Attention Arcade End-User License Agreement
Last updated: February 8, 2019
This Software End User License Agreement, including any applicable Order Form (as defined below), which by this reference is incorporated herein (collectively, this “Agreement”), is a binding agreement between BrainLeap Technologies, Inc., a Delaware corporation (“Licensor” or “us”) and the person or entity identified on the Order Form as the licensee of the Software (“Licensee” or “you”).
LICENSOR PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM.
If you are under the age of 13, then you may not license this Software. If you are a minor 13 years of age or older but younger than 18 years of age, then you represent that you have reviewed this Agreement with your parent or legal guardian and that you and your parent or legal guardian understand and consent to the terms and conditions of this Agreement. If you are a parent or legal guardian permitting a minor to use the Software (an “Authorized User”), then you agree to: (a) supervise the Authorized User’s use of the Software; (b) assume all risks associated with the Authorized User’s use of the Software; (c) assume any and all liability resulting from the Authorized User’s use of the Software; (d) ensure the accuracy and truthfulness of all information submitted by you and the Authorized User; and (e) assume responsibility and are bound by this Agreement for the Authorized User’s access and use of the Software.
THIS AGREEMENT CONTAINS AN ARBITRATION AGREEMENT AND A CLASS ACTION WAIVER. BY USING THE SOFTWARE, YOU ARE ACCEPTING THE TERMS OF THE ARBITRATION AGREEMENT, AND YOU ARE AGREEING THAT ANY CLAIMS THAT YOU MAY HAVE AGAINST US WILL BE RESOLVED IN ARBITRATION. YOU ARE GIVING UP YOUR RIGHT TO BRING CLAIMS IN COURT, TO HAVE THOSE CLAIMS HEARD BY A JUDGE OR JURY, AND TO FILE CLAIMS ON BEHALF OF ANYONE BUT YOURSELF AND YOUR FAMILY. PLEASE READ THIS AGREEMENT CAREFULLY TO UNDERSTAND YOUR RIGHTS AND RESPONSIBILITIES.
BY CLICKING THE “ACCEPT” BUTTON OR CHECKING THE “ACCEPT” BOX ON THE ORDER FORM, AS APPLICABLE, YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN LICENSOR WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE AND YOU MUST NOT DOWNLOAD OR INSTALL THE SOFTWARE OR DOCUMENTATION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR OR LICENSEE’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF LICENSOR’S SOFTWARE.
- Definitions. For purposes of this Agreement, the following terms have the following meanings:
“Documentation” means user manuals, technical manuals and any other materials provided by Licensor, in printed, electronic or other form, that describe the installation, operation, use or technical specifications of the Software.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“License Fees” means, as applicable, the license fees, including all taxes thereon, paid or required to be paid by Licensee for the license granted under this Agreement.
“Order Form” means the order form filled out and submitted by or on behalf of Licensee, and accepted by Licensor, for Licensee’s purchase of the license for the Software granted under this Agreement or Licensee’s participation in Licensor’s beta test program for the Software, as applicable.
“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.
“Software” means the software programs for which Licensee is purchasing a license, as expressly set forth in the Order Form.
“Third Party” means any Person other than Licensee or Licensor.
- License Grant and Scope. Subject to and conditioned upon Licensee’s payment of the License Fees, as applicable, and Licensee’s strict compliance with all terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable, limited license during the Term to use, solely by and through Licensee and its Authorized Users, the Software and Documentation, solely as set forth in this Section 2 and subject to all conditions and limitations set forth in Section 4 or elsewhere in this Agreement. This license grants Licensee the right, exercisable solely by and through Licensee and its Authorized Users, to:
- Download and install in accordance with the Documentation one (1) copy of the Software on a number of computers owned or leased, and controlled by, Licensee, as set forth in the Order Form. Licensee shall not, and shall not allow any Person to copy the Software without Licensor’s prior written consent in each case. Without limiting the generality of the foregoing, all copies of the Software made by the Licensee shall: (i) be the exclusive property of the Licensor; (ii) be subject to the terms and conditions of this Agreement; and (iii) include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.
- Use and run the Software as properly installed in accordance with this Agreement and the Documentation, solely as set forth in the Documentation. Such use is permitted only on the computer on which the Software is installed, at the physical location thereof and not via any remote access or other network.
- Download or otherwise make one (1) copy of the Documentation per copy of the Software permitted to be downloaded and installed in accordance with this Agreement and use such Documentation, solely in support of its licensed use of the Software in accordance herewith. All copies of the Documentation made by Licensee shall: (i) be the exclusive property of Licensor; (ii) be subject to the terms and conditions of this Agreement; and (iii) must include all trademark, copyright, patent and other Intellectual Property Rights notices contained in the original.
- Transfer any copy of the Software from one computer to another, provided that: (i) the number of computers on which the Software is installed at any one time does not exceed the number permitted under Section 2(a).
- Third-Party Materials. The Software may include software, content, data or other materials, including related documentation, that are owned by Persons other than Licensor and that are provided to Licensee on licensee terms that are in addition to and/or different from those contained in this Agreement (“Third-Party Licenses”). A list of all materials, if any, included in the Software and provided under Third-Party Licenses can be found in the Documentation and the applicable Third-Party Licenses are accessible via links therefrom. Licensee is bound by and shall comply with all Third-Party Licenses. Any breach by Licensee or any of its Authorized Users of any Third-Party License is also a breach of this Agreement. Without limiting the generality of the foregoing, Licensee understands, acknowledges and agrees that, License is solely responsible for Licensee’s or its Authorized User’s use of any Third-Party equipment, hardware, software, information, content, data, documentation or other materials, services or products in connection with the Software and/or Documentation, including, without limitation, the Tobii Eye Tracker or similar hardware and equipment, and Licensor shall not be responsible for Licensee’s or its Authorized User’s use of such Third-Party equipment, hardware, software, information, consent, data, documentation or other materials, services or products.
- Use Restrictions. Licensee shall not, and shall require its Authorized Users not to, directly or indirectly: (a) use (including make any copies of) the Software or Documentation beyond the scope of the license granted under Section 2; (b) except as expressly authorized hereunder, provide any other Person, including any subcontractor, independent contractor, affiliate or service provider of Licensee, with access to or use of the Software or Documentation; (c) modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof; (d) combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs; (e) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Software or any part thereof; (f) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices provided on or with the Software or Documentation, including any copy thereof; (g) except as expressly set forth in this Agreement, copy the Software or Documentation, in whole or in part; (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Software, or any features or functionality of the Software, to any Third Party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud or other technology or service; (h) use the Software or Documentation in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems, including power generation systems; (i) use the Software or Documentation in violation of any law, regulation, or rule; (j) use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service or any other purpose that is to the Licensor’s commercial disadvantage; (k) use the Software or Documentation for purposes of providing medical or other advice, diagnosis or treatment or for purposes of providing any service, including, without limitation, therapy or other professional services; use the Software or Documentation for purposes of scientific research, analysis or evaluation without the express written consent of Licensor in each case.
- Medical Disclaimer. Licensor is a provider of desktop, mobile and other content and software solutions, including the Software, in the health and wellness space. Licensor is not a health care or medical provider, nor should Licensor’s products or services, including, without limitation, the Software or Documentation be considered health care, medical advice or medical devices. Licensor makes no claims, representations or guarantees that the Software or Documentation provides any therapeutic benefit or improves or treats any condition. The Software and Documentation is intended for general information purposes only, and is not intended to and shall not be relied upon, and is not a substitute for professional medical advice, treatment or diagnosis. Licensee accepts full responsibility for Licensee’s and its Authorized User’s use, decisions and actions with respect to the Software and Documentation. Without limiting the generality of the foregoing, Licensor makes no representation or warranties about the accuracy, completeness or suitability for any purpose of the Software and Documentation.
- Responsibility for Use of Software. Licensee is responsible and liable for all uses of the Software and Documentation through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Software and Documentation by its Authorized Users or by any other Person to whom Licensee or an Authorized User may provide access to or use of the Software and/or Documentation, whether such access or use is permitted by or in violation of this Agreement.
- Compliance Measures. The Software may contain technological copy protection or other security features designed to prevent unauthorized use of the Software, including features to protect against any use of the Software that is prohibited under this Agreement. Licensee shall not, and shall not attempt to, remove, disable, circumvent or otherwise create or implement any workaround to, any such copy protection or security features. During the Term, Licensor may, in Licensor’s sole discretion, audit Licensee’s use of the Software to ensure Licensee’s compliance with this Agreement. The Licensee shall fully cooperate with Licensor’s personnel conducting such audits and provide all access requested by the Licensor to records, systems, equipment, information, and personnel, including machine IDs, serial numbers and related information. Licensor shall only examine information directly related to the Licensee’s use of the Software. If any of the measures taken or implemented under this Section 7 determines that the Licensee’s use of the Software exceeds or exceeded the use permitted by this Agreement then Licensee shall, within one (1) business day of such determination by Licensee or Licensor’s written notification thereof, pay to Licensor the retroactive License Fees, as applicable, for such excess use and, unless Licensor terminates this Agreement as provided herein, obtain and pay for a valid license to bring Licensee’s use into compliance with this Agreement. In determining the Licensee Fee payable pursuant to the foregoing, (a) unless Licensee can demonstrate otherwise by documentary evidence, all excess use of the Software shall be deemed to have commenced on the commencement date of this Agreement or, if later, the completion date of any audit previously conducted by Licensor hereunder, and continued uninterrupted thereafter, and (b) the rates for such licenses shall be determined without regard to any discount to which Licensee may have been entitled had such use been properly licensed prior to its commencement (or deemed commencement). Licensor’s remedies set forth in this Section are cumulative and are in addition to, and not in lieu of, all other remedies the Licensor may have at law or in equity, whether under this Agreement or otherwise.
- Maintenance and Support. The license granted hereunder does not entitle Licensee to any software maintenance and support services, except for such software maintenance and support services offered by Licensor to Licensee from time to time in its sole and absolute discretion. Without limiting the generality of the foregoing, maintenance and support services may include provision of such updates, upgrades, bug fixes, patches, and other error corrections (collectively, “Updates”) as Licensor makes generally available free of charge to all licensees of the Software then entitled to maintenance and support services. Licensor may develop and provide Updates in its sole and absolute discretion, and Licensee agrees that Licensor has no obligation to develop any Updates at all or for particular issues. Licensee further agrees that all Updates will be deemed Software, and related documentation will be deemed Documentation, all subject to all terms and conditions of this Agreement. Licensee acknowledges that Licensor may provide some or all Updates via download from a website designated by Licensor and that Licensee’s receipt thereof will require an internet connection, which connection is Licensee’s sole responsibility. Licensor has no obligation to provide Updates via any other media. Maintenance and support services do not include any new version or new release of the Software that Licensor may issue as a separate or new product, and Licensor may determine whether any issuance qualifies as a new version, new release, or Update in its sole discretion. Licensor reserves the right to condition the provision of maintenance and support services, including all or any Updates, on Licensee’s registration of the copy of Software for which support is requested. Notwithstanding the foregoing, Licensor has no obligation to provide maintenance and support services, including Updates: (a) for any but the most current or immediately preceding version or release of the Software; (b) for any copy of Software for which all previously issued Updates have not been installed; (c) if Licensee is in breach under this Agreement; or (d) for any Software that has been modified other than by or with the authorization of Licensor, or that is being used with any hardware, software, configuration or operating system not specified in the Documentation or expressly authorized by Licensor in writing.
- Collection and Use of Information.
- Licensee acknowledges and agrees that Licensor may, directly or indirectly, collect and store information regarding use of the Software and Documentation, including, without limitation: by Authorized Users; about equipment on which the Software and Documentation is installed or through which it otherwise is accessed and used; and statistical and/or anonymized data regarding the games played, including, without limitation, the resulting scores and other performance metrics and information. Such information may be collected by Licensor or through: (i) the services of Third Parties; (ii) the provision of maintenance and support services; and (iii) security measures included in the Software as described herein. Licensee acknowledges and agrees that the Licensor may use such information for any purpose, including, without limitation, purposes related to any use of the Software or Documentation by Licensee, any Authorized User or on Licensee’s equipment, including, but not limited to: (x) analyzing and improving the performance of the Software, improving the Documentation or developing Updates; (y) verifying Licensee’s compliance with the terms of this Agreement and enforcing Licensor’s rights, including all Intellectual Property Rights in and to the Software and Documentation; and (z) for Licensor’s research and development, marketing and promotional and similar purposes.
- Intellectual Property Rights. Licensee acknowledges and agrees that the Software and Documentation are provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest in the Software or Documentation under this Agreement or otherwise, or any other rights thereto, other than to use the same in accordance with the license expressly granted and subject to all terms, conditions and restrictions under this Agreement. Licensor and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software, except as expressly granted to the Licensee in this Agreement. Licensee shall safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access. Licensee shall promptly notify Licensor if Licensee becomes aware of any infringement of the Licensor’s Intellectual Property Rights in the Software and fully cooperate with Licensor, at Licensor’s sole expense, in any legal action taken by Licensor to enforce its Intellectual Property Rights.
- If Licensee or any of its Authorized Users sends or transmits any communications or materials to Licensor by mail, email, telephone or otherwise, suggesting or recommending changes to the Software or Documentation, including, without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (collectively, “Feedback”), then Licensor is free to use such Feedback in any manner. Licensee hereby assigns to Licensor on Licensee’s behalf, and on behalf of its Authorized User’s, all right, title and interest in, and Licensor is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Licensor is not required to use any Feedback.
- Payment. All License Fees are payable in advance in the manner set forth in the Order Form and are non-refundable, except as may be expressly set forth herein. Any renewal of the license hereunder shall not be effective until the fees for such renewal have been paid in full.
- Term and Termination. This Agreement and the license granted hereunder shall remain in effect for the term set forth on the Order Form or until earlier terminated as set forth herein (the “Term”). Licensee may terminate this Agreement by ceasing to use and destroying all copies of the Software and Documentation. Licensor may terminate this Agreement: (a) effective upon written notice to Licensee, if Licensee breaches this Agreement; (b) effective immediately, if Licensee files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property; and (c) effective upon written notice to Licensee if Licensee has licensed the Software hereunder pursuant to Licensor’s beta test program(s) or otherwise received a free license to use the Software. Upon expiration or earlier termination of this Agreement, the license granted hereunder shall also terminate, and Licensee shall cease using and destroy all copies of the Software and Documentation. No expiration or termination shall affect Licensee’s obligation to pay all Licensee Fees that may have become due before such expiration or termination, or entitle Licensee to any refund, in each case except as set forth herein.
- Warranty Disclaimer. THE SOFTWARE AND DOCUMENTATION ARE PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE LICENSOR PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE WILL MEET THE LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
- Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (a) IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO LICENSEE, AUTHORIZED USER OR ANY THIRD PARTY FOR: ANY USE, INTERRUPTION, DELAY OR INABILITY TO USE THE SOFTWARE; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (b) IN NO EVENT WILL LICENSOR’S AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO THE LICENSOR PURSUANT TO THIS AGREEMENT FOR THE SOFTWARE; AND (c) THE LIMITATIONS SET FORTH IN SECTION 13 SHALL APPLY EVEN IF THE LICENSEE’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
- Licensee agrees to indemnify, defend and hold harmless, Licensor, its affiliates, or any of its or their respective licensors or services provides, and their respective officers, directors, employees, agents, licensors and representatives from and against any and all losses, expenses, damages and costs, including reasonable attorneys’ fees, resulting from or related to (i) Licensee’s or any Authorized User’s use of the Software or Documentation or (ii) any violation of this Agreement by Licensee or any Authorized User. Licensor reserves the right to assume, at its sole expense, the exclusive defense and control of any matter subject to indemnification by Licensee hereunder, in which event Licensee will fully cooperate with licensor in asserting any available defenses.
- Export Regulation. The Software and Documentation may be subject to US export control laws, including the US Export Administration Act and its associated regulations. The Licensee shall not, directly or indirectly, export, re-export, or release the Software or Documentation to, or make the Software or Documentation accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. The Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software or Documentation available outside the US.
- US Government Rights. The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if the Licensee is the US Government or any contractor therefor, Licensee shall receive only those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
- Arbitration Agreement. Please read this Arbitration Agreement carefully. It is part of Licensee’s contract with Licensor and affects Licensee’s rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
- Applicability of Arbitration Agreement. Any and all claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with this Agreement, the use of the Software or any other product, service or information provided by Licensor that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to Licensee and Licensor, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all Authorized Users or unauthorized users or beneficiaries of the license hereunder.
- Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Licensor should be sent to: BrainLeap Technologies, Inc., 8950 Villa La Jolla Drive, Suite B-126, La Jolla, CA 92037, Attention: Chief Executive Officer. After the Notice is received, Licensee and Licensor may attempt to resolve the claim or dispute informally. If Licensee and Licensor do not resolve the claim or dispute within thirty (30) days after the Notice is received, then either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
- Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, then the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including, but not limited to, the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules (“Arbitration Rules”) governing the arbitration are available online at adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of Licensee’s residence, unless Licensee reside outside of the United States, and unless the parties agree otherwise. If Licensee resides outside of the U.S., then the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants to Licensee an award that is greater than the last settlement offer that Licensor made to Licensee prior to the initiation of arbitration, then Licensor will pay Licensee the greater of the award or $2,500.00. Each party shall bear its own costs (including attorneys’ fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
- Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, then the arbitration shall be conducted by telephone, online and/or based solely on written submissions; and the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
- Time Limits. Except as otherwise set forth herein, if Licensee or Licensor pursue arbitration, then arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
- Authority of Arbitrator. If arbitration is initiated, then the arbitrator will decide the rights and liabilities, if any, of Licensee and Licensor, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon Licensee and Licensor.
- Waiver of Jury Trial. 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 this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between Licensee and Licensor in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, LICENSEE AND LICENSOR WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
- Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
- Confidentiality. All aspects of the arbitration proceeding, including, but not limited to, the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
- Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
- Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
- Survival of Agreement. This Arbitration Agreement will survive the termination of Licensee’s relationship with Licensor.
- Small Claims Court. Notwithstanding the foregoing, either Licensee or Licensor may bring an individual action in small claims court.
- Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
- Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
- Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within San Diego County, California, for such purpose.
- Licensor shall not be responsible or liable to Licensee, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning, or Licensee equipment, loss and destruction of property, or any other circumstances or causes beyond Licensor’s reasonable control.
- All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth on the Order Form (or to such other address as may be designated by a party from time to time in accordance with this Section.
- This Agreement, together with the Order Form, all annexes, schedules, and exhibits attached hereto and all other documents that are incorporated by reference herein, constitutes the sole and entire agreement between Licensee and Licensor with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
- Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Licensor’s prior written consent, which consent Licensor may give or withhold in its sole discretion. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section is void. Licensor may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensee’s consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
- This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
- This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
- If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
- For purposes of this Agreement: (a) the words “include,” “includes,” and “including” shall be deemed to be followed by the words “without limitation;” (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Sections, Annexes, Schedules, and Exhibits refer to the Sections of, and Annexes, Schedules, and Exhibits attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Order Form and all Annexes, Schedules, and Exhibits and other documents referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.