Last Updated: [August 1, 2023]
This Terms of Use Agreement (together with any amendments and supplemental terms in connection with the Services (as defined below), the “Terms”) is an agreement entered into by and between you (“you” or “your”) and REALLY Communications, Inc. (“REALLY,” “we,”, “us” or “our”). These Terms, together with any documents they expressly incorporate by reference, describe your rights and responsibilities as a REALLY user or host (“User”) and govern your access to and use of REALLY.com, including any content, functionality and services offered on or through REALLY.com (the “Website”), the REALLY DeWi applications (the “Apps”), and your purchase and/or use of our online services, wireless services, software, cloud, hardware, eSims, Products (as defined below), documentation and other products (both tangible and intangible) whether provided by us, our affiliates or any other third-party vendors, on or in connection with the Products, Website, Apps, radio hosting or an affiliate’s site (collectively, the “Services”). By accessing, hosting, purchasing or using the Services, or by clicking a button or checking a box marked “I Agree” (or something similar) that expressly references these Terms, you confirm that (1) you have read, understood, and agree to be bound by these Terms and to the collection and use of your information as set forth in our privacy policy (https://really.com/privacy-policy); (2) you are of legal age to form a binding contract with Really; (3) you are not barred from using the Services under the laws of the United States, your place of residence or any other jurisdiction; and (4) you have the authority to enter into these Terms personally or, if you are accessing the Services on behalf of an entity, on behalf of such entity. If the individual entering these Terms is doing so on behalf of an entity, all references to “you” or “your” in these terms will also be deemed to refer to such entity. If you do not agree to be bound by these Terms, you may not access or use the Services.
PLEASE READ THESE TERMS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THESE TERMS GOVERN THE USE OF THE SERVICES AND APPLY TO ALL USERS VISITING OR ACCESSING THE SERVICES. THESE TERMS CONTAIN A MANDATORY INDIVIDUAL ARBITRATION PROVISION IN SECTION 21.2 (THE “ARBITRATION AGREEMENT”) THAT REQUIRES, UNLESS YOU OPT OUT PURSUANT TO THE INSTRUCTIONS IN SECTION 21.11, THE EXCLUSIVE USE OF FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES BETWEEN YOU AND US, INCLUDING ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE YOU AGREED TO THESE TERMS. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU EXPRESSLY WAIVE YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS, AS WELL AS YOUR RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, COLLECTIVE, PRIVATE ATTORNEY GENERAL OR REPRESENTATIVE ACTION OR PROCEEDING.
YOU UNDERSTAND THAT USE OF OUR SERVICES AND/OR PRODUCTS MAY SUBJECT YOU TO CERTAIN FEDERAL, STATE OR LOCAL LAWS, INCLUDING WITHOUT LIMITATION, THE RULES, REGULATIONS AND/OR ORDER OF FEDERAL COMMUNICATIONS COMMISSION (THE “FCC”) AND OTHER FEDERAL OR STATE REGULATIONS APPLICABLE TO YOUR USE OF THE SERVICES AND/OR PRODUCTS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, REALLY EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY TO YOUR COMPLIANCE OBLIGATIONS WITH RESPECT TO SUCH REGULATIONS. IN ADDITION, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, THESE TERMS EXPRESSLY LIMIT THE LIABILITY THAT WE HAVE TO YOU AND DISCLAIMS ANY AND ALL WARRANTIES AS TO THE SATISFACTION, OUTCOME OR RESULTS FROM YOUR USE OF THE SERVICES AND/OR PRODUCTS.
THESE TERMS ARE SUBJECT TO CHANGE BY REALLY IN ITS SOLE DISCRETION AT ANY TIME AS SET FORTH IN SECTION 22.2 (NOTIFICATION PROCEDURES AND CHANGES TO THESE TERMS).
PLEASE NOTE THAT IF YOU OPT-IN TO OBTAIN TEXT MESSAGES FROM REALLY, TERMS RELATED TO OUR TEXT MESSAGE SERVICES ARE INCLUDED BELOW.
1. REALLY Services
1.1 Description of the Services
Generally. REALLY offers (1) a mobile network and related infrastructure designed to create a telecommunications community, with a focus on privacy, accessibility and anonymity for a 5G network; and (2) a comprehensive phone plan comparison tool that is designed to allow individuals to compare carriers and plans and switch to the service that is right for them.
REALLY Wireless Plans. REALLY provides monthly, prepaid mobile network plans to participating Users, subject to these Terms and payment by participating Users, as set forth herein. REALLY Wireless Plans use wireless services provided via the networks of other wireless carriers (“Underlying Providers”).
REALLY Radio Hosts. Qualifying Users may enter a separate, written agreement with REALLY to become eligible to host a REALLY Radio on such individual’s premises and collect monthly earnings for the provision of such hosting (the “Radio Host Agreement”). All such hosting activities will be subject to the terms and conditions set forth herein. In the event of a conflict between these Terms and the Radio Host Agreement, the Radio Host Agreement will control.
1.2 Eligibility and Use of the Services
This is a contract between you and REALLY. You must read and agree to these Terms before using the Services. If you do not agree to the Terms, you may not use the Services. You may use the Services only if you can form a binding contract with REALLY, and only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Services by anyone under 18 is strictly prohibited and in violation of these Terms. The Services are not available to any Users previously removed from the Services by REALLY. The Services and the information and content available on the Services are protected by applicable intellectual property (including copyright) laws. Unless subject to a separate license agreement between you and REALLY, your right to access and use the Services, in whole or in part, is subject to these Terms.
1.3 User Accounts
Your account on the Services (your “User Account”) gives you access to the Services that we may establish and maintain from time to time. We may maintain different types of User Accounts for different types of users. You acknowledge that you do not own the User Account. You may not use another User’s Account without such User’s permission. You are solely responsible for the activity that occurs on or associated with your User Account, and you must keep the User Account password(s) strong and secure. You should notify us immediately of any breach of security or unauthorized use of the User Account. Any individual with administrator-level access to the User Account can modify the User Account settings, access and billing information. We will not be liable for any losses caused by any unauthorized use of the User Account, or for any changes to the User Account, including your ability to access the User Account or the data, information or other content associated with the User Account (“User Account Content”) (defined below), made by any individual with administrator-level access to the User Account. In registering your User Account, you shall (i) provide true, accurate, current, and complete information about yourself as prompted by the registration form (the “Registration Data”), and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current, and complete. You agree not to create a User Account using a false identity or information, or on behalf of someone other than yourself or the entity you are authorized to represent. You shall not have more than one User Account at any given time. REALLY reserves the right to remove or reclaim any User Accounts at any time and for any reason, including but not limited to, claims by a third party that a User Account violates the third party’s rights.
1.4 Limited License, Supplemental Terms and Updates
Subject to the terms and conditions of these Terms, you are hereby granted a non-exclusive, limited, non-transferable, non-sublicensable, freely revocable license to use the Services for your personal, noncommercial use only and as permitted by the features of the Services. REALLY reserves all rights not expressly granted herein the Services and the REALLY Content (as defined below). REALLY may terminate this license at any time for any reason or no reason.
Your use of, and participation in, certain features and functionality of the Services may be subject to additional terms (“Supplemental Terms”). Such Supplemental Terms will either be set forth in the applicable supplemental Services or will be presented to you for your acceptance when you sign up to use the supplemental Services. If these Terms are inconsistent with the Supplemental Terms, then the Supplemental Terms control with respect to such supplemental Services.
1.5 Products and Regulatory Disclaimer
(a) Subject to your full compliance with these Terms, you may be permitted to use certain hardware and related components, including tangible and/or physical: (a) radios and/or antennas that wirelessly transfer data between internet service providers and Users, including portable devices used to validate REALLY network coverage (the “Radios”); (b) SIMs or eSIMs which allow Users to connect to the REALLY network privately; and (c) physical SIMs or eSIMs which allow Users to connect to the REALLY network and/or validate REALLY network coverage and together with the Radios (the “Products”). If any Products received from REALLY under an applicable Order do not operate as explicitly set forth in the documentation provided by REALLY, you may notify REALLY, and we will provide you with a replacement of such Products at our sole discretion, which shall be your sole remedy and our sole responsibility with respect to the Products.
You acknowledge that the Services are subject to the regulations promulgated by the Federal Communications Commission (“FCC”), including the regulations under 47 CFR 96 (the “Citizens Broadband Radio Service” or “CBRS”), which are available at https://www.ecfr.gov/current/title-47/part-96. For any equipment or devices not obtained from REALLY that are used in connection with the Services, you represent, warrant and covenant that such equipment or devices will: (a) be compatible with the Services; (b) be duly authorized in accordance with the FCC’s equipment authorization rules; and (c) conform to the applicable technical requirements set forth in 47 CFR Part 96, Subpart E. For all equipment and devices, regardless of whether obtained from REALLY or a third party, you acknowledge and agree that it is solely and entirely your responsibility, not REALLY’s, to ensure that any Products or other devices you own, lease or otherwise use in connection with the Services are installed, registered, operated and maintained in accordance with the rules and regulations governing the CBRS, and is operated in such a manner so as not to cause harmful interference to any other party. You further acknowledge and agree that REALLY has no obligation to monitor, assess or ensure your or any User’s compliance with the rules and regulations of the CBRS; provided, that in the event that REALLY discovers or determines that you or any User has failed to comply with such rules and regulations, REALLY may immediately suspend the Services and/or provide you with written notice of such violation, which shall be cured within ten (10) business days of such notice. REALLY shall not be liable to you or any User for any damages resulting from, or relating to, your or any User’s failure to fully comply with the rules and regulations of the FCC, CBRS or any other federal or state regulations applicable to your use of the Services and/or Products or for any interference caused to your Products or other devices by any other user of the CBRS, including other customers of REALLY. The Products have not been designed to conform with, and may not conform with rules and regulations that are applicable to the Product and Services outside of the United States, including non-United States rules and regulations regarding consumer electronics (such as CE marking requirements in the European Union). The Products and Services provided hereunder are not intended to be, and may not be, used outside of the United States, and REALLY disclaims all liability for such use. Alteration of any Product is prohibited. REALLY is not responsible for any radio interference caused by unauthorized modifications to any Product or other device. Changes or modifications not expressly approved by REALLY could void the user’s authority to operate the equipment.
(b) You may use a device you already own in connection with the Services provided that such device: (i) is not currently active with another provider of cellular services; (ii) is unlocked from use only with another provider of cellular service; (iii) complies with Federal Communications Commission regulations; (iv) is certified for use on the network providing your Services; (v) is compatible with your Services; and (vi) does not appear on any list of devices that are reported as lost or stolen or engaged in fraud or other improper or unlawful activity. You acknowledge that when you activate Services on an approved and qualifying device that you did not obtain from REALLY that such device may be subject to an activation fee and will not be eligible for any device financing plan. You also acknowledge that when you activate Services on an approved and qualifying device that you did not obtain from REALLY, such device may operate or behave differently in connection with the Services than other models of the same device sold by the same manufacturer that are obtained directly from REALLY due to differences in software, settings, or for other reasons. In the event you use a device in connection with the Services that was not provided to you by REALLY, you acknowledge and agree that REALLY provides no representations or warranties whatsoever with regard to such device or its operation in conjunction with the Services and, to the extent you require any assistance with your device manufacturer’s warranty for such device or any other technical support, REALLY will not provide such assistance or support. You also agree to indemnify and hold REALLY harmless from any and all claims or losses that may result from your use of a device you did not obtain from REALLY in conjunction with your Services.
(c) If your device is lost or stolen you agree to notify us as soon as possible. Once you notify us that your device has been lost or stolen, we will suspend your Services and you will not be responsible for additional usage charges incurred by that device under your Pre-Paid Plan or Subscription (either, a “Rate Plan”). For any period where you failed to notify us that your device was lost or stolen, the fact that your device or account was used is evidence that your usage and activities were authorized. We may prevent a lost or stolen device from registering on the network providing Services or other networks. If your service has been suspended for 30 days and you have not contacted us to have a replacement device activated on the network, we will resume billing of all. [If you are a California customer and REALLY has not provided you with a courtesy suspension of recurring monthly charges during the past year, REALLY will give you one for 30 days or until you replace or recover your device, whichever comes first.]
1.6 Plans, Payments and Trials
a. Pre-paid Plans. If you purchase a pre-paid plan to access to certain features and functionality of the Services on a time-limited basis (a “Pre-Paid Plan”), the fee for such Pre-Paid Plan will be due and payable at the time of purchase. In the event that you violate these Terms, REALLY reserves the right to remove your access to the Services without providing a refund.
b. Subscription Plans. If you purchase subscription access to certain features and functionality of the Services on a time-limited basis (a “Subscription”), the fee for such Subscription (“Service Subscription Fee”) will be billed at the start of the Subscription and at regular intervals in accordance with your elections at the time of purchase. REALLY reserves the right to change the timing of our billing. REALLY reserves the right to change the Subscription pricing at any time in accordance with these Terms. If changes to the Subscription price occur that impact your Subscription, REALLY will use commercially reasonable efforts to notify you, such as by sending an email to the email address associated with your User Account. If you do not agree with such changes, you may cancel your Subscription as set forth on the Website. All subscription payments will be due monthly, or as otherwise invoiced by REALLY, and you shall pay REALLY the amount due, on or before the payment due date.
c. General Payment Terms. All payments will be made in U.S. dollars. REALLY may charge interest on the past due amount at the rate of 1.5% per month, calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; and (ii) you shall reimburse REALLY for all costs incurred by REALLY in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees. All sales will be inclusive of relevant sales taxes. Users are responsible for assessing and paying any other applicable taxes.
d. Payment Processing. REALLY may use a third-party service provider for payment services (e.g., card acceptance, merchant settlement, and related services) (“Third-Party Service Provider”). If you make a purchase on the Services, you will be required to provide your payment details and any additional information required to complete your order directly to our Third-Party Service Provider. Please note that online payment transactions may be subject to validation checks by our Third-Party Service Provider and your card issuer, and we are not responsible if your card issuer declines to authorize payment for any reason. For your protection, our Third-Party Service Provider uses various fraud prevention protocols and industry standard verification systems to reduce fraud and you authorize it to verify and authenticate your payment information. Your card issuer may charge you an online handling fee or processing fee. We are not responsible for this. In some jurisdictions, our Third-Party Service Provider may use third parties under strict confidentiality and data protection requirements for the purposes of payment processing services.
e. REALLY Hosts. Payment terms for Users hosting Radios will be set forth in the applicable Radio Host Agreement. Amounts paid to REALLY Hosts will be exclusive of all income taxes, for which assessment and payment thereof will be the responsibility of REALLY Hosts.
f. Free Trials and Promotional Access. REALLY may offer free trials and promotional access to the Services at our discretion. Notwithstanding the foregoing, any free trial or other promotional access to the Services must be used within the time specified at the time you registered for such free trial or promotion. At the end of the trial or promotional period, your access to the applicable Services, features, or functionality thereof will expire, and any further use of such Services, features, or functionality thereof is prohibited unless you pay the applicable fees.
1.7 Restrictions and Acceptable Use
You agree not to engage in any of the following prohibited activities: (a) copying, distributing, or disclosing any part of the Services in any medium, including without limitation by any automated or non-automated “scraping”; (b) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Services in a manner that sends more request messages to the REALLY servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that REALLY grants the operators of public search engines revocable permission to use spiders to copy publicly available materials from the Services for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (c) transmitting spam, chain letters, or other unsolicited email; (d) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Services; (e) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (f) uploading invalid data, viruses, worms, or other software agents through the Services; (g) collecting or harvesting any personally identifiable information, including account names, from the Services; (h) using the Services for any commercial solicitation purposes; (i) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (j) interfering with the proper working of the Services; (k) accessing any content on the Services through any technology or means other than those provided or authorized by the Services; (l) modifying, altering, reverse engineering, disassembling or decompiling all or any portion of the Services (including the Products); (m) using the Services and/or Products in a manner that violates any applicable federal, state and local laws, rules and/or regulations (including without limitation the regulations of the FCC governing the Citizens Broadband Radio Service); (n) bypassing the measures we may use to prevent or restrict access to the Services, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Services or the content therein; (o) using the Services and/or Products to transmit, display, perform, distribute or otherwise use any third party intellectual property without authorization of the intellectual property rights holder; (p) excessive voice usage, including, but not limited to excessive or frequent calls to the same telephone number, excessive inbound or outbound calls, excessive calls during business hours, excessively long calls to a single telephone number, calls made to numerically sequential telephone numbers, excessive calls to territories of the United States, high volume termination and re-initiation of calls, engaging in continuous or extensive call forwarding, using the Services for transmission or reception of broadcasts, telemarketing, fax broadcasting, chat lines, conference bridge or call center functions, or using an auto-dialer in connection with the Services; (q) excessive inbound or outbound SMS messaging including, but not limited to using any Services to engage in spam or junk SMS or MMS messaging or using applications that engage in unattended use or generate automatic SMS or MMS feeds, or engage in automated machine-to-machine or machine-to-person messaging; (r) excessive use of a device as a mobile “hotspot” tethered to other devices or other excessive data usage that is not typical of an individual consumer’s non-commercial, personal use including but not limited to automated connections that allow web broadcasts, automatic data feeds, automated machine-to-machine connections or peer-to-peer file sharing, use of Services as a substitute or back-up for private lines, landlines, or full-time or dedicated data connections, excessive and/or disproportionate data usage that contributes or has the potential of contributing to network congestion, spam or unsolicited commercial or bulk email generation, using unauthorized software or devices to maintain a continuous active Internet connection when the connection would otherwise have entered idle mode, and usage that conflicts with applicable law; (s) using domestic roaming data in excess of 200 megabytes per billing cycle, or excessive domestic roaming voice minutes per billing cycle (in which event REALLY may disable roaming data on your account); (t) if international long distance or international roaming is included in your Rate Plan exceeding the international long distance or international roaming limits or thresholds set out in your Rate Plan (in which event REALLY may disable international long distance or international roaming on your account); (u) modifying or tampering with your device, including but not limited to unlocking, rooting, re-flashing, jail breaking, or altering the build state of your device in a manner which conflicts with REALLY’s policies or rules on unlocking devices, or engaging in any unauthorized or illegal use of your device or the Services, or assisting others in such acts; (v) using a repeater or signal booster other than one we provide to you; (w) using the Services or device in a manner that adversely interferes with the security or capacity of the network over which Services is provided or degrades its performance or hinders other customers’ access to the network; (x) resale of Services; (y) intercepting other people’s communications or accessing or attempting to access another person’s account or otherwise circumvent any security measures imposed by REALLY or another user; (z) any attempt to assist or facilitate anyone engaging in any of the above activities.
1.8 User Responsibilities
Notwithstanding any other responsibilities or obligations that you may have under these Terms, you acknowledge and agree that: (i) you are solely responsible for all use of the Services associated with your User Account, whether by you or someone using the Services with or without your permission; (ii) you shall not use the Services, directly or indirectly, for any unlawful purpose, including without limitation, violation of copyright laws; and (iii) you are solely responsible for ensuring that any and all use of the Services complies with terms and conditions of all applicable third-party agreements (including agreements with internet service providers and/or housing providers) as well as all applicable federal, state and local rules and regulations (including without limitation the regulations of the FCC governing the Citizens Broadband Radio Service), and REALLY shall have no liability in the event that you fail to do so, even if actions taken by a third party in response to your breach reduce or eliminate the value of the Services.
1.9 Changes to the Services
We may, without prior notice, change the Services, stop providing the Services or features of the Services, to you or to Users generally; or create usage limits for the Services. We may permanently or temporarily terminate or suspend your access to the Services (including your User Account), restrict your access to the Services (for example, by throttling your connection) or remotely turn off or disengage the Products without notice and liability for any reason, including if in our sole determination you violate any provision of these Terms, or for no reason. Upon termination for any reason or no reason, you continue to be bound by these Terms.
1.10 Disputes with Other Users
You are solely responsible for your interactions with other Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. REALLY shall have no liability for your interactions with other Users or for any User’s action or inaction, including with respect to the resale by of a Product by a User or the purchase of a Product from a User.
1.11 Installation; Premises Access
As a REALLY host, you may have Radios and/or other materials related to the Services (the “Installed Materials”) installed at your residential or commercial building or site (the “Premises”) through REALLY’s installation services. In order to provide such installation services, you agree to allow our installers (“Installers”) the right, at reasonable times, to enter the Premises for purposes of installing, maintaining, servicing, inspecting, upgrading and/or removing the Services. You acknowledge and agree that you are either an owner of, or legal tenant in the Premises, and as such have the right to allow Installers to enter and make such modifications to the Premises in connection with the Services. While such Installers will make reasonable efforts to accommodate building access or homeowner association policies (if provided by you), you acknowledge and agree that you are solely responsible for any and all violations of such policies. You further agree that, to the fullest extent under applicable law, that Installers shall be considered invitees at all times when on the Premises and for all purposes of premises liability. You agree that you will be responsible for any damage to the Installed Materials. NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS, AND TO THE FULLEST EXTENT PERMITTED BY LAW, REALLY OR ITS AFFILIATES AND THE INSTALLERS SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE TO PERSONS, PROPERTY OR THE PREMISES RESULTING FROM SUCH INSTALLATION ACTIVITIES.
1.12 Remote Access
REALLY may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Services (“Updates”). To provide the Updates and render any other Services, REALLY may access your computer, hardware, software, and files (“Remote Access”). You consent to the Remote Access. If you do not want to allow Remote Access, your remedy is to terminate your User Account and stop using the applicable Products and Services. If you do not terminate a previously created User Account, you acknowledge that REALLY may continue such Remote Access. You acknowledge that you may be required to allow Remote Access to use the Services. Your continued use of any Services is your agreement to these Terms with respect to Remote Access and any updated Services. You hereby agree that REALLY shall not be responsible or liable for any damages, data loss, data breach, or other property or other injury of any nature whatsoever arising from, in whole or in part, REALLY’s Remote Access, and indemnify and hold REALLY, its owners, shareholders, members, partners, directors, officers, agents, employees, and contractors, harmless from all damage associated with the implementation and use of Remote Access.
1.13 Communications
By providing REALLY your email address you consent to REALLY using the email address to send you Services-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as notices regarding changes to features of the Services and special offers. If you do not want to receive such email messages, you may opt out. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
REALLY may offer one or more mobile message programs (collectively, the “Message Service”) that allows Users to receive SMS/MMS mobile messages by opting-in such as through online or application-based enrollment forms. Regardless of the opt-in method you use to enroll, you agree that your use of the Message Service is governed by these Terms. We do not charge for the Message Service, but you are responsible for all charges and fees associated with mobile messaging imposed by your wireless carrier and you acknowledge that your carrier may charge you or deduct usage credit from your account when you text us or we send messages to you. Message and data rates may apply. By enrolling a telephone number in the Message Service, you authorize us to send recurring SMS and MMS mobile messages to the number you specify, and you represent that you are authorized to receive mobile messages at such number. You agree that these messages may be transmitted using an automatic telephone dialing system (“ATDS”), other automated systems for the selection or dialing of telephone numbers, or different technology. Your consent to receive mobile messages via an ATDS or other automated system for the selection or dialing of numbers is not required (directly or indirectly) as a condition of purchasing any property, goods or services. While you consent to receive messages sent using an ATDS, the foregoing shall not be interpreted to suggest or imply that any or all of our messages are sent using such a system. Message frequency varies. If you do not wish to continue participating in a Message Service program we offer, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message you receive from that program to opt out. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You acknowledge that our text message platform may not recognize and respond to unsubscribe requests that alter, change, or modify the STOP, END, CANCEL, UNSUBSCRIBE or QUIT keyword commands, such as the use of different spellings or the addition of other words or phrases to the command, and agree that that we and our service providers will have no liability for failing to honor such requests. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those keyword commands set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out. To the extent you subscribe to more than one Message Service program that we operate, you must unsubscribe from each program separately. For Message Service support or assistance, text the HELP keyword in response to any message you receive through the Message Service or email us at hello@really.com. Please note that the use of this email address is not an acceptable method of opting out of Message Service. Opt outs must be submitted in accordance with the procedures set forth above. We may change any short code or telephone number we use to operate the Message Service at any time with notice to you. You acknowledge that any messages, including any STOP or HELP requests, you send to a short code or telephone number we have changed may not be received and we are not responsible for honoring requests made in such messages. The Message Service may not be available in all areas or supported by all carriers or all devices. Check with your carrier for details. Delivery of mobile messages is subject to effective transmission from your wireless carrier/network operator and is outside of our control. We and the wireless carriers supported by the Message Service are not liable for any failed, delayed or undelivered messages. If you decide to change your mobile phone number, you agree to first opt out of each Message Service program in which your number is enrolled.
2. REALLY Proprietary Rights
The Services and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, and music (the “REALLY Content”), and all intellectual property rights related thereto, are the exclusive property of REALLY and its licensors. Except as explicitly provided herein, nothing in these Terms shall be deemed to create a license in or under any such intellectual property rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any REALLY Content. Use of the REALLY Content for any purpose not expressly permitted by these Terms is strictly prohibited.
You may choose to, or we may invite you to, submit comments or ideas about the Services, including without limitation about how to improve the Services or our products (“Feedback”). By submitting any Feedback, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place REALLY under any fiduciary or other obligation, and that we are free to use the Feedback without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, REALLY does not waive any rights to use similar or related ideas previously known to REALLY, or developed by its employees, or obtained from sources other than you.
The Services contain data, information, and other content not owned by you. You acknowledge that you do not own the User Account you use to access the Services, nor do you possess any rights of access or rights to data stored by or on behalf of REALLY on REALLY servers. All data on REALLY’s servers are subject to deletion, alteration or transfer. NOTWITHSTANDING ANY VALUE ATTRIBUTED TO SUCH DATA BY YOU OR ANY THIRD PARTY, YOU UNDERSTAND AND AGREE THAT ANY DATA, USER ACCOUNT HISTORY AND USER ACCOUNT CONTENT RESIDING ON REALLY’S SERVERS, MAY BE DELETED, ALTERED, MOVED OR TRANSFERRED AT ANY TIME FOR ANY REASON IN REALLY’S SOLE DISCRETION, WITH OR WITHOUT NOTICE AND WITH NO LIABILITY OF ANY KIND. REALLY DOES NOT PROVIDE OR GUARANTEE, AND EXPRESSLY DISCLAIMS, ANY VALUE, CASH OR OTHERWISE, ATTRIBUTED TO ANY DATA RESIDING ON REALLY’S SERVERS.
3. REALLY’s Privacy and Security Policies
3.1 Privacy
We care about your privacy. By using the Services you acknowledge that we may collect, use, and disclose your personal information and aggregate and/or anonymized data as set forth in our Privacy Policy, available at https://www.REALLY/privacy-policy, You understand and acknowledge that you may have your personal information collected, used, transferred to and processed in the United States.
3.2 Security
REALLY uses commercially reasonable physical, managerial, and technical safeguards to preserve the integrity and security of your personal information and implement your privacy settings. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
4. Shopify and Other Vendors
Our Services and/or Products may be available for purchase on Shopify, which acts as a storefront and payment processor. In the event that you purchase our Services on Shopify, you agree to be bound by Shopify’s terms of service, which are available at https://www.shopify.com/legal/terms.
Our Services and/or Products may also be available to purchase directly through us or our affiliates, or through third-party vendors. Any such Product purchase will be subject to these Terms, and any terms of service provided by such third-party vendor.
5. Additional Terms for Apps
5.1 Apps
We may make Apps available through which you may access the Services via a mobile device. To use any Apps, you must have a mobile device that is compatible with the Apps. We do not warrant that the Apps will be compatible with your mobile device. You may use mobile data in connection with the Apps and may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges. We hereby grant you a limited, non-exclusive, non-transferable, revocable license to use a compiled code copy of the Apps for one (1) User Account on one (1) mobile device owned or leased solely by you, for your personal use. You may not: (i) modify, disassemble, decompile or reverse engineer the Apps, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Apps to any third party or use the Apps to provide time sharing or similar services for any third party; (iii) make any copies of the Apps; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Apps, features that prevent or restrict use or copying of any content accessible through the Apps, or features that enforce limitations on use of the Apps; or (v) delete the copyright and other proprietary rights notices on the Apps. You acknowledge that we may from time-to-time issue upgraded versions of the Apps and may automatically electronically upgrade the version of the Apps that you are using on your mobile device. You consent to such automatic upgrading on your mobile device and agree that the terms and conditions of these Terms will apply to all such upgrades. Any third-party code that may be incorporated in the Apps is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Apps or any copy thereof, and REALLY or our third-party partners or suppliers retain all right, title, and interest in the Apps (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in these Terms, is void. We reserve all rights not expressly granted under these Terms. If the Apps is being acquired on behalf of the United States Government, then the following provision applies. The Apps will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, reproduction, release, performance, display or disclosure of the Services and any accompanying documentation by the United States Government will be governed solely by these Terms and is prohibited except to the extent expressly permitted by these Terms. The Apps originates in the United States and is subject to United States export laws and regulations. The Apps may not be exported or re-exported to certain countries, or those persons or entities prohibited from receiving exports from the United States. In addition, the Apps may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Apps and the Services.
5.2 Apps from Apple App Store
The following applies to the iOS App, which may be acquired from the Apple App Store (“Apple-Sourced Software”): You acknowledge and agree that these Terms are solely between you and REALLY, not Apple, Inc. (“Apple”) and that Apple has no responsibility for the Apple-Sourced Software or content thereof. Your use of the Apple-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms and any law applicable to REALLY as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the Apple-Sourced Software or your possession and/or use of the Apple-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by these Terms and any law applicable to REALLY as provider of the software. You acknowledge that, in the event of any third-party claim that the Apple-Sourced Software or your possession and use of that Apple-Sourced Software infringes that third party’s intellectual property rights, REALLY, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms. You and REALLY acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms as relates to your license of the Apple-Sourced Software, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as relates to your license of the Apple-Sourced Software against you as a third-party beneficiary thereof.
5.3 Apps from Google Play Store
The following applies to the Android App, which may be acquired from the Google Play Store (“Google-Sourced Software”): (i) you acknowledge that these Terms are between you and REALLY only, and not with Google, Inc. (“Google”); (ii) your use of Google-Sourced Software must comply with Google’s then-current Google Play Store Terms of Service; (iii) Google is only a provider of the Google Play Store where you obtained the Google-Sourced Software; (iv) REALLY, and not Google, is solely responsible for its Google-Sourced Software; (v) Google has no obligation or liability to you with respect to Google-Sourced Software or these Terms; and (vi) you acknowledge and agree that Google is a third-party beneficiary to these Terms as they relate to REALLY’s Google-Sourced Software.
6. Third-Party Links and Information
The Services may contain links to third-party websites (“Third-Party Websites”), applications (“Third-Party Applications”) and advertisements for third parties (“Third-Party Ads”) (collectively, the “Third-Party Services”). When you click on a link to a Third-Party Service, we will not warn you that you have left the Services and you become subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Services are not under the control of REALLY. REALLY is not responsible for any Third-Party Services. REALLY provides these Third-Party Services only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Services, or any product or service provided in connection therewith. You use all links in Third-Party Services at your own risk. When you leave our Service, these Terms and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Services, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
7. Service Limitations
You acknowledge that certain CBRS Services, including those provided by REALLY, must protect certain other users from harmful interference, but are generally not entitled to protection from harmful interference from third parties. You agree that REALLY will have no liability to you or any User under your account, nor any of your customers, for any interference to the Services, any loss or delay in transmission or reception using the Services, or any Claims (as defined below) arising out of either of the foregoing.
REALLY may, at any time, revise its coverage area or other aspects of the Services. REALLY will use commercially reasonable efforts to provide thirty (30) days’ advance notice of such changes in accordance with Section 22.2 (Notification Procedures and Changes to these Terms), provided, however, that if such changes are a result of changes in applicable law (including without limitation, FCC rules) or loss of property rights necessary to operate from one or more locations, such changes may become effective without notice.
You are solely responsible for your business activities using the Services and/or Products. Without limiting the generality of the foregoing, REALLY makes no representation of any kind that you will be able to use the Services and/or Products to generate revenue.
8. Phone Numbers and Number Portability
(a) Phone Number and SIM. We will assign a wireless phone number to you. You acknowledge and agree that REALLY may contact you at any time on the wireless phone number that has been assigned to you. You may not select your wireless phone number. If you are porting in your telephone number from another carrier or a network with facilities not controlled by REALLY, REALLY may not be able to activate your Services until your former carrier completes the process of porting your telephone number, and you acknowledge that REALLY does not control the porting-in process from the other carrier or timing of completion. Phone numbers may only be ported-in from another carrier if you had active Services with the other carrier at the time you requested the porting-in of the phone number to REALLY. Some phone numbers, such as 500, 800, 888, 900 and Google voice phone numbers, may not be eligible for porting-in to REALLY. You acknowledge that except as required by law, you shall acquire no proprietary interests in the number (MDN) or SIM (Subscriber Identity Module) assigned by REALLY for your use. You acknowledge that any intellectual property or software in the SIM not provided by REALLY or you is the property of the supplier of Services to REALLY, and such supplier may change or update the software or other data in the SIM card or the software in the device over the air and utilize any capacity in the SIM card for administrative, network, business and/or commercial purposes. You do not have any proprietary rights to any identification number, e-mail address or other identifier that the REALLY assigns to (i); you; (ii) your device; or (iii) your account. REALLY may change or reassign them, but if we do, we will notify you. You agree to protect your SIM Card and not to resell it or allow an unauthorized person to use or access your SIM Card. You agree not to alter, bypass, copy, deactivate, remove, reverse-engineer or otherwise circumvent or reproduce the encoded information stored on, or the encryption elements of your SIM Card, or to allow any other person to do so. Any violation of the restrictions on the use of your SIM Card that may result in termination of your Services including potentially without notice.
(b) Phone Number Portability. You may authorize another carrier to transfer your number from REALLY to that carrier. By taking this step, you are terminating all Services that REALLY provides you associated with that telephone number, but you will remain responsible for all charges that you incur prior to deactivation. Once you request that your phone number be ported from REALLY to another carrier, that porting request cannot be canceled or modified by REALLY.
9. Location Based Services
If your device is location-enabled and turned on, you will be able to use your device for certain geographic Services offered by REALLY or other third parties (“Location Based Services”). These Location Based Services may use location technology such as Global Positioning Satellite (“GPS”), wireless network location, or other technology in order to provide enhanced 9-1-1 Services and other optional Services. Please be aware that your ability to use these Location Based Services may be impacted by weather, geography, topography, obstructions (including the interior or exterior of buildings), connecting to a Wi-Fi network instead of a cellular network, and other environmental or ambient issues. Details on the use and disclosure of information obtained from your device or use of the Services are provided in REALLY’s privacy policy. You acknowledge and agree that REALLY or one of REALLY’s service providers or vendors may use location information related to or generated by your device or the Services and sell or disclose such information to a third-party provided that such information is shared or sold only on an aggregated and anonymized basis. Use of the Location Based Services may also have restrictive features such as parental controls. You, as the account holder, will be responsible for notifying the authorized user of the device that the device may have geographic location capability, that it may be tracked, and that it may have certain restrictions built into the device. REALLY is not responsible for any injuries or damages that may occur from the operation of Location Based Services or any failure of Location Based Services to operate correctly or accurately.
10. Emergency Services
PLEASE REVIEW THIS SECTION CAREFULLY. IT CONTAINS IMPORTANT INFORMATION ON LIMITATIONS OF 911 SERVICE. YOU ACKNOWLEDGE THESE LIMITATIONS AND AGREE TO SHARE THEM WITH ANYONE WHO MAY USE YOUR SERVICE INCLUDING AUTHORIZED USERS AND USERS OF LINES OF SERVICE UNDER YOUR ACCOUNT.
You must be able to provide your location information when making any 9-1-1 or other emergency calls. Because of a number of factors such as whether local emergency service providers have upgraded their equipment and whether your device is GPS enabled, 9-1-1 operators may not know your location or your phone number. Enhanced 9-1-1 service (“E9-1-1”) uses GPS technology and, when enabled by local emergency authorities, it will provide location information; however, even when available, E9-1-1 may not provide accurate location information because you may be indoors or do not have satellite signals. Your device must have battery power and network connectivity to complete a 911 call. Other third-party entities are involved in connecting a 911 call and REALLY is not responsible for determining the 911 public safety answering point to which your 911 call may be routed. Wi-Fi Calling and Voice Over IP (“VoIP”) services use a broadband internet connection to make calls, including calls to 911. Calls to 911 using Wi-Fi Calling or VoIP operate differently than 911 calls made over a cellular network or a landline phone. Using Wi-Fi calling or VoIP is dependent upon the availability and reliability of your broadband connection and may result in your 911 call being routed to the wrong 911 public safety answering point or the 911 public safety answering point having less accurate, inaccurate or no information on your location. For purposes of 911 calls using Wi-Fi calling or VoIP, emergency services may be sent to an address or location you provide to REALLY or a REALLY vendor that is stored in an electronic database. You acknowledge and understand that this address or location must be provided by you to REALLY and kept current and will not change as your actual location or home address changes unless you first direct REALLY to change the address or location in the relevant database and provide adequate time for REALLY to implement such change. Because of the manner in which 911 calls are implemented and the limitations of using an address database for such calls, you should, if possible, always use a cellular connection or a landline phone to place any 911 calls. In the event that you or anyone using your Services chooses instead to call 911 using Wi-Fi calling or VoIP, you acknowledge and agree that REALLY shall have no liability for any damages, injuries, or claims of any kind resulting from defects or errors that occur in directing emergency services to the person placing the 911 call. If you download or use applications, services or software provided by third parties (including voice applications), 911 or E911, or other calling functionality, may work differently than services offered by REALLY, or may not work at all. Please review all terms and conditions of such third–party products. REALLY may not be able to provide you with some Services, such as 9-1-1 location Services while you are in the process of porting a phone number to or from us, and the REALLY Group is not responsible for failure to connect or complete 9-1-1 calls or for the provision of inaccurate location information.
11. Roaming
You roam when you use Services on another carrier’s network, and those Services are made available to you based on agreements with other carriers. The agreement with other carriers may change from time to time; therefore, roaming coverage is subject to change. You may not have access to all Services, and the extent of coverage will depend upon the relevant agreement with each roaming carrier. There may be additional charges for roaming in some areas domestically or internationally and you should consult your Rate Plan for such roaming charges and the areas in which such charges will be incurred. International roaming may not be available at all if you have not included international roaming in your Rate Plan and REALLY may impose limitations on your ability to engage in international roaming. If you were roaming prior to the close of a billing cycle, but we do not receive roaming records for voice, messaging and data from our roaming partner until after the billing cycle closes, then we will apply the usage charges to the billing cycle in which we received the roaming record from the roaming partner. This may affect your balance of included minutes, messages and data usage in your rate plan for the billing cycle and can result in overage charges if you have utilized all of your allocations for the billing period in which we receive the roaming record from our roaming partner. You are responsible for complying with U.S. Export Control laws and regulations, and the import laws and regulations of foreign countries when traveling internationally with your device. The availability of, and access to, emergency calling services (e.g., 911 in the U.S.), may vary by country. You should familiarize yourself with how to access these services before using your device for international roaming. REALLY may suspend roaming service if REALLY (in its sole discretion) determines that your amount of roaming use exceeds your normal usage and may result in substantially higher charges than you typically incur. In such a case, REALLY will suspend roaming until we can contact you and we may require a prepayment of roaming charges before restoring roaming service.
12. International Calling and SMS/MMS
The Services offered under your Rate Plan do not include international calling, which includes calls placed from the U.S. to another country, unless you request such Services be included in your Rate Plan on a per line basis. In the event you request international calling be added to your Rate Plan, REALLY may impose certain qualifications or requirements before you can add international calling to your Rate Plan. If you add international calling to your Rate Plan, REALLY may impose limitations on the number of changes you can make to your international calling plan in a given billing cycle. REALLY may impose limitations on your international calling and such limitations are set out in your Rate Plan. Charges will vary based on the destination of the call, and on whether it is a mobile termination or a landline termination. Incoming international SMS/MMS messages will be treated in the same manner as domestic incoming SMS/MMS messages. For international messages that you send, the rates you will pay will be fixed rates for any message destination. REALLY may suspend international calling or international SMS/MMS if REALLY (in its sole discretion) determines that your amount of international calling or international SMS/MMS exceeds your normal usage and may result in substantially higher charges than you typically incur. In such a case, REALLY will suspend international calling or international SMS/MMS until we can contact you and we may require a prepayment of international calling or international SMS/MMS charges before restoring international calling or international SMS/MMS service.
13. Data and Messaging Services
The rates, terms and conditions for your use of data and messaging services are set out in your Rate Plan. Certain messages are non-billable, and they include REALLY initiated notifications and administrative messaging. Unused messages or data allowances will not carry forward to the next billing cycle. You will be allowed over-the-air device updates and certain value-added features that consume data without incurring charges. These non-billable features are REALLY initiated firmware updates or device diagnostics, self-care application usage, phone activations, and data component of picture and video messaging. When you activate data Services or messaging Services, you must have voice Services, and if you cancel your voice Rate Plan, your data Services or messaging Services will be terminated as well. You will be charged for messages and email whether read or unread, sent or received, solicited or unsolicited.
14. “Unlimited Data” Plans
If you are on an unlimited data Rate Plan, you agree that "unlimited" means you pay a monthly fee for wireless data Services no matter how much data you use and that subscribing to an unlimited data Rate Plan does not mean that you can use Services in any manner you choose or in violation of any of REALLY’s applicable policies (including REALLY’s AUP) or any of the terms and conditions of this Agreement. You also agree that even under an unlimited data Rate Plan, REALLY may limit, restrict, suspend, or terminate your data service or switch you to an alternate Plan if your data usage is excessive, exceeds any thresholds or data allowances established by REALLY, or violates any applicable REALLY policies (including REALLY’s AUP) or any terms and conditions of this Agreement.
15. Taxes, Assessments and Fees
You must pay all federal, state, and local taxes, fees, and other assessments applicable to the Services we provide you and such taxes, fees and other assessments are not included in and are in addition to the monthly charges provided for in your Rate Plan. We may make changes to these charges without giving you advance notice. If you are claiming any tax exemption, you must provide us with your exemption certificates and pay for any filings we make in connection with your exemption request. We use the street address at which you receive REALLY Services as your Location of Use (“LOU”) purposes of determining and calculating applicable taxes, unless the tax laws require use of a different address in which case we utilize the best information available to us to determine the correct address. Except as may be otherwise required by law, in the event you dispute your LOU or the location we assigned you and the resulting taxes or fees applied on your bill, you must request a recalculation of the disputed tax or fee within 60 days of the date of our bill containing such tax or fee.
16. Surcharges
You agree to pay all other charges we may assess to defray governmental charges or costs we incur in connection with the Services (“Surcharges”), and these Surcharges may include, but are not limited to, Federal Universal Services, various regulatory and administrative charges, gross receipts charges and charges that we may incur in complying with governmental programs. The amount and type of these Surcharges vary depending upon the location of your service address, and because some Surcharges are based on amounts set by the government, we will not always be able to provide advance notice of new Surcharges or changes in the amount of existing Surcharges. Therefore, we shall be entitled to add new Surcharges or change the amount of existing Surcharges that we charge you without providing advance notice to you. Surcharges will apply whether or not you benefit from the programs, activities, or services included in the Surcharge.
17. Charging for Voice and Data Calls and Rounding Up
Airtime usage for voice calls is measured from the time the network begins to process a call (before the phone rings or the call is answered) through its termination of the call (after you hang up). Any calls you make or receive using your device are rated on full minutes of use, and minutes are rounded up to the nearest whole minute. For example, a call that lasts for 5 minutes will be billed for 5 minutes of usage, and a call that lasts for 5 minutes and 1 second will be billed for 6 minutes of usage. You may be charged for more than one call/message when you use certain features resulting in multiple inbound or outbound calls/messages (such as call forwarding, call waiting, voicemail, conference calling, and multi-party messaging). Total data usage during each billing cycle will be rounded up to the nearest gigabyte. For each individual event of data usage, the gigabytes actually used during the event will be rounded up to the next 0.01GB. In the event that you are on a Rate Plan where you purchase data by the gigabyte, you will be charged a minimum usage charge for 1 gigabyte of data usage per line even if you had no data usage during the billing cycle.
18. Indemnity
You agree to defend, indemnify and hold harmless REALLY, its parent, and their respective affiliates, subsidiaries, agents, licensors, managers, employees, contractors, officers and directors (collectively, the “REALLY Indemnitees”), from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) (collectively, “Claims”) arising from: (i) your use of and access to the Services, including any data or content transmitted or received by you; (ii) your violation of any provision of these Terms, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or intellectual property rights; (iv) your violation of any applicable law, rule or regulation; (v) any content that is submitted by you including without limitation misleading, false, or inaccurate information; (vi) your willful misconduct; or (vii) any other party’s access and use of the Services with your unique username, password or other appropriate security code. In the event that any REALLY Indemnitee receives notice or discovers that it is subject to a Claim, REALLY will provide you with prompt notice of the same; provided that any failure or delay in providing notice will not excuse your compliance with this Section except to the extent that your defense of such Claim is actually prejudiced thereby. You will defend or settle such Claim with counsel of your choosing, reasonably acceptable to REALLY; provided that you will not agree to any settlement that admits liability on the part of any REALLY Indemnitee or imposes future obligations on any REALLY Indemnitee without REALLY’s prior written consent.
19. Warranty and Warranty Disclaimer
THE REALLY SERVICES AND/OR PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICES AND/OR PRODUCTS IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND/OR PRODUCTS ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM REALLY OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, REALLY, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE PURCHASE AND USE OF THE SERVICES AND/OR PRODUCTS WILL GENERATE ANY MINIMUM OR EXPECTED RETURN ON INVESTMENT; THAT THE SERVICES AND/OR PRODUCTS WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES AND/OR PRODUCTS WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; THAT THE SERVICES AND/OR PRODUCTS WILL BE UNINTERRUPTED OR SECURE; THAT THE SERVICES AND/OR PRODUCTS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THAT THE REALLY CONTENT IS ACCURATE, RELIABLE OR CORRECT; OR THAT ANY DEFECTS OR ERRORS IN THE SERVICES, PRODUCTS OR REALLY CONTENT WILL BE CORRECTED. ANY REALLY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES AND/OR PRODUCTS IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICES.
FURTHER, REALLY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY THIRD-PARTY PRODUCTS OR SERVICES ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY HYPERLINKED WEBSITE OR SERVICES, AND REALLY WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND PROVIDERS OF THIRD-PARTY PRODUCTS OR SERVICES.
FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THESE TERMS GIVE YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS AND EXCLUSIONS UNDER THESE TERMS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
20. Limitation of Liability
YOU UNDERSTAND AND AGREE THAT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL REALLY, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS (COLLECTIVELY, THE “REALLY PARTIES”) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THE SERVICES. UNDER NO CIRCUMSTANCES WILL REALLY BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM INSTALLER NEGLIGENCE, HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR USER ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REALLY ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY: (I) ERRORS, MISTAKES, OMISSIONS OR INACCURACIES IN ANY CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM INSTALLER NEGLIGENCE OR YOUR ACCESS TO OR USE OF THE SERVICES; (III) UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES; (V) FAILURE TO GENERATE A RETURN ON AN INVESTMENT IN THE SERVICES; (VI) BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY; (VII) LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICES; AND/OR (VIII) THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL THE REALLY PARTIES BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID FOR THE SERVICES HEREUNDER OR $50.00, WHICHEVER IS GREATER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF REALLY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THESE TERMS GIVE YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THESE TERMS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. IF ANOTHER WIRELESS CARRIER (E.G., A ROAMING CARRIER OR AN UNDERLYING PROVIDER) IS INVOLVED IN ANY ACT OR OMISSION RELATED TO YOUR SERVICES, YOU ALSO AGREE TO ANY LIMITATIONS OF LIABILITY THAT THE OTHER WIRELESS CARRIER IMPOSES ON ANY CLAIMS.
21. Governing Law, Arbitration Agreement
21.1 Governing Law
You agree that: (i) the Services shall be deemed solely based in Texas; and (ii) the any Service shall be deemed passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than Texas. These Terms shall be governed by the internal substantive laws of the State of Texas, without respect to its conflict of laws principles. The parties acknowledge that these Terms evidence a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, the Federal Arbitration Act (9 U.S.C. §§ 1-16) (“FAA”) governs the interpretation and enforcement of the Arbitration Agreement in Section 21.2 and preempts all state laws to the fullest extent permitted by law. If the FAA is found to not apply to any issue that arises from or relates to the Arbitration Agreement, then that issue shall be resolved under and governed by the law of your state of residence. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the exclusive personal jurisdiction of the federal and state courts located in Texas for any actions for which we retain the right 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 our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Texas is the proper and exclusive forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
ARBITRATION AGREEMENT. Please read this section (the “Arbitration Agreement”) carefully. It is part of your contract with Company and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and REALLY agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Services or this Agreement and prior versions of this Agreement, including claims and disputes that arose between you and us before the effective date of this Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (i) you and REALLY may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (ii) you or REALLY may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of this Agreement as well as claims that may arise after the termination of this Agreement.
Informal Dispute Resolution. There might be instances when a Dispute arises between you and REALLY. If that occurs, REALLY is committed to working with you to reach a reasonable resolution. You and REALLY agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome (“Informal Dispute Resolution”). You and REALLY therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.
The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within forty-five (45) days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to REALLY that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to legal@really.com. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your User Account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute.
The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
Waiver of Jury Trial. YOU AND REALLY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and REALLY are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 21.2 (Applicability of Arbitration Agreement). There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
Waiver of Class and Other Non-Individualized Relief. YOU AND REALLY AGREE THAT, EXCEPT AS SPECIFIED IN SECTION 21.10 (BATCH ARBITRATION), EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, 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 the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under Section 21.10 (Batch Arbitration). Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this section are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and REALLY agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of Texas. All other Disputes shall be arbitrated or litigated in small claims court. This section does not prevent you or REALLY from participating in a class-wide settlement of claims.
Rules and Forum. This Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and REALLY agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at: https://www.adr.org/sites/default/files/Consumer%20Rules.pdf.
A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable Account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.
If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
Unless you and REALLY otherwise agree, or the Batch Arbitration process discussed in Section 16.9 (Batch Arbitration) is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely set forth in the applicable AAA Rules.
You and REALLY agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and shall be subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the State of Texas and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under Section 16.9 (Batch Arbitration) is triggered, the AAA will appoint the arbitrator for each batch.
Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to Section 21.5 (Waiver of Class and Other Non-Individualized Relief), including any claim that all or part of Section 21.5 (Waiver of Class and Other Non-Individualized Relief) is unenforceable, illegal, void or voidable, or that such Section 21.5 (Waiver of Class and Other Non-Individualized Relief) has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in Section 21.10 (Batch Arbitration), all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in Section 21.10 (Batch Arbitration). The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or REALLY need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and REALLY agree that in the event that there are one-hundred (100) or more individual Requests of a substantially similar nature filed against REALLY by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by REALLY.
You and REALLY agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.
This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: legal@really.com, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address associated with your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
Invalidity, Expiration. Except as provided in Section 21.5 (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with REALLY as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if REALLY makes any future material change to this Arbitration Agreement, we will notify you. Unless you reject the change within thirty (30) days of such change become effective by writing to REALLY at legal@really.com, your continued use of the Services, including the acceptance of products and services offered on the Services following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of this Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Services or this Agreement, the provisions of this Arbitration Agreement as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement) remain in full force and effect. REALLY will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of this Agreement.
22. General
22.1 Assignment
These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without REALLY’s prior written consent, but may be assigned by REALLY without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
22.2 Notification Procedures and Changes to these Terms
REALLY may provide notifications, whether such notifications are required by law or are for marketing or other business-related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our Website, as determined by REALLY in our sole discretion. REALLY reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in these Terms. REALLY is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us.
REALLY may, in its sole discretion, modify or update these Terms from time to time, and so you should review this page periodically. When we change these Terms in a material manner, we will update the ‘last modified’ date at the top of this page and notify you that material changes have been made to these Terms. Your continued use of the Services and/or Products after any such change, constitutes your acceptance of the new Terms. If you do not agree to any of these terms or any future Terms, do not use or access (or continue to access) the Services and/or Products.
22.3 Construction and Interpretation
For purposes of these Terms, (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (d) words denoting any gender include all genders. The parties intend these Terms to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
22.4 No Waiver
No waiver of any provision of these Terms shall be deemed a further or continuing waiver of such term or any other term, and REALLY’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.
22.5 Force Majeure
REALLY shall not be liable or responsible to you or any other Users, nor be deemed to have defaulted or breached these Terms, for any failure or delay in fulfilling or performing any provisions of these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of REALLY including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
22.6 Relationship of Parties
These Terms do not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third party beneficiaries to these Terms except for Apple and Google as detailed in Sections 5.2 and 5.3. A person who is not a party to these Terms may not enforce any of its provisions under any applicable law.
22.7 Severability; Entire Agreement
Except as otherwise stated in the Arbitration Agreement, if any provision of these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect. These Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersede and merge all prior discussions between you and REALLY with respect to the subject matter herein.
22.8 Export Control
You may not use, export, import, or transfer the Services except as authorized by United States law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Service may not be exported or re-exported (i) into any United States embargoed countries, or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Service, you represent and warrant that (A) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (B) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by REALLY are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer the Products, Services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
22.9 Questions and Complaints
If you have any questions, complaints or claims with respect to the Service, please contact us at: hello@really.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
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