The Blank App, Co. Terms of Service and End User License Agreement
Effective Date: January 23, 2024
ARBITRATION NOTICE: YOU AGREE THAT, AS SET FORTH IN SECTION 12 BELOW, DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION OR A TRIAL BY JURY. BELOW, WE EXPLAIN SOME EXCEPTIONS AND HOW YOU CAN OPT OUT OF ARBITRATION.
These Terms of Service and End User License Agreement (the “Agreement”) are a legal contract between you and The Blank App Co. d/b/a Blank. We refer to ourselves in this Agreement as “Blank,” “we,” “us,” and ”our.” This Agreement covers the terms and conditions by which we offer you access to use our apps, social games, products, software, documentation, websites, and other services made available for download or use (the “Services”).
By accessing or using our Services, you are entering into a binding agreement with Blank that includes: (a) this Agreement; (b) our Privacy Policy (“Privacy Policy”); and (c) any other terms, conditions, or policies linked to in this Agreement or our Privacy Policy. Therefore, please carefully review these documents. If you do not agree with the terms of these documents, you are not permitted to access, download, or otherwise use the Services. If there is a conflict between this Agreement and any other applicable terms or conditions covering a specific area of the Services, the other applicable terms and conditions shall control unless they expressly state otherwise.
Please read this Agreement carefully, and take particular care when reviewing these sections:
- Dispute Resolution and Arbitration Agreement. Please read the binding arbitration clause andclass action waiver in Section 12. It affects how disputes between you and us are resolved.You have a time-limited right to opt out of the binding individual arbitration requirement, asexplained below.
- Virtual Items. When you click to buy, obtain, earn, or are gifted Virtual Items (defined below), you don’t get any ownership rights in the Virtual Items; you get a license to access the Virtual Items. You cannot transfer Virtual Items to someone else, and you may only redeem Virtual Items for content made available through the Services (and generally it is app specific). Virtual Items have no monetary value. Please review our Refund Policy in Section 4. Other than a few exceptions, you lose the right to change your mind, cancel an order, or get a refund if you get immediate access to or download Virtual Items, games, apps, features, or other digital content or Services. Please understand that we cannot issue refunds for any transactions through Digital Storefronts (defined below) or any other third party marketplace, and you should carefully review their refund policy(ies), if any.
- Refund Policy. Please review our Refund Policy in Section 4. Other than a few exceptions, you lose the right to change your mind, cancel an order, or get a refund if you get immediate access to or download Virtual Items, games, or other digital content or Services. Please understand that we cannot issue refunds for any transactions through Digital Storefronts (defined below) or any other third party marketplace, and you should carefully review their refund policy(ies), if any.
- Acceptable Use Policy. We need your help to ensure that our social and online experiences are inclusive and respectful for all users. By accessing or using our Services, you agree to follow our Acceptable Use Policy which covers the code of conduct we expect all users to follow for both in-app behavior and certain out-of-app conduct in connection with the Services.
Your Use of the Services.
Age Restrictions. No parts of our Services are directed to persons under the age of 18. If you are under 18 (or under the legal age of adulthood in your state or country), ask your parent or guardian to review and explain this Agreement to you and to agree to this Agreement on your behalf; they should also supervise your use of the Services. If you are the parent or guardian of children under 18 (or under the legal age of adulthood in your state or country), you agree that you will be responsible for all uses of the Services by your child whether or not such uses were authorized by you. You are legally and financially responsible for all actions using or accessing the Services, including the transactions or other actions of anyone you allow to access the Services or your account.
- About This Agreement. We reserve the right to modify this Agreement and to modify, suspend, or discontinue the Services, in whole or in part, at any time. By indicating your acceptance of this Agreement you agree to be bound by the terms of this Agreement (including its dispute resolution terms), as well as our Privacy Policy. If we determine we need to amend this Agreement, we will endeavor to provide you advance notice of such changes to the Agreement through the Services or through other measures that we determine are appropriate. If you indicate your acceptance to such changes to the Agreement after being notified of them, you agree to be bound by the revised terms of this Agreement. If you do not accept the changes, you are not permitted to use the Services.
- Your Account. Some elements of the Services may require that you register an account. To create an account, you may be asked to provide your name, date of birth, country/region, and then provide an email address, cell phone number, a username, and a password. You may be required to link your account to, and sign into your account using, an account you maintain with Google or another Third Party Service (as defined below). You agree to provide only accurate, current, and complete information about you. You are entirely responsible for keeping your account username and password safe. You also agree not to sell, transfer, or share your account, username, or password, and you agree to notify us immediately if you suspect any unauthorized use of your account. We have the right to deny the creation of any account, for any reason, and we reserve the right to terminate any account that we determine violates this Agreement.
Limited License.
Your Personal, Non-Commercial Use. Subject to your continued compliance with this Agreement, we grant you a limited, non-exclusive, non-transferable, revocable license to use the Services for your personal, non-commercial enjoyment on your devices for use by only one person at a time. The Services, including the Content (defined below), are licensed, not sold. This license is personal to you only and doesn’t give you ownership rights in any features or Content in the Services.
- We Reserve All Rights to our IP. We, and our licensors, own and reserve all rights, title, and interest in and to the Services, including all information, text, data, files, code, scripts, designs, graphics, artwork, illustrations, photographs, sounds, music, titles, themes, objects, characters, names, dialogue, locations, stories, animation, concepts, audio-visual effects, virtual goods (including Virtual Items), interactive features, gameplay, game mechanics, methods of operation, and the compilation, assembly, and arrangement of the materials of the Services and any and all copyrightable material; trademarks, logos, trade names, trade dress, service marks, and trade identities of various parties, including ours; and other forms of intellectual property (all of the foregoing, collectively “Content”). The Services may include third-party code. Any third-party scripts or code, linked to or referenced from the Services, are licensed to you by the third parties that own such code, not by us.
-Restrictions. The limited license granted in this Agreement does not give you any right to and you may not sell, copy, loan, transfer, assign, lease, disassemble, decompile, decrypt, hack, derive source code from, reverse engineer, modify, create derivative works of, or otherwise exploit the Services (including the Content). The Services may be suspended or terminated for any reason, in our sole discretion, and without advance notice or liability. If we terminate your account, any license from us to you to use the Services or any Content ends immediately. Your unauthorized use of the Services and/or 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.
- Legal Effect. This license describes certain legal rights. You may have other rights under the laws of your state or country. This license doesn’t change your rights under the laws of your state or country if the laws of your state or country don’t permit it to do so.
- Virtual Items. Any virtual currency, goods, or effects such as coins, points, tokens, items, equipment, skins, boosts, power-ups, trophies, achievements, leaderboards, rankings, rewards, badges or other digital content (“Virtual Items”) made available, purchased, or earned through the Services are licensed under the terms of this Agreement and are not a sale or transfer of any rights in such Virtual Items. Virtual Items are only available to users in certain locations, and you may not purchase or use Virtual Items if you are not in an approved location. Virtual Items may only be redeemed for content made available through the Services, which is generally game-specific. Virtual Items have no value, and cannot be used outside of the Services, and may not be sold, transferred, or redeemed for real money or items of value. We have the right to modify, re-price, delete, move, remove, or suspend any Virtual Items at any time with or without notice to you and with no liability of any kind to you. We may limit the total amount of Virtual Items that may be purchased or used for any one game or that may be held in your account in the aggregate. Additionally, price and availability of Virtual Items are subject to change and information related to the Virtual Items may not be accurate or in real-time. All purchases of Virtual Items are final and under no circumstances will such purchases be refundable, transferable, or exchangeable. You agree that you have no ownership or other property interest in your account or any Virtual Items.
Payment Terms.
- Fees and Billing. Some aspects of the Services may require you to pay a fee. We may bill you (a) in advance; (b) at the time of purchase; (c) shortly after purchase; or (d) on a recurring basis for subscription Services. Also, we may charge you up to the amount you have approved, and we will notify you in advance of any change in the amount to be charged for recurring subscription Services.
- Payment. By completing a transaction through your account, you agree to pay for all charges to your account made by you or any third party (including unauthorized charges), and agree to provide accurate and complete payment information. You further agree that you are the authorized user of the card, PIN, key, account, or other payment method we may identify as acceptable associated with charges to your account. All transactions may be deemed to be governed by law and regulatory requirements applicable at the time the transaction was completed. We may suspend or cancel the Services if we do not receive an on time, full payment from you. Suspension or cancellation of the Services for non-payment could result in a loss of access to and use of your account and any Content. You agree that you will not use IP proxying or other methods to disguise the place of your residence, whether to circumvent geographical restrictions on game content, to purchase at pricing not applicable to your geography, or for any other purpose. If you do this, we may terminate your access to your account and the Services.
- In-App Purchases. When you purchase Virtual Items or other products or features in our games on any Digital Storefront (defined below), Blank is not a party to the transaction and your purchase will be governed by the Digital Storefront’s payment terms and conditions. Please review the applicable terms of service for additional information. You can also contact our support team as described below for questions concerning refunds of purchases. For such transactions, your order will represent an offer to us to obtain a limited license and right to use the relevant Service(s) or Virtual Item(s) that will be accepted by us when we accept payment. At that point, the limited license begins.
- Recurring Payments. When you purchase the Services on a subscription basis, you agree that you are authorizing recurring payments, and payments will be made to us by the method and at the recurring intervals you have agreed to, until the subscription for that Service is terminated by you or by us. You must cancel your subscription before the next billing date to stop being charged for the applicable Services. We will provide you with instructions on how you may cancel the subscription. By authorizing recurring payments, you are authorizing us to store your payment instrument and to process such payments as either electronic debits or fund transfers, or as electronic drafts from your designated account (for ACH or similar payments), or as charges to your designated account (for credit card or similar payments) (collectively, “Electronic Payments”). Subscription fees are generally charged in advance of the applicable subscription period. If any payment is returned unpaid or if any credit card or similar transaction is rejected or denied, we reserve the right to collect any applicable return item, rejection, or insufficient funds fee and process any such payment as an Electronic Payment.
- Taxes and Other Charges. You are solely responsible for paying any sales taxes or other charges added at the time you complete a transaction. You are responsible for all bank fees related to any transactions or failed transactions (e.g., chargebacks from your bank or credit card provider) initiated by you, including domestic and international transaction fees. Refund Policy. YOU ACKNOWLEDGE THAT BLANK IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON, AND THAT YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED VIRTUAL ITEMS OR SERVICES WHEN AN ACCOUNT IS CLOSED, WHETHER SUCH CLOSURE WAS VOLUNTARY OR INVOLUNTARY, OR WHETHER YOU MADE A PAYMENT THROUGH THE SERVICES OR ANOTHER DIGITAL STOREFRONT OR PLATFORM SUCH AS APPLE, GOOGLE, FACEBOOK, OR ANY OTHER SITES OR PLATFORMS WHERE WE OFFER OUR SERVICES. If you request a refund within thirty (30) days from the date of your purchase, we may decide to refund your completed transaction amount. To request a refund, please contact us at support@theblankapp.com. If we approve a refund request, the refund will be issued to the same form of payment used to make the purchase. Please understand that we cannot issue refunds for any transactions through any Digital Storefronts (defined below) or any other third party marketplace, and you should carefully review their refund policy(ies), if any.
Code of Conduct.
User Rules.
You agree that you will only use the Services or any Third Party Services (defined below) for lawful purposes, in compliance with this Agreement and applicable laws, for your own personal, non-commercial use.
Acceptable Use Policy.
You agree that you will abide by the rules, terms, and guidelines in our Acceptable Use Policy, as amended from time to time.
Consequences
If you do not follow our Acceptable Use Policy or any other terms governing specific components of the Services to which you have separately agreed (for example, our AI Selfie Policy), which we may post and update from time to time on our websites and apps, we may, in our sole discretion, stop providing the Services to you, close your account, or take appropriate disciplinary measures to enforce this Agreement. We may also notify law enforcement (or another appropriate government agency) if the breach involves a threat to the life or safety of yourself or others, or any other activity that we believe to be unlawful. We are not liable for any violation of this Agreement by you or by any other user.
Monitoring.
We may (but are not obligated to) actively monitor use of the Services, both on our own servers and on your computer or device, for a wide variety of different purposes, including preventing cheating and hacking, reducing toxic user behavior, and improving the Services. We monitor and collect data regarding use of the Services as explained in our Privacy Policy.
User Generated Content.
The Services or Third Party Services (defined below) may enable you or others to create, upload, store, access, or share content, including your communications and interactions with others, your postings submitted to us or through the Services, and the files, photos, images, documents, audio, digital works, art, graphics, livestreams, videos, account statistics, feedback, suggestions, comments, text, and other materials created by you and/or others and uploaded, stored, broadcasted, or shared through the Services or other services (“UGC”). UGC also includes any individual or entity’s name, image, likeness, pictures, brand, social media handles, and profile, biographical, and biometric information (“Persona”) to the extent incorporated therein. We do not claim ownership ofany UGC, and you are solely responsible for your UGC. In exchange for your use of the Services, and to the extent that your UGC gives rise to any copyright interest, you hereby grant Blank and the LicensedParties (defined below) the worldwide, perpetual, royalty-free, irrevocable, sublicensable, unrestricted, non-exclusive right to use, reproduce, modify, create derivative works based upon, distribute, transmit, publicly display, publicly perform, and otherwise use and exploit your UGC or any portion thereof for any purpose whatsoever (including, without limitation, training and generating outputs using generative artificial intelligence models), in any form and in any and all media or distribution methods, now known or later developed, for commercial and non-commercial purposes, without compensation, notice, or credit to you. You hereby waive and agree never to assert any moral rights of paternity, publication, reputation, or attribution with respect to use of your UGC as licensed herein under applicable law. You represent and warrant that you own the sole unencumbered right in your UGC and to grant this license and that use of your UGC as granted herein will not violate or infringe the rights of any third parties or cause the Licensed Parties to incur any additional fees. We reserve the right, but we are not obligated, to suppress, block, hide, remove, or delete any or all UGC at our sole discretion, and to report any illegal UGC and related user information to the appropriate authorities. To the fullest extent permitted under applicable law, you agree to hold the Licensed Parties harmless for any loss or damages arising from your UGC including, without limitation, any Persona as incorporated therein.
Third Party Services.
- Third Party Services. Our Services may allow you to access (paid or unpaid), use, or otherwise interact with content, software, features, products, platforms, and services operated or provided by companies or entities other than us (“Third Party Services”). The Third Party Services include, for example, specific third party generative artificial intelligence tools (“AI Tools”), which may be operated and used pursuant to certain agreements and terms from the third-party providers of such AI Tools (“AI Terms”). If you have any questions about the Third Party Services, including any AI Tools and corresponding AI Terms that may apply to your use of the Services, please contact us at support@theblankapp.com. If you choose to access, use, transact with, or otherwise interact with any Third Party Services, you do so at your own risk, and you understand that by using our Services, you are directing the applicable company or entity to make Third Party Services available to you. You are solely responsible for your dealings with third parties. You acknowledge and agree that when you access, use, or interact with Third Party Services using our Services, the applicable terms of this Agreement and any applicable usage terms including, without limitation, the privacy policy(ies) and AI Terms, if any, associated with the Third Party Services will govern your use of that Third Party Service. We do not endorse any Third Party Services that are compatible with, or made available or marketed on or through, the Services. You represent and warrant that you will not use any Third Party Services in any manner that infringes upon the intellectual property rights of Blank or any third party or otherwise use or appropriate any third party’s intellectual property without the express written authorization of the owner. We do not license any intellectual property to you as part of any Third Party Services, and we are not responsible or liable to you or others for any information, content, materials, or services provided by any Third Party Services or for the results obtained from using them.
- Digital Storefronts. The Services may be made available through a platform, participating third-party online store, application store, or other store authorized by us (“Digital Storefront(s)”). This Agreement and the availability of the Services through any Digital Storefront is subject to the additional terms and conditions set forth on or required by the applicable Digital Storefront and all such applicable terms and conditions are incorporated herein by this reference. We are not a party to any transactions through the Digital Storefronts as those are administered by the Digital Storefronts. We have no responsibility or liability to you for your transactions with the Digital Storefronts. You acknowledge that the Digital Storefront has no obligation to provide any maintenance or support services to you in connection with the Services. If an app or game fails to conform to any applicable warranty, you may notify the Digital Storefront, and the Digital Storefront may refund the purchase price, if any, for the app or game to you, but, to the fullest extent permitted by applicable law, the Digital Storefront will have no other warranty obligation whatsoever with respect to the Services. Any claim in connection with the Services including, without limitation, those related to product liability, a failure to conform to applicable legal or regulatory requirements, claims under consumer protection or similar legislation, or intellectual property infringement are governed by this Agreement, and the Digital Storefront is not responsible for such claims. You must comply with the Digital Storefront terms of service and any other Digital Storefront applicable rules or policies.
Updates and Features.
- Updates. We may provide patches, updates, or upgrades to the Services that may be required to continue using the Services, including automatically and in the background without notice to you. Such updates are subject to this Agreement unless other terms are presented with the updates, in which case, those other terms apply. We aren’t obligated to make any patches, updates, or upgrades available. It is your responsibility to ensure your equipment and device(s) meets all the necessary technical specifications to enable you to access and use the Services. We don’t guarantee that we will support the version of the system or device for which you licensed, obtained, or purchased any part of the Services.
- Availability. The Services and Content may be unavailable from time to time, may be offered for a limited time, or may vary depending on your region or device. If you change locations, you may need to re-acquire the Services or Content that were available to you and paid for in your previous region, if applicable. We are not liable for any disruption or loss you may suffer as a result of any occasional disruptions and outages in availability of the Services.
- Internet-Based Services. The Services may connect to the internet or a wireless network. Using the Services operates as your consent to the transmission of standard device information (including but not limited to technical information about your device, system, software, and peripherals) for internet-based or wireless services. You are solely responsible for the maintenance and reliability of your internet connection and wireless access at your own cost.
- Promotions. “Promotions” means all giveaways, sweepstakes, contests, and other promotions sponsored by Blank. We reserve the right, in our sole discretion, to interpret the rules of any Promotion, and such interpretation and all decisions by us shall be final and binding upon all participants in the Promotion. We reserve the right to disqualify any participant that we determine, in our sole discretion, violates the rules of the Promotion. We reserve the right, in our sole discretion, to modify, extend, suspend, cancel, and/or terminate any Promotion, or any part of it, at any time.
- Notice of Copyright Infringement. We respond to notices of copyright infringement submitted under the Digital Millennium Copyright Act, 17 U.S.C. § 512 (“DMCA”). If you believe that any Content and/or the Services or any material appearing in UGC has been linked or used in a way that constitutes copyright infringement, please submit a notice of alleged infringement to our designated agent with the following written information in your copyright infringement notice:
a) Your name, address, telephone number, and email address;
b) A description of the copyrighted work that you claim has been infringed;
c) The URL or a description of where the material that you claim is infringing is located;
d) A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
e) A physical or electronic signature of the person authorized to act on behalf of the owner of the copyright interest; and
f) A statement by you, under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on behalf of the copyright owner.
Notices may be submitted to Blank’s DMCA Agent:
Attn: The Blank App Co., DMCA Agent
PO Box 1006 Weston, CT 06883
Telephone Number: 860-704-9048
Email Address: danielle@theblankapp.com
Please note that the DMCA provides that you may be liable for damages (including costs and attorney fees) if you knowingly misrepresent that material or activity is infringing. Please also note that the information provided in your copyright infringement notice may be provided to the person responsible for the allegedly infringing material.
Third Party Beneficiaries.
Neither the Digital Storefronts nor the providers of any AI Tools(including, without limitation Stability AI Ltd.) are parties to this Agreement and neither shall be liable to you for any direct or indirect damages, but each is a third-party beneficiary to this Agreement, and each may enforce this Agreement against you directly to the extent it may deem such enforcement necessary or advisable to protect its rights.
Governing Law and Jurisdiction.
This Agreement is entered into in the State of New York and shall be governed by, and construed under, the laws of the State of New York without regard to conflict of law rules. Except as otherwise expressly set out in Section 12 “Dispute Resolution and Arbitration Agreement,” the exclusive jurisdiction for all disputes that you and Blank are not required to arbitrate will be the state and federal courts located in New York County, New York, and you and Blank each waive any objection to jurisdiction and venue in such courts. You and we further acknowledge and agree that the agreement to arbitrate below affects interstate commerce and that the U.S. Federal Arbitration Act and federal arbitration law apply to arbitrations under this Agreement (despite any other choice of law provision).
Dispute Resolution and Arbitration Agreement
PLEASE READ THIS SECTION CAREFULLY – IT SIGNIFICANTLY AFFECTS 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.
If you have an issue that cannot be resolved quickly and amicably by contacting our customer support at support@theblankapp.com, this Dispute Resolution and Arbitration Agreement section explains how you and Blank agree to resolve any Dispute (defined below), including (where applicable) by binding, individual arbitration.
Dispute Resolution Overview.
Any dispute relating in any way to your use of the Services or otherwise related to this Agreement (“Dispute”) shall be submitted to small claims court or confidential, binding arbitration, and shall be governed exclusively by the laws of the State of New York, excluding its conflict of law provisions.
Claims Subject from Arbitration
To the fullest extent permitted by applicable law, Blank and you agree that any and all Disputes, other than those filed in small claims court, shall be submitted to final and binding arbitration (the “Arbitration Agreement”). References to “Blank”, “you”, “we”, and “us” in this Arbitration Agreement include our respective predecessors in interest, successors, and assigns, as well as our respective past, present, and future parents, subsidiaries and affiliates; those entities and our respective agents, employees, licensees, licensors, and providers of content as of the time your or our claim arises.
This Arbitration Agreement is intended to be broadly interpreted. It includes, but is not limited to:
- Claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, fraud, misrepresentation or any other statutory or common-law legal theory;
- Claims that arose before this or any prior Arbitration Agreement (including, but not limited to, claims relating to advertising); and
- Claims for mental or emotional distress or injury not arising out of physical bodily injury.
Notwithstanding the foregoing, the following shall not be subject to arbitration and may be adjudicated only in the state and federal courts of New York: (a) any dispute, controversy, or claim relating to or contesting the validity of Blank’s intellectual property rights and proprietary rights, including without limitation, patents, trademarks, service marks, copyrights, or trade secrets; (b) an action by a party for temporary, preliminary, or permanent injunctive relief, whether prohibitive or mandatory, or other provisional relief; (c) any legal action by Blank against a non-consumer; or (d) interactions with governmental and regulatory authorities.
Either party may elect to have Disputes heard in small claims court seeking only individualized relief, so long as the action is not removed or appealed to a court of general jurisdiction.
Class Action and Jury Trial Waver
You and Blank agree that, to the fullest extent permitted by law, each party may bring claims (whether in small claims court or in arbitration) against the other only in an individual capacity, and not participate as a plaintiff, claimant, or class member in any class, collective, consolidated, private attorney general, or representative proceeding. This means that you and Blank may not bring a claim on behalf of a class or group and may not bring a claim on behalf of any other person unless doing so as a parent, guardian, or ward of a minor or in another similar capacity for an individual who cannot otherwise bring their own individual claim. This also means that you and Blank may not participate in any class, collective, consolidated, private attorney general, or representative proceeding brought by any third party.
Notwithstanding the foregoing, you or Blank may participate in a class-wide settlement.
To the fullest extent permitted by law, you and Blank waive any right to a jury trial.
YOU UNDERSTAND THAT YOU WOULD HAVE HAD A RIGHT TO LITIGATE IN A COURT, TO HAVE A JUDGE OR JURY DECIDE YOUR CASE AND TO BE PARTY TO A CLASS OR REPRESENTATIVE ACTION. HOWEVER, YOU UNDERSTAND AND AGREE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY AND ONLY THROUGH ARBITRATION OR SMALL CLAIMS COURT. You expressly agree to refrain from bringing or joining any claim in any representative or class-wide capacity, including but not limited to bringing or joining any claims in any class action or any class-wide arbitration.
You shall have thirty (30) days from the date that you first use our Services or provide information to Blank to opt out of this Arbitration Agreement. To opt out of arbitration, you must contact us in writing at support@theblankapp.com. If more than thirty (30) days have passed from the date that you first use our Services or provide information or other UGC to Blank, you are not eligible to opt out of arbitration with respect to claims relating to the Services or that information or UGC.
This Arbitration Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act (9 U.S.C. §§ 1-16) governs the interpretation and enforcement of this arbitration provision. This Arbitration Agreement shall survive termination of this Agreement.
Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures
You and we agree that good-faith, informal efforts to resolve disputes often can result in a prompt, cost-effective and mutually beneficial outcome. Therefore, a party who intends to initiate arbitration or file a claim in small claims court must first send to the other a written Notice of Dispute (“Notice”). A Notice from you to Blank must be emailed to support@theblankapp.com (“Notice Address”). Any Notice must include (a) the claimant’s name, address, and email address; (b) a description of the nature and basis of the claim or dispute; (c) if you are submitting the Notice, any relevant facts regarding your use of the Services, including whether you have created an account with or received any emails associated with our Services and/or if you have made a purchase from the Services, and if so, the date(s) of the purchase(s); (d) a description of the nature and basis of the specific relief sought, including the damages sought, if any, and a detailed calculation for them; and (e) a personally signed statement from the claimant (and not their counsel) verifying the accuracy of the contents of the Notice. The Notice must be individualized, meaning it can concern only your dispute and no other person’s dispute.
After receipt of a completed Notice, the parties shall engage in a good faith effort to resolve the Dispute for a period of sixty (60) days (which can be extended by agreement). You and Blank agree that, after receipt of the completed Notice, the recipient may request an individualized telephone or video settlement conference (which can be held after the 60-day period) and both parties will personally attend (with counsel, if represented). You and Blank agree that the parties (and counsel, if represented) shall work cooperatively to schedule the conference at the earliest mutually-convenient time and to seek to reach a resolution. If we and you do not reach an agreement to resolve the issues identified in the Notice within sixty (60) days after the completed Notice is received (or a longer time if agreed to by the parties), you or we may commence an arbitration proceeding or a small claims court proceeding (if permitted by small claims court rules).
Compliance with this Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures section is a condition precedent to initiating arbitration. Any applicable limitations period (including statute of limitations) and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution procedures set forth in this subsection. All of the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures are essential so that you and Blank have a meaningful opportunity to resolve disputes informally. If any aspect of these requirements has not been met, a court of competent jurisdiction may enjoin the filing or prosecution of an arbitration. In addition, unless prohibited by law, the arbitration administrator may not accept, administer, assess, or demand fees in connection with an arbitration that has been initiated without completion of the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures. If the arbitration is already pending, it shall be administratively closed. Nothing in this paragraph limits the right of a party to seek damages for non-compliance with these Procedures in arbitration.
Arbitration Procedure.
The arbitration will be governed by applicable rules of National Arbitration & Mediation (“NAM”) (including the Comprehensive Dispute Resolution Rules and Procedures and/or the Supplemental Rules for Mass Arbitration Filings, as applicable) (“NAM Rules”)), as modified by this Arbitration Agreement, and will be administered by NAM. (If NAM is unavailable or unwilling to do so, another arbitration provider shall be selected by the parties that will do so, or if the parties are unable to agree on an alternative administrator, by the court pursuant to 9 U.S.C. §5.) The NAM Rules are available online at www.NAMADR.org, by calling NAM at 1-800-358-2550, or by requesting them in writing at the Notice Address. You may obtain a form to initiate arbitration at: https://www.namadr.com/content/uploads/2020/09/Comprehensive-Demand-for-Arb-revised-9.18.19.pdf or by contacting NAM.
You and we agree that the party initiating arbitration must submit a certification that they have complied with and completed the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures requirements referenced in subsection above, and that they are a party to the Arbitration Agreement enclosed with or attached to the demand for arbitration. The demand for arbitration and certification must be personally signed by the party initiating arbitration (and their counsel, if represented).
All issues are for the arbitrator to decide, except as otherwise expressly provided herein and except as to issues relating to the scope and enforceability of the Arbitration Agreement or whether a dispute can or must be brought in arbitration, which are for a court of competent jurisdiction to decide. The arbitrator may consider but shall not be bound by rulings in other arbitrations involving different customers.
Unless we and you agree otherwise, or the applicable NAM Rules dictate otherwise, any arbitration hearings will take place in the county (or parish) of your billing address. For residents outside the United States, arbitration shall be initiated in New York, New York. At the conclusion of the arbitration proceeding, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The arbitrator’s decision is binding only between you and Blank and will not have any preclusive effect in another arbitration or proceeding that involves a different party. An arbitrator’s award that has been fully satisfied shall not be entered in any court.
As in court, you and Blank agree that any counsel representing a party in arbitration certifies when initiating and proceeding in arbitration that they are complying with the requirements of Federal Rule of Civil Procedure 11(b), including certification that the claim or relief sought is neither frivolous nor brought for an improper purpose. The arbitrator is authorized to impose any sanctions under the NAM Rules, Federal Rule of Civil Procedure 11, or applicable federal or state law, against all appropriate represented parties and counsel.
Except as expressly provided in the Arbitration Agreement, the arbitrator may grant any remedy, relief, or outcome that the parties could have received in court, including awards of attorneys’ fees and costs, in accordance with applicable law. Unless otherwise provided by applicable law, the parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator awards sanctions or finds that either the substance of the claim, the defense, or the relief sought is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Arbitration Fees.
The payment of arbitration fees (the fees imposed by the arbitration administrator including filing, arbitrator, and hearing fees) will be governed by the applicable NAM Rules, unless you qualify for a fee waiver under applicable law. If after exhausting any potentially available fee waivers, the arbitrator finds that the arbitration fees will be prohibitive for you as compared to litigation, we will pay as much of your filing, arbitrator, and hearing fees in the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive, regardless of the outcome of the arbitration, unless the arbitrator determines that your claim(s) were frivolous or brought for an improper purpose or asserted in bad faith. You and we agree that arbitration should be cost-effective for all parties and that any party may engage with NAM to address the reduction or deferral of fees.
Confidentiality.
Upon either party’s request, the arbitrator will issue an order requiring that confidential information of either party disclosed during the arbitration (whether in documents or orally) may not be used or disclosed except in connection with the arbitration or a proceeding to enforce the arbitration award and that any permitted court filing of confidential information must be done under seal to the furthest extent permitted by law.
Offer of Settlement.
In any arbitration between you and Blank, the defending party may, but is not obligated to, make a written settlement offer at any time before the evidentiary hearing or, if a dispositive motion is permitted, prior to the dispositive motion being granted. The amount or terms of any settlement offer may not be disclosed to the arbitrator until after the arbitrator issues an award on the claim. If the award is issued in the other party’s favor and is less than the defending party’s settlement offer or if the award is in the defending party’s favor, the other party must pay the defending party’s costs incurred after the offer was made, including any attorney’s fees. If any applicable statute or case law prohibits the shifting of costs incurred in the arbitration, then the offer in this provision shall serve to cease the accumulation of any costs to which the party bringing the claim may be entitled for the cause of action under which it is suing.
Requirement of Individualized Relief.
The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING. Further, unless both you and we agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative, class, or private attorney general proceeding. If, after exhaustion of all appeals, any of these prohibitions on non-individualized declaratory or injunctive relief; class, representative, and private attorney general claims; and consolidation are found to be unenforceable with respect to a particular claim or with respect to a particular request for relief (such as a request for injunctive relief sought with respect to a particular claim), then the parties agree such a claim or request for relief shall be decided by a court of competent jurisdiction, after all other arbitrable claims and requests for relief are arbitrated. You agree that any arbitrations between you and Blank will be subject to this Arbitration Agreement and not to any prior arbitration agreement you had with Blank, and, notwithstanding any provision in this Agreement to the contrary, you agree that this Arbitration Agreement amends any prior arbitration agreement you had with Blank, including with respect to claims that arose before this or any prior arbitration agreement.
Opt Out of Future Changes.
Notwithstanding any provision to the contrary, if Blank makes any future change to this Arbitration Agreement (other than a change to the Notice Address), you may reject any such change by sending Blank an email to support@theblankapp.com within thirty (30) days of the posting of the amended arbitration agreement that provides: (a) your full legal name, (b) your complete mailing address, (c) your phone number, (d) and, if applicable, the username or email address associated with any potential account on Blank’s Services. Such an opt-out email must be sent by you personally, and not by your agent, attorney, or anyone else purporting to act on your behalf. It must include a statement, personally signed by you, that you wish to reject the change to the Arbitration Agreement. This is not an opt out of arbitration altogether.
Mass Filing.
If at any time twenty five (25) or more claimants (including you) submit Notices or seek to file demands for arbitration raising similar claims against the other party or related parties by the same or coordinated counsel or entities, consistent with the definition and criteria of Mass Filings (“Mass Filing”) set forth in NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures (“NAM”s Mass Filing Rules”, available at https://vvww.namadr.com/resources/rules-fees-forms/), you and we agree that the additional procedures set forth below shall apply. The parties agree that throughout this process, their counsel shall meet and confer to discuss modifications to these procedures based on the particular needs of the Mass Filing. The parties acknowledge and agree that by electing to participate in a Mass Filing, the adjudication of their dispute might be delayed. Any applicable limitations period (including statute of limitations) and any filing fee deadlines shall be tolled beginning when the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures are initiated, so long as the pre-arbitration Notice complies with the requirements in that subsection, until your claim is selected to proceed as part of a staged process or is settled, withdrawn, otherwise resolved, or opted out of arbitration.
Stage One:
Counsel for the claimants and counsel for Blank shall each select twenty five (25) claims per side (50 claims total) to be filed and to proceed in individual arbitrations as part of a staged process. Each of these individual arbitrations shall be assigned to a different, single arbitrator unless the parties agree otherwise in writing. Any remaining claims shall not be filed or be deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After this initial set of staged proceedings is completed, the parties shall promptly engage in a global mediation session of all remaining claims with a retired federal or state court judge.
Stage Two:
If the remaining claims are not resolved at this time, counsel for the claimants and counsel for Blank shall each select fifty (50) claims per side (100 claims total) to be filed and to proceed in individual arbitrations as part of a second staged process, subject to any procedural changes the parties agreed to in writing. Each of these individual arbitrations shall be assigned to a different, single arbitrator unless the parties agree otherwise in writing. Any remaining claims shall not be filed or be deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After this second set of staged proceedings is completed, the parties shall promptly engage in a global mediation session of all remaining claims with a retired federal or state court judge.
If your claim is not resolved as part of the staged process identified above, either:
Option One:
You and Blank may separately or by agreement, opt out of arbitration and elect to have your claim heard in court consistent with the Agreement. You may opt out of arbitration by providing your individual, personally-signed notice of your intention to opt out by sending Blank an email to support@theblankapp.com. Such an opt-out email must be sent by you personally, and not by your agent, attorney, or anyone else purporting to act on your behalf. It must include a statement, personally signed by you, that you wish to opt out of arbitration within thirty (30) days after the conclusion of the mediation associated with Stage Two. Blank may opt your claim out of arbitration by sending an individual, personally signed notice of its intention to opt out to your counsel within fourteen (14) days after the expiration of your thirty (30) day opt out period. Counsel for the parties may agree to adjust these deadlines.
OR
Option Two:
If neither you nor Blank elect to have your claim heard in court consistent with Option One, then you agree that your claim will be resolved as part of continuing, staged individual arbitration proceedings as set forth below. Assuming the number of remaining claims exceeds two hundred (200_, then two hundred (200) claims shall be randomly selected (or selected through a process agreed to by counsel for the parties) to be filed and to proceed in individual arbitrations as part of a staged process. If the number of remaining claims is fewer than two hundred (200), then all of those claims shall be filed and proceed in individual arbitrations. Any remaining claims shall not be filed or be deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After each set of two hundred (200) claims are adjudicated, settled, withdrawn, or otherwise resolved, this process shall repeat consistent with these parameters. Counsel for the parties are encouraged to meet and confer, participate in mediation, and engage with each other and with NAM (including through a Procedural Arbitrator) to explore ways to streamline the adjudication of claims, increase the number of claims to proceed at any given time, promote efficiencies, conserve resources, and resolve the remaining claims.
A court of competent jurisdiction shall have the authority to enforce these Mass Filing provisions and, if necessary, to enjoin the mass filing, prosecution, or administration of arbitrations and the assessment of arbitration fees. If these additional procedures apply to your claim, and a court of competent jurisdiction determines that they are not enforceable as to your claim, then your claim shall proceed in a court of competent jurisdiction consistent with this Agreement.
You and Blank agree that we each value the integrity and efficiency of arbitration and wish to employ the process for the fair resolution of genuine and sincere disputes between us. You and Blank acknowledge and agree to act in good faith to ensure the processes set forth herein are followed. The parties further agree that application of these Mass Filing procedures have been reasonably designed to result in an efficient and fair adjudication of such cases.
Severability.
If any portion of this Dispute Resolution and Arbitration Agreement section is found to be void, invalid, or otherwise unenforceable, then that portion shall be deemed to be severable and, if possible, superseded by a valid, enforceable provision, or portion thereof, that matches the intent of the original provision, or portion thereof, as closely as possible. The remainder of this section shall continue to be enforceable and valid according to the terms contained herein.
Warranty Disclaimer.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED TO YOU "AS IS," "AS AVAILABLE," AND "WITH ALL FAULTS." NEITHER THE BLANK APP, THE DIGITAL STOREFRONTS, NOR ANY OF OUR OR ITS RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, AGENTS, OR LICENSORS (COLLECTIVELY, THE "LICENSED PARTIES") MAKE ANY REPRESENTATIONS, WARRANTIES, PROMISES, OR GUARANTEES OF ANY KIND WHATSOEVER AS TO THE SOFTWARE, CONTENT, THIRD PARTY SERVICES, OR OTHER SERVICES, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE. THE LICENSED PARTIES DO NOT WARRANT THAT THE SERVICES OR THIRD PARTY SERVICES WILL BE ACCURATE OR RELIABLE, UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR FREE OF VIRUSES. TO THE FULLEST EXTENT PERMITTED BY YOUR LOCAL LAW, THE LICENSED PARTIES DISCLAIM ANY IMPLIED WARRANTIES INCLUDING FOR NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND SATISFACTORY QUALITY.
Limitations of Our Liability.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ANY OF THE LICENSED PARTIES BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSSES OR DAMAGES, OR DAMAGES FOR SYSTEM FAILURE OR MALFUNCTION OR LOSS OF PROFITS, DATA, USE, BUSINESS OR GOOD-WILL, ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY, STATUTE OR ANY OTHER LEGAL OR EQUITABLE THEORY.
In the event you have any basis for recovering damages arising from the Services or a breach of this Agreement, you agree that your exclusive remedy is to recover from the Licensed Parties direct damages and the maximum liability is limited up to an amount equal to five hundred United States dollars ($500 USD).
Indemnification.
To the fullest extent permitted by applicable law, you agree to defend, indemnify and hold harmless the Licensed Parties from and against any and all third-party claims, liabilities, damages, losses, costs and expenses (including, reasonable attorneys’ fees and costs) arising out of or in connection with: (a) your breach or alleged breach of this Agreement; (b) any information, UGC, or other content provided by you; (c) your use or misuse of the Services or AI Tools; and/or (d) your acts or omissions. The Licensed Parties reserve the right to assume, at their own expense, the exclusive defense and control of any matter subject to indemnification by you, and in such case you agree to cooperate with our defense of any claim.
You are solely responsible for any third party costs you incur to use the Services, and you bear all risk of loss for accessing or using the Services.
Termination.
You may stop using the Services and related services at any time and terminate this Agreement by destroying and/or deleting all copies of any materials or software in your possession. We may modify, suspend, discontinue, substitute, remove, replace or limit your access to any aspect of the Services or Content at any time to the fullest extent under applicable law. We may suspend or terminate this Agreement and/or your access to any aspects of the Services or Content immediately if we, in our sole discretion, determine you violate this Agreement. You understand, acknowledge, and agree that our decision to suspend or terminate this Agreement and/or your access to any part of the Services or Content, in our sole and absolute discretion, shall be final, binding, and conclusive upon you and that we shall have no responsibility or liability to you whatsoever at any time in connection therewith.
If your use of the Services is terminated, whether by you or us, the rights granted to you under this Agreement will stop immediately, you must stop using the Services and Content, and your information associated with your use of the Services will be deleted or otherwise disassociated from you (unless otherwise required by law to retain, return, or transfer it to a third party designated by you). You will not be able to access any content or other information stored on the Services.
If you terminate this Agreement before the end of any subscription period, you will not be entitled to a refund of your prepaid fees, except as expressly provided above. If we terminate your account or this Agreement before the end of any subscription period for any reason other than your breach of this Agreement and you are then unable to access the Services, we will refund you any fees you have prepaid for the remaining subscription period on a pro rata basis.
Miscellaneous.
General.
This Agreement is the entire agreement between you and us for your use of the Services. It supersedes any prior agreements between you and us regarding your use of the Services. We may assign this Agreement, in whole or in part, at any time without notice to you. You may not assign your rights or obligations under this Agreement or transfer any rights to use the Services. All parts of this Agreement apply to the fullest extent permitted by applicable law. Section 12 prevails over this section in the event of any inconsistency with it. All Sections that by their nature apply after this Agreement ends will survive any termination or cancellation of this Agreement. We reserve the right to investigate and prosecute any suspected breaches of this Agreement or use of the Services. We may disclose any information as necessary to satisfy any law, regulation, legal process, or governmental request.
Severability.
If any clause within this Agreement section is found to be invalid, unenforceable, or illegal, that clause will be limited or eliminated to the minimum extent necessary and the remainder of this Agreement will be given full force and effect.
Remedies.
In the event that you breach this Agreement, you hereby agree that we would be irreparably damaged if this Agreement were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to obtain equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as we may otherwise have available to us under applicable laws.
Export Laws.
You acknowledge and understand that the Services may be subject to U.S. and other export control and sanctions laws and regulations, including, without limitation, the Export Administration Regulations and other regulations, rules, and executive orders administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) the United Nations Security Council (“UNSC”), Her Majesty’s Treasury (“HMT”), the European Union or any of its member states, or other relevant sanctions authority, as applicable (collectively, the “Export Controls and Sanctions Laws”). You represent that you are not a Sanctioned Person (as defined below) and agree not to take any action that will cause anyone, including, without limitation, any of the Licensed Parties, to be in violation of any applicable Export Controls and Sanctions Laws. For purposes of these Terms, “Sanctioned Person” means any government, country, corporation, or other entity, group, or individual with whom or which Export Controls and Sanctions Laws prohibit or restrict a person or entity in the U.S. or your jurisdiction of residence from engaging in transactions, and includes, without limitation, any individual, corporation, or other entity that (1) appears on OFAC’s Specially Designated Nationals and Blocked Persons List or other lists maintained by OFAC, UNSC, HMT, the European Union or any of its member states, or other relevant sanctions authority or the U.S. Department of Commerce or similar entity, as each such list may be amended from time to time, or (2) is currently the subject or the target of any comprehensive sanctions laws and regulations.
Contact Us.
If you have any questions, claims, complaints, or concerns about the Services or this Agreement, please contact us at support@theblankapp.com.