Version 2.1.1
IMPORTANT NOTICES: These Terms of Use have been updated as of August 7, 2026 and shall supersede and replace all prior Terms of Use.
These Terms of Use (“the Terms” or “TOU”) and the Arbitration Agreement (see Section 16) form binding agreements between you (“You,” “Your,” or “User,”) and Onyx Games LLC (“Onyx,” the “Company,” “Us,” or “We”) which provide all of the terms and conditions governing Your access and use of www.onyxodds.com and any related applications (the “Website,” “Site,” or “Platform”) as well as Your creation of Your Onyx user account (“User Account”), use of the games, promotions or contests (collectively or individually, “Games”) on the Site, and any transactions or dealings with Us in any way (collectively, the “Service”).
THIS WEBSITE AND THE SERVICE PROVIDED HEREIN DO NOT OFFER “REAL MONEY GAMBLING.” NO ACTUAL MONEY IS REQUIRED TO PLAY, AND THE SERVICE IS INTENDED FOR ENTERTAINMENT PURPOSES ONLY.
THESE TERMS OF USE INCLUDE AN ARBITRATION AND CLASS ACTION WAIVER AGREEMENT WHICH REQUIRES THAT ANY PAST, PENDING, OR FUTURE DISPUTES BETWEEN YOU AND US SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS ONLY AND FOR YOUR OWN LOSSES ONLY. YOU MAY NOT PROCEED AS A CLASS REPRESENTATIVE, MEMBER OR PART OF ANY PROPOSED CLASS, COLLECTIVE ACTION, MASS ARBITRATION, PRIVATE ATTORNEY GENERAL SUIT, QUI TAM ACTION OR ANY REPRESENTATIVE PROCEEDING, OR OTHERWISE SEEK TO RECOVER ON BEHALF OF OTHERS OR FOR THE BENEFIT OF OTHERS IN ANY TYPE OF CLAIM OR ACTION. ARBITRATION MEANS YOU WILL NOT BE ABLE TO SEEK DAMAGES IN COURT OR PRESENT YOUR CASE TO A JURY, UNLESS OTHERWISE PERMITTED BY THESE TERMS.
OPT-OUT. IF YOU DO NOT WISH TO BE SUBJECT TO ARBITRATION ON A RETROACTIVE BASIS AND AS TO ANY FUTURE CLAIMS, AND YOU HAVE NOT PREVIOUSLY AGREED TO AN ARBITRATION PROVISION WITH US IN CONNECTION WITH YOUR USE OF OUR SERVICE, YOU MAY OPT OUT OF THE ARBITRATION AGREEMENT WITHIN THIRTY (30) DAYS OF ENTERING THIS AGREEMENT BY FOLLOWING THE INSTRUCTIONS PROVIDED IN THE “BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER” – SEE SECTION 16 OF THESE TERMS, BELOW. OPT-OUT REQUESTS SENT AFTER THE THIRTY (30) DAY PERIOD SHALL BE NULL AND VOID. EVEN IF YOU OPT OUT OF THE ARBITRATION AGREEMENT IN SECTION 16, ALL OTHER REMAINING SECTIONS OF THESE TERMS APPLY.
PLEASE READ THE FOLLOWING TERMS OF USE, THE ARBITRATION AGREEMENT AND CLASS ACTION WAIVER (SEE SECTION 16 BELOW), AND THE ONYX PRIVACY POLICY CAREFULLY BEFORE USING THE SERVICE OFFERED IN CONNECTION WITH ANY ONYX SERVICE OR WEBSITE OR APPLICATION. YOU AGREE THAT YOUR CONTINUED USE OR ACCESS OF THE SITE OR SERVICE SHALL BE SUBJECT TO THESE TERMS OF USE, WHICH FURTHER INCORPORATE AND INCLUDE THE PRIVACY POLICY, THE PLAYER SAFETY POLICY, AND ANY OTHER POLICIES THAT EXPRESSLY INCORPORATE THESE TERMS (COLLECTIVELY, “INCORPORATED POLICIES”).
IT IS AN EXPRESS CONDITION OF THIS AGREEMENT THAT ANY CLAIMS YOU MAY HAVE AGAINST ONYX ARISING FROM ANY PAST, PRESENT OR FUTURE USE OF TRACKING SOFTWARE, INCLUDING BUT NOT LIMITED TO USE OF A META PIXEL, “COOKIES,” “GET REQUESTS” OR JAVASCRIPT IN HTML CODE OF THE COMPANY’S WEBSITE THAT INTERCEPTS, TRACKS, STORES, AND ANALYZES YOUR INTERACTIONS WITH THE COMPANY’S WEBSITE FOR PURPOSES OF OBTAINING DATA OR TARGETED ADVERTISEMENT ARE HEREBY FULLY WAIVED, RELEASED AND COMPROMISED. ONYX SHALL HAVE NO LIABILITY TO YOU FOR ANY PAST, PRESENT OR FUTURE CLAIMS ARISING OUT OF OR RELATED TO THE USE OF TRACKING TECHNOLOGY.
You represent and warrant that You have the right, authority, and capacity to accept these Terms and to abide by them, that You are of legal age and that You have fully read and understood the Terms. You must read these Terms carefully in their entirety before checking the box for acceptance of these Terms. By using, or otherwise accessing the Service, or clicking to accept or agree where that option is made available, You confirm that You have read and agree to these Terms. If You do not agree to these Terms, then You may not access or use the Platform or Service. All of Your activity on the Website or Platform and all or Your transactions with Onyx, including all events which occurred before Your acceptance of these Terms, shall be subject to these Terms.
The Service is not sponsored, endorsed, or administered by, or associated with Apple®, Facebook® or Google®. You understand that You are providing Your information to Onyx only and not to Apple®, Facebook® or Google®.
From time to time, We may modify or amend these Terms. If We do so, any such modifications or changes shall be reflected in the TOU or Incorporated Policies, as applicable, on the Site. We may also, but shall not be required to, notify You by email regarding any material changes to the TOU or Incorporated Policies. Whether You receive or review such notifications, You agree that You will be bound by any such changes and that it shall be Your responsibility to check the Terms Of Use, including the Incorporated Policies, as posted on the Site prior to accessing the Site or partaking in any Service. Your further use of the Service after any changes are posted shall constitute further consent and agreement to the terms as changed or amended.
From time to time, We may also modify or amend any of the Incorporated Policies. If We do so, any such modifications or changes shall be reflected in the Incorporated Policies as posted on the Site. You agree that You will be bound by any such changes and that it shall be Your responsibility to check the Incorporated Policies as posted on the Site prior to accessing the Site or partaking in any Service. Your further use of the Service after any changes are posted shall constitute further consent and agreement to the Incorporated Policies as changed or amended.
If You have any questions about these Terms or the Incorporated Policies, please contact customer support at contact@onyxodds.com.
In the event of any conflict between the Terms and the Incorporated Policies, the Terms shall control.
Virtual Coins. The Service includes a License (as defined below) to You to use virtual tokens to play all Games on the Site, including, but not limited to, chips, coins, credits, or points (collectively, “Virtual Coins”), that may be provided for use on the Platform. No matter the reference or format of the Games, Virtual Coins are non-transferrable and may be used subject to the License only. With the exception of “no purchase necessary” promotional contests or giveaways, there is no opportunity for a User on the Platform to win real-money or any prize while playing the Games, regardless of whether any purchase was made at any point by the User.
The License. Subject to Your agreement and continuing compliance with these Terms, We grant You a limited, personal, non-exclusive, non-transferable, non-sublicensable, revocable, license to access and use the Service, Games and Virtual Coins solely for Your personal, private entertainment on the Platform and for no other reason (the “License”). Other than this limited, personal, revocable, non-transferable, non-sublicensable License to use the Virtual Coins with the Service, You have no right or title in or to any such Virtual Coins appearing or originating with the Service, or any other attributes associated with use of the Service or stored within the Service. You acknowledge and agree that Your License to use the Service is limited by these Terms and if You do not agree to, or act in contravention of, these Terms, Your License to use the Service may be immediately terminated. We have the absolute right to manage, regulate, control, modify and/or eliminate such Virtual Coins as it sees fit in its sole discretion to the extent legally permissible, and We shall have no liability to You or anyone for the exercise of such rights.
No Right to Sell or Assign. The transfer or sale of Virtual Coins by You to any other person is strictly prohibited. You may NOT sell or assign Your User Account to any other person under any circumstances. Any attempt to do so is in violation of these Terms, will result in closure and forfeiture of the User Account, and may result in a lifetime ban from the Service and possible legal action.
No Purchase Required. No purchase is required to set up a User Account or play Games. The Platform is committed to at all times providing additional access to Virtual Coins or otherwise to free-to-play Games to Users who deplete their balance of Virtual Coins. While it is never required to make any purchase in order to play the Games, Users may, subject to the License, increase the number of certain Virtual Coins they may access for licensed use on the Platform only, increase the variety of available Games, and remove advertisements by making a purchase. You understand and agree that any purchases are final and that We are not required to provide a refund for any reason. Virtual Coins are non-transferrable, and carry no cash value. All Virtual Coins under this License are forfeited if Your User Account is terminated or suspended for any reason, in our sole and absolute discretion or if the Service is no longer available. To the extent legally permissible, if Your User Account, or a particular subscription for the Service associated with Your User Account, is terminated, suspended and/or if any Virtual Coins are selectively removed or revoked by Us from Your User Account, no refund will be granted, and no Virtual Coins will be credited to You or converted to cash or other forms of reimbursement.
These Terms do not grant You any right, title or property or ownership interest in the Service or any Virtual Coins.
This Service is licensed, not sold, to You. You agree that We and our own licensors own all rights, title and interest in and to the Service, including all intellectual property rights therein as further specified below in Section 9, and that We retain ownership of the Service even after any installation on Your device. You agree not to delete or in any manner alter the copyright, trademark or other proprietary rights notices or markings which may appear on the Service.
Except as identified and specified in these Terms, You agree not to:
Your eligibility for continued use of the Service is contingent on Your ongoing compliance with these Terms, in particular:
In addition to these Terms, Games offered on the Service may have their own rules which are available on the Service. It is Your responsibility to read the rules of a Game before playing. You must familiarize Yourself with the applicable terms of play and read the relevant rules before playing any Game.
Onyx Games LLC’s affiliate, Onyx Predictions LLC (“Onyx Predictions”), is a guaranteed introducing broker registered with the National Futures Association. Sports-event trading is offered by Onyx Predictions through NinjaTrader Clearing LLC (“NinjaTrader”), a future commissions merchant registered with the National Futures Association.
Sports-event trading involves risk and may not be appropriate for all. By trading you risk losing your cost to enter any transaction, including fees. You should carefully consider whether trading sports-event contracts is appropriate for you in light of your investment experience and financial resources. Any trading decisions you make are solely your responsibility and are made at your own risk.
Trading sports-event contracts via the Onyx platform requires that you create an account with NinjaTrader. You consent to opening an account with NinjaTrader. By doing so, you agree to and acknowledge the [list and link to documents]. You also acknowledge that Onyx and Onyx Predictions are authorized to act on your instruction received the use of your username and password to withdraw from your Onyx account, and to deposit to your Onyx account, upon your instructions and independent relationship with NinjaTrader. You also authorize Onyx Predictions to convey relevant trading instructions, including funding instructions, to NinjaTrader on your behalf. Onyx and Onyx Predictions do not hold funds for prediction market trading.
Notice for California Users Under Civil Code Section 1789.3. 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(800) 952 – 5210.
As used in these Terms, the term “User Content” refers to any data, material or information that You submit, upload, post, publish, or otherwise make available through the Platform. User Content includes, but is not limited to, comments, messages, posts, images, videos, audio files, links or URLs, profile information, documents or files, and any other content generated, shared, or provided by Users while interacting with the Platform.
You are responsible for complying with all laws applicable to Your User Content. You agree not to submit to the Service, or send to other users of the Service, any defamatory, inaccurate, abusive, obscene, profane, offensive, sexually oriented, threatening, harassing, racially offensive, illegal material or any material that infringes or violates another party’s rights.
You will not provide inaccurate, misleading or false information to Us or to any other user of the Service. If information provided to Us, or another user of the Service, subsequently becomes inaccurate, misleading or false, You will notify Us of such change immediately.
We may, in our sole discretion, delete any User Content without notice but are under no obligation to do so. We have no responsibility for the conduct of any user in the Service, including any User Content submitted in the Service. We assume no responsibility for monitoring the Service for inappropriate content or conduct. Your use of the Service is at Your own risk.
You hereby grant Us the sole and exclusive, irrevocable, sub-licensable, transferable, worldwide, royalty-free license to reproduce, modify, create derivative works from, publish, distribute, sell, transfer, transmit, publicly display and use any User Content and to incorporate the same in other works in any form, media, or technology now known or later developed.
You further hereby grant to Us the unconditional, right to use and exploit Your name, likeness and any other information or material included in any User Content and in connection with any User Content or Your User Account, without any obligation to You. You waive any rights of attribution and/or any moral rights You may have in Your User Content, regardless of whether Your User Content is altered or changed in any manner except as prohibited by law.
You acknowledge and agree that all User Content whether publicly posted or privately transmitted to the Service is at Your sole responsibility and risk. We disclaim any responsibility for the backup and/or retention of any User Content transmitted to the Service.
Prohibited Content. User Content that is prohibited in the Service includes, but is not limited to:
If You see any material in the Service that in Your belief is offensive, hateful, harassing or that You otherwise think is prohibited, please notify Us by contacting contact@onyxodds.com.
The Service may contain links to content owned and/or operated by third parties, for instance third parties who may invite You to participate in promotional offers or rewards programs or third-party advertisers or payment providers. Any separate charges or obligations that You may incur in Your dealings with these third parties are Your sole responsibility. We are not responsible for any such third-party services or content and do not have control over any materials made available therein.
Our inclusion of a link to a third-party website, services or content in the Service does not imply our endorsement, advertising, or promotion of such websites, services or content or any materials available and We make no guarantee as to the content, functionality, or accuracy of any third-party website.
By accessing a third-party website, services or content, You accept that We do not exercise any control over such websites, services or content and have no responsibility for them. The third-party sites may collect data or solicit personal information from You. We are not responsible for privacy policies, or for the collection, use or disclosure of any information those sites may collect. It is always best to read and understand the terms of services and privacy policies applicable to any third-party website, services or content You may access.
We do not endorse, do not assume and will not have any liability or responsibility to You or any other person for any third-party products, services, materials or websites. Please note that the relevant third party is fully responsible for all goods and services it provides to You and for any and all damages, claims, liabilities and costs it may cause You to suffer, directly or indirectly, in full or in part.
If You use third party social networking websites to discuss the Service such as Facebook® and Twitter®, You acknowledge and agree that:
Onyx requires our Users to respect the intellectual property rights of others. If You are the owner of copyright and You believe that Your work has been used in the Service in a way that constitutes copyright infringement, please provide our Copyright Agent with a notice meeting all of the requirements of the Digital Millennium Copyright Act (“DMCA”). Your notice should contain the following information:
Before You file Your DMCA notice, please carefully consider whether or not the use of the copyrighted material at issue is protected by the Fair Use doctrine. If You file a DMCA notice when there is no infringing use, You could be liable for costs and attorneys’ fees.
Our agent for notice of claims of copyright or other intellectual property infringement can be reached as follows:
By email: contact@onyxodds.com.
13.1 Disclaimer of Warranties. THE SERVICE, IN WHOLE AND IN PART (INCLUDING, WITHOUT LIMITATION, ALL CONTENT, AND USER MATERIALS), IS PROVIDED, TRANSMITTED, DISTRIBUTED, AND MADE AVAILABLE “AS IS” AND “AS AVAILABLE” WITHOUT EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE MAKE NO WARRANTY: (A) THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; (B) THAT DEFECTS OR ERRORS IN THE SERVICE WILL BE CORRECTED; (C) THAT THE SERVICE WILL BE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS; (D) AS TO THE QUALITY, ACCURACY, COMPLETENESS AND VALIDITY OF ANY INFORMATION OR MATERIALS IN CONNECTION WITH THE SERVICE; (E) THAT YOUR USE OF THE SERVICE WILL MEET YOUR REQUIREMENTS; OR (F) THAT TRANSMISSIONS OR DATA WILL BE SECURE.
Exceptions. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER, EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES, LIABILITIES AND DAMAGES, SO SOME OF THE ABOVE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, OUR WARRANTIES AND LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
Limitation of Liability.
BY ACCESSING, USING OR DOWNLOADING THE SERVICE, YOU ACKNOWLEDGE AND AGREE THAT SUCH USE IS AT YOUR OWN RISK AND THAT NEITHER THE COMPANY NOR ANY OF THE PARTIES INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICE OR THE COMPANY OR ANY OF THEIR AFFILIATES, SUBSIDIARIES, AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CONSULTANTS, SUPPLIERS, ADVERTISERS, PAYMENT SERVICE PROMOTERS, PARTNERS, OR CONTRACTORS (COLLECTIVELY “RELEASED PARTIES”) ARE LIABLE FOR ANY DIRECT, INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES, OR ANY OTHER LOSSES, COSTS, OR EXPENSES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF DATA, LEGAL FEES, EXPERT FEES, COST OF PROCURING SUBSTITUTE SERVICES, LOST OPPORTUNITY, OR OTHER DISBURSEMENTS) WHICH MAY ARISE, DIRECTLY OR INDIRECTLY, THROUGH THE ACCESS TO, USE OF, RELIANCE ON ANY MATERIAL OR CONTENT ON THE SERVICE, OR BROWSING OF THE SERVICE OR THROUGH YOUR DOWNLOADING OF ANY MATERIALS, DATA, TEXT, IMAGES, VIDEO OR AUDIO FROM THE SERVICE, SPECIFICALLY INCLUDING ANY PAST, PRESENT OR FUTURE USE OF “COOKIES,” “GET REQUESTS,” PIXELS AND OTHER TRACKING TECHNOLOGY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
RELEASED PARTIES CANNOT AND DO NOT WARRANT OR GUARANTEE CONTINUOUS, UNINTERRUPTED, OR SECURE ACCESS TO THE SERVICE. WITHOUT LIMITING THE FOREGOING, RELEASED PARTIES ASSUME NO RESPONSIBILITY, AND WILL NOT BE LIABLE, FOR ANY DAMAGES RELATING TO OR CAUSED BY ANY VIRUSES, BUGS, HUMAN ACTION OR INACTION OF ANY COMPUTER SYSTEM, PHONE LINE, HARDWARE, SOFTWARE OR PROGRAM MALFUNCTIONS, OR ANY OTHER ERRORS, FAILURES OR DELAYS IN COMPUTER TRANSMISSIONS OR NETWORK CONNECTIONS ON ACCOUNT OF YOUR ACCESS TO OR USE OF THE SERVICE.
YOU ACKNOWLEDGE AND AGREE THAT IT IS YOUR SOLE RESPONSIBILITY TO ENSURE THAT YOU ARE LEGALLY ALLOWED TO PARTICIPATE IN THE GAMES AND ACCESS THE SERVICE UNDER THE LAWS OF THE JURISDICTION(S) APPLICABLE TO YOU. YOU UNDERSTAND AND ACCEPT THAT WE ARE UNABLE TO PROVIDE YOU WITH ANY LEGAL ADVICE OR ASSURANCES AND THAT IT IS YOUR SOLE RESPONSIBILITY TO ENSURE THAT AT ALL TIMES YOU COMPLY WITH THE LAWS THAT GOVERN YOU AND THAT YOU HAVE THE COMPLETE LEGAL RIGHT TO USE THE SERVICE. YOU EXPRESSLY WAIVE ANY RIGHTS TO BRING A CLAIM OR CAUSE OF ACTION UNDER ANY GAMBLING LOSS RECOVERY ACT, OR SIMILAR STATUTES, OR OTHERWISE CHALLENGE THE LEGALITY OF THE PLATFORM OR SERVICE. YOU AGREE THAT THIS WAIVER IS ON YOUR OWN BEHALF, AND ON BEHALF OF YOUR YOUR RELATIVES, HEIRS, ASSIGNS, SUCCESSORS, OR ANY OTHER PERSON OR ENTITY WHO MAY ATTEMPT TO ASSERT SUCH A CLAIM OR CAUSE OF ACTION ARISING FROM YOUR USE OF THE PLATFORM OR SERVICE.
IF YOU ARE A CONSUMER WHO RESIDES IN CALIFORNIA, YOU WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE § 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.”
Indemnification. BY USING THE SERVICE, YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS (INCLUDING REASONABLE ATTORNEY’S FEES AND COSTS OF SUIT) THE RELEASED PARTIES FROM ANY AND ALL THIRD PARTY CLAIMS AGAINST THE COMPANY RELATED IN ANY WAY TO YOUR USER ACCOUNT, YOUR USE OF THE SERVICE OR YOUR ACCESS TO THE SITE.
One Year Limitations Period. To the extent permitted by applicable law, You and Onyx agree that any claims, arising out of or related to the Site (including Service) or these Terms of Use or Privacy Policy must BE FILED within ONE (1) YEAR of the action, omission, event or occurrence giving rise to the claim or suit, after which such claims will be time-barred and prohibited, without regard to any longer period of time which may be provided by any period of limitation or repose by law or statute.
SOLE AND EXCLUSIVE REMEDY/LIMITATION ON RECOVERY. UNLESS OTHERWISE PROHIBITED BY LAW, OR PERMITTED IN THESE TERMS OR THE BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER (SEE SECTION 16), IN ANY DISPUTE WITH THE RELEASED PARTIES, YOUR SOLE AND EXCLUSIVE REMEDY UNDER ANY LEGAL THEORY FOR ANY LOSS OR DAMAGE WHATSOEVER ARISING FROM ANY CAUSE SHALL BE LIMITED TO THE AMOUNT OF YOUR OWN PURCHASES DURING THE ONE (1) YEAR PERIOD PRIOR TO THE FILING OF YOUR CLAIM. IN NO EVENT MAY YOU RECOVER UNDER ANY THEORY ANY AMOUNT MORE THAN THE AMOUNT PAID, IF ANY, BY YOU TO THE COMPANY FOR USE OF THE SITE OR SERVICE DURING THE TERM OF YOUR REGISTRATION FOR THE SITE, NOT INCLUDING ANY PURCHASES THAT YOU MADE PRIOR TO THE CIRCUMSTANCES GIVING RISE TO THE CLAIM.
YOU RECOGNIZE AND AGREE THAT THE WARRANTY DISCLAIMERS IN SECTION 13.1, AND THE INDEMNITIES, LIMITATIONS OF LIABILITY AND LIMITATIONS OF REMEDIES IN THIS SECTION 14, ARE MATERIAL AND BARGAINED-FOR BASES OF THESE TERMS AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN THE DECISION BY YOU AND ONYX TO ENTER INTO THESE TERMS OF USE.
NOTHING IN THESE TERMS OF USE WILL OPERATE SO AS TO EXCLUDE ANY LIABILITY OF ONYX FOR DEATH OR PERSONAL PHYSICAL INJURY THAT IS DIRECTLY AND PROXIMATELY CAUSED BY ONYX’S NEGLIGENCE OR WILLFUL MISCONDUCT.
TO THE EXTENT ANY OF THE LIMITATIONS OF REMEDY ARE NOT PERMITTED BY LAW OF ANY APPLICABLE JURISDICTION, SUCH LIMITATIONS SHALL NOT APPLY AND SHALL BE DEEMED AS SEVERABLE AND STRICKEN FROM THESE TERMS. THE PARTIES AGREE FURTHER THAT SUCH PROVISION(S) SHALL NOT AFFECT THE ENFORCEABILITY OF THE TERMS OR THE ARBITRATION AGREEMENT (SECTION 16), WHICH THE PARTIES AGREE SHALL REMAIN IN PLACE AND IN FORCE LESS ANY SUCH STRICKEN PROVISIONS.
The parties shall use best efforts to resolve informally any customer service issue (a “Dispute”) promptly and in good faith. If for some reason You are not satisfied or Your Dispute is not resolved, You may then pursue arbitration as set out below in Section 16. However, You must first submit a Notice of Dispute as set forth in this Section 15 and attempt to resolve the Dispute informally, as set out in this Section, with Onyx prior to and as a condition precedent to initiating arbitration or any formal proceeding over a Dispute as required by Section 16.
Notice of Dispute Required Prior to Arbitration. The party initiating a claim over a Dispute must give notice to the other party in writing of its intent to initiate an informal dispute resolution procedure (“Notice of Dispute”).
All informal dispute resolution procedures shall be conducted individually, between Onyx and You. Multiple individuals with Disputes cannot participate in the same informal telephonic dispute resolution process.
A Notice of Dispute must be filed within ten (10) calendar days of the situation giving rise to the dispute and must include the following information:
Upon receipt of Your Notice of Dispute, We will respond in writing within thirty (30) calendar days after receipt of such Notice, unless an extension is mutually agreed upon by the parties. Failure to submit a written communication with the information outlined above may result in a delay in our ability to identify and respond to Your complaint/claim in a timely manner, and may, in Onyx’s discretion, extend the time period for resolution before a formal proceeding may be commenced, as permitted by these Terms.
If, in our sole discretion, We require additional information to review and investigate Your Notice of Dispute, We will request the additional information in our written response to Your Notice of Dispute. You are required to provide any additional information requested by the Company within seven (7) calendar days. The Company, in its sole discretion, may request a video or telephonic informal dispute resolution conference and, in such case, participation in the conference is a condition precedent to initiating arbitration or any formal proceeding over a Dispute as required by Section 16. If a party is represented by counsel (which such representation will be at such parties’ sole cost and expense), counsel may participate in the informal dispute resolution conference, but each party shall also attend and participate in any informal dispute resolution conferences, as permitted by this Section 15.
The parties shall use their best efforts to settle any Dispute, claim, question, or disagreement and engage in good faith negotiations which shall be a pre-condition to either party initiating a formal arbitration as provided in Section 16. If the parties do not reach an agreed upon solution within a period of thirty (30) days from the time of the initial Notice of Dispute, then either party may initiate binding arbitration, to the extent permitted by law, as the sole means to resolve claims, subject to these Terms and the Arbitration Agreement.
The aforementioned Notice of Dispute and informal dispute resolution process is a condition precedent to commencing any formal arbitration proceeding under the Arbitration Agreement (Section 16 below), including litigation if You have successfully opted-out of the arbitration agreement. The parties agree that any relevant limitations period or other deadlines will be tolled solely by the amount of time the parties initiate and engage in this informal dispute resolution process.
Regardless of whether You decide to opt out of arbitration, the terms set forth in this Section 15 Initial Dispute Resolution shall remain in full force and effect as part of these Terms.
PLEASE READ THIS ARBITRATION & CLASS ACTION WAIVER AGREEMENT (THE “AGREEMENT”) CAREFULLY BECAUSE IT REQUIRES YOU AND ONYX TO ARBITRATE CERTAIN DISPUTES AND CLAIMS AND LIMIT THE MANNER IN WHICH YOU AND ONYX CAN SEEK RELIEF FROM EACH OTHER. THIS AGREEMENT APPLIES TO ANY CLAIMS YOU OR COMPANY CURRENTLY POSSESS AND ANY CLAIMS THE PARTIES MAY RAISE IN THE FUTURE. WHILE YOU MUST AGREE TO THESE TERMS OF USE IN ORDER TO USE THE SERVICE, IF YOU HAVE NOT PREVIOUSLY AGREED TO AN ARBITRATION PROVISION IN CONNECTION WITH YOUR USE OF OUR SERVICE, THERE IS AN OPTION, DESCRIBED BELOW IN SECTION 16.12, TO OPT OUT OF THE ARBITRATION PROVISIONS. THE OPTION TO OPT-OUT IS TIME-LIMITED TO THIRTY (30) DAYS OF ENTERING THIS AGREEMENT AND REQUIRES YOUR IMMEDIATE ATTENTION.
If You reside in or access the Service at any time while located in the United States, this Section 16 (Binding Arbitration Agreement and Class Action Waiver Agreement) shall be construed under and be subject to the Federal Arbitration Act, notwithstanding any other choice of law set out in these Terms of Service.
THIS AGREEMENT INCLUDES AN ARBITRATION PROVISION WHICH SETS FORTH HOW PAST, PENDING OR FUTURE DISPUTES BETWEEN YOU AND ONYX SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION.
ARBITRATION MEANS YOU WILL NOT BE ABLE TO SEEK DAMAGES IN COURT OR PRESENT YOUR CASE TO A JURY.
THIS ARBITRATION AND CLASS ACTION WAIVER AGREEMENT ALSO REQUIRES THAT ANY PAST, PENDING OR FUTURE DISPUTES WITH THE COMPANY SHALL PROCEED FOR YOUR OWN LOSSES ONLY. YOU MAY NOT PROCEED AS A CLASS REPRESENTATIVE, MEMBER OR PART OF ANY PROPOSED CLASS, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL SUIT, QUI TAM ACTION, OR ANY REPRESENTATIVE PROCEEDING, OR OTHERWISE SEEK TO RECOVER ON BEHALF OF OTHERS OR FOR THE BENEFIT OF OTHERS IN ANY TYPE OF CLAIM OR ACTION.
Acceptance of Terms. By using, or otherwise accessing the Service, or clicking to accept or agree to the Terms where that option is made available, You confirm that You have read and accept and agree to this Agreement. Except to the extent that You may opt-out as provided below, all of Your activity on the Website or Platform and all of Your transactions with Onyx, including all events which occurred before Your acceptance of this Agreement, shall be subject to this Agreement.
Scope of Agreement to Arbitrate. You and Onyx agree that any past, pending, or future dispute, claim or controversy arising out of or relating to any purchase or transaction by You, Your access to or use of any Platform or the Service, or to this Agreement, the Terms of Use, or Privacy Policy (including without limitation any dispute concerning the breach, enforcement, construction, validity, interpretation, enforceability, or arbitrability of this Agreement or the Terms of Use) (a “Dispute”), shall be determined by arbitration, including claims that arose before acceptance of any version of this Agreement. In addition, in the event of any Dispute concerning or relating to this Agreement — including the scope, validity, enforceability, or severability of this Agreement or its provisions, as well as the arbitrability of any claims—You and Onyx agree and delegate to the Arbitrator the exclusive jurisdiction to rule on their own jurisdiction over the Dispute, including any objections with respect to the scope, validity, enforceability, or severability of this Agreement or its provisions, as well as the arbitrability of any claims or counterclaims presented as part of the Dispute.
Notwithstanding the above provision and Agreement to Arbitrate, all parties retain the right to seek relief in a small claims court for disputes or claims solely within the scope of a small claim’s court jurisdiction.
Lack of Estoppel or Preclusive Effect. The parties agree that any issues determined in arbitration or any other proceeding between the parties shall be conducted and decided for the benefit of the parties or express third-party beneficiaries only and shall have no preclusive or estoppel effect against a party in any subsequent or other arbitration or litigation matter, such that all issues shall be decided anew in any subsequent or other proceedings involving either party. The parties reach this agreement in order to narrowly and efficiently tailor their legal positions without concern that any third party may attempt to offensively use any finding or determination of fact or law against You or Onyx.
Third-Party Beneficiaries. You further agree and intend that this Agreement and the Terms are entered into for the express benefit of Your spouse, heirs, children and next-of-kin and shall bind same to the extent of any claims arising from Your use of the Service which is brought by them or by any person for the use or benefit of Your spouse, heirs, children and next-of-kin. Onyx agrees also that this Agreement is intended to benefit and shall bind any successor-in-interest or assignee of Onyx.
Intellectual Property. Notwithstanding the requirement to arbitrate in this Section 16, You and Onyx are NOT required to arbitrate any claims for the alleged unlawful use of copyrights, trademarks, trade names, trade dress, logos, trade secrets, or patents, and the parties agree that in the event of infringement of copyrights, trademarks, trade names, trade dress, logos, trade secrets, or patents of a party, they shall also be entitled to seek injunctive relief from a court of competent jurisdiction, and the parties shall not be able to hold out a User’s access to the Service as a basis to enforce this arbitration agreement as to such claims.
Separate Agreement. The parties acknowledge that this Agreement is a separate agreement between the parties governed by the Federal Arbitration Act, and that any alleged or determined invalidity or illegality of all or any part of the Terms of Use, the Service, the Platform, or the Privacy Policy shall have no effect upon the validity and enforceability of this Agreement.
Applicable Law. While the Federal Arbitration Act shall control, to the extent the law of any state is applied or considered with respect to issues bearing upon the enforceability or scope of this Agreement, the parties agree that the law of the State of Delaware shall exclusively apply, notwithstanding any consideration or application of choice of law or conflicts of law principles.
Following the conclusion of the initial dispute resolution process required by Section 15, You or Onyx may seek arbitration of a Dispute in accordance with the provisions of this Agreement. You and Onyx agree that JAMS (“JAMS”) will administer the arbitration under its Comprehensive Arbitration Rules and Procedures and, to the extent applicable, the JAMS Mass Arbitration Procedures and Guidelines (collectively, the “JAMS Rules”) in effect at the time this Agreement is accepted by the User. Any arbitration proceeding shall be commenced and administered by JAMS’ offices in New York, NY. The parties expressly agree that, to the extent applicable, the JAMS Mass Arbitration Procedures and Guidelines in effect at the time this Agreement is accepted by the User. Notwithstanding the foregoing, the Company reserves the right, in its sole discretion, to reject Mass Arbitration. In the event the Company exercises its right to reject Mass Arbitration, this Agreement shall be deemed inapplicable to those claims, and each affected claimant may pursue their claim individually in a court of competent jurisdiction, subject to any applicable venue, jurisdiction, and choice-of-law provisions set forth in these Terms. If the JAMS Rules are updated or changed in any way which may be applicable to a dispute between the parties, the parties agree to consider whether the most recent version of the JAMS Rules shall apply. The JAMS Rules referenced above are available at https://www.jamsadr.com/adr-rules-procedures.
You and Onyx further agree:
Location of Arbitration. The arbitration hearing will be held in New York, NY, provided that either You or the Company may elect that the arbitration proceedings be conducted telephonically or via other remote electronic means. Notwithstanding the locations of the parties or witnesses or the election by a party for a remote proceeding, the party submitting the demand for arbitration shall commence the arbitration with JAMS’ offices in New York, NY;
Additional agreed terms:
Batch Arbitration/Mediation. To increase efficiency of resolution, in the event 20 or more similar arbitration demands against Onyx, presented by or with the assistance of the same law firm or organization or group of law firms or organizations working in coordination, are submitted to JAMS in accordance with the rules described above within a 60-day period, JAMS shall consolidate those arbitrations as contemplated in the JAMS Mass Arbitration Rules. Following the submission, initial presentation and resolution of briefing and motion practice contemplated in Section 16.9.4 on dispositive issues other than the ultimate issue of fact, to the extent claims and issues remain pending, JAMS shall group the arbitration demands into a first batch of no more than 25 demands to be set for resolution as a single arbitration. Once resolution of the first batch has concluded (or sooner if the parties agree), counsel for the parties must engage in a single mediation before a JAMS mediator of all remaining demands from claimants. Counsel for the parties must agree on a mediator within thirty (30) days after conclusion of the first batch. If the parties cannot agree on a JAMS mediator within 30 days, JAMS will appoint a JAMS mediator as an administrative matter. All parties will cooperate for the purpose of ensuring that the mediation is scheduled as quickly as practicable after the mediator is appointed. If the parties are unable to resolve their demands by mediation, JAMS shall continue to batch the remaining arbitration demands into batches of no more than 100 demands per batch (plus, to the extent there are fewer than 100 arbitration demands left over after the batching described above, a final batch consisting of the remaining demands) for administration. A single arbitration with one set of filing and administrative fees and one arbitrator will be assigned per batch. For avoidance of doubt, consolidation does not require that all arbitrations in a single batch be decided the same, nor does it impair Your right to present any evidence or argument that You think particular to Your case, so long as it is consistent with JAMS Rules. You agree to cooperate in good faith with the Company and JAMS to implement such a batch approach to resolution and fees and to efficiently consolidate discovery, submission of evidence, and motion practice.
By signing a demand for arbitration, a party certifies, to the best of their knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (i) the demand for arbitration is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (ii) the claims and other legal contentions are warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (iii) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery. The Arbitrator shall be authorized to afford any relief or impose any sanctions available under Federal Rule of Civil Procedure 11 or any applicable state law (including attorney’s fees) for either party’s violation of this requirement.
IF YOU HAVE NOT PREVIOUSLY AGREED TO AN ARBITRATION PROVISION IN CONNECTION WITH YOUR USE OF OUR SERVICE, YOU MAY OPT OUT OF THE AGREEMENT TO ARBITRATE BY FOLLOWING THE INSTRUCTIONS BELOW. IF YOU DO NOT OPT-OUT, THE ARBITRATION PROVISIONS WILL APPLY RETROACTIVELY TO ALL CLAIMS YOU MAY POSSESS, WHETHER ASSERTED TO DATE OR NOT.
OPT-OUT. IF YOU DO NOT WISH TO AGREE TO THE PROVISIONS OF THIS SECTION 16 AGREEMENT REQUIRING ARBITRATION AND CLASS ACTION WAIVER AND YOU HAVE NOT PREVIOUSLY AGREED TO AN ARBITRATION PROVISION IN CONNECTION WITH YOUR USE OF OUR SERVICE, YOU MUST, WITHIN THIRTY (30) DAYS OF ENTERING THIS AGREEMENT, SEND AN EMAIL TO CONTACT@ONYXODDS.COM WITH THE SUBJECT “OPT-OUT”. REQUESTS TO OPT OUT AFTER THE 30 DAY PERIOD SHALL NOT BE EFFECTIVE.
Whether to agree to arbitration is an important decision. It is Your decision to make and You are not required to rely solely on the information provided in these terms of use. You should take reasonable steps to conduct further research and to consult with counsel (at Your expense) regarding the consequences of Your decision.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER YOU NOR ONYX SHALL BE ENTITLED TO ARBITRATE OR LITIGATE ANY DISPUTE IN A REPRESENTATIVE CAPACITY. YOU MAY ONLY ARBITRATE OR LITIGATE ON AN INDIVIDUAL CLAIMS BASIS ONLY AND FOR YOUR OWN LOSSES ONLY. UNDER THIS AGREEMENT, YOU MAY NOT PROCEED IN ARBITRATION OR COURT AS A CLASS REPRESENTATIVE, MEMBER OR PART OF ANY PROPOSED CLASS, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL SUIT, QUI TAM ACTION OR ANY REPRESENTATIVE PROCEEDING, OR OTHERWISE SEEK TO RECOVER ON BEHALF OF OTHERS OR FOR THE BENEFIT OR USE OF OTHERS IN ANY TYPE OF CLAIM OR ACTION. YOU AND ONYX ARE EACH WAIVING RESPECTIVE RIGHTS TO PARTICIPATE IN A CLASS ACTION. BY ACCEPTING THIS AGREEMENT, YOU GIVE UP YOUR RIGHT TO PARTICIPATE IN ANY PAST, PENDING OR FUTURE CLASS ACTION OR ANY OTHER CONSOLIDATED OR REPRESENTATIVE PROCEEDING, INCLUDING ANY PROCEEDING EXISTING AS OF THE DATE YOU AGREED TO THIS AGREEMENT.
Severability. This Agreement applies solely to the extent permitted by law. If for any reason any provision of this Agreement or portion thereof, is found to be unlawful, void, or unenforceable, that part of this Agreement will be deemed severable and shall not affect the validity and enforceability of the remainder of this Agreement which shall continue in full force and effect. To the fullest extent allowable by law and equity, the parties agree that any such provision may be blue-penciled or otherwise construed by the forum presiding over any dispute to give effect to the intent of the parties and consistent with the overall purpose and intent of the agreement, and may be deemed replaced by an enforceable provision that comes closest to the intention underlying the unenforceable provision.
END OF SECTION 16 ARBITRATION AGREEMENT
EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE PLATFORM OR SERVICE OR ANY TRANSACTIONS BETWEEN THE PARTIES, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY.
Entire Agreement. These Terms constitute the entire agreement between You and Us with respect to Your use of the Service and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, between You and Us with respect to Your participation.
Tax. You are solely responsible for any taxes which apply to Your use of the Service.
Force Majeure. We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under these Terms that is caused by events outside of our reasonable control, including but not limited to an act of God, hurricane, war, fire, riot, earthquake, weather, pandemic or endemic, terrorism, act of public enemies, strikes, labor shortage, actions of governmental authorities or other force majeure event.
Severability. In the event any provision of these Terms is held unenforceable, such provision will be ineffective but shall not affect the enforceability of the remaining provisions. To the fullest extent allowable by law and equity, the parties agree that any such provision may be blue-penciled or otherwise construed by the forum presiding over any dispute to give effect to the intent of the parties and consistent with the overall purpose and intent of the agreement, and may be deemed replaced by an enforceable provision that comes closest to the intention underlying the unenforceable provision.
Assignment. These Terms are personal to You, and are not assignable, transferable or sub-licensable by You except with our prior written consent. We reserve the right to assign, transfer or delegate any of our rights and obligations hereunder to any third party without notice to You, and in such case the Terms shall apply to and bind any successor-in-interest or assignee of ours.
Third-Party Beneficiaries. You further agree and intend that these Terms are entered into for the express benefit of Your spouse, heirs, children and next-of-kin and shall bind the same to the extent of any claims arising from Your use of the Service which is brought by them or by any person for their use or benefit.
Business Transfers. In the event We undergo a change of control, merger, acquisition, or sale of assets, Your User Account and associated data may be part of the assets transferred to the purchaser or acquiring party.
Waiver. Our failure to assert breach or a violation of these Terms or otherwise failure to exercise any rights under these Terms shall not constitute or be deemed a waiver or forfeiture of such rights or a waiver or forfeiture of such rights in the future.
Survival of Obligations. SECTIONS 13, 14, 15, 16, 17 and 19 SHALL BE DEEMED TO SURVIVE THE TERMINATION OF THESE TERMS OF USE OR YOUR USER ACCOUNT FOR ANY REASON.
Governing Law. Subject to the Arbitration Agreement contained in Section 16, which is governed by the Federal Arbitration Act, the parties agree that these Terms and the related Service are governed by and shall be construed in accordance with the laws of the State of Delaware USA without regard to its principles of conflicts of law. To the extent this governing law provision is finally determined to be unenforceable as it relates to the use of the Service, the parties agree that the governing law shall in such event be the applicable law in the jurisdiction in which the user who is a party to the dispute properly utilizes the services. Nothing herein is intended to limit a party’s right to appeal a determination by a court of law that the laws of the State of Delaware are unenforceable.
Exclusive Forum and Venue. Subject to and without any waiver of the Arbitration Agreement contained in Section 16 and the exclusive delegation by the parties to the Arbitrator, the parties agree that any lawsuits filed by a party asserting any dispute, controversy, or claim arising out of or in connection with these Terms or the Arbitration Agreement, must be filed in the state or federal courts in Delaware and You and We consent to the venue and personal jurisdiction of those courts. Notwithstanding the foregoing, any motion to compel arbitration or to enforce an arbitral award issued hereunder may be brought before any court of competent jurisdiction.
Personal Jurisdiction in Delaware Courts Only. You agree and understand that the Company is providing online entertainment services to You and not shipping any good or providing any commercial services to You in the State where You live. The Company is an internet-based business and does not, by entering into these Terms with You, agree to be subject to any suit in the courts of any state other than Delaware. Further to this express purpose, You and the Company have agreed to arbitrate all disputes (Section 16) and further have allowed either party to elect to a remote arbitration hearing in order that neither You nor the Company must appear in a court in a State which is both inconvenient and which lacks personal jurisdiction over You or the Company. Accordingly, You expressly agree that the Company is not agreeing to or subjecting itself to the jurisdiction of any court of any state other than Delaware by entering into these Terms, the Arbitration Agreement or providing You with access to the Platform or the Service.