Terms of Service

Last updated: January 15th, 2024

IMPORTANT NOTICE: THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER. IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED IN THE “MANDATORY ARBITRATION” AND “CLASS ACTION WAIVER” SECTIONS BELOW. PLEASE READ CAREFULLY.

PLEASE NOTE THAT YOUR USE OF AND ACCESS TO THE SERVICES (DEFINED BELOW) ARE SUBJECT TO THE FOLLOWING TERMS. IF YOU DO NOT AGREE WITH ALL OF THESE TERMS, THEN YOU ARE EXPRESSLY PROHIBITED FROM USING THE SERVICES AND YOU MUST DISCONTINUE USE IMMEDIATELY.

These Terms of Service (“Terms”) constitute a legally binding agreement made between you and RailBird Poker LLC (“RailBird,” “we,” “us,” or “our”), concerning your access to and use of our website (https://railbird.poker; the “Site”), our web and mobile applications (collectively referred to as “Apps”), and any related services, sales, marketing, or events (collectively with Site and Apps referred to as “Services”).

RailBird is an accounting software that assists users in calculating payouts in social games and other expenses and allows users to create notes about whom they owe and who owes them. Railbird does not offer, participate in, or otherwise facilitate any actual payment processing.

1. Acceptance

You agree that by accessing the Services, you have read, understood, and agreed to be bound by all of these Terms. IF YOU DO NOT AGREE WITH ALL OF THESE TERMS, THEN YOU ARE EXPRESSLY PROHIBITED FROM USING THE SERVICES AND YOU MUST DISCONTINUE USE IMMEDIATELY.

Our Privacy Policy is hereby incorporated by reference (the “Privacy Policy”). By using the Services, you agree to be bound by our Privacy Policy and any supplemental terms and conditions or documents posted on the Site or Apps.

2. Modification to the Terms

Except for Sections 16 and 17 of these Terms, which provide for binding arbitration and a waiver of class action rights, we reserve the right, in our sole discretion, to make changes or modifications to these Terms at any time and for any reason. We will alert you about any changes by updating the “Last updated” date of these Terms. If we determine a revision to the Terms, in our sole discretion, is material, we will notify you as required by law. It is your responsibility to periodically review these Terms to stay informed of updates. Changes will be effective immediately unless otherwise provided. Use of the Services by you following such modification constitutes your acceptance of the Terms as modified.

3. Eligibility

You hereby represent and warrant that you are fully able and competent to enter into, abide by, and comply with these Terms. Access to and use of the Services is available only to individuals who are at least 18 years old or the age of majority in your jurisdiction, whichever is higher, and can form legally binding contracts under applicable law. By accessing or using the Services, you represent and warrant that:

  • You are a natural person of at least 18 years of age or the age of majority in your jurisdiction, whichever is higher, who is personally assigned to the email address and/or other information submitted in relation to your account;
  • You will abide at all times by these Terms and any other governing agreement between you and us regarding your use of the Services; and

If you do not meet the eligibility requirements of this section, then you are not permitted to use the Services and you agree that you will not use the Services. We reserve the right to suspend or terminate your account if we determine in our sole discretion that you do not meet the eligibility requirements of this section.

4. Subscription Terms

Authorization to Charge for Use of Services. We may charge an account fee or subscription fee for access to certain Services (“Subscription Offerings”). All fees are payable in accordance with payment terms in effect at the time when the fee becomes payable. You must provide accurate and complete information for a valid payment method that you are authorized to use. You authorize RailBird, its payment processor, or third-party App Stores to charge you through the payment method that you provide. You are also responsible for charges for any orders made with your account through our Services. If we do not receive payment via your payment method, you agree to pay all amounts due hereunder upon our demand and will be solely responsible for any dispute with your payment provider. If the payment method you provide is initially declined for any reason, we reserve the right to charge the payment method (credit card or other accepted mechanism) in installments, at the non-promotional/non-discounted rate that is in place at the time, for the full duration of the subscription that you have selected. You bear sole responsibility for all overdraft fees or other penalties that may be assessed by your payment provider. You are responsible for any use of your credit card or other payment instrument. If any fee is not paid in a timely manner, or your transaction cannot be processed, we reserve the right to suspend, disable, cancel or terminate your account or access to the Services or cancel your subscription. You will be responsible for paying all past due amounts.

Pricing. When you purchase the Subscription Offerings, the price will be made clear during the order process. You agree to pay the price stated at the time of your order, as well as any applicable taxes. You also agree to the billing frequency stated at the time of your order. If a stated price or other material information is determined by us in our sole discretion to be in error, we are not under any obligation to offer you the Services at that price and reserve the right to cancel, terminate or not process your order (including accepted orders). We will notify you of the error and either provide you with a refund or give you the opportunity to cancel your order and obtain a refund if payment has already been made.

Auto-renewing Subscription. BY SIGNING UP FOR THE SUBSCRIPTION OFFERINGS, YOU ARE SUBSCRIBING TO AN AUTOMATICALLY RENEWING SUBSCRIPTION REQUIRING NON-REFUNDABLE RECURRING PAYMENTS AT THE STATED FREQUENCY (E.G., MONTHLY OR ANNUALLY) UNTIL YOU CANCEL IN A MANNER SET FORTH IN SECTION 5. You authorize us to charge your first subscription fee and any applicable taxes on or after the date you purchase your subscription. Your subscription will automatically continue at the selected interval, and you will continue to be charged at the stated price (including any applicable taxes), at the beginning of each billing cycle (“Billing Period”) unless prior to the end of your current Billing Period: (a) you cancel your subscription in accordance with Section 5 below; (b) we decline to renew your subscription; or (c) these Terms are otherwise properly terminated as expressly permitted herein. If any subscription fee is not paid in a timely manner, or your transaction cannot be processed, we reserve the right to suspend or terminate your subscription.

Subscriptions and other purchases through a third party (e.g., Apple or Google Play) are managed directly by the applicable third party. You should consult with the appropriate third party to determine if the price charged includes all applicable taxes and currency exchange settlements. You are solely responsible for paying such taxes or other charges. Those third parties collect subscription fees, manage the subscription, and report to us on the status of subscription accounts that have been purchased from them. We do not have the ability to initiate, cancel, or refund such a third-party subscription on your behalf, but we do have the ability to make changes to your subscription entitlements in connection with such third-party subscriptions (for example, by turning off your entitlement to a subscription if you canceled it through a third-party).

Free Trials and Promotional Rates. We may offer promotional trial subscriptions on a trial basis or access to subscription services or product for free or at promotional rate, as well as referral discounts or similar free access to benefits when you refer a new user(s). If your subscription includes a free trial, you will not be charged the applicable fee during your free trial. To obtain the free trial, you may be required to provide a credit card or other payment method in order to ensure uninterrupted access and continued use after the expiration of the free trial. Upon completion of your free trial, your subscription will automatically convert into a paid subscription and your payment method will be charged the applicable fee unless you have cancelled your subscription. You may cancel your subscription during your free trial to avoid being charged as described above.

If your subscription includes a promotional rate, you will be charged the promotional rate for the relevant number of billing periods and upon completion of that period, your subscription will continue to automatically renew at the then-applicable full rate.

You may only be permitted to use one free trial or discounted price offer. If your subscription is ever cancelled or terminated for any reason, and you purchase an additional subscription, you may not be eligible for a free trial or to take advantage of another discounted price offer.

Changes to Subscriptions. We may change subscription terms, subscription fees, and Subscription Offerings offered as part of the subscription at any time on a go forward basis in our sole discretion. If the pricing for your subscription increases, we will notify you as required by law and provide you an opportunity to cancel before applying those changes to your account or charging you in connection with an automatic renewal. We may choose in our sole discretion to add, modify, or remove services offered as part of the subscription on a temporary or permanent basis. If you do not wish to continue subscribing with the new modifications, you may cancel your subscription. Your failure to cancel or your continued use of the subscription after the changes become effective will constitute your acceptance of the changes. If you accept the new subscription, its terms and conditions will apply for that renewal and all renewals going forward.

5. Cancellation, Suspension and Termination, and Refund Policy

Cancellation. When you cancel a subscription, you cancel only future charges associated with your subscription. You may initiate your cancellation at any time, but the cancellation will become effective at the end of your current subscription period. In order to avoid future charges, you must cancel your subscription at least 24 hours prior to the end of your Billing Period. You can cancel your subscription that you purchased through a third party App Store or platform, through that third party. Cancellation only applies to future charges associated with your subscription. Subscriptions purchased through a third party (e.g., Apple or Google Play) are subject to that third party’s cancellation policies and procedures, see Section 5.c.(iv) for more information. Except as otherwise stated in these Terms or as required by applicable law, you will not receive a refund for the current Billing Period if you cancel. If you cancel, your right to use the applicable Subscription Offerings will continue until the end of your then-current subscription period (unless we provide you with a refund or otherwise allow you to use the unused portion towards another service or subscription) and will then terminate without further charges.

Suspension and Termination. We may suspend or terminate your subscription for any reason at our sole discretion and without any notice. If we cancel your subscription, we may give you a prorated refund based on the amount of time remaining that you cannot use; provided, however, that we will not be obligated to grant you a refund if we terminate your account or your subscription because we determine, in our sole discretion, that your actions or your use of the Services violate these Terms, any applicable law, or has harmed another user.

No Right to a Refund. Fees paid for the Subscription Offerings are non-refundable except as expressly set forth in these Terms or in accordance with applicable law. We reserve the right to issue refunds or credits at our sole discretion. If we issue a refund or credit, we are under no obligation to issue the same or similar refund in the future. Any such refund will be processed without any unreasonable delay and the refund will be paid using the same payment method as the one used for the purchase, except as otherwise mutually agreed, unless applicable law prohibits us or the payment processor from processing the refund.

6. Condition of Using the Services

You agree that the Services are provided on an “as is” and “as available” basis.

You may be required to register with the Services. By registering for an account, you agree to (1) provide accurate, current, and complete information about yourself as prompted; (2) promptly update such information to keep it accurate, current, and complete; (3) maintain the security and confidentiality of your account name and password; (4) ensure that others do not use your account; and (5) notify us immediately in the event of unauthorized use of, or any other breach of your account. We reserve the right to remove, reclaim, or change a username and/or cover photo/profile picture you select if we determine, in our sole discretion, that the same promotes a commercial venture or is offensive.

You may establish, maintain, use, and control only one account on the Services. Each account on the Services may only be owned, maintained, used, and controlled by only one individual. In the event we determine that you have opened, maintained, used, or controlled more than one account, we reserve the right to suspend or terminate any or all of your accounts.

You will be responsible for all use of your account and password. We may assume that any communications we receive under your account have been made by you, and you agree that we are authorized to act on instructions received through use of your account. You agree that we are not liable for any loss or damage resulting from your failure to maintain the confidentiality of your account as provided herein.

You agree that the sole purpose of registering an account is to use the Services. You may not assign or otherwise transfer your account or subscription to any other person or entity.

You agree that we cannot guarantee the accuracy of information entered by users.

By providing an email address, you authorize us to provide you with important announcements, relevant promotions, and other related communications relating to the Services, consistent with our Privacy Policy. You may opt out of these communications at any time by contacting us as described at the end of these Terms.

7. Prohibited Activities

You may not access or use the Site or Apps for any purpose other than the Services. The Services may not be used in connection with any commercial endeavors except those that are specifically endorsed or approved by us.

We may suspend or terminate your account if you engage in conduct that we deem, in our sole discretion, to be improper, unfair, fraudulent, illegal, or otherwise adverse to the operation of the Services or in any way detrimental to 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.

As a user of the Site or Apps, you agree not to:

  1. Falsify personal information provided to use the Services;
  2. Attempt to impersonate another user or person;
  3. Sell or otherwise transfer your profile;
  4. Use the Services to advertise goods and services, to engage in a commercial enterprise, or as part of an effort to compete with us;
  5. Use automated means (such as a spider, robot, cheat utility, scraper, offline reader, scripts, or other software) to create user accounts, collect personal information, retrieve data or content from the Site or Apps, or send comments or messages;
  6. Tamper with the administration of the Services;
  7. Circumvent, disable, or otherwise interfere with security-related features of the Site or Apps, including features designed to restrict access to, use of, or copying of the Site or Apps;
  8. Copy or reverse engineer any of the software making up a part of the Site or Apps;
  9. Obtain information on other users in order to spam, harass, abuse, or harm another person;
  10. Disparage, tarnish, or otherwise harm us or the Services;
  11. Abuse the Services in any way;
  12. Otherwise violate these Terms or any other agreement between you and another user, or you and RailBird, regarding use of the Services; or
  13. Use the Services in a manner inconsistent with applicable laws or regulations, including but not limited to facilitating illegal gambling.

If for any reason the Site or Apps are not running as planned (e.g., if a computer virus, bugs, tampering, unauthorized intervention, fraud, technical failures, or any other causes of any kind corrupts or affects the administration, security, integrity, or conduct of the Services), we reserve the right, in our sole discretion, to cancel, terminate, modify, or suspend the Services.

Our failure to comply with any provision of these Terms due to an act of God, hurricane, war, fire, riot, earthquake, terrorism, act of public enemies, actions of governmental authorities outside of our control (excepting compliance with applicable codes and regulations), or other force majeure event will not be considered a breach of these Terms.

8. User Contributions

The Site or Apps may provide you with the opportunity to create, submit, post, transmit, distribute, or otherwise make available content to us, on the Site or Apps, or on the Apps, including but not limited to photographs, graphics, or other content (collectively, “User Contributions”).

You acknowledge and agree that all User Contributions, whether publicly posted or privately transmitted, are the sole responsibility of the person from whom the User Contributions originated. This means that you, not us, are entirely responsible for all User Contributions that you upload, post, share, email, transmit, or otherwise make available via the Service. Under no circumstances will we be liable in any way for any User Contributions. User Contributions may be viewable by other users of the Site or Apps and through third-party websites. As such, any User Contributions you transmit may be treated as non-confidential and non-proprietary.

When you create or make available any User Contributions, you represent and warrant that:

  1. The creation, submission, posting, transmission, distribution, accessing, downloading, or copying of your User Contributions do not infringe the intellectual property or proprietary rights of any third party.
  2. You are the creator and owner of the User Contributions, or have the necessary licenses, rights, consent, or releases to use the User Contributions. You authorize us and other users of the Site or Apps to use your User Contributions in any manner contemplated by these Terms.
  3. Your User Contributions are not false, inaccurate, or misleading.
  4. Your User Contributions are not unsolicited or unauthorized advertising, promotional materials, pyramid schemes, chain letters, spam, mass mailings, or other forms of solicitation.
  5. Your User Contributions are not obscene, lewd, lascivious, filthy, violent, harassing, libelous, slanderous, offensive, or otherwise objectionable, as determined in our sole discretion.
  6. Your User Contributions do not advocate the violent overthrow of any government or incite, encourage, or threaten physical harm against another.
  7. Your User Contributions do not violate the privacy or publicity rights of any third party.
  8. Your User Contributions do not contain any material that solicits personal information from anyone under the age of 18 or exploits people under the age of 18 in a sexual or violent manner.
  9. Your User Contributions do not violate any applicable law or regulation.

We have the right (but not the obligation), in our sole discretion, to edit, redact, or otherwise change any User Contributions; to move any User Contributions to more appropriate locations on the Site or Apps; and to pre-screen, delete, undelete, modify any User Contributions at any time and for any reason, without notice. However, we have no obligation to monitor your User Contributions.

You understand that by using the Site or Apps, you may be exposed to User Contributions that you may consider to be offensive or objectionable. You agree that you must evaluate, and bear all risks associated with, the use or disclosure of any User Contributions. You further acknowledge and agree that you bear the sole risk of reliance on any User Contributions available on or through the Site or Apps.

Any use of the Site or Apps in violation of the foregoing violates these Terms and may result in, among other things, termination or suspension of your rights to use the Services.

9. Contribution License

By posting any User Contributions to the Site or Apps, you automatically grant us, and you represent and warrant that you have the right to grant us, irrevocable, fully sub-licensable, perpetual, world-wide, royalty-free, non-exclusive license to use, copy, modify, adapt, publish, distribute, sell, publicly perform, publicly display, and create derivative works of such User Contributions (including, without limitation, your image and voice) for any purpose, and to incorporate such Contributions into other works. This license includes our use of your name, company name, and franchise name, and any of the trademarks, service marks, trade names, logos, and personal and commercial images you provide. You also grant and authorize sublicenses of the foregoing.

You waive all moral rights in your User Contributions, and you warrant that moral rights have not otherwise been asserted in your User Contributions. We do not assert any ownership over your User Contributions or any intellectual property rights associated with your User Contributions.

10. User Submissions

You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, or other information regarding the Services (“User Submissions”) provided by you to us are non-confidential and shall become our sole property. We shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these User Submissions for any lawful purpose without acknowledgment or compensation to you. You hereby waive all moral rights to any such User Submissions, and you hereby warrant that you have the right to submit such User Submissions. You agree there shall be no recourse against us for any alleged or actual infringement or misappropriation of any proprietary right in your Submissions.

11. Limited License Grant

Unless otherwise indicated, the Services are our proprietary property. All source code, databases, functionality, software, website designs, audio, video, text, photographs, and graphics on the Services, and the trademarks, service marks, and logos contained therein, are owned by us, controlled by us, or licensed to us. The Services are protected by copyright, trademark, other intellectual property, and unfair competition laws. The Services are provided “as is” for your information and personal use only.

Through your access to and use of the Services, we grant you a personal, limited, non-exclusive, non-transferable license to install, use, and access the Services for your non-commercial use (“License”). Your acquired rights are subject to your compliance with this License. Any commercial use is prohibited. You are expressly prohibited from modifying, sub-licensing, renting, leasing, transferring, or distributing the Services or any rights to use the Services (including, without limitation, your registration data and/or any other similar information). The term of your License shall commence on the date that you install or otherwise access or use the Services, and shall end on the earlier of the date that you dispose of the Services, or our termination of this license.

You may not copy, display, seek to disable, distribute, perform, publish, modify, transfer, create works from, or use the Services or any component of it, except as expressly authorized by us. Unless expressly authorized in writing by us, you are prohibited from making the Services (and/or a copy of the Services) available on or over a network where it could be used and/or downloaded by multiple users. You may not remove or alter any of our trademarks and/or logos, any legal notices included in the Services, and/or any related assets. Your right to use the Services is also predicated on your compliance with any applicable terms or agreements you have with third parties when using the Services.

Except as expressly licensed to you herein, we and our licensors reserve all right, title, and interest in the Services, and all associated copyrights, trademarks, and other intellectual property rights therein. Except to the extent permitted under applicable law, you may not decompile, disassemble, or reverse engineer the Services, or any component thereof, by any means whatsoever. You may not remove, alter, or obscure any product or brand identification, copyright, or other intellectual property notices in the Services. All rights not expressly granted herein are reserved by us.

Your rights under this License will terminate immediately and automatically without any notice from us if you fail to comply with any provision of these Terms or any other governing agreement. Promptly upon termination, you must cease all use of the Services and destroy all copies of the Services in your possession or control. Termination will not limit any of our other rights or remedies under these Terms, at law, or in equity.

12. Management of Our Services

We reserve the right, but not the obligation, to: (1) monitor the Services for violations of these Terms; (2) take appropriate legal action against anyone who, in our sole discretion, violates the law or these Terms, including without limitation, reporting such user to law enforcement authorities; (3) in our sole discretion and without limitation, refuse, restrict access to, limit the availability of, or disable any of your User Contributions or any portion thereof; (4) in our sole discretion and without limitation, notice, or liability, to remove from the Site or Apps, or otherwise disable, all files and content that are excessive in size or are in any way burdensome to our systems; and (5) otherwise manage the Services in a manner designed to protect our rights and property and to facilitate the proper functioning of the Services.

13. Modifications and Interruptions

We reserve the right to change, remove the content of, or discontinue the Services at any time without notice and for any reason at our sole discretion. We will not be liable to you or any third party for any loss, damage, or inconvenience resulting from any modification, price change, suspension, or discontinuance of the Services. We cannot guarantee the Services will be available at all times. We may experience hardware, software, or other problems, and we need to perform maintenance related to the Services that may result in interruptions, delays, or errors. Nothing in these Terms will be construed to obligate us to maintain, support, update, or correct the Services.

14. Termination

These Terms shall remain in full force and effect while you use the Services. WITHOUT LIMITING ANY OTHER PROVISION OF THESE TERMS, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE SERVICES (INCLUDING BLOCKING CERTAIN IP ADDRESSES), TO ANY PERSON FOR ANY REASON, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY, OR COVENANT CONTAINED IN THESE TERMS OR OF ANY APPLICABLE LAW OR REGULATION. WE ALSO MAY DELETE YOUR ACCOUNT AND ANY ASSOCIATED CONTENT OR INFORMATION AT ANY TIME, WITHOUT WARNING, IN OUR SOLE DISCRETION. YOU ASSUME ANY AND ALL RISK OF LOSS ASSOCIATED WITH THE TERMINATION OF OUR SERVICES.

If we terminate or suspend your account for any reason, you are prohibited from registering and creating a new account under your name, a fake name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.

If you wish to terminate your account, you may simply discontinue using the Services or contact us as described at the end of these Terms expressly stating that you wish to terminate your account.

All provisions of these Terms shall survive termination.

15. Disclaimer

THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. YOU AGREE THAT YOUR USE OF THE SERVICES WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICES AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE WILL ASSUME NO LIABILITY OR RESPONSIBILITY FOR (1) THE ACCURACY, COPYRIGHT COMPLIANCE, LEGALITY, OR DECENCY OF MATERIAL CONTAINED IN OR ACCESSED THROUGH THE SERVICES, (2) ANY PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICES, (3) ANY UNAUTHORIZED ACCESS TO OUR SECURE SERVERS AND/OR PERSONAL INFORMATION OR FINANCIAL INFORMATION STORED THEREIN, (4) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES, AND (5) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT, SERVICE, WEBSITE, OR APPLICATION ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES, OR ANY HYPERLINKED WEBSITE. WE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES, AND YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. YOU RELEASE RAILBIRD FROM ALL LIABILITY FOR YOU HAVING ACQUIRED OR NOT ACQUIRED CONTENT THROUGH THE SERVICES.

16. Limitations of Liability

YOU ACKNOWLEDGE AND AGREE THAT YOU ASSUME FULL RESPONSIBILITY FOR YOUR USE OF THE SERVICES. YOU ACKNOWLEDGE AND AGREE THAT ANY INFORMATION YOU SEND OR RECEIVE DURING YOUR USE OF THE SERVICES MAY NOT BE SECURE AND MAY BE INTERCEPTED OR LATER ACQUIRED BY UNAUTHORIZED PARTIES. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR OWN RISK. RECOGNIZING SUCH, YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER RAILBIRD NOR ITS SUPPLIERS OR LICENSORS WILL BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, OR OTHER DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER TANGIBLE OR INTANGIBLE LOSSES OR ANY OTHER DAMAGES BASED ON CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER THEORY (EVEN IF RAILBIRD HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM THE SERVICES; THE USE OR THE INABILITY TO USE THE SERVICES; UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; ANY ACTIONS WE TAKE OR FAIL TO TAKE AS A RESULT OF COMMUNICATIONS YOU SEND TO US; ANY INCORRECT, ILLEGIBLE, MISDIRECTED, STOLEN, INVALID OR INACCURATE INFORMATION; HUMAN ERRORS; TECHNICAL MALFUNCTIONS; FAILURES, INCLUDING PUBLIC UTILITY OR TELEPHONE OUTAGES; OMISSIONS, INTERRUPTIONS, LATENCY, DELETIONS, OR DEFECTS OF ANY DEVICE OR NETWORK, PROVIDERS, OR SOFTWARE (INCLUDING, BUT NOT LIMITED TO, THOSE THAT DO NOT PERMIT AN INDIVIDUAL TO JOIN OR PARTICIPATE IN A CONTEST); ANY INJURY OR DAMAGE TO COMPUTER EQUIPMENT; INABILITY TO FULLY ACCESS THE SERVICES OR ANY OTHER WEBSITE; THEFT, TAMPERING, DESTRUCTION, OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, TRANSACTIONS, IMAGES, OR OTHER CONTENT OF ANY KIND; DATA THAT IS PROCESSED LATE OR INCORRECTLY OR IS INCOMPLETE OR LOST; TYPOGRAPHICAL, PRINTING OR OTHER ERRORS, OR ANY COMBINATION THEREOF; OR ANY OTHER MATTER RELATING TO THE SERVICES.

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, RAILBIRD’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO RAILBIRD FOR GENERAL USE OF THE SERVICES DURING THE TERM OF YOUR REGISTRATION FOR THE SERVICES.

BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN SUCH STATES, LIABILITY OF RAILBIRD SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW. ADDITIONAL DISCLAIMERS MAY APPEAR WITHIN THE SERVICES AND ARE INCORPORATED HEREIN BY REFERENCE. TO THE EXTENT ANY SUCH DISCLAIMERS PLACE GREATER RESTRICTIONS ON YOUR USE OF THE SERVICES OR THE CONTENT CONTAINED THEREIN, SUCH GREATER RESTRICTIONS SHALL APPLY. THIS LIMITATION OF LIABILITY SHALL APPLY TO THIRD PARTY CLAIMS AS WELL AS CLAIMS BETWEEN THE PARTIES.

IF APPLICABLE LAW DOES NOT ALLOW ALL OR ANY PART OF THE ABOVE LIMITATION OF LIABILITY TO APPLY TO YOU, THE LIMITATIONS WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW. IF YOU ARE A NEW JERSEY RESIDENT, OR A RESIDENT OF ANOTHER STATE THAT PERMITS THE EXCLUSION OF THESE WARRANTIES AND LIABILITIES, THEN THE ABOVE LIMITATIONS SPECIFICALLY DO APPLY TO YOU.

IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.

IF YOU ARE NOT A CALIFORNIA RESIDENT, YOU WAIVE YOUR RIGHTS UNDER ANY STATUTE OR COMMON LAW PRINCIPLE SIMILAR TO CALIFORNIA CIVIL CODE SECTION 1542 THAT GOVERNS YOUR RIGHTS IN THE JURISDICTION OF YOUR RESIDENCE.

17. Indemnification and Release

By using the Services, you agree to defend, indemnify, and hold us harmless, including our subsidiaries, affiliates, and all of our respective officers, agents, partners, and employees, from and against any loss, damage, liability, claim, or demand, including reasonable attorneys’ fees and expenses, made by any third party due to or arising out of: (1) your access to or use of the Services; (2) your breach of these Terms; (3) your User Contributions; (4) your violation of the rights of a third party, including but not limited to intellectual property rights; (5) your interaction with any other users; or (6) any other claims made by any third party in connection with your use of the Services.

Notwithstanding the foregoing, we reserve the right, at our expense, to assume the exclusive defense and control of such disputes, and in any event you will cooperate with us in asserting any available defenses. We will use reasonable efforts to notify you of any such claim or proceeding which is subject to this indemnification upon becoming aware of it.

18. Mandatory Arbitration

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE OR PARTICIPATE IN A LAWSUIT IN COURT.

18.1 Informal Dispute Resolution Procedure

If a Dispute (as that term is defined below) arises between you and RailBird, we are committed to working with you to try to reach a reasonable resolution. For any such Dispute, both parties acknowledge and agree that they will first make a good faith effort to resolve it informally before initiating any formal dispute resolution proceeding in arbitration or otherwise. Such informal resolution requires first sending a written description of the dispute to the other party. For any Dispute you initiate, you agree to send the written description of the Dispute along with the email address associated with your account, if applicable, to the following email address: support@railbird.poker. The written description must be on an individual basis and provide, at minimum, the following information: your name; a description of the nature or basis of the claim or dispute; the specific relief sought; and proof of your relationship with RailBird. If the Dispute is not resolved within sixty (60) days after receipt of the written description of the Dispute, you and RailBird agree to the further Dispute resolution provisions below.

The aforementioned informal dispute resolution process (the “Informal Dispute Resolution Procedure”) is a prerequisite and condition precedent to commencing any formal dispute resolution proceeding. The parties agree that any relevant limitations period and filing fees or other deadlines will be tolled while the parties engage in this informal dispute resolution process.

18.2 Mutual Arbitration Agreement

If the informal dispute resolution procedure does not lead to resolution, then either party may initiate binding arbitration as the sole means to resolve Disputes (except as provided in herein), subject to the terms set forth below and the National Arbitration and Mediation (“NAM”) rules. If you are initiating arbitration, a copy of the demand shall also be emailed to support@railbird.poker. If you are a RailBird account holder, any demand initiating arbitration, whether filed by you or RailBird, must include the email address you used to create your account with RailBird.

You agree that by using the Services in any way, you unconditionally consent and agree that any claim, dispute, or controversy (whether in contract, tort, or otherwise) you may have against RailBird and/or its parent, subsidiaries, affiliates and each of their respective current or former members, officers, directors and employees (all such individuals and entities collectively referred to herein as the “RailBird Entities”) arising out of, relating to, or connected in any way with RailBird’s Site, Apps, or these Terms, including the determination of the scope, enforceability, or applicability of this Arbitration Agreement (as defined below), including, but not limited to any claim that all or any part thereof of this Arbitration Agreement is void or voidable, whether a claim is subject to arbitration, and any dispute regarding the payment of administrative or arbitrator fees (including the timing of such payments and remedies for nonpayment) (“Dispute”) will be resolved exclusively by final and binding arbitration in accordance with this section (“Arbitration Agreement”). This Arbitration Agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1–16.

Notwithstanding the parties’ decision to resolve all Disputes through arbitration, each party retains the right to (1) elect to have any claims resolved in small claims court on an individual basis for disputes and actions within the scope of such court’s jurisdiction, regardless of what forum the filing party initially chose; (2) bring an action in state or federal court to protect its intellectual property rights (“intellectual property rights” in this context means patents, copyrights, moral rights, trademarks, and trade secrets and other confidential or proprietary information, but not privacy or publicity rights) or for defamation; and (3) seek a declaratory judgment, injunction, or other equitable relief in a court of competent jurisdiction regarding whether a party’s claims are time-barred or may be brought in small claims court. Seeking such relief shall not waive a party’s right to arbitration under this Arbitration Agreement, and any filed arbitrations related to any action filed pursuant to this paragraph shall automatically be stayed pending the outcome of such action.

18.3 Class Arbitration and Collective Relief Waiver

YOU AND RAILBIRD ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT ALLOWED BY LAW, EXCEPT AS SET OUT OTHERWISE IN THE “BATCH ARBITRATION” SUBPART BELOW, ANY ARBITRATION SHALL BE CONDUCTED IN AN INDIVIDUAL CAPACITY ONLY AND NOT AS A CLASS OR COLLECTIVE ACTION AND THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO RESOLVE AN INDIVIDUAL PARTY’S CLAIM, UNLESS RAILBIRD PROVIDES ITS CONSENT TO CONSOLIDATE IN WRITING.

With the exception of this “Class Arbitration and Collective Relief Waiver” subpart and the “Batch Arbitration” subpart below, if any part of this Arbitration Agreement is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the rules of NAM, then the balance of this Arbitration Agreement shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, this “Class Arbitration and Collective Relief Waiver” subpart or the “Batch Arbitration” subpart below is found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Agreement shall be null and void, and neither you nor RailBird shall be entitled to arbitrate their dispute.

18.4 Arbitration Rules

The arbitration will be administered by NAM and conducted before a sole arbitrator in accordance with the rules of NAM, including, as applicable, NAM Comprehensive Dispute Resolution Rules and Procedures, Fees For Disputes When One of the Parties is a Consumer and the Mass Filing Dispute Resolution Rules and Procedures in effect at the time any demand for arbitration is filed with NAM, excluding any rules or procedures governing or permitting class or representative actions. The applicable NAM rules and procedures are available at https://namadr.com or by emailing National Arbitration and Mediation’s Commercial Dept at commercial@namadr.com.

18.5 Arbitration Location and Procedure

For all U.S. residents, the arbitration shall be held (1) at a location determined under the applicable NAM rules and procedures that is reasonably convenient for you and is no more than one hundred (100) miles from your home or place of business; or (2) at another location you and we agree upon. For non-U.S. residents, the arbitration shall be held in San Antonio, Texas (unless otherwise agreed by the parties). The arbitrator shall apply Texas law consistent with the FAA and applicable statutes of limitations, and shall honor claims of privilege recognized at law. The arbitrator or arbitration body shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator has the right to impose sanctions in accordance with the NAM rules and procedures for any frivolous claims or submissions the arbitrator determines have not been filed in good faith, as well as for a party’s failure to comply with the Informal Dispute Resolution Procedure contemplated by this Arbitration Agreement.

If the amount in controversy does not exceed $10,000 and you do not seek injunctive or declaratory relief, then the arbitration will be conducted solely on the basis of documents you and RailBird submit to the arbitrator, unless the arbitrator determines that a hearing is necessary or the parties agree otherwise. If the amount in controversy exceeds $10,000 or seeks declaratory or injunctive relief, either party may request (or the arbitrator may determine) to hold a hearing, which shall be via videoconference or telephone conference unless the parties agree otherwise.

Subject to the applicable NAM rules and procedures, the parties agree that the arbitrator will have the discretion to allow the filing of dispositive motions if they are likely to efficiently resolve or narrow issues in dispute. Unless otherwise prohibited by law, all arbitration proceedings will be confidential and closed to the public and any parties other than you and RailBird (and each of the parties’ authorized representatives and agents), and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award (provided that the party seeking confirmation shall seek to file such records under seal to the extent permitted by law).

18.6 Batch Arbitration

To increase the efficiency of administration and resolution of arbitrations, in the event one hundred (100) or more similar arbitration demands (those asserting the same or substantially similar facts or claims, and seeking the same or substantially similar relief) presented by or with the assistance or coordination of the same law firm(s) or organization(s) are submitted to NAM against RailBird (“Mass Filing”), the parties agree (1) to administer the Mass Filing in batches of one hundred (100) demands per batch (to the extent there are fewer than one hundred (100) arbitration demands left over after the batching described above, a final batch will consist of the remaining demands) with only one batch filed, processed, and adjudicated at a time; (2) to designate one arbitrator for each batch; (3) to accept applicable fees, including any related fee reduction determined by NAM in its discretion; (4) that no other demands for arbitration that are part of the Mass Filing may be filed, processed, or adjudicated until the prior batch of 100 is filed, processed, and adjudicated; (5) that fees associated with a demand for arbitration included in a Mass Filing, including fees owed by RailBird and the claimants, shall only be due after your demand for arbitration is included in a set of batch proceedings and that batch is properly designated for filing, processing, and adjudication; and (6) that the staged process of batched proceedings, with each set including one hundred (100) demands, shall continue until each demand (including your demand) is adjudicated or otherwise resolved. Arbitrator selection for each batch shall be conducted to the greatest extent possible in accordance with the applicable NAM rules and procedures for such selection, and the arbitrator will determine the location where the proceedings will be conducted.

You agree to cooperate in good faith with RailBird and the arbitration provider to implement such a “batch approach” or other similar approach to provide for an efficient resolution of claims, including the payment of combined reduced fees, set by NAM in its discretion, for each batch of claims.

The parties further agree to cooperate with each other and the arbitration provider or arbitrator to establish any other processes or procedures that the arbitration provider or arbitrator believe will provide for an efficient resolution of claims. Any disagreement between the parties as to whether this provision applies or as to the process or procedure for batching shall be resolved by a procedural arbitrator appointed by NAM. This “Batch Arbitration” provision shall 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 RailBird otherwise consents in writing, RailBird 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 Arbitration” subpart. If your demand for arbitration is included in the Mass Filing, your claims will remain tolled until your demand for arbitration is decided, withdrawn, or is settled.

The parties agree that this batching provision is integral to the Arbitration Agreement insofar as it applies to a Mass Filing. If the batching provision in this “Batch Arbitration” subpart is found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Agreement shall be null and void, and neither you nor RailBird shall be entitled to arbitrate any claim that is a part of the Mass Filing.

18.7 Mediation Following First Batch in a Mass Filing

The results of the first batch of demands will be given to a NAM mediator selected from an initially proposed group of five (5) mediators, with RailBird and the remaining claimants’ counsel being able to strike one mediator each and then rank the remaining mediators and the highest collectively ranked mediator being selected. The selected mediator will try to facilitate a resolution of the remaining demands in the Mass Filing. After the results are provided to the mediator, RailBird, the mediator and the remaining claimants will have ninety (90) days (the “Mediation Period”) to agree on a resolution or substantive methodology for resolving the outstanding demands. If they are unable to resolve the outstanding demands during the Mediation Period, and cannot agree on a methodology for resolving them through further arbitrations, either RailBird or any remaining claimant may opt out of the arbitration process and have the demand(s) proceed in court. Notice of the opt-out will be provided in writing within sixty (60) days of the close of the Mediation Period. If neither RailBird nor the remaining claimants opt out and they cannot agree to a methodology for resolving the remaining demands through further arbitration, the arbitrations will continue with the batching process. Opt out of arbitration under this section shall not be construed as opt out of the section titled “Class Action Waiver” below. Absent notice of an opt-out, the arbitrations will proceed in the order determined by the sequential numbers assigned to demands in the Mass Filing.

18.8 Arbitrator’s Decision

The arbitrator’s decision shall be controlled by these Terms and any of the other agreements referenced herein that the applicable user may have entered into in connection with the Services. The arbitrator will render an award within the time frame specified in the applicable NAM rules and procedures. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator will have the authority to award monetary damages on an individual basis and to grant, on an individual basis, any non-monetary remedy or relief available to an individual to the extent available under applicable law, the arbitral forum’s rules, and this Arbitration Agreement. The parties agree that the damages and/or other relief must be consistent with the terms of the “Disclaimer” and “Limitations of Liability” sections of these Terms as to the types and the amounts of damages or other relief for which a party may be held liable. Except for decisions in arbitrations that are joined together in a single batch, no individual arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. Attorneys’ fees will be available to the prevailing party in the arbitration if authorized under applicable substantive law governing the claims in the arbitration.

18.9 Fees

If you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, RailBird will pay any filing and hearing fees in excess of $250 that the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive regardless of the outcome of the arbitration, unless the arbitrator determines that your claim(s) were frivolous or asserted in bad faith, in which case arbitration fees (including attorneys’ fees) may be imposed upon you consistent with the Arbitrator’s Rules and the standard for sanctions set forth in Federal Rule of Civil Procedure 11. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise, including as set forth in this Arbitration Agreement.

The parties agree that NAM has discretion to reduce the amount or modify the timing of any administrative or arbitration fees due under NAM’s Rules where it deems appropriate (including as specified in the “Batch Arbitration” subpart) provided that such modification does not increase the costs to you, and you further agree that you waive any objection to such fee modification. The parties also agree that a good-faith challenge by either party to the fees imposed by NAM does not constitute a default, waiver, or breach of this Arbitration Agreement while such challenge remains pending before NAM, the arbitrator, and/or a court of competent jurisdiction, and that any and all due dates for those fees shall be tolled during the pendency of such challenge.

18.10 30-Day Right to Opt Out.

You have the right to opt out and not be bound by the Arbitration Agreement by sending written notice of your decision to opt out to support@railbird.poker with the subject line, “ARBITRATION OPT-OUT.” The notice must be sent within thirty (30) days of (1) November 13th, 2023; or (2) your first use of the Services, whichever is later. Otherwise, you shall be bound to arbitrate disputes in accordance with the terms of these paragraphs. If you reject any such changes by opting out of the Arbitration Agreement, you may exercise your right to a trial by jury or judge, as permitted by applicable law. If you do opt out of the Arbitration Agreement, any prior existing agreement to arbitrate disputes under a prior version of the Arbitration Agreement will not apply to claims not yet filed. If you opt out of the Arbitration Agreement, RailBird also will not be bound by it.

18.11 Changes

RailBird will provide thirty (30) days’ notice of any material changes to this “Mandatory Arbitration” section or the “Class Action Waiver” section below. Any such changes will go into effect thirty (30) days after RailBird provides this notice and apply to all claims not yet filed regardless of when such claims may have accrued. If RailBird changes this “Mandatory Arbitration” section after the date you first accepted this Arbitration Agreement (or accepted any subsequent changes to this Arbitration Agreement), you agree that your continued use of the Services thirty (30) days after such change will be deemed acceptance of those changes.

19. Class Action Waiver

You may only resolve Disputes with RailBird on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, collective, consolidated or representative action. Except as described in the “Batch Arbitration” subpart of the “Mandatory Arbitration” section above, class actions, class arbitrations, collective actions, private attorney general actions and consolidation with other arbitrations are not allowed. Changes can be made to this section as detailed in the “Changes” subpart of the “Mandatory Arbitration” section above.

20. Governing Law

For any dispute not subject to arbitration, you and RailBird agree to submit to the personal and exclusive jurisdiction of and venue in the federal and state courts located in Bexar County, Texas, USA. The parties hereby consent to, and waive, all defenses of lack of personal jurisdiction. The parties also hereby waive all defenses of forum non conveniens with respect to venue and jurisdiction in such state and federal courts. Application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (UCITA) are excluded from these Terms. You further agree to accept service of process by mail.

The Terms and the relationship between you and RailBird shall be governed by the laws of the State of Texas without regard to conflict of law provisions.

21. Miscellaneous

These Terms and any other policies posted by us on the Site, Apps, or Services constitute the entire agreement and understanding between you and us. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision.

These Terms operate to the fullest extent permissible by law. If any provision or part of a provision of these Terms is determined to be unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions. The parties nevertheless agree that the arbitrator or court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the remainder of the provision shall be interpreted to achieve as closely as possible the effect of the original term and all other provisions of the Terms remain in full force and effect.

You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Services or the Terms must be filed within one (1) year after such claim or cause of action arose or will be forever barred.

We may assign any or all of our rights and obligations to others at any time. These Terms are personal to you, and are not assignable, transferable or sublicensable by you except with our prior written consent. You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms.

We shall not be responsible or liable for any loss, damage, delay, or failure to act caused by any cause beyond our reasonable control.

There is no joint venture, partnership, employment or agency relationship created between you and us as a result of these Terms or use of the Services.

You agree that these Terms will not be construed against us by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of these Terms and the lack of signing by the parties hereto to execute these Terms.

22. Contact Us

In order to resolve a complaint regarding the Services or to receive further information regarding use of the Services, please contact us at: support@railbird.poker.

All email sent to us should be generated by the person in whose name the email account is registered. Emails shall not mask the identity of the person sending them, including by using a false name or someone else’s name or account. If you are a customer and the topic of your email is a service issue, you must include your full name, username, and address in order to ensure that we can respond. By providing us your email address, you authorize us to use that email address to deliver notices or disclosures related to the Services and as otherwise described in our Privacy Policy. You may opt out of these communications at any time by using the contact information above.

23. iOS Terms

You acknowledge and agree that (i) these Terms are binding between you and RailBird only, and Apple is not a party hereto, and (ii) as between RailBird and Apple, it is RailBird that is responsible for the application and the content thereof. You must use the iOS version of the application only on an Apple-branded product that runs iOS. Your use of the iOS version of the application must comply with the terms of use applicable to the Apple source from which you obtain it (including the “Usage Rules” set forth in the Apple App Store Terms of Service). You acknowledge that Apple has no obligation to furnish you with any maintenance and support services with respect to the application.

You acknowledge that Apple is not responsible for addressing any claims you have or any claims of any third party relating to the application or your possession and use of the application, including, but not limited to, (i) product warranty or liability claims; (ii) any claim that the application fails to conform to any applicable legal or regulatory requirement; (iii) claims arising under consumer protection or similar legislation; or (iv) claims that the application infringes a third party’s intellectual property rights.

In the event of any failure of the iOS version of the application to conform to any applicable warranty that has not been effectively disclaimed by these Terms, you may notify Apple, and Apple will refund the purchase price for the application (if any) to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the application, and, as between Apple and RailBird, any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be RailBird’s responsibility, but only to the extent provided by these Terms. Please read the entire Terms, as other sections of these Terms limit RailBird’s liability in this regard.

Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms. Upon your acceptance of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms against you as a third-party beneficiary thereof.