SpringboardVR Scheduler Terms of Service
Last Updated: October 1, 2019
SpringboardVR Scheduler Terms of Service
Welcome to SpringboardVR’s Scheduler Terms of Service
Please read this SpringboardVR Scheduler Terms of Service Agreement (this “Agreement”) carefully as it constitutes a legally binding agreement between you (“Operator User” 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 SpringboardVR Scheduler feature (“Scheduler”).
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR BY ACCESSING OR USING THE SCHEDULER, YOU ACKNOWLEDGE AND REPRESENT THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
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 AT LEAST THIRTEEN (13) YEARS OF AGE OR OLDER. IF YOU ARE A USER BETWEEN THE AGES OF THIRTEEN (13) AND EIGHTEEN (18) OR UNDER THE AGE OF MAJORITY IN YOUR JURISDICTION, PLEASE REVIEW THIS AGREEMENT WITH YOUR PARENT OR GUARDIAN. YOUR PARENT OR GUARDIAN MUST AGREE TO THIS AGREEMENT ON YOUR BEHALF AND PARENTAL DISCRETION IS ADVISED FOR ALL USERS UNDER THE AGE OF EIGHTEEN (18) OR MAJORITY. YOU DO NOT HAVE TO ENTER INTO THIS AGREEMENT, BUT IF YOU DO NOT YOU WILL NOT BE PERMITTED TO USE THE SPRINGBOARDVR SCHEDULER. YOU FURTHER UNDERSTAND THAT THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION CONTAINING A CLASS ACTION WAIVER, WHICH SHALL BE ENFORCEABLE AGAINST YOU.
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 SPRINGBOARDVR SCHEDULER FEATURE. 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 SPRINGBOARDVR SCHEDULER FEATURE, IN WHICH CASE YOU WILL NO LONGER HAVE ACCESS TO SPRINGBOARDVR SCHEDULER OR YOUR ACCOUNT.
1.1. “Account” means any account created by You with Springboard which allows You to use Scheduler feature.
1.2. “Authorized Users” means those individuals that are authorized to use the SpringboardVR platform and/or management software and/or Scheduler on behalf of Operator, such as Operator’s employees, and who are provided access to the same by the Operator and for whom Operator creates a login for access. An Authorized User is one natural person.
1.3. "Desktop Client” means the downloadable software component (including all new versions, updates, revisions, replacements, improvements and modifications) that is licensed from Springboard and made available by Springboard to Operators for each game station. The Desktop Client includes the background service which monitors activity and reports to Springboard web services, provides station state information and enables remote control of stations from a station monitor, and the launcher which allows Operator Users to browse, find, and start VR titles they want to experience, and which is started automatically whenever VR is available on a station, the Operator User stops playing a title, or when an Operator explicitly starts it using the station monitor.
1.4. “Operator” means any third party arcade, individual, business, organization or other entity which subscribes to and pursuant to a license from Springboard to uses the SpringboardVR platform and management software and/or Scheduler.
1.5. “Operator User” means those individuals that are customers of an Operator to whom the Operator makes available the rendering of the Desktop Client to provide such individuals with one or more virtual reality experiences or games for a limited duration.
1.6. "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 by Springboard, directly or indirectly, from an Operator or an Operator User by or through the SpringboardVR platform and management system and/or Scheduler, including any data, content, and information derived or processed based on use of and access to the SpringboardVR platform and management system and/or Scheduler.
1.7. “Scheduler” means the SpringboardVR Scheduler feature or application, through which You may create a reservation at a specified Operator.
1.8. “Scheduler Content” means any content presented by or in conjunction with Scheduler.
Springboard makes its Scheduler available to You as a convenience for the purpose of assisting You in scheduling a reservation with an Operator. You agree to use Scheduler only to book reservations at Operators for Your personal use. Resale or attempted resale of reservations is prohibited. Once a reservation is made by You, Springboard will send You confirmation by email or other electronic message format that You have agreed to. By using Scheduler feature, You agree to receive reservation confirmations, updates, modifications and/or cancellations by email or other electronic messages. YOU UNDERSTAND AND AGREE THAT THE TERMS OF ANY RESERVATION ARE AN AGREEMENT BETWEEN YOU AND THE OPERATOR AND NOT ANY AGREEMENT FOR SPRINGBOARD TO PROVIDE ANY OTHER SERVICE TO YOU.
3. Cancelation or Modification
For convenience, You may be able to cancel or modify a reservation, subject to the Operator’s policy, which will be disclosed at the time the reservation is made. You may cancel Your reservation via the Scheduler feature or by other means provided directly by the Operator. Upon arriving at the Operator, You must notify it that You have a reservation. If You do not timely show up for a reservation, You may be subject to a penalty and/or forfeiture of deposit in accordance with the Operator’s policy, which will be disclosed at the time the reservation is made. Any dispute regarding a reservation, penalty and/or forfeiture of deposit shall be resolved between You and the Operator.
4. Deposit and Payment
6. Your Account
You may be required to create an account to use Scheduler feature or other services. When registering for an Account, You must provide true, accurate, current, and complete data about Yourself on the Springboard registration form (“Registration Data”). You may only create one Account and may use the Account solely for personal use and not for any commercial purpose. You also agree to promptly update the Registration Data to keep it true, accurate, current, and complete. You are solely responsible for maintaining the confidentiality of Your Account and the information in Your Account, and, except as otherwise required by applicable law, You are solely responsible for all use of Your Account, whether or not authorized by You. You agree to immediately notify Springboard of any unauthorized use of Your Account.
7. Communications With and From Springboard
8. Proprietary Rights and Other Licenses
All software, features, information, content and other materials provided and depicted through the Scheduler are protected by intellectual property laws and all such intellectual property is owned by Springboard or its licensors. Other than the limited right to use the Scheduler as expressly granted herein, no other rights or licenses are granted to You. Springboard reserves all rights, title, and interest in and to the Scheduler, including all related intellectual property rights and proprietary rights therein.
9. Use Restrictions
The Scheduler feature and Scheduler Content are offered solely for Your personal use and for the purposes described in this Agreement. Any and all other uses are prohibited. Springboard reserves the right, in its sole discretion, to refuse service, terminate Accounts, remove or edit content, cancel reservations, or deny access to the Scheduler. 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 Scheduler feature; (2) take any action that imposes or may impose (in Springboard’s sole determination) an unreasonable or a disproportionately large load on the Scheduler feature or Springboard’s infrastructure; (3) utilize any device, software, or routine that will interfere or attempt to interfere with the functionality of the Scheduler; (4) rent, lease, copy, provide access to or sublicense any portion of the Scheduler or Scheduler Content to a third party; (5) use any portion of the Scheduler or Scheduler Content to provide, or incorporate any portion of the Scheduler or Scheduler 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 Scheduler, except to the extent expressly permitted by applicable law (and then only upon advance notice to Springboard); (7) modify the Scheduler or Scheduler Content or create any derivative product from any of the foregoing; (8) remove or obscure any proprietary or other notices contained in the Scheduler or Scheduler Content; (9) use the Scheduler or Scheduler Content for any illegal purpose; or (10) publicly disseminate information regarding the performance of the Scheduler or Scheduler Content or access or use the Scheduler or Scheduler Content for competitive analysis or benchmarking purposes. Although the Operator sites may be located worldwide, not all features or services discussed, referenced, provided or offered through or on Our Scheduler 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.
10. Data Protection
10.2. European Union Data Protection. If you are located in the European Union ("EU") or the European Economic Area ("EEA"), transfer of personal customer data outside of the EU or EEA is regulated by certain EU data protection laws. The EU Model Clauses are standardized contractual clauses used to ensure that personal data leaving the EEA will be transferred in compliance with these laws. Please be advised that Data, including personal customer data, may be transferred to, processed, maintained or stored on servers or databases by Springboard or third party service providers outside of the EU or EEA. Springboard agrees and you agree to the terms of the Data Processing Agreement attached hereto as Exhibit A, which includes the EU Model Clauses.
11. Disclaimers and Limitation of Liability
11.1. DISCLAIMERS. SPRINGBOARD’S SERVICES, INCLUDING THE SCHEDULER, MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT WITH THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. SPRINGBOARD IS NOT RESPONSIBLE FOR ANY LIMITATIONS, DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. EXCEPT FOR ANY WARRANTIES BY SPRINGBOARD EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SCHEDULER FEATURE IS 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 SPRINGBOARD SERVICES OR IP INCLUDING THE SCHEDULER. 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 SPRINGBOARD SERVICES OR IP, INCLUDING THE SCHEDULER, WILL MEET YOUR SPECIFIC REQUIREMENTS OR EXPECTATIONS, WILL BE UNINTERRUPTED OR ERROR FREE OR INTEROPERABLE OR COMPATIBLE WITH OTHER SOFTWARE OR SERVICES, WILL BE UPDATED, UPGRADED OR IMPROVED, OR ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT DEFECTS WILL BE CORRECTED. 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. SPRINGBOARD IS NOT RESPONSIBLE FOR PROVIDING ANY SERVICES TO YOU IN CONNECTION WITH THE RESERVATIONS. ALL SERVICES ASSOCIATED WITH THE RESERVATIONS ARE THE RESPONSIBILITY OF THE OPERATOR WITH WHOM YOU MAKE THE RESERVATION. SPRINGBOARD IS NOT RESPONSIBLE FOR ANY INJURY OR OTHER DAMAGE YOU MAY INCUR AT ANY OPERATOR LOCATION.
11.2. LIMITATION OF LIABILITY. IN NO EVENT SHALL SPRINGBOARD, OR ANY OF ITS 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: (I) LOSS OF PRODUCTION, USE, BUSINESS, INCOME, REVENUE, PROFIT, OR DIMINUTION IN VALUE; (II) IMPAIRMENT, INABILITY TO USE, LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (III) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (IV) ANY LOSS, DAMAGE OR IMPAIRMENT DUE TO ANY CLAIMS OR ACTIONS FOR PERSONAL INJURY OR PROPERTY DAMAGE ARISING OUT YOUR USE OR ACCESS TO THE SERVICES (INCLUDING ANY INJURY OR PROPERTY DAMAGE THAT OCCURS AT AN OPERATOR’S LOCATION); OR (V) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES (INCLUDING SUCH LOSSES IDENTIFIED IN (I) – (IV) 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 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 BY OPERATOR 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. OPERATORS SHALL BE RESPONSIBLE FOR ALL CLAIMS AND DAMAGES RESULTING FROM THE MISUSE OF THE SERVICES BY OPERATOR, ITS AUTHORIZED USERS, OR OPERATOR USERS.
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 use of Springboard services, including the Scheduler, or (b) Your breach or violation this Agreement. 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.
13. Term and Termination
13.1. Term. The term of this Agreement commences as of the date You accept this Agreement as set forth above, and, until terminated.
13.2. Termination. Either Party may terminate this Agreement at any time for any reason.
13.3. Effect of Expiration or Termination. Upon any termination of this Agreement, You shall immediately cease all use of the Scheduler and Your Account shall be terminated.
14. Assigns and Successors
This Agreement, and any rights, licenses and privileges granted herein, may not be transferred or assigned by You, but may be assigned or transferred by Springboard without restriction, notice or other obligation to You. This Agreement is binding upon the Parties hereto and their respective representatives, successors, and permitted assigns.
15. Third Party Websites, Applications and Services
The Scheduler feature may contain hypertext links to websites and applications operated by parties other than Springboard. Such hypertext links are provided for Operator User’s reference only, and Springboard does not control such websites and is not responsible for their content. Springboard’s inclusion of any hypertext links to such websites or applications does not imply any endorsement of the material on such websites or applications or any association with their operators. Springboard assumes no liability whatsoever for any such third party websites, applications or any content, features, products, or services made available through such third party websites or applications.
Operators are solely responsible for their interactions with You and any and all claims, injuries, illnesses, damages, liabilities, and costs (“Claims”) suffered by You as a result of Your interaction with or visit to any Operator or from any service of any Operator. You must resolve all such disputes directly with Operator. To the maximum extent permitted by applicable law, You hereby release Springboard from any and all such Claims. IN CONNECTION WITH THE FOREGOING, IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” You hereby expressly waive and relinquish all rights and benefits under that section and any law of any jurisdiction of similar effect with respect to the release of any unknown or unsuspected claims You may have against Springboard pertaining to the subject matter of this Section.
17. Force Majeure
In no event will Springboard be liable or responsible to You, 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 thirty (30) days or more.
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.
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.
20. Attorney’s Fees
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.
21. 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.
22. Entire Agreement
Unless otherwise expressly agreed in writing between the parties, this Agreement, including its exhibits, additional terms, and other documents 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.
23. Order of Precedence
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.
Any provision which must survive in order to allow Us to enforce its meaning shall survive the termination of this Agreement.
26. 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 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 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.
27. Governing Law and Venue
This Agreement shall be governed and interpreted by the laws of the State of Delaware consistent with the Federal Arbitration Act (to the extent permitted by applicable law), 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. To the extent any claim or issue may not be arbitrable 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 Delaware, and each Party hereto irrevocably submits to the jurisdiction of such courts in any such suit, action or proceeding. You may also be entitled to certain consumer protection rights under the laws of Your local jurisdiction.
DATA PROCESSING AGREEMENT
This Data Processing Agreement, which includes the EU Model Clauses is an integral part of the Terms of Service ("Agreement") between You (“You” or “Your” or as applicable, “Content Provider” or “Operator” or “Operator User” (each as defined herein) or “Data Exporter”), and Springboard Virtual Reality, Inc. d/b/a SpringboardVR (“Springboard” or “We” or “Us” or “Our” or “Data Importer”), (each a "Party" and collectively the "Parties"), and is made effective on the date on which You accepted the Agreement.
The mutual agreement by You and Springboard to the terms of this Data Processing Agreement is evidenced by (i) Your online acceptance of the Agreement by Your representative, and (ii) use of Springboard's Service Software and Services after an update to the Agreement incorporating this Data Processing Agreement. You are responsible for compliance with the particular national requirements of Your governing authority or EU member state. You may be required to take additional steps for compliance including but not limited to notifying the data protection authority of transfers of data or notifying said authority of the existence of this Data Processing Agreement. Should you require a separately signed copy of the Data Processing Agreement, you must submit an online service request to Springboard customer support.
Data, including personal customer data, may be transferred to, processed, maintained or stored on servers or databases by Springboard or third party service providers outside of the European Union (“EU”) or European Economic Area (“EEA”). Springboard agrees and you agree to the terms of the Data Processing Agreement as follows:
For the purposes of the clauses:
- “personal data”, “special categories of data/sensitive data”, “process/processing”, “controller”, “processor”, “data subject” and “supervisory authority/authority” shall have the same meaning as in Directive 95/46/EC of 24 October 1995 (whereby “the authority” shall mean the competent data protection authority in the territory in which the Data Exporter is established);
- “the Data Exporter” shall mean the controller who transfers the personal data;
- “the Data Importer” shall mean the controller who agrees to receive from the Data Exporter personal data for further processing in accordance with the terms of these clauses and who is not subject to a third country’s system ensuring adequate protection;
- “clauses” shall mean these contractual clauses, which are a free-standing document that does not incorporate commercial business terms established by the parties under separate commercial arrangements.
The details of the transfer (as well as the personal data covered) are specified in Annex B, which forms an integral part of the clauses.
I. Obligations of the Data Exporter
The Data Exporter warrants and undertakes that:
- The personal data have been collected, processed and transferred in accordance with the laws applicable to the Data Exporter.
- It has used reasonable efforts to determine that the Data Importer is able to satisfy its legal obligations under these clauses.
- It will provide the Data Importer, when so requested, with copies of relevant data protection laws or references to them (where relevant, and not including legal advice) of the country in which the Data Exporter is established.
- It will respond to enquiries from data subjects and the authority concerning processing of the personal data by the Data Importer, unless the parties have agreed that the Data Importer will so respond, in which case the Data Exporter will still respond to the extent reasonably possible and with the information reasonably available to it if the Data Importer is unwilling or unable to respond. Responses will be made within a reasonable time.
- It will make available, upon request, a copy of the clauses to data subjects who are third party beneficiaries under clause III, unless the clauses contain confidential information, in which case it may remove such information. Where information is removed, the Data Exporter shall inform data subjects in writing of the reason for removal and of their right to draw the removal to the attention of the authority. However, the Data Exporter shall abide by a decision of the authority regarding access to the full text of the clauses by data subjects, as long as data subjects have agreed to respect the confidentiality of the confidential information removed. The Data Exporter shall also provide a copy of the clauses to the authority where required.
II. Obligations of the Data Importer
The Data Importer warrants and undertakes that:
- It will have in place appropriate technical and organisational measures to protect the personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, and which provide a level of security appropriate to the risk represented by the processing and the nature of the data to be protected.
- It will have in place procedures so that any third party it authorises to have access to the personal data, including processors, will respect and maintain the confidentiality and security of the personal data. Any person acting under the authority of the Data Importer, including a data processor, shall be obligated to process the personal data only on instructions from the Data Importer. This provision does not apply to persons authorised or required by law or regulation to have access to the personal data.
- It has no reason to believe, at the time of entering into these clauses, in the existence of any local laws that would have a substantial adverse effect on the guarantees provided for under these clauses, and it will inform the Data Exporter (which will pass such notification on to the authority where required) if it becomes aware of any such laws.
- It will process the personal data for purposes described in Annex B, and has the legal authority to give the warranties and fulfill the undertakings set out in these clauses.
- It will identify to the Data Exporter a contact point within its organisation authorised to respond to enquiries concerning processing of the personal data, and will cooperate in good faith with the Data Exporter, the data subject and the authority concerning all such enquiries within a reasonable time. In case of legal dissolution of the Data Exporter, or if the parties have so agreed, the Data Importer will assume responsibility for compliance with the provisions of clause I(e).
- At the request of the Data Exporter, it will provide the Data Exporter with evidence of financial resources sufficient to fulfill its responsibilities under clause III (which may include insurance coverage).
- Upon reasonable request of the Data Exporter, it will submit its data processing facilities, data files and documentation needed for processing to reviewing, auditing and/or certifying by the Data Exporter (or any independent or impartial inspection agents or auditors, selected by the Data Exporter and not reasonably objected to by the Data Importer) to ascertain compliance with the warranties and undertakings in these clauses, with reasonable notice and during regular business hours. The request will be subject to any necessary consent or approval from a regulatory or supervisory authority within the country of the Data Importer, which consent or approval the Data Importer will attempt to obtain in a timely fashion.
- It will process the personal data, at its option, in accordance with:
- the data protection laws of the country in which the Data Exporter is established, or
- the relevant provisions1 of any Commission decision pursuant to Article 25(6) of Directive 95/46/EC, where the Data Importer complies with the relevant provisions of such an authorisation or decision and is based in a country to which such an authorisation or decision pertains, but is not covered by such authorisation or decision for the purposes of the transfer(s) of the personal data2, or
- the data processing principles set forth in Annex A.
Data Importer to indicate which option it selects: Annex A
Initials of Data Importer: SpringboardVR;
- It will not disclose or transfer the personal data to a third party data controller located outside the EEA unless it notifies the Data Exporter about the transfer and
- the third party data controller processes the personal data in accordance with a Commission decision finding that a third country provides adequate protection, or
- the third party data controller becomes a signatory to these clauses or another data transfer agreement approved by a competent authority in the EU, or
- data subjects have been given the opportunity to object, after having been informed of the purposes of the transfer, the categories of recipients and the fact that the countries to which data is exported may have different data protection standards, or
- with regard to onward transfers of sensitive data, data subjects have given their unambiguous consent to the onward transfer
III. Liability and third party rights
- Each Party shall be liable to the other Parties for damages it causes by any breach of these clauses. Liability as between the Parties is limited to actual damage suffered. Punitive damages (i.e. damages intended to punish a party for its outrageous conduct) are specifically excluded. Each Party shall be liable to data subjects for damages it causes by any breach of third party rights under these clauses. This does not affect the liability of the Data Exporter under its data protection law.
- The parties agree that a data subject shall have the right to enforce as a third party beneficiary this clause and clauses I(b), I(d), I(e), II(a), II(c), II(d), II(e), II(h), II(i), III(a), V, VI(d) and VII against the Data Importer or the Data Exporter, for their respective breach of their contractual obligations, with regard to his personal data, and accept jurisdiction for this purpose in the Data Exporter’s country of establishment. In cases involving allegations of breach by the Data Importer, the data subject must first request the Data Exporter to take appropriate action to enforce his rights against the Data Importer; if the Data Exporter does not take such action within a reasonable period (which under normal circumstances would be one month), the data subject may then enforce his rights against the Data Importer directly. A data subject is entitled to proceed directly against a Data Exporter that has failed to use reasonable efforts to determine that the Data Importer is able to satisfy its legal obligations under these clauses (the Data Exporter shall have the burden to prove that it took reasonable efforts).
IV. Law applicable to the clauses
These clauses shall be governed by the law of the country in which the Data Exporter is established, with the exception of the laws and regulations relating to processing of the personal data by the Data Importer under clause II(h), which shall apply only if so selected by the Data Importer under that clause.
V. Resolution of disputes with data subjects or the authority
- In the event of a dispute or claim brought by a data subject or the authority concerning the processing of the personal data against either or both of the parties, the parties will inform each other about any such disputes or claims, and will cooperate with a view to settling them amicably in a timely fashion.
- The parties agree to respond to any generally available non-binding mediation procedure initiated by a data subject or by the authority. If they do participate in the proceedings, the parties may elect to do so remotely (such as by telephone or other electronic means). The parties also agree to consider participating in any other arbitration, mediation or other dispute resolution proceedings developed for data protection disputes. To the extent claims involving data subjects include claims governed by Springboard’s Terms of Service Agreement, all rights are reserved to enforce those terms, including the arbitration provision as applicable.
- Each Party shall abide by a decision of a competent court of the Data Exporter’s country of establishment or of the authority which is final and against which no further appeal is possible.
- In the event that the Data Importer is in breach of its obligations under these clauses, then the Data Exporter may temporarily suspend the transfer of personal data to the Data Importer until the breach is repaired or the contract is terminated.
- In the event that:
- the transfer of personal data to the Data Importer has been temporarily suspended by the Data Exporter for longer than one month pursuant to paragraph (a);
- compliance by the Data Importer with these clauses would put it in breach of its legal or regulatory obligations in the country of import;
- the Data Importer is in substantial or persistent breach of any warranties or undertakings given by it under these clauses;
- a final decision against which no further appeal is possible of a competent court of the Data Exporter’s country of establishment or of the authority rules that there has been a breach of the clauses by the Data Importer or the Data Exporter; or
- a petition is presented for the administration or winding up of the Data Importer, whether in its personal or business capacity, which petition is not dismissed within the applicable period for such dismissal under applicable law; a winding up order is made; a receiver is appointed over any of its assets; a trustee in bankruptcy is appointed, if the Data Importer is an individual; a company voluntary arrangement is commenced by it; or any equivalent event in any jurisdiction occurs
then the Data Exporter, without prejudice to any other rights which it may have against the Data Importer, shall be entitled to terminate these clauses, in which case the authority shall be informed where required. In cases covered by (i), (ii), or (iv) above the Data Importer may also terminate these clauses.
- Either Party may terminate these clauses if (i) any Commission positive adequacy decision under Article 25(6) of Directive 95/46/EC (or any superseding text) is issued in relation to the country (or a sector thereof) to which the data is transferred and processed by the Data Importer, or (ii) Directive 95/46/EC (or any superseding text) becomes directly applicable in such country.
- The parties agree that the termination of these clauses at any time, in any circumstances and for whatever reason (except for termination under clause VI(c)) does not exempt them from the obligations and/or conditions under the clauses as regards the processing of the personal data transferred.
VII. Variation of these clauses
The parties may not modify these clauses except to update any information in Annex B, in which case they will inform the authority where required. This does not preclude the parties from adding additional commercial clauses where required.
VIII. Description of the transfer
The details of the transfer and of the personal data are specified in Annex B. The parties agree that Annex B may contain confidential business information which they will not disclose to third parties, except as required by law or in response to a competent regulatory or government agency, or as required under clause I(e). The parties may execute additional annexes to cover additional transfers, which will be submitted to the authority where required. Annex B may, in the alternative, be drafted to cover multiple transfers.
1 “Relevant provisions” means those provisions of any authorisation or decision except for the enforcement provisions of any authorisation or decision (which shall be governed by these clauses).
2 However, the provisions of Annex A.5 concerning rights of access, rectification, deletion and objection must be applied when this option is chosen and take precedence over any comparable provisions of the Commission Decision selected.
EXHIBIT A, ANNEX A
DATA PROCESSING PRINCIPLES
- Purpose limitation: Personal data may be processed and subsequently used or further communicated only for purposes described in Annex B or subsequently authorised by the data subject.
- Data quality and proportionality: Personal data must be accurate and, where necessary, kept up to date. The personal data must be adequate, relevant and not excessive in relation to the purposes for which they are transferred and further processed.
- Transparency: Data subjects must be provided with information necessary to ensure fair processing (such as information about the purposes of processing and about the transfer), unless such information has already been given by the Data Exporter.
- Security and confidentiality: Technical and organisational security measures must be taken by the data controller that are appropriate to the risks, such as against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, presented by the processing. Any person acting under the authority of the data controller, including a processor, must not process the data except on instructions from the data controller.
- Rights of access, rectification, deletion and objection: As provided in Article 12 of Directive 95/46/EC, data subjects must, whether directly or via a third party, be provided with the personal information about them that an organization holds, except for requests which are manifestly abusive, based on unreasonable intervals or their number or repetitive or systematic nature, or for which access need not be granted under the law of the country of the Data Exporter. Provided that the authority has given its prior approval, access need also not be granted when doing so would be likely to seriously harm the interests of the Data Importer or other organisations dealing with the Data Importer and such interests are not overridden by the interests for fundamental rights and freedoms of the data subject. The sources of the personal data need not be identified when this is not possible by reasonable efforts, or where the rights of persons other than the individual would be violated. Data subjects must be able to have the personal information about them rectified, amended, or deleted where it is inaccurate or processed against these principles. If there are compelling grounds to doubt the legitimacy of the request, the organisation may require further justifications before proceeding to rectification, amendment or deletion. Notification of any rectification, amendment or deletion to third parties to whom the data have been disclosed need not be made when this involves a disproportionate effort. A data subject must also be able to object to the processing of the personal data relating to him if there are compelling legitimate grounds relating to his particular situation. The burden of proof for any refusal rests on the Data Importer, and the data subject may always challenge a refusal before the authority.
- Sensitive data: The Data Importer shall take such additional measures (e.g. relating to security) as are necessary to protect such sensitive data in accordance with its obligations under clause II.
- Data used for marketing purposes: Where data are processed for the purposes of direct marketing, effective procedures should exist allowing the data subject at any time to “opt-out” from having his data used for such purposes.
- Automated decisions: For purposes hereof “automated decision” shall mean a decision by the Data Exporter or the Data Importer which produces legal effects concerning a data subject or significantly affects a data subject and which is based solely on automated processing of personal data intended to evaluate certain personal aspects relating to him, such as his performance at work, creditworthiness, reliability, conduct, etc. The Data Importer shall not make any automated decisions concerning data subjects, except when:
- i. such decisions are made by the Data Importer in entering into or performing a contract with the data subject, and
ii. the data subject is given an opportunity to discuss the results of a relevant automated decision with a representative of the parties making such decision or otherwise to make representations to that parties.
- where otherwise provided by the law of the Data Exporter.
- i. such decisions are made by the Data Importer in entering into or performing a contract with the data subject, and
EXHIBIT A, ANNEX B
DESCRIPTION OF THE TRANSFER
The personal data transferred concern the following categories of data subjects:
Springboard’s Content Providers and Operators and prospective Content Providers and Operators, and their authorized users, including customers, employees, contractors, or agents (collectively “Users”).
Purposes of the transfer(s)
Transfers are made for the following purposes:
- to provide access to the Site features and Services;
- to gain a better understanding of Our customers, including Content Providers and Operators, Users, and their usage pattern as a whole;
- to streamline the onboarding process and use of the Services, including auto-populating fields with information;
- to fulfill requests, including, but not limited to:
- making reservations
- paying for services
- processing e-commerce transactions
- making game recommendations
- to communicate via direct dial, autodialed and prerecorded message calls, and electronic messages, including email, text messages or mobile push notifications about:
- use of Our Site, Services, products and/or functionality
- accounts, settings, support and administration
- reservations made through Our Site
- special offers, promotions, rewards, upcoming events and other marketing communications,
- statements, invoices, receipts,
- technical notices and security alerts
- updates, changes and improvements to Our Services
- to process and deliver contest entries and rewards;
- to personalize user experiences on Our Site, including displaying relevant advertising;
- to perform statistical and system analyses to improve Our Services;
- to create reports for us and others regarding the use and access of the Services;
- to link or combine with other information We get from third parties to help understand user needs and provide better service;
- to monitor use to ensure compliance with Our terms and conditions of use, policies and processes, and legal obligations
- to protect, investigate, and deter against fraudulent, unauthorized, or illegal activity;
- to provide feedback to all users and appropriate third parties
- as otherwise consented to or required or permitted by applicable law.
Categories of data
The personal data transferred concern the following categories of data about Our customers and potential customers, including Content Providers and Operators, and Users, and about their use of Our Services, including information by which they may or may not be personally identified, such as:
- e-mail address;
- mailing address;
- telephone number;
- Operator or Content Provider name;
- time zone;
- contact information of people that are added to, or request notification to, of their Operator reservations through Our Site;
- dates and times specific Provider Content is accessed or reviewed;
- the Operator websites or web pages visited;
- virtual reality games or Provider Content on computers and stations;
- information about game or Provider Content use, including individual Provider Content usage and aggregate Provider Content usage, associated Content License information, and associated revenue by title;
- current and past Operator reservation details made with Our Scheduler feature or through an Operator including the contact information of people that are added to, or who request notification to, their Operator reservations through Our Site;
- Operator session information, including:
- games or Provider Content played
- play data
- name of Operator and/or Operator locations
- account settings
- customer support and other requests made through Our Site;
- other information users may provide to Our Site or provide us with access via third party platforms;
- information about computer hardware and software such as:
- IP address
- browser information (e.g., type, language and history)
- domain name
- access time
- working directories
- certain software installed or stored within the Services or on game stations and computers
- operating system
- referring website addresses
- credit card information shared through Our payment processor, namely non-PCI information such as the last 4 digits of the payment card, card type, and expiration date;
- statistical data which may include personal information may be collected automatically or We may maintain it or associate it with personal information We collect in other ways or receive from third parties;
- generic or precise geographic location data from users' mobile devices when the app is running and when it is not running;
- data concerning advertisements contained on the Platform or within Provider Content that are viewed and selected by conduct of the user.
The personal data transferred may be disclosed only to the following recipients or categories of recipients:
- Springboard, the Data Importer;
- Springboard's sub-processors;
- Springboard's subsidiaries and affiliates;
- other third parties Springboard uses to support Our business or to provide the Services including but not limited to third party vendors, third party payment processors, consultants, and other service providers who perform functions on Our behalf;
- Operators and their affiliated Operators or other entities associated with such Operators (such as the parent entity of the Operator group or affiliated Operators), and/or their service providers;
- government authorities, courts, or agencies and other third parties where Springboard believes that doing so would be in accordance with, permitted or required by any applicable law, regulation or legal process, to defend the interests, rights, and/or property of Springboard or others, or to respond to emergencies;
- third parties if Springboard sells, transfers, divests, or discloses all or a portion of Our business or assets to another company in connection with or during negotiation of any merger, financing, acquisition, bankruptcy, dissolution, transaction, or proceeding.
Sensitive data (if appropriate)
The personal data transferred concern no sensitive data.
Data protection registration information of Data Exporter (where applicable)
Data protection registration information will be provided by Content Providers or Operators to Springboard separately.
Additional useful information (storage limits and other relevant information)
Operators and Content Providers shall have sole responsibility for responding to inquiries from data subjects concerning the data subject's (1) right to know what information is being maintained on them, (2) right to reasonably access that information, (3) the right to challenge mistaken information, and (4) the right to object to the processing and disclosure of their data. Springboard shall, to the extent legally permitted, notify Operators or Content Providers if Springboard receives an inquiry from a data subject in regard to the same.
Contact points for data protection inquiries
Data protection inquiries to Springboard should be directed to [email protected]. Operators and Content Providers shall provide contact information upon request.