notice must include (i) the claimant’s name, address, and email address; (ii) a description of the nature and basis of the claim or dispute; (iii) if you are submitting the Notice, any relevant facts regarding your use of the Service, including the name of the relevant Service (e.g., the Web site, App, or other Service at issue), whether you have created an account with or receive any emails associated with the Service; (iv) a description of the nature and basis of the specific relief sought, including the damages sought, if any, and a detailed calculation for them; and (v) a personally signed statement from the claimant (and not their counsel) verifying the accuracy of the contents of the Notice. The Notice must be individualized, meaning it can concern only your dispute and no other person’s dispute.
After receipt of a completed Notice, the parties shall engage in a good faith effort to resolve the dispute for a period of 60 days (which can be extended by agreement). You and we agree that, after receipt of the completed Notice, the recipient may request an individualized telephone or video settlement conference (which can be held after the 60-day period) and both parties will personally attend (with counsel, if represented). You and we agree that the parties (and counsel, if represented) shall work cooperatively to schedule the conference at the earliest mutually-convenient time and to seek to reach a resolution. If we and you do not reach an agreement to resolve the issues identified in the Notice within 60 days after the completed Notice is received (or a longer time if agreed to by the parties), you or we may commence an arbitration proceeding or a small claims court proceeding (if permitted by small claims court rules).
Compliance with this Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures section is a condition precedent to initiating arbitration. Any applicable limitations period (including statute of limitations) and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution procedures set forth in this Subsection 16.2. All of the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures are essential so that you and Hobo Shack have a meaningful opportunity to resolve disputes informally. If any aspect of these requirements has not been met, a court of competent jurisdiction may enjoin the filing or prosecution of an arbitration. In addition, unless prohibited by law, the arbitration administrator may not accept, administer, assess, or demand fees in connection with an arbitration that has been initiated without completion of the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures. If the arbitration is already pending, it shall be administratively closed. Nothing in this paragraph limits the right of a party to seek damages for non-compliance with these Procedures in arbitration.
(3) Arbitration Procedure: The arbitration will be governed by applicable rules of National Arbitration & Mediation (“NAM”) (including the Comprehensive Dispute Resolution Rules and Procedures and/or the Supplemental Rules for Mass Arbitration Filings, as applicable) (“NAM Rules”)), as modified by this Arbitration Agreement, and will be administered by NAM. (If NAM is unavailable or unwilling to do so, another arbitration provider shall be selected by the parties that will do so, or if the parties are unable to agree on an alternative administrator, by the court pursuant to 9 U.S.C. §5.) The NAM Rules are available online at www.NAMADR.org, by calling NAM at 1-800-358-2550, or by requesting them in writing at the Notice Address. You may obtain a form to initiate arbitration at: https://www.namadr.com/content/uploads/2020/09/Comprehensive-Demand-for-Arb-revised-9.18.19.pdf or by contacting NAM.
You and we agree that the party initiating arbitration must submit a certification that they have complied with and completed the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures requirements referenced in Section 16.2 and that they are a party to the Arbitration Agreement enclosed with or attached to the demand for arbitration. The demand for arbitration and certification must be personally signed by the party initiating arbitration (and their counsel, if represented).
All issues are for the arbitrator to decide, except as otherwise expressly provided herein and except as to issues relating to the scope and enforceability of the Arbitration Agreement or whether a dispute can or must be brought in arbitration (including whether a dispute is subject to this Arbitration Agreement or a previous arbitration provision between you and Hobo Shack), which are for a court of competent jurisdiction to decide. The arbitrator may consider but shall not be bound by rulings in other arbitrations involving different customers.
Unless we and you agree otherwise, or the applicable NAM Rules dictate otherwise, any arbitration hearings will take place in the county (or parish) of your billing address and you and a Hobo Shack representative will be required to attend in person. At the conclusion of the arbitration proceeding, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The arbitrator’s decision is binding only between you and Hobo Shack and will not have any preclusive effect in another arbitration or proceeding that involves a different party. An arbitrator’s award that has been fully satisfied shall not be entered in any court.
As in court, you and Hobo Shack agree that any counsel representing a party in arbitration certifies when initiating and proceeding in arbitration that they are complying with the requirements of Federal Rule of Civil Procedure 11(b), including certification that the claim or relief sought is neither frivolous nor brought for an improper purpose. The arbitrator is authorized to impose any sanctions under the NAM Rules, Federal Rule of Civil Procedure 11, or applicable federal or state law, against all appropriate represented parties and counsel.
Except as expressly provided in the Arbitration Agreement, the arbitrator may grant any remedy, relief, or outcome that the parties could have received in court, including awards of attorneys’ fees and costs, in accordance with applicable law. Unless otherwise provided by applicable law, the parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator awards sanctions or finds that either the substance of the claim, the defense, or the relief sought is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
(4) Arbitration Fees: The payment of arbitration fees (the fees imposed by the arbitration administrator including filing, arbitrator, and hearing fees) will be governed by the applicable NAM Rules, unless you qualify for a fee waiver under applicable law. If after exhausting any potentially available fee waivers, the arbitrator finds that the arbitration fees will be prohibitive for you as compared to litigation, we will pay as much of your filing, arbitrator, and hearing fees in the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive, regardless of the outcome of the arbitration, unless the arbitrator determines that your claim(s) were frivolous or brought for an improper purpose or asserted in bad faith. You and we agree that arbitration should be cost-effective for all parties and that any party may engage with NAM to address the reduction or deferral of fees.
(5) Confidentiality: Upon either party’s request, the arbitrator will issue an order requiring that confidential information of either party disclosed during the arbitration (whether in documents or orally) may not be used or disclosed except in connection with the arbitration or a proceeding to enforce the arbitration award and that any permitted court filing of confidential information must be done under seal to the furthest extent permitted by law.
(6) Offer of Settlement: In any arbitration between you and Hobo Shack, the defending party may, but is not obligated to, make a written settlement offer at any time before the evidentiary hearing or, if a dispositive motion is permitted, prior to the dispositive motion being granted. The amount or terms of any settlement offer may not be disclosed to the arbitrator until after the arbitrator issues an award on the claim. If the award is issued in the other party’s favor and is less than the defending party’s settlement offer or if the award is in the defending party’s favor, the other party must pay the defending party’s costs incurred after the offer was made, including any attorney’s fees. If any applicable statute or case law prohibits the shifting of costs incurred in the arbitration, then the offer in this provision shall serve to cease the accumulation of any costs to which the party bringing the claim may be entitled for the cause of action under which it is suing.
(7) Requirement of Individualized Relief: The arbitrator 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. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING. Further, unless both you and we agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative, class, or private attorney general proceeding. If, after exhaustion of all appeals, any of these prohibitions on non-individualized declaratory or injunctive relief; class, representative, and private attorney gener
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