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The SpringboardVR Team
Last Updated: August 1, 2017
SPRINGBOARD VR TERMS OF SERVICE
These Terms of Service constitute a binding agreement (“Agreement”) as of the date you accept this Agreement between you (“Subscriber” or “you”) and Springboard Virtual Reality LLC d/b/a Springboard VR ("Springboard" or “we” or “us”), an Oklahoma limited liability corporation whose principal place of business is 3334 West Main Street #389, Norman, Oklahoma 73072, regarding the terms under which Springboard will provide Subscriber with access to the Services. Springboard and Subscriber may be referred to herein collectively as “parties” and each individually a “party”.
THIS IS A LEGALLY BINDING CONTRACT. BY ACCESSING OR USING THIS SERVICE OR BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, SUBSCRIBER ACKNOWLEDGES AND REPRESENTS THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON EXECUTING ON ITS BEHALF HAS BEEN AUTHORIZED TO DO SO. THE PERSON EXECUTING THIS AGREEMENT ON SUBSCRIBER’S BEHALF REPRESENTS THAT HE/SHE HAS THE AUTHORITY TO BIND SUBSCRIBER TO THESE TERMS. YOU ALSO REPRESENT AND WARRANT THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS CONTRACT AND ARE NOT PROHIBITED BY LAW FROM ACCESSING OR USING THIS SERVICE. YOU DO NOT HAVE TO ENTER INTO THIS AGREEMENT, BUT IF YOU DO NOT YOU WILL NOT BE PERMITTED TO USE THE SPRINGBOARD VR SCHEDULER. YOU UNDERSTAND THAT THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION CONTAINING A CLASS ACTION WAIVER.
SPRINGBOARD MAY MODIFY THIS AGREEMENT FROM TIME TO TIME. YOU ARE FREE TO CHOOSE TO ACCEPT A MODIFIED VERSION OF THIS AGREEMENT OR NOT, BUT ACCEPTING THIS AGREEMENT, AS MODIFIED, IS REQUIRED FOR YOU TO CONTINUE USING THE SPRINGBOARD SERVICES. YOU MAY HAVE TO “ACCEPT” OR “AGREE” TO SHOW YOUR ACCEPTANCE OF ANY MODIFIED VERSION OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF ANY MODIFIED VERSION OF THIS AGREEMENT, YOU MUST TERMINATE YOUR USE OF THE SPRINGBOARD SERVICES. EXCEPT AS OTHERWISE EXPRESSLY STATED, ANY USE OF THE SERVICES IS SUBJECT TO THE VERSION OF THIS AGREEMENT IN EFFECT AT THE TIME OF USE.
THIS AGREEMENT ALSO GOVERNS YOUR USE OF OUR SERVICES UNDER A FREE TRIAL.
1.2. "Arcade Customer Interface" or "ACI" means the downloadable software component for the Springboard VR launcher and its associated elements that is licensed from Springboard and made available by Springboard through the Service Software for use in connection with the Services at the Defined Location, including all new versions, updates, revisions, replacements, improvements and modifications of the foregoing.
1.3. “Authorized User” means each of the individuals authorized to use the Services on behalf of Subscriber and who is provided access to the Services by the Subscriber and for whom Subscriber creates a login through the Service Software for access. An Authorized User is one natural person.
1.4. “Arcade Customer” means those individuals that are customers of Subscriber with whom Subscriber or its Authorized User make available the rendering of the ACI portion of the Services in order to provide such individuals with one or more virtual reality experiences or games for a limited duration.
1.5. "Data" means any and all data, content, and information, in any form or medium, that is collected, downloaded, uploaded or otherwise received, directly or indirectly, from Subscriber, an Authorized User, or an Arcade Customer by or through the Services, including any data, content, and information derived or processed by the Services based on Subscriber’s, an Authorized User’s, or an Arcade Customer’s use of and access to the Services.
1.6. “Defined Location” is a single physical location of Subscriber identified by Subscriber when you set up your account with us identifying the number of Stations for such location. (Note, if you have more than one physical location with which you wish to access and use the Services, you may do so and provide the applicable information for each Defined Location either at initial account set up or at a later date through the Services).
1.7. "Documentation" means any explanatory materials, operating manuals, training materials, or other documents or materials, that Springboard provides or makes available to Subscriber in any form or medium and which describe the functionality, components, features or requirements of Service Software or ACI, including any aspect of installation, configuration, integration, operation, use, support or maintenance thereof.
1.7 “Scheduler” means that software service that may be provided by Springboard to enable Arcade Customers to schedule reservations with You.
1.8. “Service Software” means the Springboard software application(s), including the “Arcade Administration Interface” (“AAI”), that provide the ability for Subscriber to administrate and manage virtual reality experiences or games for the Defined Location and all new versions, updates, revisions, improvements and modifications of the foregoing, that Springboard provides remote access to and use of as part of the Services.
1.9. “Services” means the subscription or free trial to use Springboard’s Service Software via the Internet, including the Scheduler, the license to use Springboard’s ACI, and the license to use any Springboard Documentation or any Springboard Materials that Springboard makes available to Subscriber under this Agreement.
1.10. “Springboard Materials” means the Service Software, Documentation, ACI, Springboard Systems, and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technology and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Springboard in connection with the Services or otherwise comprise or relate to the Services or Springboard Systems. Springboard Materials include any Data collected or derived from Springboard’s monitoring of Subscriber’s, Authorized Users’, or Arcade Customers’ access to or use of the Services.
1.11. "Springboard Systems" means the information technology infrastructure used by or on behalf of Springboard in performing the Services, including all computers, software, hardware, database, electronic systems (including database management systems) and networks, whether operated directly by Springboard or through the use of third-party services.
1.12. “Station” means the game station that Subscriber makes available to its Arcade Customers that consists of a single computer and one or more virtual reality headsets.
1.13. "Term" is defined in Section 11 below.
1.14. “Third-Party Materials” means materials and information, in any form or medium, including any software, advertisements, documents, data, content, specifications, products, games, equipment or components that are used in conjunction with, or of or relating to the Services, or use thereof that are not owned or proprietary to Springboard. For the avoidance of doubt, Third-Party Materials include any games Subscriber licenses or otherwise obtains from game developers, software components obtained or licensed separately by Subscriber, e.g., the SteamVR® provided by Valve Corporation, and any accounts or other licenses Subscriber makes or obtains in connection with any third-party for use in connection with the Services.
2. Free Trial .
2.1. “Free Trial” means the temporary right to use the Services at no charge during a free trial period for new Subscribers and in accordance with any applicable terms, including, this Agreement, and any additional trial terms and conditions which may appear during the free trial registration process, and such additional terms are incorporated into this Agreement. The free trial period lasts until the earlier of thirty (30) days from the date of this Agreement or termination by us in our sole discretion. The Free Trial is available for new and certain former Subscribers only and not available for Subscribers entering into this Agreement for additional Defined Locations. Springboard reserves the right, in its absolute discretion, to determine your free trial eligibility.
2.2. The Free Trial may or may not require you to provide billing and financial information. If you provide billing and financial information at the commencement of the Free Trial and your Free Trial is not terminated by us, we will begin billing you for monthly subscription fees at the end of the free trial period as set forth in Section 6 and your subscription will automatically renew monthly unless you cancel prior to the end of the free trial period. If billing and financial information is not provided at the commencement of the Free Trial, your access and use of the Services will end on the last day of the free trial period. Any Data you enter into the Services or made by you during your Free Trial may be permanently lost unless you purchase a subscription prior to the end of the free trial period.
Software as a Services Subscription License and ACI License Grant
3.1. Access to Service Software. Subject to and conditioned on Subscriber’s and its Authorized Users’ compliance with the terms and conditions of this Agreement and compliance of any other terms and conditions of Springboard made available through the Services, as such may be updated from time to time, Springboard grants to Subscriber a non-exclusive, non-transferable, non-sublicenseable, limited right to access and use the Service Software and Documentation during the Term solely for Subscriber’s legitimate, day-to-day, internal business purposes of managing its own VR arcades.
3.2. ACI License. Subject to and conditioned on Subscriber’s and its Authorized Users’ compliance with the terms and conditions of this Agreement and compliance of any terms and conditions of Springboard made available through the Services, as such may be updated from time to time, Springboard grants to Subscriber a non-exclusive, non-transferable, non-sublicenseable, limited license to download, install, and use a single copy of the ACI for each computer associated with each Station during the Term in such quantities as Subscriber sets forth upon initial registration or such quantities as Subscriber may adjust in the AAI, solely for Subscriber’s legitimate, day-to-day, internal business purposes of managing its own VR arcades, pursuant to the terms of the ACI End User License Agreement. For the avoidance of doubt, this license of Section 3.2 allows Subscriber and its Authorized Users to make available the visual rendering of the ACI portion of the Services in the customer headset to its Arcade Customers pursuant to the terms of the ACI End User License Agreement.
Subscriber’s Responsibilities and Acknowledgements
4.2. Restrictions. Subscriber shall not, and shall not permit any Authorized Users and any other person to access or use the Services or Springboard Materials except as expressly permitted by this Agreement. For clarity and without limiting the generality of the foregoing, Subscriber shall not, except as this Agreement expressly permits: (a) sell, distribute, lease, lend, market, license, sublicense, or otherwise grant to any person or entity any right to use the Services or Springboard Materials; (b) decompile, disassemble, reverse-engineer, modify, adapt, tamper with, translate, create derivative works, create or recreate the source code for any part of the Services or Springboard Materials, in whole or in part; (c) modify, remove, erase, obscure, tamper with or fail to preserve any copyright or product identification, trademark, trade name, proprietary rights notices, seal, or instructional label printed or stamped on, affixed to, or encoded or recorded in or on the Services or Springboard Materials, including any copy thereof; (d) bypass or breach any security device or protection used by the Services or Springboard Materials or access or use the Services or Springboard Materials other than by an Authorized User through the use of his or her own then valid access credentials; (e) input, upload, transmit or otherwise provide to or through the Services or Springboard Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any malicious, disruptive, or harmful code; (f) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, Springboard’s Systems or Springboard’s provision of services to any third party, in whole or in part; (g) access or use the Services or Springboard Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other Springboard customer), or that violates any applicable law; (h) access or use the Services or Springboard Materials for purposes of competitive analysis of the Services or Springboard Materials, the development, provision or use of a competing software service or product or any other purpose that is to the Springboard’s detriment or commercial disadvantage; or (i) otherwise access or use the Services or Springboard Materials beyond the scope of the authorization granted under Section 3. Authorized Users are not allowed to share account or login credentials.
4.4. Password; Security. Subscriber and its Authorized Users are responsible for maintaining the confidentiality of all access credentials, including logins and passwords, and for ensuring that each and all access credentials are used only by the applicable Authorized User. Subscriber is responsible for any and all activities that occur under its account to the extent such activities are not performed or caused by Springboard, its agents or employees. Subscriber shall promptly notify Springboard of any unauthorized use of Subscriber’s account, the Services, or any other breach of security known to Subscriber. Subscriber and its Authorized Users shall treat any Springboard Materials made available to Subscriber with the same degree of care with which Subscriber treats its own confidential information, and in no case less than a reasonable degree of care, and Subscriber shall take all reasonable precautions to protect the confidentiality of such Springboard Materials made available to Subscriber. Springboard shall have not liability for any loss or damage to Subscriber in any form arising from Subscriber’s or its Authorized Users’ failure to comply with these requirements.
5.1. Responsibilities. Springboard will provide commercially reasonable efforts to enable the Services to be accessible to Subscriber pursuant to this Agreement, except for any: (a) planned downtime of the Services; and (b) any unavailability cause by circumstances beyond Springboard’s control, including for example, a Force Majeure Event, Internet service provider failure, or delay, or denial of service attack, or any unavailability of any Third-Party Materials.
5.2. Support. If you have technical questions about the use of the Services during the term of this Agreement, please contact us at [email protected] and Springboard will provide commercially reasonable assistance during its normal hours of operation. Some support may require Springboard to assist you by accessing your account or by using a remote access tool to access your computer(s). To the extent additional non-standard or specialized support or additional training is required, such services may be subject to a fee at Springboard’s then- current hourly or standard rates.
Fees; Payment Terms
6.1. Fees. Customer shall pay Springboard the fees as set forth in the Arcade registration/sign-up process when signing up for the Services, which fees may be changed by Springboard with reasonable notice. The Fees may include a recurring subscription fee based on the number of Stations at each Defined Location and other fees. You may add or remove Stations at each Defined Location via the AAI. For clarity, if you add or remove a Station before your next billing period, you will be charged a prorated amount per Station. This charge may take place immediately or in the next renewal term. All fees are non-cancellable and non-refundable.
6.2. Fee Changes. Springboard reserves the right, in its sole and absolute discretion, to adjust its pricing for any of the Services or any components thereof in any manner and at any time. Such fee changes will take effect following email notice to you through the billing email address we have on file.
6.3. Taxes and Other Fees. The fees herein do not include sales, use or similar tax, duties, bank fees, or levies of any kind imposed by any governmental entity. To the extent applicable, Subscriber is responsible for paying the same and shall indemnify and hold Springboard harmless therefrom. All expenses and costs incurred by you in connection with this transaction, including the acquisition of any Third-Party Materials, if any, are your sole responsibility.
6.4. Payment. Recurring charges are billed in advance of service. You agree to provide us and our payment processor, as applicable, with valid, up-to-date, current, and complete debit/credit card, contact, and billing information and authorize us and our payment processor, as applicable, to bill such debit/credit card on for the Services hereunder for each applicable term. You are responsible for any overdraft fees or other charges made to your selected method of payment. Please note that we currently use a payment processor, Stripe, to process your payments and billing information, such as the credit card number your provide is provided directly to our payment processor and not Springboard. We may change our payment processor at any time in our sole and absolute discretion. You agree to review and be bound by the payment processor’s policies and procedures. If Subscriber fails to make any payment when due then, in addition to all other remedies that may be available, Springboard may, at its option, suspend or terminate Subscriber’s subscription and access to the Services without incurring any obligation or liability to Subscriber or any other person by reason of such suspension or termination. Springboard may charge a fee for reinstatement of a suspended or terminated account. Unless otherwise expressly stated, all fees are stated in United States dollars.
7. Proprietary Rights and Other Licenses .
7.1. Reservation of Rights. This Agreement does not convey to Subscriber title or ownership of the Services or any Springboard Materials, but only a right of limited use in accordance with the express terms of this Agreement. No other rights, express or implied, are granted herein. Springboard reserves all rights, title, and interest in and to the Services, Springboard Materials, including all related intellectual property rights and proprietary rights therein.
7.2. Feedback. For any feedback that Subscriber or any of its agents or employees provides to Springboard all right, title, and interest in and to, and the right to pursue protection for, such feedback, including any suggestions, recommendations, corrections, improvements, enhancements, and modifications (collectively “Improvements”) to any of the Services, or relating to Springboard, or the Springboard Materials shall vest solely with Springboard, and Subscriber agrees to assign and does hereby assign all such Improvements to Springboard without any additional consideration or contribution or acknowledgement.
7.3. Use of Subscriber Name and Statements. Subscriber grants Springboard a fully-paid, perpetual, transferable worldwide license to list Subscriber and use its name, likeness, image, voice, trademark, service mark, and logo and any statements or quotes of Subscriber for promotion, trade, commercial, advertising, and publicity purposes, including listing Subscriber as a present or past customer (as applicable) of Springboard (and its successors and assigns) in any and all media now known or hereafter discovered without notice, review or approval and without additional compensation.
7.4. Use of Subscriber Data. In addition to the other rights to use data as set forth herein, Subscriber grants Springboard a fully paid, perpetual, transferable worldwide license to generate, publish and otherwise utilize aggregate and/or anonymized information about any Data relating to Subscriber, its Authorized Users, and its Arcade Customers obtained as a result of this Agreement.
8.1. Subscriber agrees to maintain the confidentiality of Springboard’s Confidential Information. For purposes of this Agreement, the term “Confidential Information” means all portions of the Services and any content therein, including the Springboard Materials, and any other trade secrets, know-how, business operations, processes, software, plans, strategies, and customers that are not public or portions that are permitted to be made available to the Arcade Customer through grant of the limited license in Section 3.2. Subscriber acknowledges and agrees that a breach of any confidentiality or proprietary rights provision of this Agreement may cause Springboard irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, Springboard will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
8.2. Title 18, § 1833(b) of the United States Code provides that “[a]n individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that: (A) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.” Accordingly, the parties have the right to disclose trade secrets as allowed by 18 U.S.C. § 1833(b) and nothing in this Agreement is intended to conflict with or limit the immunity under 18 U.S.C. § 1833(b).
Disclaimers and Limitation of Liability
9.1. DISCLAIMERS. SPRINGBOARD’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT WITH THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS AND THIRD-PARTY MATERIALS AND THIRD-PARTIES UTILIZED BY SUBSCRIBER AND SPRINGBOARD IS NOT RESPONSIBLE FOR ANY LIMITATIONS, DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. SUBSCRIBER’S USE OF THE SERVICES OR ANY ITEMS OBTAINED THROUGH THE SERVICES IS AT SUBSCRIBER’S OWN RISK. EXCEPT FOR ANY WARRANTIES BY SPRINGBOARD EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES AND SPRINGBOARD MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OR STATEMENTS OF ANY KIND, EXPRESS OR IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER SPRINGBOARD NOR ANY PERSON ASSOCIATED WITH SPRINGBOARD MAKES ANY STATEMENT, WARRANTY, OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE SPRINGBOARD SERVICES OR SPRINGBOARD MATERIALS. WITHOUT LIMITING THE FOREGOING, NEITHER SPRINGBOARD OR ANY PERSON ASSOCIATED WITH SPRINGBOARD MAKES ANY STATEMENT, WARRANTY, OR REPRESENTATION THAT THE FEATURES AND FUNCTIONS CONTAINED IN THE SPRINGBOARD SERVICES OR SPRINGBOARD MATERIALS WILL MEET SUBSCRIBER’S SPECIFIC REQUIREMENTS OR EXPECTATIONS OR THAT THE OPERATION OF THE SPRINGBOARD SERVICES OR USE OF THE SPRINGBOARD MATERIALS WILL BE UNINTERRUPTED OR ERROR FREE OR INTEROPERABLE OR COMPATIBLE WITH OTHER SOFTWARE OR SERVICES, THAT DEFECTS WILL BE CORRECTED, THAT THE SPRINGBOARD SERVICES OR SPRINGBOARD MATERIALS WILL BE UPDATED, UPGRADED OR IMPROVED, THAT THE SPRINGBOARD SERVICES, SPRINGBOARD MATERIALS, OR SPRINGBOARD SYSTEMS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. SPRINGBOARD HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE, TITLE, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. NO VERBAL OR WRITTEN REPRESENTATIONS, INFORMATION OR ADVICE GIVEN BY SPRINGBOARD OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY EXPRESS WARRANTIES MADE BY SPRINGBOARD IN THIS AGREEMENT.
9.2. LIMITATION OF LIABILITY. IN NO EVENT WILL SPRINGBOARD, OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS, OR EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE 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, FOR ANY DAMAGES WHATSOEVER, INCLUDING: (A) LOSS OF PRODUCTION, USE, BUSINESS, INCOME, REVENUE, PROFIT, OR DIMINUTION IN VALUE; (B) IMPAIRMENT, INABILITY TO USE, LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (C) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (D) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES (INCLUDING SUCH LOSSES IDENTIFIED IN (A) – (C) OF THIS PROVISION TO THE EXTENT THOSE LOSSES OR PORTIONS THEREOF ARE NOT DIRECT LOSSES), REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF SPRINGBOARD AND ITS LICENSORS, SERVICE PROVIDERS, AND SUPPLIERS 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 EITHER $200.00 OR THE AMOUNT OF FEES PAID TO SPRINGBOARD DURING THE TWO (2) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM OR ACTION AROSE, WHICHEVER IS LESS. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. SUBSCRIBER SHALL BE RESPONSIBLE FOR ALL CLAIMS AND DAMAGES RESULTING FROM THE MISUSE OF THE SERVICES BY SUBSCRIBER, ITS AUTHORIZED USERS, OR ARCADE CUSTOMERS.
10. Indemnification . Subscriber shall indemnify, defend, and hold harmless Springboard and its affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “Springboard Indemnitee”) from and against any and all claims, obligations, losses, damages, liabilities, fines, costs, and expenses (including attorney’s fees) arising out of, related to, or incurred as a result of, or in connection with (i) Subscriber or its Authorized Users’ breach of this Agreement; or (ii) any third-party claim, action or demand arising out of or related to any act or omission by Subscriber, its employees, or Subscriber’s Authorized Users’ breach of any representation, warranty, covenant, obligation or duty under this Agreement. For any proceedings or indemnity matters, Springboard shall have the right to assume full control of the defense, including any settlement negotiations, with counsel of its own choosing.
11. Term and Termination .
11.1. Term. The term of this Agreement commences as of the date you accept this Agreement as set forth above, and, unless terminated earlier pursuant to any of the Agreement’s express provisions, e.g. under a Free Trial, will continue month-to-month and automatically renew.
11.3. Effect of Expiration or Termination. Upon any expiration or termination of this Agreement, all licenses and rights granted to Subscriber shall immediately terminate and Subscriber shall cease all use of any Services, including discontinue use and access of the Service Software and use of the ACI. Springboard, in its sole discretion, may disable all Subscriber’s and Authorized Users’ access to the Services or delete all Data associated with Subscriber, its Authorized Users, and Arcade Customers, if any.
12. Notices. (a) To Springboard. Notices to Springboard in connection with this Agreement shall be in writing and may be sent to [email protected] (if by email), or delivered by certified or registered mail with return receipt requested, or by overnight courier delivery to the addresses first written above. Any notices or communications to Springboard under this Agreement shall be deemed delivered: (i) on the delivery date if delivered personally to the Springboard; ii) two (2) business days after deposit with a commercial overnight courier, with written verification of receipt; (iii) five (5) business days after the mailing date, if sent by certified or registered mail with return receipt requested; or (iv) upon delivery to you of a confirmation or acknowledgement email from Springboard if your notice was sent by email. (b) To Subscriber. Notices to Subscriber may be sent either to the email address or physical address supplied by you as part of your registration process or as updated in the AAI by you. In addition, Springboard may send broadcasts or messages, as applicable, through the Services to inform of changes to the Services or other matters of importance, and such broadcasts shall be deemed satisfying the notice provisions of this Section 12 to the extent permitted by applicable law. Any notices or communications to you under this Agreement will be deemed delivered: (i) on the delivery date if delivered personally to you; (ii) two (2) business days after deposit with a commercial overnight courier, with written verification of receipt; (iii) five (5) business days after the mailing date, if sent by certified or registered mail with return receipt requested; (iv) on the delivery date if transmitted by email; or (v) three (3) days after Springboard posts a notice or broadcast within the Services. By using the Services, you consent to receiving electronic communications from Springboard relating to your account and subscription.
13. Successors and Assigns. Subscriber shall not assign or delegate any of its rights or obligations under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise (including a change in control involving more than 50% of Subscriber’s voting stock or equity) without the prior written consent of Springboard. Any purported assignment, delegation or transfer in violation of this Section 13 is void. Springboard may freely assign and delegate its rights and obligations under this Agreement without notice to Subscriber. This Agreement is binding upon the parties hereto and their respective representatives, successors, and permitted assigns.
14. Force Majeure. In no event will Springboard be liable or responsible to Subscriber, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by any circumstances beyond Springboard's reasonable control (a "Force Majeure Event"), including service interruptions by third-party providers, denial of service attacks, acts of God, war, riot, fires, floods, epidemics, or failure of public utilities or public transportation systems, or national or regional shortage of adequate power or telecommunications systems. Either party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of 30 days or more.
15. Interpretation. For purposes of this Agreement: (a) the words "include," "includes" and "including" are 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. The parties intend this Agreement to 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 headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
16. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement shall not be affected and will continue in full force and effect.
17. Governing Law and Venue. This Agreement shall be governed and interpreted by the laws of the State of Oklahoma without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Oklahoma. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted in the federal courts of the United States or the courts of the State of Oklahoma in each case located in the city of Oklahoma City and County of Oklahoma, and each party irrevocably submits to the jurisdiction of such courts in any such suit, action or proceeding.
18. Fees. Subject to Section 9.2, in the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of this Agreement, the prevailing party shall be entitled to recover its actual attorneys' fees and court costs from the non-prevailing party.
19. Export Regulations. Springboard is subject to regulation by the agencies of the U.S. Government, including the U.S. Department of Commerce and State, which prohibit export or diversion of certain technological products to certain countries. Subscriber shall comply in all respects with all applicable export and re-export restrictions and not permit anyone to use or access the Services in a U.S. embargoed country or in violation of any U.S. export law or regulation. Subscriber also agrees to indemnify, defend, and hold Springboard harmless from any loss, damages, liability, or expenses incurred by Springboard as a result of Subscriber’s failure to comply with any export regulations or restrictions.
20. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
21. Entire Agreement, Modification, Waiver, and Order of Precedence.
21.2. Waiver. 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 rights, remedies, powers, or privileges 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.
22. Survival. All provisions relating to Springboard’s proprietary rights, payment of fees, confidentiality, disclaimer of warranties, limitation of liability, indemnification, and any other provisions of the Agreement expressly stated to survive or which by their nature, extend beyond the expiration or termination of this Agreement, including, Sections 7 and 12-22, shall survive the expiration or termination of this Agreement.
23. Arbitrary Agreement and Jury Trial Waiver, Class Action Waiver, and Forum Selection Clause . If You are a resident of the United States (including its possessions and territories), You agree that any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between You and Springboard or its successors or assigns shall exclusively be settled through binding and confidential arbitration.
Arbitration shall be subject to the Federal Arbitration Act and not any state or provincial/territorial arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively, the “Rules and Procedures ”).
In the case of arbitration and where permitted by law, you are thus agreeing to give up your right to go to court to assert or defend your rights your rights will be determined by a neutral arbitrator and not a judge or jury. You are entitled to a fair hearing, but the arbitration procedures are simpler and more limited than rules applicable in court. Arbitrator decisions are as enforceable as any court order and are subject to very limited review by a court.
In the case of arbitration and where permitted by law, you and Springboard must abide by the following rules: (1) ANY CLAIMS BROUGHT BY YOU OR SPRINGBOARD MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (3) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, Springboard will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (4) Springboard also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (5) the arbitrator shall honor claims of privilege and privacy recognized at law; (6) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (7) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (8) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and, in such instance, the fees and costs awarded shall be determined by the applicable law.
Notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in Oklahoma in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within Oklahoma for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
If any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting part was not contained herein. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court located in Oklahoma.
For more information on AAA, the Rules and Procedures, or the process for filing an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.