Effective date: October 13th, 2023
These Terms of Service (the “Terms”) and our Privacy Policy govern the relationship between you and Candlestick Tech, LLC (“Candlestick,” “our,” “we” or “us”) relating in any way to your use of our Services. “Services,” as further defined in Section 1 below, mean our website, www.candlestick.com (the “Website”), the Candlestick software development kit (the “SDK”), the Candlestick app (the “App”), and any related integrations, interfaces, features, and content, including any text messages that you may receive from or on behalf of Candlestick.
Please read these Terms of Service (the “Terms”) and our Privacy Policy carefully before using our Services. These Terms set out the terms and conditions that apply when you use the Services. By signing up for Candlestick and using the Services, and by continuing to use the Services after any future changes to these Terms, you confirm that you have carefully read, understood, and agree to be bound to these Terms, particularly those provisions that restrict or exempt liabilities. In addition, our Privacy Policy describes how we collect, use, disclose, share, and otherwise process your personal information when providing the Services to you, as well as your rights and choices concerning your information. If you do not agree to these Terms, or if you do not want us to collect, use, disclose, share, or otherwise process your information in the ways described in our Privacy Policy, you must not use our Services (or you must stop using the Services if you have already started using them).
To use the Services, you must be 16 years of age or older and over the age of majority in your jurisdiction to use our Services. If you are under 18 years of age, or under the age of majority where you live, your legal guardian must provide consent to your use of the Services. Candlestick directs the Services ONLY to users in the United States and United States law governs these Terms.
SECTION 12 OF THIS AGREEMENT CONTAINS AN INFORMAL DISPUTE RESOLUTION PROCESS, A BINDING AGREEMENT TO ARBITRATION, AND A CONSOLIDATED, CLASS ACTION, AND REPRESENTATIVE ACTION WAIVER, WHICH WAIVE YOUR RIGHT TO A COURT HEARING OR A TRIAL BEFORE A JUDGE OR JURY, SUBJECT TO CERTAIN EXCEPTIONS. PLEASE READ SECTION 12 AND THESE TERMS CAREFULLY.
Candlestick provides certain integrations, interfaces, features, and other content that allow users to provide their feedback on certain advertisements served within participating third-party applications that users engaged with or downloaded (together with the Services defined above, the “Services”). Within those applications, a window or pop-up may appear that enables users to review certain advertisements.
Users have no obligation to provide any feedback and not all advertisements will be subject to user review. You acknowledge and agree that you provide any feedback on a voluntary basis and with the express understanding that you will not receive any compensation (or any other thing of value) in exchange for their feedback. As described below, you grant us a limited, irrevocable license to use the feedback you may choose to provide without compensation. Candlestick may use your feedback to improve advertisements or the overall user experience, among other potential uses. However, you acknowledge and agree that your feedback may not result in changes to advertisements or the overall user experience.
Changes to Services or this Agreement — Because our Services evolve over time, we may at any time, in our sole discretion, modify, suspend, restrict, terminate, or cancel the Services or any portion of them. In addition, we may at any time, in our sole discretion, suspend, restrict, or delete accounts or access to the Services or any portion of them. In addition, we may modify these Terms at any time at our sole discretion. By continuing to use the Services after those modifications, you agree to the revised terms.
Third-Party Applications — You understand that Candlestick operates independently of the third-party applications that include the Services. You have an independent relationship with those third-party applications, governed by the third parties’ terms or service or other documents. Please review the third parties’ terms of service and other documents carefully for additional information.
Your License to the Services — Subject to your agreement and continuing compliance with these Terms, we grant you a non-exclusive, non-transferable, non-sublicensable, revocable limited license to access and use the Services for your own personal use. You agree not to use the Services for any other purpose. Any unauthorized use will terminate this limited license and may also violate applicable laws.
Our License to Your Feedback on Advertisements — You agree that we will have a perpetual, transferable, sublicensable, royalty-free, irrevocable, worldwide, and non-exclusive license to use your feedback in our discretion, including by incorporating your feedback on advertisements, without any obligation to compensate you. To the extent permitted by applicable law, you waive any moral rights you may have in such suggestions and feedback.
Except for the limited license granted above, we and our licensors retain all legal right, title, and interest in and to all other elements of the Services, including the Candlestick SDK and all of the intellectual property associated with Candlestick and the Services. You agree not to modify, create derivative works of, decompile, or otherwise attempt to extract source code from the Candlestick SDK or any other technical aspect of the Services.
Subject to your agreement and continuing compliance with these Terms, we may give you the opportunity to register for an account with Candlestick. Your account creation and registration will generally be based on the phone number you provide to us. You are responsible for updating any account information, if applicable, and for maintaining the security of your account and device.
Our Privacy Policy describes how we collect, use, disclose, share, and otherwise process your personal information when providing the Services to you, as well as your rights and choices concerning your information. When you use our Services, you acknowledge that the Privacy Policy applies. If you do not want us to collect, use, disclose, share, and otherwise process your information in the ways described in our Privacy Policy, you must not use our Services.
If you violate these Terms or any law, rule, or regulation; interfere with or damage or disrupt the Services or any server or network used to support or provide the Services; create user accounts or submit feedback by automated means or under false or fraudulent pretenses; use, employ, operate, or create a computer program to simulate the human behavior of a user (“Bots”); or use, employ, or operate Bots or other similar forms of automation to engage in any activity on Candlestick, including submitting feedback; or engage in any similar conduct or behavior, we may, at our sole and absolute discretion, without notice or liability to you, and without limiting any of our other rights or remedies at law or in equity, immediately suspend or terminate your user account or your access to, use, or integration of, the Services.
The Services may, from time-to-time, include third-party content, including links to third-party apps, websites, or resources. We provide this content and these links only as a convenience. We are not responsible for the content, products, or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for, and assume all risk arising from, your use of any third-party websites or resources.
As part of the Services, you may receive push notifications, text messages, or other types of messages. As part of signing up for the Services, you gave your consent to receive marketing messages from Candlestick. Please note that messaging fees may apply depending on the message plan you have with your wireless carrier. If you have any questions about your text or data plan, please contact your wireless carrier.
You can cancel these messages at any time by replying “STOP.” After you send the SMS message "STOP" to us, we will send you an SMS message to confirm that you have been unsubscribed. If you want to join again, just sign up as you did the first time and we will start sending SMS messages to you again. Upon experiencing issues with the messaging program, please contact us at support@candlestick.com.
If you are experiencing issues with the messaging program you can reply with the keyword HELP for more assistance, or you can get help directly at support@candlestick.com
Carriers are not liable for delayed or undelivered messages.
Termination by Us — We may terminate your access and use of the Services, at our sole discretion, at any time and without notice to you.Termination by You — You may terminate these Terms and cancel your account at any time by contacting us at support@candlestick.com.Effect of Termination — Upon any termination or cancellation of the Services or your account, all provisions of these Terms which by their nature should survive will survive, including, without limitation, warranty disclaimers, limitations of liability, and dispute resolution provisions.
To the full extent permitted under applicable law, you agree to defend, indemnify, and hold harmless Candlestick, its affiliates, parent corporations, and licensors, and their respective officers, directors, employees, contractors, agents, licensors, suppliers, insurers, and reinsurers from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) resulting from your use of the Services or violation of these Terms.
Nothing in these Terms affects the statutory rights that you may have as a consumer of the Services. Some jurisdictions do not allow the exclusion of certain warranties or the limitation of certain liabilities. In those jurisdictions, the exclusions and limitations below shall apply only to the extent permitted by the laws of these jurisdictions.
Warranty Disclaimers — Candlestick provides the Services and all information, content, materials, products (including the Candlestick SDK or other software), and other services included on or otherwise made available to you through the Services on an “as is” and “as available” basis, without warranty of any kind. Candlestick makes no representations or warranties of any kind, express or implied, as to the operation of the Services, or the integrations, interfaces, features, and content (including the SDK or other software), or other services included on or otherwise made available to you through the Services. You expressly agree that your use of the Services is at your sole risk. To the full extent permissible by law, Candlestick disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose. Candlestick does not warrant that the Services, integrations, interfaces, features, and content (including software), or other services included on or otherwise made available to you through the Services, the Candlestick’s servers, or any messages sent to you from Candlestick will be secure, free of viruses or other harmful components, or uninterrupted. We expressly disclaim any warranties of any kind.
Limitation of Liability — To the full extent permissible by law, neither Candlestick nor any other party involved in creating, producing, or delivering the Services (including our corporate parents), will be liable for any loss of profits or any indirect, incidental, punitive, special, or consequential damages arising out of or in connection with these Terms. Further, to the full extent permissible by law, Candlestick’s aggregate liability arising out of or in connection with these Terms will not exceed the total sum of twenty dollars (US$20). These limitations and exclusions regarding damages apply even if any remedy fails to provide adequate compensation.
These Terms, and all claims or defenses based on, arising out of, or related to these Terms or our relationship under these Terms shall be governed by, and enforced in accordance with, the internal laws of the State of California, without reference to its choice of law rules or any principle calling for application of the law of any other jurisdiction.
Any disputes not subject to the Agreement to Arbitration set forth in this Section shall be heard only in the state or federal courts located in Santa Clara County, California, unless we mutually agree to some other location. Each of us consents to venue and personal jurisdiction in Santa Clara County, California, for purposes of any such action.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND INCLUDES WAIVER OF A TRIAL BY JURY IN A COURT AND OF THE ABILITY TO BRING ANY CLASS ACTIONS OR REPRESENTATIVE ACTIONS.
Notice of Claim and Required Informal Dispute Resolution Process
In the event of any controversy or claim arising out of or relating to these Terms, we shall consult and negotiate with each other and, recognizing our mutual interests, attempt to reach a satisfactory solution, through first contacting Customer Support and then through the Informal Dispute Resolution Process described below. If these informal efforts do not resolve the concern or issue, as explained in more detail below, we each agree to resolve any dispute between us through binding arbitration or small claims court instead of in courts of general jurisdiction.
If you have any concerns about, or experience any issue with, the Services, most user concerns or issues can be resolved by contacting us at support@candlestick.com. Before initiating the Informal Dispute Resolution Process (as described below) or any arbitration or court proceeding pursuant to this Section, you must first contact us to address your concerns or issues. Most disputes can be resolved that way.
If you have any concern or dispute that we cannot resolve, you agree to then try to resolve the dispute informally (the “Informal Dispute Resolution Process”) and in good faith by contacting us and providing a written notice of claim (the “Notice of Claim”) by sending an email to support@candlestick.com and legal@candlestick.com. The Notice of Claim must provide us with an individualized and detailed description of the nature and factual basis of your individual, personal claim(s), and the relief you seek. Your Notice of Claim may only include your individual personal claim(s) and may not be combined with a Notice of Claim for other individuals. After submitting your Notice of Claim, you then agree to meet and confer by email, telephonically, or by videoconference (such as Zoom), in good faith regarding your individual claim before taking any further action.
If any dispute related to your Notice of Claim cannot be resolved through the Informal Dispute Resolution Process within sixty (60) days of our receipt of the Notice of Claim, this Section explains how you and we agree to resolve it. As explained in more detail below, we each agree to resolve any dispute between us through binding arbitration or small claims court instead of in courts of general jurisdiction. You understand and agree that you and we are giving up the right to sue in court and the right to have a trial before a judge or jury.
Agreement to Arbitration; Exceptions to Agreement to Arbitration
If we cannot resolve our dispute through Customer Support or through an Informal Dispute Resolution Process (as described above), YOU AND WE AGREE TO RESOLVE ALL DISPUTES AND CLAIMS BETWEEN US IN INDIVIDUAL BINDING ARBITRATION, INCLUDING CLAIMS CONCERNING ANY ASPECT OF THE RELATIONSHIP BETWEEN US, YOUR DECISION TO DOWNLOAD THE GAME, YOUR USE OF THE GAME, ANY USER CONTENT, OR YOUR ACCOUNT.
This Agreement to Arbitration is intended to be interpreted broadly, and it applies to all disputes or claims of any kind under any theory (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory) that you may have or assert against us.
You and we agree that the arbitrator shall have the exclusive authority to resolve any dispute arising out of or relating to these Terms or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope, applicability, or enforceability of this Agreement to Arbitration. This includes questions about whether any dispute between us is subject to this Agreement to Arbitration (i.e., the arbitrator will decide the arbitrability of any dispute) and whether all or any part of these terms are void or voidable.
Please note that an arbitration is a proceeding before a neutral arbitrator, instead of before a judge or jury. Arbitration is less formal than a lawsuit in court and provides more limited discovery. It follows different rules than court proceedings and is subject to very limited review by courts. The arbitrator will issue a written decision and provide a statement of reasons if requested by either party. YOU UNDERSTAND THAT YOU AND WE ARE GIVING UP THE RIGHT TO SUE IN COURT AND THE RIGHT TO HAVE A TRIAL BEFORE A JUDGE OR JURY.
Exceptions to Agreement to Arbitration
This Section does not apply to the following types of claims or disputes, which you or we may bring in court in accordance with these Terms:
(1) claims of infringement or other misuse of intellectual property rights, including such claims seeking injunctive relief;
(2) claims for preliminary injunctive relief for violations of these Terms;
(3) claims to request enforcement or recognition of any award or order in any appropriate jurisdiction; and
(4) our ability to suspect or terminate accounts or access to the Services pursuant to these Terms.
This Section does not prevent you from bringing your dispute to the attention of any federal, state, or local government agencies that can, if the law allows, seek relief from us for you. In addition, any of us can bring a claim in small claims court either in Santa Clara County, California, or the county where you live, or some other place we both agree on, if such claims meet the requirements to be brought in that small claims court. If either party files a claim in arbitration that could have been brought in small claims court, the other party may elect to resolve the claim through small claims court (rather than through arbitration) by providing notice to the other party before appointment of an arbitrator; upon receipt of such notice, the arbitration provider shall administratively close the case before assessing any fees, and the party bringing the claim must proceed in small claims court in lieu of arbitration.
Procedure for Arbitration
The Federal Arbitration Act applies to this Section. The arbitration will be governed by the Streamlined Arbitration Rules & Procedures (the “Rules”) of JAMS (“JAMS”), as modified by these Terms. The Rules are available at https://www.jamsadr.com/rules-streamlined-arbitration/. The arbitrator will be bound by these Terms. In the event of a conflict between the rules of the arbitration provider and the Terms, including with respect to the assessment of the fees and costs of arbitration, these Terms will govern.
To start an arbitration proceeding, use the form available on the JAMS website (https://www.jamsadr.com/submit/). Any arbitration under this Section that must take place in person (rather than through a more convenient virtual forum) will take place pursuant to the Rules and these Terms. The parties agree that any live proceedings, including the arbitration hearing, will be conducted at a location reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances.
Payment of all filing, administrative, arbitrator fees, and costs of arbitration will be governed by the Rules, except as modified by these Terms. If your claim is for US$25,000 or less, we agree to reimburse your share of the arbitration costs, including your share of arbitrator fees, at the conclusion of the proceeding, unless the arbitrator determines your claims are frivolous, your claims were brought for an improper purpose, or your arbitration costs are unreasonable as determined by the arbitrator. If you seek more than US$25,000, the arbitration costs, including arbitrator compensation, will be split between you and us according to the rules of the arbitration provider. Notwithstanding the above, if you demonstrate that you are unable to afford the fees or costs of arbitration, qualify for a statutory exemption, or if the arbitrator determines that your payment of any portion of the costs or fees would be cost-prohibitive (as compared to litigation), we will pay them. Irrespective of the amount you seek, neither party shall be entitled to have their attorneys’ fees or costs paid by the other party; provided, however, that either party may seek to recover their attorneys’ fees and costs in arbitration if the arbitrator determines that the other party’s claims (or counterclaims) are frivolous or were brought for an improper purpose.
Class Action and Representative Action Waiver
For disputes arising between us and you, or any other user, you and we agree that we can only bring a claim against each other on an individual basis. NEITHER YOU NOR WE CAN BRING A CLAIM AS A PLAINTIFF OR CLASS MEMBER IN A CLASS ACTION, CLASS-WIDE ARBITRATION, CONSOLIDATED ACTION, OR REPRESENTATIVE ACTION. THE ARBITRATOR CANNOT COMBINE MORE THAN ONE PERSON’S CLAIM INTO A SINGLE CASE, AND CANNOT PRESIDE OVER ANY CONSOLIDATED, CLASS, OR REPRESENTATIVE ARBITRATION PROCEEDING, UNLESS WE BOTH AGREE OTHERWISE IN WRITING. NONETHELESS, IF ANY PORTION OF THIS CLASS ACTION OR REPRESENTATIVE ACTION WAIVER IS DEEMED UNENFORCEABLE OR INVALID, THE ARBITRATOR SHALL HAVE AUTHORITY TO ISSUE ANY AND ALL REMEDIES AUTHORIZED BY LAW.
YOU UNDERSTAND THAT, ABSENT THIS AGREEMENT TO ARBITRATION, YOU WOULD HAVE HAD A RIGHT TO LITIGATE THROUGH A COURT, TO HAVE A JUDGE OR JURY DECIDE YOUR CASE, AND TO BE PARTY TO A CONSOLIDATED, CLASS, OR REPRESENTATIVE ACTION. HOWEVER, YOU UNDERSTAND AND CHOOSE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY AND ONLY THROUGH ARBITRATION.
Changes to this Section
Notwithstanding any provision in these Terms to the contrary, we agree that, if we make any future change to this Section, you may reject any such change by sending us written notice within thirty (30) days of the change to legal@candlestick.com.
Opting out of the Agreement to Arbitration and Class Action Waiver
You have the right to opt out and not be bound by this Agreement to Arbitration by sending us written notice of your decision to opt out by contacting us at support@candlestick.com or legal@candlestick.com. The notice must be sent within thirty (30) days of your first use of the Services or availability of this opt-out, whichever is later; otherwise, you shall be bound to arbitrate disputes as set out in this Section. If you opt out of these arbitration provisions, we also will not be bound by them.
Severability
This Section applies to the maximum extent permitted by applicable law. If any competent authority deems any portion of this Section illegal or unenforceable, such provision will be severed and the remainder of this Section will be given full force and effect.
If any competent authority determines that applicable law precludes the arbitration of any claim, cause of action, or requested remedy, then that claim, cause of action, or requested remedy, and only that claim, cause of action, or requested remedy, will be severed from this Agreement to Arbitration (as described below), and will be brought in a court of competent jurisdiction. If a claim, cause of action, or requested remedy is severed pursuant to this paragraph, then you and we agree that the claims, causes of action, or requested remedies that are not subject to arbitration will be stayed until all arbitrable claims, causes of action, and requested remedies are resolved by the arbitrator.
Survival
This Section shall survive termination of these Terms.
Entire Agreement — These Terms constitute the entire and exclusive understanding and agreement between us and you regarding the Services, and these Terms supersede and replace all prior oral or written understandings or agreements between us and you regarding the Services.
Severability — If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible, and the other provisions of these Terms will remain in full force and effect.
No Assignment or Transfer by You — You may not assign or transfer these Terms, by operation of law or otherwise, without our prior written consent. We may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors, and permitted assigns.
No Waiver — Our failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by our duly authorized representative. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
California Notice — Pursuant to California Civil Code Section 1789.3, Candlestick notes the following for consumers from California: the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at 1(916) 445-1254 or 1(800) 952-5210. We may be contacted in writing at Attention: “Legal”, 2100 Geng Road, Suite 210, Palo Alto, CA 94303, or at support@candlestick.com.
If you have any questions about these Terms or the Services, please contact us at support@candlestick.com.
