Clause database · Gaming, social, and hospitality
Activision Publishing, Inc.
Software License and Service Agreement
As captured on ; terms may have changed since.
Reviewed fields
For each field: the reviewer's category, then the words of the captured document. Where the category is silent, no provision on that field was extracted from the captured text, and nothing is quoted. Every category, with its count, is listed on the data page.
Delegation clause (who decides whether the clause is enforceable)
Reviewed category: to-arbitrator-except-procedural
Except as expressly stated in Section 16 of this Agreement: the arbitrator shall determine the scope and enforceability of this arbitration agreement, including whether a Dispute is subject to arbitration; and the arbitrator has authority to decide all issues of validity, enforceability or arbitrability, including, but not limited to, where a party raises as a defense to arbitration that the claims in question are exempted from the arbitration requirement or that any portion of this agreement is not enforceable. ... Notwithstanding the parties’ decision to have an arbitrator decide all issues of validity, enforceability or arbitrability, you and Activision agree that if either party fails or refuses to commence the Mass Arbitration before FedArb, then in this instance only, you or Activision may seek injunctive relief from a court compelling compliance and directing administration of the Mass Arbitration before FedArb.
Company’s fee promise
Reviewed category: silent
No provision on this field was extracted from the captured text.
Fee or cost shifting against the consumer
Reviewed category: silent
No provision on this field was extracted from the captured text.
Pre-filing requirement
Reviewed category: mandatory-condition-precedent
a notice of Dispute containing all of the information required above, followed by at least 30 days of good faith negotiation, are preconditions to either party initiating a lawsuit or arbitration.
Mass-arbitration terms
Reviewed category: incorporates-provider-rules-only
Notwithstanding the parties’ decision to have arbitrations administered by JAMS, if 20 or more Disputes or demands for arbitration are filed relating to the same or similar subject matter and sharing common issues of law or fact, and counsel for the parties submitting the Disputes or demands are the same or coordinated, you and we agree that this will constitute a “Mass Arbitration.” If a Mass Arbitration is commenced, you and we agree that it shall not be governed by JAMS Rules or administered by JAMS. Instead, a Mass Arbitration shall be administered by FedArb, a nationally recognized arbitration provider, and governed by the FedArb Rules in effect when the Mass Arbitration is filed, excluding any rules that permit arbitration on a class-wide basis (the “FedArb Rules”), and under the rules set forth in this Agreement. ... You and we agree that the Mass Arbitration shall be resolved using FedArb’s Framework for Mass Arbitration Proceedings ADR-MDL
Small-claims carve-out
Reviewed category: available-standard-carve-out
Either party may also seek relief in a small claims court for any individual disputes or claims within the scope of that court's jurisdiction.
Opt-out
Reviewed category: general-with-window
You have the right to opt-out and not be bound by the arbitration agreement and class action waiver provisions in this Section 16 by sending written notice of your decision to opt-out to the following email address: [email protected], using the subject line “Arbitration Opt-Out.” The notice must be sent within 30 days of purchasing the Program (or if no purchase was made, then within 30 days of the date on which you first access or use the Program and agree to these terms)
Unilateral modification
Reviewed category: continued-use-is-acceptance
EXCEPT FOR SECTION 16 (ARBITRATION AND CLASS ACTION WAIVER), ACTIVISION RESERVES THE RIGHT TO MODIFY THIS AGREEMENT AT ANY TIME BY ANY MEANS ... YOUR CONTINUED USE OF THE PROGRAM CONSTITUTES YOUR ACCEPTANCE OF THE MODIFICATIONS.
Scope
Reviewed category: broad-plus-survives-termination
The following provisions shall survive termination of this agreement: ... BINDING ARBITRATION AND CLASS ACTION WAIVER (SECTION 16) ... A “Dispute” means any dispute, claim, or controversy (except those specifically exempted below) between you and Activision that in any way relates to or arises from any aspect of our relationship ... This includes claims or requests for relief that accrued before you entered into this Agreement.
Confidentiality of the arbitration
Reviewed category: silent
No provision on this field was extracted from the captured text.
Shortened limitations period
Reviewed category: shortened-to-2-years
To the fullest extent permitted by law, any claim or request for relief in a demand for arbitration filed pursuant to Section 16 of this Agreement, as well as any claim or request for relief in a lawsuit filed in court under an exception to the arbitration agreement in Section 16, shall be barred if filed more than two (2) years after the date that the claim or request for relief accrued.
Severability if the class waiver is struck
Reviewed category: whole-clause-void-if-class-waiver-struck
If any provision in Section 16 of this Agreement is found to be unenforceable, that provision shall be severed with the remainder of this Agreement remaining in full force and effect. The foregoing shall not apply to the prohibition against class or collective actions as provided for above. This means that if the prohibition against class or collective actions is found to be unenforceable for any reason, the entire Section 16 of this Agreement (but only Section 16) shall be null and void.
Counsel or representation restrictions
Reviewed category: silent
No provision on this field was extracted from the captured text.
Mass-arbitration numeric trigger
Reviewed category: forum-switch-trigger
Stated term: “20 or more” Disputes or demands for arbitration — recorded as 20
The trigger is conditioned on the claimants sharing, or coordinating, counsel.
if 20 or more Disputes or demands for arbitration are filed relating to the same or similar subject matter and sharing common issues of law or fact, and counsel for the parties submitting the Disputes or demands are the same or coordinated