Exploding Kittens, Inc.
Terms of Service

 

Last Update: February 17, 2025

Previous Version(s): Terms of Service 2023, Terms of Service 2022

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We provide italicized digests like this to guide you through these Terms—but only the text of those sections, not the digests, are part of the Terms.

Introduction

This is a contract between you and us. You can contact us if you have any questions or concerns. If you do not understand or agree to these Terms, don't use the Services.

These Terms of Service (“Terms”) form a legal agreement between you and Exploding Kittens, Inc. (“EK”, “we”, “us”, “our”, as appropriate) that applies when you use our Services.

In these Terms, “you” and “your” means you as the user of the Services. “Services” means explodingkittens.com and our other websites (“Sites”), Products (defined below), software or other services we make available via our Sites including, but not limited to, Mobile Messaging (defined below).

By accessing or using our Services, you agree to be bound by these Terms and our Privacy Policy (together, the “Agreement”).

Read this Agreement carefully before you accept it. We’ve tried to be straightforward in our Terms and if you have any questions feel free to send us a note at legal@explodingkittens.com (our “Support Email Address”).

If you do not accept or understand anything in the Agreement, stop using the Services.

Updates

As the Services change, we may update the Terms by posting a new version and updating the Last Update date above. You are responsible for ensuring that you remain aware of the current Terms.

As the Services change, we’ll update these Terms by posting a new version and changing the Last Update date. We will use commercially reasonable efforts to provide at least 14 days’ notice before any material changes go into effect. The prior version will remain accessible at a link just below it. We may notify the email the address in your account or place a temporary notice on the Services, but it’s your responsibility to review these Terms from time to time for updates.

However, it is your responsibility to ensure that you remain aware of the current Terms and comply with them. By using or accessing the Services after the Last Update date, you accept the current Terms. If you do not accept a change to the Terms, you can’t use the Services.

Outside Materials

The third-party content and features we embed and link to are subject to the third party’s contractual terms and policies.

The Services may embed, link or utilize third-party websites or resources. We provide these outside materials as a convenience and are not responsible for nor do we endorse the content, products or services on or available from those websites or resources or links displayed on such websites (“Outside Materials”). Outside Materials may be subject to additional legal terms (“Outside Terms”) made available by their third-party provider.

• For example, by accessing or downloading an EK-branded digital game from the Apple App Store, you are agreeing to Apple’s Licensed Application End User License Agreement.
• Also, your use of any digital game is subject to the Outside Terms of that game’s developer (for instance, the official Exploding Kittens® mobile app was developed by Marmalade Game Studio and is subject to its App Terms of Use).

The Agreement does not apply to Outside Materials. We are also not a party to Outside Terms. By using the Services, you acknowledge and agree that we are not responsible for, and disclaim all liability for, the performance and reliability of Outside Materials and any act or omission of any provider of Outside Materials. We do not warrant, endorse or otherwise guarantee the Outside Materials’ integration, interoperation or support with the Services.

If you have any complaints in connection with any Outside Materials or Outside Terms, please contact the third-party provider directly, your state Attorney General or the Federal Trade Commission at www.ftc.gov.

Eligibility & Registration

Minimum Age

Our Services are not intended for people under the age of 16. We do not knowingly collect or solicit personal information from anyone under the age of 16. If you are between 13 and 15 years old, you may only use the Services or register an account with parental consent first.

Accounts

When you give us information, you need to make sure it stays up to date. Also, don’t share your account with others without our permission.

1. Account Creation. If you decide to create an account on the Services, you will need to provide EK with certain personal information to establish an account via the Services, which may include your name, e-mail address, and, in some cases, payment information. This information will be held and used in accordance with EK's Privacy Policy.
2. Keep Your Information Current.It’s important that you provide us with accurate, complete and up-to-date information, and update it if it changes. If you don’t, we may suspend or terminate your account. You agree that you will not disclose your account password to anyone and will notify us immediately of any unauthorized use of your account. You are responsible for all activities that occur under your account, whether or not you know about them. If you believe that your account is no longer secure, then you must immediately notify us at our Support Email Address.
3. No Account Sharing.You may not sell, resell, rent, lease, share or provide access to your account to anyone else. We reserve all available legal rights and remedies to prevent unauthorized use of our Services, including, but not limited to, technological barriers, IP mapping, and, in serious cases, directly contacting your Internet Service Provider (ISP) regarding such unauthorized use.
4. No False Accounts. You may not create an account for anyone else or create an account in a name other than your own.

Permitted Use

We own the Services, and as long as you agree to the Terms (and they are not terminated—see the ‘Termination’ section below), we grant you permission to access and use our Services. If you can’t agree, we can’t let you use our Services.

1. Ownership & Monitoring. Our Services, including our Content, are owned by us or our licensors. Our Services may let you upload, post and store photos and other content that you own. You retain your ownership of this content, to which we take a license (see “Content You Create Outside the Services” below for more details). Although we are not obligated to monitor access to or use of the Services or to review, edit, or remove any Content, we have the right to do so for the purpose of providing the Services, ensuring compliance with the Terms, protecting the health or safety of anyone we believe may be threatened, protecting our legal rights and remedies, reporting a crime or offensive behavior, or complying with applicable law. To be clear, we may (but don’t have to) investigate violations of the Terms or conduct that affects the Services. We may, in our sole discretion, remove, edit or disable any Content for any reason.
2. License Grant. So long as you comply with the Terms, we grant you the following license: a personal, non-exclusive, non-transferable, non-sublicensable limited right and license to (i) access and use the Services, including any Content, for your personal, non-commercial entertainment purposes leveraging only the functionality of the Services. We and our licensors reserve all rights not granted to you in the Terms.

“Content” means all artwork, titles, themes, objects, characters, names, dialogue, catch phrases, stories, animation, concepts, sounds, audio-visual effects, methods of operation, musical compositions, text, graphics, user interfaces, trademarks, logos, and other intellectual property and content within the Services or otherwise owned, controlled or licensed by us. Content also includes anything generated, created, or that is otherwise developed within the Services by any user (including you) as a result of interaction with the functionality of the Services.

1. Content You Create Outside the Services. “User Content” means any Content that you or another user makes available within the Services. By making any User Content available through the Services you hereby grant to us the following license: a non-exclusive, transferable, worldwide, perpetual, royalty-free license, with the right to sublicense, to host, use, copy, modify, create derivative works based upon, distribute, publicly display, publicly perform, and otherwise make available your User Content in connection with the Services and any other uses contemplated by this Agreement.

Except to the extent prohibited by law, you waive the benefit of any “moral rights” or “droit moral” or similar rights in any country to any User Content. We may, in our sole discretion, remove, edit or disable any User Content at any time and for any reason, including if we determine that the User Content violates the Terms. You agree that User Content may be viewed by other users who, notwithstanding these Terms, may share that User Content with third parties.

1. Responsibility for Content or User Content. We assume no responsibility or liability for User Content, for removing it, or not removing it or other Content. We do not pre-screen or review any User Content (though we reserve the right to in the future) and do not approve or endorse any User Content that may be available on the Services or other EK offerings. You are prohibited from copying other individuals’ User Content or using it for commercial purposes or to spam, harass, or make unlawful threats. We reserve the right to terminate your account if you misuse User Content.
2. Service Limits Based on Where You Live. We may restrict, modify, or limit your access to and use of certain Content or any or all of the Services depending on the territory in which you are located.

Prohibited Uses

We strive to make all of our users feel safe and welcome when using our Services. So, we have some fundamental rules around acceptable use and behavior on the Services.

You agree not to do any of the following with respect to the Services, as determined by us, as applicable:

1. use them commercially, for a promotional purpose, or for the benefit of any third party or in any manner not permitted by the Terms;
2. use, or provide, any unauthorized third party programs that intercept, emulate, or redirect any communication between the Services and us;
3. use, or provide ancillary offerings to anyone, that are not offered within the Services by us, such as trainers and automation programs that interact with the Services in any way;
4. access or use them on more than one device at a time;
5. copy, reproduce, distribute, display, mirror, frame or use them (or any of our other materials, intellectual property, or proprietary information) in a way that is not expressly authorized in the Terms;
6. sell, rent, lease, license, distribute, or otherwise transfer the Services or any Content;
7. attempt to reverse engineer (except as otherwise permitted by applicable local law), derive source code from, modify, adapt, translate, datamine, decompile, or disassemble or make derivative works based upon the Services or any Content;
8. remove, disable, circumvent, or modify any technological measure we implement to protect them or any of their associated intellectual property;
9. attempt to probe, scan or test its vulnerability or breach any security or authentication measures;
10. access, tamper with, or use non-public areas of the Services;
11. upload, publish, submit or transmit any User Content, create a user name or account name, or otherwise engage in any behavior that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, contractual rights, moral rights or other intellectual property rights, or rights of publicity or privacy, or any other rights of third parties; (ii) violates, or encourages any conduct that would violate any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is grossly harmful, racially or ethnically objectionable, disparaging, blasphemous, libelous, defamatory, obscene, pornographic, pedophilic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent, bullying, or threatening or promotes violence, money laundering or gambling, terrorism, or actions that are threatening or disrespectful to any person or entity; (vii) harms minors in any way; or (viii) promotes illegal or harmful activities or substances;
12. interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, overloading, flooding, spamming, mail-bombing, or sending a virus, trojan horses, worms, or other malicious or technologically harmful materials to the Services or any of its users;
13. collect or store any information that could be used to identify an individual, either itself or combined with other information, from the Services from other users of the Services without their express permission;
14. behave in a manner which is detrimental to the enjoyment of the Services by other users as intended by us, in our sole judgment, including, without limitation, harassment, use of abusive or offensive language, game abandonment, game sabotage, spamming, behaving in a disruptive manner, social engineering, or scamming, or contrary to public morals or public policy;
15. impersonate or misrepresent your affiliation with any person or entity, or deceive or mislead the addressee about the origin of such messages or communicate any information which is grossly offensive or menacing in nature;
16. use IP proxying or other methods to disguise the place of your residence, whether to circumvent geographical restrictions on the Services or for any other purpose;
17. use, reproduce or remove any copyright, trademark, service mark, trade name, slogan, logo, image, or other proprietary notation displayed on or through the Services;
18. use cheats, automation software (bots), hacks, modifications (mods) or any other unauthorized third-party software designed to modify or affect the Services;
19. use the Services for illegal, harassing, unethical, or disruptive purposes;
20. use the Services in any way that would affect us adversely or reflect negatively on us or the Services or discourage any person from using all or any portion of the features of the Services;
21. encourage, promote, take part in or enable anyone else to do any of the foregoing; or
22. violate any applicable law or regulation.

If you encounter another user who is violating any of these rules, please report this activity using report buttons in the relevant parts of the Services, if available, or contact us at abuse@explodingkittens.com.

Feedback

We’d love to hear your feedback, good or bad. It helps us improve! But if you give us feedback, we need to be free to use it how we want and without paying you.

We welcome your feedback, comments and suggestions for improvements to the Services (“Feedback”). You can submit Feedback by emailing us at legal@explodingkittens.com or via the functionality of the Services (if available). If you provide us with any Feedback, you hereby understand and agree that such Feedback is our exclusive property. You understand and agree that you are freely giving your Feedback, that we don’t have to use it, and that you will not be compensated in any way for your Feedback. You represent and warrant that Feedback you provide us: (i) is in compliance with the Terms, (ii) will not violate the rights of any third parties (including third party intellectual property rights), (iii) will not incorporate obscene or offensive language, and (iv) is not potentially or actually defamatory, abusive or hateful, an invasion of anyone's privacy, harmful to other users, or breach the applicable laws.

Retail Purchases

a. Online Purchases. The Services allow you to buy physical or digital products (“Products”). While we try to maintain the accuracy of the Services, we are not responsible or liable if any Product description or other information is not accurate, complete, reliable, current, or error-free. We reserve the right, but are not obligated, to:

• reprice or discontinue any Product for any reason at any time;
• limit the sale or availability of Products in any area or jurisdiction;
• limit quantities of Products available per order, household or user, or cancel orders in excess of those quantities;
• refuse or cancel any order for any reason (e.g. orders that appear to be placed by dealers, resellers or distributors).

We will use all reasonable endeavors to ensure that the Services display the correct availability of Products for ordering, such as identifying temporarily out of stock Products. If a Product is not as described on the Services, your sole remedy is to return it (for physical Products, in unused condition) as described in Returns & Refunds in our Help Center.

b. Online Sales & Payment. When you make a purchase, we will charge the payment method selected by you and approved by us for the price of the applicable Products purchased as well as certain fees, including, but not limited to applicable shipping fees (which will be disclosed to you prior to purchase) and sales, use or other taxes (each, a “Transaction”). All amounts are payable and charged at the time your order is placed. You expressly authorize us and our third-party payment processors— ShopPay, PayPal, Google Pay, and Venmo as of the Last Update— to charge you for such Transactions.

We may ask you to supply additional information relevant to your Transaction, including your credit card number and expiration date, email and postal addresses for billing and notification, and information to verify your identity (such information, “Payment Information”). You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. When you initiate a Transaction, you authorize us to provide your Payment Information to third parties so we can complete your Transaction and to charge your payment method for the type of Transaction you have selected.

By initiating a Transaction, you agree to the applicable pricing, payment and billing policies in this Agreement and as posted or otherwise communicated to you. All amounts and applicable taxes, if any, are payable in United States dollars. Title and risk of loss pass to you upon our transfer of the Products to a common carrier.

c. Delivery. Products will be delivered to the address specified in your order and in accordance with the delivery option you selected at the point of checkout. We will also notify you of the places where we can or cannot ship physical Products. While we will take reasonable steps to ensure that your order is dispatched and delivered on time, please be aware that dispatch and delivery times are estimates only, and that time of dispatch or delivery is not of the essence of any Transaction.

We may defer the date of dispatch or delivery or cancel any Transaction, or remove from your order any Products ordered by you (without liability) in the event of unforeseen circumstances or events beyond our reasonable control.

We reserve the right to ship your order in installments should some components of your order be unavailable for delivery, or have delayed availability, when you place your order, or if your order is too big to deliver in one shipment. We will notify you of any delays on shipment that will exceed thirty (30) days from your payment and we will either provide substitute Products or offer a full refund, as indicated by law.

d. Cancellations and Returns. We hope that you will be happy with all Products purchased from the Site, however, if you are not, you have the right to change your mind and cancel the Transaction at any time before shipment and within 30 days after shipment, in accordance with our Return Policy.

• EU and UK consumers only: Under local law, you are entitled to a 14-day refund period. This refund period commences when the Products are in your possession or an authorized third party’s possession. If the last day of this 14-day period lands on a public holiday, Saturday or Sunday, the period will extend to the end of the next business day. Please contact support@explodingkittens.com if applicable law in your jurisdiction entitles you to a refund.

For digital Products, no matter where the customer resides, the return period ends when you begin to use the Product (e.g., begin to download, play, stream, or otherwise use it).

e. Promotional Codes. We may offer certain promotional, referral, discount, and coupon codes or similar offers (“Promos”) that may be redeemed for discounts on future Products or other features related to the Services, subject to any additional terms we establish. You agree that Promos: (i) must be used in a lawful manner; (ii) must be used for the intended audience and purpose; (iii) may not be duplicated, sold or transferred in any manner, or made available by you to the general public (whether posted to a public forum, coupon collecting service, or otherwise), unless expressly permitted by us; (iv) may be disabled or have additional conditions applied to them by us at any time for any reason; (v) may only be used pursuant to the specific terms that we establish; (vi) are not valid for cash or other credits or points; (vii) may expire prior to your use; (vii) are not valid on previous purchases. Promos may not be valid on certain items (like bundled, sale, markdown items).

f. App Store Purchases. Depending on the Product, you may be able to purchase it through your device’s native app store or another third-party provider (collectively, “App Store”). If you buy a Product through an App Store, such as with your Apple ID or Google Play account (your “External Account”), your External Account will be charged for the purchase in accordance with the terms disclosed to you at the time of purchase and the general terms applicable to that External Account.

Termination, Liability & Indemnity

Disclaimers

We don’t make any guarantees about the Services.

TO THE MAXIMUM EXTENT PERMITTED BY LAW THE SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, EK EXPLICITLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED BY LAW, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. EK makes no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. EK makes no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of the Services. Use of the Services and the transmission of communications through the Services is done at your own discretion and risk.

These limitations apply only to the extent they are not prohibited by applicable law. To the extent permissible, any implied warranties that cannot be excluded are limited to ninety (90) days, or such longer period as applicable law requires.

Limitation Of Liability

This section limits what you can recover from us in a dispute.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EK AND ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR LICENSORS (the “Exploding Kittens Parties”) WILL NOT BE LIABLE IN ANY WAY FOR ANY:

1. LOSS OF PROFITS,
2. LOST REVENUE,
3. LOST SAVINGS,
4. LOSS OF DATA,
5. OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES,

ARISING OUT OF OR IN CONNECTION WITH THE TERMS OR THE SERVICES, OR THE DELAY OR INABILITY TO USE OR LACK OF FUNCTIONALITY OF THE SERVICES, EVEN IN THE EVENT OF ONE OF THE EXPLODING KITTENS PARTIES’ FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNITY, PRODUCT LIABILITY, BREACH OF CONTRACT, BREACH OF WARRANTY, OR OTHERWISE AND EVEN IF THE EXPLODING KITTENS PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

FURTHER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF THE EXPLODING KITTENS PARTIES ARISING OUT OF OR IN CONNECTION WITH THE TERMS OR THE SERVICES WILL NOT EXCEED: (A) THE TOTAL AMOUNTS YOU HAVE PAID (IF ANY) OR ARE PAYABLE BY YOU TO US FOR THE PARTICULAR SERVICE(S) IN QUESTION DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY; OR (B) IF (A) DOES NOT APPLY, FIFTY DOLLARS ($50 USD). THESE LIMITATIONS AND EXCLUSIONS REGARDING DAMAGES APPLY EVEN IF ANY REMEDY FAILS TO PROVIDE ADEQUATE COMPENSATION AND ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND US.

Notwithstanding the foregoing, some countries, states, provinces or other jurisdictions do not allow a limitation of liability as stated above and, in such jurisdictions, the foregoing exclusions and limitations will apply to the maximum extent permitted by the laws of such jurisdictions. Also, you may have additional legal rights in your jurisdiction, and nothing in the Terms will prejudice such rights that you may have as a consumer of the Services.

Indemnity

If someone sues us based on your breach of the Terms or your access/use of the Services, you agree to defend us or pay for our defense in that lawsuit.

You agree to indemnify (in other words, compensate for all and any losses incurred), pay the defense costs of, and hold the Exploding Kittens Parties and their agents, contractors, and other representatives harmless from all claims, demands, actions, losses, liabilities, costs and expenses (including, without limitation, attorneys’ fees, costs, and expert witnesses’ fees) that arise out of or in any way are connected with: (a) your access to or use of the Services; or (b) any claim that, if true, would constitute a breach by you of the Terms. You agree to reimburse us for any payments made or loss suffered by us, whether in a court judgment or settlement, based on any matter covered by this 'Indemnity' section.

In the event of such a claim, suit, or action, we will notify you using the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations under this Agreement). This obligation will survive any suspension, termination or cessation of your use of the Services.

Termination

We may terminate your access to or account with the Services at any time, for any reason.

To the fullest extent consistent with applicable law, we may suspend, modify or terminate your access to and use of the Services with no liability or notice to you in the event that (a) you breach any terms of the Terms; or (b) we otherwise deem it necessary to suspend or modify your access to and use of the Services or terminate the Terms in our sole discretion. A suspension or modification of your access to and use of the Services will result in your inability to access and use some or all features of the Services, as determined by us in our sole discretion. Upon any termination of the Terms, the rights granted to you will automatically terminate, you may no longer exercise any of those rights or rights under the Terms. Subject to applicable law, we may, in our sole discretion, provide continued access to and use of the Services prior to such termination.

Except to the extent required by law or provided under ‘Retail Purchases’ above, all payments and fees are non-refundable under all circumstances, regardless of your access or account status.

Dispute Resolution

Governing Law & Forum

California law applies to the Terms, and except as provided under the Arbitration Clause below, courts in Los Angeles will be the only forum for any court proceedings.

These Terms and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of California, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in this ‘Dispute Resolution’ section, the exclusive jurisdiction for all Disputes (defined below) that you and EK are not required to arbitrate will be the state and federal courts located in Los Angeles County, California, and you and EK each waive any objection to jurisdiction and venue in such courts.

Arbitration

If there is a dispute between us, you and EK agree to try to resolve it informally first. If we can’t resolve it in 60 days, we agree to resolve it in arbitration, not in court. If a court decides part of this section is unenforceable, the rest still applies. You may opt-out of the Arbitration Clause within 30 days of first agreeing to these Terms, under opt-out below.

Claims that can be resolved in small claims court or relate to the infringement of our intellectual property do not have to be arbitrated, nor do you have to arbitrate if you choose to opt out of mandatory arbitration.

Arbitration Clause

You agree to resolve disputes with EK through binding arbitration, except as described in this Arbitration Clause (“Arbitration Clause”). The parties expressly waive the right to bring or participate in any kind of class, collective, or mass action, private attorney general action, or any other representative action. You may opt-out of arbitration under ‘Opt-Out’ below within thirty (30) days of first accepting these Terms.

• Covered Disputes. You and EK agree that any dispute or claim between you and EK arising out of or relating to this Agreement or the Services (a “Dispute”) will be resolved by binding arbitration, rather than in court. A Dispute includes any claim or dispute relating to the Services, access and use of the Services, your account, or any aspects of your relationship or transactions with EK. A Dispute also includes any claims or disputes that arose from or involve facts that occurred before the effectiveness of this Agreement and claims that may arise after its termination. For clarity, nothing in this Arbitration Clause prevents either party from settling any Dispute(s) on a class-wide, batch-wide or other multiparty basis.

• Exceptions to Arbitration. This Arbitration Clause does not require arbitration of the following types of claims brought by either you or EK:
  • small claims court actions, if the requirements of the court are met and the claims are only on an individual basis; and
  • claims pertaining to intellectual property rights, including trademarks, trade dress, domain names, trade secrets, copyrights and patents.

• Informal Dispute Resolution First. Like you, we want to resolve Disputes without resorting to arbitration. If you have a Dispute with us, before initiating arbitration, you agree to send an individualized request (“Pre-Arbitration Demand”) to dispute@explodingkittens.com so that we can work together to resolve the Dispute. This ‘Informal Dispute Resolution First’ provision is a condition precedent to commencing arbitration. The arbitrator will dismiss any arbitration filed without fully and completely complying with these informal dispute resolution procedures.
  • A Pre-Arbitration Demand is only valid when it pertains to, and is on behalf of, a single individual. A Pre-Arbitration Demand brought on behalf of multiple individuals is invalid as to all.
  • The Pre-Arbitration Demand must include: (i) your name, telephone number, mailing address, and email address associated with your account; (ii) the name, telephone number, mailing address and email address of your counsel, if any; (iii) a description of your Dispute; and (iv) your signature.
  • Likewise, if EK has a Dispute with you, EK will send an email with its individualized Pre-Arbitration Demand, including the requirements listed above, to the email address associated with your Account.
  • If the Dispute is not resolved within sixty (60) calendar days of when either you or EK submitted a Pre-Arbitration Demand, an arbitration can be brought.
  • This ‘Informal Dispute Resolution First’ provision does not apply to claims under the ‘Exceptions to Arbitration’.

• Arbitration Procedure. If, after completing the informal process in ‘Informal Dispute Resolution First’, either you or EK wishes to initiate arbitration, the initiating party must serve the other party with a demand for arbitration. Any demand for arbitration by you will be sent to the EK address in ‘Informal Dispute Resolution First’. EK will send any arbitration demand to the email address associated with your account or to your counsel, if any. You and EK agree that the Federal Arbitration Act (“FAA”) governs this Arbitration Clause. If the FAA cannot apply, then the state laws governing arbitration procedures where you reside apply.
  • The arbitration will be administered by NAM under its operative:
    • Comprehensive Dispute Resolution Rules and Procedures, and
    • where applicable, its Mass Filing Supplemental Dispute Resolution Rules and Procedures, in each case as available at https://www.namadr.com/resources/rules-fees-forms.
    • This Arbitration Clause will govern to the extent it conflicts with the arbitration provider’s rules.
  • If the applicable arbitration provider is not available to arbitrate, the parties will select an alternative arbitration provider. If the parties cannot agree on an appropriate alternative arbitration provider, the parties will ask a court of competent jurisdiction to appoint an arbitrator pursuant to 9 U.S.C. § 5. To the extent there is a dispute over which arbitration provider has jurisdiction, a NAM arbitrator will be appointed to resolve that dispute.
  • Arbitration hearings will take place through videoconferencing, unless you and EK agree upon another location in writing. A single arbitrator will be appointed.
  • The arbitrator may award damages, declaratory or injunctive relief, and recoverable costs. Any arbitration award may be enforced (such as through a judgment) in any court with jurisdiction over the dispute. An arbitration award will have no preclusive effect in another arbitration or court proceeding involving EK and a different individual. The arbitrator will have the exclusive authority to resolve all threshold arbitrability issues, including whether this Arbitration Clause is applicable, unconscionable, or enforceable, as well as any defenses to arbitration. However, a court has exclusive authority to rule on the waiver in ‘Class Action Waiver' below, including any claim that the provision is unenforceable, illegal, void or voidable, or that it has been breached.
  • If a request to proceed in small claims court (see the provisions on Pre-Arbitration Demands under ‘Informal Dispute Resolution First’), is made after an arbitration has been initiated, but before an arbitrator has been appointed, such arbitration will be administratively closed. Any controversy over the small claims court’s jurisdiction will be determined by the small claims court.
• Jury Trial Waiver. You and EK agree to waive any constitutional and statutory rights to sue in court and have a trial in front of a judge or a jury. You and EK are instead electing that all Disputes will be resolved by arbitration under this Arbitration Clause, except as specified in ‘Exceptions to Arbitration’ above. Court review of an arbitration award is subject to very limited review. Discovery may be limited in arbitration, and procedures are more streamlined than in court.

• Class Action Waiver. You and EK agree that, except as specified in ‘Batch Process’ below, each of us may bring claims against the other only on an individual basis and not on a class, collective, representative, or mass action basis.
  • The parties agree to waive all rights to have any Dispute be brought, heard, administered, resolved, or arbitrated on a class, collective, representative, or mass action basis.
  • Subject to this Arbitration Clause, 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 to the party’s individual claim.
  • Notwithstanding anything to the contrary in this Arbitration Clause, if a court decides, in a final nonappealable decision, that the limitations of this ‘Class Action Waiver’ are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and EK agree that that particular claim or request for relief (and only that particular claim or request for relief) will be severed from the arbitration and will be pursued in the courts specified in ‘Governing Law and Forum Choice’ above.

• Batch Process. To increase the efficiency of administration and resolution of arbitrations, you and EK agree that if 25 or more arbitration demands of a substantially similar nature, are filed within a 180 day period (“Mass Filing”):
  • to administer the Mass Filing in batches of 25 demands per batch (or less, if fewer than 25 remain) (“Batches”), with only one Batch filed, processed, and adjudicated at a time;
  • to designate one arbitrator for each Batch;
  • to accept applicable fees, including any related fee reduction determined by NAM in its discretion;
  • that no other demands for arbitration that are part of the Mass Filing may be filed, processed, or adjudicated until the prior Batch is filed, processed, and adjudicated;
  • that fees associated with a demand for arbitration included in a Mass Filing, including fees owed by EK and the claimants, will only be due after your demand for arbitration is included in a Batch that is properly designated for filing, processing, and adjudication; and
  • that the Batch process will continue until each demand (including your demand) is adjudicated or otherwise resolved.
  • Any statutes of limitation, including the requirement to file within eighteen (18) months at ‘18-Month Filing Deadline’ below, will remain tolled while any arbitration demands are held in abeyance. While the Batches are adjudicated, no other demand for arbitration that is part of the Mass Filing may be processed, administrated, or adjudicated, and no filing or other administrative costs for such a demand for arbitration will be due from either party to the arbitration provider.
    • If, contrary to this provision, a party prematurely files an arbitration demand, the parties agree that the arbitration provider must hold those demands in abeyance.
  • Substantially Similar Nature. All parties agree that arbitration demands are of a “substantially similar nature” if they relate to the same event or factual scenario, raise the same or similar legal issues and seek similar relief.
  • Mass Filing Administration. Any party may request that the arbitration provider appoint a sole standing administrative arbitrator (“Administrative Arbitrator”) to determine threshold questions such as (1) whether the Batch process is applicable or enforceable, (2) whether particular demand(s) are part of a Mass Filing, and (3) whether demands within a Mass Filing were filed in accordance with this Arbitration Clause, including ‘Informal Dispute Resolution First’ above.
    • To expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree that the Administrative Arbitrator may provide and use any procedures necessary to resolve the dispute promptly. EK will pay the Administrative Arbitrator’s costs.
    • The parties will work in good faith with the arbitrator to complete each Batch within 120 calendar days of its initial pre-hearing conference. The parties agree that the Batch process is designed to achieve an overall faster, more efficient, and less costly mechanism for resolving Mass Filings.
  • This ‘Batch Process’ will in no way be interpreted as increasing the number of claims necessary to trigger the applicability of NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures, or authorizing class arbitration of any kind. Unless EK otherwise consents in writing, EK does not agree or consent to class arbitration, private attorney general arbitration, or arbitration involving joint or consolidated claims under any circumstances, except as set forth in this ‘Batch Process’ provision.
• Settlement. At least ten (10) calendar days before the date set for the arbitration hearing, you or EK may serve a written offer of judgment upon the other party to allow judgment on specified terms. If the offer is accepted, the offer with proof of acceptance will be submitted to the arbitration provider, who will enter judgment accordingly. If the offer is not accepted before the earlier of (i) the arbitration hearing or (ii) thirty (30) calendar days after it is made, it will be deemed withdrawn, and cannot serve as evidence in the arbitration. If an offer made by one party is not accepted by the other party, and the other party fails to obtain a more favorable award, the other party will not recover their post-offer costs and will pay the offering party’s costs from the time of the offer.
  • The parties agree that any disputes with respect to settlement offer(s) or offer(s) of judgment in a Mass Filing are to be resolved by a single arbitrator to the extent such offers contain the same material terms. For arbitrations involving represented parties, the represented parties’ attorneys agree to communicate individual offer(s) of judgment to each and every arbitration claimant or respondent to whom such offers are extended.
• Arbitration Costs. Except as provided for in a Mass Filing under ‘Batch Process’ above, your responsibility to pay any filing, administrative, and arbitrator costs will be solely as set forth in the applicable arbitration provider’s rules.

• 18-Month Filing Deadline. To the extent permitted by applicable Law, and notwithstanding any other statute of limitations, any claim or cause of action under this Arbitration Clause (with the exception of disputes for claims pertaining to intellectual property rights including trademarks, trade dress, domain names, trade secrets, copyrights and patents), must be filed within eighteen (18) months after such claim or cause of action arose. Otherwise, that claim or cause of action will be permanently barred. The statute of limitations and any arbitration cost deadlines remain tolled during the required informal process under ‘Informal Dispute Resolution First’ above.

• Opt-Out. You may reject this Arbitration Clause and opt out of arbitration by sending an email to opt-out@explodingkittens.com within thirty (30) calendar days of first accepting these Terms. If you have an account, your opt-out notice must be sent from the email address associated with your account. No one may opt-out another person. Your notice to opt-out must include your first and last name, address, the email address associated with your account (if you have an account), and a clear statement that you decline this Arbitration Clause (e.g. “I, [first and last name], wish to opt out of the Arbitration Clause.”).
• Severability. Except as provided in ‘Class Action Waiver’ above, if any provision of this Arbitration Clause is found to be illegal or unenforceable, then that provision will be severed. The remaining provisions will still apply and will be interpreted to achieve the closest possible intent to the original intent of this Arbitration Clause, inclusive of the severed provision.

Miscellaneous

These Terms are our whole agreement. The official version is English. If parts of the Terms can’t apply, the rest remains, as much as possible. If we don’t enforce part of the Terms, it doesn’t mean we won’t in the future or we won’t enforce our other rights. No one other than you or us can enforce the Terms.

a. Entire Agreement.The Terms and any other document or information referred to in the Terms constitute the entire and exclusive understanding between you and us regarding the Services and supersede any and all prior oral or written understandings or agreements between you and us regarding the Services.

b. Language.The original language of the Terms is in English; any translations are provided for reference purposes only. You waive any right you may have under the law of your country to have the Terms written or construed in any other language.

c. Severability.The Terms describe certain legal rights. You may have other rights under the laws of your jurisdiction. The Terms do not change your rights under the laws of your jurisdiction if the laws of your jurisdiction do not permit it to do so. In the event that certain provisions of the Terms are held by a court or tribunal of competent jurisdiction to be unenforceable, those provisions will be enforced to the furthest extent possible under applicable law and subject to the ‘Arbitration Procedure’ above, the remaining terms of the Terms will remain in full force and effect.

d. No Waiver. Your and our actions or inactions will not create any other rights under the Terms except as what is explicitly written within the Terms. Our failure to enforce any right or provision of the Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by one of our duly authorized representatives. Except as expressly set forth in the Terms, the exercise by either party of any of its remedies under the Terms will be without prejudice to its other remedies under the Terms or otherwise.

e. Third Party Rights.A person who is not a party to the Terms will have no right to enforce any of its terms.

f. Interpretation. If it turns out that a particular term of the Agreement is not enforceable for any reason, this will not affect any other terms. Any words following the terms “including,” “include,” “in particular,” “for example”, “such as” or any similar expression are illustrative, non-exhaustive and do not limit the sense of the words, phrase or description preceding those terms. The word "or" as used in these Terms is not exclusive. The failure of either party to exercise, in any way, any right under these Terms does not waive any further rights the Terms provide.

g. Force Majeure. In no event will we be liable to you, or be deemed to have breached this Agreement, for any failure or delay in performing our obligations under the Agreement, to the extent such failure or delay is caused by any circumstances beyond our reasonable control.

You cannot transfer or assign the Terms to anyone else.

h. Assignment. You may not assign or transfer the Terms, by operation of law or otherwise, without our prior written consent. Any attempt by you to assign or transfer the Terms, without such consent, will be null and void. We may freely assign or transfer the Terms without restriction. Subject to the foregoing, the Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.

i. California Consumer Notice. Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: The Products and services are provided by Exploding Kittens Inc. If you have a question or complaint regarding the Products or services, please contact Exploding Kittens Inc.’s Customer Service at support@explodingkittens.com; Attention: Customer Service.

California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.