Terms of Service
Welcome to Stash! By using the Stash Services, you (“Developer” or “you”) agree to be bound by the rules set forth in these Developer Terms of Service (“Terms of Service” or “Agreement”), which constitute a binding legal agreement between you and Fractal Wagmi Inc. d/b/a Stash (“Stash” or “we”). Hereby incorporated by reference into this Agreement are the Order Form agreed to by you, the Data Processing Addendum, the Stash Privacy Policy, and any applicable supporting Documentation for the use of the Services available at https://docs.stash.gg/.
The parties mutually represent and warrant that each, respectively, has the right, power and authority to enter into these Terms of Service and to perform their respective duties, obligations and covenants set forth herein. If the individual accepting this Agreement is accepting on behalf of a legal entity, the individual represents that he or she has the authority to bind such entity to the Agreement, in which case the term “you” refers to the entity.
Stash may, in its sole discretion, change, modify, add or remove portions of this Agreement at any time by posting an updated version of this Agreement online or otherwise notifying you. Please check this Agreement and any documents referenced herein periodically for changes. You agree that your continued use of our Services after such changes have been published will constitute your acceptance of such revised Agreement. We may also change, suspend or discontinue the Services at any time in our sole discretion. Any new features, tools, software or solutions added to the current Services will also be subject to this Agreement. You must read this Agreement, which includes a binding arbitration agreement that governs the resolution of claims that may arise against Stash and limits how you may seek relief from us.
YOU AGREE THAT YOU ARE EIGHTEEN (18) YEARS OLD OR AT LEAST THE AGE OF MAJORITY IN YOUR COUNTRY OF RESIDENCE. YOU CONFIRM THAT YOU ARE USING THE SERVICES SOLELY FOR BUSINESS OR COMMERCIAL ACTIVITIES AND THAT YOU ARE NOT USING THE SERVICES FOR ANY PERSONAL, FAMILY OR HOUSEHOLD PURPOSES. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT USE THE SERVICES.
1. selected definitions
Capitalized terms not otherwise defined in this Agreement shall have the meaning set forth below.
“Applicable Law” means any applicable foreign, federal, state and local laws, rules and regulations promulgated by any local, municipal, state, federal, foreign or another governmental body or any of its representatives or departments, or by any regulatory or administrative agency, court or tribunal governing the parties’ respective rights, duties and obligations hereunder, as applicable.
“Card Network” means each of Visa, Mastercard, American Express, Discover, and any other card association or network organization issuing cards in connection with any transactions processed under this Agreement.
“Card Network Rules” means all rules, bylaws, programs, and regulations of the Card Networks, as the same are amended from time to time. Rules for Visa, Mastercard, and American Express are presently available online at usa.visa.com, www.mastercard.us, and https://icm.aexp-static.com/content/dam/gms/en_us/optblue/us-mog.pdf, respectively.
"Confidential Information" means information, whether written or oral, in any form, including without limitation, information relating to development, products, trade secrets, business plans, suppliers, customers, finances, personnel data, and other material or information considered proprietary by the disclosing party.
“Developer Account” is a Developer’s account to log in to Stash Studio.
"Developer Products" means the Developer’s digital goods, and any subsequent updates and upgrades thereto, that are resold by Stash. Developer Products may include in-app purchases, tokens, or any other virtual goods.
“Documentation” means documentation provided by Stash to the Developer that sets forth the requirements for the technical interaction of the parties in connection with the use of the Services, including the requirements for electronic formats and tools and networks to be used for any integration of the parties’ systems, as may be updated from time to time by Stash.
“Intellectual Property Rights” means any rights under patent, copyright, trade secret, trademark or similar intellectual property rights laws throughout the world.
“Order Form” means each order form accepted by Developer incorporating the terms of this Agreement which shall contain a description of the features of the Service to be provided by Stash, and additional information regarding term and fees.
“Purchaser” means the end customer who purchases a Developer Product via the Services.
“Sales Tax” means any tax or levy chargeable or withheld on the transaction globally, including but not limited to value added tax (VAT), goods and services tax (GST), sales tax, use tax. Sales Tax does not include excise, income, import, export, customs duties.
“Services” means the services provided by Stash under the Agreement, inclusive of the Stash Products.
“Stash Studio” is a dashboard application that lets you securely access your Developer Account from anywhere in the world. It allows Developers to view analytics and access tools to facilitate integration.
“Stash Products” are the proprietary computer programs developed by Stash that help video game developers and publishers operate and sell globally. All applicable documentation for Stash Products is provided at https://docs.stash.gg/
2. grant of licenses
2.1 Stash grants Developer a non-exclusive and non-transferable right and license during the Term of this Agreement to access and use those features of the Services to which Developer has subscribed. There are no implied licenses; all rights not expressly granted to Developer are reserved solely to Stash.
2.2 Developer grants to Stash a non-exclusive and non-transferable right and license during the Term of this Agreement to sell and facilitate access to the Developer Products by Purchasers.
2.3 Developer grants to Stash a non-transferable, non-exclusive right to use the Developer trademarks in order to provide the Services and shall indemnify Stash from and against any claim that Stash’s proper use of the Developer trademarks under such license infringes any third party rights. Stash shall not use the trademarks as part of its own trademarks, service marks or trade names or in any other manner that would tend to imply that Stash has an affiliation with Developer other than as set forth in this Agreement.
3. partner onboarding and account
3.1 Developer shall register with Stash in order to use the Services. Developer will receive a unique account (the “Developer Account”). In order to create a Developer Account, Developer shall provide such information about its business—which may include, but is not limited to, information about its financial status and creditworthiness, its activities, its shareholders (and ultimate beneficial owners), and the Developer Products—as Stash or our third party KYC verification partners request from time to time. Developer represents and warrants that all such information it provides is correct and up to date and shall provide us with at least five (5) business days' prior written notice of any material change to such information. To the extent that Developer provides personal information belonging to its shareholders or ultimate beneficial owners, Developer shall provide such information only pursuant to the individual’s authorization that Stash and its third party KYC verification partners may use the information to procure consumer reports about the individual.
3.2 All actions performed in the Developer Account shall be considered actions performed by Developer itself. You are solely responsible for all activities conducted through your Account, whether or not you authorize the activity. In the event that a fraud, illegal act or another conduct that violates this Agreement is discovered or reported (whether by you or someone else) that is connected with your Developer Account, Stash may terminate your Developer Account. You are solely responsible for maintaining the confidentiality of your password and for restricting access to your devices. You are solely responsible for any harm resulting from your disclosure, or authorization of the disclosure, of your password or from any person’s use of your password to gain access to your Developer Account. You must immediately notify Stash of any unauthorized use of or access to Developer Account, password, or any other breach of security at support@stash.gg; however, you accept that due to the nature of the Developer Account, Stash might be unable to remedy any issues that arise therefrom. Stash cannot and will not be liable for any loss or damage arising from your sharing or losing your private key or related information, or for any other damage or loss arising from an unauthorized access to your Developer Account.
4. partner representations and acceptable use
4.1 You confirm that you own all rights in and to the Developer Products, and all content uploaded, created, provided, imported, copied, or integrated by you within your Developer Account (“Developer Content”), including but not limited to any trademarks, service marks, designs, images, animations, videos, audio files, fonts, logos, code, illustrations, compositions, artworks, interfaces, usernames, game keys, information you provide for the purpose of creating a subdomain name, text, literary works and any other materials.
4.2 You will not resell, reverse engineer, decompile, disassemble, duplicate, or attempt to derive the source code (if applicable) for any aspect of the Services.
4.3 You represent and warrant that the Developer Products and Developer Content do not contain information or suggestions concerning adoption agency services; selling real-world exotic animals; selling databases; selling real-world alcoholic beverages, tobacco or cigarettes; currency exchange; purchase and sale of securities; pawn shops; adult chat sites, pornographic content, escorts or links that lead to such websites; selling electronic cigarettes; investment clubs, sale of shares, stocks, put options and other investments; gold investments, capitalization certificates (investments with rewards); concealing and laundering assets of criminal origin; pyramid schemes; handling and transport of organic, hospital or hazardous waste; selling prescription medications; psychic services; people and organizations that support terrorism; loans; production, sale or trafficking of real-world weapons or munitions; selling real-world replicas or imitations of products; sex shops and erotic items; vehicle payment plans; online auctions; selling prepaid phone cards, VoIP, text messaging; selling objects and services which promote racism and discrimination; organ trafficking; invasive cosmetic procedures; sale of real-world precious stones / high-value fine jewelry; sale of hallucinogenic substances and illegal drugs; network marketing, benefits from admittance of new members; zoophilia / child pornography. You represent and warrant that the Developer Products and Developer Content do not contain information or suggestions that (i) violate the Card Network Rules; (ii) is listed by us as Prohibited Content; (iii) promotes or encourages discrimination based upon race, sex, religion, nationality, disability, sexual orientation or age; or (iv) targets, or intends to distribute to, children under the age of thirteen (13) years old.
4.4 You may choose to submit comments, bug reports, ideas or other feedback about the Stash Products (collectively, “Feedback”). By submitting any Feedback, you agree that we are free to use such Feedback at our sole discretion and without additional compensation to you and to disclose such Feedback to third parties (whether on a non-confidential basis or otherwise). You hereby grant us a perpetual, irrevocable, nonexclusive, worldwide license under all rights necessary for us to incorporate and use your Feedback for any purpose.
5. stash merchant of record services
Stash will act as a reseller of Developer Products, purchasing Developer Products from Developer and selling them to Purchasers. As a merchant of record, Stash will (i) determine the sale price at which Developer Products are offered to Purchasers; (ii) collect, report and remit Sales Tax to applicable tax authorities; (iii) provide customer support for payment-related inquiries by Purchasers; and (iv) manage refunds and Chargebacks, which Stash may issue in its sole discretion. Note that Stash’s obligations with respect to customer support pertain to issues related to use of the Stash Products (e.g., payment for, and delivery of, the Developer Products), and do not include extended customer support or maintenance related to the Developer Products themselves.
6. term and termination
6.1 Unless otherwise agreed in an Order Form, this Agreement is effective as of the date of execution of the relevant Order Form (the “Effective Date”). Following the earlier of (i) the completion of Phase I as mutually agreed by the parties in the Order Form, or (ii) forty-five (45) days after the Effective Date (“Phase I End Date”), either party may terminate this Agreement by written notice to the other party within ten (10) calendar days of the Phase I End Date (“Early Termination Option”). Subject to the Early Termination Option, the initial Term of this Agreement shall be two (2) years beginning on the Effective Date (the “Initial Term”). Following the Initial Term, this Agreement shall renew automatically for additional one (1) year terms (each a “Renewal Term”, and together with the Initial Term, the “Term”) unless either party provides the other party with written notice one hundred and twenty (120) days’ prior to the expiration of the then-current term.
6.2 In addition to any other termination rights set forth in this Agreement, Stash may terminate this Agreement immediately, or may suspend or decline to provide Services, with or without notice, if: (a) Stash, in its sole discretion, reasonably determines or suspects that Developer has violated Applicable Law, Card Network Rules, or any provision of this Agreement or is engaging in fraudulent or deceptive conduct or other conduct creating a risk of harm or loss to Stash, third parties, the Card Networks, or consumers; (b) Stash is instructed by a Card Network, payment service provider, payment processor, financial institution, or applicable law or government authority to terminate the Developer; (c) Stash reasonably believes that Developer’s activity, actions or inaction pose a risk to the security or technical functioning of Stash Products the integrity of the Services, (d) Developer materially alters its business or beneficial ownership, or (e) Stash, in its sole discretion, determines that circumstances otherwise warrant immediate termination or suspension.
6.3 Upon termination, Developer shall no longer have access to the Service and Developer’s license to use the Service shall immediately terminate and Developer must immediately remove any reference to Stash in all online and printed media including its website. Following termination, Developer will have a thirty (30) day grace period to extract all Confidential Information stored in the Developer Account (“Extraction Grace Period”). Following this Extraction Grace Period, Stash will have no obligation to retain or preserve any of the content of the Developer Account.
7. privacy and confidentiality
7.1 The parties agree that to provide the Services, Stash collects and processes certain personal data. Please refer to Stash’s Privacy Policy available at https://dev.stash.gg/legal/privacy-policy, which is incorporated into and forms a part of these Terms, and informs users of our policies and practices related to collection, storage, processing, destruction, and other use of personal data. Each party agrees that it shall at all times during the term of the Agreement, comply with the applicable data protection laws and the terms of the Data Processing Addendum.
7.2 In case the Developer processes third parties’ personal data, the Developer is solely responsible for complying with the appropriate measures for protection of personal data in accordance with the Applicable Law in the field of personal data protection.
7.3 When a Purchaser buys a Developer Product from Stash, the Purchaser transmits his/her personal information to Stash. To the extent permitted under applicable laws, or otherwise at a Purchaser’s informed consent to Stash, relevant portions of information supplied by Purchaser during the course of a transaction may be shared by Stash with Developer. Developer represents and warrants that it will handle any information transferred to it regarding a Purchaser in a manner consistent with Applicable Law and with Developer’s own publicly displayed privacy policy.
7.4 The parties acknowledge that they may share Confidential Information for the purposes of this Agreement. The receiving party shall not use, disclose, or otherwise take any advantage of such Confidential Information, except as expressly permitted in the Agreement. Each party shall exercise the same degree of care to avoid the publication or dissemination of the other party's Confidential Information as it affords to its own Confidential Information of a similar nature which it desires not to be published or disseminated, which in any event shall not be less than reasonable care. Confidential Information disclosed under the Agreement shall only be used by the receiving party for the purpose of the Agreement or the performance of its obligations hereunder. The receiving party agrees not to use the disclosing party’s Confidential Information for its own benefit or for the benefit of any third party. The obligation of the parties not to disclose confidential information shall survive the termination or expiry of the Agreement. Notwithstanding the foregoing, neither party shall be obliged to protect Confidential Information of the other party which: (i) is rightfully received by the receiving party from another party without confidential obligation to such party, (ii) is known to or developed by the receiving party independently without use of the Confidential Information, or (iii) is, or becomes generally known to the public by other than a breach of duty hereunder by the receiving party. A receiving party may disclose Confidential Information that is required to be disclosed pursuant to a requirement of a government agency or law so long as the receiving party provides prompt notice to the disclosing party of such requirement prior to disclosure (where permitted under applicable law).
8. compliance with applicable law
8.1 You agree to comply with all Applicable Laws, including those regarding Developer Products and Developer Content, online activities, marketing, email and your use of your Developer Account and any Stash Products. More specifically, but without limitation, you agree to comply with all Applicable Laws regarding the transmission of technical data exported to or from the United States or the country in which you reside.
8.2 Developer represents and warrants that Developer: (i) is not located or organized in a country subject to sanctions or embargoes by the United States or other similar authority (“Sanctioned Country”); (ii) will not directly or indirectly permit access to the Services by individuals located in a Sanctioned Country; (iii) will not export or otherwise transfer the Services to a Sanctioned Country without obtaining authorizations required by applicable laws; (iv) is not identified on any sanctions or export control list maintained by the United States Government or similar authority, including the Specially Designated Nationals List or the Unverified List administered by BIS (collectively the “Sanctions Lists”); (v) is not more than fifty percent owned by an individual(s) identified on a Sanctions List; and (vi) implements geolocation blocking tools or other measures to prevent providing services in or targeting users in a Sanctioned Country.
9. security standard
Stash complies with the Payment Card Industry Data Security Standard (“Security Standard”). However, Developers are solely responsible for the security of the data and billing information they collect on their Developer websites and provide within their Developer Content. Stash will not monitor Developer websites for compliance and therefore is not able to verify whether your internal processes and policies comply with the Security Standard.
10. third-party services
Certain Stash Products are integrated with various third party services (“Third-Party Services”). All issues related to using such Third-Party Services shall be regulated by the respective Third-Party Service’s documents and shall be solved between such Third-Party Service’s owners and the Developer independently. Stash does not control Third-Party Services, and is not liable for Third-Party Services, for any transaction you may enter into with them, or for what they do.
11. fees and payment
11.1 For any amounts not deducted from Stash’s payments to Developer for the Developer Products, Stash shall invoice Developer for the fees owed for the Services, which are described in the Order Form. Developer shall pay such invoices within thirty (30) calendar days after the invoice date. Any amounts not paid when due will accrue interest at the lesser of 1.5% per month or the maximum rate allowed by law. In any action taken by Stash to collect any fees that Developer fails to timely pay, Stash shall be entitled to recover its full costs and expenses related to such action, including but not limited to its reasonable attorneys’ fees and legal expenses.
11.2 Developer shall be solely responsible for reviewing invoices and statements from Stash and for reporting to Stash in writing within thirty (30) days of receipt of any such invoice or statement, any problems or irregularities appearing on such invoices—including, without limitation, underpayments, overpayments, or other discrepancies of any items, fees, charges, or liability assessments reflected on such invoice or statements or related to the period covered. Statements provided online shall be deemed received the first day they are available online. DEVELOPER ACKNOWLEDGES AND AGREES THAT STASH SHALL NOT BE LIABLE OR OTHERWISE RESPONSIBLE TO DEVELOPER, AND SHALL HAVE NO OBLIGATION TO REIMBURSE DEVELOPER, FOR ANY DISCREPANCY THAT IS NOT REPORTED TO STASH IN WRITING WITHIN THIRTY (30) DAYS OF DEVELOPER’S RECEIPT OF THE APPLICABLE STATEMENT.
11.3 If Stash issues a refund to a Purchaser (including, but not limited to, through a Chargeback), Stash is entitled to receive from Developer the amount of the refund or Chargeback, as well as a charge of up to $20.00. Stash reserves the right to suspend all Services until the deficit is paid by you.
11.4 Unless otherwise agreed on in the applicable Order Form, all payments between both parties will be made in U.S. dollars. Developer is responsible for costs of foreign currency conversion from local currency(ies) into $USD.
11.5 Developer acknowledges and agrees that it shall reimburse Stash upon demand for any misdirected deposits, duplicate deposits, or inadvertent overpayments into any of Developer’s bank accounts.
12. set off
12.1 Without prejudice to any other rights or remedies available, Developer hereby authorizes Stash to set-off by whatever means deemed necessary the whole or any part of the Developer’s liability to Stash under this Agreement against any funds, sums or other amounts owing to Developer under this Agreement, including but not limited to:(i) liability for refunds and Chargebacks; (ii) any liability assessments issued for non-compliance or purported non-compliance with the Card Network Rules; (iii) fraudulent or illegal use of our Services; or (iv) other liabilities as set out in this Agreement.
12.2 Developer agrees that Stash may exercise the right of set-off in Section 12.1 at any time, without further notice to you whether your liability is present or future, liquidated or unliquidated, actual or contingent. If the liability to be set off is expressed in different currencies, we may convert such liability at a market rate of exchange for the purpose of set-off. In the event such set-off does not fully reimburse us for the liability owed, you shall immediately pay us a sum equal to any shortfall.
12.3 For the avoidance of doubt, Stash is not obliged to pay Developer fees associated with activities or Developer Products which it considers in its sole discretion to be fraudulent or illegal under any Applicable Law. Stash may suspend your access to the Services and retain any fees owed to you, or terminate this Agreement, if (i) we determine in our sole discretion that you are ineligible for the Services because of significant fraud risk, or any other risk of illegal activity associated with your use of the Services; (ii) we determine in our sole discretion that you have intentionally or willfully taken any action which directly defrauds a Purchaser; (iii) any Applicable Law or Card Network Rule requires us to do so; or (iv) we are otherwise entitled to do so under this Agreement.
13. dormant accounts
Following six (6) consecutive months of inactivity on a Developer Account (the “Dormancy Period”), Stash reserves the right to charge you a monthly account dormancy charge and/or to deactivate your Developer Account, in Stash’s own discretion and without notice to you.
14. disclaimer of warranties; limitation of liability
14.1 Stash disclaims any and all warranties, representations and conditions, whether express, implied or statutory regarding the Services to the full extent permitted by law. Without limiting the generality of the foregoing, the Services are provided "as is" and without warranties of any kind, including, without limitation, any warranties of performance or implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. Further, Stash does not make, and has not made, any representation or warranty that the Services are accurate, complete, reliable, current, error-free, or virus-free or that the operation of the Services will be uninterrupted. Some jurisdictions do not allow exclusion of an implied warranty, so this disclaimer may not apply to you.
14.2 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, WHICH MAY ARISE OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF WHETHER EITHER PARTY HAS BEEN APPRISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING, OR WHETHER CLAIMS ARE BASED OR REMEDIES ARE SOUGHT IN CONTRACT OR TORT OTHERWISE.
14.3 FOR ALL CASES AND CONTROVERSIES ARISING OUT OF STASH’S RELATIONSHIP WITH DEVELOPER, WHETHER OR NOT ARISING OUT OF THIS AGREEMENT AND WHETHER BROUGHT IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, STASH’S AGGREGATE LIABILITY TO DEVELOPER SHALL NOT EXCEED THE FEES PAID OR PAYABLE TO STASH DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH LIABILITY, EXCEPT IN THE EVENT OF A CLAIM BY DEVELOPER FOR TRANSACTION AMOUNTS ALLEGED TO BE UNPAID AND OWED BY STASH TO DEVELOPER, IN WHICH CASE THE MAXIMUM LIABILITY OF STASH SHALL BE THOSE AMOUNTS.
14.4 Beta Services and Limited Warranties. Stash may make available to you, from time to time, products and services, including software and Third-Party Services, that are in beta testing by Stash or that are otherwise not made generally available to our customers (“Beta Products and Services”). Developer may elect to use Beta Products and Services by accessing and using such Beta Products and Services, which we may modify, suspend and terminate at any time without liability, except for obligations to make payment to you. Discontinuing use of Beta Products and Services will be your sole and exclusive remedy for any failure, defect, flaw or non-conformity of the Beta Products and Services. NOTWITHSTANDING ANY CONTRARY TERM IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” WITHOUT ANY REPRESENTATIONS OR WARRANTIES. STASH EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AND WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. STASH DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR WILL MEET CUSTOMER’S REQUIREMENTS.
15. indemnification
The Developer shall indemnify, defend, and hold harmless Stash, its affiliates and its and their respective employees, officers, directors, and agents from and against all claims, suits, damages, costs, lawsuits, liability assessments, fines, penalties, liabilities and expenses (including reasonable attorneys’ fees) arising out of or on account of or resulting from: (a) Developer’s violation of Applicable Law, or any term of this Agreement; (b) any fees or assessment imposed by a Card Network as a result of Developer’s noncompliance or purported noncompliance with the Card Network Rules or fees imposed by the Card Networks related to excessive fraud, (c) Developer’s negligence or willful misconduct; (d) Developer’s violation of any third-party right, including any Intellectual Property Rights, access rights or privacy rights, resulting from Developer Products, Developer Content, and/or your use of the Developer Account; and/or (e) any other type of dispute between Developer and a third party, including Purchasers.
16. miscelleaneous
16.1. Governing Law. This Agreement and Developer’s access to and use of the Services shall be governed by, interpreted and enforced under the laws of the State of California without regard to conflict of law rules or principles. Any dispute between the parties not subject to Section 16.2 below shall be resolved in the state or federal courts in California. Each Party hereby irrevocably waives, to the fullest extent it may effectively do so, the claim of an inconvenient or improper forum.
16.2 Arbitration. ANY DISPUTE OR CLAIM ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT OR THE RELATIONSHIPS WHICH RESULT FROM THIS AGREEMENT SHALL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT. ARBITRATION DOES NOT PROCEED BEFORE A JURY AND MAY INVOLVE MORE LIMITED DISCOVERY THAN A COURT PROCEEDING. ANY ARBITRATION UNDER THIS AGREEMENT WILL ONLY BE ON AN INDIVIDUAL BASIS. CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. Notwithstanding the foregoing, nothing in this Section prohibits a party from applying to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other equitable relief. Furthermore, this Section, and the obligation to arbitrate, will not apply to claims for misuse or infringement of a party’s intellectual property or Confidential Information.
The Federal Arbitration Act (9 U.S.C. § 1 et seq.) governs the interpretation and enforcement of the arbitration provisions of this Section. Arbitration will be administered by JAMS (www.jamsadr.com). For claims greater than $250,000, the JAMS Comprehensive Arbitration Rules and Procedures in effect at the time the arbitration is commenced will apply. For claims equal to or less than $250,000, the JAMS Streamlined Arbitration Rules and Procedures in effect at the time the arbitration is commenced will apply. Unless the arbitrator(s) determine that justice or fairness require otherwise: (i) any arbitration will proceed in California (although, for convenience, any party or its counsel may participate telephonically); (ii) the arbitrator(s) will oversee limited discovery, taking into account the amount in controversy and the parties’ desire to keep proceedings cost-effective and efficient; and (iii) the claimant(s) and respondent(s) will bear the cost of arbitration, including the cost of any filing fee, equally, subject to the discretion of the arbitrator(s) to alternatively allocate costs pursuant to the applicable rules in any final award; provided, however, that for claims equal to or less than $25,000, Developer (if applicable) shall not be responsible to pay any case initiation or similar fee greater than that of the filing fee in Superior Court of San Francisco County at the time arbitration is filed unless the arbitrator(s) determine that such claims are frivolous. The arbitrator(s) shall have no authority to award non-monetary or equitable relief or to award damages that are inconsistent with the limitations and exclusions set forth in this Agreement, nor will he, she, or they have authority to award sanctions of any type. The arbitrator(s) shall not issue a reasoned opinion for any award unless such award is greater than $250,000. Any decision rendered in such arbitration proceedings shall be final and binding on each of the parties to the arbitration and judgment may be entered thereon in any court of competent jurisdiction. The parties will maintain the confidential nature of the arbitration proceeding except as may be necessary to enforce any award or to comply with applicable law. If any part of this Section is found invalid or unenforceable, the other parts of this Section shall still apply.
16.3. Assignment. Developer may not assign its rights under this Agreement, including, without limitation, by operation of law or merger, without Stash’s prior written approval, and any attempt to assign this Agreement without such prior approval is void. You agree that Stash may, in its sole discretion and without your consent, assign our rights under this Agreement to a corporate affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
16.4. Waiver. Stash’s failure or delay to enforce any rights or terms in this Agreement will not constitute a waiver of such terms or any other terms of this Agreement.
16.5. Notices and Electronic Communications. Stash may give notice to you through the Developer Account, electronic mail to Developer’s email address in our records or written communication sent by first class mail, postage prepaid, or overnight courier to Developer’s address on record, provided Stash has the Developer’s physical address. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted. The communications between you and Stash may take place via electronic means, whether you visit the Services or send emails to us, or whether Stash posts notices on the Services or communicates with you via email. For contractual purposes, you consent to receive communications from Stash in an electronic form and agree that all terms and conditions, agreements, notices, disclosures and other communications that Stash provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq.
16.6 Relationship of the Parties. Stash at no time serves as an agent or employee of Developer and nothing in this Agreement or the rendition of Services under this Agreement shall be deemed to create a joint venture, partnership, or fiduciary relationship between or among the parties. Rather, the relationship among the parties to this Agreement is an arm’s length commercial relationship.
16.7. Survival. Any provision of this Agreement that gives rise to a Party's ongoing obligation will survive termination of this Agreement. In addition, in the event of termination, any provision of this Agreement which relates to your obligations incurred or existing under this Agreement before termination shall survive the termination. For example, termination of this Agreement does not release you from the obligation to pay all fees for activity that occurred before termination.
16.8. Force Majeure. Stash shall not be liable for any loss or delay to the extent resulting from any force majeure event, including, but not limited to, acts of God, fire, natural disaster, terrorism, labor stoppage, internet service provider failures or delays, pandemic, epidemic, quarantine restriction, civil unrest, war or military hostilities, criminal acts of third parties or any other event beyond Stash’s control, and any performance of the Services shall be extended to the extent of any delay resulting from any force majeure event.
16.9. Severability, No Third Parties, Entire Agreement. If any term of this Agreement is determined to be unenforceable or illegal in a jurisdiction or invalid under law, such term will not be affected in other jurisdictions, and in relevant jurisdictions, the remaining provisions will continue in full force and effect. Along with the documents incorporated herein, this Agreement constitutes and contains the entire agreement between the parties concerning the subject matter and supersedes any prior oral or written agreements. Notwithstanding the foregoing, any previously signed non-disclosure agreement(s) remain in full effect according to its terms. In the event of a conflict in terms between this Agreement and the Order Form, the terms of the Order Form shall prevail. You agree that this Agreement is not intended to confer and does not confer any rights or remedies upon anyone other than the parties to this Agreement.