Effective date: January 26, 2022
Welcome to Spice. We are excited to have you be a part of our limited release as we continue to build and develop our platform. Please read on to learn the rules and restrictions that govern your use of our website(s), products, services, including without limitation the Pro Services (as defined below), and applications (the “Services”). If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at:
Email: [email protected]
Please read these Terms carefully. They cover important information about Services provided to you and any charges, taxes and fees we bill you. These Terms include information about future changes to these Terms, limitations of liability, a class action waiver and resolution of disputes by arbitration instead of in court. PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AGREEMENT SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
We are constantly trying to improve our Services, so these Terms may need to change along with our Services. We reserve the right to change the Terms at any time, but if we do, we will place a notice on our site located at https://www.usespice.com, send you an email, and/or notify you by some other means.
If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes.
Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.
Children’s Online Privacy Protection Act
The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under thirteen (13). We do not knowingly collect or solicit personally identifiable information from children under thirteen (13) without obtaining verifiable consent from that child’s parent or guardian (“Parental Consent”), except for the limited amount of personally identifiable information we need to collect in order to obtain Parental Consent (“Required Information”). Until we have received Parental Consent, we will only use Required Information for the purpose of obtaining Parental Consent. If you are a child under thirteen (13), please do not attempt to register for or otherwise use the Services or send any personal information about yourself to us before we obtain Parental Consent, except for the Required Information in the context of the Parental Consent process. If we learn we have collected personal information from a child under thirteen (13), we will delete that information as quickly as possible. If you believe that a child under thirteen (13) may have provided us with personal information (beyond the Required Information) without our obtaining Parental Consent, please contact us at [email protected]
You may be required to sign up for an account, select a password and user name (“Spice Username”), and provide us with certain information or data, such as your contact information. You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your Spice Username a name that you do not have the right to use, or another person’s name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission.
Additionally, you may be able to access certain parts or features of the Services by using your account credentials from other services (each, a “Third Party Account”), such as those offered by Steam. By using the Services through a Third Party Account, you permit us to access certain information from such account for use by the Services. You are ultimately in control of how much information is accessible to us and may exercise such control by adjusting your privacy settings on your Third Party Account.
As part of the Services, you may request one or more gaming appointments for one-on-one play, a match for a fixed period of time or until a game ends, coaching, game review, hosting, casting or other gaming-related activities (each, a “Talent Appointment”) with a professional gamer (each, a “Pro”) through Spice. Before receiving any type of services from a Pro (“Pro Services”), you are responsible for making your own determination as to whether the Pro is suitable for your needs. While we hope that you will be able to match with your Pro of choice, we cannot guarantee that any specific Pro will be available or will accept your request. Because Pros are not our employees, we are only responsible for connecting you with Pros at your request, and can't and won't be responsible for making sure that Pro Services are actually provided or meet any standard of quality. Similarly, we can't and won't be responsible for ensuring that information (including credentials) a Pro provides about himself or herself is accurate or up to date. Spice retains the right, in its sole discretion, to cancel any request from a User. After a Pro has accepted a game, only the Pro (or Spice, in its sole discretion) may cancel the request. No payment will be made to you for any declined, cancelled, or unfulfilled Talent Appointment request.
Please note that some Pros may choose to offer Talent Appointments to promote products, services, brands or businesses of a single commercial business or not-for-profit or governmental entity, whether U.S. or non-U.S. (each, a “Business”), through the Services (each a “Business Talent Appointment”). For clarity, each Business Talent Appointment is a Talent Appointment under these Terms and Businesses are considered Users.
You hereby acknowledge that Spice does not supervise, direct, control or monitor the Pro Services and expressly disclaims any responsibility and liability for the Pro Services, including but not limited to any warranty or condition of good and workmanlike services, warranty or condition of quality or fitness for a particular purpose, or compliance with any law, regulation, or code.
Users looking to acquire or who have acquired Pro Services must not enter into separate agreements relating to Pro Services with the Pros outside of Spice (“Outside Agreements”). If you do enter into any Outside Agreement we may terminate your account, and you acknowledge that Spice is not a party to and is not responsible for enforcing any Outside Agreement.
You represent and warrant that you are an individual of legal age to form a binding contract (or if not, you’ve received your parent’s or guardian’s permission to use the Services and have gotten your parent or guardian to agree to these Terms on your behalf).
You will only use the Services for your own internal, personal use, and not on behalf of or for the benefit of any third party. You will comply with all laws that apply to you, your use of the Services, and your actions and omissions that relate to the Services. If your use of the Services is prohibited by applicable laws, then you aren’t authorized to use the Services. We can’t and won’t be responsible for your using the Services in a way that breaks the law.
You will not share your Spice Username or account with anyone, and you must protect the security of your Spice Username, account, password and any other access tools or credentials. You’re responsible for any activity associated with your Spice Username and account.
Spice may implement marketing and promotional programs in which users are offered benefits, considerations or rewards based upon the performance of specified activities, the satisfaction of specified requirements, or other criteria. Any such program, including the eligibility and selection of users, the award, compensation or other benefit to be granted users, if any, and the duration, shall be at the sole and absolute discretion of Spice. You acquire no right or interest to participate in such program or to the impartial implementation of the program and distribution of any awards, compensation or benefits. You hereby expressly waive and disclaim any such right or interest. To the extent such program may involve one or more third parties and permitted by applicable law, you further expressly waive and disclaim any such right or interest against such third party. Spice may elect in its sole and absolute discretion to contact you with regard to a program or tournament. You hereby expressly authorize Spice to contact you by means of the contact information you have provided to us.
Additional terms and restrictions may apply to you if you choose to participate in promotional programs.
SUCH MARKETING AND PROMOTIONAL PROGRAMS ARE VOID WHERE PROHIBITED OR OTHERWISE RESTRICTED BY LAW OR WHERE BONDING, REGISTRATION, OR OTHER REQUIREMENTS WOULD BE REQUIRED BY LAW BUT HAVE NOT BEEN MET, OR WHERE THE METHODS OF ENTRY SET FORTH BELOW WOULD BE DEEMED CONSIDERATION. ALL APPLICABLE FEDERAL, STATE AND LOCAL LAWS APPLY.
If for any reason the marketing or promotional program is not capable of running as planned, due to infection by computer virus, bugs, worms, trojan horses, denial of service attacks, tampering, unauthorized intervention, fraud, technical failures, or any other causes beyond our control that corrupt or affect the administration, security, fairness, integrity, or proper conduct of the marketing and promotional programs, Spice reserves the right, at its sole discretion, to disqualify any individual(s) who tamper with the entry process, and/or to cancel, terminate, modify, or suspend the marketing and promotional program.
As part of the Services, you may receive communications through the Services, including messages that Spice sends you (for example, via email). When signing up for the Services, you will receive a welcome message and instructions on how to stop receiving messages.
You represent, warrant, and agree that you will not provide or contribute anything, including any Content or User Submission (as those terms are defined below), to the Services, or otherwise use or interact with the Services, in a manner that:
A violation of any of the foregoing is grounds for termination of your right to use or access the Services.
The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, User Submissions (as defined below), Talent Appointments (as defined below), Business Talent Appointments (as defined below) and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, commercialize or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including Spice's) rights.
Subject to these Terms, we grant each user of the Services a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the Services. Use, reproduction, modification, distribution or storage of any Content for any purpose other than using the Services is expressly prohibited without prior written permission from us. You understand that Spice owns the Services. You won’t modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Services. The Services may allow you to copy or download certain Content, but please remember that even where these functionalities exist, all the restrictions in this section still apply.
For each Talent Appointment (other than a Business Talent Appointment), Pros hereby grant to you a non-exclusive, royalty-free, fully paid, worldwide, sub-licensable, and perpetual license to use, reproduce, distribute, and publicly display the Talent Appointment, in each case, solely in accordance with these Terms, in any and all media, whether now known or hereafter invented or devised (including social media channels and third-party websites and platforms).
For each Business Talent Appointment, Pros hereby grant to you and the Business, a permanent, exclusive (including as to you but excluding the license granted to Spice), royalty-free, fully paid, worldwide, sublicensable, revocable license to use, reproduce, distribute, and publicly display the Business Talent Appointment on or in: (a) one website or application available through the Apple App Store or Google Play, in each case, wholly-owned, operated, and controlled by the Business; (b) up to four social media accounts, such as Facebook, Instagram, LinkedIn, Snapchat, TikTok, or Twitter, in each case, wholly-owned, operated, and controlled by the Business along with the right to advertise and promote the display of the Business Talent Appointment on a social media account through advertising only on the applicable social media platform; (c) up to four digital demand side platform or advertising network accounts for displaying the Business Talent Appointment on online platforms or networks, the Business’s social media account(s), or in-app advertising but specifically excluding, in each case, over the top (OTT), connected television (CTV) or similar streaming media and marketing programs that pay commissions or other fees to affiliates or partners based on impressions or actions taken (e.g., sales generated); (d) one communication sent through a Business-operated and controlled channel of communication (such as an email blast or text message); (e) one event conducted and operated by the Business (for example, a company-wide meeting or conference); and (f) a compilation with content consisting of other Spice Services.
Anything you post, upload, share, store, or otherwise provide through the Services is your “User Submission”. Some User Submissions may be viewable by other users. You are solely responsible for all User Submissions you contribute to the Services. You represent that all User Submissions submitted by you are accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations.
You agree that you will not post, upload, share, store, or otherwise provide through the Services any User Submissions that: (i) infringe any third party's copyrights or other rights (e.g., trademark, privacy rights, etc.); (ii) contain sexually explicit content or pornography; (iii) contain hateful, defamatory, or discriminatory content or incite hatred against any individual or group; (iv) exploit minors; (v) depict unlawful acts or extreme violence; (vi) depict animal cruelty or extreme violence towards animals; (vii) promote fraudulent schemes, multi-level marketing (MLM) schemes, get rich quick schemes, online gaming and gambling, cash gifting, work from home businesses, or any other dubious money-making ventures; or (viii) that violate any law.
By submitting User Submissions through the Services, to the extent legally permissible, you hereby do and shall grant Spice a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable (through multiple tiers of sublicenses) and transferable license to use, edit, modify, truncate, aggregate, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit the User Submissions in connection with this site, the Services and our (and our successors’ and assigns’) businesses, including without limitation for promoting, operating, improving, updating and redistributing part or all of this site or the Services (and derivative works thereof) in any media formats and through any media channels (including, without limitation, third party websites and feeds), and including after your termination of your account or the Services.
Any trademarks, logos, skins, artworks and other objects of intellectual property (either registered or unregistered), represented on our Services, belong to their respective owners and there are no implied licenses to use them, unless otherwise stated by the respective owners. The mentioned objects may not be copied or imitated in whole or in part, without the permission of the applicable owner. Unless otherwise expressly stated, Spice does not endorse, sponsor, or recommend any products, services, processes or other information by name, trademark, manufacturer, supplier, including without limitation any Pro.
For clarity, the foregoing license grants to us and our users do not affect your other ownership or license rights in your User Submissions, including the right to grant additional licenses to your User Submissions, unless otherwise agreed in writing. You represent and warrant that you have all rights to grant such licenses to us without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights.
Certain features of the Services allow you to share information with others, including through your social networks or other Third Party Accounts. When Content is authorized for sharing, we will clearly identify the Content you are authorized to redistribute and the ways you may redistribute it, usually by providing a “share” button on or near the Content. If you share information from the Services with others through your Third Party Accounts, such as your social networks, you authorize Spice to share that information with the applicable Third Party Account provider. Please review the policies of any Third Party Account providers you share information with or through for additional information about how they may use your information. If you redistribute Content, you must be able to edit or delete any Content you redistribute, and you must edit or delete it promptly upon our request.
Finally, you understand and agree that Spice, in performing the required technical steps to provide the Services to our users (including you), may need to make changes to your User Submissions to conform and adapt those User Submissions to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.
Any information or Content publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such Content originated, and you access all such information and Content at your own risk, and we aren’t liable for any errors or omissions in that information or Content or for any damages or loss you might suffer in connection with it. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services. We can’t guarantee the identity of any users with whom you interact in using the Services and are not responsible for which users gain access to the Services.
You are responsible for all Content you contribute, in any manner, to the Services, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it.
The Services may contain links or connections to third-party websites or services that are not owned or controlled by Spice. When you access third-party websites or use third-party services, you accept that there are risks in doing so, and that Spice is not responsible for such risks.
If there is a dispute between participants on this site or Services, or between users and any third party, you agree that Spice is under no obligation to become involved. In the event that you have a dispute with one or more other users, including without limitation any Pro, you release Spice, its directors, officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. You shall and hereby do waive California Civil Code Section 1542 or any similar law of any jurisdiction, which says in substance: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
We’re always trying to improve our Services, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. We’ll try to give you notice when we make a material change to the Services that would adversely affect you, but this isn’t always practical. We reserve the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges you contributed that Content in violation of these Terms), in our sole discretion, and without notice.
We have no obligation to remove Content (including from social media channels or third party websites or platforms), but if we do seek to remove Content from a social media channel or third party website or platform, we may notify you of our intent to do so. As owner of the copyright in your Talent Content, you hereby authorize Spice to act as your agent in order to submit any Digital Millenium Copyright Act notice or other demand with respect to your recordings or other offerings. You will promptly notify us if you learn that any Content is being used in violation of these Terms. We will reasonably cooperate with your efforts to address the violation. However, you acknowledge and agree that we are not responsible or liable for any damages, losses, costs, expenses, or liabilities related to use of the recordings for any reason, including if the use exceeds the licenses set forth in these Terms or otherwise violates these Terms.
The Services may be free or we may charge a fee for using the Services. If you are using a free version of the Services, we will notify you before any Services you are then using begin carrying a fee, and if you wish to continue using such Services, you must pay all applicable fees for such Services.
Paid Services. Certain of our Services may be subject to payments now or in the future (the “Paid Services”). In addition to Spice’s standard offering of services https://www.usespice.com, you can also visit each Pro’s page to view their specific offerings and pricing. Please be aware that some of our Pros may choose to have their proceeds or payments donated to a charitable organization. Please also note that any payment terms presented to you in the process of using or signing up for a Paid Service are deemed part of these Terms. For example, some Paid Services will charge a fee for downloading or installing the Services through the App Store (as defined below) linked to your specific device or for engaging Pros through our Services. You agree to comply with, and your license to use our mobile application is conditioned upon your compliance with, such App Store terms and conditions. Any refunds relating to the applications or inquiries regarding refunds relating to the applications shall be handled solely by the applicable App Store in accordance with such App Store’s terms and conditions.
Payment Method. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.
Current Information Required. YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSOR IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE AT ACCOUNT SETTINGS https://www.usespice.com. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY USE OF PAID SERVICES UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR PAID SERVICES AS SET FORTH ABOVE.
Change in Amount Authorized. If the amount to be charged to your Billing Account varies from the amount you preauthorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your Payment Method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
Spice is also free to terminate (or suspend access to) your use of the Services or your account for any reason in our discretion, including your breach of these Terms. Spice has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.
Account termination may result in destruction of any Content associated with your account, so keep that in mind before you decide to terminate your account.
If you have deleted your account by mistake, contact us immediately at [email protected] – we will try to help, but unfortunately, we can’t promise that we can recover or restore anything.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us, including without limitation the arbitration agreement.
These Terms apply to your use of all the Services, including our iOS applications (the “Application”) available via the Apple, Inc. (“Apple”) App Store, but the following additional terms also apply to the Application:
Warranty Disclaimer. Spice and its licensors, suppliers, partners, parent, subsidiaries or affiliated entities, and each of their respective officers, directors, members, employees, consultants, contract employees, representatives and agents, and each of their respective successors and assigns (Spice and all such parties together, the “Spice Parties”) make no representations or warranties concerning the Services, including without limitation regarding any Content contained in or accessed through the Services or promotional and giveaway events, and the Spice Parties will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services or any claims, actions, suits procedures, costs, expenses, damages or liabilities arising out of use of, or in any way related to your participation in, the Services. The Spice Parties make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through or in connection with the Services. THE SERVICES AND CONTENT (INCLUDING PROMOTIONAL AND GIVEAWAY PROGRAMS) ARE PROVIDED BY SPICE (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL ANY OF THE SPICE PARTIES BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, (B) ANY SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (C) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF ONE-HUNDRED ($100) DOLLARS OR (D) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL OR CERTAIN OTHER DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
Indemnity. You agree to indemnify and hold the Spice Parties harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any claims relating to (a) your use of the Services (including any actions taken by a third party using your account), and (b) your violation of these Terms.
Assignment. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without Spice's prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
Choice of Law. These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of New York, without regard to the conflicts of laws provisions thereof.
Arbitration Agreement. Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate certain disputes and claims with Spice and limits the manner in which you can seek relief from Spice. Both you and Spice acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, Spice's officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.
(a) Arbitration Rules; Applicability of Arbitration Agreement. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of these Terms directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in Manhattan County, New York. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
(b) Costs of Arbitration. The Rules will govern payment of all arbitration fees. Spice will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
(c) Small Claims Court; Infringement. Either you or Spice may assert claims, if they qualify, in small claims court in Manhattan County, New York or any United States county where you live or work. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any 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.
(d) Waiver of Jury Trial. YOU AND SPICE WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and Spice are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Spice over whether to vacate or enforce an arbitration award, YOU AND SPICE WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
(e) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Spice is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.
(f) Opt-out. You have the right to opt out of the provisions of this Section by sending written notice of your decision to opt out to [email protected] marked within thirty (30) days of first accepting these Terms. You must include (i) your name and residence address, (ii) the email address and/or telephone number associated with your account, and (iii) a clear statement that you want to opt out of these Terms’ arbitration agreement.
(g) Exclusive Venue. If you send the opt-out notice in (f), and/or in any circumstances where the foregoing arbitration agreement permits either you or Spice to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party, and both you and Spice agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, Manhattan County, New York, or the federal district in which that county falls.
(h) Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration Agreement section will be null and void. This arbitration agreement will survive the termination of your relationship with Spice.
Miscellaneous. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that the Spice may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms are found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and Spice agree that these Terms are the complete and exclusive statement of the mutual understanding between you and Spice, and that these Terms supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Spice, and you do not have any authority of any kind to bind Spice in any respect whatsoever.
Third-Party Integrations. Spice supports various integrations with third parties, including YouTube. If you choose to link your Spice to your YouTube account, you agree to be bound by YouTube's Terms of Service.
Except as expressly set forth in the sections above regarding the Apple Application and the arbitration agreement, you and Spice agree there are no third-party beneficiaries intended under these Terms.