SeeBeNow Technologies, Inc.
End User License Agreement
PLEASE READ ALL OF THE FOLLOWING TERMS CAREFULLY AS THEY CONTAIN INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION OF DISPUTES PROVISION IN SECTION 14 THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS. IF YOU BECOME A SEEBENPW SUBSCRIBER AND PAY BY CREDIT OR DEBIT CARD (OR OTHER PAYMENT METHOD ASSOCIATED WITH AN AUTOMATICALLY RENEWING SUBSCRIPTION), YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW FOR CERTAIN PERIODS OF TIME IF YOU DO NOT TAKE CERTAIN STEPS. SEE SECTION 5 FOR MORE INFORMATION ON THE AUTOMATIC RENEWAL TERMS APPLICABLE TO SUBSCRIPTIONS.
This End User License Agreement (“EULA”) is made between SeeBeNow Technologies, Inc. (“Licensor”), owner and operator of https://www.elementa.com (the “Website”) and creator of the “Elementa” mobile application (“Mobile App”) (the Website and Mobile App are, collectively, the “Platform”), and You (“Licensee”) who have access the Website and/or downloaded the Mobile App and may use the Platform only pursuant to the following terms and conditions.
Acceptance of Terms. By accessing and using the Platform, whether or not to access Licensor’s content, Licensee hereby READS, UNDERSTANDS, ACCEPTS, and AGREES to be bound by this EULA’s terms and conditions. Should Licensee NOT accept these terms and conditions, Licensee must neither download, access nor otherwise use any part of the Platform or content or information available therewith. To the extent permitted by law, Licensor may amend, at any time and from time to time, this EULA by posting a version of this EULA to https://www.elementa.com/terms. Licensor will notify Licensee on its website and/or via email that amended terms have been posted, such terms becoming effective seven (7) days thereafter. Licensee agrees that its continued use of the Platform constitutes an acceptance of such amendments. Licensee shall have the opportunity to refuse said amendments solely by ceasing utilization of and access to the Platform, including uninstalling the Mobile App from Licensee’s mobile device where applicable.
Residency and Age. The Platform is intended to be accessed and utilized by Licensees who have attained the age of majority in their respective state or province. By accessing and using the Platform, Licensee hereby represents, warrants, and affirms that it is either at least 18 years of age, an emancipated minor, or has acquired a parent or guardian’s consent. Licensee hereby affirms that it is, at a minimum and without exception, 13 years old. The Platform is not intended to be accessed or utilized by children less than 13 years of age.
Disclaimer of Warranties.
LICENSOR DOES NOT PROVIDE MEDICAL ADVICE AND LICENSEE IS ADVISED TO CONSULT WITH ITS OWN PHYSICIANS, HEALTH PROFESSIONALS, OR COUNSELORS PRIOR TO USING THE SOFTWARE.
THE SOFTWARE AND THE ENTIRETY OF ITS CONTENT AND INFORMATION AND MATERIALS PROVIDED THEREWITH ARE PROVIDED “AS IS,” AND LICENSOR HEREBY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. LICENSOR EXPRESSLY DISCLAIMS ANY REPRESENTATION THAT: (I) THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS; (II) ACCESS TO THE SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (III) ANY INFORMATION OBTAINED THROUGH OR FROM THE SOFTWARE WILL BE ACCURATE OR RELIABLE; (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY LICENSEE THROUGH THE SOFTWARE WILL MEET EXPECTATIONS; (V) ANY LICENSEE-PROVIDED INFORMATION WILL NOT BE DISCLOSED TO THIRD-PARTIES; OR (VI) ANY DATA OR SOFTWARE ERRORS WILL BE CORRECTED.
Physical exercise, in all of its forms and with or without the use of equipment such as blocks, straps or any other equipment that may be suggested by Presenters on Elementa App, is a strenuous physical activity. Accordingly, you are urged and advised to seek the advice of a physician before beginning any physical exercise regimen, routine, program or using any suggested equipment, shown in any of the video clips on the Service. Elementa app is not a medical organization and its instructors or staff cannot give you medical advice or diagnosis.
All suggestions and comments relating to the use of equipment, poses, moves and instruction are not required to be performed by you and are carried out at your election while viewing Elementa videos. Nothing contained in the Service should be construed as any form of such medical advice or diagnosis. By using Elementa, you represent that you understand that physical exercise involves strenuous physical movement, and that such activity carries the risk of injury whether physical or mental. You understand that it is your responsibility to judge your physical and mental capabilities for such activities. It is your responsibility to ensure that by participating in classes, courses, programs, and activities from Elementa, you will not exceed your limits while performing such activity, and you will select the appropriate level of activity for your skills and abilities, as well as for any mental or physical conditions and/or limitations you have. You understand that, from time to time instructors may suggest physical adjustments or the use of equipment and it is your sole responsibility to determine if any such suggested adjustment or equipment is appropriate for your level of ability and physical and mental condition. You expressly waive and release any claim that you may have at any time for injury of any kind against Elementa, or any person or entity involved with Elementa, including without limitation its directors, principals, instructors, independent contractors, employees, agents, contractors, affiliates and representatives.
Registration. To use certain features of the Platform, Licensee may be asked to register with the Platform. Licensee agrees: (i) to provide true, accurate, current and complete information (“Licensee Information”) about itself as prompted by any registration form; and (ii) to maintain and promptly update its Licensee Information to keep it true, accurate, current and complete. If Licensor has reasonable grounds to suspect that Licensee Information is untrue, inaccurate, not current or incomplete, Licensor may suspend or terminate Licensee’s access to and use of the Platform (or any portion thereof). Licensee is solely and fully responsible for maintaining the confidentiality of its username and password (“Credentials”) and is solely and fully responsible for all activities that occur under its Credentials. Licensee agrees to: (i) immediately notify Licensor of any unauthorized use of Licensee’s Credentials or any other breach of security; and (ii) ensure that Licensee logs off from its account at the end of each web applications session. Licensor cannot and will not be liable for any loss or damage arising from Licensee’s failure to comply with this section.
General. If Licensee purchases any content that Licensor offers for a fee (“Paid Content”), such as a monthly or annual subscription to Licensor’s services, Licensee authorizes Licensor and its designated payment processors to store Licensee’s payment information and other related information. Licensee also agrees to pay the applicable fees for the Paid Content (including without limitation periodic fees for ongoing subscriptions (the “Subscription Fees”) as they become due plus all related taxes (including, without limitation, sales and use taxes, duties, or other governmental taxes or fees), and to reimburse Licensor for all collection costs and interest for any overdue amounts. All fees and charges are nonrefundable and there are no refunds or credits for any partially used Paid Content (including partially used subscription periods) except: (i) as required by applicable law; and (iii) at Licensor’s sole and absolute discretion. Fees for the Paid Content may be payable in advance, in arrears, per usage, or as otherwise described when Licensee initially purchases the Paid Content. Except as otherwise described in this Section 5, all prices for Paid Content are subject to change without notice.
Payment Method. Licensor may, from time to time, offer various payment methods, including without limitation payment by credit card, by debit card, and by certain mobile payment providers. Licensee authorizes Licensor to charge Licensee for Paid Content through any payment method(s) Licensee selects when purchasing the Paid Content (the “Payment Method”) and Licensee agrees to make payment using such Payment Method(s) (Licensor may, from time to time, receive and use updated payment method information provided by Licensee or that financial institutions or payment processors may provide to Licensor to update information related to Licensee’s Payment Method(s), such as updated expiration dates or account numbers). Certain Payment Methods, such as credit cards and debit cards, may involve agreements between Licensee and the financial institution, credit card issuer, or other provider of Licensee’s chosen Payment Methods (the “Payment Method Provider”). If Licensor does not receive payment from Licensee’s Payment Method Provider, Licensee agrees to directly pay all amounts due upon demand from Licensor. Licensee’s non-termination or continued use of the Paid Content reaffirms that Licensor is authorized to charge Licensee’s Payment Method.
Automatic Renewal of Subscriptions. IF LICENSEE PAYS FOR A SUBSCRIPTION BY CREDIT OR DEBIT CARD (OR OTHER PAYMENT METHOD IDENTIFIED ON COMPANY’S SERVICES OR A SOCIAL NETWORKING SITE AS INVOLVING AN AUTOMATICALLY RENEWING SUBSCRIPTION) AND LICENSEE DOES NOT CANCEL LICENSEE’S SUBSCRIPTION AS SET FORTH IN THIS SECTION 5 OR DISABLES THE SOFTWARE’S AUTO-RENEWAL FEATURE(S), LICENSEE’S SUBSCRIPTION WILL BE AUTOMATICALLY EXTENDED FOR SUCCESSIVE RENEWAL PERIODS OF THE SAME DURATION AS THE SUBSCRIPTION TERM ORIGINALLY SELECTED (FOR EXAMPLE, UNLESS LICENSEE CANCELS, A ONE MONTH SUBSCRIPTION WILL AUTOMATICALLY RENEW ON A MONTHLY BASIS). UNLESS OTHERWISE INDICATED IN ANY APPLICABLE ADDITIONAL TERMS OR COMMUNICATIONS COMPANY SENDS TO LICENSEE’S REGISTERED EMAIL ADDRESS, SUCH RENEWAL WILL BE AT THE SAME SUBSCRIPTION FEE AS WHEN LICENSEE FIRST SUBSCRIBED, PLUS ANY APPLICABLE TAXES, UNLESS COMPANY NOTIFIES LICENSEE AT LEAST 10 DAYS PRIOR TO THE END OF LICENSEE’S CURRENT TERM THAT THE SUBSCRIPTION FEE WILL INCREASE. LICENSEE ACKNOWLEDGES AND AGREES THAT LICENSEES PAYMENT METHOD WILL BE AUTOMATICALLY CHARGED FOR SUCH SUBSCRIPTION FEES, PLUS ANY APPLICABLE TAXES, UPON EACH SUCH AUTOMATIC RENEWAL. LICENSEE ACKNOWLEDGES THAT LICENSEE’S SUBSCRIPTION IS SUBJECT TO AUTOMATIC RENEWALS AND LICENSEE CONSENTS TO AND ACCEPTS RESPONSIBILITY FOR ALL RECURRING CHARGES TO LICENSEE’S CREDIT OR DEBIT CARD (OR OTHER PAYMENT METHOD, AS APPLICABLE) BASED ON THIS AUTOMATIC RENEWAL FEATURE WITHOUT FURTHER AUTHORIZATION FROM LICENSEE AND WITHOUT FURTHER NOTICE EXCEPT AS REQUIRED BY LAW. LICENSEE FURTHER ACKNOWLEDGES THAT THE AMOUNT OF THE RECURRING CHARGE MAY CHANGE IF THE APPLICABLE TAX RATES CHANGE OR IF LICENSEE IS NOTIFIED THAT THERE WILL BE AN INCREASE IN THE APPLICABLE SUBSCRIPTION FEES.
Cancellation of Free Trial / Subscription. TO CHANGE OR CANCEL LICENSEE’S FREE TRIAL OR SUBSCRIPTION AT ANY TIME, LICENSEE MAY GO TO THE “ACCOUNT” PAGE AFTER LOGGING INTO THE SOFTWARE AND DISABLE THE SUBSCRIPTION AUTO-RENEW FEATURE. IN THE EVENT THAT LICENSEE DOES NOT CANCEL ITS FREE TRIAL, LICENSEE WILL BE CHARGED FOR THE PURCHASED SUBSCRIPTION TERM. THEREAFTER, LICENSEE’S SUBSCRIPTION BENEFITS WILL CONTINUE UNTIL THE END OF LICENSEE’S THEN-CURRENT SUBSCRIPTION TERM, BUT LICENSEE’S SUBSCRIPTION WILL NOT BE RENEWED AFTER THAT TERM EXPIRES. LICENSEE WILL NOT BE ENTITLED TO A PRORATED REFUND OF ANY PORTION OF THE SUBSCRIPTION FEES PAID FOR THE THEN-CURRENT SUBSCRIPTION TERM, EXCEPT AS REQUIRED BY APPLICABLE LAW.
Current Billing Information Required. Licensee agrees to provide current, complete, and accurate billing information and agree to promptly update all such information (such as changes in billing address, credit card number, or credit card expiration date) as necessary for the processing of all payments that are due to Licensor. Licensee agrees to promptly notify Licensor if Licensee’s Payment Method is canceled (for example, due to loss or theft) or if Licensee becomes aware of a potential breach of security related to Licensee’s Payment Method. If Licensee fails to provide any of the foregoing information, Licensee acknowledges that Licensee’s current Payment Method may continue to be charged for Paid Content and that Licensee will remain responsible for all such charges.
Change in Amount Authorized. If the total amount to be charged varies from the amount Licensee authorized when purchasing any Paid Content (other than due to the imposition or change in the amount of taxes, including without limitation sales and use taxes, duties or other governmental taxes or fees), Licensor will provide notice of the amount to be charged and the date of the charge at least 10 days before the scheduled date of the transaction. If Licensee does not cancel its Paid Content before the increased price goes into effect, Licensee agrees to pay the increased price for the Paid Content. Licensee agrees that Licensor may accumulate charges incurred and submit them as one or more aggregate charge during or at the end of each billing cycle. Licensor will inform Licensee of any additional charges which are accumulated.
Payment Processors. Ordering services through the Platform involves utilizing the secured server of a payment processing service provider (“PSP,” e.g., Stripe, Apple). Neither PSP nor any person or company related to PSP holds any ownership interest in the Platform or Licensor, nor receives any financial benefit from the Platform or Licensor other than a fee paid by Licensor to PSP for the services performed by PSP. Licensor makes absolutely no representations and/or warranties, and provides no assurances, regarding the PSP, the PSP owner, or the quality, availability, legality, or description of the payment processing services offered thereon. COMPANY EXPRESSLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE PSP AND/OR THE SERVICES OFFERED THEREON.
Platform Prohibitions. Licensee agrees that it may NOT: (i) use the Platform or any content or information available through the Platform for any unauthorized purpose; (ii) interfere with or damage the Platform including, without limitation, through the use of viruses, spyware, malware, harmful code, flood pings, denial of service attacks, packet or IP spoofing, forged routing, or methods that in any way reproduce or circumvent the navigational structure or presentation of the Platform; (iii) use the Platform to collect, store, or distribute any information about any other person; (iv) use to Platform to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third-party privacy rights; (v) use the Platform to impersonate any person, company, or entity; (vi) modify, sublicense, assign, give, transfer, translate, sell, resell, reverse engineer, decipher, decompile, or otherwise disassemble any content or information available through the Platform or any software components used on or for the Platform;(vii) attempt to gain unauthorized access to the Platform or its related systems or networks; (viii) use any third-party software to collect information from or through the Platform; (ix) distribute, re-distribute, or permit transfer of the Platform or content or information available through the Platform in violation of any export or import law and/or regulation or restriction of the United States of America and its agencies or authorities, or without all required approvals, licenses or exemptions; (x) disseminate, store, or transmit unsolicited messages, chain letters, or unsolicited commercial e-mail; (xi) to disseminate, store, or transmit files, graphics, software or other material that actually, impliedly, or potentially infringes the copyright, trademark, patent, trade secret, trade name or other intellectual property right of any person, entity, partnership, organization, association or otherwise; (xii) adapt, translate, or create any derivative works of the Platform or merge the Platform into any other software; or (xiii) assist any third-party in doing any of the foregoing.
Security of Licensee’s System. Licensee shall be solely responsible for the security, confidentiality, and integrity of all content that Licensee receives, transmits through or stores via the Platform or on any computer, mobile device, or related equipment that is used to access the Platform.
Term and Termination. This EULA remains effective from the moment Licensee accesses, activates, uses, and/or installs the Platform until terminated. This EULA will terminate automatically without notice from the Licensor if Licensee fails to comply with any provision of this EULA. Licensee may terminate this EULA for any reason by uninstalling the Platform. Licensor reserves the right, in its sole discretion and without prior notice to Licensee, at any time and for any reason, to: (i) remove or disable access to all or any portion of the Platform; (ii) suspend Licensee’s access to or use of all or any portion of the Platform; and (iii) terminate this EULA. Upon termination, Licensee shall destroy, remove, and/or uninstall all copies of the Platform.
Links.The Platform may contain links to other Internet sites and resources, and Licensee hereby acknowledges and agrees that: (i) Licensor shall not be responsible for the availability of such external sites or resources; and (ii) Licensor does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such websites or resources. Licensee agrees that Licensor shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of, or reliance upon, any such content, goods or services available on or through any such website or resource.
Licensor, its affiliates, subsidiaries, officers, directors, employees, agents, licensors, successors, or assigns (“Licensor Parties”) shall not be liable for any direct, indirect, incidental, special, consequential, or exemplary damages arising from or relating to: (i) the Platform’s availability; (ii) the acts, omissions, or conduct of any LICENSEE or third-party, whether online or offline; (iii) any Platform content; (iv) any goods or services acquired as a result of any information obtained or transactions entered into through the Platform; or (v) any use of goods or services made available on any internet resource or webpage linked to the Platform. The Licensor Parties shall not be held responsible for technical malfunctions of any telephone system, cellular network, cable system, computer equipment, server, provider, or software. The Licensor Parties shall not be held responsible for any injury or damage to Licensee’s computer or equipment resulting from use of the SOFTWARE including, but not limited to, web page viewing, file downloading or streaming, server use or access, or following SOFTWARE links. Licensee accesses the SOFTWARE at his/her own risk and is singularly responsible for any loss, damage, or costs incurred during such activity. The Licensor Parties shall not be responsible for any incorrect or inaccurate content posted on or received from the SOFTWARE, regardless of the cause of such inaccuracy. The Licensor Parties shall not be responsible for any conduct of any Licensee of the SOFTWARE. The Licensor Parties shall not be responsible for any error, omission, interruption, deletion, defect, operational delay, communication line failure, or theft, breach, destruction, or alteration of Licensee’s communication. No data or information obtained from the Licensor Parties shall create any warranty.
The Licensor Parties’ ENTIRE LIABILITY AND THE LICENSEE’S EXCLUSIVE REMEDY SHALL BE, AT THE LICENSOR’S DISCRETION, EITHER: (I) RETURN OF THE TOTAL FEES PAID BY LICENSEE TO LICENSOR HEREUNDER; (II) REPLACEMENT OF THE SOFTWARE; OR (Iii) LICENSEE DISCONTINUING THE ACCESS, USE, AND/OR INSTALLATION OF THE SOFTWARE. Under no circumstances shall the licensor parties’ entire liability exceed the total fees paid by licensee to licensor hereunder.
Licensee’s access or use of any third-party internet resource linked to or from the SOFTWARE, or Licensee’s use of goods or services from third-party internet resources linked to or from the SOFTWARE, is made at Licensee’s own risk. Licensee hereby releases the Licensor Parties from any damages Licensee suffers from Licensee’s access to third-party internet resources, and Licensee agrees not to make any claims against the Licensor Parties arising from any purchase or acquisition of goods and services made available through the SOFTWARE or through third-party internet resources.
The Licensor Parties shall not be liable for any damages resulting from the failure, by any party, to protect Licensee passwords or account information. The Licensor Parties shall not be liable for any failure or performance delay under the EULA due to circumstances beyond the Licensor Parties’ control including, but not limited to, natural catastrophes, governmental acts, laws or regulations, terrorism, labor strikes or difficulties, communication system interruptions, hardware or software failures, transportation interruptions, or any inability to acquire materials or supplies. THE LICENSOR PARTIES SHALL NOT BE LIABLE FOR ANY ILLEGAL, ABUSIVE, OR OTHERWISE INAPPROPRIATE ACTIVITY PERFORMED BY LICENSEE. THE LICENSOR PARTIES SHALL NOT BE LIABLE FOR COMPLIANCE OR LACK THEREOF BY ANY THIRD-PARTY VENDORS WITH RESPECT TO ANY APPLICABLE LAWS AND REGULATIONS.
Indemnification. Licensee agrees to defend the Licensor Parties against any and all claims, demands and/or actions and indemnify and hold the Licensor Parties harmless from and against any and all losses, damages, costs and expenses (including reasonable attorney’s fees), arising out of or relating to: (i) any Licensee breach of any provision of this EULA and/or any representation or warranty identified herein; (ii) Licensee’s use of the Platform, including any data or information transmitted or received by Licensee; (iii) any unacceptable use of the Platform, including, without limitation, any statement, data or content made, transmitted, or republished by Licensee which is prohibited as unacceptable in Section 6; or (iv) any expenses Licensor incurs in enforcing this Section including, without limitation, reasonable attorney’s fees and costs. Licensor reserves the right to assume, at Licensee’s expense, the exclusive defense and control of any claims or actions and all negotiations for settlement or compromise.
Take-Down Requests, DMCA. Licensor expressly prohibits users from uploading, posting, or otherwise distributing through the Platform any content which may violate another party’s privacy, publicity, intellectual property, or other rights. If any Licensee believes any Platform content violates or otherwise infringes upon any of Licensee’s rights, Licensee is encouraged to contact Licensor immediately to request that the allegedly offending content (“Offending Content”) to be removed from the Platform. To make such a request (“Take-Down Request”), Licensee should provide Licensor’s designated agent, listed below, with:
the identity of the Offending Content in sufficient detail such that it can be readily located (e.g., “The photograph of available at https://www.elementa.com/item123.jpg”);
Licensee’s name, mailing address, email address, and telephone number; and
the name, user id, email, telephone phone number, and mailing address of the person Licensee believes posted the Offending Content (as available).
In accordance with the Digital Millennium Copyright Act (“DMCA”), Licensor has designated a Copyright Agent who is charged with receiving notification of alleged copyright violations, and may accept notification of other offending Platform content. If Licensee believes in good faith that material appearing on this website infringes its copyright, provide notification, pursuant to 17 U.S.C. s 512(c)(3)(A), to our Copyright Agent at:
AU LLC - Copyright Agent
564 W. Randolph St. 2nd Floor
Chicago, IL 60661
Tel: (312) 715-7312
Fax: (312) 646-2501
Similarly, the DMCA provides that if one, in good faith, believe that a notice of copyright infringement has been wrongfully filed against him, he may send to our Copyright Agent a counter notice, subject to the requirements set forth in 17 U.S.C. s 512(g)(3).
Lastly, it should be noted that individuals making misrepresentations made in alleging that material appearing on this website constitutes copyright infringement may be liable for damages pursuant to 17 U.S.C. s 512(f). Licensor will process proper Take-Down Requests, will promptly remove or disable access to any offensive or infringing content, and will terminate the accounts of repeat infringers.
Dispute Resolution Protocol.
Controlling Law and Jurisdiction. This EULA will be interpreted in accordance with the laws of the State of New York and the United States of America, without regard to its conflict-of-law provisions. Licensee and Licensor agree to submit to the personal jurisdiction of the state and federal courts located within New York County, New York, for any actions for which the Parties retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights, as set forth in the Dispute Resolution provision below.
Negotiations. In the event any dispute arises except those disputes the involving actual or threatened infringement, misappropriation, or violation of a party’s Intellectual Property Rights, Licensee and Licensor agree to first attempt to negotiate the resolution any dispute, informally for at least thirty (30) days before initiating any arbitration or court proceeding.
Other parties. Licensee accept that, as a limited liability company, Licensor has an interest in limiting the personal liability of its officers and employees. Licensee agrees that it will not bring any claim personally against Licensor’s officers or employees in respect of any losses Licensee suffers in connection with the Platform. Without prejudice to the foregoing, Licensee agree that the limitations of warranties and liability set out in this EULA will protect Licensor’s officers, employees, agents, subsidiaries, successors, assigns, and sub-contractors as well as Licensor.
Binding Arbitration. All claims arising from use of the Platform (except those disputes the involving actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights) will be finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party will be final and binding on the other. Licensee understands that if either party elects to arbitrate, neither party will have the right to sue in court or have a jury trial. The arbitration will be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes both of which are available at the AAA website http://www.adr.org. The Parties will submit briefs of no more than 10 pages and the arbitration hearing will be limited to two (2) days maximum. The arbitrator will apply New York law. Unless otherwise agreed by the Parties, arbitration will take place in New York, New York. Licensee’s arbitration fees and Licensee’s share of arbitrator compensation will be governed by the AAA Rules and, where appropriate, limited by the AAA Consumer Rules. If Licensee’s claim for damages does not exceed $10,000, Licensor will pay Licensee’s share of fees unless the arbitrator finds that either the substance of Licensee’s claim or the relief sought was frivolous or brought for an improper purpose as determined pursuant to Federal Rule of Civil Procedure 11(b). The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing. The arbitrator must follow New York law and any award may be challenged if the arbitrator fails to do so. The Parties may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
WAIVER OF RIGHT TO BE A PLAINTIFF OR CLASS MEMBER. LICENSEE AND LICENSOR AGREE THAT ANY ARBITRATION WILL BE LIMITED TO THE DISPUTE BETWEEN LICENSOR AND LICENSEE INDIVIDUALLY. LICENSEE ACKNOWLEDGES AND AGREES THAT LICENSEE AND LICENSOR ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE LICENSEE’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF ANY CLASS OR REPRESENTATIVE PROCEEDING.
Waiver; Remedies Cumulative. To the maximum extent permitted by applicable law: (i) no claim or right arising out of this EULA or any of the documents referred to in this EULA can be discharged by a Party, in whole or in Part, by a waiver or renunciation of the claim or right unless in writing signed by such Party; (ii) no waiver that may be given by a Party will be applicable except in the specific instance for which it is given; and (iii) no notice to or demand on one Party will be deemed to be a waiver of any obligation of that Party or of the right of the Party giving such notice or demand to take further action without notice or demand as provided in this EULA.
Entire Agreement and Modification. This EULA constitutes the complete and exclusive statement of the agreement between the Parties with respect to the Platform and supersedes any and all prior or contemporaneous communications, representations, statements and understandings, whether oral or written, between the Parties concerning the Platform.
Severability. If any provision of this EULA is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this EULA will remain in full force and effect. Any provision of this EULA held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.
Survival. Sections 5-6, 10-11, 13, and 15 shall survive the termination or expiration of this EULA.
OPEN SOURCE SOFTWARE. The Platform utilizes the following open source components the source code for which can be downloaded from the accompanying URLs:
Alamofire - https://github.com/Alamofire/Alamofire
AlamofireImage - https://github.com/Alamofire/AlamofireImage
AlamofireNetworkActivityIndicator - https://github.com/Alamofire/AlamofireNetworkActivityIndicator
SDWebImage - https://github.com/rs/SDWebImage
ObjectMapper - https://github.com/Hearst-DD/ObjectMapper
IQKeyboardManager - https://github.com/hackiftekhar/IQKeyboardManager
NSDate+TimeAgo - https://github.com/kevinlawler/NSDate-TimeAgo
UIScrollView-InfiniteScroll - https://github.com/pronebird/UIScrollView-InfiniteScroll
KeychainSwift - https://github.com/evgenyneu/keychain-swift
SVProgressHUD - https://github.com/SVProgressHUD/SVProgressHUD
UITextView+Placeholder - https://github.com/devxoul/UITextView-Placeholder
FBSDKLoginKit - https://github.com/facebook/facebook-ios-sdk
ImageSlideshow - https://github.com/zvonicek/ImageSlideshow
SwiftValidators - https://github.com/gkaimakas/SwiftValidators
Fabric - https://cocoapods.org/pods/Fabric (Not on GH)
Crashlytics - https://cocoapods.org/pods/Crashlytics (Not on GH)
SMPageControl - https://github.com/Spaceman-Labs/SMPageControl
Timberjack - https://github.com/andysmart/Timberjack
End User License Agreement © 2017 SeeBeNow Technologies, Inc.