Last Updated: January 22, 2021
You must be at least 18 years of age and have reached the age of majority in the country where you reside, in order to use the Services, including submitting any information to the Services and/or to Ruby.
By using the Services, you agree to: (a) maintain the security of your account by not sharing your Cloak username or password (if you have an account with a password) or your other access credentials (e.g., Apple login ID), and by restricting access to your account, the email address associated with your account, and your computer or mobile device; (b) promptly notify Ruby if you discover or otherwise suspect any security breaches related to the Services; (c) take responsibility for all activities that occur under your account and accept all risks of unauthorized access; and (d) ensure that you log out of your account at the end of each session. We will not be liable for any loss or damage arising from your failure to comply with this section.
To use a Cloak mobile application, you must have a compatible mobile device. Information about compatibility will be provided in the relevant ‘app store’ (accessible through your mobile device). You understand that you are responsible for all data charges you may incur by using the Services.
In consideration for our allowing you to use our Services, you agree that we, our affiliates, and our third-party partners may place advertising on our Services.
We reserve the right to delete your account if it has been inactive for a period of eighteen (18) months or more. If we exercise this right, you will lose any unused or partially used units of payment (e.g., a monthly subscription payment) in your account.
The Services allow you and other users to create, post, send and store content, including messages, text, photos, and other materials (“User Content”). You agree not to post, store, create or otherwise publish or send through the Services any User Content that violates our Code of Conduct (see Section 5, below”). Ruby has the right to delete or remove any User Content that we, in our sole discretion, view as in violation of these Terms, or for any other reason.
If you submit or post User Content to the Services, you grant Ruby a nonexclusive, royalty-free, worldwide, and fully sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display your User Content in any media (now known or later developed), including in connection with Ruby’s or the Ruby Parties’ marketing and promotional activities. You agree that this licence includes the right for Ruby to make User Content available to other companies, organizations or individuals for the syndication, broadcast, distribution or publication on the Services or on other media and services. You further grant Ruby the right to publicly display your username in connection with User Content, so we advise you to ensure you choose a username that protects your anonymity.
In connection with User Content and Submissions (see the definition of “Submissions” in Section 4 below), you affirm, represent, and/or warrant that: (i) you own or have the necessary licences, rights, consents, and permissions to use and authorize Ruby to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Content and Submissions to enable inclusion and use of the User Content andSubmissions in the manner contemplated by the Services and these Terms; and (ii) you have the written consent, release, and/or permission of each and every identifiable individual person in the User Content and Submissions to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the User Content and Submissions in the manner contemplated by the Services and these Terms.
You understand that User Content may be displayed publicly by anyone with access to Cloak. Ruby does not control, take responsibility for or assume liability for any User Content or any loss or damage related to User Content.
You may only post User Content: (a) that is non-confidential; (b) to which you have all necessary rights to post to the Services; (c) that is accurate and not misleading or harmful in any manner; (d) that is non-commercial; and (e) that does not and will not violate these Terms or any applicable law, rule or regulation.
You acknowledge and agree that: (i) Ruby does not endorse any User Content or any opinion, recommendation, or advice expressed therein, and Ruby expressly disclaims any and all liability in connection with User Content and/or Submissions; (ii) Ruby does not tolerate activities that would infringe anyone’s copyright or other intellectual property rights, and Ruby will remove all infringing User Content and/or Submissions if properly notified that such User Content and/or Submission(s) infringes on another’s intellectual property rights; (iii) Ruby reserves the right to remove User Content and Submissions without prior notice; and, (iv) Ruby also may terminate a User’s access to the Services, at any time, without prior notice and at its sole discretion, if the User is determined to be willful, malicious or repeatedly negligent with regard to such infringement.
You understand that when using the Services, you will be exposed to User Content from a variety of sources, and that Ruby is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Content. You further understand and acknowledge that you may be exposed to User Content that Is inaccurate, offensive, indecent, objectionable, and/or in violation of Section 5 of these terms, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or might otherwise have against Ruby with respect thereto, and agree to indemnify and hold Ruby, and our parent company, subsidiary companies, affiliated entities, and our and their shareholders, officers, directors, employees, contractors, representatives, agents successors, assigns, service providers, consultants and licensors (collectively, the “Ruby Parties”), harmless to the fullest extent allowed by law regarding all matters related to your use of the Services.
The Services are developed by Ruby Life Inc. and we do not have any affiliation with the providers of User Content or Submissions. We reserve the right to change the source of available emojis, stickers and stock images without prior notice. Ruby does not claim to own, create or host any of the emojis, stickers or stock images, or their underlying content.
Separate from User Content, you may submit questions, comments, feedback, suggestions, and other information regarding the Services (“Submissions”). You acknowledge and agree that Submissions are non-confidential and will become the sole property of Ruby, and you hereby irrevocably transfer and assign to Ruby all intellectual property rights in such Submissions and waive any and all moral rights that you may have with respect to them. You agree to execute any documentation required by Ruby to confirm such assignment to Ruby.
You agree that: (i) your use of the Services will not violate any law, contract, intellectual property or other third-party right or constitute a tort; (ii) you are solely responsible for your conduct while on the Services; and (iii) you use the Services at your own risk. You further agree:
ALL COPYRIGHTS AND TRADEMARKS NOT THE PROPERTY OF RUBY, INCLUDING BUT NOT LIMITED TO EMOJIS, STICKERS, STOCK IMAGES, CHARACTERS, TRANSLATIONS AND LOGOS THAT ARE USED OR REFERRED TO ON THE SERVICES, ARE THE PROPERTY OF THEIR RESPECTIVE OWNERS.
The Cloak logos and any other product or service name(s) or slogan(s) contained in the Services are trademarks of Ruby or one or more of the Ruby Parties. Unless otherwise indicated, the Services and all trademarks, service marks, logos, domains, copyrighted content, patented content and other materials on the Services, including, without limitation, the Cloak logo and all designs, form, text, scripts, graphics, pictures, videos, information, data, software (both source and object codes), publicity, sound files, other files, enhancements, derivative works, know-how and modifications thereto (collectively, the “Service Materials”) as well as their selection and arrangement are the solely owned by or licensed to Ruby or one or more of the Ruby Parties and are protected by U.S., Canadian and international copyright, trademark and other intellectual property rights laws. Unpublished rights are reserved under the copyright laws of the United States of America and Canada. Except as explicitly stated in these Terms, Ruby does not grant any express or implied rights to use Service Materials.
You are granted a limited, non-exclusive, non-transferable and revocable licence to access and use the Services and Service Materials for your personal, non-commercial use. This licence allows you to use an object code copy of a Cloak mobile application for one registered account on one mobile device owned or leased solely by you, for your personal use. We reserve all other rights. This licence is revocable at any time. For greater clarification, the right to use the Services is licensed (not sold) to you, and you have no rights in, or to, the Services or the Service Materials described above, other than the right to use them in accordance with these Terms. You acknowledge you have no right to have access to the Services in source-code form. You further acknowledge that you have no right to use any of the trademarks, service marks, logos, or domains that you may find on our Services, unless you have our express written permission. Except for that information which is in the public domain or for which you have been given express written permission by us, you agree not to exploit any aspect of the Services or the Service Materials in any manner, including the fact that you may not:
The Services may include links and other content owned or operated by third parties, including advertisements, promotions, social “widgets” and non-commercial links or references to third parties or third-party websites or resources (“Third-Party Content”). You agree that Ruby is not responsible or liable for Third-Party Content and that you access and use Third-Party Content at your own risk. You understand that Ruby has no control over Third-Party Content, including its availability (or lack of availability), the quality of any goods and/or services, the provisions of any privacy policies, security practices or other practices of the third party, or any messages you receive from, or communications you have with, the owners of Third-Party Content and/or operators of their websites. You further acknowledge that we will not be responsible for any damage to your computer hardware, software, or other technology or equipment, including but not limited to damage from any security breach or from any programming errors, bugs, viruses, worms, Trojan horses or similar programs, other software or hardware failures, denial of service attacks, spamming or hacking, tampering, fraud, other error, omission, interruption, defect, delay in operation or transmission, computer line or network failure, or any other technical malfunction that results from your accessing Third-Party Content. Your purchase and use of products or services offered in Third-Party Content are at your own discretion and risk. In addition, Ruby will not and cannot censor or edit the content of any third-party website or mobile application. Your interactions with Third-Party Content providers are solely between you and the third party that is providing the content.
Where possible, we will post a citation or other reference to the source site. All User Content must provide citations for any third-party materials.
Ruby respects the intellectual property rights of others, and we ask you to do the same. We may terminate access to the Services for users who infringe the intellectual property rights of others.
If you believe that your work is the subject of copyright infringement and/or trademark infringement and it appears on our Services, please contact us using the following contact information:
Ruby Life Inc.
Attention: General Counsel
PO Box 67027
Canada M4P 1E4
Email: [email protected]
Please also note that, for copyright infringements under Section 512(f) of the U.S. Copyright Act (17 U.S.C. §512(f)), any person who knowingly materially misrepresents that material or activity is infringing shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
We will notify you that we have removed or disabled access to copyright-protected material that you provided, if such removal is pursuant to a valid take-down notice issued under the Digital Millennium Copyright Act (“DMCA”) that we have received. If you receive such notice from us, you may provide us with a counter-notification in writing to our agent (as designated in the notice), that includes all of the following information:
Ruby provides a platform for users to communicate and interact with one another. You are solely responsible for your interactions with others, and Ruby has no responsibility or liability with respect to any online or offline interactions. We reserve the right, but have no obligation, to monitor interactions between you and other users of our Services. Please use your best judgment and keep safety in mind when you use the Services and interact with others.
You shall take all reasonable steps to ensure that no person other than yourself shall have access to the Services via your user account. Upon learning of any unauthorized use of the Services, you will notify us promptly regarding the details of such occurrence(s), and take measures to prevent any reoccurrence thereof.
Your User Content, which you provide via your use of the Services, may be cached or otherwise stored on your mobile device while you are logged in to your account, in order to make your user experience faster and more seamless. It is solely your responsibility to ensure that your use of the Services AND your use of the mobile device are safeguarded properly via password protections, logging out of the Services and the mobile device, physically safeguarding your mobile device, and any other necessary measures.
You acknowledge that you are prohibited from running the Cloak application on a jailbroken or otherwise modified version of your mobile device’s factory-supplied operating system. You acknowledge that you are fully liable for any resulting legal or financial consequences which may arise from operating the Cloak application on such a device.
While we maintain a comprehensive information security program that is reasonably designed to protect the security, confidentiality, and integrity of personal information collected from or about users, you acknowledge and agree that internet-based services and internet and data transmissions carry inherent security risks including, without limitation, risk of a data breach, sabotage or other security intrusion, and that a third party may make unlawful and harmful use of the Services. You acknowledge that we cannot guarantee that these Services and transmission are or will be 100% secure. You acknowledge and agree that your choice to use the Services is, therefore, an assumption of risk on your part, and that Ruby shall not be liable in any way for any damage whatsoever that may result from any such third-party behaviour. See Section 13 (“Liability”) for further information.
If we become aware of any legal or other risk associated with the availability of the Services, whether for use in a particular location or more generally, we reserve the right to change, suspend, withdraw or disable access to the Services at any time, without notice, and we shall have no liability to you in respect of such action.
For residents of Australia: Transmission of Personal Information Overseas. In consenting to the transfer to and processing of your data in Canada, you acknowledge that Canada may not have privacy protections equivalent to the Privacy Act 1988 (Cth). You may not have a remedy against Ruby as neither the Australian Privacy Principle 8.1 nor Section 16C of the Privacy Act will apply.
Subject at all times to our obligations regarding email communications in your respective jurisdiction, you agree that: (i) we and other sites we operate (or our agents) may send you email communications that include messages about the Services and your user account with us, and services offered by us, by the Ruby Parties, and/or by third parties; and (ii) any notice, agreements, and other communications we send to you electronically will be deemed to satisfy any legal requirements, including, without limitation, that such communications be in writing.
You may opt out of receiving email communications from us by clicking the unsubscribe link located at the bottom of any email we send you (which links will remain effective for at least 60 days). Please be advised that you cannot opt out from operational emails (i.e. non-promotional communications) pertaining to your account.
Emails sent to you by us or one of our agents may contain links to other independent third-party websites or third-party applications (“Third-Party Sites”). See Section 3.E. for more information regarding Third-Party Sites.
We are not responsible for email communications sent to you by individuals or entities that are unrelated to us. See Section 13 (“Liability”) for further details.
The mobile applications will be paid for on a monthly subscription basis, paid through the applicable (Apple or Google) app store.
In order to provide continuous service, all paid subscriptions for the Services automatically will renew on the date such subscriptions expire, unless you notify the applicable (Apple or Google) app store, before the renewal date, that you wish to cancel a subscription. By accepting these Terms, you acknowledge that your account will be subject to the above-described automatic renewals. If, at any time, you do not wish your account to renew automatically, you may cancel your automatic subscription via the applicable (Apple or Google) app store.
Notwithstanding anything else in this Section 12.C. or elsewhere in these Terms, you acknowledge that that we have no obligation to pro-rate refunds for subscriptions that you already have purchased, except as set out in Section 12.D.
Some jurisdictions offer consumers a cooling off period with respect to purchases made online. The applicable (Apple or Google) app store through which you made payment will be responsible for handling cancellations and refunds, including applying your jurisdiction’s laws (if any) related to a cooling off period. If you have any concerns or complaints about this process, such concerns/complaints should be addressed to Apple or Google, as applicable.
AFTER THE EXPIRATION OF THE APPLICABLE CANCELLATION PERIOD, YOU AGREE THAT YOUR PURCHASES, INCLUDING YOUR PURCHASE OF CREDITS (OR OTHER UNITS) AND SUBSCRIPTIONS, ARE NON-REFUNDABLE EXCEPT WHERE WE HAVE BREACHED THESE TERMS, IN WHICH CASE YOU MAY BE ENTITLED TO A REFUND UNDER APPLICABLE LAW.
The following provision is not applicable to residents of Quebec, to whom the Quebec Consumer Protection Act applies.
We are not responsible for anything that: (i) was not foreseeable to you and/or to us when these Terms were entered into by you; or (ii) is not directly caused by any breach of our obligations or otherwise directly caused by us.
To the maximum extent permitted by applicable law, in no event shall we, or any of the Ruby Parties be liable for (even if we or they have been advised of the possible existence of, or should have known about or foreseen) any of the following:
To the maximum extent permitted by applicable law, under no circumstances will Ruby’s liability to you for any and all losses or damages suffered in connection with these Terms or your use of the Services exceed the amount paid by you to use the Services during the twelve (12) months prior to the act or omission giving rise to liability, or, if you have not paid to use the Services, the amount of Twenty-Five Canadian Dollars (CAD $25) or its equivalent.
You are responsible for, and agree to indemnify and defend us and the Ruby Parties against, and release and hold us and the Ruby Parties harmless from, the claims, actions, proceedings, complaints, demands, losses, costs, damages, liabilities and expenses (including reasonable attorneys’ fees and court costs) incurred by us or by any person engaged in the provision of the Services to the extent they arise out of or relate in any way to: (a) your access to, or use (or misuse) of, or inability to use the Services; (b) your User Content; (c) your infringement of the intellectual property rights of a person other than yourself; (d) your breach of these Terms; (e) your violation of any rights of a third party; (f) your negligent acts or omissions, or willful misconduct or (g) your breach of any applicable law(s). You agree not to settle any such matter without our prior written consent. We reserve the right, at our own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us fully in asserting any available defenses.
NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR LIMIT ANY OF OUR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW, IN WHICH CASE, OUR LIABILITY WILL BE EXCLUDED OR LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
For greater clarification:
(1) Some U.S. states do not allow the exclusion or limitation of incidental or consequential damages, so the above exclusions and limitations may not fully apply to you.
(2) For UK residents, nothing in these Terms shall exclude or limit our liability for death or personal injury caused by: (i) negligence; (ii) fraud or fraudulent misrepresentation; or (iii) any other liability to the extent that such liability cannot be excluded or limited by applicable law.
(3) For EU residents, nothing in these Terms excludes or limits Ruby’s liability to the extent that it cannot be excluded or limited by applicable law.
The waivers and limitations specified in this Section 13 will survive and apply regardless of the form of action, whether based in equity, contract, tort (including negligence), strict liability, product liability, or otherwise, even if any limited remedy in the Terms fails of its essential purpose.
The Services are provided to you on an “AS IS,” “WITH ALL FAULTS” and “AS AVAILABLE” basis. Subject to any applicable legislation prohibiting the following exclusions, we do not offer or provide any warranties or representations in relation to the quality or performance of the Services, nor do we guarantee that the Service will always be available or that access to them will be uninterrupted. We will not be liable to you if, for any reason, the Services do not perform as described or are unavailable at any time or for any period. We cannot and do not warrant that the Services will be free from defects and errors, or that any defects or errors will be corrected. You assume responsibility for the operation of the Services, and for use and results obtained from the Services. WE MAKE NO WARRANTIES OF ANY KIND RELATED TO THE SERVICES (INCLUDING ALL CONTENT CONTAINED THEREIN), WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE AND NON-INFRINGEMENT, AND FITNESS FOR A GENERAL OR PARTICULAR PURPOSE. RUBY DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR SERVICE MATERIALS ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. RUBY IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS RELATING TO PRICING, TEXT OR PHOTOGRAPHY. WHIE RUBY ATTEMPTS TO MAKE YOUR ACCESS TO AND USE OF THE SERVICES SAFE, RUBY CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR ITS SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR HAVE LEGISLATION THAT IMPOSES CERTAIN STATUTORY WARRANTIES WHICH CANNOT BE EXCLUDED, SO PARTS OF THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
We may modify or vary any part of the Services in order to make technical adjustments, including but not limited to modifications which: (i) address security threats; (ii) comply with applicable law; (iii) enable us to test a new feature; (iv) cancel an existing feature; or (v) update the functionality of an existing feature. You agree that these Terms will apply to all such upgrades.
We are not obligated to inform you of every instance where we make a change to the Services. However, we may, from time to time, notify you of changes by, for example, inviting you to test a new feature or informing you that we are canceling a feature. If at any time, as a result of modifications or otherwise, you determine that you no longer want to use the Services, you can deactivate your subscription (through the Apple or Google app store, as applicable) or delete your account (by reaching out to [email protected]).
Depending on the update, you may not be able to use the Cloak mobile application until you have downloaded the latest version (and accepted any new terms, where applicable). In situations where you still are able to use an older version of the Cloak mobile application, we may no longer provide support services in relation to that older version.
We may modify or vary any part of these Terms, including but not limited to changes which: (i) do not adversely affect you; (ii) address security threats; (iii) comply with applicable law; (iv) provide clarity; or (v) comply with changes to the Services. In such circumstances we will ask for your express consent to the updated terms or revised services.
Please read this carefully if you are a resident of the United States of America or Canada. It affects your rights.
For residents of the USA, all disputes, claims, controversies, causes of action (in tort, contract, by statute, regulation, ordinance or any other legal or equitable theory), including, without limitation disputes arising from or relating to these Terms (including this dispute resolution provision and the interpretation, breach, termination, enforceability and/or validity of any part of these Terms including this dispute resolution provision) or the relationship between you and Ruby (including your use of the Services at any time) (collectively, “Disputes”) shall be resolved by: (i) a pre-arbitration dispute resolution process; or, failing that, (ii) binding arbitration pursuant to the Federal Arbitration Act (“FAA”).
For residents of Canada, all Disputes shall be resolved by (i) a pre-arbitration dispute resolution process; or, failing that, binding arbitration (to the extent binding arbitration is enforceable under the laws of your province of residence).
The purpose of this Dispute Resolution Section is to facilitate the prompt and efficient resolution of any disputes that may arise between you and Ruby Life. “Disputes” is to be given the broadest possible meaning that will be enforced, except that “Disputes” excludes disputes relating to the enforcement or validity of our intellectual property rights. WE EACH AGREE THAT, EXCEPT AS OTHERWISE PROVIDED BELOW, ANY AND ALL DISPUTES, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT, IN ACCORDANCE WITH THIS DISPUTE RESOLUTION PROVISION.
We hope we never have a Dispute but, if we do, you and we agree to try for sixty (60) days to resolve it informally. For greater clarification, if either party has any potential Dispute with the other, the complaining party must first give the other party an opportunity to resolve the Dispute prior to initiation of arbitration.
If you are the party who feels that a Dispute exists and that our customer service representatives haven’t been able to resolve it, you must commence this resolution process by mailing written notification to [email protected]. Your written notification must include: (1) your name; (2) your address; (3) a written description of the Dispute; and (4) a description of the specific relief you seek. You agree to try in good faith to resolve the Dispute within sixty (60) days of that request, following which either party may demand arbitration administered by JAMS (see Section 13.C., below).
For residents of the USA, if the parties engage in arbitration, it shall be performed by a single independent and impartial JAMS arbitrator (see www.jamsadr.com) under the FAA and any JAMS rules deemed to be applicable by the arbitrator. These Terms shall govern to the extent that they conflict with the JAMS rules. It is the intent of the parties that the FAA and JAMS rules shall pre-empt all state laws to the maximum extent permitted by law. If the FAA and JAMS rules are found not to apply to any issues that arise under this Dispute Resolution Section, then that issue shall be resolved under the laws of the State of New York. The arbitrator shall be either a retired judge or an attorney specifically licensed to practice law in the State of New York, and must have experience with and knowledge of information technology, and commercial websites. The arbitrator will be selected from the JAMS roster of consumer dispute arbitrators. If your claim does not exceed Ten Thousand US Dollars (USD $10,000), then the arbitration will be conducted solely on the basis of documents you and Ruby submit to the arbitrator, unless you request a hearing or the arbitrator deems that a hearing is necessary. Subject to the JAMS rules, the arbitrator shall have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
For residents of Canada, if the parties engage in arbitration, it shall be performed by a single independent and impartial JAMS arbitrator from JAMS Toronto (see https://www.jamsadr.com/toronto). These Terms shall govern to the extent that they conflict with the JAMS rules. It is the intent of the parties that the JAMS rules shall pre-empt all provincial laws to the maximum extent permitted by law. If the JAMS rules are found not to apply to any issues that arise under this section, then that issue shall be resolved under the laws of the Province of Ontario. The arbitrator will be selected from the JAMS Toronto roster of consumer dispute arbitrators. If your claim does not exceed Ten Thousand Canadian Dollars (CAD $10,000), then the arbitration will be conducted solely on the basis of documents you and Ruby submit to the arbitrator, unless you request a hearing or the arbitrator deems that a hearing is necessary. Subject to the JAMS rules, the arbitrator shall have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitration replaces the right to go to court and, therefore, the parties waive any right that you or Ruby might otherwise have had to a jury trial or the opportunity to litigate any claims in court before either a judge or jury. An arbitrator’s decision shall be final and binding on all parties. An arbitrator’s decision and judgment thereon shall have no precedential or collateral estoppel effect. Notwithstanding the foregoing, Ruby reserves the right to pursue the protection of its intellectual property rights and confidential information and to stop other illegal activities through immediate injunctive relief or other equitable relief at any time, and without first resorting to informal procedures or arbitration, through any courts of competent jurisdiction.
For residents of the USA, the exclusive venue for the arbitration shall be New York, New York. The parties may agree mutually on an alternate venue, in the event that New York City is an inconvenient forum. The parties will endeavor to minimize the need for long-distance travel through use of telephonic communications and submission of documents as permitted under applicable rules for expedited procedures. The official language of the arbitration shall be English.
For residents of Canada, the exclusive venue for arbitration shall be Toronto, Ontario. The parties may mutually agree on an alternate venue, in the event that Toronto is an inconvenient forum. The parties will endeavor to minimize the need for long-distance travel through use of telephonic communications and submission of documents as permitted under applicable rules for expedited procedures. The official language of the arbitration shall be English.
Instead of mailing a written notification as described in Section 13.B., above, if you meet the applicable court’s requirements, you may sue us in small claims court in your county of residence or: (i) for residents of the USA, in Manhattan County, New York; or (ii) for residents of Canada, in the Municipality of Metropolitan Toronto, Ontario.
To the extent permitted under applicable law, it is agreed that neither party shall have the right to participate as a class representative or class member with respect to any Dispute subject to arbitration under the Terms, or any Dispute between the parties. Except as otherwise provided in this paragraph, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, collective action, consolidated action, or representative action) unless both you and we specifically agree to do so in writing following initiation of the arbitration. If you choose to pursue your Dispute in court , where applicable law allows for such lawsuit despite the existence of this Dispute Resolution Section, this Class and Consolidated Claims Waiver will not apply to you.For greater clarification,neither you, nor any other user of the Services, can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having first complied with the requirements of the applicable law.
See Section 13 (“Liability”).
Any Dispute must be filed within one (1) year of the date the Dispute arose or occurred; otherwise, it is barred permanently. The parties expressly waive any contrary statute of limitations or time bars, both legal and equitable, to any Dispute. Arbitration shall be commenced by filing a claim pursuant to the applicable JAMS Rules.The arbitration proceedings shall be completed, barring extraordinary circumstances or delays caused by the arbitrator’s schedule, within thirty (30) days of the completion of any discovery. The parties may grant reasonable continuance upon good cause shown. Any award shall be reasoned and shall be rendered within the time frame specified within the JAMS rules and, where possible, within thirty (30) days of closure of the arbitration proceedings.
All parties have the right, at their own expense, to be represented by an attorney or spokesperson of their own choosing. Discovery shall be completed expeditiously within one hundred twenty (120) days of the filing of the claim. The parties may grant reasonable extensions upon good cause shown. Each party shall produce relevant non-privileged documents requested by the other party. Discovery procedures available in court actions shall not apply. The arbitrator shall grant oral and/or written discovery to preserve evidence or upon a showing of need. All discovery disputes shall be submitted promptly to, and resolved promptly by, the arbitrator (subject to her/his schedule). The parties may elect to use any expedited procedures under the applicable JAMS rules.
Any party may seek a preliminary injunction or other provisional, injunctive, emergency or equitable relief (but not monetary relief) in a court of competent jurisdiction if, in its sole judgment, such relief is necessary to preserve the status quo or to prevent irreparable harm. The parties shall, despite seeking relief under this section, participate in good faith in the arbitration.
The arbitrator will take reasonable steps to protect customer (i.e., user) account information and other confidential or proprietary information. The arbitration will be confidential unless the parties agree, mutually, that it need not remain confidential.
Ruby will consider requests to advance arbitration filing fees and arbitrator’s costs and expenses upon your written request, if such request is made prior to the commencement of the arbitration. You are responsible for all additional costs that you incur in the arbitration including, without limitation, costs associated with attorneys or expert witnesses. If the arbitration is decided in your favor, you will not be required to reimburse Ruby for any of the fees and costs advanced by Ruby. If the arbitration is decided in Ruby’s favor, you shall reimburse Ruby for its arbitration fees and costs, to the extent permitted under the applicable JAMS rules.
THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under the terms of this Dispute Resolution Section. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and Ruby in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND RUBY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
The terms of this Dispute Resolution Section shall survive the termination of your Services with Ruby. If any portion of this Dispute Resolution Section is deemed to be unenforceable or unlawful for any reason: (1), the unenforceable or unlawful provision shall be severed from these Terms; (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Dispute Resolution Section or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Dispute Resolution Section, and (3) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction rather than in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.
In addition to the rest of these Terms (which apply to all users, no matter which mobile application they use to access and/or use the Services), this section applies to you as applicable, depending on the specific Cloak mobile application you use to access the Services.
The following additional terms and conditions apply with respect to any Cloak mobile application that Ruby provides to you designed for use on an Apple/iOS-powered mobile device (a “Cloak iOS App”):
The following additional terms and conditions apply with respect to any Cloak mobile application that Ruby provides to you designed for use on an Android-powered mobile device (a “Cloak Android App”):
Use of or access to the Services by or for the United States federal government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the United States federal government, is strictly prohibited. You agree that: (i) you will comply with this prohibition; and (ii) any and all laws applicable to US federal acquisitions do not apply to your use of or access to the Services (such laws include but are not limited to 48 C.F.R. §2.101, §12.212, §227.7202, and §§227.7202-1 through 227.7202-4).
These Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
The following provision is not applicable to residents of Quebec, to whom the Quebec Consumer Protection Act applies.
We are unable to warrant that our Services will at all times be free from any interruptions or technical malfunctions of the mobile applications, programming errors, bugs, viruses, worms, Trojan horses or similar programs, other software or hardware failures, denial of service attacks, spamming or hacking, or delay in operation or transmission that may affect your use of the Services. However, we will make commercially reasonable efforts to prevent occurrence of any such incident.
No failure or delay by a party in exercising any right, power or privilege under these Terms shall operate as a waiver thereof.
The invalidity or unenforceability of any of these Terms shall not affect the validity or enforceability of any other of these Terms, all of which shall remain in full force and effect.
The parties to these Terms hereby confirm their express wish that these Terms, as well as all other documents related to the Terms, including but not limited to all confirmations, notices, waivers, consents and other communications between the parties in connection with these Terms be in the English language only, and declare themselves satisfied with this. Les parties aux présentes conditions confirment leur volonté expresse de voir la présente convention, de même que tous les documents qui s’y rattachent, incluant, mais non de façon limitative, tous les confirmations, avis, renonciations, consentements et autres communications entre les parties, rédigés en langue anglaise seulement et s’en déclarent satisfaites.
You agree to comply with applicable US Government, EU and UN export and re-export laws, regulations and requirements. For example, the United States Department of Commerce prohibits export or diversion of software and certain content to specified countries and persons. You certify that you will not download, export or re-export any software or content from the Services, for any end use: (a) into (or to a national or resident of) any country to which the USA, the EU or the UN has embargoed goods (including without limitation the Crimea Region of Ukraine or any Group E country listed in SUPPLEMENT NO. 1 TO PART 740 – COUNTRY GROUPS); (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Denied Persons List; (c) to any company, entity or person listed as a party of concern found here https://2016.export.gov/ecr/eg_main_023148.asp; or (d) for any end-use related to the development, production or use of nuclear, chemical or biological weapons or missiles. By downloading or using any such software or content, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list and that you will not license or otherwise permit anyone in any such country or on any such list to receive software or content that is subject to export control.
Ruby reserves the right, without notice and in its sole discretion, to terminate your licence to use the Services and to block or prevent future your future access to, and use of, the Services.
If any provision of these Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
Questions or comments about the Services may be directed to Ruby at [email protected].
To: Ruby Life International Limited, PO Box 54090, 3720 Limassol, Cyprus
Email address: [email protected]
I hereby give notice that I cancel my contract for the supply of the following service: …………………………………………………………………………………
Ordered on [*]/received on [*]
User Name: ……………………………………………………………….
User Email Address: ………………………………………………………
User Country of Residence: ………………………………………………
User Province/State/Territory/etc. of Residence: …………………………
User Signature: ………………………………………………………….…
(only if this form is submitted on paper)
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