SpringboardVR End User License Agreement
Last Updated: October 1, 2019
SpringboardVR Desktop Client Software
End User License Agreement
This SpringboardVR Desktop Client Software End User License Agreement (“License Agreement”) constitutes a legally binding agreement between you (“Operator” as defined below or “You” or “Your”) and Springboard Virtual Reality, Inc. d/b/a SpringboardVR ("Springboard" or “We” or “Us” or “Our”), (each a "Party" and collectively the "Parties”), as of the date You accept it and applies to Your use of and access to the Desktop Client (defined below).
In connection with use of Springboard Services (“Services” as defined below), You will need to download one or more copies of the Desktop Client. This License Agreement is a license to use those downloaded copies, subject to the terms and conditions hereof and the SpringboardVR Terms of Service which You must accept in order to use the Desktop Client to access the Service. If Your right to use the Services is terminated, this License Agreement and the license granted herein shall simultaneously terminate.
BY INDICATING YOUR ACCEPTANCE OF THIS LICENSE AGREEMENT OR BY ACCESSING OR USING THIS SERVICE, YOU ACKNOWLEDGE AND REPRESENT THAT YOU HAVE READ AND UNDERSTAND THIS LICENSE AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
YOU ALSO REPRESENT AND WARRANT THAT THE PERSON ACCEPTING THIS AGREEMENT ON YOUR BEHALF HAS BEEN AUTHORIZED TO DO SO. THE PERSON ACCEPTING THIS LICENSE AGREEMENT ON OPERATOR’S BEHALF REPRESENTS THAT HE/SHE HAS THE AUTHORITY TO BIND OPERATOR 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 FURTHER UNDERSTAND THAT THIS AGREEMENT CONTAINS AN ARBITRATION PROVISON CONTAINING A CLASS ACTION WAIVER, WHICH SHALL BE ENFORCEABLE AGAINST OPERATORS. THIS AGREEMENT ALSO GOVERNS YOUR USE OF THE DESKTOP CLIENT AND SERVICES UNDER A FREE TRIAL.
SPRINGBOARD MAY MODIFY THIS LICENSE AGREEMENT AND THE SPRINGBOARDVR TERMS OF SERVICE FROM TIME TO TIME. YOU ARE FREE TO CHOOSE TO ACCEPT A MODIFIED VERSION OF THESE AGREEMENTS OR NOT, BUT ACCEPTING THESE AGREEMENTS, AS MODIFIED, IS REQUIRED FOR YOU TO CONTINUE USING THE SPRINGBOARD SERVICES AND DESKTOP CLIENT. YOU MAY HAVE TO “ACCEPT” OR “AGREE” TO SHOW YOUR ACCEPTANCE OF ANY MODIFIED VERSION OF THIS LICENSE AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF ANY MODIFIED VERSION OF THESE AGREEMENTS, YOU MUST TERMINATE YOUR USE OF THE SPRINGBOARD SERVICES AND DESKTOP CLIENT. EXCEPT AS OTHERWISE EXPRESSLY STATED, ANY USE OF THE SERVICES IS SUBJECT TO THE VERSION OF THESE AGREEMENTS IN EFFECT AT THE TIME OF USE.
1.1. “Authorized User” means each of the individuals authorized to use the Desktop Client on behalf of Operator, such as an employee, and who is provided access to the Services by the Operator and for whom Operator creates a login through the Service Software for access. An Authorized User is one natural person.
1.2. “Content License” means the license agreement between You and a Content Provider relating to Your download, access and/or use of Provider Content.
1.3. “Content Provider” an individual, business or organization that elects to offer or make available Provider Content on or through the Services.
1.4. "Data" means any and all data, statistics, content, and information, and any derivatives or aggregations thereof, in any form or medium, that is collected, downloaded, uploaded or otherwise received, directly or indirectly, from Operator, an Authorized User, or an Operator User or by or through the Services, including any data, content, and information derived or processed by the Services based on Operator’s, an Authorized User’s, or an Operator User’s use of and access to the Services.
1.5. “Defined Location” is a single physical location of Operator identified by Operator when it sets up its account with Springboard 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).
1.6. "Desktop Client” means the downloadable software component for each game station including the background service which monitors activity and reports to Our web services, provides station state information and enables remote control of stations from a station monitor 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.
1.7. “Operator” means an individual, business or organization that provides access to virtual reality games, applications, and associated materials, tools, and content made available on or through the Services, whether by means of download, stream or otherwise at Operator’s Defined Locations or via Operator’s platform or otherwise, as authorized through a licensing agreement with a content provider.
1.8. “Operator User” means those end users or individuals who are customers of Operator with whom Operator or its Authorized User make available the rendering of the Desktop Client portion of the Services in order to provide such individuals with one or more virtual reality experiences or games for a limited duration.
1.9. “Provider Content” shall mean any and all games, applications, educational materials, tests, quizzes, movies, interactive tools, graphics, images, audio-visual and audio-only content and tools a Content Provider makes available to Operators in connection with a Content License and We make available on or through the Services, whether by means of download, stream or otherwise.
1.10. “Provider Content Information” shall mean the descriptions, format data, descriptive images and other information related to Provider Content, which a Content Provider makes available to Operators in connection with a Content License and We make available on or through the Services, in conjunction with promoting, describing or otherwise providing information about Your Provider Content.
1.11. “Service Software” means the Springboard software application(s), including the virtual reality platform and management system (the “Platform”), which includes (i) the cloud-based portal through which Operators may download and otherwise access Provider Content and Provider Content Information and the online tool that Operator Users may use to schedule time at an Operator’s location (the “Scheduler”), and (ii) the Desktop Client software and the launcher which allows users to browse, find, and start Provider Content titles they want to experience, (c) all software and/or applications made available by Us from time to time and to which these terms are applied, whether made available on or accessed by the Platform, mobile devices, web interfaces, computers, tablets or otherwise that Springboard provides access to and use of as part of the Services.
1.12. “Services” means the (a) the website www.springboardvr.com and all corresponding domains, subdomains, web pages and websites associated therewith (“Sites”), (b) Service Software as defined above, and (c) any other content (other than Provider Content and Provider Content Information), learning materials, tools, games, applications, features, functionality, documentation, information and services offered by Us through the Sites and/or Platform. Services are available subject to Springboard’s sole discretion and certain Services may be limited based on region.
1.13. “Springboard Materials” means the Services and 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 Operator’s, Authorized Users’, or Operator Users’ access to or use of the Services.
1.14. "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.
1.15. “Station” means the game station that Operator makes available to its Operator Users that consists of a single computer and one or more virtual reality headsets.
1.16. "Term" means the time duration for which You have access to the Services as part of the SpringboardVR Terms of Service.
1.17. “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 Provider Content or Provider Content Information that Operator licenses or otherwise obtains from Content Providers, software components obtained or licensed separately by Operator, and any accounts or other licenses Operator makes or obtains in connection with any third party for use in connection with the Services.
2. Desktop Client License Grant
2.1. Access to Service Software. Subject to and conditioned on Your compliance with the terms and conditions of the SpringboardVR Terms of Service and this License Agreement, as such may be updated from time to time, Springboard grants Operator a personal, non-exclusive, non-transferable, non-sublicensable, limited right to download and use the permitted number of copies of the Desktop Client during the Term solely for Operator’s legitimate, day-to-day, internal business purposes of managing its own operations. The permitted number of copies shall be a single copy of the Desktop Client for each computer associated with each Station during the Term in such quantities as Operator sets forth upon initial registration or such quantities as Operator may adjust in the administrative panel of the Platform, solely for Operator’s legitimate, day-to-day, internal business purposes of managing its own operations. For the avoidance of doubt, this license allows Operator and its Authorized Users to make available the visual rendering of the Desktop Client portion of the Services in the customer headset to its Operator Users.
3. Your Responsibilities and Acknowledgements
3.2. Restrictions. You shall not permit any other person (who is not an Authorized User) to access or use the Springboard Materials except as expressly permitted by this License Agreement. For clarity and without limiting the generality of the foregoing, You shall not, except as this License 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 2. Authorized Users are not allowed to share account or login credentials.
3.4. As between Springboard and You, Your sole remedy with respect to such Third Party Materials and services shall be with the third party provider.
3.5. Password; Security. Operator 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 Operator and Authorized User. You are responsible for any and all activities that occur under Your access credentials to the extent such activities are not performed or caused by Springboard, its agents or employees. You shall promptly notify Springboard of any unauthorized use of Your account, the Services, or any other breach of security known to You. You shall treat any Springboard Materials made available to You with the same degree of care with which You treat Your own confidential information, and in no case less than a reasonable degree of care, and You shall take all reasonable precautions to protect the confidentiality of such Springboard Materials made available to You. Springboard shall have no liability for any loss or damage to You in any form arising from Your failure to comply with these requirements.
4. Proprietary Rights and Other Licenses
4.1. Reservation of Rights. This License Agreement does not convey to You title or ownership of the Services or any Springboard Materials, but only a right of limited use in accordance with the terms of this License Agreement. Springboard reserves all rights, title, and interest in and to the Services, Springboard Materials, including all related intellectual property rights and proprietary rights therein.
4.2. Feedback. For any feedback that You provide 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 You agree to assign and do hereby assign all such Improvements to Springboard without any additional consideration or contribution or acknowledgement.
4.3. Use of Your Name and Statements. You grant Springboard a fully-paid, perpetual, transferable worldwide license to use Your name, likeness, voice, image, trademark, service mark, and logo (as applicable) and any statements or quotes of You for promotion, trade, commercial, advertising, and publicity purposes, in any and all media now known or hereafter discovered without notice, review or approval and without additional compensation.
4.4. Ownership of Data. As between You and Springboard, Springboard owns any and all Data. No rights or licenses are granted to You to use the Data under this Agreement, except as expressly set forth herein, and Springboard reserves all rights, title, and interest therein. Springboard shall share certain Data with You that You may access via Your Account dashboard (or otherwise to the extent Springboard elects to make Data available in other formats). You may use such Data solely for Your internal business purposes and may not share such Data with third parties, except as otherwise agreed to in writing. You hereby grant Springboard the right to track, monitor, collect and publish information and Data generated via the Services, including that related to Operators’ and Operator Users’ interaction with and use of the Provider Content, which shall be determined by Springboard in its sole discretion from time to time.
5.1. You agree to maintain the confidentiality of Springboard’s Confidential Information. For purposes of this License 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 Operator User through grant of the limited license in Section 2. You acknowledge and agree that a breach of any confidentiality or proprietary rights provision of this License 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.
5.2. 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 License Agreement is intended to conflict with or limit the immunity under 18 U.S.C. § 1833(b).
6. Representations and Warranties
Operator represents and warrants that it will perform its obligations in this License Agreement in compliance with all applicable laws, directives, and regulations, including, without limitation, privacy and data protection laws, directives, and regulations such as the CAN-SPAM Act of 2003, the Telephone Consumer Protection Act of 1991 (“TCPA”), the Telemarketing Consumer Fraud and Prevention Act (“TCFP Act”), the FTC and FCC rules and regulations implementing the TCPA and TCFP Act, Canada Anti-Spam Law (“CASL”), and Personal Information Protection and Electronic Documents Act (“PIPEDA”) (collectively, “Applicable Laws”). Without in anyway limiting the foregoing, Operator represents and warrants that it will process all opt out and unsubscribe requests, and collect, use, transfer, and disclose all personal data, from users in compliance with Applicable Laws. You also agree to indemnify, defend, and hold Springboard harmless from any and all claims, costs, proceedings, demands, losses, damages, fines, and expenses (including, without limitation, reasonable attorney’s fees and legal costs, which will be reimbursed as incurred) of any kind or nature, arising from or relating to, any actual or alleged failure to comply with the foregoing representations and warranties.
7. Successors and Assigns
You shall not assign or delegate any of its rights or obligations under this License Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Springboard. Any purported assignment, delegation or transfer in violation of this Section 9 is void. Springboard may freely assign and delegate its rights and obligations under this License Agreement without notice to You. This License Agreement is binding upon the Parties hereto and their respective representatives, successors, and permitted assigns.
8.1. Term. This License Agreement shall commence on the date You access and use the Services and the Springboard Materials, including the Service Software and Desktop Client, and shall continue until terminated under the terms of this Agreement.
8.2. Termination. We may terminate Your access to the Services and the Springboard Materials at any time without notice. This License Agreement will terminate if We find that You have violated any of the terms of this License Agreement.
8.3. Effect of Expiration or Termination. Upon any expiration or termination of this License Agreement, You shall immediately cease all use of any Services and the Springboard Materials, including the use of and access to the Service Software and the Desktop Client. Springboard, in its sole discretion, may disable all Your access to the Services and the Springboard Materials or delete all Data associated with You and Operator Users, if any.
You agree to indemnify, defend and hold Springboard and its affiliates, and their respective successors and assigns, present and former directors, officers, employees, representatives, agents, partners, suppliers and service providers harmless from any and all claims, liabilities, damages, losses, costs and expenses (including reasonable attorneys’ fees), arising in any way out of or in connection with (a) Your, or any Operator User’s, use of the Services; (b) Your, or any Operator User’s, breach or violation this Agreement; or (c) Your User Postings or Provider Content or any Operator User’s User Postings or any Provider Content Information. Springboard reserves the right to assume the exclusive defense and control of any matter subject to indemnification by You and all negotiations for its settlement or compromise, and You agree to fully cooperate with Us upon Our request.
10. Disclaimers and Limitation of Liability
10.1. DISCLAIMERS. THE 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 YOU AND SPRINGBOARD IS NOT RESPONSIBLE FOR ANY LIMITATIONS, DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. YOUR USE OF THE SERVICES OR ANY ITEMS OBTAINED THROUGH THE SERVICES IS AT YOUR OWN RISK. EXCEPT FOR ANY WARRANTIES BY SPRINGBOARD EXPRESSLY PROVIDED IN THIS LICENSE 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 YOUR 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 LICENSE AGREEMENT.
10.2. LIMITATION OF LIABILITY. IN NO EVENT WILL SPRINGBOARD, OR ANY OF ITS SERVICE PROVIDERS, OR SUPPLIERS, OR EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE UNDER OR IN CONNECTION WITH THIS LICENSE 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. YOU SHALL BE RESPONSIBLE FOR ALL CLAIMS AND DAMAGES RESULTING FROM THE MISUSE OF THE SERVICES BY YOU OR YOUR OPERATOR USERS. SPRINGBOARD’S AGGREGATE COLLECTIVE LIABILITY IS THAT AS SET FORTH IN THE SPRINGBOARDVR TERMS OF SERVICE BETWEEN OPERATOR AND SPRINGBOARD.
11. 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 dispute, demand, count, claim, or cause of action) between You and Springboard or its successors or assigns, including any disputes as this clause, arbitrability of the disputes, or application of the demand to arbitrate made in any judicial proceeding (collectively “Arbitrability Disputes”) 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 Delaware in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within Delaware 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 Delaware.
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.
12. Relationship of the Parties
The parties are independent contractors. This License Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties.
13. Governing Law and Venue
This License Agreement shall be governed and interpreted by the laws of the State of Delaware 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 Delaware. Any legal suit, action or proceeding arising out of or related to this License Agreement or the licenses granted hereunder shall be instituted in the federal courts of the United States or the courts of the State of Delaware, and each Party hereto irrevocably submits to the jurisdiction of such courts in any such suit, action or proceeding.
For purposes of this License 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 License Agreement as a whole. The Parties intend this License 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 License Agreement are for reference only and do not affect the interpretation of this License Agreement.
To the extent permitted by applicable law, the Parties hereby waive any provision of law that would render any clause of this License Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this License 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 License Agreement shall not be affected and will continue in full force and effect.
16. 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. Operator 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. You also agree to indemnify, defend, and hold Springboard harmless from any loss, damages, liability, or expenses incurred by Springboard as a result of Your failure to comply with any export regulations or restrictions.
17. Force Majeure
In no event will Springboard be liable or responsible to You, or be deemed to have defaulted under or breached this License Agreement, for any failure or delay in fulfilling or performing any term of this License 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. Springboard may terminate this License Agreement or the Services if a Force Majeure Event continues substantially uninterrupted for a period of 30 days or more.
18. Entire Agreement
Unless otherwise expressly agreed in writing between the Parties, this Agreement, including its exhibits, Additional Terms, and other agreements incorporated by reference herein, contains the entire understanding and agreement between You and Springboard concerning the Services and supersedes any and all prior or inconsistent understandings relating to the Services and Your use thereof. This Agreement cannot be changed orally.
19. Order of Precedence and Waiver
19.2. 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 License Agreement, no failure to exercise or delay in exercising any rights, remedies, powers, or privileges arising from this License 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.
All provisions relating to Springboard’s proprietary rights, confidentiality, disclaimer of warranties, limitation of liability, indemnification, and any other provisions of the License Agreement expressly stated to survive or which by their nature extend beyond the expiration or termination of this License Agreement shall survive the expiration or termination of this License Agreement.