Fantasy Simmer

TERMS OF SERVICE - FANTASY SIMMER

Effective Date: 7/3/2019

Last Updated: 7/20/2020

These TERMS OF SERVICE (“Terms”) are a binding agreement between Fantasy Simmer LLC, a limited liability company formed under the laws of the State of Texas (“Fantasy Simmer”) and each user of the Fantasy Simmer services, features, software, or website (the “Fantasy Simmer Platform”). All users are required to review and be bound by these Terms in order to participate on the Fantasy Simmer Platform. You agree to these Terms by installing, accessing, or using the Fantasy Simmer Platform. IF YOU DISAGREE WITH ANY PORTION OF THESE TERMS, YOU CANNOT PARTICIPATE AS A USER OF THE FANTASY SIMMER PLATFORM. PLEASE CAREFULLY REVIEW THESE TERMS BECAUSE THEY IMPACT YOUR RIGHTS, RELIEF, AND LIABILITY.

Scope of Fantasy Simmer Services.
1. Fantasy Simmer is a company devoted to creating and managing software that is used primarily for fantasy sports leagues. Fantasy Simmer’s Platform may be used for promotional, informational, and e-commerce activities, or to engage in any other activities that may be provided by the Fantasy Simmer Platform from time to time (collectively the “Services”). Content and Services may be accessed by users of the Fantasy Simmer Platform (“Users”).
2. As the provider of the Fantasy Simmer Platform, Fantasy Simmer is not acting as an agent in any capacity for any User.
3. If you choose to use the Fantasy Simmer Platform, your relationship with Fantasy Simmer is limited to being an independent third-party user, and not an employee, agent, joint venturer, or partner of Fantasy Simmer for any reason, and you act exclusively on your own behalf and for your own benefit, and not on behalf, or for the benefit, of Fantasy Simmer.
4. The Fantasy Simmer Platform may contain links to or use third-party websites or resources (“Third-Party Services”). Such Third-Party Services may be subject to different terms and conditions and privacy practices. Fantasy Simmer is not responsible or liable for the availability or accuracy of such Third-Party Services, or the Content, products, or services available from such Third-Party Services. Links to such Third-Party Services are not an endorsement by Fantasy Simmer of such Third-Party Services.
5. Third-Party Materials.
  1. Third-Party Licenses:
  2. Users are bound by and shall comply with all Third-Party Licenses. Any breach by Users of any Third-Party License is also a breach of this Agreement.
6. Currently, Fantasy Simmer uses MailerLite for its mailing list, whose Terms of Service can be found at https://www.mailerlite.com/legal. Fantasy Simmer also uses SendGrid for it’s email confirmation service, who’s Terms of Service can be found at https://www.twilio.com/legal/tos. Like with any other Third-Party Services used by Fantasy Simmer, you must agree to abide by and not violate any separate terms and conditions required by MailerLite, or other Third-Party Services used by Fantasy Simmer.
7. Due to the nature of the Internet, Fantasy Simmer cannot guarantee the continuous and uninterrupted availability and accessibility of the Fantasy Simmer Platform. Fantasy Simmer may restrict the availability of the Fantasy Simmer Platform or certain areas or features thereof, if this is necessary in view of capacity limits, the security or integrity of our servers, or to carry out maintenance measures that ensure the proper or improved functioning of the Fantasy Simmer Platform. Fantasy Simmer may, at its sole discretion, improve, enhance, and modify the Fantasy Simmer Platform and introduce new Services from time to time.
Fees. Fantasy Simmer may offer an opportunity for Users to purchase Fantasy Simmer services, including its online platform, for a price (“Fees”), however, said transaction shall not be directly hosted on the Fantasy Simmer Platform, nor will payment be accepted through the Fantasy Simmer Platform. Any transaction for Fantasy Simmer products or services involving Fees shall be handled by a third-party vendor. Currently, such transactions are handled by Stripe, who’s Services Agreement can be found at https://stripe.com/legal. By completing a transaction with us that is handled by a third-party vendor, you acknowledge that you have received and read any terms and conditions and/or privacy policy associated with such third-party vendor, and you agree to said terms. Information related to the current Fees associated with the Fantasy Simmer products may change from time to time.
Eligibility, Using the Fantasy Simmer Platform, User Verification.
1. You must be at least 18 years old to access and use the Fantasy Simmer Platform. By accessing or using the Fantasy Simmer Platform, you represent and warrant that you are 18 or older.
2. Fantasy Simmer may make access to and use of the Fantasy Simmer Platform, or certain areas or features of the Fantasy Simmer Platform, subject to certain conditions or requirements, such as completing a registration process, agreeing to these Terms and a Privacy Policy, agreeing to any other licensing agreements or third-party agreements necessary to access the Fantasy Simmer Platform, and making payment of Fees.
3. User verification on the Internet is difficult and Fantasy Simmer does not assume any responsibility for the confirmation of any User’s identity.
Modification of These Terms. Fantasy Simmer reserves the right to modify these Terms at any time in accordance with this provision. If we make changes to the Terms, we may do so without prior notice by posting the revised terms on the Fantasy Simmer Platform and updating the “Last Updated” date at the top of them. If you disagree with the revised Terms, you must terminate your participation in the Fantasy Simmer Platform with immediate effect by deleting your account and ceasing all use of the Fantasy Simmer Services. If you do not terminate your use before the date the revised Terms become effective, your continued access to or use of the Fantasy Simmer Platform will constitute acceptance of the revised Terms.
Acceptable Devices or Software.
1. You must provide certain devices, software, and data connections to use the Fantasy Simmer Services, which we otherwise do not supply. Fantasy Simmer is not responsible, nor liable, directly or indirectly, for any download, installation, use, transmission failure, interruption, or delay of the Fantasy Simmer Services or the Fantasy Simmer Platform, or any third party Content, services, or advertisements due to data, connectivity, or other internet issues due to such devices, software, and data connections. Fantasy Simmer is likewise not responsible, nor liable, directly or indirectly, for any data charges or service fees associated with such devices, software, and data connections.
Content.
1. Fantasy Simmer may, at its sole discretion, enable Users to save, access and view any content that Fantasy Simmer itself makes available on or through the Fantasy Simmer Platform, including proprietary Fantasy Simmer content and any content licensed or authorized for use by or through Fantasy Simmer from a third party ("Content").
2. The Fantasy Simmer Platform and Content may in its entirety or in part be protected by copyright, trademark, and/or other laws of the United States and other countries. You acknowledge and agree that the Fantasy Simmer Platform and Content, including all associated intellectual property rights, are the exclusive property of Fantasy Simmer and/or its licensors or authorizing third-parties. You will not remove, alter, reproduce, or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Fantasy Simmer Platform, Content. All trademarks, service marks, logos, trade names, and any other source identifiers of Fantasy Simmer used on or in connection with the Fantasy Simmer Platform and Content are trademarks or registered trademarks of Fantasy Simmer in the United States. Trademarks, service marks, logos, trade names and any other proprietary designations of third parties used on or in connection with the Fantasy Simmer Platform, and/or Content are used for identification purposes only and may be the property of their respective owners.
3. You will not use, copy, adapt, modify, prepare derivative works of, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Fantasy Simmer Platform or Content, except to the extent you are the legal owner of certain Content or as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Fantasy Simmer or its licensors, except for the licenses and rights expressly granted in these Terms and any End User License Agreement used with the software.
4. Subject to your compliance with these Terms, Fantasy Simmer grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to access and view any Content made available on or through the Fantasy Simmer Platform and accessible to you, solely for your personal and non-commercial use.
5. By creating, uploading, posting, sending, receiving, storing, or otherwise making available any Content on or through the Fantasy Simmer Platform, you grant to Fantasy Simmer a non-exclusive, worldwide, royalty-free, irrevocable, perpetual, sub-licensable, and transferable license to such Content to access, use, store, copy, modify, prepare derivative works of, distribute, publish, transmit, stream, broadcast, and otherwise exploit in any manner such Content to provide and/or promote the Fantasy Simmer Platform in any media or platform. By creating, uploading, posting, sending, receiving, storing, or otherwise making available any Content on or through the Fantasy Simmer Platform, you also grant to Fantasy Simmer a non-exclusive, worldwide, royalty-free, irrevocable, perpetual, sub-licensable, and transferable license to such Content for all marketing, advertising, research, and development purposes, including, without limitation, the provision of such Content to third-parties as outlined in our Privacy Policy. Unless you provide specific consent, Fantasy Simmer does not claim any ownership rights in any User created Content aside from the permissions granted in this Section VI(e) and nothing in these Terms will be deemed to restrict any rights that you may have to use or exploit your Content.
6. You are solely responsible for all Content that you make available on or through the Fantasy Simmer Platform. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Content that you make available on or through the Fantasy Simmer Platform or you have all rights, licenses, consents and releases that are necessary to grant to Fantasy Simmer the rights in and to such Content, as contemplated under these Terms; and (ii) neither the Content nor your posting, uploading, publication, submission or transmittal of the Content or Fantasy Simmer's use of the Content (or any portion thereof) will infringe, misappropriate or violate a third party's patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
7. You will not post, upload, publish, submit or transmit any Content that: (i) is fraudulent, false, misleading (directly or by omission or failure to update information), or deceptive; (ii) is defamatory, libelous, obscene, pornographic, vulgar or offensive; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening or promotes violence or actions that are threatening to any other person; (v) promotes illegal or harmful activities or substances; or (vi) violates any Fantasy Simmer policy. Fantasy Simmer may, without prior notice, remove or disable access to any User Content that Fantasy Simmer finds to be in violation of these Terms or Fantasy Simmer’s then-current policies or standards, or otherwise may be harmful or objectionable to Fantasy Simmer, its Users, third parties, or property.
Relationship Between Fantasy Simmer, Users, and Third Parties Recommended, Rated, Reviewed, or Otherwise Suggested or Mentioned by Users. Fantasy Simmer is not itself a provider of any services outside the scope of Fantasy Simmer Services and the Fantasy Simmer Platform, and is not affiliated with any User or third party that is recommended, rated, reviewed, or otherwise mentioned or suggested by Users on or off the Fantasy Simmer Platform. AFTER THE FANTASY SIMMER SERVICES, FANTASY SIMMER IS NO LONGER INVOLVED IN THE RELATIONSHIP BETWEEN ANY PARTY. IT IS YOUR RESPONSIBILITY TO EXERCISE DUE DILIGENCE AND CARE WHEN DECIDING WHETHER TO COMMUNICATE, INTERACT, TRANSACT, OR DO BUSINESS WITH OTHERS.
Third-Party Vendor. All payments, if any, are processed through a third-party vendor. Users acknowledge and agree that all accounts and monetary transactions are subject to the terms and conditions of the third-party vendor and any fees the vendor may charge. Users agree to abide by and not violate any separate terms and conditions required by third-party vendors, which are independent of these Terms. Users expressly acknowledge and agree that Fantasy Simmer shall not be liable for any payments and monetary transactions that occur through use of the Fantasy Simmer Platform.
Currency Used. All transactions on the Fantasy Simmer Platform are in United States currency (USD$). Fantasy Simmer does not provide currency exchange services.
Prohibited Activities.
1. You are solely responsible for compliance with any and all laws, rules, regulations, and tax obligations that may apply to your use of the Fantasy Simmer Platform and any sale or transaction consummated therein. In connection with your use of the Fantasy Simmer Platform, you will not and will not assist or enable others to:
  1. Breach or circumvent any applicable laws or regulations, agreements with third-parties, third-party rights, or our Terms, policies, or standards;
  2. Use the Fantasy Simmer Platform for any commercial or other purposes that are not expressly permitted by these Terms or in a manner that falsely implies Fantasy Simmer endorsement, partnership or otherwise misleads others as to your affiliation with Fantasy Simmer;
  3. Copy, store or otherwise access or use any information, including personally identifiable information about any other User, contained on the Fantasy Simmer Platform in any way that is inconsistent with Fantasy Simmer’s Privacy Policy or these Terms or that otherwise violates the privacy rights of Users or third parties;
  4. Use the Fantasy Simmer Platform in connection with the distribution of unsolicited commercial messages ("spam");
  5. Contact another User for any purpose relating to recruiting or otherwise soliciting any User to join third-party services, applications or websites, without our prior written approval;
  6. Discriminate against or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation, or otherwise engage in any abusive or disruptive behavior;
  7. Use, display, mirror, frame, reproduce, alter, or copy the Fantasy Simmer Platform or Content, or any individual element within the Fantasy Simmer Platform, Fantasy Simmer's name, any Fantasy Simmer trademark, logo, copyrighted material, or other proprietary information, or the layout and design of any page or form contained on a page in the Fantasy Simmer Platform, without Fantasy Simmer's express written consent;
  8. Dilute, tarnish or otherwise harm the Fantasy Simmer brand in any way, including through unauthorized use of Content, registering and/or using Fantasy Simmer or derivative terms in domain names, trade names, trademarks, copyrighted material, or other source identifiers, or registering and/or using domains names, trade names, trademarks or other source identifiers that closely imitate or are confusingly similar to Fantasy Simmer domains, trademarks, taglines, promotional campaigns or Content;
  9. Use any robots, spider, crawler, scraper or other automated means or processes to access, collect data or other Content from or otherwise interact with the Fantasy Simmer Platform for any purpose;
  10. Avoid, bypass, remove, deactivate, impair, descramble, or otherwise attempt to circumvent any technological measure implemented by Fantasy Simmer or any of Fantasy Simmer's providers or any other third party to protect the Fantasy Simmer Platform;
  11. Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Fantasy Simmer Platform;
  12. Take any action that damages or adversely affects, or could damage or adversely affect the performance or proper functioning of the Fantasy Simmer Platform;
  13. Export, re-export, import, or transfer the Fantasy Simmer Platform except as authorized by United States law, the export control laws of your jurisdiction, and any other applicable laws;
  14. Violate or infringe anyone else’s rights or otherwise cause harm to anyone; or
  15. Impersonate any other person or entity.
2. You acknowledge that Fantasy Simmer has no obligation to monitor the access to or use of the Fantasy Simmer Platform by any User or to review, disable access to, or edit any Content, but has the right to do so to: (i) operate, secure and improve the Fantasy Simmer Platform (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes); (ii) ensure Users’ compliance with these Terms; (iii) comply with applicable law or the order or requirement of a court, law enforcement or other administrative agency or governmental body; (iv) respond to Content that it determines is harmful or objectionable; or (v) as otherwise set forth in these Terms. Users agree to cooperate with and assist Fantasy Simmer in good faith, and to provide Fantasy Simmer with such information and take such actions as may be reasonably requested by Fantasy Simmer with respect to any investigation undertaken by Fantasy Simmer or a representative of Fantasy Simmer regarding the use or abuse of the Fantasy Simmer Platform.
Term and Termination.
1. Without limiting our rights specified below, Fantasy Simmer may terminate these Terms and your use of or access to the Fantasy Simmer Services a for convenience at any time and for any reason, without notice to you, including:
  1. Your material breach of your obligations under these Terms;
  2. Your violation of applicable laws, regulations, or third-party rights, or
  3. If Fantasy Simmer believes in good faith that such action is reasonably necessary to protect the personal safety or property of Fantasy Simmer, its Users, or third parties (for example, in the case of fraudulent behavior of a User).
2. In addition, Fantasy Simmer may take any of the following measures (i) to comply with applicable law, or the order or request of a court, law enforcement or other administrative agency or governmental body; (ii) if you have breached these Terms, applicable laws, regulations, or third party rights; (iii) if you have provided inaccurate, fraudulent, outdated or incomplete information during the Fantasy Simmer Account registration or thereafter; or (v) if Fantasy Simmer believes in good faith that such action is reasonably necessary to protect the personal safety or property of Fantasy Simmer, its Users, or third parties, or to prevent fraud or other illegal activity:
  1. Refuse to surface, delete, or delay any Content;
  2. Limit your access to or use of the Fantasy Simmer Platform; or
  3. Temporarily or permanently revoke your access to the Fantasy Simmer Platform.
3. When these Terms and your use of or access to the Fantasy Simmer Platform have been terminated, you are not entitled to a restoration of your access to the Fantasy Simmer Platform. If your access to or use of the Fantasy Simmer Platform has been limited or your Fantasy Simmer Account has been suspended or terminated by us, you may not use the Fantasy Simmer Platform through another User.
DISCLAIMERS.
1. YOU USE OUR SERVICES AT YOUR OWN RISK AND SUBJECT TO THE FOLLOWING DISCLAIMERS. WE ARE PROVIDING OUR SERVICES ON AN “AS IS” BASIS WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND FREEDOM FROM COMPUTER VIRUS OR OTHER HARMFUL CODE. WE DO NOT WARRANT THAT ANY INFORMATION PROVIDED BY US IS ACCURATE, COMPLETE, OR USEFUL, THAT OUR SERVICES WILL BE OPERATIONAL, ERROR FREE, SECURE, OR SAFE, OR THAT OUR SERVICES WILL FUNCTION WITHOUT DISRUPTIONS, DELAYS, OR IMPERFECTIONS. WE DO NOT CONTROL, AND ARE NOT RESPONSIBLE FOR, CONTROLLING HOW OR WHEN OUR USERS USE OUR SERVICES OR THE FEATURES, SERVICES, AND INTERFACES OUR SERVICES PROVIDE. WE ARE NOT RESPONSIBLE FOR AND ARE NOT OBLIGATED TO CONTROL THE ACTIONS OR INFORMATION (INCLUDING CONTENT) OF OUR USERS OR OTHER THIRD PARTIES. YOU RELEASE US, OUR SUBSIDIARIES, AFFILIATES, AND OUR AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, PARTNERS, AND AGENTS (TOGETHER, THE “FANTASY SIMMER PARTIES”) FROM ANY CLAIM, COMPLAINT, CAUSE OF ACTION, CONTROVERSY, OR DISPUTE (TOGETHER, “CLAIM”) AND DAMAGES, KNOWN AND UNKNOWN, RELATING TO, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH ANY SUCH CLAIM YOU HAVE AGAINST ANY THIRD PARTIES. YOU WAIVE ANY RIGHTS YOU MAY HAVE UNDER APPLICABLE STATUTE OR LAW WHICH SAYS THAT: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
2. YOU AGREE THAT YOU HAVE HAD WHATEVER OPPORTUNITY YOU DEEM NECESSARY TO INVESTIGATE THE FANTASY SIMMER SERVICES, LAWS, RULES, OR REGULATIONS THAT MAY BE APPLICABLE TO YOUR USE OF THE FANTASY SIMMER PLATFORM AND THAT YOU ARE NOT RELYING UPON ANY STATEMENT OF LAW OR FACT MADE BY FANTASY SIMMER.
3. THE FOREGOING DISCLAIMERS APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Limitation of Liability. THE FANTASY SIMMER PARTIES WILL NOT BE LIABLE TO YOU FOR ANY LOST PROFITS OR CONSEQUENTIAL, SPECIAL, PUNITIVE, INDIRECT, OR INCIDENTAL DAMAGES RELATING TO, ARISING OUT OF, OR IN ANY WAY IN CONNECTION WITH OUR TERMS, US, OR OUR SERVICES, EVEN IF THE FANTASY SIMMER PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR AGGREGATE LIABILITY RELATING TO, ARISING OUT OF, OR IN ANY WAY IN CONNECTION WITH OUR TERMS, US, OR OUR SERVICES WILL NOT EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100) OR THE AMOUNT YOU HAVE PAID US IN THE PAST TWELVE MONTHS, WHICHEVER IS LOWER. THE FOREGOING DISCLAIMER OF CERTAIN DAMAGES AND LIMITATION OF LIABILITY WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE LAWS OF SOME STATES OR JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO SOME OR ALL OF THE EXCLUSIONS AND LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN OUR TERMS, IN SUCH CASES, THE LIABILITY OF THE FANTASY SIMMER PARTIES WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
Indemnification. YOU AGREE TO RELEASE, DEFEND (AT FANTASY SIMMER’S OPTION), INDEMNIFY, AND HOLD FANTASY SIMMER AND ITS AFFILIATES AND SUBSIDIARIES, AND THEIR OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, HARMLESS FROM AND AGAINST ANY CLAIMS, LIABILITIES, DAMAGES, LOSSES, AND EXPENSES, INCLUDING, WITHOUT LIMITATION, REASONABLE LEGAL AND ACCOUNTING FEES, ARISING OUT OF OR IN ANY WAY CONNECTED WITH:
1. YOUR BREACH OF THESE TERMS OR OUR POLICIES OR STANDARDS;
2. YOUR IMPROPER USE OF THE FANTASY SIMMER PLATFORM OR ANY FANTASY SIMMER SERVICES;
3. YOUR INTERACTION WITH ANY USER, INCLUDING WITHOUT LIMITATION ANY INJURIES, LOSSES OR DAMAGES (WHETHER COMPENSATORY, DIRECT, INCIDENTAL, CONSEQUENTIAL OR OTHERWISE) OF ANY KIND ARISING IN CONNECTION WITH OR AS A RESULT OF SUCH INTERACTION; OR
4. YOUR BREACH OF ANY LAWS, REGULATIONS, OR THIRD-PARTY RIGHTS.
1. This Dispute Resolution and Arbitration Agreement shall apply if you (i) reside in the United States; or (ii) do not reside in the United States, but bring any claim against Fantasy Simmer in the United States (to the extent not in conflict with Section XVI(a), below).
2. Overview of Dispute Resolution Process. Fantasy Simmer is committed to participating in a consumer-friendly dispute resolution process. To that end, these Terms provide for a two-part process for individuals to whom Section XV(a) applies: (1) an informal negotiation directly with Fantasy Simmer’s customer service team, and (2) a binding arbitration administered by the American Arbitration Association (“AAA”) using its specially designed Consumer Arbitration Rules (as modified by this Section).
3. Pre-Arbitration Dispute Resolution and Notification. Prior to initiating an arbitration, you and Fantasy Simmer each agree to notify the other party of the dispute and attempt to negotiate an informal resolution to it first. We will contact you at the email address you have provided to us; you can contact Fantasy Simmer’s customer service team by emailing us. If after a good faith effort to negotiate one of us feels the dispute has not and cannot be resolved informally, the party intending to pursue arbitration agrees to notify the other party via email prior to initiating the arbitration. In order to initiate arbitration, a claim must be filed with the AAA and the written Demand for Arbitration (available at www.adr.org) provided to the other party, as specified in the AAA Rules.
4. Agreement to Arbitrate. You and Fantasy Simmer mutually agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement or interpretation thereof, or to the use of the Fantasy Simmer Platform or the Content (collectively, “Disputes”) will be settled by binding arbitration (the “Arbitration Agreement”). If there is a dispute about whether this Arbitration Agreement can be enforced or applies to our Dispute, you and Fantasy Simmer agree that the arbitrator will decide that issue.
5. Exceptions to Arbitration Agreement. You and Fantasy Simmer each agree that the following claims are exceptions to the Arbitration Agreement and will be brought in a judicial proceeding in a court of competent jurisdiction:
  1. (i) Any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; and
  2. (ii) Any claim seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack).
6. Arbitration Rules and Governing Law. This Arbitration Agreement evidences a transaction in interstate commerce and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. The arbitration will be administered by AAA in accordance with the Consumer Arbitration Rules (the “AAA Rules“) then in effect, except as modified here. The AAA Rules are available at www.adr.org or by calling the AAA at 1–800–778–7879.
7. Modification to AAA Rules - Arbitration Hearing/Location. Any required arbitration hearing may be conducted (a) in Travis County; (b) in any other location to which you and Fantasy Simmer both agree; (d) via phone or video conference; or (e) for any claim or counterclaim under $25,000, by solely the submission of documents to the arbitrator.
8. Arbitrator’s Decision. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court with proper jurisdiction. The arbitrator may award declaratory or injunctive relief only on an individual basis and only to the extent necessary to provide relief warranted by the claimant’s individual claim.
9. Jury Trial Waiver. You acknowledge and agree that you are each waiving the right to a trial by jury as to all arbitrable Disputes.
10. No Class Actions or Representative Proceedings. You and Fantasy Simmer acknowledge and agree that we are each waiving the right to participate as a plaintiff or class User in any purported class action lawsuit, class-wide arbitration, private attorney-general action, or any other representative proceeding as to all Disputes. Further, unless you and Fantasy Simmer both otherwise agree in writing, in an arbitration proceeding, the arbitrator may not consolidate more than one party’s claims and may not otherwise preside over any form of any class or representative proceeding. If this paragraph is held unenforceable with respect to any Dispute, then the entirety of the Arbitration Agreement will be deemed void with respect to such Dispute.
11. Severability. In the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
12. Changes. Notwithstanding the provisions of Section IV, if Fantasy Simmer changes this Section XV after the date you last accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email) within thirty (30) days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Fantasy Simmer’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Fantasy Simmer in accordance with the provisions of the “Dispute Resolution and Arbitration Agreement” section as of the date you last accepted these Terms (or accepted any subsequent changes to these Terms).
13. Except as provided in Section XV(k), this Section XV will survive any termination of these Terms and will continue to apply even if you stop using the Fantasy Simmer Platform or terminate your Fantasy Simmer Account.
General Provisions.
1. Governing Law. These Terms will be interpreted in accordance with the laws of the State of Texas and the United States of America, without regard to conflict-of-law provisions. Judicial proceedings (other than small claims actions) that are excluded from the Arbitration Agreement in Section XV must be brought in state or federal court in Austin, Texas, unless we both agree to some other location. You and we both consent to venue and personal jurisdiction in Austin, Texas.
2. Entire Agreement. Except as they may be supplemented by additional terms and conditions, policies, guidelines or standards, these Terms constitute the entire Agreement between Fantasy Simmer and you pertaining to the subject matter hereof, and supersede any and all prior oral or written understandings or agreements between Fantasy Simmer and you in relation to the access to and use of the Fantasy Simmer Platform.
3. Restriction on Assignability or Transfer. These Terms do not and are not intended to confer any rights or remedies upon any person other than the parties. You may not assign, transfer, or delegate these Terms and your rights and obligations hereunder without Fantasy Simmer's prior written consent. Fantasy Simmer may without restriction assign, transfer or delegate these Terms and any rights and obligations hereunder, at its sole discretion, with 30 days prior notice. Your right to terminate these Terms by immediately discontinuing your use of and access to the Fantasy Simmer Services and the Fantasy Simmer Platform at any time remains unaffected.
4. Severability. If any provision of these Terms is held to be invalid or unenforceable, such provision will be struck and will not affect the validity and enforceability of the remaining provisions.
5. Waivers. Fantasy Simmer’s failure to enforce any right or provision in these Terms will not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise permitted under law.
6. Notices. Unless specified otherwise, any notices or other communications to Users permitted or required under these Terms, will be in writing and given by Fantasy Simmer via email, Fantasy Simmer Platform notification, or messaging service.
7. Questions? If you have any questions about these Terms please email us.