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The SpringboardVR Team
Last updated: October 25, 2017
Springboard VR Platform Content Terms of Service
This Springboard VR Platform Content Terms of Service (“Agreement”) is a binding legal agreement, as of the date you accept this Agreement, between you (“Developer” 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 and conditions under which you may offer your Content through the Springboard VR Platform. Springboard and Developer may be referred to herein collectively as “parties” and each individually a “party.”
THIS IS A LEGALLY BINDING CONTRACT. BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU ACKNOWLEDGE AND REPRESENT THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT, AND AGREE TO BE BOUND BY ITS TERMS. THE PERSON ACCEPTING THIS AGREEMENT ON DEVELOPER’S BEHALF REPRESENTS THAT HE/SHE HAS THE AUTHORITY TO BIND DEVELOPER 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 AND ARE OVER 13 YEARS OF AGE. YOU DO NOT HAVE TO ENTER INTO THIS AGREEMENT, BUT IF YOU DO NOT YOU WILL NOT BE PERMITTED TO USE THE SPRINGBOARD VR PLATFORM. 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 VR PLATFORM. 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 VR PLATFORM, IN WHICH CASE YOU WILL NO LONGER HAVE ACCESS TO THE SPRINGBOARD VR PLATFORM OR YOUR ACCOUNT.
The Springboard VR Platform (the “Platform”) is an online virtual reality ("VR") Arcade Management Platform that enables arcades which are customers of Springboard (“Springboard Arcade Customers”) to manage their arcades and authorized Developers to submit their Content for display on the Platform to Springboard Arcade Customers, subject to the terms and conditions of this Agreement. You understand and agree that by submitting your Content through the Platform, Springboard may display your Content to Springboard Arcade Customers and they may download your Content (e.g., via a third party service such as Steam) to computers or other devices in their arcades subject to the license terms you supply with your Content (“Content License”). For Springboard Arcade Customers that use the Platform, Springboard may monitor the number of minutes that your Content is played at their arcade. You understand that this Agreement sets forth terms and conditions under which Springboard may display your Content to Springboard Arcade Customers and monitor the number of minutes your Content is played at Springboard Arcade Customers’ sites to facilitate per minute billing at a per minute rate that you select (“Billing Rate”), to collect the “Content Fees” (described below) and to provide to you the “Developer Portion” of the Content Fees collected. The Springboard Arcade Customers and not Springboard are responsible for compliance with your Arcade License Terms.
YOU UNDERSTAND AND AGREE THAT SPRINGBOARD SHALL ONLY BE RESPONSIBLE FOR WHAT IT EXPRESSLY SETS FORTH IN THIS AGREEMENT AND THAT ANY LICENSE BETWEEN YOU AND ANY SPRINGBOARD ARCADE CUSTOMER IS A CONTRACT BETWEEN YOU AND THE SPRINGBOARD ARCADE CUSTOMER AND THAT SPRINGBOARD IS NOT RESPONSIBLE FOR THEIR ACTIONS OR OMISSIONS .
- “Authorized User” means each of the individuals authorized to use the Developer Account on behalf of Developer and who is provided access to the Platform by the Developer.
- “Content” means your VR games and other applications and/or information about your VR game and other applications that you upload to the Platform.
- “Content Fees” means the fees collected by Springboard based on use of your Content by Springboard Arcade Customers (based on the number of minutes of use of your Content and the per minute billing rate price that you set for that Content), less any applicable taxes or other amounts to be deducted as set forth herein. .
- "Data" means any and all data, content, and information, in any form or medium, that is collected, downloaded, uploaded or otherwise received by Springboard, directly or indirectly, by or through the Platform.
- “Developer Account” is an account created by you, subject to Springboard approval, and which enables you to offer your Content through the Platform.
- "Content Submission Procedures" shall mean the procedures established by Springboard that Authorized Developers must follow in connection with submission of Content to the Platform, which may be amended from time to time by Springboard.
Developer Account and Approval
- Developer Account . To upload Content to the Platform, you must request and be approved by Springboard for a Developer Account, which approval shall be granted in Springboard’s sole discretion. Each Developer may create and maintain a single Developer Account. You may not use another developer’s Developer Account. To create a Developer Account, you must accept the terms of this Agreement and any other agreements incorporated by reference herein. All account information must be true, accurate and complete.
- Approval Process and Notification . Each Developer must complete all steps in the account creation and approval process, which includes downloading and completing form W8 and uploading the completed form to the Platform. If approved, you will be notified by Springboard. Upon approval, you will be required to complete any remaining steps in the account creation process, including creation of a valid payment account.
- Password; Security . You and your Authorized Users are responsible for maintaining the confidentiality of all access credentials, including logins and passwords, and for ensuring that all access credentials are used only by the applicable Authorized User. You are solely responsible for any and all activities that occur under your Developer Account. You shall promptly notify Springboard of any unauthorized use or any breach of security of your Developer Account. Springboard shall have no liability to you for any loss or damage to you in any form arising from your or your Authorized Users’ failure to comply with these requirements.
Offering Content Through the Platform.
- Permitted Use. You may use the Platform only in accordance with the terms of this Agreement. Any and all other uses are prohibited.
- Uploading Content . You are responsible for uploading your Content to the Platform through your Developer Account, in accordance with the Content Submission Procedures and providing required Content information to users including, but not limited to a Content License, any compatibility requirements, health and safety information, and accurately disclosing all permissions and consents necessary for your Content to function. Content that is not properly uploaded or otherwise fails to comply with these requirements or any other requirements in this Agreement may not be available through the Platform.
- Compliance with Applicable Laws . Your Content and use of the Platform must comply with all applicable laws, regulations, and generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding content and age rating, and the export of data or software to and from all relevant countries). You are responsible for determining and disclosing the countries in which your Content may legally be made available. You must ensure that your Content and Content License and all related Content information comply with all applicable country specific laws and regulations.
- Responsibility for Your Content . You shall be solely responsible for your Content and the consequences of submitting and offering your Content on the Platform. You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to submit and offer Content you submit and that such Content will not contain third party material that is subject to copyright or other third party proprietary rights, unless you have permission from or on behalf of the rightful owner of such material or you are otherwise legally entitled to submit and offer the material and to grant all of the license rights granted herein. You represent and warrant that your Content shall not contain any viruses, malicious code, trojan horse, worm, time bomb, self-help code, back door or other software code or routine designed to (or resulting in): (i) damage, destroy or alter any software, hardware, or network; (ii) reveal, damage, destroy or alter any data; (iii) disable any computer program automatically; or (iv) permit unauthorized access to any software, hardware, or network.
- Right to Reject Content. Springboard shall have the right, in its sole discretion, to reject, remove or disable access to any Content for any reason.
- Your Option to Remove Content. You may elect to have any of your Content removed from the Platform by so designating through your Developer Account. Springboard will remove your Content from the Platform as requested within thirty (30) days after receipt of your request and no longer display your Content on the Platform. Nor will Springboard have any further obligation to collect Content Fees for or pay to you the Developer Portion for the removed Content. Removing your Content from the Platform does not affect the license rights of Arcade Customers that have previously downloaded your Content or remove your Content from any computers or other devices to which it has been downloaded. If you remove all of your Content from the Platform, Springboard may elect to terminate this Agreement. In the event of termination of the Agreement, the provisions of Section 12 shall apply.
CONTENT OWNERSHIP AND LICENSES
- Ownership . Except for the rights granted to Springboard and Springboard Arcade Customers under this Agreement and Content Licenses, you retain all right, title and interest in your Content and any intellectual property rights therein. All software, Data, features, information, content and other materials provided and depicted through the Platform are protected by intellectual property laws and all such intellectual property is owned by Springboard, its customers or its licensors. Other than the limited right to use the Platform as expressly granted herein, no other rights or licenses are granted to you and Springboard reserves all rights, title, and interest therein.
- License to Springboard. By submitting and offering your Content on the Platform, you hereby grant to Springboard a non-exclusive, worldwide, license in and to patent, trademark, trade secret, copyright or other proprietary rights in and to such Content to: copy, transmit, perform, display, modify, adapt, translate, distribute, and use the Content (including all intellectual property rights embodied therein) on the Platform; and in connection with the operation, marketing, and/or promotion of your Content and the Platform.
- Springboard Arcade Customers . You agree to grant to the Springboard Arcade Customers a non-exclusive, license to download and use the Content in their arcades in accordance with the Content License that you supply with your Content. Springboard is not a party to the Content License and shall have no obligations or liabilities thereunder.
- Effect of Discontinued Platform Use or Access by Springboard Arcade Customers. Discontinued use of or access to the Springboard Platform by a Springboard Arcade Customer, for any reason, does not affect the license rights of said Arcade Customer as described in 4.2.2. above. Such discontinued use or access does not remove your Content from any computers or other devices to which it has been downloaded by said Customer Arcade. In the case of discontinued use or access by an Arcade Customer, Springboard shall give you notice and use reasonable efforts to collect and pay to you your pro-rata share of any Content fees then due and owing, however, Springboard shall have no further obligation to track or report your Content use by said Arcade Customer.
PRICING AND PLATFORM FEES.
- Pricing. You will be required to select the price/minute that you elect for your Content, subject to any pricing guidelines established by the Platform. Subject to the terms and conditions of this Agreement, your Content will be displayed with the per minute prices you establish for each item of Content. The pricing you select will be the price/minute that the Springboard charges the Springboard Arcade Customers for use of your Content by users at their arcades. The number of active minutes your Content is used by users at a given Springboard Arcade Customer shall be tracked by the Platform and be reported to you in accordance with the reporting and payment provisions as set forth in this Agreement.
- Price Changes. Subject to the limitations herein, you may change the pricing by editing the price in your Developer Account. You may decrease the price/minute whenever and as often as desired. Within the first 90 days of first offering a piece of Content via the Platform, you can increase the price for that Content no more than once every two weeks. After 90 days, you can increase price no more than every 30 days.
- Notice of price change . In response to you changing the price of Content, Springboard will electronically notify its Arcade Customers of the price change (e.g., by a notification in an administrative panel of the Platform and /or by email or other means.
- pringboard shall bill the Springboard Arcade Customers the Content Fees associated with use of Your Content at their arcades.
- Subject to the terms of this Agreement, and upon receipt of payment from the Springboard Arcade Customers, You shall be entitled to 75% of the Content Fees actually collected by Springboard (less any applicable deductions set forth herein) and Springboard shall retain 25% of the Content Fees, provided however from the date of execution of this Agreement through February 1, 2018 only, You shall be entitled to 100% of the Content Fees actually collected by Springboard (less any applicable deductions set forth herein) and Springboard shall retain 0% of the Content Fees.
Reporting and Payment.
- Reports. Springboard shall generate and distribute to you a report, at least monthly, through system or by email, stating the Content Fees generated by your Content and a calculation of the amount due to you for the month.
- Payment. Springboard shall pay to you on at least a monthly basis, your portion of any Content Fees due to you.
- Fraudulent Activities . Springboard is not obligated to pay you any amounts connected with activities deemed to be fraudulent by Springboard in its sole and reasonable discretion.
- Taxes and Tax Reporting . Springboard may report revenue from your Content on the Platform to the relevant taxing authorities and collect and remit certain taxes on your behalf where required by applicable law. If Springboard, under mandatory tax law in the jurisdiction in which the payment is made, is required to withhold certain amounts or a certain portion of the payment due to you, Springboard may deduct such mandatory amounts to the extent required under the applicable tax law from all payments to you, and remit such amounts to the appropriate tax authority. Springboard shall provide you with copies of all necessary documents (e.g. tax receipts received from the applicable tax authority) in order for you to be able to claim and receive any appropriate tax credit.
- Content Support . You are solely responsible for support and maintenance of your Content. Springboard shall not have any obligation to provide support or maintenance for any of your Content. You are solely responsible for ensuring your Contents’ compatibility with the virtual reality products and services for which they are intended. You must clearly communicate to users of the Platform any compatibility requirements which are necessary for users to use your Content.
- Content Placement . Unless otherwise agreed in writing, Springboard reserves the right, in its sole discretion, to determine whether or not and when to display your Content in the Platform and to display your Content in the Platform in any order or level of prominence as it deems appropriate in its sole discretion.
- Changes . Springboard reserves the right, in its sole discretion, and at any time, with or without notice, to make any changes to the Platform in its sole discretion. For the avoidance of doubt, such changes may include the modification, addition or discontinuance, temporarily or permanently, of any feature associated with the Platform.
- Other Restrictions . You agree not to (and not to allow any third party to): (1) use any deep-link, robot, spider, scraper, or other automatic or manual device, process, or means to access, copy, search, or monitor any portion of the Platform; (2) take any action that imposes or may impose (in Springboard’s sole determination) an unreasonable or a disproportionately large load on the Platform or Springboard’s infrastructure; (3) utilize any device, software, or routine that will interfere or attempt to interfere with the functionality of the Platform; (4) rent, lease, copy, provide access to or sublicense any portion of the Platform or Platform content to a third party; (5) use any portion of the Platform or Platform content to provide, or incorporate any portion of the Platform or Platform content into, any product or service provided to a third party; (6) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or any non-public APIs to the Platform, except to the extent expressly permitted by applicable law (and then only upon advance notice to Springboard); (7) modify any Platform or Platform content or create any derivative product from any of the foregoing; (8) remove or obscure any proprietary or other notices contained in the Platform or Platform content; (9) use the Platform or Platform content for any illegal purpose; or (10) publicly disseminate information regarding the performance of the Platform or Platform content or access or use the Platform or Platform content for competitive analysis or benchmarking purposes. Although Springboard Arcade Customer sites may be located worldwide, not all features or services discussed, referenced, provided or offered through or on the Booking feature may be available to all persons or in all geographic locations, or appropriate or available for use outside the United States. Springboard reserves the right to limit, in its sole discretion, the provision and quantity of any feature or service to any person or geographic area.
Term and Termination.
- Term. The term of this Agreement commences as of the date you accept this Agreement, and, unless terminated earlier pursuant to the terms of this Agreement, will continue month-to-month and automatically renew.
- Termination. In addition to any other express termination right set forth elsewhere in this Agreement, Springboard may terminate this Agreement upon written notice to you and you may terminate this Agreement upon 30 days written notice to Springboard. Your election to terminate shall be effective as of the last day of the month following the date on which you give notice of termination to Springboard. Either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (i) makes a general assignment for the benefit of creditors; (ii) becomes the subject of an involuntary petition in bankruptcy that is not dismissed within 45 days; (iii) files any voluntary petition in bankruptcy; or (iv) has a receiver, trustee, or custodian or similar agent appointed for its business.
- Effect of Expiration or Termination. Upon any expiration or termination of this Agreement, Developer shall immediately cease all use of the Platform and its Developer Account. Springboard, at its option may disable or delete the Developer Account and within thirty (30) days remove or disable access to any of your Content via the Platform. Springboard may provide notice to the Springboard Arcade Customers that their ability to track use of the Content via the Platform shall cease. Once a notice of termination is given by either party, you shall not be permitted to change the Content or pricing therefor. Within 30 days after the effective date of the termination, Springboard shall send you a final report and payment.
Data. Springboard may collect and provide to you for your Content game play information, including minutes played and average session duration, and other information that it determines to collect and provide to you. Springboard reserves the right to charge a fee for providing certain other information that you may elect to receive.
- DISCLAIMER OF WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE PLATFORM IS AT YOUR SOLE RISK AND THE PLATFORM IS PROVIDED “AS IS,” “WITH ALL FAULTS” AND “AS AVAILABLE” AND THE ENTIRE RISK OF USE AND PERFORMANCE, REMAINS WITH YOU. SPRINGBOARD AND ITS LICENSORS DO NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS, EXPRESS, IMPLIED, OR STATUTORY AND HEREBY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NONINFRINGEMENT. IN PARTICULAR, SPRINGBOARD AND ITS LICENSORS MAKE NO WARRANTY (I) THAT THE PLATFORM WILL MEET YOUR REQUIREMENTS OR WILL WORK WITH ANY THIRD-PARTY SOFTWARE, APPLICATIONS OR THIRD-PARTY SERVICES; (II) THAT THE PLATFORM WILL BE AVAILABLE OR PROVIDED ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; (III) ANY INFORMATION OR CONTENT OBTAINED THROUGH THE PLATFORM WILL BE ACCURATE, COMPLETE, OR RELIABLE; OR (IV) THAT ANY DEFECTS OR ERRORS IN THE PLATFORM WILL BE CORRECTED.
- 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 THE AMOUNT OF FEES PAID TO SPRINGBOARD BY DEVELOPER 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. DEVELOPER SHALL BE RESPONSIBLE FOR ALL CLAIMS AND DAMAGES RESULTING FROM THE MISUSE OF THE SERVICES BY DEVELOPER OR ITS AUTHORIZED USERS.
- Indemnification . You shall indemnify, defend, and hold harmless Springboard and its 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 your and an Authorized Users’ breach of this Agreement; (ii) any third-party claim, action or demand arising out of or related to any act or omission by you or an Authorized Users’ breach of any representation, warranty, covenant, obligation or duty under this Agreement; or (iii) 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 use of your Content. 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.
- 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 or through the Platform to the extent permitted by the Platform. 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.
- To Developer. Notices to Developer may be sent either to the email address or physical address supplied by you as part of your registration process or as updated in your Developer Account. In addition, Springboard may send broadcasts or messages, as applicable, through the Platform to inform of changes or other matters, and such broadcasts or messages shall be deemed as satisfying the notice provisions of this Agreement 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 Platform. By using the Platform, you consent to receiving electronic communications from Springboard relating to your account.
- Successors and Assigns . Developer shall not assign or delegate any of its rights or obligations under this Agreement, except as expressly permitted in writing by Springboard, in each case whether voluntarily, involuntarily, by operation of law or otherwise (including a change in control involving more than 50% of Developer’s voting stock or equity) without the prior written consent of Springboard. Any purported assignment, delegation or transfer in violation of this Agreement is void. Springboard may freely assign and delegate its rights and obligations under this Agreement without notice to Developer. This Agreement is binding upon the parties hereto and their respective representatives, successors, and permitted assigns.
- Force Majeure . In no event will Springboard be liable or responsible to Developer, 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.
- 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.
- 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.
- Governing Law. 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.
- Fees . Subject to Section 16, 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.
- Entire Agreement . This Agreement any other documents incorporated herein by reference constitute the full understanding of your agreement with Springboard and replaces all prior agreements, discussions, or understandings, express or implied, concerning the subject matter.
- 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.
- Survival . Sections 1, 3.3, 3.4, 4.1, 12.3, and 14-28 shall survive the expiration or termination of this Agreement.
Arbitration 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 each party hereby agrees 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, 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.
- 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.
Digital Millennium Copyright Act .
Notice. If you are a copyright owner or an agent thereof and believe that any Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by emailing our Copyright Agent at [email protected] with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
- Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You may direct copyright infringement notifications to our DMCA Agent at: [email protected]. For clarity, only DMCA notices should go to the Copyright Agent and not any other feedback, comments, requests for technical support, or other communications. You acknowledge that if fail to comply with all of these requirements, your DMCA notice may not be valid.
- Counter-Notice. If you believe that your Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the material in your Content, you may send a counter-notice containing the following information to the Copyright Agent:
- Your physical or electronic signature;
- Identification of the Content that has been removed or to which access has been disabled and the location at which the Content appeared before it was removed or disabled;
- A statement that you have a good faith belief that the Content was removed or disabled as a result of mistake or a misidentification of the Content; and
- Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal courts in Oklahoma, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, Springboard may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider, member or user, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Springboard's sole discretion.
- Notice. If you are a copyright owner or an agent thereof and believe that any Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by emailing our Copyright Agent at [email protected] with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):