ROAM TECHNOLOGIES INC.
D/B/A CAPITALIZE
SOFTWARE LICENSE AGREEMENT
This agreement (the “Agreement”) is made up of the following:
the Order Form (as set out on page 1 above); and
the Software License Agreement Terms and Conditions (as set out below).
Customer’s use of the Capitalize Software is governed by the Privacy Policy, Customer Terms Of Service and Software License Agreement Terms and Conditions attached hereto. If there is any conflict or ambiguity between the terms of the Order Form and the Software License Agreement Terms and Conditions, a term contained in the Order Form shall have priority.
ORDER FORM
Order details presented at checkout (including via Stripe)
DATE: [DATE]
| Customer | (Company Name), corporation/limited liability company/Entity |
|---|---|
| Customer Contact Address | [insert address if different from the above] |
| Customer Contact Name | [insert contact name] |
| Customer Contact Email Address | [insert email address] |
| Customer Billing Information | [Customer contact address, if different from the above] [insert - street address] [insert - city / town [insert - state / region] [insert – postal / zip code] [insert – country] [insert - billing primary contact name] [insert - billing primary contact email] [insert - billing secondary contact name if required] [insert - billing secondary contact email if required] |
| [Customer Secondary Billing Information] | [[Customer contact address, if different from the above] [insert - street address] [insert - city / town [insert - state / region] [insert – postal / zip code] [insert – country] [insert - billing primary contact name] [insert - billing primary contact email] [insert - billing secondary contact name if required] [insert - billing secondary contact email if required]] |
| Starting Number of licenses | [insert number] |
| Authorized Users as of Effective Date | [insert number] |
| Fees | The following Fees shall be payable by the Customer for use of the Capitalize Software and Software Services. All Fees are charged from the Effective Date.
|
| Payment Terms | Fees are payable [monthly][quarterly][annually] in advance in accordance with Section 3. |
| Initial Term | [___] months |
| Effective Date | [insert date] |
SOFTWARE LICENSE AGREEMENT TERMS AND CONDITIONS
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY; THIS AGREEMENT IS A BINDING CONTRACT.
SECTION 11 OF THESE TERMS AND CONDITIONS CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER. IF YOU LIVE IN THE UNITED STATES, THIS SECTION AFFECTS YOUR RIGHTS ABOUT HOW TO RESOLVE DISPUTES THAT YOU MAY HAVE WITH US. READ IT CAREFULLY.
The terms and conditions of this Software License Agreement (the “Terms and Conditions”), dated as of the effective date of the Order Form attached hereto (the “Effective Date”) is between you and Roam Technologies Inc. d/b/a Capitalize (“Capitalize”, “we”, “our” or “us”), a provider of certain proprietary software solutions (the “Capitalize Software”), and it governs your access to and use of the Software Services. For purposes of this Agreement, “Licensee”, “you” and “your” means you as the undersigned Licensee and your entity, company, organization, any employees, officers, directors, consultants, advisors or other individuals associated or otherwise affiliated with you as the Licensee. You represent and warrant that (i) you are authorized to bind the Licensee pursuant to and in accordance with the terms of this Agreement, (ii) the appropriate person, persons, or entity has authorized and/or approved the execution and delivery of this Agreement and the transaction contemplated herein and (iii) that no further act on the part of any person or entity is necessary to fully approve and authorize your execution and delivery of this Agreement and the consummation of the transactions contemplated herein. Capitalize and you are occasionally referred to in this Agreement as the “Parties”.
Please read this Agreement carefully. By clicking “Accept Terms of Software License Agreement” below, you acknowledge that you have read, understood, and agree to be bound by this Agreement. If you do not agree to this Agreement, then do not use the Software Services. If you do not agree to any part of this Agreement, you are not permitted to use or access the Software Services or enter into any transactions for the Software Services with Capitalize.
Definitions
For purposes of this Agreement, the following terms have the following meanings:
“Fixes” means minor revisions to the Software Services intended to remove bugs and/or alter minor features that are impairing the Software Services’ functionality.
“Intellectual Property” means all inventions (whether or not protectable under patent laws), works of authorship, information fixed in any tangible medium of expression (whether or not protectable under copyright laws), moral rights, mask works, trademarks, trade names, trade dress, trade secrets, know-how, ideas (whether or not protectable under trade secret laws), concepts, techniques and all other subject matter protectable under patent, copyright, moral right, mask work, trademark, trade secret, or other laws, including without limitation all new or useful documents, drawings, designs, samples, sampling results, test results, data, analysis, studies, reports, work product, field notes, plans, specifications, models, prototypes, perspectives, software, combinations, discoveries, formulae, manufacturing techniques, business methods, technical developments, artwork, programming, applets, scripts, and designs.
“Licensed Purpose” means use of the Software Services, solely for the use and benefit of your internal business operations and those of your Affiliates. “Affiliates” means any legal entity that directly, or indirectly through one or more entities, you own or that own you or that is under common control with you. “Control” and “own” mean possessing a 50% or greater interest in an entity or the right to direct the management of the entity.
“Representatives” means, with respect to a Party, the agents, contractors, subcontractors, employees, officers, directors, shareholders, partners, and members of such Party or Affiliates.
“Software Services” means the software, modules, programs, and related documentation for Capitalize’s proprietary Capitalize Software, including the services and software described in {{software summary}}.
“Upgrades” means material revisions to the Software Services, which will contain new features and/or major performance improvements.
“Updates” means minor revisions to the Software Services, which will contain new features or minor improvements.
“Users” means any Representatives who are granted a license under this Agreement to use the Software or Software Services.
GRANT OF LICENSE; RESTRICTIONS ON LICENSEE’S USE
Subject to Capitalize’s termination right pursuant to Section 4.2, Capitalize hereby grants to Licensee and Licensee hereby accepts a limited, non-exclusive, non-transferable, non-sublicensable and royalty free license to use the Software Services solely for the Licensed Purpose.
Capitalize will provide Licensee access to the Software Services in accordance with this Agreement, and will setup and provide access to the Licensee’s account. The initial term of this Agreement will start on the Effective Date. From time-to-time, and during the Term, Licensee may submit an additional Order Form instructing Capitalize to create other User accounts for additional Users under the terms of this Agreement.
Capitalize reserves the right, in its sole discretion, to make any changes to the Software Services that it deems necessary, including any Updates, Upgrades, or Fixes, to (A) maintain or enhance the quality or delivery of its services, the competitive strength of or market for its services, or the Software Services’ cost efficiency or performance; or (B) to comply with law. Capitalize will retain sole control over the operation, provision, maintenance, and management of the Software Services. If, as a result of such changes, Licensee will not be able to access the Software Services for any period of time, Capitalize will use commercially reasonable efforts to provide Licensee with written notice including the estimated downtime associated with such changes.
Licensee will not, directly or indirectly: (a) sublicense, resell, rent, lease, distribute, market, commercialize or otherwise transfer rights or usage to the Software Services or any modified version or derivative work of the Software Services created for Licensee by Capitalize; (b) provide the Software Services, or any modified version or derivative work of the Software Services created for Licensee by Capitalize, on a timesharing, service bureau, or other similar basis; (c) remove or alter any copyright, trademark, or proprietary notice in the software license; (d) develop forked software; (e) copy any features, functions or graphics of the Software Services for any purpose other than what is expressly authorized in this Agreement; (f) use or modify the Software Services in any way that would subject the Software Services, in whole in or in part, to a software license that requires public dissemination of such software; (g) send, store, or authorize a third party to send or store spam, unlawful, infringing, obscene or libelous material, or malicious code; (h) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Software Services; (i) use any Intellectual Property rights protected by applicable laws and contained in or accessible through the Software Services for the purpose of building a competitive product or service or copying its features or user interface; or (j) use the Software Services, or permit them to be used, for purposes of software product benchmarking or other comparative analysis intended for publication without Capitalize's prior written consent.
Term
2.1. The term of the license granted under Section 1 will extend from the Effective Date through the period set forth on the Order Form (the “Initial Term”) .
2.2. Upon the expiration of the Initial Term, the term of this license will automatically renew for additional [12]-month terms (each, a “Renewal Term” and, together with the Initial Term, the “Term”) unless terminated sooner pursuant to Section 4. Each Renewal Term will renew with respect to the same number of licenses as the previous term, unless the number of licenses is updated by you in writing by submission of an additional Order Form prior to the start of the subsequent Renewal Term.
FEES
3.1. In consideration of the Software Services, you agree to pay the Fees as set forth in the Order Form attached hereto (the “Fees”). From time to time Capitalize will issue you one or more invoices for the Fees, including Capitalize’s reasonable calculation thereof, and you agree to pay each such invoice within 10 days of the invoice date. Any Fees paid in advance will be non-refundable.
3.2. Upon the commencement of each Renewal Term, Capitalize will issue an invoice to you in an amount equal to the Fees for such Renewal Term, and you agree to pay such invoice within 10 days of the invoice date; provided, that, in connection with the commencement of any Renewal Term, Capitalize reserves the right to change or increase the Fees for such Renewal Term in its sole discretion.
3.3. You acknowledge that, in the event you request that Capitalize change, amend or increase the Software Services provided to you under this Agreement, Capitalize will issue you an invoice for the additional Fees payable in respect of such additional or amended Software Services. In the event any such additional Software Services are added in the middle of a month, you will be charged in full for that month. You agree that you will pay any such invoice within 10 days of the invoice date.
TERMINATION
4.1. Capitalize may suspend, terminate, or otherwise deny you access to or use of all or any part of the Software Services at any time during the Term and in Capitalize’s sole discretion, without incurring any resulting obligation or liability: (a) if Capitalize receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Capitalize to do so; (b) upon the occurrence of a material breach of this Agreement by you; (c) if you are, or have been, engaging in unlawful activities involving any of the Software Services; (d) for any reason or no reason upon providing a minimum of two (2) business days written notice to you; or (e) if this Agreement expires or is terminated, as stated in this Agreement.
4.2. [Intentionally omitted.]
4.3. During the Term, you may terminate this Agreement: (a) by providing Capitalize with written notice of non-renewal at least thirty (30) days before the end of the then-current term; or (b) at any time upon the occurrence of a material breach of this Agreement by Capitalize, provided that Capitalize will be notified of the occurrence of such breach in writing and provided thirty (30) days to cure such breach and fails to so.
4.4. Upon the expiration or early termination of this Agreement, in accordance with the terms of this Agreement, whichever occurs first, (a) the rights granted under this Agreement will be immediately revoked and Capitalize may immediately deactivate your account; (b) you will immediately cease use of the Software Services; and (c) the return or destruction of Confidential Information will be handled as contemplated in the final sentence of Section 6. Sections 1.4, 5, 6, 9, 10, and 11 will survive termination or expiration of this Agreement.
INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS
The Software Services, and all Intellectual Property and proprietary rights therein, are and will at all times remain exclusively the valuable property of Capitalize.
Licensee agrees that no title to, proprietary rights or interest in the Software Services, or to any copies thereof, is transferred hereunder to Licensee, other than the specific licenses granted in this Agreement set forth in Section 1.
Licensee agrees to respect and not to remove or conceal any copyright, trademark, or other proprietary and confidential notices that may appear on the Software Services, or embedded within the Software Services, including without limitation that appearing on any related documentation.
Licensee will not prohibit or enjoin Capitalize from utilizing any skills or knowledge of a general nature acquired during the course of providing the Software Services or responding to feedback, provided that those skills or knowledge of a general nature are not a direct result of any Intellectual Property provided to Capitalize by Licensee in connection with the Software Services.
Capitalize acknowledges and agrees that, other than as expressly set forth herein: (a) no licenses are granted by Licensee under or in connection with this Agreement; and (b) neither Capitalize (nor any of its Affiliates) are entitled to any Intellectual Property or other proprietary rights of Licensee under or in connection with this Agreement, in each case other than the limited, revocable, non-assignable, nontransferable rights and license to use any Licensee Intellectual property as necessary for Capitalize to perform the Software Services.
Licensee agrees that it will not, and it will not permit any of its Representatives and/or Users to, access or use the Software Services or Intellectual Property except as expressly contemplated by this Agreement. If Licensee becomes aware of any actual or threatened activity prohibited by this Agreement, it will immediately take all reasonable and lawful measures necessary to stop the activity or threatened activity, mitigate its effects, and notify Capitalize of any such actual or threatened activity.
Notwithstanding the foregoing, Licensee is and will remain the sole and exclusive owner of all right, title and interest in and to all information and data and other content provided by or on behalf of Licensee to Capitalize to enable the provision of the Software Services, other than any Resultant Data (as defined below) (“Licensee Materials”). Licensee grants Capitalize a limited, non-exclusive, non-transferable, non-sublicensable, revocable right and license to use the Licensee Materials during the Term to provide the Software Services hereunder and internally (solely in a de-identified, aggregated and/or anonymized format) to improve and enhance the Services.
Licensee acknowledges and agrees that Licensee will not own, nor have any right to access or use, any information, content or material provided, recorded, collected or otherwise made available to Capitalize by Licensee or other individual Users of the Software connection with Capitalize’s provision of the Software Services that Capitalize may de-identify, aggregate and/or anonymize (“Resultant Data”), and Capitalize will have the right to use such Resultant Data for any purpose, including without limitation, to prepare reports and analyses on behalf of Licensee and to develop benchmarking and other reports that may be made publicly available in anonymized form that cannot be used by a third party to derive or ascertain Licensee’s identity or the identity of any User.
CONFIDENTIALITY
Each Party (a “Recipient”) acknowledges that it will have access to certain confidential information of the other Party (a “Disclosing Party”) concerning the Disclosing Party’s business, plans, clients, technology, products, Intellectual Property, the terms and conditions of this Agreement, other information held in confidence, and documents and playbooks (collectively, “Confidential Information”). Confidential Information includes all information in tangible or intangible form that a reasonable person should consider to be confidential whether disclosed in writing or orally, before or after the Effective Date.
Confidential Information does not include information that: (a) is known to Recipient prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) becomes known (independently of disclosure by the Disclosing Party) to Recipient directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (c) becomes publicly known, except through a breach of this Agreement by Recipient; or (d) is independently developed by Recipient.
Recipient agrees that neither it nor its Users and/or Representatives will use the Confidential Information except in connection with the provision or use of the Software Services, or as otherwise expressly permitted by this Agreement, nor disclose the Confidential Information to any third party. Recipient also agrees that it will take reasonable precautions to protect the confidentiality of the Disclosing Party's Confidential Information, which precautions will be at least as stringent as Recipient takes to protect its own Confidential Information. Recipient will promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and use its best efforts to prevent further unauthorized use or disclosure.
Recipient will implement appropriate technical and organizational measures designed to safeguard Confidential Information against unauthorized or unlawful processing, access, copying, modification, storage, reproduction, display, or distribution, and against accidental loss, destruction, or damage.
If Recipient or its Users and/or Representatives are requested or required to disclose Confidential Information, Recipient will notify the Disclosing Party of such request, where permissible, and will seek to preserve the confidentiality of the Confidential Information by cooperating with the Disclosing Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information by the applicable tribunal.
DATA PRIVACY
You and Capitalize will at all times comply in full with the requirements of any applicable privacy and data protection laws.
Without limitation of the foregoing, you have, and will retain, sole responsibility for: (a) all of Licensee’s data, including its content and use; (b) all information, instructions, and materials provided to, by or on behalf of Licensee or any authorized User in connection with the Software Services (including, without limitation, any and all personal information, financial information or other data (“User Data”)Users; (c) Licensee’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Licensee or through the use of third-party services (“Licensee Systems”); (d) the security and use of Licensee’s and your authorized users’ access credentials; and (e) all access to and use of the Software Services directly or indirectly by or through the Licensee Systems, with or without Licensee’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
You will employ all physical, administrative, and technical controls, screening, security procedures, and other safeguards necessary to: (a) securely administer the distribution and use of all access credentials and protect against any unauthorized access to or use of the Software Services; and (b) control the content and use of your data and/or any User Data, including the uploading or other provision of personal data or information or Confidential Information.
At any time, upon Capitalize’s written request, you agree to execute Capitalize’s data processing agreement in the form provided to you by Capitalize.
SUPPORT; UPGRADES, UPDATES, AND FIXES; FEATURE REQUEST
Capitalize will provide training and support for the Software Services. Support will be available on a best-effort basis in a timely, efficient, proper and workmanlike manner using reasonable care, skill and diligence. Capitalize will provide manuals for the Software Services in English that are complete, accurate, suitable and sufficiently comprehensive so as to enable you to make full and proper use of and to properly maintain and support the Software Services.
Licensee agrees and hereby acknowledges that the Software Services are provided without any other guarantee, except the ones described and provided in this Agreement. Capitalize will provide Licensee with such support, Upgrades, Updates, Fixes, or other maintenance to any bug, failure, or other defect in the Software Services as are required under this Agreement or otherwise agreed by the parties.
Licensee may provide Capitalize with details regarding any bug, failure, or other defect in the Software Services, including sufficient information, screenshots, and detail such that Capitalize may reproduce the bug, failure, or other defect in the Software Services. Capitalize may at its sole discretion issue an Update or Fix related to the disclosed bug, failure, or other defect in the Software Services.
Licensee may submit requests to Capitalize for additional features to be considered for incorporation into the Software Services, provided that (a) Licensee agrees to waive any claim to any Intellectual Property or property right in such additional feature, only if such feature is developed by Capitalize; otherwise, the Intellectual Property or property right will remain with and be vested in the developer of such feature; (b) Licensee will be prohibited from disclosing such additional feature to any third party; and (c) Licensee will warrant that, to Licensee’s best knowledge, such additional feature does not infringe any Intellectual Property right of a third party.
REPRESENTATIONS AND WARRANTIES
Capitalize represents and warrants that: (a) it is validly existing under the Laws of the place of its incorporation; (b) it has all necessary right, power and authority to grant this license to Licensee; (c) the Software Services, as made available from Capitalize to Licensee, are free from any known virus or other known malicious code; (d) the Software Services may contain Open Source software, but do not contain or incorporate any software or other materials licensed from any third party under an Open Source Software Copyleft License; and (e) exploitation by the Licensee of the Intellectual Property Rights in the Software Services will not infringe the rights of any third party.
You represent and warrant that you have all necessary right, power and authority to enter into this Agreement on behalf of Licensee and exercise the license rights granted to the Software Services.
If you use the Software Services on behalf of a company, organization, or other entity, you represent and warrant that (i) the company, organization, or other entity is validly existing under the Laws of the place of its incorporation; (ii) all information provided by you to Capitalize and/or any Users in connection with the Software Services is accurate, complete and not likely to deceive such Users; (iii) such information does not infringe on the rights of any third parties; (iv) you will comply with all relevant and applicable laws and financial reporting obligations, including (but not limited to), laws and obligations relating to registration, tax reporting, political contributions, and asset disclosures; and (v) all access to and usage of the Software Services by you and/or any Users will at all times be in compliance with Capitalize’s {{Customer Terms of Service}} and {{Privacy Policy}}.
THE SOFTWARE SERVICES ARE PROVIDED TO LICENSEE ON AN “AS IS” BASIS. EXCEPT FOR THE CONDITIONS, REPRESENTANTIONS AND WARRANTIES DESCRIBED AND PROVIDED IN IN THIS AGREEMENT, ALL CONDITIONS, REPRESENTATIONS, AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CAPITALIZE’S SOFTWARE SERVICES MAY BE SUBJECT TO LIMITATIONS OR ISSUES INHERENT IN THE USE OF THE INTERNET AND CAPITALIZE IS NOT RESPONSIBLE FOR ANY PROBLEMS OR OTHER DAMAGE RESULTING FROM SUCH LIMITATIONS OR ISSUES.
LIMITATION OF LIABILITY. CAPITALIZE WILL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR OTHER DAMAGES ARISING OUT OF THIS AGREEMENT OR IN CONNECTION WITH THE DELIVERY, USE, OR PERFORMANCE OF THE SOFTWARE SERVICES EVEN IF CAPITALIZE HAD BEEN ADVISED, KNEW, OR SHOULD HAVE KNOWN OF THE POSSIBILITY THEREOF INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST BUSINESS REVENUES OR FAILURE TO REALIZE EXPECTED SAVINGS. EXCEPT WITH RESPECT TO ANY INTELLECTUAL PROPERTY CLAIMS, DAMAGES OR LOSSES, PERSONAL DATA BREACHS OR BREACH OF ANY CONFIDENTIALITY OBLIGATION ARISING OUT OF OR AS A RESULT OF THIS AGREEMENT, CAPITALIZE’S LIABILITY TO LICENSEE ARISING OUT OF OR RELATED TO THIS AGREEMENT WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, WILL EXCEED IN THE AGGREGATE, THE AMOUNT OF $100.
BINDING ARBITRATION AND CLASS ACTION WAIVER. PLEASE READ THIS SECTION 11 CAREFULLY. IF YOU DO NOT REJECT IT AS SET FORTH BELOW, THIS SECTION 11 WILL APPLY, AND MOST DISPUTES BETWEEN YOU AND US WILL BE SUBJECT TO INDIVIDUAL ARBITRATION. THIS MEANS THAT (1) NEITHER A COURT NOR A JURY WILL RESOLVE ANY SUCH DISPUTE, (2) YOU WILL NOT BE ABLE TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING, (3) LESS INFORMATION WILL BE AVAILABLE IN DISCOVERY, AND (4) APPEAL RIGHTS WILL BE LIMITED.
If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you, or any other User of your Account, and us, our affiliates, and/or agents, if it relates to your Account, your use of the Service, or to this Agreement, except as noted hereafter.
Either party may assert an individual case in small claims court or your state’s equivalent court. Any disputes relating to the enforcement, protection, or validity of the intellectual property rights of either party shall not be subject to arbitration. Nothing in this Section 11 shall limit either party from seeking injunctive or other exigent relief from a court of law.
Notwithstanding any other language in this Section 11, only a court, not an arbitrator, will decide disputes about the validity, enforceability, coverage or scope of this Section 11 of the Agreement. However, any dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to decide. Further, you and we may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
YOU AGREE NOT TO PARTICIPATE IN A CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL ACTION AGAINST US IN COURT OR ARBITRATION. ALSO, YOU MAY NOT BRING CLAIMS AGAINST US ON BEHALF OF ANY OTHER ACCOUNTHOLDER OR USER OF THE SERVICE NOT ON YOUR ACCOUNT.
The party who wants to arbitrate must notify the other party in writing. This notice can be given after the beginning of a lawsuit or in papers filed in the lawsuit. Otherwise, your notice must be mailed to 4600 Campus Drive, Newport Beach, CA 92660.
The arbitration administrator shall be JAMS, and the arbitration shall be conducted under the Streamlined Arbitration Rules and Procedures of JAMS (“JAMS Rules”) that are in effect at the time the arbitration is initiated. The JAMS Rules can be accessed at http://www.jamsadr.com/rules-streamlined-arbitration/. In the event of a conflict between the terms set forth in this Section 11 of the Agreement and the JAMS Rules, the terms in this Section 11 of the Agreement will control.
The arbitrator must apply the same law and legal principles, consistent with the Federal Arbitration Act (“FAA”) that would apply in court, but may use different procedural rules.
We will pay all the fees that the administrator or arbitrator charges, unless your claim is for greater than $10,000, in which case the payment of any fees shall be decided by the JAMS Rules.
This Section 11 of the Agreement is governed by the FAA. California law shall apply to the extent state law is relevant under the FAA. The arbitrator’s decision will be final and binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged under the provisions of the FAA.
Except for claims subject to arbitration as provided for in this Section 11 (and claims proceeding in any small claims court), all other disputes arising out of or related to your Account, your use of the Service, or to this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts located in Los Angeles, CA, and you agree to submit to the personal jurisdiction and venue of such courts. IN SUCH INSTANCES, YOU AND WE EACH WAIVE AND AGREE TO WAIVE ANY RIGHT TO TRIAL BY JURY, TO THE EXTENT ALLOWED BY LAW.
Severability. You and we agree that if any portion of this Section 11 is found illegal or unenforceable (except any portion of Section 11.2), that portion shall be severed and the remainder of Section 11 shall be given full force and effect. If Section 11.2 is found to be illegal or unenforceable, then neither you nor we will elect to arbitrate any claim falling within that portion of Section 11.2 found to be illegal or unenforceable, and such claim shall be exclusively decided by a court of competent jurisdiction consistent with Section 11.10. This arbitration provision shall survive termination of this Agreement.
REJECTING ARBITRATION. You may opt-out and reject this Arbitration Section 11 of the Agreement. To do so, you must send us a notice within ten (10) days after your Effective Date. The notice must include your name, address and account number, and must be mailed to 4600 Campus Drive, Newport Beach, CA 92660. This is the only way you can reject this Section 11.
MISCELLANEOUS
Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party will have authority to contract for or bind the other Party in any manner whatsoever.
Publicity. Neither Party will (and will procure that its Affiliates will not) disclose in any material or otherwise (including any electronic media) the existence of this Agreement or the terms of its relationship with the other party without the prior written consent of the other party (which may be withheld in such party’s absolute discretion). Neither party will (and will procure that its Affiliates will not) use the other party’s name or logo (or any other name or logo of any of its Affiliates, and it acknowledges that it has no rights or is otherwise entitled to use the name or logo of any third party with whom the other party is working) in any material or otherwise (including any electronic media) without the prior written consent of the other party (which may be withheld in such other party’s absolute discretion).
Entire Agreement; Amendment. This Agreement sets forth the entire understanding and agreement, and supersedes any and all prior agreements, written or oral, between the Parties with respect to the subject matter hereof. This Agreement can only be amended by a writing signed by the authorized representative of each Party.
Interpretation. For purposes of this Agreement: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the term “days” refers to calendar days, unless preceded with the term “business” which refers to working days, except Saturday and Sunday, and the term “year” refers to the calendar year; and (d) unless set forth expressly otherwise, the term “Section” means a section of this Agreement. 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 captions and section headings set forth in this Agreement are for convenience only.
Assignment. Capitalize may assign this Agreement, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the Agreement without our prior written consent, and any unauthorized assignment by you shall be null and void.
Waiver; Severability. No waiver by any Party of any of the provisions hereof will 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, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will 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. If any term or provision of this Agreement is found to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Governing Law. Except as expressly stated otherwise, this Agreement shall be governed by, and will be construed under, the laws of the United States of America and the law of the State of Delaware, without regard to choice of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
ACKNOWLEDGEMENT AND AGREEMENT
BY CLICKING “ACCEPT TERMS OF SOFTWARE LICENSE AGREEMENT” BELOW, YOU HEREBY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THE FOREGOING AGREEMENT AND AGREE THAT YOUR USE OF THE SOFTWARE SERVICES IS AN ACKNOWLEDGMENT OF YOUR AGREEMENT TO BE BOUND BY THE ORDER FORM AND TERMS AND CONDITIONS OF THIS AGREEMENT.