These Terms and Conditions, “Terms” or “Agreement“) are between Realmoji (“Biggbird Ltd, Suites 7B & 8B, 50 Town range, Gibraltar” “we,” “us,” “our” ) and you, an individual user (“you,” “your,” “yours“), and govern your use of Biggbird Ltd owned mobile software application, websites, or extensions that have been made available for download (each, an “App,” and together, the Apps) or on any Biggbird Ltd owned website and any related websites or other online properties owned or controlled by Biggbird Ltd (together with the Apps, the “Service“).
INTRODUCTION AND OVERVIEW
These Terms constitute a legally binding contract between you and Biggbird Ltd.
By tapping or clicking on one of the “Account Creation Options” (Facebook, Phone Number, Email) or similar, registering, accessing or using the Apps or the Service, you are agreeing to enter into a legally binding contract with Biggbird Ltd
The Agreement includes these Terms.
Read these Terms carefully. The Terms govern your use of the Service and include legal provisions that limit our liability, including an arbitration clause that requires individual arbitration for certain potential legal disputes, where permitted by law. By installing a Biggbird Ltd product or application or using any portions of the Service, you agree that you have read, understood, and agree to be bound by these Terms.
IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT USE ANY PORTION OF THE SERVICE.
As detailed in the Sections below (and without limiting the express language of these Terms), you:
Agree the Service is licensed to you, is not sold to you and you may use the Service only as set forth in these Terms.
Agree that by using the Service, you may be subject to separate third-party terms of service and fees, including but not limited to, your mobile network operator’s terms of service and fees, including fees charged for data usage and overage, which are your sole responsibility.
Agree that to the greatest extent permitted by law, Biggbird Ltd provides the Apps to you on an “as is” basis without any warranties, and that Biggbird Ltd liability to you is limited.
Agree that where permitted by law, disputes arising between you and Biggbird Ltd will be resolved by binding individual arbitration. By accepting these Terms, you and Biggbird Ltd are each waiving the right to a trial by jury or to participate in a class action.
Agree to the “Notice Regarding Apple” in Section 27 below.
Agree that if you Post (defined below in Section 10.) any Objectionable Content (defined below in Section 10.) on the Service or otherwise violate these Terms , then Biggbird Ltd may, but is not obligated to, take any remedial action that Biggbird Ltd, in its sole discretion, deems appropriate, including but it not limited to, suspending or terminating your Account (defined below in Section 8), removing all of your User Content (defined below in Section 10.) from the Service, and/or reporting you to law enforcement authorities, either directly or indirectly.
ELIGIBILITY TO USE THE SERVICE
Our Service is intended for general audiences – No one under 13 is allowed to use the Service.
TO USE THE SERVICE, YOU MUST BE AT LEAST 13 YEARS OF AGE OR SUCH OLDER AGE AS PRESCRIBED BY THE LAW OF THE PLACE WHERE YOU LIVE. YOU MUST NOT USE THE SERVICE OR ACCESS IT IN ANY
WAY IF YOU ARE UNDER 13 YEARS OF AGE, OR UNDER ANY HIGHER AGE OF CONSENT PRESCRIBED BY YOUR LOCAL LAW.
By accessing or using the Apps or the Service, you represent and warrant that (1) you are at least 13 years old if you reside in the United States, are at least 16 years old if you reside in the European Economic Area, or are such older age as prescribed by the law of the place where you live; (2) that you have a parent or legal guardian’s consent to this Agreement or are eligible to form a binding contract with Biggbird Ltd; (3) you will comply with these Terms; (4) your use of the Service does not violate applicable law; and (5) you have not been previously suspended or removed from the Service by Biggbird Ltd
CHANGES TO THESE TERMS
We may change these Terms from time to time.
You may read the current, effective version of these Terms at any time at this location, or by clicking the Terms link on the Realmoji.com website.
Any revised Terms will become effective at the time of posting.
BY CONTINUING TO USE THE SERVICE AFTER THE CHANGES BECOME EFFECTIVE, YOU AGREE TO THE REVISED TERMS.
CHANGES TO THE SERVICE
We are continually evolving our Service. We therefore expressly reserve the right to change, add to, suspend, discontinue, or retire any aspect of the Service at any time without prior notice. If we update the Service and you object to such change for any reason, your sole remedy is to stop using the Service.
To keep our community safe, and enjoyable, your use of the Service is subject to our Community Guidelines, which are part of these Terms.
YOUR USE OF THE SERVICE
Biggbird Ltd provides you with access to the Service free of charge, but to access full benefits of the service and certain features or functionality, you must purchase subscription-based access to the Service.
In return for enjoying free or subscription-based access to the Service, you acknowledge and agree that Biggbird Ltd may generate revenues, increase goodwill, or otherwise increase the value of Biggbird Ltd from your use of the Service, and you will have no right to share in any such revenue, goodwill or value whatsoever. You further acknowledge that you have no right to receive any income or other consideration from any of your User Content (defined in Section 10.a below).
If you purchase one or more subscriptions or sign up for one or more trial subscriptions to the Service, then the following terms apply:3.
TERMS OF SALE
PLEASE READ THESE TERMS OF SALE AND THE RELATED TERMS OF SERVICE CAREFULLY BEFORE USING THE BIGGBIRD SERVICES. BY USING THE THE BIGGBIRD SERVICES, YOU AGREE TO THESE TERMS OF SALE INCLUDING WITHOUT LIMITATION,
The following Terms of Sale (the “Terms of Sale”) apply to your use of all websites, mobile applications, and other products and services owned, controlled, operated, or hosted (whether now or in the future) by Biggbird games Ltd and/or its corporate affiliates, parents or subsidiaries (collectively referred to herein, solely for ease of reference as “Biggbird/Realmoji”, “us” or “we”).
Last Updated: April 19, 2021
These Terms of Sale govern your purchase of goods and services (including, without limitation, your purchase of memberships, and/or pay-per-download material) through any of the Biggbird Services. By purchasing any products or services through any of the Biggbird Services, you affirmatively acknowledge that you have read and understand these Terms of Sale and agree to be bound by them as in effect at the time of your purchase.
Please keep in mind that these Terms of Sale are subject to change by Biggbird from time to time. In the event of such changes, we will post the changes on the Biggbird Services and/or notify you via email. Also, we may ask you to review and consent to the changes at the time of your next account login or at the time of your next purchase through any of the Biggbird Services. Changes to these Terms of Sale shall apply to any purchases made after such notice and consent. Please review these Terms of Sale prior to each purchase so you will understand the terms applicable to such transactions. If you do not agree to these Terms of Sale, please do not make any purchases on or through the Biggbird Services.
PLEASE READ THESE TERMS OF SALE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS.
You must be a Member to access certain goods, services, and content offered through the Biggbird Services, such as the Realmoji Premium Content Services. With respect to any Membership-based Features, you acknowledge and agree that, by making such features accessible to Members in general, Biggbird will have fully satisfied its obligation to deliver or otherwise provide such features to you (and/or to your intended authorized recipients), regardless of your or your recipients’ failure or inability to use such features.
PURCHASING A MEMBERSHIP:
If you decide to register for a membership, we will charge you the applicable membership fee for the applicable membership term using your selected payment method at the time of purchase. If Biggbird alters the membership fee or makes other changes to your membership, you will be notified in advance about the changes. It is important to keep in mind that if you signed up for a membership during a promotional period, the promotional price may only be active for a certain period of time, based on our sole discretion.
As a Member, your membership will renew either annually or monthly, depending on your applicable membership plan. For example, if you start your annual membership on March 15th, you will be billed on March 15th the following year. If you start your monthly membership on March 15th, you will be billed on April 15th the following month. For some Biggbird products and services, your membership will automatically be renewed at the end of the membership term unless you turn off the auto-renew feature or cancel your membership prior to the expiration date of your then-existing membership. PAYMENTS ARE NONREFUNDABLE AND THERE ARE NO REFUNDS, IN WHOLE OR IN PART, FOR PARTIALLY USED PERIODS. Following any cancellation, your access to the Membership-based Features will continue only for the remainder of your applicable membership term.
You may cancel your membership at any time. However, PAYMENTS ARE NONREFUNDABLE AND THERE ARE NO REFUNDS, IN WHOLE OR IN PART, FOR PARTIALLY USED PERIODS. Following any cancellation, your access to the Membership-based Features will continue only for the remainder of your applicable membership term. At our sole discretion, we may provide a discount or other accommodation to some or all of our Members at any time and for any reason. Our offering of a discount or other accommodation in one instance does not entitle you to, or obligate us to provide, the same treatment in the future for similar instances.
Because you pay for a membership through the iTunes App Store, you may need to access your account through that applicable third-party interface to cancel your membership to or turn off auto-renew for the Biggbird Services. The billing information related to your membership may also be accessible via your iTunes account.
BIGGBIRD’S RIGHT TO TERMINATE:
We hope that it never reaches this point, but if necessary, Biggbird reserves the right to terminate your account and/or membership at any time for any breach or violation by you of our Terms of Service. In the event of such termination, you will not be entitled to any refund of any unused portion of the membership fee previously paid by you.
PAY PER DOWNLOAD PURCHASES:
No membership is necessary to purchase certain virtual goods, “Character packages” Extra customization packages, material offered on a pay-per-download basis through the Biggbird services, we will bill you on an order-by-order basis, i.e., we will charge the purchase amount to your specified payment method when you click submit on the order page.
With respect to any pay-per-download material that you purchase through the JibJab Services, you acknowledge and agree that, upon making such material available to you (or to your intended authorized recipients) for download, Biggbird will have fully satisfied its obligation to deliver or otherwise provide such material, regardless of your or your recipients’ failure or inability to view, play, use, or store such material. All pay-per-download purchases through the Biggbird Services are final, non-cancelable, and non-refundable, and no such material is returnable or exchangeable (except as expressly otherwise provided in these Terms of Sale or as otherwise determined by Biggbird in its sole discretion).
We are always improving our service and offering new promotions for our Members. We may offer enhancements related to your membership and/or VIA OUR pay-per-download options. For example, we may offer an ad-free membership, a membership that includes bonus content, or the ability to download digital customization assets.
Such membership enhancements may be added for an additional NON-REFUNDABLE fee and may be cancelled at any time (provided that you will continue to have access to your purchased enhancements for the duration of your basic membership). You may renew your basic membership and choose not to renew your membership enhancements, but you may not renew membership enhancements without a basic membership.
You are responsible for any and all applicable sales, use, and other taxes, duties, and governmental fees and charges payable in connection with your purchase made through the Biggbird Services. If you do not pay such taxes or fees on a transaction, you will be responsible for such taxes or fees in the event that they are later determined to be payable on such sale, and Biggbird reserves the right to collect or withhold such taxes or fees from you at any time.
BIGGBIRD LTD CONTENT AND RIGHTS GRANTED TO YOU
License. Subject to your complete and ongoing compliance with these Terms, Biggbird Ltd grants you a revocable, non-exclusive, non-transferable, non-sublicensable, royalty-free, and worldwide right and license to use the Service. Pursuant to this license, you may: (i) download, access, and use an object code version of the Apps on any device that you own or control; and (ii) access and use the Service, solely for your personal, non-commercial use.
Biggbird Ltd Content. Except for User Content (as defined in Section 10.a below), the content that Biggbird Ltd provides to Users on or through the Service, including, without limitation, any sound recordings (video, text, graphics, photos, software, and interactive features, is protected by copyright or other intellectual property rights and owned by Biggbird Ltd or its third-party licensors (collectively, ” Biggbird Ltd Content“).
Reservation of Rights.
Biggbird Ltd hereby reserves all rights not expressly granted to you in this Section 9. Nothing in these Terms or on the Service will be construed as granting to you additional license rights in and to the Service or any Biggbird Ltd Content or
USER CONTENT AND RIGHTS YOU GRANT TO BIGGBIRD LTD
“User Content” means any content that you or other Users create, upload, post, or transmit to or through the Service (collectively, “Post“) including, without limitation, photographs, text, sound recordings, musical works, or audiovisual works, and any other works subject to protection under the laws of Gibraltar or any other jurisdiction, including, without limitation, patent, trademark, trade secret, and copyright laws. For the purpose of clarity, User Content excludes any and all Biggbird Ltd Content or User Content that is replaced or augmented by Biggbird Ltd. You may Post User Content and otherwise use and
enjoy its various functionalities, subject to these Terms.
SUBJECT TO ANY THIRD-PARTY RIGHTS IN ANY PREEXISTING CONTENT THAT IS A PART OF YOUR USER CONTENT AND SUBJECT TO THE LICENSE YOU GRANT TO BIGGBIRD LTD, YOU RETAIN OWNERSHIP OF ANY RIGHTS YOU MAY HAVE IN YOUR USER CONTENT, AND POSTING YOUR USER CONTENT DOES NOT TRANSFER OWNERSHIP OF YOUR RIGHTS.
of Biggbird Ltd, its assignees, licensees, designees and successors-in-title
As part of your license to Biggbird Ltd, you give Biggbird Ltd the right to enforce any copyrights you possess in your User Content against any third parties who copy, reproduce, distribute, publicly display, communicate to the public, publicly perform (including by means of digital audio transmissions and on a through-to-the-audience basis), make available, create derivative works from, retransmit from External Sites, or otherwise exploit and use, the User Content without Biggbird Ltd consent, including by using the Service or otherwise downloading your User Content off of the App or website.
You Must Have Rights to the Content You Post. By Posting User Content, you represent and warrant that you own or are fully authorized to grant the license set forth in these Terms in all elements of the User Content. You further represent and warrant that: (i) the Posting and Use of your User Content does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any party; (ii) the Posting of your User Content will not require Biggbird Ltd to obtain any further licenses from or pay any royalties, fees, compensation or other amounts, or provide any attribution to any third parties; and (iii) the Posting of your User Content does not result in a breach of contract between you and a third party. You agree to pay all monies owing to any person as
a result of User Content you Post.
Through-To-The-Audience Rights. All of the rights you grant in this Agreement are provided on a through-to-the-audience basis, meaning the owners or operators of External Sites will not have any separate liability to you or any other third party for User Content Posted or Used on such External Sites via the Service.
Waiver of Rights to User Content. By Posting User Content, you waive any rights to prior inspection or approval of any marketing or promotional materials related to such User Content. You also waive any and all rights of privacy, publicity, or any similar rights in connection with your User Content, or any portion thereof. To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain, or permit any action based on any moral rights that you may have in any User Content you Post.
You agree not to Post any User Content that could be interpreted in Biggbird Ltd sole discretion to be (i) abusive, bullying, defamatory, harassing, harmful, hateful, inaccurate, infringing, libelous, objectionable, obscene, offensive, pornographic, shocking, threatening, unlawful, violent, or vulgar, (ii) in violation of any applicable laws, (iii) putting other Users’ data privacy and security at risk; (iv) promoting any product, good or service; (v) promoting bigotry, discrimination, hatred, intolerance, or racism; or (vi) inciting violence (collectively, “Objectionable Content“). The Posting of any Objectionable Content may subject you to third-party claims and none of the rights granted to you in these Terms may be raised as a defense against any third-party claims arising from your Posting of Objectionable Content. Biggbird Ltd in its sole discretion may take any actions it deems necessary and/or appropriate against any User who Posts Objectionable Content, including, without limitation, warning the User, suspending or terminating the User’s Account, removing all of the User’s User Content, and/or reporting the User to law
enforcement authorities, either directly or indirectly.
Biggbird Ltd does not pre-screen any User Content, but reserves the right to remove or delete any User Content in its sole discretion. In addition, Biggbird Ltd has the right—but not the obligation—in its sole discretion to remove or delete any User Content: (i) that Biggbird Ltd considers to violate these Terms or applicable law; (ii) that Biggbird Ltd considers to be Objectionable Content; or (iii) in response to complaints from other Users, licensors of any Biggbird Ltd Content, or rights holders related to the User Content, with or without notice and without any liability from Biggbird Ltd to you. Biggbird Ltd also has the right—but not the obligation—to take remedial action in connection with any Objectionable Content. Biggbird Ltd recommends that you save copies of any User Content that you Post on your personal device(s) to the extent you want to ensure permanent access to copies of such User Content.
User Content Posted by Others. Although Biggbird Ltd reserves the right to review or remove any User Content, we do not review all User Content, and we take no responsibility for the User Content that appears on the Service. User Content is the sole responsibility of the person or entity that Posts the User Content. As reflected in these Terms and in our Community Guidelines, we have no tolerance for Objectionable Content, and we do not want our Service put to any improper use, but we cannot guarantee that all User Content will calways conform to these Terms. If you encounter any Objectionable Content on the Service, please immediately email support@Realmoji.com Biggbird Ltd provides you with the ability to report Objectionable Content as a courtesy, and Biggbird Ltd has no obligation to remove or take any other action with respect to any Objectionable Content on the Service that you report to Biggbird Ltd.
For the avoidance of doubt, Biggbird Ltd will not be liable for any use or misuse of User Content by any User.
If you choose to provide Biggbird Ltd with input or suggestions regarding problems with or proposed modifications, enhancements or improvements to the Service (“Feedback“), including but not limited to any Feedback you provide if Biggbird Ltd invites you to participate in new product functionality testing, then you hereby grant to Biggbird Ltd a perpetual, irrevocable, non-exclusive, fully-paid, and royalty-free right to use and exploit the Feedback in any manner and for any purpose without any restriction, credit, attribution, or fees due to you.
Although the Service may contain links to or the ability to share information with third-party websites (“External Sites“), Biggbird Ltd does not endorse any External Sites. Biggbird Ltd is also not responsible for the content of any External Sites and does not make any representations regarding the content on such External Sites. All External Sites are developed and provided by others. The External Sites may have their own terms of service and privacy policies, and your use of those External Sites will be governed by and subject to such terms of service and privacy policies. You should contact the site administrator or webmaster for those External Sites if you have any questions or concerns regarding any content located on such External Sites or the terms governing your use of such External Sites.
If you decide to access any External Sites, purchase any content from External Sites, or subscribe to services offered by such External Sites, then you do so at your own risk. You agree that Biggbird Ltd will have no liability to you arising from your use or interaction with any External Sites.
CONSENT TO COMMUNICATIONS
If you registered for any Biggbird Ltd Service using your telephone number or have updated your account information to provide your telephone number to us, you acknowledge and agree that we may send you notifications via text (SMS) messages at the telephone number associated with your account, until you notify us that you no longer wish to receive these messages. You acknowledge that you are not required to consent to receive promotional text messages as a condition of using the Service.
THE FREQUENCY OF ELECTRONIC COMMUNICATIONS (INCLUDING PUSH NOTIFICATIONS ON YOUR MOBILE DEVICE) WILL VARY BASED ON THE KINDS OF NOTIFICATIONS YOU SIGN UP TO RECEIVE AND YOUR USE OF THE SERVICE. STANDARD TEXT MESSAGING RATES APPLY (INCLUDING WHERE APPLICABLE ROAMING CHARGES), SO PLEASE CONTACT YOUR MOBILE PHONE CARRIER FOR DETAILS AND FEES. YOU WILL BE RESPONSIBLE FOR ALL TEXT MESSAGING AND DATA PLAN FEES CHARGED BY YOUR MOBILE PHONE SERVICE.
TERM AND TERMINATION
Term. This Agreement, which commences upon your use of the Service, will continue to apply to you until terminated by either you or Biggbird Ltd.
You may terminate this Agreement at any time by sending written notification to Biggbird Ltd at support@Realmoji.com, subject to your terminating all use of the service. If you wish to delete any of your User Content from the Service, you can ask Biggbird Ltd to do so by contacting
support@Realmoji.com and providing the necessary information requested by Biggbird Ltd.
Biggbird Ltd may terminate this Agreement at any time with or without notice to you. Biggbird Ltd also reserves the right, in its sole discretion, to restrict, suspend, or terminate this Agreement and your access to the Service at any time if you breach any provision of this Agreement or violate the rights of any third-party copyright owner.
Survival. Sections 2-4, 6-7, 8.b, 9.b, 9.c, 9.d 10-11, 13-22, 24-28, and all defined terms used therein, shall survive any termination of these Terms indefinitely.
NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT OR OTHER INTELLECTUAL PROPERTY INFRINGEMENTS
Respect of Third-Party Rights. Biggbird Ltd respects the intellectual property of others and takes the protection of intellectual property very seriously. We ask you to do the same.
Infringing activity will not be tolerated on or through the Service. Repeat Infringer Policy. We will (i) remove or disable access to material made available on or through the Service that Biggbird Ltd believes in good faith, upon notice from an intellectual property owner or his or her agent, to be infringing the intellectual property of a third party; and (ii) remove any User Content uploaded to the Service by “repeat infringers.” Biggbird Ltd considers a “repeat infringer” to be any User that has Posted User Content and for whom Biggbird Ltd has received more than two takedown notices compliant with respect to such User Content. Biggbird Ltd has discretion, however, to terminate the Account of any User after receipt of a single notification of claimed infringement or upon Biggbird Ltd own determination.
Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” containing substantially the following information to Biggbird Ltd Designated Agent identified below:
A physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed; Identification of works or materials being infringed, or, if multiple works are covered by a single notification, then a representative list of such works; iii. Identification of the specific material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled,
and information reasonably sufficient to permit Biggbird Ltd to locate the material; Information reasonably sufficient to permit Biggbird Ltd to contact you, such as an address, telephone number and, if available, an electronic mail address at which you may be contacted; A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. You should consult with your own lawyer and/or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
We may share the Notification of Claimed Infringement with the User alleged to have infringed a right you own or control, and you hereby consent to Biggbird Ltd making such disclosure.
Designated Agent Contact Information. Biggbird Ltd Designated Agent can be contacted at: via E-mail: legal@Realmoji.com
The Service will be accessible via a mobile phone, tablet, or other wireless device (collectively, “Mobile Services“). Your mobile carrier’s normal messaging, data, and other rates and fees will apply to your use of the Mobile Services. In addition, downloading, installing or using certain Mobile Services may be prohibited or restricted by your mobile carrier, and not all Mobile Services may work with all carriers or devices.
You are solely responsible for checking with your mobile carrier to determine if the Mobile Services are available for your mobile device(s), what restrictions, if any, may apply to your use of the Mobile Services, and how much your use of the Mobile Services will cost you.
We make a significant effort to provide the best Service we are able to, but we make no promises, representation, warranties, or guarantees that the Service will operate as intended. Errors or other interruptions may cause the Service to not function as intended. By using the Service, you understand and accept this risk.
Biggbird Ltd provides services and platforms including but not limited to the Face- acting Platform that are meant for Entertainment Purposes, the photos and videos contained within Face- acting are Impressions meant solely for the purpose of parody and entertainment. The Face- acting videos are
User-Generated, meaning, they are not necessarily created, endorsed, screened or promoted by the Face- acting Team. USE AT YOUR OWN RISK – Biggbird Ltd is not responsible for the actions of any individual or any accident that results while using or attempting to use Biggbird Ltd software. Realmoji is to be used for productivity and entertainment purposes only.
This Agreement is governed by the substantive laws of Gibraltar without regard to its laws that would direct the choice of any other country’s laws. If you are a consumer who lives in the EU, this Section 18 is without prejudice to any rights you may have under mandatory law which cannot be varied by contractual choice of law.
This Section does not apply if you reside in the European Economic Area or in another jurisdiction which prohibits mandatory arbitration clauses in consumer contracts. In the interest of resolving disputes between you and Biggbird Ltd in the most expedient and cost-effective manner, you and Biggbird Ltd agree that any dispute arising out of or in any way related to this Agreement or your use of the Service will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or in any way related to these Terms or your use of the Service, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement.
YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND BIGGBIRD
LTD ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT THIS AGREEMENT WILL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT.
Any arbitration between you and Biggbird Ltd will be governed by the Gibraltar court. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by Mail (“Notice“). Biggbird Ltd’: Biggbird Ltd, ATTN: Gibraltar Law Courts, 32-36, Town Range, gibraltar. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand“). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Biggbird Ltd may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Biggbird Ltd must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor with a monetary award, Biggbird Ltd will pay you the highest of the following: (1) the amount awarded by the arbitrator, if any; or (2) the last
written settlement amount offered by Biggbird Ltd in settlement of the dispute prior to the
If you commence arbitration in accordance with these Terms, Biggbird Ltd will pay half of your payment of the filing fee, unless your claim is for more than €15,000 or as set forth below, in which case the payment of any fees will be decided by the Gibraltar Law Courts Rules. Any arbitration hearing will take place at a location to be agreed upon in Gibraltar, but if the claim is for €15,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance-based telephone hearing; or (iii) by an in-person hearing as established by the Gibraltar Law Courts Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose then the payment of all fees will be governed by the Gibraltar Law Courts Rules. In that case, you agree to reimburse Biggbird Ltd for all monies previously disbursed that are otherwise your obligation to pay under the Gibraltar Law Courts Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. Each party agrees that such written decision, and information exchanged during arbitration, will be kept confidential except to the extent necessary to enforce or permit limited judicial review of the award. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
Waiver of Class Actions.
YOU AND BIGGBIRD LTD AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A
PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
Further, unless both you and Biggbird Ltd agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
Modifications to this Arbitration Provision. Except as otherwise provided in this Agreement, if Biggbird Ltd makes any future change to this arbitration provision, other than a change to Biggbird Ltd’ address for Notice, you may reject the change by sending Biggbird Ltd written notice within 30 days of the change to Biggbird Ltd address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will
continue to govern any disputes between you and Biggbird Ltd.
Opt-out. You may opt out of this arbitration agreement. If you do so, neither you nor Biggbird Ltd can force the other to arbitrate. To opt out, you must notify Biggbird Ltd in writing no later than 30 days after first becoming subject to this arbitration agreement. Your notice must include your name and address, your Realmoji username (if applicable) and the email address you used to set up your Realmoji account (if you have one), and an unequivocal statement that you want to opt out of this arbitration agreement. You must either mail you’re opt-out notice to the Notice address stated above or email the opt-out notice to legal@Realmoji.com
Enforceability. If Section 19.f above is found to be unenforceable, then the entirety of this Section 19 will be null and void. If this Arbitration Provision is invalidated in whole or in part, Section 19 shall govern any claim in court arising out of or relating to these Terms or your use of the Service.
We control and operate the Service from Biggbird Ltd offices in Gibraltar. Biggbird Ltd makes no representation that materials on the Service are appropriate, lawful, or available for use in any locations other than Gibraltar. Those who choose to access or use the Service from locations outside Gibraltar, do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. Access to the Service from jurisdictions where the content or practices of the Service are illegal, unauthorized, or penalized is strictly prohibited.
NOTICE REGARDING APPLE
If you are using the Apps on an iOS-based device, you acknowledge that this Agreement is between you and Biggbird Ltd only, not with Apple, and Apple is not responsible for the Apps or the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apps. In the event of any failure of any App to conform to any applicable warranty, then you may notify Apple and Apple will refund the purchase price for the relevant App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Apps. Apple is not responsible for addressing any claims by you or any third party relating to the Apps or your possession and/or use of the Apps, including, but not limited to: (i) product liability claims; (ii) any claim that any App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third-party claim that any App or your possession and use of any App infringes that third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Apps. Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement, and upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary of this Agreement. You hereby represent and warrant that: (1) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (2) you are not listed on any U.S. Government list of prohibited or restricted parties.
If Biggbird Ltd provides a translation of the English language version of this Agreement, then the translation is provided solely for convenience and the English version.
You agree that no joint venture, partnership, employment, or agency relationship exists between you and Biggbird Ltd as a result of this agreement or your use of the service.
Failure of Biggbird Ltd to act on or enforce any provision of this Agreement will not be construed as a waiver of that provision or any other provision in this Agreement.
No waiver will be effective against Biggbird Ltd unless made in writing, and no such waiver will be construed as a waiver in any other or subsequent instance.
Except as expressly agreed by Biggbird Ltd and you, these Terms constitute the entire agreement between you and Biggbird Ltd with respect to the subject matter hereof and supersede all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter herein.
The Section headings herein are provided merely for convenience and will not be given any legal import
This Agreement will inure to the benefit of Biggbird Ltd’ successors and assigns.
You may not assign this Agreement or any of the rights or licenses granted hereunder, directly or indirectly, without the prior express written consent of Biggbird Ltd. Biggbird Ltd may assign this Agreement, including all its rights hereunder, without restriction.
If you would like to contact Biggbird Ltd in connection with your use of the Service, you may reach out by email at support@Realmoji.com