Welcome, and thank you for your interest in Realm of Possibility, Inc. (“Realm,” “we,” or “us”) and our website at www.realm.fm, along with our related websites, networks, applications, mobile applications, and other services provided by us (collectively, the “Service”). These Terms of Service are a legally binding contract between you and Realm regarding your use of the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY:
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 17, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND REALM ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 17.)
1. Realm Service Overview
Realm provides immersive electronic books (each an “E-Book”) and audio stories, podcasts, radio dramas and other audio content (collectively, “Audio Stories”) via our website and mobile app. While some content is available in either E-Book or Audio Story format, a user can enjoy some of our content in both reading and listening formats, which a user can seamlessly switch between without losing a user’s progress. Our stories are in speculative genres (including sci-fi, fantasy and mystery) and are published on the Service in serialized installments.
You must be at least 18 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (1) you are at least 18 years old; (2) you have not previously been suspended or removed from the Service; and (3) your registration and use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
3. Accounts and Registration
To access many features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, phone number, or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up to date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at [email protected]
4. General Payment Terms
Certain features of the Service may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. Dollars and are non-refundable.
4.1 Price. Realm reserves the right to determine pricing for the Service. Realm will make reasonable efforts to keep pricing information published on the website up to date. We encourage you to check our website periodically for current pricing information. Realm may change the fees for any feature of the Service, including additional fees or charges, if Realm gives you advance notice of changes before they apply; provided, however, that Realm may change the pricing of individual items of E-Books and Audio Stories available for purchase via the Service, from time to time, in our sole discretion, and without advance notice to you. Realm, at its sole discretion, may make promotional offers with different features and different pricing to any of Realm’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
4.2 Authorization. You authorize Realm, Apple (defined below), or Google (or any of Realm, Apple or Google’s third-party payment processors and service providers), as applicable, to charge all sums for the orders that you make and any level of Service you select as described in these Terms or published by Realm, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, Realm or its third-party payment processors may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
4.3 Purchases. The Service may make certain E-Books and Audio Stories, and episodes (“Episodes”) and series (“Series”) of E-Books and Audio Stories, available for purchase via our website or in-app purchases via our mobile applications. The purchase price for each E-Book, Audio Story, Episode or Series will be identified alongside such item on our website or in the mobile application, as applicable. Where you purchase content through the website or another channel controlled by Realm, your payments are processed by our third-party payment processors. Where you purchase content through our iOS or Android mobile applications or through a third party’s consumer electronic devices, your payments are processed by Apple or Google, or the manufacturer of the consumer electronic device (or any of their third-party payment processors), as applicable. We accept various forms of payment, as specified during sign-up. We do not accept cash or checks.
(a) Overview. You may purchase a subscription (“Subscription”) to the Service through our website or through such other channels as Realm may make available from time to time in its sole discretion. If you would like to activate a Subscription, you must log in to your account on the website and choose to become a subscriber (“Subscriber”). Once you have activated the Subscription, your account and mobile application should update so that you are granted access to certain content made available to Subscribers. Subscribers will be provided unlimited access to certain Realm exclusive and original E-Books and Audio Stories and will have time-limited access to a rotating selection of titles provided to Realm by third-party publishers (each a “Third-Party Story”). If a Subscriber begins but does not complete a Third-Party Story during the time-limited access period, the Subscriber will have the option to purchase such Third-Party Story at a discounted price after such Third-Party Story is no longer available for time-limited access via a Subscription. The discounted price will take into account the amount of the Third-Party Story that the Subscriber consumed during the time-limited access period.
(b) Recurring Payments. The Service may include automatically recurring payments for periodic charges in connection with a Subscription. If you activate a Subscription, you authorize Realm or its third-party payment processors to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, all accrued sums on or before the payment due date for the accrued sums. The “Subscription Billing Date” is the date when you purchase your first Subscription to the Service. For information on the “Subscription Fee” and the content Realm makes available through a Subscription, please see our membership page: www.realm.fm/unlimited. Your account will be charged automatically on the Subscription Billing Date all applicable fees and taxes for the next Subscription period. The Subscription will continue unless and until you cancel your Subscription or we terminate it. You must cancel your Subscription before it renews in order to avoid billing of the next periodic Subscription Fee to your account. Realm or its third-party payment processors will bill the periodic Subscription Fee to the payment method you provide to us during registration (or to a different payment method if you change your payment information).
(c) Trials. From time to time, Realm or others on our behalf may offer Subscription trials for a specified period free-of-charge or at a reduced rate (“Trial”). The length of any Trial may vary. Trials are for new and certain former Subscribers only. Realm reserves the right, at our discretion, to determine your eligibility for a Trial, and, subject to applicable laws, to withdraw or to modify a Trial at any time without prior notice and with no liability, to the greatest extent permitted under the law. We will require you to provide your payment details at the start of the Trial. The first day following the end of your Trial or, if you are not eligible for a Trial, then the day you purchase your access to a Subscription, is your Subscription Billing Date. You will be automatically charged for the applicable Subscription on the first day following the end of the Trial, on a recurring monthly or annual basis, unless you cancel the applicable Subscription before the end of the Trial.
(d) Subscription Fee Changes. To the fullest extent permitted under applicable law, we reserve the right to change the Subscription Fee at any time in our sole discretion. If we change the Subscription Fee, then we will provide you notice of the proposed change at least 30 days before the change is to take effect. Subscription Fee changes will take effect at the start of the next renewal of your Subscription following the date of the price change. You accept the new price by continuing to use the Service after the price change takes effect. If you do not accept the price change, then you may unsubscribe from the Service prior to the price change going into effect.
(e) Recurring Charges. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, UPON EXPIRATION OF YOUR SUBSCRIPTION, YOU WILL AUTOMATICALLY BE BILLED FOR THE SAME SUBSCRIPTION PLAN (OR THE MOST SIMILAR SUBSCRIPTION PLAN, IF YOUR PRIOR PLAN IS NO LONGER AVAILABLE) AT THE THEN-CURRENT SUBSCRIPTION FEE PLUS ANY TAXES. YOUR PAYMENT METHOD WILL BE CHARGED THE SUBSCRIPTION FEE FOR THE RENEWAL TERM OF YOUR SUBSCRIPTION ON YOUR BILLING DATE, BASED ON THE TYPE OF SUBSCRIPTION (E.G., ON A PARTICULAR DATE EACH MONTH FOR A MONTHLY SUBSCRIPTION). IF, HOWEVER, THE BILLING DATE OF YOUR SUBSCRIPTION IS ON THE 29TH, 30TH OR 31ST DAY OF A MONTH, AND YOUR BILLING DATE DOES NOT EXIST IN A PARTICULAR MONTH BECAUSE THERE ARE FEWER DAYS IN THE MONTH PAYMENT IS DUE, THEN YOUR BILLING DATE FOR THAT PARTICULAR RENEWAL WILL BE ON THE LAST DAY OF THE MONTH IN WHICH YOUR BILLING DATE WOULD OTHERWISE OCCUR.
(f) Cancellation and Refunds. YOU MAY CANCEL YOUR SUBSCRIPTION TO THE SERVICE AT ANY TIME BY FOLLOWING THE PROCESS DESCRIBED HERE. IF YOU CANCEL YOUR SUBSCRIPTION, THEN YOU WILL HAVE ACCESS TO THE SUBSCRIPTION UNTIL THE DATE THAT WOULD HAVE BEEN YOUR NEXT BILLING DATE, AFTER WHICH YOUR SUBSCRIPTION TO THE SERVICE AND THE CONTENT AVAILABLE THROUGH THE SUBSCRIPTION WILL END. IF YOU SUBSCRIBED THROUGH THE WEBSITE, THEN SUBJECT TO SECTION 4.4(g) BELOW, WE WILL NOT REFUND ANY FEES PAID FOR YOUR CURRENT SUBSCRIPTION PERIOD.
(g) Cooling-off Period. If you reside in the European Union (or any other jurisdiction that requires a cooling-off period following the purchase of a Subscription) and register for a Subscription, then you may cancel the Subscription for any reason or no reason and receive a full refund of your Subscription Fee within 14 days of your payment method being charged (“Cooling-off Period”), unless you have previously accessed the Subscription (i.e., you receive a transmission through the Service). If you have accessed the Service following the date of charge of your payment method pursuant to your Subscription at any time during the Cooling-off Period, however, then we will not refund any Subscription Fees already paid to us.
4.5 Serial of the Week. From time to time, Realmmay provide a user with a code that allows a user to access an item of content that Realm selects in its sole discretion free of charge to the user for a limited period of time (each item of content, the “Serial of the Week”). If you access the Serial of the Week, then Realm will make the Serial of the Week available to you on a trial basis and free of charge until the end of the limited trial period (“Serial of the Week Trial Period”), as identified when you use the code to access the Serial of the Week. Once the Serial of the Week Trial Period ends, you will no longer be able to access the Serial of the Week unless you purchase continued access to such item of content. Additional trial terms and conditions may appear on the Serial of the Week access web page. Any such additional terms and conditions are incorporated into these Terms by this reference.
4.6 Content Availability. Realm may add or remove from the Service E-Books, Audio Stories, Episodes, Series, Serial of the Week content and other content for purchase or access via a Subscription to the Service at any time in our sole discretion and based on the availability of such content from the licensors of Realm. Realm makes no guarantee as to the availability of any specific content via the Service and will have no liability to you for the removal of any E-Books, Audio Stories, Episodes, Series or Serial of the Week content from the Service. Some of the content available on the Service may be offered in limited territories, and Realm may use geo-filtering technology to restrict access outside of those territories.
4.7 Delinquent Accounts. Realm may suspend or terminate access to the Service, including fee-based portions of the Service, for any account for which any amount is due but unpaid. In addition to the amount due for the Service, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees.
5.1 Limited License. Subject to your complete and ongoing compliance with these Terms, Realm grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) install and use one object code copy of any mobile application associated with the Service obtained from a legitimate marketplace (whether installed by you or pre-installed on your mobile device by the device manufacturer) on a mobile device that you own or control; and (b) access and use the Service.
5.2 License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not, and may not attempt to: (a) reproduce, distribute, publicly display, or publicly perform the Service or the Materials (defined below); (b) make modifications to the Service or the Materials; (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism for the Service or Materials; (d) analyze, decompile, disassemble, reverse assemble, reverse engineer, or otherwise examine, or attempt to derive the source code of the Service; (e) sell, resell, license, rent, lease, timeshare, or act as a service bureau or provide subscription services for the Service or any part thereof (including any search results obtained through use of the Service); or (f) alter, copy, create any derivative works of, edit, enhance, modify, reproduce, or make any other use of the Service, Materials, or any other content provided by Realm or its users on or through the Service, including any data concerning other users of the Service, except as expressly authorized by Realm in these Terms. If you are prohibited under applicable law from using the Service, you may not use it.
5.3 Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant Realm an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
6. Ownership; Proprietary Rights
The Service is owned and operated by Realm. The text, E-Books and the literary works embodied therein, audio and audiovisual content, logos, Audio Stories and the literary works embodied therein, images, visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (all of the foregoing, “Materials”) provided by Realm are protected by intellectual property and other laws. All Materials included in the Service are the property of Realm or its third-party licensors. Except as expressly authorized by Realm or applicable law, you may not make use of the Materials. Realm reserves all rights to the Materials not granted expressly in these Terms.
7. Third-Party Terms
7.1 Third-Party Services and Linked Websites. Realm may provide tools through the Service that enable you to export information, including User Content (defined below), to third-party services, including through features that allow you to link your account on Realm with an account on the third-party service, such as Facebook, Instagram, or Twitter, or through our implementation of third-party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that Realm may transfer that information to the applicable third-party service. Third-party services are not under Realm’s control, and, to the fullest extent permitted by law, Realm is not responsible for any third-party service’s use of your exported information. The Service may also contain links to third-party websites. Linked websites are not under Realm’s control, and Realm is not responsible for their content.
7.2 Third-Party Software. The Service may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.
8. User Content
8.1 User Content Generally. “User Content” means any content that you post, publish, submit, or upload (“Post”) to the Service, including blog posts, comments, data, images, messages, photos, reviews, text, video, and other types of works. Certain features of the Service may permit users to Post User Content to the Service. You retain any copyright and other proprietary rights that you may hold in the User Content that you Post to the Service.
8.2 Limited License Grant to Realm. By providing User Content to or via the Service, you grant Realm a worldwide, non-exclusive, irrevocable (subject to all applicable laws), royalty-free, fully paid right and license (with the right to sublicense, through multiple tiers) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed.
8.3 Limited License Grant to Other Users. By providing User Content to or via the Service to other users of the Service, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service.
8.4 User Content Representations and Warranties. Realm disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm, represent, and warrant to us that:
(a) you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Realm and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by Realm, the Service, and these Terms;
(b) your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Realm to violate any law or regulation; and
(c) your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
8.5 User Content Disclaimer. We are under no obligation to edit, filter, or control User Content that you or other users Post to the Service, and will not be in any way responsible or liable for User Content. Realm may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Realm with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Realm does not permit copyright-infringing activities on the Service.
9.1 Push Notifications. When you install our app on your mobile device, you agree to receive push notifications, which are messages an app sends you on your mobile device when the app is not on. You can turn off notifications by visiting your mobile device’s “settings” page.
9.2 Email. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
10. Prohibited Conduct
BY USING THE SERVICE, YOU AGREE NOT TO:
10.1 Post content that exploits children or minors or participate in any group that exploits children or minors;
10.2 Post explicit or obscene language or solicit or Post pornographic or sexually explicit images (actual or simulated);
10.3 Post or participate in racially, ethnically, or otherwise offensive language;
10.4 Post content that depicts cruelty to animals;
10.5 use the Service for any illegal purpose or in violation of any local, state, national, or international law;
10.6 abuse, defame, demean, embarrass, harass, stalk, threaten or otherwise harm or violate the legal rights (including, without limitation, rights of privacy and publicity) of any other user of the Service;
10.7 violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
10.8 interfere with security-related features of the Service, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
10.9 interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (a) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Service; (c) soliciting another user’s password or other account information; (d) collecting personal information about another user or third party without consent; (e) Posting information that makes available or includes another individual’s personally identifiable information (for example, their real name, e-mail address, address, employer or school); or (f) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
10.10 attempt to access or search the Service or content available on the Service or download content from the Service through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools and the like) other than the software and/or search agents provided by Realm or other generally available third-party web browsers;
10.11 perform any fraudulent activity, including impersonating Realm or any other person or entity, claiming a false affiliation, or accessing any other Service account without permission;
10.12 sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 6) or any right or ability to view, access, or use any Materials; or
10.13 attempt to do any of the acts described in this Section 10 or assist or permit any person in engaging in any of the acts described in this Section 10.
11. Copyright and Intellectual Property Protection
11.1 DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act (“DMCA”) applicable to Internet service providers (17 U.S.C. § 512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:
Realm of Possibility, Inc.
Attn: Copyright Department (Copyright Notification)
115 Broadway Floor 5, New York, NY 10006
Email: [email protected]
11.2 Content of Notification. Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
(a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
(b) a description of the copyrighted work or other intellectual property that you claim has been infringed;
(c) a description of the material that you claim is infringing and where it is located on the Service;
(d) your address, telephone number, and email address;
(e) a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright or intellectual property owner, its agent, or the law; and
(f) a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
11.3 Repeat Infringers. Realm will promptly terminate the accounts of users that are determined by Realm to be “repeat infringers.” A repeat infringer is a user who has been notified of infringing activity more than twice or has had User Content removed from the Service more than twice.
11.4 False Notifications of Claimed Infringement or Counter Notifications.
(a) The Copyright Act provides that: [a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (a) that material or activity is infringing, or (b) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [Realm] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it. 17 U.S.C. § 512(f).
(b) Realm reserves the right to seek damages from any party that submits a notification of claimed infringement or counter notification in violation of the law.
(c) For the avoidance of doubt, only notices submitted under the DMCA or the procedures set forth in this Section 11 should be sent to the Designated Agent at [email protected] or to the postal address identified above.
12. Modification of these Terms
We reserve the right to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Service. Material modifications are effective upon the earliest of your receipt of notice or acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 12, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
13. Term, Termination and Modification of the Service
13.1 Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 13.2.
13.2 Termination. If you violate any provision of these Terms, your authorization to access the Service automatically terminate. In addition, Realm may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice; provided that, if your access to the Service is terminated for reasons other than a breach of these Terms, Realm will refund to you a pro rata portion of any fees that you have paid for access to the Service based upon the amount of time for which your access was not permitted to continue. No other amounts will be due to you for a termination of these Terms by Realm. You may terminate your account and these Terms at any time by contacting customer service at [email protected]
13.3 Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must pay Realm any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 5.3, 6, 8.2, 13.3, 14, 15, 16, 17 and 18 will survive.
13.4 Modification of the Service. Realm reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service or access to any Materials made available via the Service), temporarily or permanently, without notice to you. Except as otherwise provided by these Terms or applicable law, Realm will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service or to any Materials.
To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify Realm, its affiliates and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (together, the “Realm Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including attorneys’ fees and costs, arising out of or connected with: (1) your unauthorized use of, or misuse of, the Service; (2) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (3) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (4) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
15. Disclaimers; No Warranties
15.1 THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. REALM DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (a) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (b) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. REALM DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE APPROPRIATE, NON-OFFENSIVE, SUITABLE FOR ALL AGES, UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND REALM DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
15.2 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR REALM ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE REALM ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE, INCLUDING, BUT NOT LIMITED TO, FROM ANY MATERIALS AVAILABLE ON OR THROUGH THE SERVICE, AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
15.3 THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Realm does not disclaim any warranty or other right that Realm is prohibited from disclaiming under applicable law.
16. Limitation of Liability
16.1 TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE REALM ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY REALM ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
16.2 EXCEPT AS PROVIDED IN SECTION 17.5 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE REALM ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (a) THE AMOUNT YOU HAVE PAID TO REALM FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (b) US$100.
16.3 EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 16 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
17. Dispute Resolution and Arbitration
17.1 Generally. In the interest of resolving disputes between you and Realm in the most expedient and cost effective manner, and except as described in Section 17.2 and 17.3, you and Realm agree that every dispute arising in connection with these Terms 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 relating to any aspect of these Terms, 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 these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND REALM ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
17.2 Exceptions. Despite the provisions of Section 17.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
17.3 Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 17 within 30 days after the date that you agree to these Terms by sending a letter to Realm Publishing, Inc., Attention: Legal Department – Arbitration Opt-Out, 115 Broadway, Floor 5, New York, NY 10006 that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Realm receives your Opt-Out Notice, this Section 17 will be void and any action arising out of these Terms will be resolved as set forth in Section 18.2. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
17.4 Arbitrator. Any arbitration between you and Realm will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Realm. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
17.5 Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Realm’s address for Notice is: Realm of Possibility, Inc., 115 Broadway, Floor 5, New York, NY 10006. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) 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 of Arbitration is received, you or Realm may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Realm must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Realm in settlement of the dispute prior to the award, Realm will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) US$10,000.
17.6 Fees. If you commence arbitration in accordance with these Terms, Realm will reimburse you for your payment of the filing fee, unless your claim is for more than US$10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in New York County, New York, but if the claim is for US$10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA 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 (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Realm for all monies previously disbursed by us that are otherwise your obligation to pay under the AAA 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. 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.
17.7 No Class Actions. YOU AND REALM 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 Realm 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.
17.8 Modifications to this Arbitration Provision. If Realm makes any future change to this arbitration provision, other than a change to Realm’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Realm’s address for Notice of Arbitration, in which case your account with Realm will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
17.9 Enforceability. If Section 17.7 or the entirety of this Section 17 is found to be unenforceable, or if Realm receives an Opt-Out Notice from you, then the entirety of this Section 17 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 18.2 will govern any action arising out of or related to these Terms.
18.2 Governing Law. These Terms are governed by the laws of the State of New York without regard to conflict of law principles. You and Realm submit to the personal and exclusive jurisdiction of the state courts and federal courts located within New York County, New York for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in New York, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
18.4 Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
18.6 Contact Information. The Service is offered by Realm of Possibility, Inc., located at 115 Broadway, Floor 5, New York, NY 10006. You may contact us by sending correspondence to that address or by emailing us at [email protected]
18.7 Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
18.8 No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
18.9 International Use. The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
19. Notice Regarding Apple
This Section 19 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and Realm only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (1) product liability claims; (2) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (3) 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 the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Service. Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms. You hereby represent and warrant that: (a) 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 (b) you are not listed on any U.S. Government list of prohibited or restricted parties.