Last updated: 08.02.2019
IMPORTANT – READ CAREFULLY BEFORE INSTALLING AND/OR USING REALDOLLX™ APPLICATION SOFTWARE. BY INSTALLING THE SOFTWARE AND/OR USING THE SOFTWARE, YOU INDICATE YOUR FULL ACCEPTANCE TO THIS END-USER LICENSE AGREEMENT. YOU ACKNOWLEDGE AND AGREE THAT BY CLICKING ON THE ACCEPT BUTTON OR OTHER SIMILAR BUTTONS AS MAY BE DESIGNATED BY REALBOTIX TO SHOW THIS AGREEMENT AND/OR INSTALL THE SOFTWARE, YOU ARE ENTERING INTO A LEGALLY BINDING CONTRACT. USE OF THE SOFTWARE IS SUBJECT TO THE TERMS OF THIS AGREEMENT. YOU MUST NOT USE THE SOFTWARE UNTIL YOU HAVE READ AND ACCEPTED THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN DO NOT INSTALL OR USE THE SOFTWARE.
This Agreement is made between Realbotix, LLC. a company duly constituted under the laws of United States of America, State of Delaware, with headquarters at 16192 Coastal Highway, Lewes, Delaware 19958 and you, the User of this Software, either an individual or an entity.
ARBITRATION NOTICE: THIS AGREEMENT CONTAIN AN ARBITRATION CLAUSE LATER ON. EXCEPT FOR CERTAIN TYPES OF DISPUTES MENTIONED IN THAT ARBITRATION CLAUSE, YOU AND REALBOTIX, LLC AGREE THAT DISPUTES ARISING FROM THIS AGREEMENT WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION, AND YOU AND REALBOTIX, LLC WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
Ability to Accept End-User License Agreement
You affirm that you are at least 18 years of age or the age of majority in the jurisdiction you are installing/accessing the Software from, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement. Licensor and You acknowledge that this Agreement is concluded between Licensor and You, and not between You and the Store. Licensor is the sole responsible for this Software and its contents. If you are under 18 or the applicable age of majority, you are not permitted to submit personal information to us or use the Software. You also represent that the jurisdiction from which you install/use the Software does not prohibit the receiving or viewing of adult content.
“Agreement” means this REALDOLLX™ APP End User License Agreement.
“License” means the right granted by the Licensor to the Licensee to use the Software upon acceptance of this Agreement and respective payment by the Licensee.
“Licensee” or “you” means the individual person installing or using the Software on his or her own behalf; or, if the Software is being downloaded or installed on behalf of an organization, such as an employer, “you” means the organization for which the Software is downloaded or installed and it is represented hereby that such organization has authorized the person accepting this agreement to do so on its behalf.
“Licensor” or “us” means Realbotix, LLC. and its associated companies.
“New Releases” means big or complex changes on the Software made by the Licensor which incurs in additions of new features.
“Software" means this application named REALDOLLX™ APP and all of its contents, files, texts, pictures, artwork, design, mobile and computer programming code and related system documentation including all comments and any procedural code such as job control language and programs assembled or compiled in magnetic or electronic binary form on software media, which are readable and usable by machines, all upgrades, revisions, patches, enhancements, fixes modifications, copies, additions or maintenance releases of the Software, related user documentation and explanatory materials or files provided in written, “online” or electronic form.
“Source Code” means all code and programming used to compile the Software and its respective updates and versions.
“Updates” means all small changes made by Licensor on the Software with the purpose of fixing bugs or making enhancement on the Software.
“Store” means the Applications in which the Software may be sold or distributed that can either be App Store by Apple Inc. and its associated companies and Google Play by Google LLC and its associated companies.
“Website” means the Licensor website hosted at www.realdollx.com.
1. Proprietary Rights and Non-Disclosure.
1.1. Ownership Rights. You agree that the Software and the content, dialogues, artwork, music, videos, 3D arts and graphics, backgrounds, menu system, artificial intelligence engine, real time graphic engine, virtual assistants, digital avatars, voice prompts, authorship, systems, ideas, methods of operation, documentation and other information related and contained in the Software are proprietary intellectual properties and/or the valuable trade secrets of the Licensor and they are protected by civil and criminal law. The Licensor owns and retains all right, title and interest in and to the Software, including without limitations any error corrections, enhancements, updates or other modifications to the Software, whether made by the Licensor or any third party, and all copyrights, patents, trade secret rights, trademarks, and other intellectual property rights herein. Your possession, installation or use of the Software does not transfer to you any title to the intellectual property of the Software, and you will not acquire any rights to the Software except as expressly set forth in this Agreement. This Agreement does not grant you any intellectual property rights in the Software and you acknowledge that the License granted under this Agreement only provides you with a right of limited use of the Software under the terms and conditions of this Agreement.
1.2. Intellectual Property Claims. Licensor and Licensee acknowledge that, in the event of any third party claim that the Software or Your possession and use of Software infringes that third party’s intellectual property rights, Licensor, not Store, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
1.3. Source Code. You acknowledge that the Source Code for the Software is proprietary to the Licensor and constitutes trade secrets of the Licensor. You agree not to disassemble, decompile or “unlock”, decode or otherwise reverse-translate or reverse-engineer, or attempt in any manner to reconstruct or discover any source code or underlying algorithms of the Software or any part thereof provided.
1.4. Confidential Information. You agree that the Software, including the specific design and structure of individual programs, constitute confidential proprietary information of the Licensor. You agree not to transfer, copy, disclose, provide or otherwise make available such confidential information in any form to any third party.
2. Grant of License.
2.1. License. The Licensor grants you non-exclusive and non-transferable license to store, load, install, execute, use, and display the Software on ‘smart phones’, mobile phones, hand-held devices, ‘tablets’, or other electronic devices for which the Software was designed by a single user pursuant to the terms and conditions of this Agreement and the Store, if applicable, and you hereby agree and accept such License as follows:
a) Trial Version. If you have received, downloaded and/or installed a trial version of the Software and was granted an evaluation license, you may use the Software for evaluation purposes only and for a limited time as specified by the Licensor. Any use of the Software for other purposes is strictly prohibited. The Licensor shall not be required to provide any support and Updates for the Trial Version of the Software.
b) Personal License. The License granted hereby is for personal use only and is valid for the time period of the subscription you have purchased as indicated on the RealDoll X website. You can use one copy of the specified version of the Software on up to 5 (five) devices registered with us or with your Store’s account, in accordance with the Software requirements. You hereby agree that You will not use the Software for any commercial purpose and neither distribute it in any form without Licensor’s prior consent.
2.1.1. SUBSCRIPTION. THE LICENSE IS ONLY VALID WITH AN ACTIVE SUBSCRIPTION ACCORDING TO THE TIME YOU HAVE PURCHASED. ALL SUBSCRIPTIONS ARE SET TO RENEW AUTOMATICALLY ON THE SAME PERIOD BASIS. YOU CAN CANCEL THE AUTOMATIC RENEW UP TO 24 (TWENTY-FOUR) HOURS BEFORE THE EXPIRATION DATE. YOU CAN DO THIS ON THE WEBSITE OR BY SENDING A MESSAGE TO SUPPORT@REALDOLLX.AI.
2.2. Third-Party Software. In order to use the Software, you may need to obtain certain additional third-party software (“Third Party Software”). Third Party Software is (i) not licensed hereunder; (ii) not under Licensor’s control or license; and (iii) subject to the applicable licenses of such third parties which you may need to enter into prior to the installation of the Third-Party Software and prior to the effective download and use of the Software. Notwithstanding any provision to the contrary herein, nothing in this Agreement shall be construed as to grant you any rights or licenses with regard to such Third-Party Software or to entitle you to use such Third-Party Software.
2.2.1. Third Party TTS (Text to Speech) voices. In order to use the Software, you may receive with it Third-Party TTS Voices. Third Party Software is (i) licensed by the Licensor to your use on the terms set forth herein; and (ii) is subject to modifications by the Third-Party at its own discretion. Notwithstanding any provision to the contrary herein, nothing in this Agreement shall be construed as to grant you any rights or licenses with regard to such Third-Party Software. Any TTS voice supplied within the Software must be used only with the Software. You agree not to use any of the TTS voices provided with other software or applications. A Third-Party TTS Voice may be subject to charge and related fees upon Licensor notice.
2.3. Multiple Environment Software; Multiple Language Software; Dual Media Software; Multiple Copies; Bundles. You may not rent, bundle with other software or materials, lease, sublicense, lend or transfer any versions or copies of the Software regardless of whether you use the Software or not without Licensor’s written consent.
2.4. Updates. During the Term of this Agreement, you may download Updates to the Software when and as the Licensor publishes them in its website or through other online services or Stores. Notwithstanding any provision to the contrary herein, nothing in this Agreement shall be construed as to grant you any rights or licenses with regard to the New Releases of the Software or to entitle you to any New Release. This Agreement does not obligate the Licensor to provide any Updates. Notwithstanding the foregoing, any Updates that you may receive become part of the Software and the terms of this Agreement apply to them (unless this Agreement is superseded by a further Agreement accompanying such Update or modified version of the Software).
2.4.1. Maintenance. Licensor is the sole responsible to provide any maintenance and support for the Software. Licensor and You acknowledge that the Store has no obligation whatsoever to furnish any maintenance and support services with respect to the Software.
2.5. Term and Termination. The term of this Agreement shall begin when you download or install the Software (whichever is earlier) and shall continue, unless otherwise terminated pursuant hereto, for the same term as the subscription period you have chosen and subject to renewal for the same time upon new payment by the Licensee and agreed by the Licensor. The Licensor may terminate this Agreement by offering you a superseding Agreement for the Software or any replacement or Update or New Release of the Software and conditioning your continued use of the Software or such replacement, Updated or upgraded version or New Release on your acceptance of such superseding Agreement. This Agreement may be also terminated by the Licensor immediately and without notice if you fail to comply with any of your obligation or conditions of this Agreement or at Licensor’s sole discretion with a ninety (90) days prior notice. Without prejudice to any other rights, this Agreement will terminate automatically if you fail to comply with any of the limitations or other requirements described herein. Upon termination or expiration of this Agreement, you must immediately cease use of the Software and destroy all copies of the Software.
2.6. No Rights Upon Termination. Upon termination of this Agreement you will no longer be authorized to have or use the Software in any way.
2.7. The termination of this Agreement shall not affect any rights or obligations of the Licensor, which compliance or exercise occurs after the termination of this Agreement.
2.8. Material Terms and Conditions. You specifically agree that each of the terms and conditions of this Section 2 are material and that your failure to comply with these terms and conditions shall constitute sufficient cause for Licensor to immediately terminate this Agreement and the License granted under this Agreement.
2.9. Refunds and Cancellations. You may cancel any order for Product at no charge up to five (5) business days after payment upon written notice to Realbotix. After such period you will not be entitled to a refund.
3.Additional Covenants; Assignment of Intellectual Property Rights.
3.1. Third Party Beneficiary. Licensor and you acknowledge and agree that the Store is a third party beneficiary of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, the Store will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.
3.2. Additional Limitations. Notwithstanding anything to the contrary herein, you may not use, or modify the Software in any way as to form the basis for creating a product or software that provides the same, or substantially the same, functionality as the Software; and in the event you develop any modifications, enhancements, derivative works and/or extensions to the Software, either independently or jointly with Licensor, such modifications, enhancements, derivative works and/or extensions and all rights associated therewith will be the exclusive property of Licensor. You shall not grant, either expressly or impliedly, any rights, title, interest, or licenses to any such modifications, enhancements, derivative works and/or extensions to any third party. You will, however, be entitled to use such modifications, enhancements, derivative works and/or extensions for personal use only. You hereby assign all right, title and interest in and to such modifications, enhancements, derivative works and/or extensions to the Software to Licensor. You also agree to execute, acknowledge and deliver to Licensor all documents and do all things Licensor deems necessary or desirable at no cost to enable Licensor to obtain and secure such modifications, enhancements, derivative works and/or extensions anywhere in the world. You agree to secure all necessary rights and obligations from relevant employees or third parties in order to satisfy the above obligations.
3.3. Indemnification. In addition to the other requirements set forth in this Section 3, you hereby agree to indemnify, hold harmless, and defend Licensor from and against any and all claims, damages, judgments, awards, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your permission to use and access to the Software by minors; (ii) your violation of any term of this Agreement; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) related to any claim, action, proceeding or allegation that arises or results, either directly or indirectly, from the use, modification and distribution of the Software or any part of its Source Code.
4.1. No Transfers. Under no circumstances you shall sell, rent, lease, license, sublicense, publish, display, distribute, or otherwise transfer to a third party the Software any copy or use thereof, in whole or in part, without Licensor's prior written consent. If the applicable law in your jurisdiction grants you a non-waivable right of assignment, you may transfer your rights under this Agreement to another person or entity, provided that (a) you also assign this Agreement, the Software, all accompanying materials, and all Updates and prior versions, to such person or entity; (b) retain no copies, including backups and copies stored on a device; (c) the receiving party accepts the terms and conditions of this Agreement and any other terms and conditions upon which you legally purchased a license to the Software; and (d) the Licensor is notified about the transfer. Notwithstanding the foregoing, you may not transfer pre-release, or “not for resale” copies of the Software. Under no circumstance you may permit third parties to benefit from the use or functionality of the Software via a timesharing, service bureau or other arrangement.
4.2. Prohibitions. Except as otherwise specifically provided in this Agreement, you may not use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, otherwise reverse engineer, or otherwise reduce any party of the Software and transfer any part of the Software, nor permit any third party to do so. Notwithstanding the foregoing sentence, decompiling the Software is permitted to the extent the laws of your jurisdiction give you the non-waivable right to do so to obtain information necessary to render the Software interoperable with other software; provided, however, that you must first request such information from the Licensor and the Licensor may, in its sole discretion, either provide such information to you (subject to confidentiality terms) or impose reasonable conditions, including a reasonable fee, on such use of the Software to ensure that the Licensor's and its suppliers and/or licensors proprietary rights in the Software are protected. You may not modify, or create derivative works based upon the Software in whole or in part. Any such unauthorized use shall result in immediate and automatic termination of this Agreement and the License granted hereunder and may result in criminal and/or civil prosecution. Neither Software’s binary code nor source may be used or reverse engineered to re-create the program algorithm, which is proprietary, without written permission of the Licensor. All rights not expressly granted here are reserved by Licensor and/or its suppliers and licensors.
4.3. License Key. You may not give, make available, give away, sell or otherwise transfer your License Key or any copy thereof to a third party. Software’s License Key may not be distributed, except as provided herein, outside of the area of legal control of the person or persons who purchased the original License, without written permission of the Licensor. Doing so will result in an infringement of copyright. The Licensor retains the right of claims for compensation in respect of damage which occurred by your giving away the License Key or registration code contained therein. This claim shall also extend to all costs which the Licensor or its licensors incur in defending themselves.
4.4. No Extraction for Separate Use. You shall not extract or Use any functionality of this Software other than as part of normal operation and functionality of the Software as a whole.
4.5. Proprietary Notices and Copies. You may not remove any proprietary notices or labels on the Software and you may not copy the Software.
4.6. No Transfer of Rights. Except as otherwise specifically provided herein, this Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Licensor’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon assignees.
4.7. Compliance with Law. You agree that in using the Software and any report or information derived as a result of the use of this Software, you will comply with all applicable international, national, state, regional and local laws and regulations, including, without limitation, privacy, copyright, export control and obscenity law. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
4.8. Additional Protection Measures. Solely for the purpose of preventing unlicensed use of the Software, the Software may install on your device technological measures that are designed to prevent unlicensed use, and the Licensor may use this technology to confirm that you have a licensed copy of the Software. The update of these technological measures may occur through the installation of the Updates. The Updates will not install or may interrupt the use of the Software if you have installed on unlicensed copies of the Software. If you are not using a licensed copy of the Software, you are not allowed to install the Updates. You hereby agree that the Licensor may collect personally identifiable information from your device during this process.
5. NO WARRANTY AND DISCLAIMER.
5.1. NO IMPLIED OR OTHER WARRANTIES. THE SOFTWARE IS PROVIDED “AS-IS” WITHOUT ANY WARRANTY WHATSOEVER AND THE LICENSOR MAKES NO PROMISES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CIVIL LAW, CUSTOM, USAGE OR OTHERWISE, REGARDING OR RELATING TO THE SOFTWARE OR CONTENT THEREIN OR TO ANY OTHER MATERIAL PROVIDED TO YOU PURSUANT TO THIS AGREEMENT OR OTHERWISE. YOU ASSUME ALL RISKS AND RESPONSIBILITIES FOR SELECTION OF THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE SOFTWARE. THE LICENSOR MAKES NO WARRANTY THAT THE SOFTWARE WILL BE ERROR FREE OR FREE FROM INTERRUPTION OR FAILURE, OR THAT IT IS COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, SATISFACTORY QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE SOFTWARE AND THE ACCOMPANYING WRITTEN MATERIALS OR THE USE THEREOF. YOU HEREBY ACKNOWLEDGE THAT THE SOFTWARE MAY NOT BE OR BECOME AVAILABLE DUE TO ANY NUMBER OF FACTORS INCLUDING WITHOUT LIMITATION PERIODIC SYSTEM MAINTENANCE, SCHEDULED OR UNSCHEDULED, ACTS OF GOD, TECHNICAL FAILURE OF THE SOFTWARE, TELECOMMUNICATIONS INFRASTRUCTURE, OR DELAY OR DISRUPTION ATTRIBUTABLE TO VIRUSES, DENIAL OF SERVICE ATTACKS, INCREASED OR FLUCTUATING DEMAND, AND ACTIONS AND OMISSIONS OF THIRD PARTIES. THEREFORE, THE LICENSOR EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY REGARDING SYSTEM AND/OR SOFTWARE AVAILABILITY, ACCESSIBILITY, OR PERFORMANCE. THE LICENSOR DISCLAIMS ANY AND ALL LIABILITY FOR THE LOSS OF DATA DURING ANY COMMUNICATIONS AND ANY LIABILITY ARISING FROM OR RELATED TO ANY FAILURE BY THE LICENSOR TO TRANSMIT ACCURATE OR COMPLETE INFORMATION TO YOU.
5.2. LIMITED LIABILITY; NO LIABILITY FOR CONSEQUENTIAL DAMAGES. YOU ASSUME THE ENTIRE COST OF ANY DAMAGE RESULTING FROM YOUR USE OF THE SOFTWARE AND THE INFORMATION CONTAINED IN OR COMPILED BY THE SOFTWARE OR INFORMED BY YOU ON THE SOFTWARE, AND THE INTERACTION (OR FAILURE TO INTERACT PROPERLY) WITH ANY OTHER HARDWARE OR SOFTWARE WHETHER PROVIDED BY THE LICENSOR OR A THIRD PARTY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE LICENSOR OR ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF GOODWILL, CONSEQUENTIAL DAMAGES, INDIRECT DAMAGES, LOSS OF PERSONAL DATA, WORK STOPPAGE, HARDWARE OR SOFTWARE DISRUPTION IMPAIRMENT OR FAILURE, REPAIR COSTS, TIME VALUE OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, OR THE INCOMPATIBILITY OF THE SOFTWARE WITH ANY HARDWARE OR SOFTWARE USAGE. IN NO EVENT WILL LICENSOR’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES IN ANY ONE OR MORE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE EXCEEDS THE AMOUNT PAID BY YOU FOR THE SOFTWARE.
5.3. INFORMATION PROVIDED TO THE SOFTWARE OR THE LICENSOR. YOU HEREBY ACKNOWLEDGE THAT ALL INFORMATION YOU PROVIDE TO THE SOFTWARE OR THE LICENSOR IS SUSCEPTIBLE TO HACK ATTACKS OR THIRD PARTIES MISS USE AND THE LICENSOR CANNOT GUARANTEE FULL PROTECTION OF THE INFORMATION YOU HAVE PROVIDED, FOR WHICH YOU RELEASE THE LICENSOR OF ANY RESPONSIBILITIES OR INDEMNIFICATIONS ARISING THEREOF. IF FOR ANY REASON IS NOT RELEASED OF SUCH, YOU AGREE TO RECEIVE LIQUIDATED DAMAGES ON THE SAME AMOUNT YOU HAVE PAID FOR THE LICENSE TO USE THE SOFTWARE.
5.4. Residual Warranty. In the event of mandatory law or judicial decision imposing any kind of warranty on the Software and the failure of the Software to conform to such warranty, you may notify us or the Store, as applicable, and the Licensor or the Store will refund the purchase price for the Software; and that, to the maximum extent permitted by applicable law, Licensor or the Store will have no other warranty obligation whatsoever with respect to the Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Licensor sole responsibility.
5.5 Product Claims. Licensor and you acknowledge that Licensor, not the Store, is responsible for addressing any of your claims or any third party relating to the Software or your possession and/or use of the Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation, including in connection with Software’s use of the Store frameworks.
7. Governing Law; Jurisdiction; Venue; and Arbitration.
7.1. Arbitration, Class-Action Waiver, and Jury Waiver. PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY REQUIRE YOU AND REALBOTIX, LLC TO AGREE TO RESOLVE ALL DISPUTES ARISING FROM THIS AGREEMENT THROUGH BINDING INDIVIDUAL ARBITRATION.
7.1.1. Applicability of Arbitration Agreement. You and Realbotix, LLC agree that all claims and disputes (whether contract, tort, or otherwise), including all statutory claims and disputes, arising out of or relating to this Agreement or the use of the Software that cannot be resolved in small claims court will be resolved by binding arbitration on an individual basis, except that you and Realbotix, LLC are not required to arbitrate any dispute in which either party seeks equitable relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. To be clear: The phrase “all claims and disputes” also includes claims and disputes that arose between us before the effective date of this Agreement.
7.1.2. Arbitration Rules. The Federal Arbitration Act governs the interpretation and enforcement of this dispute-resolution provision. Arbitration will be initiated through the American Arbitration Association (“AAA”) and will be governed by the AAA Consumer Arbitration Rules, available by calling the AAA at 1-800-778-7879. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. The rules of the arbitral forum will govern all aspects of this arbitration, except to the extent those rules conflict with the Terms of this Agreement. The arbitration will be conducted by a single neutral arbitrator. Any claims or disputes where the total amount sought is less than $10,000 USD may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount sought is $10,000 USD or more, the right to a hearing will be determined by the arbitral forum’s rules. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
7.1.3. Additional Rules for Non-appearance Arbitration. If non-appearance arbitration is elected, the arbitration will be conducted by telephone, online, written submissions, or any combination of the three; the specific manner will be chosen by the party initiating the arbitration. The arbitration will not involve any personal appearance by the parties or witnesses unless the parties mutually agree otherwise. Expenses. Each party shall bear its own expenses of arbitration regardless of the determination on the merits.
7.1.4. Authority of the Arbitrator. The arbitrator will decide the jurisdiction of the arbitrator and the rights and liabilities, if any, of you and Realbotix, LLC. The dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under law, the arbitral forum’s rules, and the terms of this Agreement. The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Realbotix, LLC.
7.1.5. Waiver of Jury Trial. YOU AND REALBOTIX, LLC WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Realbotix, LLC are instead electing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Realbotix, LLC over whether to vacate or enforce an arbitration award, YOU AND REALBOTIX, LLC WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
7.1.6. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor we are entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth herein.
7.1.7. Right to Waive. Any rights and limitations set forth in this arbitration agreement may be waived by the party against whom the claim is asserted. Such waiver will not waive or affect any other portion of this arbitration agreement.
7.1.8. Opt-out. You may opt out of this arbitration agreement. If you do so, neither you nor Realbotix, LLC can force the other to arbitrate. To opt out, you must notify Realbotix, LLC in writing no later than 30 days after first becoming subject to this arbitration agreement. Your notice must include your name and address, and your email address you used to set up your account (if you have one), and an unequivocal statement that you want to opt out of this arbitration agreement. You must either mail your opt-out notice to this address: Realbotix, LLC, ATTN: Arbitration Opt-out, 475 East Carmel Street, San Marcos, California 92078.
7.1.9. Small Claims Court. Notwithstanding the foregoing, either you or Realbotix, LLC may bring an individual action in small claims court. Arbitration Agreement Survival. This arbitration agreement will survive the termination of your relationship with Realbotix, LLC.
7.2 Exclusive Venue. To the extent that this Agreement allow you or Realbotix, LLC to initiate litigation in a court, both you and Realbotix, LLC agree that all claims and disputes (whether contract, tort, or otherwise), including statutory claims and disputes, arising out of or relating to the End-User License Agreement will be litigated exclusively in the Superior Court of California, County of San Diego. If, however, that court would lack original jurisdiction over the litigation, then all such claims and disputes will be litigated exclusively in the United States District Court for the Southern District of California. You and Realbotix, LLC consent to the personal jurisdiction of both courts.
7.3 Choice of Law. Except to the extent they are preempted by U.S. federal law, the laws of Delaware, other than its conflict-of-laws principles, govern this Agreement and any claims and disputes (whether contract, tort, or otherwise) arising out of or relating to this Agreement or their subject matter.
7.4. Period for Bringing Actions. No action, regardless of form, arising out of the transactions under this Agreement, may be brought by either party hereto more than one (1) year after the cause of action has occurred, or was discovered to have occurred, except that an action for infringement of intellectual property rights may be brought within the maximum applicable statutory period.
7.5. Entire Agreement; Severability; No Waiver. This Agreement is the entire agreement between you and Licensor and supersedes any other prior agreements, proposals, communications, or advertising, oral or written, with respect to the Software or to subject matter of this Agreement. You acknowledge that you have read this Agreement, understand it and agree to be bound by its terms. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, void, or unenforceable for any reason, in whole or in part, such provision will be more narrowly construed so that it becomes legal and enforceable, and the entire Agreement will not fail on account thereof and the balance of the Agreement will continue in full force and effect to the maximum extent permitted by law or equity while preserving, to the fullest extent possible, its original intent. No waiver of any provision or condition herein shall be valid unless in writing and signed by you and an authorized representative of Licensor provided that no waiver of any breach of any provisions of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach. Licensor’s failure to insist upon or enforce strict performance of any provision of this Agreement or any right shall not be construed as a waiver of any such provision or right.
8. Contact Information .
8.1. Should you have any questions concerning this Agreement, or if you desire to contact the Licensor for any reason, please contact our Customer Department at:firstname.lastname@example.org or email@example.com. Address: 475 East Carmel Street, San Marcos, California 92078, USA.
Copyright © 2017-2019 Realbotix, LLC. and its licensors. All rights reserved. The Software, including and any accompanying documentation, are copyrighted and protected by copyright and trademark laws and international copyright and trademark treaties, as well as other intellectual property laws and international agreements.