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some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages , so the foregoing limitation of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction .
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in no event will the total liability of niantic , tpc , or tpci arising out of or in connection with these terms or from the use of or inability to use the services or content exceed one thousand dollars -lrb- $ 1,000 -rrb- .
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the exclusions and limitations of damages set forth above are fundamental elements of the basis of the bargain between niantic and you .
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these terms and any action related thereto will be governed by the laws of the state of california without regard to its conflict of laws provisions .
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you and niantic agree that any dispute , claim , or controversy arising out of or relating to these terms or the breach , termination , enforcement , interpretation , or validity thereof or the use of the services or content -lrb- collectively , `` disputes '' -rrb- will be settled by binding arbitration , except that each party retains the right : -lrb- a -rrb- to bring an individual action in small claims court and -lrb- b -rrb- 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 -lrb- the action described in this clause -lrb- b -rrb- , an `` ip protection action '' -rrb- .
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without limiting the preceding sentence , you will also have the right to litigate any other dispute if you provide niantic with written notice of your desire to do so by email or regular mail at [email protected] or 2 bryant st. , ste. 220 , san francisco , ca 94105 within thirty -lrb- 30 -rrb- days following the date you first accept these terms -lrb- such notice , an `` arbitration opt-out notice '' -rrb- .
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if you do n't provide niantic with an arbitration opt-out notice within the thirty -lrb- 30 -rrb- day period , you will be deemed to have knowingly and intentionally waived your right to litigate any dispute except as expressly set forth in clauses -lrb- a -rrb- and -lrb- b -rrb- above .
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the exclusive jurisdiction and venue of any ip protection action or , if you timely provide niantic with an arbitration opt-out notice , will be the state and federal courts located in the northern district of california , and each of the parties hereto waives any objection to jurisdiction and venue in such courts .
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unless you timely provide niantic with an arbitration opt-out notice , you acknowledge and agree that you and niantic are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding .
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further , unless both you and niantic otherwise agree in writing , the arbitrator may not consolidate more than one person 's claims , and may not otherwise preside over any form of any class or representative proceeding .
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if this specific paragraph is held unenforceable , then the entirety of this `` dispute resolution '' section will be deemed void .
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except as provided in the preceding sentence , this `` dispute resolution '' section will survive any termination of these terms .
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the arbitration will be administered by the american arbitration association -lrb- `` aaa '' -rrb- in accordance with the commercial arbitration rules and the supplementary procedures for consumer related disputes -lrb- the `` aaa rules '' -rrb- then in effect , except as modified by this `` dispute resolution '' section .
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-lrb- the aaa rules are available at www.adr.org/arb_med or by calling the aaa at 1-800-778-7879 . -rrb-
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the federal arbitration act will govern the interpretation and enforcement of this section .
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a party who desires to initiate arbitration must provide the other party with a written demand for arbitration as specified in the aaa rules .
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-lrb- the aaa provides a general demand for arbitration -rrb- the 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 .
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if the parties are unable to agree upon an arbitrator within seven -lrb- 7 -rrb- days of delivery of the demand for arbitration , then the aaa will appoint the arbitrator in accordance with the aaa rules .
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unless you and niantic otherwise agree , the arbitration will be conducted in the county where you reside .
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if your claim does not exceed $ 10,000 , then the arbitration will be conducted solely on the basis of the documents that you and niantic submit to the arbitrator , unless you request a hearing or the arbitrator determines that a hearing is necessary .
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if your claim exceeds $ 10,000 , your right to a hearing will be determined by the aaa rules .
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subject to the aaa rules , the arbitrator will have the discretion to direct a reasonable exchange of information by the parties , consistent with the expedited nature of the arbitration .
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the arbitrator will render an award within the time frame specified in the aaa rules .
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the arbitrator 's decision will include the essential findings and conclusions upon which the arbitrator based the award .
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judgment on the arbitration award may be entered in any court having jurisdiction thereof .
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the arbitrator 's award of damages must be consistent with the terms of the `` limitation of liability '' section above as to the types and amounts of damages for which a party may be held liable .
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the arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant 's individual claim .
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if you prevail in arbitration , you will be entitled to an award of attorneys ' fees and expenses to the extent provided under applicable law .
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niantic will not seek , and hereby waives , all rights it may have under applicable law to recover attorneys ' fees and expenses if it prevails in arbitration .
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our responsibility to pay any aaa filing , administrative , and arbitrator fees will be solely as set forth in the aaa rules .
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however , if your claim for damages does not exceed $ 75,000 , niantic will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your demand for arbitration was frivolous or was brought for an improper purpose -lrb- as measured by the standards set forth in federal rules of civil procedure 11 -lrb- b -rrb- -rrb- .
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notwithstanding the provisions of the `` changes to terms or services '' section above , if niantic changes this `` dispute resolution '' section after the date you first accepted these terms -lrb- or accepted any subsequent changes to these terms -rrb- , you may reject any such change by sending us written notice -lrb- including by email to [email protected] -rrb- within 30 days of the date such change became effective , as indicated in the `` last updated '' date above or in the date of niantic 's email to you notifying you of such change .
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by rejecting any change , you are agreeing that you will arbitrate any dispute between you and niantic in accordance with the provisions of this `` dispute resolution '' section as of the date you first accepted these terms -lrb- or accepted any subsequent changes to these terms -rrb- .
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these terms and any action related thereto will be governed by the laws of the state of california without regard to its conflict of laws provisions .
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these terms constitute the entire and exclusive understanding and agreement between niantic and you regarding the services and content , and these terms supersede and replace any and all prior oral or written understandings or agreements between niantic and you regarding the services and content .
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if any provision of these terms is held invalid or unenforceable -lrb- either by an arbitrator appointed pursuant to the terms of the `` dispute resolution '' section above or by a court of competent jurisdiction , but only if you timely opt out of arbitration by sending us an arbitration opt-out notice in accordance with the terms set forth above -rrb- , that provision will be enforced to the maximum extent permissible , and the other provisions of these terms will remain in full force and effect .
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you may not assign or transfer these terms , by operation of law or otherwise , without niantic 's prior written consent .
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any attempt by you to assign or transfer these terms without such consent will be null .
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niantic may freely assign or transfer these terms without restriction .
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subject to the foregoing , these terms will bind and inure to the benefit of the parties , their successors and permitted assigns .
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any notices or other communications provided by niantic under these terms , including those regarding modifications to these terms , will be given : -lrb- a -rrb- via email , or -lrb- b -rrb- by posting to the services .
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for notices made by email , the date of receipt will be deemed the date on which such notice is transmitted .
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niantic 's failure to enforce any right or provision of these terms will not be considered a waiver of such right or provision .
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the waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of niantic .
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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 .
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if you have any questions about these terms or the services , please contact niantic at [email protected] or 1 ferry building suite 200 , san francisco , ca 94111 .
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please read carefully before downloading the software or using the product -lrb- s -rrb- or skype websites
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it is important that you read the entirety of and understand this document .
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there are , however , a few key points that we need to emphasise :
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no access to emergency services : the software is not a replacement for your ordinary mobile or fixed line telephone .
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in particular , apart from in the very limited circumstances set out in paragraph 5.6 of these terms -lrb- applicable to skype 's internet communications software only -rrb- , the software does not allow you to make emergency calls to emergency services .
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you must make alternative communications arrangements to ensure that you can make emergency calls if needed .
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check restrictions on use : in some countries there are restrictions on the use of the software .
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it is your responsibility to ensure that you are legally allowed to use the software where you are located .
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no ownership of numbers : if skype allocates to you a skype number -lrb- previously known as `` online number '' -rrb- or skype to go number , you do not own the number or have a right to retain that number forever .
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skype may need to change or withdraw the number allocated to you from time to time .
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you will not transfer or attempt to transfer your skype number or skype to go number to anyone else .
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you must ensure you comply with any allocation requirements displayed when purchasing a skype number as failure to do so could result in the number being withdrawn .
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please see also paragraph 19.1 .
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skype credit becomes inactive after 180 days : if you purchase skype credit please be aware that it becomes inactive after 180 days of inactivity .
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please see also paragraph 9.2 .
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arbitration clause and class action waiver : if you live in the usa and select pay by mobile -lrb- see paragraph 20 -rrb- , a binding arbitration clause and class action waiver affects your rights to resolve a dispute with skype , its corporate affiliates , or other third parties including mobile phone carriers .
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please read paragraph 20.3 carefully .
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1.1 skype 's internet communication software applications -lrb- `` internet communications software '' -rrb- , other `` skype '' branded software applications -lrb- together the `` skype software '' -rrb- , the `` qik '' branded software applications -lrb- `` qik software '' -rrb- and associated documentation -lrb- whether in printed or electronic form -rrb- including any improvements , modifications , enhancements , fixes , updates , upgrades and future versions thereto -lrb- `` updates '' -rrb- and whether made available for free or for a fee , -lrb- collectively the `` software '' -rrb- are licensed -lrb- not sold -rrb- to you by skype software sàrl .
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1.2 the features and products that are made available through the software for free -lrb- excluding products or features available for free on a trial basis only -rrb- -lrb- `` free products '' -rrb- are provided to you by skype software sàrl .
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1.3 any additional products or features of the skype software or qik software , or other `` skype '' or `` qik '' branded products , that you pay for -lrb- including products or features available for free on a trial basis only -rrb- -lrb- `` paid for products '' -rrb- are provided to you by skype communications sàrl .
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1.4 `` skype websites '' means www.skype.com , www.qik.com -lrb- both of which are operated by skype communications sàrl -rrb- and any other websites authorised by skype which link to these terms .
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1.5 `` skype '' means skype software sàrl , 23 -- 29 rives de clausen , l-2165 luxembourg or skype communications sàrl , 23 -- 29 rives de clausen , l-2165 luxembourg as the context requires ;
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`` products '' means collectively the free products and paid for products ;
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`` you '' or `` your '' means you , the registered holder of the user account -lrb- as described in paragraph 6.1 -rrb- and licensee under these terms .
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1.6 your agreement with skype is made up of the terms and conditions set out in this document , together with any fair usage policies described in this document and additional terms referred to in paragraph 14 -lrb- collectively the `` terms '' -rrb- .
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to the extent of any inconsistency between the fair usage policies or any additional terms and this document , this document shall take precedence .
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2.1 in order to download and/or use the software , products and/or skype websites you must first accept these terms.these terms are accepted by you -lrb- a -rrb- when you click to accept or agree to the terms ; or -lrb- b -rrb- when you download and/or use the software , products and/or skype websites .
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we advise you to print a copy of these terms for your records .
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these terms remain effective from the date of acceptance until terminated by you or skype in accordance with paragraph 11 .
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2.2 you can not accept these terms if : -lrb- a -rrb- you are not lawfully entitled to use the software , products and/or skype websites in the country in which you are located or reside or -lrb- b -rrb- if you are not of legal age to form a binding agreement with skype .
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2.3 in some countries the products may be provided to you by skype 's local partner .
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if so , that local partner may ask you to accept its own terms of service -lrb- `` local terms '' -rrb- .
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if there is any inconsistency between those local terms and these terms , then the local terms shall govern to the extent of that inconsistency .
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3.1 skype may make changes to these terms from time to time .
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skype will publish the changes at www.skype.com/go/tou .
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changes to the fair usage policies and/or additional terms will be posted on the applicable skype website .
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the changes will be effective when published .
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please review the terms on a regular basis .
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you understand and agree that your express acceptance of the terms or your use of the software , products and/or skype websites after the date of publication shall constitute your agreement to the updated terms .
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if you do not agree with the amended terms , you may terminate your relationship with skype in accordance with paragraph 11 below .
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subject to your compliance with these terms , you are granted a limited , non-exclusive , non-sublicensable , non-assignable , free of charge license to download and install the software on a personal computer , mobile phone or other device ; and personally use the software through your individual skype or qik user account -lrb- as applicable -rrb- -lrb- `` user account '' -rrb- .
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for the avoidance of doubt , -lrb- a -rrb- it administrators working on behalf of a company may download and install the skype software onto personal computers or other devices used by personnel of such company ; and -lrb- b -rrb- you are permitted to use the software at a university or other educational institution , or at work .
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skype reserves all rights not expressly granted to you under these terms .
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you may not and you agree not to :
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-lrb- a -rrb- sub-license , sell , assign , rent , lease , export , import , distribute or transfer or otherwise grant rights to any third party in the software ;
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-lrb- b -rrb- undertake , cause , permit or authorise the modification , creation of derivative works or improvements , translation , reverse engineering , decompiling , disassembling , decryption , emulation , hacking , discovery or attempted discovery of the source code or protocols of the software or any part or features thereof -lrb- except to the extent permitted by law -rrb- ;
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-lrb- c -rrb- remove , obscure or alter any copyright notices or other proprietary notices included in the software ;
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-lrb- d -rrb- use the software or cause the software -lrb- or any part of it -rrb- to be used within or to provide commercial products or services to third parties .
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the foregoing shall not preclude you using the software for your own business communications , subject to paragraph 4.1 above ;
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-lrb- e -rrb- other than for the purposes of download and installation , use the software except through your user account .
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if you are using software pre-loaded on , embedded in , combined , distributed or used with or downloaded onto third party products , hardware , software applications , programs or devices -lrb- `` third-party technology '' -rrb- , you agree and acknowledge that : -lrb- a -rrb- you may be required to enter into a separate licence agreement with the relevant third party owner or licensor for the use of such third-party technology ; -lrb- b -rrb- some products and/or functionality may not be accessible through the third-party technology and -lrb- c -rrb- skype can not guarantee that the software shall always be available on or in connection with such third-party technology .
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the software may include third party code that skype , not the third party , licenses to you under this agreement .
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notices , if any , for the third party code are included for your information only .
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third party scripts , linked to , called or referenced from the software , are licensed to you by the third parties that own such code , not by skype .
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