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END USER LICENSE AGREEMENT

House of Dalton “BOUNCE” Application ELA

INTRO

This End User License Agreement (the “EULA” or the “Agreement”) sets forth the agreement entered into by and between House of Dalton LLC, a California limited liability company (“Company”, “Licensor”, “we”, “our” or “us”) and any person or entity who agrees to the terms and conditions of this EULA (“Licensee”, “you”, “your”). This EULA relates to the Company’s “automated tours and experiences” which include vehicle navigation instructions to relevant addresses and associated experiences consisting of Company software, content, products, and services listed on delivered via the Company website, www.experiencebounce.com (the “Website”), through our applications (the “Apps”), on the internet, or in cellular media, or via other delivery methods to you (the Website and such software, content, products, services and the Apps are collectively referred to herein as the “Service” or the “Services”).

Please read this Agreement carefully before using the Service or ordering any products from the Website, App stores (e.g. the Apple App Store, the Android Play Store, Amazon, etc.), or affiliated third parties. As used herein, the term “Device” refers to the device which is used to access the Service including but not limited to computers, smart phones and tablets.

By using the Services you signify your agreement to the terms of this EULA. If you do not agree to the terms in this EULA, you are not permitted to open, download, install, copy, or use the Services. Company may change the terms of this EULA at any time, and your use of the Services after such changes are posted will mean that you accept them.

The Services are futher subject to the Company’s privacy policy located at (www.experiencebounce.com/privacy) and terms of service located at (www.experiencebounce.com/terms).

Our contact email address is support@experiencebounce.com. All correspondence to the Company including any queries you may have regarding your use of the Service or this Agreement should be sent to this contact email address.

This agreement contains a binding individual arbitration and class action waiver provision in the ‘binding individual arbitration’ section that affects your rights under this agreement with respect to any ‘dispute’ (as defined below) between you and the Company, and requires you and the Company to resolve disputes in binding, individual arbitration, and not in court. You have a right to opt out of the binding individual arbitration section as explained below.

To enter into this Agreement, you must be an adult of the legal age of majority in your country of residence. You are legally and financially responsible for all actions using or accessing our Service, including the actions of anyone you allow to access to your account. You affirm that you have reached the legal age of majority, understand and accept this Agreement (including its dispute resolution terms). If you are under the legal age of majority, your parent or legal guardian must consent to this agreement.

 

LICENSE:

Subject to this Agreement and its terms and conditions, Licensor hereby grants you a nonexclusive, non-transferable, limited, and revocable right and license, without any right to sublicense, to use the Service for your personal, non-commercial use on a single Device as intended by Licensor unless otherwise expressly specified in the Service documentation. Your license rights are subject to your compliance with this Agreement. The term of your license under this Agreement shall commence on the date that you install or otherwise use the Service and ends on the earlier date of either your disposal of the Service or the termination of this Agreement (see below).

The Service is licensed, not sold, to you, and you hereby acknowledge that no title or ownership in the Service is being transferred or assigned and this Agreement should not be construed as a sale of any rights in the Service. Licensor retains all right, title, and interest to the Service, including, but not limited to, all copyrights, trademarks, trade secrets, trade names, proprietary rights, patents, titles, computer codes, audiovisual effects, themes, characters, character names, stories, dialog, settings, artwork, sounds effects, musical works, and moral rights. The Service is protected by U.S. copyright and trademark law and applicable laws and treaties throughout the world. The Service may not be copied, reproduced, altered, modified, decompiled, disassembled or otherwise reverse engineered, or distributed in any manner or medium, in whole or in part, without prior written consent from Licensor. Any persons copying, reproducing, or distributing all or any portion of the Service in any manner or medium, may be subject to civil and criminal penalties in the U.S. or their local country. The Service contains certain licensed materials and the Company’s licensors may also protect their rights in the event of any violation of this Agreement. All rights not expressly granted under this Agreement are reserved by the Company and, as applicable, its licensors. Accordingly, you will not at any time, directly or indirectly (i) claim or assert any ownership or other rights (other than rights pursuant to the License granted herein) in or to the Service; or (ii) oppose the grant of, dispute the validity of or, voluntarily cooperate in any suit or proceeding, which challenges or disputes any ownership rights, proprietary rights or other rights of Company (and/or its suppliers or licensors) in the Service. In the event you are legally required to participate in any such suit or proceeding by legal process, court order or otherwise, you agree that: (y) you will promptly notify Company of such requirement so that Company may take such actions as Company, in its sole discretion, may deem necessary or appropriate to protect any and all ownership rights, intellectual property rights or other rights of Company and/or its third party suppliers or licensors in the Service, and/or to limit the cooperation that is legally required from you; and (z) you will only cooperate in such suit or proceeding to the minimum extent that you are legally required to do so.

LICENSE CONDITIONS

You may use the Service solely for private and personal purposes. You may not use the Service commercially. For example, you may not: (i) offer to third parties a service of your own that uses the Service; (ii) resell the Service; (iii) offer to rent or lease the Service; or (iv) offer the Service to the public via communication or integrate it within a service of your own. Further, without limitation, you agree not to, and not to provide guidance or instruction to any other individual or entity on how to:

  1. commercially exploit the Service;
  2. use the Service in connection with an agreement with other individuals to wager any money or other thing of value;
  3. distribute, lease, license, sell, rent, convert into convertible currency, or otherwise transfer or assign the Service, or any copies of the Service, including but not limited to virtual goods or virtual currency within the Service without the express prior written consent of Licensor or as expressly set forth in this Agreement;
  4. make a copy of the Service or any part thereof (other than as set forth herein);
  5. make a copy of the Service available on a network for use or download by multiple users;
  6. except as otherwise specifically provided by the Service or this Agreement, use or install the Service (or permit others to do same) on a network, for on-line use, or on more than one device at the same time;
  7. use or copy the Service at any other location-based site; provided, that Licensor may offer you a separate license agreement to make the Service available for commercial use;
  8. reverse engineer, decompile, disassemble, display, perform, prepare derivative works based on, or otherwise modify the Service, in whole or in part;
  9. remove or modify any proprietary notices, marks, or labels contained on or within the Service;
  10. restrict or inhibit any other user from using and enjoying any online features of the Service;
  11. cheat (including but not limited to utilizing exploits or glitches) or utilize any unauthorized robot, spider, or other program in connection with any online features of the Service;
  12. violate any terms, policies, licenses, or code of conduct for any online features of the Service; or
  13. transport, export, or re-export (directly or indirectly) into any country forbidden to receive the Service by any U.S. export laws or regulations or U.S. economic sanctions or otherwise violate any laws or regulations, or the laws of the country in which the Service was obtained, which may be amended from time to time.

 

ACCESS TO SERVICES AND/OR SPECIAL FEATURES:

Service download, redemption of a unique serial code, registration of the Service, membership in a third-party service and/or membership in a Licensor service (including acceptance of related terms and policies) may be required to activate the Service, or access certain un-lockable, downloadable, online, or other special content, services, and/or functions (collectively, “Special Features”). Access to Special Features is limited to a single User Account (as defined below) per serial code and access to Special Features cannot be transferred, sold, leased, licensed, rented, converted into convertible virtual currency, or re-registered by another user unless otherwise expressly specified. The provisions of this paragraph supersede any other term in this Agreement. The Services’ availability and functionality may vary depending on your region or device. In addition, there may be limits on where we can provide Services.

 

TECHNICAL PROTECTIONS:

The Service may include measures to control access to the Service, control access to certain features or content, prevent unauthorized use, or otherwise attempt to prevent anyone from exceeding the limited rights and licenses granted under this Agreement. Such measures may include incorporating license management, product activation, and other security technology in the Service and monitoring usage, including, but not limited to, time, date, access, or other controls, counters, serial numbers, and/or other security devices designed to prevent the unauthorized access, use, and copying of the Service, or any portions or components thereof, including any violations of this Agreement. Licensor reserves the right to monitor use of the Service at any time. You may not interfere with such access control measures or attempt to disable or circumvent such security features, and if you do, the Service may not function properly. If the Service permits access to Special Features, only one user of the Service may access those Special Features at one time. Additional terms and registration may be required to access online services and to download Service updates. Licensor may limit, suspend, or terminate the license granted hereunder and access to the Service, including, but not limited to, any related services and products, at any time for any reason, including, without limitation, if you breach any term of an agreement or policy governing the Service, including this Agreement, Licensor’s Privacy Policy and/or Licensor’s Terms of Service.

 

LOCATION BASED SERVICE

Some features of the Service make use of detailed location and route information, for example in the form of GPS signals and other information sent by your mobile device on which the “BOUNCE” application is installed and activated. These features cannot be provided without utilizing this technology. Please note, as described in detail in the Privacy Policy:

  1. “BOUNCE” uses your location and route information to create a detailed route history of all of your journeys made when using the Service. “BOUNCE” uses this history to offer the Service to you, to improve the quality of the Service it offers to you and to all of its users, to improve the accuracy of its mapping and navigation data, and more as described in detail in the Privacy Policy. This history is associated with your account and username (if you have chosen to set up a username). This history is retained by “BOUNCE” for a limited period of time and in accordance with the Privacy Policy.
  2. “BOUNCE” allows you to use parts of the Service whether or not you choose to set up an account profile for yourself. Note that in order to access certain features of the Service (paid products, personalized content) you will need to set up an account profile.

 

DRIVING:

  1. Road information prevails. The information provided by the Service is not intended to replace the information provided on the road, such as travel direction, time and speed based restrictions, lane restrictions, road blockades, traffic signs, traffic lights, police instructions, etc.
  2. Cautious driving. Always drive vigilantly according to road conditions and in accordance with traffic laws. It is strictly forbidden to non-verbally interact with the Service or use the Service in a non-verbal manner for any purpose other than navigation while driving. Any and all non-verbal interaction shall be permitted after you have stopped your vehicle in an appropriate location permitted by law. Non-verbal interaction may be used by a passenger other than the driver, provided it does not interfere with the due course of driving and does not distract the driver’s attention to the road.

 

USER CREATED CONTENT:

The Service may allow you to create content, including, but not limited to, social media posts, maps, stories, experiences, Tours, Service, games, screenshots, photographs, videos, characters, or items (collectively, “Contributions”). In exchange for use of the Service, and to the extent that your Contributions through use of the Service give rise to any copyright interest, you hereby grant Licensor a nonexclusive, perpetual, irrevocable, worldwide, fully transferable, and sub-licensable worldwide right and license to use your Contributions in any way and for any purpose, without compensation, in connection with the Service and related goods and services, including, but not limited to, the rights to reproduce, copy, adapt, modify, perform, display, publish, broadcast, transmit, or otherwise communicate to the public by any means whether now known or unknown and distribute your Contributions without any further notice or compensation to you of any kind for the whole duration of protection granted to intellectual property rights by applicable laws and international conventions. Company’s rights granted in the previous sentence include, without limitation, the right to exploit the Contributions in any and every way. You hereby waive and agree never to assert any moral rights of paternity, publication, reputation, or attribution with respect to Licensor’s and other players’ use and enjoyment of such assets in connection with the Service and related goods and services under applicable law. This license grant to Licensor, and the terms above regarding any applicable moral rights, will survive any termination of this Agreement.

A limited amount of content may be marked and authorized for the user to share in their personal social channels (Facebook, Twitter, etc.). With respect to content made available by the Company through the Service that is specifically identified as available for distribution by you (“Distribution Content”) as part of your blog or other online commentary, analysis or review (“User Commentary”), the Company grants you a limited right to download, reproduce and distribute Distribution Content over the internet as part of your User Commentary. You may also modify such Distribution Content but only as required to technically enable the display and distribution of such content through your computer systems and over the Internet (e.g. a change in video format or file size) provided such modification does not materially alter the substance or quality of such content. Your display and distribution of Distribution Content may also be subject to other terms and conditions that are set forth in the description of such content in the Service, such as display and distribution of Distribution Content only within specified usage dates. You agree not to publish the Distribution Content with other content that is known by you to be false, inaccurate, or misleading or that is, or that encourages activity or conduct that is, unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable. Distribution Content may contain trackers that enable us to collect information with respect to the distribution and consumption of such content.

 

INTERNET CONNECTION:

The Internet connection required to use the Service, and any associated charges (e.g. mobile data expenses) incurred by your use of the Service are your exclusive responsibility and made solely at your expense. Transmitting and receiving real-time updates to and from the Service, requires a connection between your cellular device and the Internet (e.g. Wi-Fi, 3G, 4G, 5G). The expenses of such connection are as prescribed by the agreement between you and your device service provider (such as your cellular company), and according to its applicable terms.

 

AVAILABILITY OF PRODUCTS

Although we aim to offer you the best service possible, we make no promise that the Service will meet your requirements and we cannot guarantee that the Service will be fault free. If a fault occurs in the Service, please report it to us at support@experiencebounce.com and we will review your complaint and, where we determine it is appropriate to do so, correct the fault. If the need arises, we may suspend access to the Service while we address the fault.

Your access to the Service may be occasionally restricted to allow for repairs, maintenance or the introduction of new facilities or Service. We will restore the Service as soon as we reasonably can. In the event that the Service are unavailable, please notify us by emailing support@experiencebounce.com.

 

USER ACCOUNTS:

 In order to use the Service or a Service feature, or for certain features of the Service to operate properly, you may be required to have and maintain a valid and active user account with an online service, such as a third-party gaming platform or social network account (“Third-Party Account”), or an account with Licensor or a Licensor affiliate, as set forth in the Service documentation. If you do not maintain such accounts, then certain features of the Service may not operate or may cease to function properly, either in whole or in part. The Service may also require you to create a Service-specific user account with Licensor or a Licensor affiliate (“User Account”) in order to access the Service and its functionality and features. Your User Account log-in may be associated with a Third-Party Account. You are responsible for all use and the security of your User Accounts and any Third-Party Accounts that you use to access and use the Service.

 

DEVICE REQUIREMENTS:

To enjoy the service via your smartphone or other Device, your Device must satisfy certain system requirements. These requirements can be found on the Website and the Google and Apple App marketplaces.

SERVICE STORE TERMS:

This Agreement is solely between you and Licensor, and not with any third party point of sale or store. You acknowledge that no store or marketplace has an obligation to furnish any maintenance or support services to you in connection with the Service. Except for the foregoing, to the maximum extent permitted by applicable law, no store or marketplace will have any other warranty obligation whatsoever with respect to the Service. Any claim in connection with the Service related to product liability, a failure to conform to applicable legal or regulatory requirements, claims under consumer protection or similar legislation or intellectual property infringement are governed by this Agreement, and no store or marketplace is responsible for such claims. You must comply with the terms of service and any other applicable rules or policies of any applicable third party store or marketplace. The license to the Service is a non-transferable license to use the Service only on an applicable device that you own or control. You represent that you are not located in any U.S.-embargoed countries or other geographical areas or on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s list or Entity List. All applicable third party stores  or marketplaces are  third-party beneficiaries to this Agreement and may enforce this Agreement against you.

INFORMATION COLLECTION AND USAGE:

By installing and using the Service, you consent to the information collection and usage terms set forth in this section and Licensor’s Privacy Policy, including (where applicable) (i) the transfer of any personal information and other information to Licensor, its affiliates, vendors, and business partners, and to certain other third parties, such as governmental authorities, in the U.S. and other countries located outside Europe or your home country, including countries that may have lower standards of privacy protection; (ii) the public display of your data, such as identification of your user-created content or displaying your scores, ranking, achievements, and other content data on websites and other platforms; and (iii) other uses and disclosures of your personal information or other information as specified in the above-referenced Privacy Policy, as amended from time to time. If you do not want your information used or shared in this manner, then you should not use the Service.

For the purposes all data privacy issues, including the collection, use, disclosure, and transfer of your personal information and other information, the Privacy Policy located at www.experiencebounce.com/privacy, as amended from time to time, takes precedence over any other statement in this Agreement.

ELECTRONIC COMMUNICATIONS

Applicable laws require that some of the information or communications we send to you should be in writing. When using the Service, you agree to transact with us electronically, and that communication with us will be mainly electronic. We may contact you by e-mail or provide you with information by posting notices on the Service. You agree to this electronic means of communication and you acknowledge that all contracts, notices, information, and other communications that we provide to you electronically comply with any legal requirement that such communications be in writing.

To receive and view an electronic copy of the communications you must have the following equipment and software:

  1. A personal computer or other device which is capable of accessing the Internet. Your access to this page verifies that your system/device meets these requirements.
  2. an Internet web browser which is capable of supporting 128-bit SSL encrypted communications, JavaScript, and cookies. Your system or device must have 128-bit SSL encryption software. Your access to this page verifies that your browser and encryption software/device meet these requirements.
  3. To retain a copy, you must either have a printer connected to your personal computer or other device or, alternatively, the ability to save a copy through use of printing service or software such as Adobe Acrobat®. If you have a word processor or text editor program on your computer, then you can also copy the text and paste the text into a new document in the word processor or text editor and save the text.
  4. You can also contact us via email at support@Experiencebounce.com to withdraw your consent to receive any future communications electronically, including if the system requirements described above change and you no longer possess the required system. If you withdraw your consent, we may terminate your use of the Service.
  5. We reserve the right, in our sole discretion, to discontinue the provision of your electronic communications, or to terminate or change the terms and conditions on which we provide electronic communications. We will provide you with notice of any such termination or change as required by law.

DIGITAL MILLENIUM COPYRIGHT ACT (“DMCA”) NOTICE

We are committed to complying with copyright and related laws, and we require all users of the Service to comply with these laws. Accordingly, you may not store any material or content on, or disseminate any material or content over, the Service in any manner that constitutes an infringement of third party intellectual property rights, including rights granted by copyright law. Owners of copyrighted works in the United States who believe that their rights under copyright law have been infringed may take advantage of certain provisions of the US Digital Millennium Copyright Act of 1998 (the “DMCA”) to report alleged infringements. You may not post, modify, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information belonging to others without obtaining the prior written consent of the owner of such proprietary rights. It is our policy to terminate privileges of any user who repeatedly infringes the copyright rights of others upon receipt of proper notification to us by the copyright owner or the copyright owner’s legal agent.

If you feel that a posted message is objectionable or infringing, we encourage you to contact us immediately. Upon our receipt of a proper notice of claimed infringement under the DMCA, we will respond expeditiously to remove, or disable access to, the material claimed to be infringing and will follow the procedures specified in the DMCA to resolve the claim between the notifying party and the alleged infringer who provided the content in issue. Our designated agent (i.e., the proper party) to whom you should address such notice is listed below.

If you believe that your work has been copied and posted on the Service in a way that constitutes copyright infringement, please provide our designated agent with the following information:

  1. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
  2. A description of the copyrighted work or other intellectual property that you claim has been infringed;
  3. A description of where the material that you claim is infringing is located on the Service;
  4. Your address, telephone number, and email address;
  5. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law; and
  6. A statement by you, made under penalty of perjury, that the information contained in your report is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
  7. Our designated agent for notice of claims of copyright infringement can be reached as follows: (TBD)

 

TRADEMARKS

BOUNCE®, the BOUNCE logo, and all other House of Dalton product or service marks are trademarks of House of Dalton. All intellectual property, other trademarks, logos, images, product and company names displayed or referred to on or in the Service are the property of their respective owners. Nothing grants you any license or right to use, alter or remove or copy such material. Your misuse of the trademarks displayed on the Service is strictly prohibited. The Company will enforce its trademark rights to the fullest extent of the law, including the seeking of criminal prosecution.

DISCLAIMER OF WARRANTIES

You acknowledge that, to the maximum extent permitted by applicable law, the Service is provided “as is” without warranty of any kind, express or implied. Neither the Company, its licensors or affiliates nor the copyright holders make any representations or warranties, express or implied, including but not limited to merchantability, satisfactory quality, fitness for a particular purpose, accuracy, quiet enjoyment, and non-infringement of third party rights with respect to the Services and/or any other materials, data, technology and/or services provided under this agreement, whether arising in law, custom, conduct or otherwise. There is no warranty by the Company or by any other party that the functions contained in the Service, will meet your requirements or that the operation of the service will be uninterrupted or error-free. You assume all responsibility and risk for the selection of the Service to achieve your intended results and for the installation, use and results obtained from it.

THE COMPANY MAY PROVIDE LINKS AND POINTERS TO INTERNET WEBSITES MAINTAINED BY THIRD-PARTIES (“THIRD-PARTY SITES”) AND MAY, FROM TIME TO TIME, PROVIDE THIRD-PARTY MATERIALS ON ITS WEBSITES AND SERVICE. NEITHER THE COMPANY, ITS PARENT OR SUBSIDIARY COMPANIES, NOR THEIR AFFILIATES, ENDORSE, TAKE RESPONSIBILITY FOR, OPERATE OR CONTROL IN ANY RESPECT ANY INFORMATION, PRODUCTS, OR SERVICES ON THESE THIRD-PARTY SITES. THE MATERIALS ON THE THIRD-PARTY SITES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. Because some jurisdictions do not allow the exclusion of or limitations on implied warranties or the limitations on the applicable statutory rights of a consumer, some or all of the above exclusions and limitations may not apply to you. However, the Company and you agree that all exclusions and limitations set forth in this agreement shall apply to the maximum extent permitted by applicable law.   

 

YOUR RESPONSIBILITY TO LICENSOR

To the fullest extent of applicable law, you agree to be responsible and liable to Licensor, its partners, licensors, affiliates, contractors, officers, directors, employees, and agents in respect of all damages, losses, and expenses arising directly or indirectly from your acts and omissions to act in using the Service pursuant to the terms of the Agreement.

TO THE FULLEST EXTENT OF APPLICABLE LAW, LICENSOR SHALL NOT BE LIABLE FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES RESULTING FROM POSSESSION, USE, OR MALFUNCTION OF THE SERVICE, INCLUDING, BUT NOT LIMITED TO, DAMAGES TO PROPERTY, LOSS OF GOODWILL, DEVICE FAILURE OR MALFUNCTION, AND, TO THE EXTENT PERMITTED BY LAW, DAMAGES FOR PERSONAL INJURIES, PROPERTY DAMAGE, OR LOST PROFITS OR PUNITIVE DAMAGES FROM ANY CAUSES OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICE, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY, OR OTHERWISE, WHETHER OR NOT LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

ALL DAMAGES SHALL NOT (EXCEPT AS REQUIRED BY APPLICABLE LAW) EXCEED THE ACTUAL PRICE PAID BY YOU FOR USE OF THE SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THIS LIMITATION MAY NOT APPLY TO YOU. HOWEVER, COMPANY AND YOU AGREE THAT ALL EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS AGREEMENT SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.   

IF YOU ARE A RESIDENT OF AN EU MEMBER STATE, NOTWITHSTANDING ANYTHING TO THE CONTRARY SET OUT ABOVE, LICENSOR IS RESPONSIBLE FOR LOSS OR DAMAGE YOU SUFFER THAT IS A REASONABLY FORESEEABLE RESULT OF LICENSOR’S BREACH OF THIS AGREEMENT OR ITS NEGLIGENCE, BUT IT IS NOT RESPONSIBLE FOR LOSS OR DAMAGE THAT IS NOT FORESEEABLE.

WE DO NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM OUR NETWORK AND OTHER PORTIONS OF THE INTERNET, WIRELESS NETWORKS, OR OTHER THIRD-PARTY NETWORKS. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF THE INTERNET AND WIRELESS SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES MAY IMPAIR OR DISRUPT YOUR CONNECTIONS TO THE INTERNET, WIRELESS SERVICES, OR PORTIONS THEREOF. WE CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. TO THE FULLEST EXTENT OF APPLICABLE LAW, WE DISCLAIM ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO THIRD-PARTY ACTIONS OR INACTIONS THAT IMPAIR OR DISRUPT YOUR CONNECTIONS TO THE INTERNET, WIRELESS SERVICES, OR PORTIONS THEREOF OR THE USE OF THE SERVICE AND RELATED SERVICES AND PRODUCTS.

 

TERMINATION

This Agreement is effective until terminated by you or by the Licensor. This Agreement automatically terminates when Licensor ceases to operate the Service, or upon notice by Licensor for any reason, including, without limitation, if Licensor determines or believes your use of the Service involves or may involve fraud or money laundering or any other illicit activity, or upon your failure to comply with terms and conditions of this Agreement, including, but not limited to, the License Conditions above. You may terminate this Agreement at any time by requesting Licensor to terminate and delete your User Account that is used to access or use the Service using the method set forth in the Terms of Service. Deleting the Service from your Device will not delete the information associated with your User Account. If you reinstall the Service using the same User Account, then you may still have access to your prior User Account information associated with your User Account. However except as otherwise prohibited by applicable law, if your User Account is deleted upon termination of this Agreement for any reason, all products associated with your User Account will also be deleted, and you will no longer be available for use the Service or any product associated with your User Account. If this Agreement terminates due to your violation of this Agreement, Licensor may prohibit you from re-registering or re-accessing the Service. Upon any termination of this Agreement, you must delete the Service, accompanying documentation, associated materials, and all of its component parts in your possession or control, including from any client server, computer, or mobile device on which it has been installed. Upon termination of this Agreement, your rights to use the Service, including any products associated with your User Account, will terminate immediately, and you must cease all use of the Service. The termination of this Agreement will not affect our rights or your obligations arising under this Agreement.

Those provisions which by their nature should survive, shall survive the expiration or any termination of this Agreement.  Termination of this Agreement shall not act as a waiver of any breach hereof and shall not act as a release of either party from any liability for breach of such party’s obligations under this Agreement. Neither party shall be liable to the other for damages of any kind solely as a result of terminating this Agreement in accordance with its terms, and such termination by a party shall be without prejudice to any other right or remedy of such party under this Agreement or applicable law.  

 

EQUITABLE REMEDIES

You hereby agree that if the terms of this Agreement are not specifically enforced, Licensor will be irreparably damaged, and therefore you agree that Licensor shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect any of this Agreement, including temporary and permanent injunctive relief, in addition to any other available remedies.

TAXES AND EXPENSES

You shall be responsible and liable to Licensor and any and all of its affiliates, officers, directors, and employees for all taxes, duties, and levies of any kind imposed by any governmental entity with respect to the transactions contemplated under this Agreement, including interest and penalties thereon (exclusive of taxes on Licensor’s net income), irrespective of whether included in any invoice sent to you at any time by Licensor. You shall provide copies of any and all exemption certificates to Licensor if you are entitled to any exemption. All expenses and costs incurred by you in connection with your activities hereunder, if any, are your sole responsibility. You are not entitled to reimbursement from Licensor for any expenses, and will hold Licensor harmless therefrom.

TERMS OF SERVICE

All access to and use of the Service is subject to this Agreement, the applicable Service documentation, Licensor’s Terms of Service, and Licensor’s Privacy Policy, and all terms and conditions of the Terms of Service and Privacy Policy are hereby incorporated into this Agreement by this reference. These agreements represent the complete agreement between you and Licensor relating to use of the Service and related products and supersede and replace any prior agreements between you and Licensor, whether written or oral. To the extent there is a conflict between this Agreement and the Terms of Service or Privacy Policy, this Agreement shall control.

INTERPRETATION

In this Agreement, unless the context requires otherwise: i) any phrase introduced by the words “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative only and shall not be construed as limiting the generality of any preceding words; and ii) references to the singular include the plural and to the masculine include the feminine, and in each case vice versa.

 

NO WAIVER

If we delay exercising or fail to exercise or enforce any right available to us under this Agreement, such delay or failure does not constitute a waiver of that right or any other rights under this Agreement.

FORCE MAJEURE

The COmpany will not be liable to you for any lack of performance, or the unavailability or failure, of the Service or Service, or for any failure or delay by us to comply with this Agreement, where such lack, unavailability or failure arises from any cause beyond our reasonable control.

BINDING INDIVUAL ARBITRATION

PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY ALTER YOUR RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

  1. This binding individual arbitration section will not apply to the extent prohibited by the laws of your country of residence.
  2. You and the Company agree that should any dispute, claim, or controversy arise between us regarding any Company products or services (hereafter a “Dispute”), whether based in contract, statute, regulation, ordinance, tort (including fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, except for those matters listed in the Exclusions From Arbitration paragraph below, and expressly including the validity, enforceability, or scope of this ‘BINDING INDIVIDUAL ARBITRATION’ section (with the exception of the enforceability of the Class Action Waiver clause below), shall be submitted to binding arbitration, as described below, rather than being resolved in court. The term “Dispute” is to be given the broadest possible meaning that will be enforced and includes, for example, all matters arising under this Agreement, the Privacy Policy, the Terms of Service, or any other agreement with the Company. You understand that there is no judge or jury in arbitration and that court review of an arbitration award is limited.
  3. Exclusions From Arbitration. You and the Company agree that any claim filed by You or the Company in small claims court on an individual basis are not subject to the arbitration terms contained in this Section. In addition, the Company or You shall have the right to seek an injunction against you in court in order to preserve the status quo while an arbitration proceeds.
  4. Class Action Waiver. THE ARBITRATION PROCEEDINGS DESCRIBED HEREIN WILL BE CONDUCTED ON AN INDIVIDUAL BASIS ONLY. Neither You nor the Company shall be entitled to join or consolidate disputes by or against other individuals or entities, or to arbitrate any dispute in a representative capacity, including, without limitation, as a representative member of a class or in a private attorney general capacity, in connection with any Dispute. Further, unless both You and the Company agree, the arbitrator may not consolidate more than one person’s claim. The arbitrator may award any individual relief or individual remedies that are permitted by applicable law, but to the maximum extent permitted by applicable law, may not award relief against the Company respecting any person other than You.
  5. Right to Opt Out of Binding Arbitration. IF YOU WISH TO OPT OUT OF THIS BINDING INDIVIDUAL ARBITRATION REQUIREMENT, YOU MUST NOTIFY US IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU ACCEPT THIS AGREEMENT BUT ARE OPTING OUT OF BINDING INDIVIDUAL ARBITRATION, UNLESS A LONGER PERIOD IS REQUIRED BY APPLICABLE LAW. Your written notification must be mailed to 14622 Ventura Blvd Ste 102 PMB 2142 Sherman Oaks, CA 91403. Your notice must include (1) your full name; (2) your mailing address; (3) your Account Profile Name, if you have one; and (4) a clear statement that you do not wish to resolve disputes with the Company through arbitration. You are responsible for ensuring the Company’s receipt of your opt-out notice, and you therefore may wish to send a notice by means that provide a written receipt.
  6. Notice of Dispute. If you have a Dispute with the Company, you must send written notice to 14622 Ventura Blvd Ste 102 PMB 2142 Sherman Oaks, CA 91403, in order to give the Company the opportunity to resolve the dispute informally through negotiation. Notice must be provided within two (2) years of the Dispute having arisen, but in no event after the date on which the initiation of legal proceedings would have been barred under the applicable statute of limitations. The failure to provide timely notice shall bar all claims. If the Company has a dispute with You, the Company will provide notice to the email or mailing address it has on file for you, if possible. You and the Company agree to negotiate the Dispute in good faith for no less than 30 days after notice of the Dispute is provided. If the Dispute is not resolved within 30 days after receipt of notice of the Dispute, the Company or You may pursue the claim in arbitration as provided in this section.
  7. Arbitration Rules and Procedures. Arbitration shall be subject to the U.S. Federal Arbitration Act and federal arbitration law, and shall be conducted by Judicial Arbitration Mediation Services, Inc. (“JAMS”) pursuant to the JAMS Streamlined Arbitration Rules and Procedures effective July 1, 2014 (the “JAMS Rules”), as modified by this agreement to arbitrate. The JAMS Rules, including instructions for initiating an arbitration, are available on its website at http://www.jamsadr.com/rules-streamlined-arbitration. The Company will pay its arbitration costs as required by the JAMS Rules and, in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, the Company will pay as much of your arbitration filing and hearing fees as the arbitrator deems is necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation. Each side shall pay his, her, or its own attorneys’ fees and costs unless the claim(s) at issue permit the prevailing party to be paid its fees and/or litigation costs, in which case the arbitrator shall award fees or costs as required by the applicable law.
  8. Location of Arbitration. If an in-person hearing is required under the JAMS Rules, the hearing will occur in Los Angeles County, California.
  9. Decision of the Arbitrator. Any decision or award by the arbitrator shall be final and binding on the parties. Unless otherwise agreed, any decision or award shall set forth the factual and legal basis for the award. The arbitrator shall be permitted to award only those remedies in law or equity which are requested by the parties and which the arbitrator determines are supported by credible relevant evidence. Any decision or award may be enforced as a final judgment by any court of competent jurisdiction. If either party unsuccessfully challenges the validity of an award, the unsuccessful party shall pay the opposing party’s costs and attorneys’ fees associated with the challenge.
  10. Continuation in Effect. This Binding Individual Arbitration section survives any termination of this Agreement or the provision of services to You by the Company.
  11. Ability to Change Terms and Conditions Inapplicable. Although the Company may revise its End User License Agreement, Privacy Policy, Terms and Conditions, or other agreements at its discretion, the Company does not have the right to alter this agreement to arbitrate or the rules specified herein with respect to any Dispute once that Dispute has accrued.
  12. Severability. If any part of this arbitration provision is deemed invalid, unenforceable, or Illegal, then the balance of this arbitration provision shall remain in effect and be construed in accordance with its terms as if the invalid, unenforceable, or illegal provision had not been included. The sole exception to this is the class action waiver provision. If the prohibition on the arbitration proceeding on a class basis is found to be invalid, unenforceable, or illegal, then the entirety of this arbitration agreement shall be null and void and the Dispute shall proceed in court under applicable class action rules and procedures. If, for any reason, a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court in Los Angeles County, California. Suits brought in state court may be removed to federal court by either party if permissible by law.

 

GOVERNING LAW

Except to the extent they are preempted by U.S. federal law, the laws of California, other than its conflict-of-laws principles, govern this Agreement and any disputes arising out of or relating to this Agreement or their subject matter, including tort claims.

ATTORNEYS’ FEES

If any action at law or in equity (including any arbitration) is brought to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.

ASSIGNMENT BY US

The Company may transfer its rights and obligations under this Agreement to any company, firm or person at any time if it does not materially affect your rights under it. You may not transfer your rights or obligations under this Agreement to anyone else. This Agreement is personal to you and no third party is entitled to benefit under this Agreement except as set out here.

 

IF YOU HAVE ANY QUESTIONS CONCERNING THIS AGREEMENT, YOU MAY CONTACT US IN WRITING AT: 14622 VENTURA BLVD STE 102 PMB 2142, SHERMAN OAKS, CA 91403