Last updated:March 5, 2018
THIS END USER LICENSE AGREEMENT CONTAINS AN ARBITRATION AGREEMENT, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST AKILI INTERACTIVE LABS, INC. TO BINDING AND FINAL ARBITRATION. UNDER THE ARBITRATION AGREEMENT, (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST AKILI INTERACTIVE LABS, INC. ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
Akili Interactive Labs, Inc. (“Licensor”) provides its services (described below) to you through its website(s), mobile applications and related tools and services (collectively, the “Licensed Application”), subject to this End User License and Beta Test Participation Agreement (this “License”). The term “Licensed Application” includes any content, materials or services accessible from or purchased within the Licensed Application as well as upgrades provided by Licensor that replace and/or supplement the Licensed Application, unless such upgrade is accompanied by a separate license. The Licensed Application is licensed, not sold, to you by Licensor. As used herein, “you” and “your” refer to the individual or entity that wishes to use the Licensed Application. Your use of the License Application is subject to your prior acceptance of this License, and you agree that the terms of this License will apply to your use of the Licensed Application. If you do not agree to the terms and conditions set forth in this License, do not use the Licensed Application. We reserve the right, at our sole discretion, to change or modify portions of this License at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these terms were last revised. We will also notify you, either through the Licensed Application, in an email notification or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Licensed Application or changes made for legal reasons will be effective immediately. Your continued use of the Licensed Application after the date any such changes become effective constitutes your acceptance of the new License.
a. Access and Use of the Licensed Application:
i. This Licensed Application is supported by Apple-enabled devices (“Devices”) and enables users to access, review and use certain data (and perform certain actions with such data).
ii. Licensor reserves the right to modify or discontinue, temporarily or permanently, the Licensed Application (or any part thereof) with or without notice. You agree that Licensor will not be liable to you or to any third party for any modification, suspension or discontinuance of the Licensed Application.
iii. Wireless service carrier’s standard charges, data rates and other fees may apply when accessing the Licensed Application. In addition, downloading, installing, or using the Licensed Application may be prohibited or restricted by your carrier, and the Licensed Application may not work with all carriers or devices. By using the Licensed Application on any mobile Device, you agree that Licensor may communicate with you regarding Licensor and other entities by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Licensed Application may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your Licensor account information to ensure that your messages are not sent to the person that acquires your old number.
iv. If you are under 13 years of age, you are not authorized to use the Licensed Application, with or without registering. In addition, if you are under 18 years old, you may use the Licensed Application, with or without registering, only with the approval of your parent or guardian.
v. The Licensed Application and Third Party Services (as defined below) that may be accessed from the Licensed Application may not be available in all languages or in your home country. Licensor makes no representation that the Licensed Application or Third Party Services are appropriate or available for use in any particular location.
vi. You may be required to register with Licensor in order to access and use certain features of the Licensed Application. If you choose to register for the Licensed Application, you agree to provide and maintain true, accurate, current and complete information about yourself as prompted by the Licensed Application’s registration form. You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to immediately notify Licensor of any unauthorized use of your password or account or any other breach of security. Licensor will not be liable for any loss or damage arising from your failure to comply with this Section.
vii. You acknowledge that Licensor may establish general practices and limits concerning use of the Licensed Application, including without limitation the maximum period of time that data or other content will be retained by the Licensed Application and the maximum storage space that will be allotted on Licensor’s servers on your behalf. You agree that Licensor has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Licensed Application. You acknowledge that Licensor reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that Licensor reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
b. Scope of License: Subject to the terms of this License, Licensor grants you a non-exclusive, nontransferable, non-sublicensable, revocable limited license to use the Licensed Application on a Device that you own or control solely for the purpose of performing those functions and tasks available to you as an end user of the Licensed Application and as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions (the “Usage Rules”). You agree to promptly install any such upgrade and cease use of the prior version. Nothing in this paragraph creates an obligation for Licensor to prepare or provide any upgrades to the Licensed Application.
c. Participation in Beta Test of the App: You have been invited to participate in a beta test to evaluate the usability and user experience of a software-based tool being developed to help individuals track behaviors and symptoms of attention deficit hyperactivity disorder (“ADHD”) and your child’s functional ability to perform certain positive behaviors that are affected by ADHD. The tool is in the form of a native application (the “App”) that you would download to your mobile device (e.g., mobile phone, tablet, etc.). The Beta Test also provides access to a secure website allowing individuals you give permission to enter information regarding your child’s behavior as well (e.g., your child’s teacher and/or other caregiver, “Permitted User”). If you are a Permitted User, you also agree to be bound by the terms of this End User License and Beta Test Participation Agreement. The purpose of the Beta Test is to determine whether the this App is easy to use, and provides useful feedback, for parents who have a child that has been diagnosed with ADHD. Your participation in this Beta Test is entirely voluntary. By participating in the Beta Test, or using the App or our Services, you certify that you are 18 years of age or older and you are legally permitted to join the Beta Test. If you participate in this Beta Test, we’ll ask you to use the App, and if applicable have the permitted individual use the secure website, so we can gather usage metrics and your feedback to see whether the App is a useful tool. This beta test will last approximately three months. Once the beta test is completed, you have the option of continuing to use the App and the secure website.
By checking the box in the beta test app, you acknowledge and agree that you have read, and agree to be bound by, this End User License and Beta Test Participation Agreement.
d. Restrictions: This License does not allow you to use the Licensed Application on any Device that you do not own or control, and you may not distribute or make the Licensed Application available over a network where it could be used by multiple devices at the same time. You shall not rent, lease, lend, sell, redistribute, transfer or sublicense the Licensed Application and, if you sell your Device to a third party, you must remove the Licensed Application from the Device before doing so. You shall not copy (except as permitted by this License and the Usage Rules), decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Licensed Application, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the Licensed Application). You shall not exploit the Licensed Application in any unauthorized manner whatsoever, including but not limited to, by trespass or burdening network capacity. You shall not to use the Licensed Application to harass, abuse, stalk, threaten or defame any person or entity or otherwise use the Licensed Application to violate any applicable local, state, national or international law, or any regulations having the force of law. In connection with your use of the Licensed Application, you will not (a) engage in or use any data mining, robots, scraping or similar data gathering or extraction methods, (b) solicit personal information from anyone under the age of 18 or (c) obtain or attempt to access any materials or information through any means not intentionally made available or provided for through the Licensed Application. If you are blocked by Licensor from accessing the Licensed Application (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). You shall not email or otherwise upload any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; or (vii) in the sole judgment of Licensor, is objectionable or which restricts or inhibits any other person from using or enjoying the Licensed Application, or which may expose Licensor or its users to any harm or liability of any type. Any use of the Licensed Application or any part thereof other than as specifically authorized herein is strictly prohibited, and you agree that Licensor is not responsible for any such use.
f. Mobile Data Fees May Apply: You acknowledge that participation in the Beta Test and use of the App or Services may include Akili sending you text messages and reminders, based upon your settings and preferences. Text messages received and data collected in this Beta Test may count against your mobile device’s text/data plan. You can configure the App to prevent text message notification and to only use WiFi to limit the impact data collection has on your text/data plan. Standard text message charges and data rates from your wireless provider may apply.
g. Definition of Confidential Information. You agree that the Beta Test App and Services and any information concerning the Beta Test App (including its nature and existence, features, functionality, and screen shots), and any other information disclosed by Akili to you in connection with the Beta Test will be considered and referred to in this Agreement as “Confidential Information.” Information that otherwise would be deemed Confidential Information but (a) is generally and legitimately available to the public through no fault or breach of yours, (b) is generally made available to the public by Apple, (c) is independently developed by you without the use of any Confidential Information, (d) was rightfully obtained from a third party who had the right to transfer or disclose it to you without limitation, or (e) any third party software and/or documentation provided to you by Akili and accompanied by licensing terms that do not impose confidentiality obligations on the use or disclosure of such software and/or documentation will not be considered Confidential Information under this Agreement. All Confidential Information remains the sole property of Akili and you have no implied licenses or other rights in the Confidential Information not specified in this Agreement.
h. Nonuse and Nondisclosure of Confidential Information. Except as expressly permitted in this Section G, you agree that you will not disclose, publish, or otherwise disseminate any Confidential Information to anyone other than individuals who are enrolled in the same individual seed as you, or as otherwise expressly permitted or agreed to in writing by Akili. You further agree to take reasonable precautions to prevent any unauthorized use, disclosure, publication, or dissemination of Confidential Information. You agree to use the Confidential Information solely for the permitted uses as set forth in this Agreement. You agree not to use Confidential Information otherwise for your own or any third party’s benefit without the prior written approval of an authorized representative of Apple in each instance. You hereby acknowledge that unauthorized disclosure or use of Confidential Information could cause irreparable harm and significant injury to Akili that may be difficult to ascertain. Accordingly, you agree that Akili will have the right to seek immediate injunctive relief to enforce obligations under this Agreement in addition to any other rights and remedies it may have.
i. Termination; Suspension: This License is effective until terminated by you or Licensor. Licensor, in its sole discretion, may suspend or terminate this License, your participation in the Beta Test or use of the Licensed Application for any reason, including without limitation if you fail to comply with any terms of this License. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Licensed Application may be referred to appropriate law enforcement authorities. Licensor may also in its sole discretion and at any time discontinue providing the Licensed Application, the Beta Test, or any part thereof, with or without notice. You agree that any termination of your access to the Licensed Application under any provision of this License may be effected without prior notice, and acknowledge and agree that Licensor may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Licensed Application. Further, you agree that Licensor will not be liable to you or any third party for any termination of your access to the Licensed Application. Upon termination of this License, you shall cease all use of the Licensed Application, and destroy all copies, full or partial, of the Licensed Application.
j. Withdrawal from the Beta Test: You may pause or leave the Beta Test at any time and at your sole discretion. If you pause, you can resume participation in the Beta Test at any time during the Beta Test period without re-enrolling. Quitting the Beta Test means that you have either uninstalled the App or notified us of your wish to withdraw. You would need to re-enroll and re-install the App to start participating again.
k. Third Party Services: The Licensed Application may enable access to third-party services and websites (collectively and individually, "Third Party Services"). Use of the Third Party Services may require Internet access and that you accept additional terms of service. You understand that Licensor (i) has no control over such Third Party Services, (ii) is not responsible for examining or evaluating the content, accuracy completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Services and (iii) does not endorse such Third Party Services. You further acknowledge and agree to use the Third Party Services at your sole risk and that Licensor will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any Third Party Services. Any dealings you have with third parties found while using the Third Party Services are between you and the third party, and you agree that Licensor is not liable for any loss or claim that you may have against any such third party.
l. Intellectual Property: You agree that the Licensed Application contains proprietary content, information and material that is protected by copyright, patent, trademark, trade secret or other applicable intellectual property rights and laws, including but not limited to copyright, and that you will not use such proprietary content, information or materials in any manner whatsoever that is inconsistent with the terms of this License or that infringes the intellectual property rights of Licensor or any third party. Licensor’s name and logos are trademarks and service marks of Licensor (collectively the “Licensor Trademarks”). Other company, product, and service names and logos used and displayed via the Licensed Application may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Licensor. Nothing in this License or the Licensed Application should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Licensor Trademarks displayed on the Licensed Application, without our prior written permission in each instance. All goodwill generated from the use of Licensor Trademarks will inure to our exclusive benefit. Any rights to the Licensed Application, Licensor Trademarks and other Licensor intellectual property not expressly granted herein are reserved by Licensor.
m. Indemnity and Release: You agree to release, indemnify and hold Licensor, Apple and their affiliates and their officers, employees, directors and agents harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Licensed Application, any User Data, your connection to the Licensed Application, your violation of this License or your violation of any rights of another. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
n. Support: Licensor’s authorized third party technical support organization may provide technical support for the Licensed Application directly to you, but Licensor does not provide any technical support to you or any end user. Licensor and you acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Licensed Application.
o. NO WARRANTY: YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED APPLICATION AND YOUR RELIANCE ON THE OPERATION, OUTPUT OR RESULTS OF THE LICENSED APPLICATION IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED APPLICATION IS PROVIDED "AS IS" AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND , EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NONINFRINGEMENT OF THIRD-PARTY RIGHTS.
LICENSOR DOES NOT MAKE ANY WARRANTY (I) THAT THE LICENSED APPLICATION AND ANY FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE LICENSED APPLICATION WILL MEET YOUR REQUIREMENTS, (II) THAT THE OPERATION OF THE LICENSED APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE, (III) THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE LICENSED APPLICATION WILL BE ACCURATE OR RELIABLE OR (IV) THAT DEFECTS IN THE LICENSED APPLICATION WILL BE CORRECTED.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE LICENSED APPLICATION OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. APPLE SHALL HAVE NO WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE LICENSED APPLICATION AND NO OBLIGATION TO ADDRESS ANY OF YOUR CLAIMS OR CLAIMS OF ANY THIRD PARTY RELATING TO THE LICENSED APPLICATION OR YOUR POSSESSION AND/OR USE OF THE LICENSED APPLICATION, INCLUDING, BUT NOT LIMITED TO; (I) PRODUCT LIABILITY CLAIMS; (II) ANY CLAIM THAT THE LICENSED APPLICATION FAILS TO CONFORM TO ANY APPLICABLE LEGAL OR REGULATORY REQUIREMENT; AND (III) CLAIMS ARISING UNDER CONSUMER PROTECTION OR SIMILAR LEGISLATION.
ANY DATA OR RESULTS GENERATED OR DISPLAYED BY THE LICENSED APPLICATION INCLUDING BUT NOT LIMITED TO FINANCIAL, MEDICAL AND LOCATION INFORMATION IS NOT GUARANTEED BY LICENSOR.
p. LIMITATION OF LIABILITY: TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL LICENSOR BE LIABLE FOR PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOST OR MODIFIED DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO (I) YOUR USE OF OR INABILITY TO USE THE LICENSED APPLICATION; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE LICENSED APPLICATION; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE LICENSED APPLICATION; OR (V) ANY OTHER MATTER RELATING TO THE LICENSED APPLICATION, IN EACH CASE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL LICENSOR’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF FIFTY DOLLARS ($50.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THIS LIMITATION OR THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE LICENSED APPLICATION OR WITH THIS LICENSE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE LICENSED APPLICATION.
IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “NO WARRANTY” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
q. Export Restrictions: You may not use or otherwise export or re-export the Licensed Application except as authorized by United States law and the laws of the jurisdiction in which the Licensed Application was obtained. In particular, but without limitation, the Licensed Application may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. By using the Licensed Application, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons.
r. U.S. Government Users: The Licensed Application and related documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
s. Licensor: The Licensor of the Licensed Application is Akili Interactive Labs, Inc. and is located at 125 Broad Street, 4th Floor, Boston, Massachusetts 02110. You may contact Licensor with any questions, complaints or claims with respect to the Licensed Application at email@example.com.
t. Third Party Beneficiary: You acknowledge and agree that Apple and its subsidiaries are third party beneficiaries to this License, and that, upon your acceptance of this License, Apple will have the right (and will be deemed to have accepted the right) to enforce the terms of this License against you as a third party beneficiary thereof.
u. Choice of Law: This License, its construction, and your use of the Licensed Application will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without regard to the conflict of laws rules thereof that would require the application of the law of a different jurisdiction. This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
Dispute Resolution By Binding Arbitration: PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
Agreement to Arbitrate. This Dispute Resolution by Binding Arbitration section is referred to in this License as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Licensor, whether arising out of or relating to this License (including any alleged breach thereof), the Licensed Application, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this License, you and Licensor are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND LICENSOR AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND LICENSOR AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S).
Pre-Arbitration Dispute Resolution. Licensor is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at firstname.lastname@example.org. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Licensor should be sent to 125 Broad Street, 4th Floor, Boston, Massachusetts 02110, Attention: Legal Department] (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Licensor and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Licensor may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Licensor or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Licensor is entitled.
Arbitration Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these License as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the License and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless Licensor and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, Licensor agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, Licensor will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Licensor will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Licensor will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
Severability. If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of the License will continue to apply.
Future Changes to Arbitration Agreement. Notwithstanding any provision in this License to the contrary, Licensor agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Licensed Application, you may reject any such change by sending Licensor written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these License (or accepted any subsequent changes to these License).
w. Miscellaneous: This License constitute the entire agreement between you and Licensor and govern your use of the Licensed Application, superseding any prior agreements between you and Licensor with respect to the Licensed Application. You also may be subject to additional terms and conditions that may apply when you use affiliate or third party services, third party content or third party software. The failure of Licensor to exercise or enforce any right or provision of this License will not constitute a waiver of such right or provision. If any provision of this License is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this License remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Licensed Application or this License must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign this License without the prior written consent of Licensor, but Licensor may assign or transfer this License, in whole or in part, without restriction. The section titles in this License are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Licensed Application may also provide notices to you of changes to this License or other matters by displaying notices or links to notices generally on the Licensed Application.