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This application/website ('Club High Five') hosts an interactive social platform which is an exciting and entertaining web-based gaming resource for engaging users in an interactive environment. The following governs your access and use of Club High Five, including all games, accounts, credits, posted multimedia, comments, and other information and/or any other content (collectively, 'Content') available on or through Club High Five, as engaged by you or other users. For convenience, Club High Five and its related businesses PPT, LLC (d/b/a High 5 Games), its executives, directors and employees, are referred to hereinafter collectively as Club High Five.
PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE ACCESSING, USING OR BROWSING Club High Five OR ANY OF THE CONTENT.
BY ELECTRONICALLY ACCESSING Club High Five, CREATING A PERSONAL USER ACCOUNT ON Club High Five, AND/OR ENGAGING IN ANY OF THE INTERACTIVE MULTIMEDIA SERVICES PROVIDED BY OR THROUGH Club High Five, YOU AGREE:
- YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF USE AND LEGAL NOTICES CONTAINED HEREIN; AND
- YOU AGREE TO BE BOUND BY ALL OF THE TERMS OF USE AND LEGAL NOTICES;
IF YOU ARE NOT WILLING TO BE OR CANNOT BE BOUND BY ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN, INCLUDING WITHOUT LIMITATION THE PRECEDING ACKNOWLEDGEMENT, THEN DO NOT ACCESS, BROWSE OR USE Club High Five OR ANY OF THE CONTENT. MOREOVER, Club High Five DOES NOT AND WILL NOT GRANT YOU ANY RIGHT OR LICENSE TO ACCESS, BROWSE OR USE Club High Five OR THE CONTENT WITHOUT YOUR WILLINGNESS AND ABILITY TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN, INCLUDING WITHOUT LIMITATION THE PRECEDING AGREEMENT AND ACKNOWLEDGEMENT.
THIRD-PARTY WEBSITES
Club High Five may contain links to third party websites that are not owned or controlled by Club High Five. Club High Fivehas no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites. In addition, Club High Five will not and cannot censor or edit the content of any third-party site. By using Club High Five, you expressly relieve Club High Five from any and all liability arising from your use of any third-party website.
GENERAL PERMISSIONS AND RESTRICTIONS
Club High Five hereby grants you permission to access and use Club High Five as set forth herein, provided that:
- You agree not to alter or modify any part of Club High Five, except as provided for herein.
- You agree not to access Club High Five Content through any technology or means other than the authorized webpages and/or applications designated by Club High Five, or other explicitly authorized means Club High Five may designate in writing.
- You agree not to use Club High Five for any commercial use without the prior written authorization of Club High Five. Prohibited commercial uses include any of the following actions taken without Club High Five's express approval:
- sale of access to Club High Five or its related services on another website;
- use of Club High Five or its related services for the primary purpose of gaining advertising or subscription revenue;
- the sale of advertising, on the Club High Five website or any third-party website, targeted to the content of specific Club High Five Content; and
- any use of Club High Five or its related services that Club High Five finds, in its sole discretion, to use Club High Five Content with the effect of competing with or displacing the market for Club High Five or Club High Five Content.
- Prohibited commercial uses do not include any use that Club High Five expressly authorizes in writing.
- Where expressly allowed by Club High Five, if you use any Club High Five Content on another website, you must include a prominent text link back to Club High Five on the pages where the Club High Five Content is utilized. In such an instance you may not modify, build upon, or block any portion of the utilized Club High Five Content.
- You agree not to use or launch any automated system, including without limitation, 'robots,' 'spiders,' or 'offline readers,' that accesses Club High Five in any manner. Notwithstanding the foregoing, Club High Five grants the operators of public search engines permission to use spiders to copy materials from the site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials. Club High Five reserves the right to revoke these exceptions either generally or in specific cases.
- You agree not to collect or harvest any personally identifiable information, including account names, from Club High Five, nor to use the communication systems provided by Club High Five (e.g. comments, messaging, etc.) for any commercial solicitation purposes.
- You will otherwise comply with the terms and conditions contained herein, and all applicable local, national, and international laws and regulations.
- Club High Five reserves the right to discontinue any aspect of Club High Five at any time.
LICENSE
You agree by accessing, browsing or otherwise using Club High Five, Club High Five and the Content are and remain the sole property of Club High Five or third-party providers, as applicable. Except as expressly permitted by Club High Five in writing, you agree that your license to access, browse and/or use this content is limited solely to a personal, revocable, nonexclusive, non-transferable license to (i) access and view Club High Five and the content, and (ii) upload and store any Content for your non-commercial use (with the exception of any fiscal or monetary reward provided by Club High Five) and not for resale or distribution to anyone else. You also agree that, with respect to any copy of the Content that you are permitted upload, download, store and/or record/print, you will reproduce and include all copyright and other proprietary notices included in such Content.
Unless otherwise provided in writing by Club High Five, no license provided herein authorizes you to copy, reproduce, modify, adapt, translate, distribute, transmit, download, upload, post, sell, rent, license, transfer, publicly perform, publicly display, mirror, frame, scrape, extract, wrap, create derivative works of, reverse engineer, decompile or disassemble any aspect of Club High Five or any of the content, in whole or in part, in any form or by any means, whether manual or automatic.
ADDITIONAL USER RESTRICTIONS
In addition to the general restrictions above, the following restrictions and conditions apply specifically to your use of Content on Club High Five.
- The Content on Club High Five, including without limitation, the games, text, software, scripts, graphics, photos, sounds, music, videos, interactive features and the like, and the trademarks, service marks and logos contained therein, are owned by or licensed to Club High Five or on of its business partners, subject to copyright and other intellectual property rights under the law. Content on Club High Five is provided to you AS IS for your information and personal use only and may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever, unless provided for herein. Club High Five reserves all rights not expressly granted in and to Club High Five and the Content.
- To the extent user comments are permitted, such comments are made available to you for your information and personal use solely as intended through the normal functionality of Club High Five. User comments are made available 'as is', and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, downloaded, or otherwise exploited in any manner not intended by the normal functionality of Club High Five or otherwise as prohibited herein.
- You may access Club High Five Content and other content only as permitted herein. Club High Five reserves all rights not expressly granted in and to the Club High Five Content and the Club High Five website and application.
- You agree to not engage in the use, copying, or distribution of any of the Content other than expressly permitted herein, including any use, copying, or distribution of materials of third parties obtained through Club High Five for any commercial purposes.
- You agree not to circumvent, disable or otherwise interfere with security-related features of Club High Five or features that prevent or restrict use or copying of any Content or enforce limitations on use of Club High Five or the Content therein.
- You understand that when using Club High Five, you may be exposed to content from a variety of sources, and that Club High Five is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such third party content. You further understand and acknowledge that you may be exposed to third party content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Club High Five with respect thereto, and agree to indemnify and hold Club High Five, its Owners/ Operators, affiliates, and/or licensors, harmless to the fullest extent allowed by law regarding all matters arising from your use of the site.
Club High Five USER ACCOUNTS
In order to access some features of Club High Five, you may have to create a Club High Five user account either directly or through one of Club High Five™s strategic business partners (e.g., Facebook, Inc.), which may also work with Club High Five. You agree never to use another's account without permission. When creating your user account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify Club High Five immediately of any breach of security or unauthorized use of your account.
Although Club High Five is not liable for your losses caused by any unauthorized use of your account, you shall be liable for the losses of Club High Five or others due to such unauthorized use.
USER IDS AND PASSWORDS
Access to certain areas of Club High Five or the Content are limited by a user identifier ('User ID') and password, which is selected and/or supplied as part of the registering for a personal account with Club High Five. By registering, you represent, warrant and covenant that: (i) You are of lawful age in your jurisdiction to access the Club High Five Content; (ii) You are using your actual identity; (iii) You have provided only true, accurate, current and complete information about yourself during the registration process; and (iv) You will maintain and promptly update the information that you provide to keep it true, accurate, current and complete.
By logging onto Club High Five using any password, you represent, warrant and covenant that you are authorized to use such password and to engage in the activities that you conduct thereunder. You agree that you will be solely responsible for the maintenance and security of your User ID and password. You also agree that you will be solely responsible for any activities conducted on or through Club High Five. Your User ID and password are unique to you, and you agree not to disclose or share your User ID and password with any third party.
In addition, you agree that you are entirely responsible for any and all activities which occur under your account whether or not you are the individual who undertakes such activities. This includes any unauthorized access and/or use of your account should you fail to sufficiently disconnect and/or log off Club High Five and/or a public computer system. Accordingly, you absolve and release Club High Five from any claim of harm resulting from a third party undertaking the activities.
Club High Five reserves the right to deny or revoke access to Club High Five, or any part thereof, at any time in our sole discretion, with or without cause. If you wish to cancel a password, or if you become aware of any loss, theft or unauthorized use of a password, please notify Club High Five immediately.
SITE MONITORING
Club High Five may monitor or review any areas on Club High Five where users upload Content, transmit or post Content or communicate with each other, or the like. However, Club High Five does not undertake to monitor or review every posting or communication, and Club High Five disclaims any liability related to the content of any such postings and communications, whether or not arising under the laws of copyright, trademarks, libel, privacy, obscenity, or otherwise.
While Club High Five may monitor the content of the communications from time to time, Club High Five does not endorse, support, sanction, encourage, verify, or necessarily agree with the comments, opinions, or statements posted. Any information or material placed online are solely the views and responsibility of those posting such statements, and do not necessarily represent the views of Club High Five. Club High Five, in its sole discretion, reserves all rights to discontinue this service generally or to any user at any time.
Club High Five may disclose any records, electronic communications, information, materials or other content of any kind (i) if Club High Five believes in good faith that the law or legal process requires it; (ii) if such disclosure is necessary or appropriate to operate Club High Five; or (iii) to protect our rights or property or the rights or property of our users and business partners.
PATENTS PENDING
Club High Five™s novel methodology, technological improvements and overall business methods (collectively 'Patentable Subject Matter') are the subjects of pending patent application(s) in the United States and world-wide.
COPYRIGHTS
Club High Five and the Content contained and referenced therein are subject to copyrights owned by Club High Five, and is for your informational and entertainment purposes only. Any reproduction, retransmission or other use is strictly prohibited, except as otherwise provided herein or in writing by Club High Five. Requests for permission to reproduce any of the prohibited Content should be addressed by writing to Club High Five C/O High 5 Games, 1200 Macarthur Boulevard, Unit # 240, Mahwah, New Jersey, 07430, USA.
TRADEMARKS
All trademarks, service marks, titles, domain names, logos, and company names (collectively ' Trademarks') referred to on Club High Five are trademarks, registered trademarks, service marks, domain names, logos, company names of or are otherwise the property of Club High Five or its affiliates or licensors. In countries where any of the Club High Five trademarks, service marks, domain names, logos and company names are not registered, Club High Five claims other rights associated with unregistered trademarks, service marks, domain names, logos, and company names. Other product or company names referred to on Club High Five may be trademarks of their respective owners.
Club High Five does not grant to you any rights under any of the Trademarks, and you agree that you may not use any of the Trademarks without permission from the owner of such Other Trademark. With respect to the Other Trademarks owned by Club High Five, you may contact Club High Five by sending a letter to Club High Five C/O High 5 Games, 1200 Macarthur Boulevard, Unit # 240, Mahwah, New Jersey, 07430, USA to request written permission to use the trademarks for purposes other than stated herein or for all other questions relating to Club High Five.
OTHER INTELLECTUAL PROPERTY RIGHTS
All right, title and interest in and to the Content, including without limitation the graphical display and arrangement of Club High Five and the Content, and all intellectual property rights embodied therein, are the property of Club High Five or its licensors, suppliers or affiliates.
Without limiting the foregoing, with respect to the databases ('Databases') used to store the Content, you agree and acknowledge that:
- the Content, Databases and any other information contained therein shall remain valuable intellectual property owned by, or licensed to Club High Five, and that no proprietary rights are being transferred to you in such materials or in any of the Content contained therein;
- You shall not, directly or indirectly, use any of the Content, Databases and any other information contained therein for any purposes other than your personal, non-commercial use;
- You shall not, directly or indirectly, use the Content, Databases and any other information contained therein to compete directly or indirectly with Club High Five;
- You shall not, directly or indirectly, use the Content, Databases and any other information contained therein to establish independent data files or otherwise amass statistical information thereof or therefrom;
- You shall not, directly or indirectly, use the Content, Databases and any other information contained therein in violation of any applicable laws or regulations,
- misappropriation or misuse of the Content, Databases and any other information contained therein will cause serious irreparable damage to Club High Five and that in such event money damages may not constitute sufficient compensation to Club High Five; consequently; and
- in the event of any misappropriation or misuse, Club High Five shall have the right to obtain injunctive relief in addition to any other legal or financial remedies to which Club High Five may be entitled.
In addition, you acknowledge that the Content, Databases and any other information contained therein are protected by law, including, but not limited to, United States and international copyright law and trademark law, as well as other state, federal, and international laws and regulations, including contract law, and laws pertaining to privacy and publicity.
NOTICE OF ENFORCEMENT
Club High Five vigorously enforces its intellectual property rights to the fullest extent of the law. Accordingly, Club High Five may prosecute any unauthorized use or reproduction of any of the Content, Databases and any other information contained therein that violate the protection afforded by the United States and international copyright law and trademark law, and/or other state, federal, and international laws and regulations, including laws pertaining to contracts, and privacy and publicity.
VIRTUAL CURRENCY
Club High Five may permit a virtual currency to be used for accessing and playing its Content and/or games ('Virtual Currency'). Such Virtual Currency may be termed coins, credits, cash, or points which may be purchased from Club High Five for valid government-issued currency. By purchasing any such Virtual Currency, you agree (1) such acquisition is valid and legal in your jurisdiction, and (2) once purchased, such Virtual Currency is not redeemable for any government-issued currency that is, such Virtual Currency should be treated as a 'good' purchased as-is, with no returnable or redeemable value except within the entertaining Content provided by Club High Five, or as otherwise expressly indicated by Club High Five.
Except as provided by Club High Five, transfer or sale of Virtual Currency is strictly prohibited between users of Club High Five for any government-backed currency value or otherwise.
All sales of Virtual Currency are final, unless at Club High Five™s discretion a refund is deemed necessary for any reason suitable for Club High Five. Upon termination or suspension of your Club High Five account, all Virtual Currency remaining in your account may be forfeited at Club High Five™ sole discretion.
DISCLAIMERS
Club High Five AND THE CONTENT MAY INCLUDE TECHNICAL INACCURACIES AND/OR TYPOGRAPHICAL ERRORS. Club High Five MAY MAKE CHANGES OR IMPROVEMENTS AT ANY TIME WITHOUT NOTICE. Club High Five AND THE CONTENT ARE PROVIDED 'AS IS' AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND EITHER EXPRESSED OR IMPLIED. Club High Five DISCLAIMS, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, ALL WARRANTIES AND CONDITIONS EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, RELIABILITY, COMPLETENESS, CURRENCY, QUALITY, PERFORMANCE OR SUITABILITY OF THIS SITE, THE CONTENT, OR ANY PRODUCTS, SERVICES OR RESULTS OBTAINED ON OR THROUGH Club High Five.
Club High Five DOES NOT REPRESENT OR WARRANT THE AVAILABILITY OF THE SITE, THAT Club High Five AND YOUR USE OF Club High Five WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT Club High Five OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. Club High Five DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF OR THE RESULT OF THE USE OF Club High Five AND/OR THE CONTENT IN TERMS OF THEIR CORRECTNESS, ACCURACY, TIMELINESS, RELIABILITY, APPLICABILITY OR OTHERWISE. YOU (AND NOT Club High Five) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. THE ABOVE EXCLUSION MAY NOT APPLY TO YOU, TO THE EXTENT THAT APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES. IN ADDITION TO THE FOREGOING, YOU AGREE THAT YOUR USE OF Club High Five AND THE CONTENT IS AT YOUR OWN RISK.
LIMITATIONS ON LIABILITY
Club High Five WILL NOT BE LIABLE FOR ANY DAMAGES OR INJURY CAUSED BY YOUR USE OF Club High Five AND THE CONTENT, INCLUDING BUT NOT LIMITED TO, ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OF TRANSMISSION, COMPUTER VIRUS, OR LINE FAILURE. Club High Five WILL NOT BE LIABLE FOR ANY DAMAGES OR INJURY, INCLUDING BUT NOT LIMITED TO, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS AND DAMAGES THAT RESULT FROM INCONVENIENCE, DELAY, OR LOSS OF USE) THAT RESULT FROM THE USE OF, THE INABILITY TO USE, OR RELIANCE UPON, Club High Five AND THE CONTENT OR ANY PRODUCTS OR SERVICES OBTAINED ON OR THROUGH Club High Five, EVEN IF THERE IS NEGLIGENCE BY Club High Five OR BY AN AUTHORIZED Club High Five REPRESENTATIVE, OR AN AUTHORIZED Club High Five REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR ANY OF THE ABOVE. THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU TO THE EXTENT THAT APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR SUCH DAMAGES. Club High Five' TOTAL LIABILITY TO YOU FOR LOSSES, DAMAGES AND CAUSES OF ACTION WILL NOT BE GREATER THAN THE AMOUNT YOU PAID TO Club High Five, IF ANY, TO ACCESS Club High Five.
INDEMNITY
YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS Club High Five, Club High Five™ OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTENT PROVIDERS, CUSTOMERS AND SUPPLIERS FROM AND AGAINST ANY AND ALL CLAIMS, PROCEEDINGS, DAMAGES, INJURIES, LIABILITIES, LOSSES, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES AND LITIGATION EXPENSES), RELATING TO OR ARISING FROM:
- YOUR USE OF Club High Five AND ANY OF THE CONTENT, OR ANY PRODUCTS OR SERVICES OBTAINED ON OR THROUGH Club High Five;
- ANY ARRANGEMENTS YOU MAKE BASED ON THE CONTENT OBTAINED ON OR THROUGH Club High Five;
- ANY BREACH BY YOU OF THE TERMS CONTAINED HEREIN; AND
- ANY ACTIVITY RELATED TO YOUR Club High Five ACCOUNT (INCLUDING INFRINGEMENT OF THIRD PARTIES WORLDWIDE INTELLECTUAL PROPERTY RIGHTS OR NEGLIGENT OR WRONGFUL CONDUCT) BY YOU OR ANY OTHER PERSON ACCESSING THE SITE USING YOUR Club High Five ACCOUNT.
RELEASE FOR FORCE MAJEURE
You absolve and release Club High Five and our affiliates from any claim of harm resulting from any cause(s) over which we or they do not have direct control, including, but not limited to, failure of electronic or mechanical equipment or communication lines, telephone or other interconnect problems, computer viruses or other damaging code or data, unauthorized access, theft, operator errors, severe weather, earthquakes, natural disasters, strikes or other labor problems, wars, or governmental restrictions.
TERM AND TERMINATION
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Club High Five reserves the right, at any time and for any reason, without notice to you, (i) to deny you access to Club High Five and any of the Content; or (ii) to change, remove or discontinue any of the Content or services available on or through Club High Five.
You may terminate this agreement at any time by destroying: (a) all of the Content obtained from Club High Five, including, without limitation, permanently deleting all of the Content from any computer and/or media; and (b) all related documentation and all copies and installations, if any. In addition, and upon Club High Five' request, you agree to certify in writing that all of the Content has been destroyed. The warranty disclaimers, limitations and exclusions of liability, reservation and grant of property rights and other terms and conditions contained herein which by their nature are intended to survive will survive the termination or expiration of any license provided to you by Club High Five.
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NOTICES
Any legal notice, other document or communication required or permitted hereunder to Club High Five will be deemed to have been duly given only if in writing and delivered by certified U.S. mail, return receipt requested, postage prepaid, to Club High Five C/O High 5 Games, 1200 Macarthur Boulevard, Unit # 240, Mahwah, New Jersey, 07430, USA.
Notices to Club High Five shall be deemed delivered when actually received by Club High Five or its authorized representatives.
Any notice or other document or communication required or permitted hereunder to you will be sent to the e-mail address that you provide to Club High Five when you register. Such notice will be deemed received by you the next business day after the e-mail is sent.
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Should you elect to send or receive e-mail communications of any kind to or from Club High Five, you represent and warrant to Club High Five that your e-mail service has appropriate and adequate security systems necessary to prevent unauthorized access to outbound or inbound e-mail transmissions.
JURISDICTION / COMPLIANCE WITH LAWS
Except as described otherwise, Club High Five is controlled and operated from within the United States of America and makes no representation that the Content are appropriate or available for use in other locations. If you use Club High Five from other locations, you are responsible for compliance with applicable local laws including, without limitation, all export laws. Some of the Content may be subject to export controls imposed by the United States and may not be downloaded or otherwise exported or reexported: (a) into (or to a national or resident of) any country to which the U.S. has placed an embargo, including without limitation, Cuba, Iran, Iraq, Libya, North Korea, Syria, or Yugoslavia; (b) to anyone in the US Treasury Department's Specially Designated national list, or (c) to anyone on the US Commerce Department's Table of Denial Orders. If you download or use the Content you represent and warrant that you are not located in, or under the control of, or a national or resident of any such country or on any such list.
Access, browsing and use of Club High Five, the Content and the terms and conditions of the User Agreement are governed by U.S. federal law and/or the laws of the State of New Jersey, excluding any conflict of laws provisions that would refer to and apply the substantive laws of another jurisdiction.
SUBJECT TO THE MANDATORY ARBITRATION PROVISION BELOW, ANY LEGAL ACTION OR PROCEEDING RELATING TO YOUR ACCESS TO, OR USE OF, THE SITE SHALL BE INSTITUTED ONLY IN A STATE OR FEDERAL COURT LOCATED IN THE STATE OF NEW JERSEY, U.S.A., YOU AND Club High Five AGREE TO SUBMIT TO THE JURISDICTION OF, AND AGREE THAT VENUE IS PROPER IN, THESE COURTS IN ANY SUCH LEGAL ACTION OR PROCEEDING.
ARBITRATION
Any controversy or dispute between you and Club High Five ('the parties') concerning Club High Five or the Content shall be submitted to final and binding arbitration as the sole and exclusive remedy for such controversy or dispute. Any claim shall be made by filing a demand for arbitration within one (1) year following the occurrence first giving rise to the claim. The right and duty of the parties to resolve disputes by arbitration shall be governed exclusively by the Federal Arbitration Act, and arbitration shall take place according to the Commercial Rules of the American Arbitration Association. The arbitration will be held in New Jersey. Each of the parties shall bear all of its own costs of arbitration, except that the fees of the arbitrator shall be divided equally between the parties. The arbitrator shall have no authority to amend or modify the terms of this Agreement or to award punitive or exemplary damages, and the award may be enforced by judgment. Before, during, or after arbitration each party shall have the right, without awaiting the outcome of the arbitration, to seek interim injunctive relief from an appropriate court including but not limited to temporary restraining orders or preliminary injunctions. Seeking any such remedies shall not be deemed a waiver of either party's right to compel arbitration.
WAIVER
No delay or omission by Club High Five to exercise any right occurring upon any noncompliance on your part with respect to any of the terms and conditions contained herein will impair any such right or power or be construed to be a waiver thereof. Any waiver by Club High Five of any of the covenants, conditions or agreements to be performed by you will not be construed to be a waiver of any succeeding breach thereof or of any covenant, condition or agreement herein contained.
SEVERABILITY
If any of the terms and conditions contained herein are adjudged invalid or unenforceable by a court of competent jurisdiction, the remaining portions will remain valid, enforceable, and in effect.
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INDEPENDENT CONTRACTOR
Club High Five is an independent contractor; nothing in this Agreement shall be construed to create a partnership, joint venture, or agency relationship between you and Club High Five.
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CONTINUED USE DEEMED ACCEPTANCE
Club High Five reserves the right, at its sole discretion, to change, alter, amend or otherwise modify these Terms of Use and Legal Notices from time to time. After any such modification becomes effective, Club High Five will deem your continued use of Club High Five or any of the Content to constitute your acceptance of and agreement to such modification. You agree it is your duty to read these Terms of Use and Legal Notices prior to using, accessing or browsing the Club High Five website.
ENTIRE AGREEMENT
This constitutes the entire agreement between you and Club High Five with respect to your use of Club High Five and the Content, and supersedes any and all prior understandings or agreements between you and Club High Five, whether written or oral. You acknowledge that, in providing you access to and use of Club High Five and the Content, Club High Five has relied on your acceptance of this agreement.