Last updated: October 4, 2023
SECTION 1: INTRODUCTION AND OVERVIEW
THESE TERMS CONTAIN AN ASSUMPTION OF RISK, RELEASE AND INDEMNITY AGREEMENT (SECTION 16) WHICH WAIVES AND RELEASES ANY CLAIMS FOR INJURY BY YOU OR YOUR GUESTS WHILE USING THE SERVICES, AND A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER (SECTION 20) THAT IMPACT YOUR RIGHTS ABOUT HOW TO RESOLVE DISPUTES. PLEASE READ THESE PROVISIONS CAREFULLY.
We offer the Services, including all information, tools, and services available herein to you, conditioned upon your acceptance of and strict adherence to these Terms. BY ACCESSING OR USING ANY PART OF THE SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS. If you do not agree to all the terms and conditions of these Terms, do not access or use the Services.
In some instances, both these Terms and separate terms elsewhere on the Services will apply to your use of the Services (“Additional Terms”). To the extent there is a conflict between these Terms and any applicable Additional Terms, the Additional Terms will control unless they expressly state otherwise.
We control and operate the Services from the U.S. We make no representation that the Services are appropriate or available for use beyond the U.S. Software related to or made available by the Services may be subject to export controls of the U.S., and, except as authorized by law, you agree and warrant not to export or re-export the software to any country, or any person, entity, or end-user subject to U.S. export controls or sanctions.
SECTION 2: USE OF THE SERVICES AND CONTENT
The Services contain: (i) materials and other items relating to Nelda Studios and its products and services, and similar items from our licensors and other third parties, including all layout, information, databases, articles, posts, text, data, files, images, scripts, designs, graphics, instructions, illustrations, photographs, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Services, and the compilation, assembly, and arrangement of the materials of the Services and any and all copyrightable material; (ii) trademarks, logos, trade names, trade dress, service marks, and trade identities of various parties, including those of Nelda Studios; and (iii) other forms of intellectual property (collectively, “Content”). All rights, title, and interest in and to the Services and the Content are the property of Nelda Studios or our licensors or certain other third parties and is protected by U.S. and international copyright, trademark, trade dress, patent, and/or other intellectual property and unfair competition rights and laws to the fullest extent possible.
Subject to your strict compliance with these Terms and any applicable Additional Terms, we grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to access, enter, attend, download, display, view, use, consume, and/or otherwise exploit the Services and the Content in each case for your personal, non-commercial use only. This limited license (i) does not give you any ownership of, or any other intellectual property interest in, any Content, and (ii) may be suspended or terminated for any reason, in our sole discretion, and without advance notice or liability. To protect all parties’ intellectual property rights, any unauthorized use of the Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability. It is your responsibility to ensure your equipment (computer, laptop, netbook, tablet, or other mobile device) meets all the necessary technical specifications to enable you to access and use the Services, if any.
We reserve the right to refuse access to the Services and/or Content to anyone for any reason at any time. We may suspend or terminate the availability of the Services and Content, in whole or in part, to you for any reason, in our sole discretion, and without advance notice or liability. Upon suspension or termination of your access to the Services or notice from us, all rights granted to you under these Terms or any applicable Additional Terms will cease immediately, and you agree to discontinue using the Services and Content immediately.
Reservation of Rights
All rights not expressly granted to you are reserved by Nelda Studios, its licensors, and other third parties. Under any legal theory, no right or license may be construed by implication, estoppel, industry custom, or otherwise. Any unauthorized use of the Content or Services for any purpose is prohibited.
SECTION 3: RESTRICTIONS
You may only use the online Services if you are at least thirteen (13) years old. Minors under thirteen (13) years old may visit a Nelda Studios exhibition, provided they are accompanied by a parent or legal guardian.
In addition to other restrictions in these Terms, you are prohibited from using the Services, including, without limitation, the Content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial, state, or local regulations, rules, laws, or ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Services or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; (k) to interfere with or circumvent the security features of the Services or any related website, other websites, or the Internet or use the Services in any manner that could disable, overburden, damage, or impair the Services or interfere with any other party’s use of the Services, including their ability to engage in real time activities through the Services; (l) use the Services and/or Content for commercial purposes; (m) harvest any information from the Services or Content; (n) reverse engineer or modify the Services or Content; (o) interfere with the proper operation of or any security measure used by the Services or Content; (p) use the Services or Content in a manner that suggests an unauthorized association or is beyond the scope of the limited license granted to you; (q) use any robot, spider, or other automatic device, process, or means to access Services for any purpose, including monitoring or copying any of the Content or other materials available through the Services; (r) to impersonate or attempt to impersonate Nelda Studios, a Nelda Studios employee, another user, or any other person or entity (including, without limitation, by using email addresses or screen names associated with any of the foregoing); or (s) otherwise violate these Terms or any applicable Additional Terms. We reserve the right to terminate your use of the Services or any related website for violating any prohibited uses.
SECTION 4: TICKETS, REFUNDS AND EXCHANGES
Tickets purchased in connection with the Services are valid only on the selected date and time for admission to the exhibition and/or event purchased.
Tickets purchased in connection with the Services are refundable up to 24 hours before their scheduled visit. To request a ticket refund, email email@example.com
Guests may reschedule ticket dates and times up to 24 hours before their scheduled visit. There is no change fee to make those changes, but customers are responsible for the difference in base ticket price if they change to a date or time with a higher base ticket price. No refund or credit is given for changes from dates with higher costs to dates with lower prices. We do not offer exchanges in the form of a gift certificate or credit. We do not guarantee the availability of exchanges. We reserve the right to refuse to provide exchanges at our sole discretion.
SECTION 5: PRODUCTS, REFUNDS AND EXCHANGES
In providing the Services, we may make products available to you for purchase. We reserve the right but are not obligated, to limit the sales of Nelda Studios products to any person, geographic region, or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of our products. All descriptions of products or product pricing are subject to change at any time without notice, at our sole discretion. We reserve the right to discontinue any product at any time. Any offer for any product made through the Services is void where prohibited. We do not warrant that the quality of any Nelda Studios products purchased or obtained by you will meet your expectations or that any errors will be corrected.
In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made.
You agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms or any sale of goods carried out as a result of your use of the Services.
All prices and availability of products are subject to change without notice. We make every effort to provide you with the most accurate information on pricing and availability.
In addition, some of the products may be incorrectly priced. In the event a product is listed at an incorrect price, we have the right to refuse or cancel any orders placed for the product listed at the incorrect price.
Merchandise Return Policy
Returns with a receipt must be made within thirty (30) days of purchase. Returns and exchanges for an in-person purchase must be made in person. All items must be returned in original condition with tags.
SECTION 6: SUBMISSIONS, COMMENTS AND FEEDBACK
If at our request you send certain specific submissions or without a request from us you send creative ideas, suggestions, proposals, plans, or other materials, whether online, by email, by postal mail, or otherwise (collectively, “Submissions”), you grant us a non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, transferable and cost-free right and license to host, store, use, display, reproduce, modify, adapt, edit, combine with other materials, publish, distribute, create derivative works from, promote, exhibit, broadcast, syndicate, sublicense (including, without limitation, to third party media channels, platforms, and distributors), publicly perform, publicly display, and otherwise use and exploit in any manner whatsoever, or grant third parties the right to do any of the foregoing, all or any portion of your Submissions, for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. You further irrevocably grant us the right, but not the obligation, to use your name, image, likeness, picture, avatar, social media handle, biographical information, or other indicia in connection with your Submissions. You also agree to waive any right of approval for our use of the rights granted herein and agree to waive any moral rights that you may have in any Submissions, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights in a manner that interferes with any exercise of the granted rights.
You understand that you will not receive any fees, sums, consideration, or remuneration for any rights granted herein. Our receipt of your Submissions is not an admission of their novelty, priority, or originality, and it does not impair our right to existing or future intellectual property rights relating to your Submissions. You waive any and all rights and claims in connection with our consideration, use, or development of any product, content, or other materials similar or identical to your Submission now or in the future.
You agree that your Submissions will not violate any third party’s rights, including copyright, trademark, privacy, personality, or other personal or proprietary right. You further agree that your Submissions will not contain libelous or otherwise unlawful, abusive, or obscene material or contain any computer virus or other malware that could in any way affect the operation of the Services or any related website. You may not use a false e-mail address, pretend to be someone other than yourself, or otherwise mislead us or third parties regarding the origin of any Submissions. You are solely responsible for any Submissions you make and their accuracy. We take no responsibility and assume no liability for any comments or Submissions provided by you or any third party.
We have no obligation to pay royalties to any third party, including without limitation a sound recording copyright owner (e.g., a record label), a musical work copyright owner (e.g., a music publisher), a PRO (e.g., ASCAP, BMI, SESAC, etc.), a sound recording PRO, any unions or guilds, or other third parties.
You understand that your Submissions (except for credit card information) may be transferred unencrypted and involve (a) transmissions over various networks and (b) changes to conform and adapt to the technical requirements of connecting networks or devices. Credit card information is always encrypted during transfer over networks.
SECTION 7: ACCOUNTS
Certain Services features may require creating an account and becoming a registered user. You must provide us with accurate, complete, and up-to-date information for your account, and you agree to update such information, as needed, to keep it accurate, complete, and up to date. If you do not, we may suspend or terminate your account. We reserve the right to initiate forfeiture of any username for any reason or to deactivate any log-on ID at any time if, in our opinion, you fail to comply with any of the provisions of these Terms or if any details provided are proved or suspected to be false.
You are responsible for safeguarding the password or credentials you use to access the Services and for any activities or actions under your account, whether or not you know them. We encourage you to use “strong” passwords (passwords that use a combination of upper- and lower-case letters, numbers, and symbols) with your account. We are not liable for any loss or damage arising from your failure to comply with the above requirements. If your account is hacked or any third parties use your account, you should immediately notify us and follow our instructions. We may restrict usage, terminate, and/or delete any account at any time in our sole discretion.
You agree to provide current, complete, and accurate purchase and account information for all purchases using our Services. You agree to promptly update your account and other information, including your email address, credit card numbers, and expiration dates, so we can complete your transactions and contact you as needed.
SECTION 8: SWEEPSTAKES, CONTESTS, AND PROMOTIONS
A separate set of rules or terms and conditions will govern any Nelda Studios-sponsored sweepstakes, contests, or other promotions. However, for specific promotions, the following general restrictions in this paragraph apply absent any supplemental official rules or conditions or any contrary terms in the additional official rules or requirements for the promotion. We may disqualify late, misdirected, incomplete, corrupted, lost, illegible, or invalid entries. Use of automated entries, votes, or other programs is prohibited, and all such entries (or votes) will be disqualified. We reserve the right to modify, suspend, cancel, or terminate a promotion, extend and resume the entry period, or disqualify any participant or entry, at any time, for any or no reason, without giving advance notice. We may do so if we cannot guarantee the promotion will be carried out fairly or correctly for technical, legal, or other reasons or if we suspect that any person has manipulated entries or results, provided false information, or acted unethically. If we cancel or terminate a promotion, prizes may be awarded as provided in that promotion’s official rules. The Services may contain specific contest or sweepstake-based mechanisms not available in all jurisdictions.
SECTION 9: THIRD-PARTY SERVICES
We may provide you access to third-party tools, content, products, or services over which we neither monitor nor have any control nor input.
You acknowledge and agree that we provide access to such third-party content “as is” and “as available” without any warranties, representations, or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of such third-party content.
Any use by you of third-party content offered through the Services is entirely at your own risk and discretion, and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).
Third-party links on this site may direct you to third-party websites not affiliated with Nelda Studios. We are not responsible for examining or evaluating the content or accuracy of, and we do not warrant it. We will not have any liability or responsibility for any third-party materials or websites or any other materials, products, or services of third parties available through or at such third-party links.
We are not liable for any harm or damages related to purchasing or using goods, services, resources, content, or other transactions connected with any third-party websites. Please review the third party’s policies and practices carefully and ensure you understand them before engaging in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third party.
SECTION 10: ADVERTISEMENTS
The Services may include advertisements, which may be targeted based on the Content, the Services, queries made through the Services, or other information. The types and extent of advertising on the Services are subject to change. In consideration for us granting you access to and use of the Services, you agree that Nelda Studios and its affiliates, third-party providers, and partners may place such advertising on the Services or in connection with the display of Content or information from the Services, whether submitted by you or others unless otherwise provided by law.
SECTION 11: DMCA/COPYRIGHT POLICY
Nelda Studios responds to copyright notifications submitted under the Digital Millennium Copyright Act, 17 U.S.C. § 512 (“DMCA”). To submit a notice of claimed copyright infringement under U.S. law, provide our designated agent with the following written information:
- A physical or electronic signature of the copyright owner or a person authorized to act on their behalf;
- Identification of the copyrighted work claimed to have been infringed;
- Identification of the infringing material and information reasonably sufficient to permit us to locate that material;
- Your contact information, including your address, telephone number, and e-mail address;
- A statement that you have a good faith belief that the use of the material in the manner asserted is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
You can obtain further information from the Copyright Office’s online directory at www.dmca.copyright.gov/osp.
We will respond to notifications of claimed copyright infringement by the DMCA.
If you believe that your material has been removed in error in response to a copyright notification, you may submit a counter-notification to our designated agent with the following written information:
- A physical or electronic signature;
- Identification of the material that has been removed or to which access has been restricted;
- the location at which the material appeared before it was removed or access to it was disabled;
- A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be released or disabled; and
- Your name, address, and telephone number, and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which the address is located, or if your address is outside of the U.S., for any judicial district in which Nelda Studios may be found, and that you will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.
We will respond to counter notifications by the DMCA.
SECTION 12: COMMUNICATIONS
You can opt out of receiving certain promotional e-mails from us at any time by following the instructions provided in the e-mails to click on the unsubscribe link. Your opt-out will not affect non-promotional e-mails, such as those about your account, transactions, servicing, or our ongoing business relations.
SECTION 13: CUSTOMER SUPPORT
Contact us at firstname.lastname@example.org for questions about your use of the Services and/or these Terms. When you communicate with us electronically, you consent to receive communications from us electronically. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
SECTION 14: ERRORS, INACCURACIES, AND OMISSIONS
Occasionally, information on the Services may contain typographical errors, inaccuracies, or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times, and availability. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update information or cancel orders if any information on the Services or any related website is inaccurate without prior notice (including after you have submitted your order).
We undertake no obligation to update, amend, or clarify information on the Services or any related website, including pricing information, except as required by law. No specified update or refresh date applied on the Services or any related website should be taken to indicate that all information on the Services or any related website has been modified or updated.
SECTION 15: DISCLAIMERS
The Services, and any Content therein, are provided on an “as is” and “as available” basis. You expressly acknowledge and agree that the Services and the Content may contain audio-visual effects, strobe lights, or other materials that may affect your physical senses and/or physical condition and components that may require or cause physical interaction and/or physical exertion. We are not responsible for ensuring that the Services, including any Content therein, are accurate, complete, or current. Content is provided for general information only and should not be relied upon or used as the basis for making decisions. We do not warrant this information’s accuracy, completeness, or usefulness. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Services or anyone who may be informed of its contents. Any reliance on the Services, and any Content therein, is at your own risk. The information presented on or through the Services is made available solely for general information purposes.
The Services and Content therein may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the Services and any Content at any time, but we have no obligation to update any Services and/or Content. You agree that you are responsible for monitoring changes to our Services that may affect you.
This Services may include content provided by third parties, including materials provided by other users or third-party licensors. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content other than the content provided by Nelda Studios, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of Nelda Studios. We are not responsible or liable to you or any third party for the content or accuracy of any materials provided by any third parties.
We do not guarantee, represent, or warrant that your use of the Services will be uninterrupted, timely, secure, or error-free. You agree that from time to time, we may remove the Services and/or Content for indefinite periods of time or cancel the Services at any time without notice to you. \
SECTION 16: ASSUMPTION OF RISK, RELEASE, WAIVER, AND INDEMNITY AGREEMENT
The Services and the Content may contain audio-visual effects, strobe lights, or other features (e.g., ladders, tunnels, uneven floors) that may affect your physical senses and/or physical condition, such as dark spaces with stairs, low overhangs, tight spaces, flashing lights, theatrical fog effects, and exposed materials, which may result in disorientation, distraction, and other risks. Other components may require or cause physical interaction and/or physical exertion. These hazards are potentially dangerous and involve a risk of injury or death to you or your guests or the threat of property damage. It is essential that you and your guests use care and follow all instructions, rules, and directions of our staff when using the Services. It is also vital that you and your guests are physically fit and do not have any medical or other condition that could limit the ability to participate in and/or interact with the Services or that could or might cause injury as a result of participation in and/or interaction with the Services. You and your guests consent to medical and other treatment in the event of an emergency or other circumstances that require medical care or other treatment in the reasonable judgment of Nelda Studios or other medical personnel.
These hazards are an inherent part of the Services and in consideration of Nelda Studios permitting you to participate in and/or interact with the Services, you (FOR YOURSELF AND YOUR GUESTS) voluntarily agree to accept and assume any risks of injury, death, and/or damage associated in any way with participation in and/or interaction with the Services. You (FOR YOURSELF AND YOUR GUESTS) hereby fully and forever release Nelda Studios and its owners, affiliates, and employees from any and all claims for negligence, premises liability, injuries (including death), or damages that MAY BE sustained in connection with the Services, and waive any right to bring a claim against Nelda Studios and its owners, affiliates, and employees relating to the services.
In the event you, a guest of yours, or anyone else brings a claim on behalf of you or your guests (or on behalf of your or your guest’s estate) in violation of this assumption of risk, release, and waiver provisions, you agree to defend, indemnify and hold Nelda Studios and its owners, affiliates, and employees harmless from any such claims, lawsuits, or liabilities, including our attorney’s fees and expenses.
This assumption of risk, release, waiver, and indemnification agreement is binding on you, and anyone bringing a claim on your behalf (or on behalf of your estate) and is also binding on all guests using the Services (including guests for whom you have purchased an admission ticket). You are responsible for informing your guests of this assumption of risk, release, waiver, and indemnification agreement before allowing them to use the Services. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER THE ASSERTED LIABILITY OR DAMAGES ARE BASED ON CONTRACT, INDEMNIFICATION, TORT, STRICT LIABILITY, STATUTE, OR ANY OTHER LEGAL OR EQUITABLE THEORY.
TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COLLECTIVE LIABILITY OF NELDA STUDIOS AND ITS PARENT, SUBSIDIARIES, AND AFFILIATES, AND THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS, TO ANY PARTY (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE) EXCEED THE AMOUNT YOU HAVE PAID NELDA STUDIOS FOR THE APPLICABLE CONTENT, PRODUCT, OR SERVICE IN THE TWELVE MONTHS PRECEDING THE EVENT FROM WHICH THE LIABILITY AROSE.
NOTWITHSTANDING THE FOREGOING, THE DISCLAIMERS HEREIN DO NOT EXCLUDE ANY PRODUCT LIABILITY CLAIMS, STATUTORY CONSUMER RIGHTS, OR DAMAGES RESULTING FROM NELDA STUDIOS’S INTENTIONAL MISCONDUCT, RECKLESSNESS, FRAUD, OR GROSS NEGLIGENCE.
SECTION 17: INDEMNIFICATION
You agree to indemnify, defend and hold harmless Nelda Studios, our parent, affiliate, and subsidiary entities, and each of our and their respective partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your (i) your breach or alleged breach of these Terms; (ii) your Submissions; (iii) your misuse of the Services and/or Content; (iv) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental or quasi-governmental authorities; (v) your violation of the rights of any third party, including any intellectual property right, publicity, confidentiality, property or privacy right; (vi) your use of a third party product, service and/or website; or (vii) any misrepresentation made by you. Nelda Studios reserves the right to assume, at your expense, the exclusive defense and control of any matter subject to your indemnification. You agree to cooperate with Nelda Studios’ defense of any claim. You will not, in any event, settle any claim without the prior written consent of Nelda Studios.
SECTION 18: TERMINATION
These Terms are effective unless and until terminated by either you or us. You may terminate these Terms at any time by notifying us that you no longer wish to use our Services, or when you cease using the Services.
If, in our sole judgment, you fail, or we suspect that you have failed, to comply with any term or provision of these Terms, we also may terminate this agreement at any time without notice, and you will remain liable for all amounts due up to and including the date of termination; and/or accordingly may deny you access to the Services.
The provisions of these Terms and any applicable Additional Terms, which by their nature should survive termination of your use of the Services (or any part thereof), shall survive such termination.
SECTION 19: GOVERNING LAW
These Terms and any separate agreements whereby we provide you Services shall be governed by and construed in accordance with the laws of Texas without reference to its conflicts of laws principles.
SECTION 20: DISPUTE RESOLUTION
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
Agreement to Arbitrate
You and Nelda Studios agree that any dispute, claim, or controversy arising out of or relating to these Terms or the use of the Services (“Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court (a “Small Claims Action”) and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights (an “IP Protection Action”). The exclusive jurisdiction and venue of any IP Protection Action will be the state and federal courts located in the District of New Mexico and Nelda Studios, and you waive any objection to jurisdiction and venue in such courts and consent to their jurisdiction. You agree that you may bring arbitration claims only on your behalf and not on behalf of any other person or entity.
Unless you timely provide us with an Arbitration Opt-out Notice (as defined below in the subsection titled “Your Choices”), you acknowledge and agree that you and Nelda Studios are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless you and Nelda Studios agree in writing, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of any class or representative proceeding.
This clause does not limit either party’s ability to file an action in a court with jurisdiction to seek injunctive or other equitable relief for disputes relating to intellectual property or proprietary data or to enforce this dispute resolution clause, including your agreement not to assert claims related to the suspension or termination of another person’s account. In any such action, the court, rather than an arbitrator, must decide whether such a claim is arbitrable and must determine whether the party is entitled to the requested injunctive or other equitable relief.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer-Related Disputes (the “AAA Rules”) then in effect, except as modified by this Section 20. (The AAA Rules are available at https://www.adr.org/mediation or by calling the AAA at 1–800–778–7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form of Demand for Arbitration.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure
Unless you and Nelda Studios otherwise agree, the arbitration will be conducted in the state where you reside, with the option for you to participate telephonically to the extent the AAA Rules allow. If your claim does not exceed $10,000, then the arbitration will be conducted solely based on the documents you and Nelda Studios submit to the arbitrator unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, the AAA Rules will determine your right to a hearing. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions on which the arbitrator based its award. Judgment on the arbitration award may be entered in any court having jurisdiction over the arbitration award. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” subsection of these Terms as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration, you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law. Nelda Studios will not seek and hereby waives all rights it may have under applicable law to recover attorneys’ fees and expenses if it prevails in arbitration unless the arbitrator finds such arbitration to be frivolous under the standards of the Federal Rules of Civil Procedure 11(b) and in that case, Nelda Studios shall be entitled to recover attorneys’ fees and expenses in addition to any damages awarded to it.
If the arbitrator finds that your payment of the administrative and arbitrator fees (excluding any attorney’s fees) under this subsection burdens you, we agree to pay those fees for you (but not any attorney’s fees).
By rejecting any changes to these Terms, you agree that you will arbitrate any Dispute between you and Nelda Studios in accordance with the provisions of this Section 20 as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
If you do not want to settle Disputes by arbitration as described above, you will notify us by sending us written notice (including by email to email@example.com) telling us that you don’t want to use arbitration within thirty (30) days of the date on which you agreed to these Terms (such notice, an “Arbitration Opt-out Notice”). If you don’t provide us with an Arbitration Opt-out Notice within thirty (30) days, you will be deemed to have knowingly and intentionally waived your right to litigate any dispute except for a Small Claims Action and an IP Protection Action as stated above.
We reserve the right to investigate and prosecute any suspected breaches of these Terms or the Services. We may disclose any information as necessary to satisfy any law, regulation, legal process, or governmental request.
SECTION 21: WAIVER OF INJUNCTIVE OR OTHER EQUITABLE RELIEF
TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU AGREE THAT YOU WILL NOT BE PERMITTED TO OBTAIN AN INJUNCTION OR OTHER EQUITABLE RELIEF OF ANY KIND, SUCH AS ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, SUBMISSIONS, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY NELDA STUDIOS OR A LICENSOR OF NELDA STUDIOS.
SECTION 22: CHANGES TO TERMS AND SERVICES
You can review the most current version of the Terms at any time on Nelda Studios’ website.
We reserve the right to update, change, or replace any part of these Terms by posting updates and/or changes to our website (which constitutes notice to you). It is your responsibility to check the Nelda Studios website periodically for changes. Your continued use of or access to the website after posting any changes constitutes acceptance of those changes.
We may provide patches, updates, or upgrades to the Services that must be installed for you to continue to use the Services. Although we will use commercially reasonable efforts to notify you, we may update the Services remotely without notifying you, and you hereby consent to us applying patches, updates, and upgrades. You acknowledge that your use of the Services does not confer on you any interest, monetary or otherwise, in any aspect or feature of the Services, including but not limited to (where applicable) any rewards or Content (save for where it is your Submissions). You also acknowledge that any data, customization, or other data related to your use of the Services may cease to be available to you at any time without notice from us, including without limitation, after a patch, update, or upgrade is applied by us. We do not have any maintenance or support obligations concerning the Services.
SECTION 23: SEVERABILITY
If any provision of these Terms is determined to be unlawful, void, or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms, such determination shall not affect the validity and enforceability of any other remaining provisions.
SECTION 24: ENTIRE AGREEMENT
These Terms and any policies or operating rules posted by us on the Services or in respect to the Services constitute the entire agreement and understanding between you and us and govern your use of the Services, superseding any prior or contemporaneous agreements, communications, and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of these Terms).
The failure of Nelda Studios to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.
SECTION 25: ASSIGNMENT
Without our prior written consent, you may not assign, transfer, charge, or sub-contract all or any of your rights or obligations under these Terms, and any attempt to do so without that consent will be null and void. If restrictions on the transfer of the Services under these Terms are not enforceable under the law of your country, then this Agreement will be binding on any recipient of the Services. We may at any time assign, transfer, charge, or sub-contract all or any of its rights or obligations under these Terms.