Last updated: October 16, 2017
SPRINGBOARD VR ACI
End User License Agreement
This agreement between you (“Springboard Arcade Customer” or “you”) and Springboard Virtual Reality LLC d/b/a Springboard VR ("Springboard" or “we” or “us”), an Oklahoma limited liability corporation whose principal place of business is 3334 West Main Street #389, Norman, Oklahoma 73072 (“ License Agreement”) constitutes a binding agreement as of the date you accept this License Agreement.
In connection with use of Springboard Services, you will need to download one or more copies of the ACI software (defined below). This License Agreement is a license to use those downloaded copies, subject to the terms and conditions hereof and the Springboard VR Terms of Service. If your right to use the Services is terminated, this License Agreement and the license granted herein shall simultaneously terminate.
THIS IS A LEGALLY BINDING CONTRACT. BY ACCESSING OR USING THIS SERVICE OR BY INDICATING YOUR ACCEPTANCE OF THIS LICENSE AGREEMENT, YOU ACKNOWLEDGE AND REPRESENT THAT YOU HAVE READ THIS LICENSE AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS, AND THAT THE PERSON ACCEPTING THIS AGREEMENT ON YOUR BEHALF HAS BEEN AUTHORIZED TO DO SO. THE PERSON ACCEPTING THIS LICENSE AGREEMENT ON SPRINGBOARD ARCADE CUSTOMER’S BEHALF REPRESENTS THAT HE/SHE HAS THE AUTHORITY TO BIND SPRINGBOARD ARCADE CUSTOMER TO THESE TERMS. YOU ALSO REPRESENT AND WARRANT THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS CONTRACT AND ARE NOT PROHIBITED BY LAW FROM ACCESSING OR USING THIS SERVICE . YOU UNDERSTAND THAT THIS AGREEMENT CONTAINS AN ARBIRTRATION PROVISON CONTAINING A CLASS ACTION WAIVER.
SPRINGBOARD MAY MODIFY THIS LICENSE AGREEMENT AND THE SPRINGBOARD VR TERMS OF SERVICE FROM TIME TO TIME. YOU ARE FREE TO CHOOSE TO ACCEPT A MODIFIED VERSION OF THESE AGREEMENTS OR NOT, BUT ACCEPTING THESE AGREEMENTS, AS MODIFIED, IS REQUIRED FOR YOU TO CONTINUE USING THE SPRINGBOARD SERVICES AND ACI. YOU MAY HAVE TO “ACCEPT” OR “AGREE” TO SHOW YOUR ACCEPTANCE OF ANY MODIFIED VERSION OF THIS LICENSE AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF ANY MODIFIED VERSION OF THESE AGREEMENTS, YOU MUST TERMINATE YOUR USE OF THE SPRINGBOARD SERVICES AND ACI. EXCEPT AS OTHERWISE EXPRESSLY STATED, ANY USE OF THE SERVICES IS SUBJECT TO THE VERSION OF THESE AGREEMENTS IN EFFECT AT THE TIME OF USE.
- Definitions .
- "Arcade Customer Interface" or " ACI" means the downloadable software component for the Springboard VR launcher and its associated elements that is licensed from Springboard and made available by Springboard through the Service Software for use in connection with the Services at the Defined Location, including all new versions, updates, revisions, replacements, improvements and modifications of the foregoing.
- “Authorized User ” means each of the individuals authorized to use the Services on behalf of Springboard Arcade Customer and who is provided access to the Services by the Springboard Arcade Customer and for whom Springboard Arcade Customer creates a login through the Service Software for access. An Authorized User is one natural person.
- “Arcade User” means those individuals that are customers of Springboard Arcade Customer with whom Springboard Arcade Customer or its Authorized User make available the rendering of the ACI portion of the Services in order to provide such individuals with one or more virtual reality experiences or games for a limited duration.
- "Data" means any and all data, content, and information, in any form or medium, that is collected, downloaded, uploaded or otherwise received, directly or indirectly, from Springboard Arcade Customer, an Authorized User, or an Arcade User by or through the Services, including any data, content, and information derived or processed by the Services based on Springboard Arcade Customer’s, an Authorized User’s, or an Arcade User’s use of and access to the Services.
- “Defined Location” is a single physical location of Springboard Arcade Customer identified by Springboard Arcade Customer when it sets up its account with Springboard identifying the number of Stations for such location. (Note, if you have more than one physical location with which you wish to access and use the Services, you may do so and provide the applicable information for each Defined Location either at initial account set up or at a later date through the Services).
- "Documentation" means any explanatory materials, operating manuals, training materials, or other documents or materials, that Springboard provides or makes available to Springboard Arcade Customer in any form or medium and which describe the functionality, components, features or requirements of Service Software or ACI, including any aspect of installation, configuration, integration, operation, use, support or maintenance thereof.
- “Service Software” means the Springboard software application(s), including the “Arcade Administration Interface” (“AAI”), that provide the ability to administrate and manage virtual reality experiences or games for the Defined Location and all new versions, updates, revisions, improvements and modifications of the foregoing, that Springboard provides remote access to and use of as part of the Services.
- “Services” means the subscription or free trial to use Springboard’s Service Software via the Internet, the license to use Springboard’s ACI, and the license to use any Springboard Documentation or any Springboard Materials that Springboard makes available to Springboard Arcade Customer or Authorized Users of Springboard Arcade Customer in connection with the Springboard VR Terms of Service between Springboard Arcade Customer and Springboard
- Springboard Materials ” means the Service Software, Documentation, ACI, Springboard Systems, and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technology and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Springboard in connection with the Services or otherwise comprise or relate to the Services or Springboard Systems. Springboard Materials include any Data collected or derived from Springboard’s monitoring of Springboard Arcade Customer’s, Authorized Users’, or Arcade Users’ access to or use of the Services.
- "Springboard Systems" means the information technology infrastructure used by or on behalf of Springboard in performing the Services, including all computers, software, hardware, database, electronic systems (including database management systems) and networks, whether operated directly by Springboard or through the use of third-party services.
- “Station” means the game station that Springboard Arcade Customer makes available to its Arcade Users that consists of a single computer and one or more virtual reality headsets.
- "Term" means the time duration for which you have access to the Services as part of the Springboard VR Terms of Service.
- “Third-Party Materials” means materials and information, in any form or medium, including any software, advertisements, documents, data, content, specifications, products, games, equipment or components that are used in conjunction with, or of or relating to the Services, or use thereof that are not owned or proprietary to Springboard. For the avoidance of doubt, Third-Party Materials include any games Springboard Arcade Customer licenses or otherwise obtains from game developers, software components obtained or licensed separately by Springboard Arcade Customer, e.g., the SteamVR® provided by Valve Corporation, and any accounts or other licenses Springboard Arcade Customer makes or obtains in connection with any third-party for use in connection with the Services.
- ACI License Grant .
- Access to Service Software. Subject to and conditioned on your compliance with the terms and conditions of the Springboard VR Terms of Service and this License Agreement, as such may be updated from time to time, Springboard grants Springboard Arcade Customer a personal, non-exclusive, non-transferable, non-sublicenseable, limited right to download and use the permitted number of copies of the ACI during the Term solely for Springboard Arcade Customer’s legitimate, day-to-day, internal business purposes of managing its own VR arcades. The permitted number of copies shall be a single copy of the ACI for each computer associated with each Station during the Term in such quantities as Springboard Arcade Customer sets forth upon initial registration or such quantities as Springboard Arcade Customer may adjust in the AAI, solely for Springboard Arcade Customer’s legitimate, day-to-day, internal business purposes of managing its own VR arcades. For the avoidance of doubt, this license allows Springboard Arcade Customer and its Authorized Users to make available the visual rendering of the ACI portion of the Services in the customer headset to its Arcade Users.
- Your Responsibilities and Acknowledgements .
3.2. Restrictions. You shall not permit any other person (who is not an Authorized User) to access or use the Springboard Materials except as expressly permitted by this License Agreement. For clarity and without limiting the generality of the foregoing, you shall not, except as this License Agreement expressly permits: (a) sell, distribute, lease, lend, market, license, sublicense, or otherwise grant to any person or entity any right to use the Services or Springboard Materials; (b) decompile, disassemble, reverse-engineer, modify, adapt, tamper with, translate, create derivative works, create or recreate the source code for any part of the Services or Springboard Materials, in whole or in part; (c) modify, remove, erase, obscure, tamper with or fail to preserve any copyright or product identification, trademark, trade name, proprietary rights notices, seal, or instructional label printed or stamped on, affixed to, or encoded or recorded in or on the Services or Springboard Materials, including any copy thereof; (d) bypass or breach any security device or protection used by the Services or Springboard Materials or access or use the Services or Springboard Materials other than by an Authorized User through the use of his or her own then valid access credentials; (e) input, upload, transmit or otherwise provide to or through the Services or Springboard Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any malicious, disruptive, or harmful code; (f) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, Springboard’s Systems or Springboard’s provision of services to any third party, in whole or in part; (g) access or use the Services or Springboard Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other Springboard customer), or that violates any applicable law; (h) access or use the Services or Springboard Materials for purposes of competitive analysis of the Services or Springboard Materials, the development, provision or use of a competing software service or product or any other purpose that is to the Springboard’s detriment or commercial disadvantage; or (i) otherwise access or use the Services or Springboard Materials beyond the scope of the authorization granted under Section 2. Authorized Users are not allowed to share account or login credentials,
3.4. As between Springboard and you, your sole remedy with respect to such Third-Party Materials and services shall be with the third-party provider.
3.5. Password; Security. Springboard Arcade Customer and its Authorized Users are responsible for maintaining the confidentiality of all access credentials, including logins and passwords, and for ensuring that each and all access credentials are used only by the applicable Springboard Arcade Customer and Authorized User. You are responsible for any and all activities that occur under your access credentials to the extent such activities are not performed or caused by Springboard, its agents or employees. You shall promptly notify Springboard of any unauthorized use of your account, the Services, or any other breach of security known to you. You shall treat any Springboard Materials made available to you with the same degree of care with which you treat your own confidential information, and in no case less than a reasonable degree of care, and you shall take all reasonable precautions to protect the confidentiality of such Springboard Materials made available to you. Springboard shall have not liability for any loss or damage to you in any form arising from your failure to comply with these requirements.
4. Proprietary Rights and Other Licenses.
4.1. Reservation of Rights. This License Agreement does not convey to you title or ownership of the Services or any Springboard Materials, but only a right of limited use in accordance with the terms of this License Agreement. Springboard reserves all rights, title, and interest in and to the Services, Springboard Materials, including all related intellectual property rights and proprietary rights therein.
4.2. Feedback. For any feedback that you provide to Springboard all right, title, and interest in and to, and the right to pursue protection for, such feedback, including any suggestions, recommendations, corrections, improvements, enhancements, and modifications (collectively “Improvements”) to any of the Services, or relating to Springboard, or the Springboard Materials shall vest solely with Springboard, and you agree to assign and do hereby assign all such Improvements to Springboard without any additional consideration or contribution or acknowledgement.
4.3. Use of Your Name and Statements. You grant Springboard a fully-paid, perpetual, transferable worldwide license to use your name, likeness, voice, image, trademark, service mark, and logo (as applicable) and any statements or quotes of you for promotion, trade, commercial, advertising, and publicity purposes, in any and all media now known or hereafter discovered without notice, review or approval and without additional compensation.
4.4. Use of Data. You grant Springboard a fully paid, perpetual, transferable worldwide license to generate, publish and otherwise utilize aggregate and/or anonymized information about any Data relating to you as a result of your use of the Services or Springboard Materials.
5.1. You agree to maintain the confidentiality of Springboard’s Confidential Information. For purposes of this License Agreement, the term “Confidential Information” means all portions of the Services and any content therein, including the Springboard Materials, and any other trade secrets, know-how, business operations, processes, software, plans, strategies, and customers that are not public or portions that are permitted to be made available to the Arcade User through grant of the limited license in Section 2.2. You acknowledge and agree that a breach of any confidentiality or proprietary rights provision of this License Agreement may cause Springboard irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, Springboard will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
5.2. Title 18, § 1833(b) of the United States Code provides that “[a]n individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that: (A) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.” Accordingly, the parties have the right to disclose trade secrets as allowed by 18 U.S.C. § 1833(b) and nothing in this License Agreement is intended to conflict with or limit the immunity under 18 U.S.C. § 1833(b).
6.2. European Union Data Protection. If you are located in the European Union ("EU") or the European Economic Area ("EEA"), transfer of personal customer data outside of the EU or EEA is regulated by certain EU data protection laws. The EU Model Clauses are standardized contractual clauses used to ensure that personal data leaving the EEA will be transferred in compliance with these laws. Please be advised that Data, including personal customer data, may be transferred to, processed, maintained or stored on servers or databases by Springboard or third party service providers outside of the EU or EEA. Springboard agrees and you agree to the terms of the Data Processing Agreement attached hereto as Exhibit A, which includes the EU Model Clauses.
7. Disclaimers and Limitation of Liability.
7.1. DISCLAIMERS. SPRINGBOARD’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT WITH THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS AND THIRD-PARTY MATERIALS AND THIRD-PARTIES UTILIZED BY YOU AND SPRINBOARD IS NOT RESPONSIBLE FOR ANY LIMITATIONS, DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. YOUR USE OF THE SERVICES OR ANY ITEMS OBTAINED THROUGH THE SERVICES IS AT YOUR OWN RISK. EXCEPT FOR ANY WARRANTIES BY SPRINGBOARD EXPRESSLY PROVIDED IN THIS LICENSE AGREEMENT, THE SERVICES AND SPRINGBOARD MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OR STATEMENTS OF ANY KIND, EXPRESS OR IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER SPRINGBOARD NOR ANY PERSON ASSOCIATED WITH SPRINGBOARD MAKES ANY STATEMENT, WARRANTY, OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE SPRINGBOARD SERVICES OR SPRINGBOARD MATERIALS. WITHOUT LIMITING THE FOREGOING, NEITHER SPRINGBOARD OR ANY PERSON ASSOCIATED WITH SPRINGBOARD MAKES ANY STATEMENT, WARRANTY, OR REPRESENTATION THAT THE FEATURES AND FUNCTIONS CONTAINED IN THE SPRINGBOARD SERVICES OR SPRINGBOARD MATERIALS WILL MEET YOUR SPECIFIC REQUIREMENTS OR EXPECTATIONS OR THAT THE OPERATION OF THE SPRINGBOARD SERVICES OR USE OF THE SPRINGBOARD MATERIALS WILL BE UNINTERRUPTED OR ERROR FREE OR INTEROPERABLE OR COMPATIBLE WITH OTHER SOFTWARE OR SERVICES, THAT DEFECTS WILL BE CORRECTED, THAT THE SPRINGBOARD SERVICES OR SPRINGBOARD MATERIALS WILL BE UPDATED, UPGRADED OR IMPROVED, THAT THE SPRINGBOARD SERVICES, SPRINGBOARD MATERIALS, OR SPRINGBOARD SYSTEMS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. SPRINGBOARD HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE, TITLE, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. NO VERBAL OR WRITTEN REPRESENTATIONS, INFORMATION OR ADVICE GIVEN BY SPRINGBOARD OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY EXPRESS WARRANTIES MADE BY SPRINGBOARD IN THIS LICENSE AGREEMENT.
7.2. LIMITATION OF LIABILITY. IN NO EVENT WILL SPRINGBOARD, OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS, OR EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE UNDER OR IN CONNECTION WITH THIS LICENSE AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY DAMAGES WHATSOEVER, INCLUDING: (A) LOSS OF PRODUCTION, USE, BUSINESS, INCOME, REVENUE, PROFIT, OR DIMINUTION IN VALUE; (B) IMPAIRMENT, INABILITY TO USE, LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (C) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (D) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES (INCLUDING SUCH LOSSES IDENTIFIED IN (A) – (C) OF THIS PROVISION TO THE EXTENT THOSE LOSSES OR PORTIONS THEREOF ARE NOT DIRECT LOSSES), REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. YOU SHALL BE RESPONSIBLE FOR ALL CLAIMS AND DAMAGES RESULTING FROM THE MISUSE OF THE SERVICES BY YOU OR YOUR ARCADE USERS. SPRINGBOARD’S AGGREGATE COLLECTIVE LIABILITY IS THAT AS SET FORTH IN THE SPRINGBOARD VR TERMS OF SERVICE BETWEEN SPRINGBOARD ARCADE CUSTOMER AND SPRINGBOARD.
8. Representations and Warranties . Springboard Arcade Customer represents and warrants that it will perform its obligations in this License Agreement in compliance with all applicable laws, directives, and regulations, including, without limitation, privacy and data protection laws, directives, and regulations such as the CAN-SPAM Act of 2003, the Telephone Consumer Protection Act of 1991 (“TCPA”), the Telemarketing Consumer Fraud and Prevention Act (“TCFP Act”), the FTC and FCC rules and regulations implementing the TCPA and TCFP Act, Canada Anti Spam Law (CASL), and Personal Information Protection and Electronic Documents Act (PIPEDA) (collectively, “Applicable Laws”). Without in anyway limiting the foregoing, Springboard Arcade Customer represents and warrants that it will process all opt out and unsubscribe requests, and collect, use, transfer, and disclose all personal data, from users in compliance with Applicable Laws. You also agree to indemnify, defend, and hold Springboard harmless from any and all claims, costs, proceedings, demands, losses, damages, fines, and expenses (including, without limitation, reasonable attorney’s fees and legal costs, which will be reimbursed as incurred) of any kind or nature, arising from or relating to, any actual or alleged failure to comply with the foregoing representations and warranties.
9. Termi nation.
9.1. We may terminate your access to the Services and the Springboard Materials at any time without notice. This License Agreement will terminate if we find that you have violated any of the terms of this License Agreement.
9.2. Effect of Expiration or Termination. Upon any expiration or termination of this License Agreement, you shall immediately cease all use of any Services, including discontinue use and access of the Service Software and use of the ACI. Springboard, in its sole discretion, may disable all your access to the Services or delete all Data associated with you and Arcade Customers, if any.
10. Successors and Assigns. You shall not assign or delegate any of its rights or obligations under this License Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise (including a change in control involving more than 50% of your voting stock or equity) without the prior written consent of Springboard. Any purported assignment, delegation or transfer in violation of this Section 8 is void. Springboard may freely assign and delegate its rights and obligations under this License Agreement without notice to you. This License Agreement is binding upon the parties hereto and their respective representatives, successors, and permitted assigns.
11. Force Majeure. In no event will Springboard be liable or responsible to you, or be deemed to have defaulted under or breached this License Agreement, for any failure or delay in fulfilling or performing any term of this License Agreement when and to the extent such failure or delay is caused by any circumstances beyond Springboard's reasonable control (a "Force Majeure Event"), including service interruptions by third-party providers, denial of service attacks, acts of God, war, riot, fires, floods, epidemics, or failure of public utilities or public transportation systems, or national or regional shortage of adequate power or telecommunications systems. Springboard may terminate this License Agreement or the Services if a Force Majeure Event continues substantially uninterrupted for a period of 30 days or more.
12. Interpretation. For purposes of this License 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; and (c) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to this License Agreement as a whole. The parties intend this License 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 headings in this License Agreement are for reference only and do not affect the interpretation of this License Agreement.
13. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this License Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this License Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this License Agreement shall not be affected and will continue in full force and effect.
14. Governing Law and Venue. This License Agreement shall be governed and interpreted by the laws of the State of Oklahoma without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Oklahoma. Any legal suit, action or proceeding arising out of or related to this License
Agreement or the licenses granted hereunder shall be instituted in the federal courts of the United States or the courts of the State of Oklahoma in each case located in the city of Oklahoma City and County of Oklahoma, and each party hereto irrevocably submits to the jurisdiction of such courts in any such suit, action or proceeding.
15. Export Regulations. Springboard is subject to regulation by the agencies of the U.S. Government, including the U.S. Department of Commerce and State, which prohibit export or diversion of certain technological products to certain countries. Springboard Arcade Customer shall comply in all respects with all applicable export and re-export restrictions and not permit anyone to use or access the Services in a U.S. embargoed country or in violation of any U.S. export law or regulation. You also agree to indemnify, defend, and hold Springboard harmless from any loss, damages, liability, or expenses incurred by Springboard as a result of your failure to comply with any export regulations or restrictions.
17.1. Waiver. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this License Agreement, no failure to exercise or delay in exercising any rights, remedies, powers, or privileges arising from this License Agreement shall operate or be construed as a waiver thereof; nor shall 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.
18. Survival. All provisions relating to Springboard’s proprietary rights, confidentiality, disclaimer of warranties, limitation of liability, indemnification, and any other provisions of the License Agreement expressly stated to survive or which by their nature, extend beyond the expiration or termination of this License Agreement, including, Sections 4 and 8-16, shall survive the expiration or termination of this License Agreement.
19. Arbitrary Agreement and Jury Trial Waiver, Class Action Waiver, and Forum Selection Clause. If you are a resident of the United States (including its possessions and territories), you agree that any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and Springboard or its successors or assigns shall exclusively be settled through binding and confidential arbitration. Arbitration shall be subject to the Federal Arbitration Act and not any state or provincial/territorial arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively, the “Rules and Procedures”). In the case of arbitration and where permitted by law, you are thus agreeing to give up your right to go to court to assert or defend your rights your rights will be determined by a neutral arbitrator and not a judge or jury. You are entitled to a fair hearing, but the arbitration procedures are simpler and more limited than rules applicable in court. Arbitrator decisions are as enforceable as any court order and are subject to very limited review by a court. In the case of arbitration and where permitted by law, you and Springboard must abide by the following rules: (1) ANY CLAIMS BROUGHT BY YOU OR SPRINGBOARD MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (3) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, Springboard will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (4) Springboard also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (5) the arbitrator shall honor claims of privilege and privacy recognized at law; (6) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (7) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (8) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and, in such instance, the fees and costs awarded shall be determined by the applicable law. Notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in Oklahoma in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within Oklahoma for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate. If any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting part was not contained herein. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court located in Oklahoma.
20. For more information on AAA, the Rules and Procedures, or the process for filing an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
DATA PROCESSING AGREEMENT
This Data Processing Agreement, which includes the EU Model Clauses is an integral part of the End User Licensing Agreement ("License Agreement") between Springboard Arcade Customer ("Springboard Arcade Customer" or "you" or "data exporter") and SpringboardVR ("Springboard" or "we" or "us" or "data importer"), (each a "party" and collectively the "parties") and is made effective on the date on which the Springboard Arcade Customer accepted the License Agreement.
The mutual agreement by Springboard and Springboard Arcade Customer to the terms of this Data Processing Agreement is evidenced by (i) Springboard Arcade Customer's online acceptance of the License Agreement by a representative of Springboard Arcade Customer, and (ii) use of Springboard's Service Software and Services after an update to the License Agreement incorporating this Data Processing Agreement. Springboard Arcade Customer is responsible for compliance with the particular national requirements of its EU member state. You may be required to take additional steps for compliance including but not limited to notifying the data protection authority of transfers of data or notifying said authority of the existence of this Data Processing Agreement. Should you require a separately signed copy of the Data Processing Agreement, you must submit an online service request to Springboard customer support.
Data, including personal customer data, may be transferred to, processed, maintained or stored on servers or databases by Springboard or third party service providers outside of the EU or EEA. Springboard agrees and you agree to the terms of the Data Processing Agreement as follows:
For the purposes of the clauses:
- “personal data”, “special categories of data/sensitive data”, “process/processing”, “controller”, “processor”, “data subject” and “supervisory authority/authority” shall have the same meaning as in Directive 95/46/EC of 24 October 1995 (whereby “the authority” shall mean the competent data protection authority in the territory in which the data exporter is established);
- “the data exporter” shall mean the controller who transfers the personal data;
- “the data importer” shall mean the controller who agrees to receive from the data exporter personal data for further processing in accordance with the terms of these clauses and who is not subject to a third country’s system ensuring adequate protection;
- “clauses” shall mean these contractual clauses, which are a free-standing document that does not incorporate commercial business terms established by the parties under separate commercial arrangements.
The details of the transfer (as well as the personal data covered) are specified in Annex B, which forms an integral part of the clauses.
- Obligations of the data exporter
The data exporter warrants and undertakes that:
- The personal data have been collected, processed and transferred in accordance with the laws applicable to the data exporter.
- It has used reasonable efforts to determine that the data importer is able to satisfy its legal obligations under these clauses.
- It will provide the data importer, when so requested, with copies of relevant data protection laws or references to them (where relevant, and not including legal advice) of the country in which the data exporter is established.
- It will respond to enquiries from data subjects and the authority concerning processing of the personal data by the data importer, unless the parties have agreed that the data importer will so respond, in which case the data exporter will still respond to the extent reasonably possible and with the information reasonably available to it if the data importer is unwilling or unable to respond. Responses will be made within a reasonable time.
- It will make available, upon request, a copy of the clauses to data subjects who are third party beneficiaries under clause III, unless the clauses contain confidential information, in which case it may remove such information. Where information is removed, the data exporter shall inform data subjects in writing of the reason for removal and of their right to draw the removal to the attention of the authority. However, the data exporter shall abide by a decision of the authority regarding access to the full text of the clauses by data subjects, as long as data subjects have agreed to respect the confidentiality of the confidential information removed. The data exporter shall also provide a copy of the clauses to the authority where required.
- Obligations of the data importer
The data importer warrants and undertakes that:
- It will have in place appropriate technical and organisational measures to protect the personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, and which provide a level of security appropriate to the risk represented by the processing and the nature of the data to be protected.
- It will have in place procedures so that any third party it authorises to have access to the personal data, including processors, will respect and maintain the confidentiality and security of the personal data. Any person acting under the authority of the data importer, including a data processor, shall be obligated to process the personal data only on instructions from the data importer. This provision does not apply to persons authorised or required by law or regulation to have access to the personal data.
- It has no reason to believe, at the time of entering into these clauses, in the existence of any local laws that would have a substantial adverse effect on the guarantees provided for under these clauses, and it will inform the data exporter (which will pass such notification on to the authority where required) if it becomes aware of any such laws.
- It will process the personal data for purposes described in Annex B, and has the legal authority to give the warranties and fulfil the undertakings set out in these clauses.
- It will identify to the data exporter a contact point within its organisation authorised to respond to enquiries concerning processing of the personal data, and will cooperate in good faith with the data exporter, the data subject and the authority concerning all such enquiries within a reasonable time. In case of legal dissolution of the data exporter, or if the parties have so agreed, the data importer will assume responsibility for compliance with the provisions of clause I(e).
- At the request of the data exporter, it will provide the data exporter with evidence of financial resources sufficient to fulfil its responsibilities under clause III (which may include insurance coverage).
- Upon reasonable request of the data exporter, it will submit its data processing facilities, data files and documentation needed for processing to reviewing, auditing and/or certifying by the data exporter (or any independent or impartial inspection agents or auditors, selected by the data exporter and not reasonably objected to by the data importer) to ascertain compliance with the warranties and undertakings in these clauses, with reasonable notice and during regular business hours. The request will be subject to any necessary consent or approval from a regulatory or supervisory authority within the country of the data importer, which consent or approval the data importer will attempt to obtain in a timely fashion.
- It will process the personal data, at its option, in accordance with:
- the data protection laws of the country in which the data exporter is established, or
- the relevant provisions of any Commission decision pursuant to Article 25(6) of Directive 95/46/EC, where the data importer complies with the relevant provisions of such an authorisation or decision and is based in a country to which such an authorisation or decision pertains, but is not covered by such authorisation or decision for the purposes of the transfer(s) of the personal data, or
- the data processing principles set forth in Annex A.
Data importer to indicate which option it selects: Annex A
Initials of data importer: Springboard VR;
- It will not disclose or transfer the personal data to a third party data controller located outside the European Economic Area (EEA) unless it notifies the data exporter about the transfer and
- the third party data controller processes the personal data in accordance with a Commission decision finding that a third country provides adequate protection, or
- the third party data controller becomes a signatory to these clauses or another data transfer agreement approved by a competent authority in the EU, or
- data subjects have been given the opportunity to object, after having been informed of the purposes of the transfer, the categories of recipients and the fact that the countries to which data is exported may have different data protection standards, or
- with regard to onward transfers of sensitive data, data subjects have given their unambiguous consent to the onward transfer
- Liability and third party rights
- Each party shall be liable to the other parties for damages it causes by any breach of these clauses. Liability as between the parties is limited to actual damage suffered. Punitive damages (i.e. damages intended to punish a party for its outrageous conduct) are specifically excluded. Each party shall be liable to data subjects for damages it causes by any breach of third party rights under these clauses. This does not affect the liability of the data exporter under its data protection law.
- The parties agree that a data subject shall have the right to enforce as a third party beneficiary this clause and clauses I(b), I(d), I(e), II(a), II(c), II(d), II(e), II(h), II(i), III(a), V, VI(d) and VII against the data importer or the data exporter, for their respective breach of their contractual obligations, with regard to his personal data, and accept jurisdiction for this purpose in the data exporter’s country of establishment. In cases involving allegations of breach by the data importer, the data subject must first request the data exporter to take appropriate action to enforce his rights against the data importer; if the data exporter does not take such action within a reasonable period (which under normal circumstances would be one month), the data subject may then enforce his rights against the data importer directly. A data subject is entitled to proceed directly against a data exporter that has failed to use reasonable efforts to determine that the data importer is able to satisfy its legal obligations under these clauses (the data exporter shall have the burden to prove that it took reasonable efforts).
- Law applicable to the clauses
These clauses shall be governed by the law of the country in which the data exporter is established, with the exception of the laws and regulations relating to processing of the personal data by the data importer under clause II(h), which shall apply only if so selected by the data importer under that clause.
- Resolution of disputes with data subjects or the authority
- In the event of a dispute or claim brought by a data subject or the authority concerning the processing of the personal data against either or both of the parties, the parties will inform each other about any such disputes or claims, and will cooperate with a view to settling them amicably in a timely fashion.
- The parties agree to respond to any generally available non-binding mediation procedure initiated by a data subject or by the authority. If they do participate in the proceedings, the parties may elect to do so remotely (such as by telephone or other electronic means). The parties also agree to consider participating in any other arbitration, mediation or other dispute resolution proceedings developed for data protection disputes.
- Each party shall abide by a decision of a competent court of the data exporter’s country of establishment or of the authority which is final and against which no further appeal is possible.
- In the event that the data importer is in breach of its obligations under these clauses, then the data exporter may temporarily suspend the transfer of personal data to the data importer until the breach is repaired or the contract is terminated.
- In the event that:
- the transfer of personal data to the data importer has been temporarily suspended by the data exporter for longer than one month pursuant to paragraph (a);
- compliance by the data importer with these clauses would put it in breach of its legal or regulatory obligations in the country of import;
- the data importer is in substantial or persistent breach of any warranties or undertakings given by it under these clauses;
- a final decision against which no further appeal is possible of a competent court of the data exporter’s country of establishment or of the authority rules that there has been a breach of the clauses by the data importer or the data exporter; or
- a petition is presented for the administration or winding up of the data importer, whether in its personal or business capacity, which petition is not dismissed within the applicable period for such dismissal under applicable law; a winding up order is made; a receiver is appointed over any of its assets; a trustee in bankruptcy is appointed, if the data importer is an individual; a company voluntary arrangement is commenced by it; or any equivalent event in any jurisdiction occurs
then the data exporter, without prejudice to any other rights which it may have against the data importer, shall be entitled to terminate these clauses, in which case the authority shall be informed where required. In cases covered by (i), (ii), or (iv) above the data importer may also terminate these clauses.
- Either party may terminate these clauses if (i) any Commission positive adequacy decision under Article 25(6) of Directive 95/46/EC (or any superseding text) is issued in relation to the country (or a sector thereof) to which the data is transferred and processed by the data importer, or (ii) Directive 95/46/EC (or any superseding text) becomes directly applicable in such country.
- The parties agree that the termination of these clauses at any time, in any circumstances and for whatever reason (except for termination under clause VI(c)) does not exempt them from the obligations and/or conditions under the clauses as regards the processing of the personal data transferred.
- Variation of these clauses
The parties may not modify these clauses except to update any information in Annex B, in which case they will inform the authority where required. This does not preclude the parties from adding additional commercial clauses where required.
- Description of the Transfer
The details of the transfer and of the personal data are specified in Annex B. The parties agree that Annex B may contain confidential business information which they will not disclose to third parties, except as required by law or in response to a competent regulatory or government agency, or as required under clause I(e). The parties may execute additional annexes to cover additional transfers, which will be submitted to the authority where required. Annex B may, in the alternative, be drafted to cover multiple transfers.
EXHIBIT A, ANNEX A
DATA PROCESSING PRINCIPLES
- Purpose limitation: Personal data may be processed and subsequently used or further communicated only for purposes described in Annex B or subsequently authorised by the data subject.
- Data quality and proportionality: Personal data must be accurate and, where necessary, kept up to date. The personal data must be adequate, relevant and not excessive in relation to the purposes for which they are transferred and further processed.
- Transparency: Data subjects must be provided with information necessary to ensure fair processing (such as information about the purposes of processing and about the transfer), unless such information has already been given by the data exporter.
- Security and confidentiality: Technical and organisational security measures must be taken by the data controller that are appropriate to the risks, such as against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, presented by the processing. Any person acting under the authority of the data controller, including a processor, must not process the data except on instructions from the data controller.
- Rights of access, rectification, deletion and objection: As provided in Article 12 of Directive 95/46/EC, data subjects must, whether directly or via a third party, be provided with the personal information about them that an organization holds, except for requests which are manifestly abusive, based on unreasonable intervals or their number or repetitive or systematic nature, or for which access need not be granted under the law of the country of the data exporter. Provided that the authority has given its prior approval, access need also not be granted when doing so would be likely to seriously harm the interests of the data importer or other organisations dealing with the data importer and such interests are not overridden by the interests for fundamental rights and freedoms of the data subject. The sources of the personal data need not be identified when this is not possible by reasonable efforts, or where the rights of persons other than the individual would be violated. Data subjects must be able to have the personal information about them rectified, amended, or deleted where it is inaccurate or processed against these principles. If there are compelling grounds to doubt the legitimacy of the request, the organisation may require further justifications before proceeding to rectification, amendment or deletion. Notification of any rectification, amendment or deletion to third parties to whom the data have been disclosed need not be made when this involves a disproportionate effort. A data subject must also be able to object to the processing of the personal data relating to him if there are compelling legitimate grounds relating to his particular situation. The burden of proof for any refusal rests on the data importer, and the data subject may always challenge a refusal before the authority.
- Sensitive data: The data importer shall take such additional measures (e.g. relating to security) as are necessary to protect such sensitive data in accordance with its obligations under clause II.
- Data used for marketing purposes: Where data are processed for the purposes of direct marketing, effective procedures should exist allowing the data subject at any time to “opt-out” from having his data used for such purposes.
- Automated decisions: For purposes hereof “automated decision” shall mean a decision by the data exporter or the data importer which produces legal effects concerning a data subject or significantly affects a data subject and which is based solely on automated processing of personal data intended to evaluate certain personal aspects relating to him, such as his performance at work, creditworthiness, reliability, conduct, etc. The data importer shall not make any automated decisions concerning data subjects, except when:
a) i. such decisions are made by the data importer in entering into or performing a contract with the data subject, and
ii. the data subject is given an opportunity to discuss the results of a relevant automated decision with a representative of the parties making such decision or otherwise to make representations to that parties.
b) where otherwise provided by the law of the data exporter.
EXHIBIT A, ANNEX B
DESCRIPTION OF THE TRANSFER
The personal data transferred concern the following categories of data subjects:
Springboard Arcade Customer and prospective Springboard Arcade Customers, and their authorized users, customers, employees, contractors, or agents (collectively “users”).
Purposes of the transfer(s)
Transfers are made for the following purposes:
- to provide access to the Site features and Services;
- to gain a better understanding of our Springboard Arcade Customers, their authorized users, and Arcade customers, and their usage pattern as a whole;
- to streamline the onboarding process and use of the Services, including auto-populating fields with information;
- to fulfill requests, including, but not limited to:
- making reservations
- paying for services
- processing e-commerce transactions
- making game recommendations
- to communicate via direct dial, autodialed and prerecorded message calls, and electronic messages, including email, text messages or mobile push notifications about:
- use of our Site, Services, products and/or functionality
- accounts, settings, support and administration
- reservations made through our Site
- special offers, promotions, rewards, upcoming events and other marketing communications,
- statements, invoices, receipts,
- technical notices and security alerts
- updates, changes and improvements to our Services
- to process and deliver contest entries and rewards;
- to personalize user experiences on our Site, including displaying relevant advertising;
- to perform statistical and system analyses to improve our Services;
- to create reports for us and others regarding the use and access of the Services;
- to link or combine with other information we get from third parties to help understand user needs and provide better service;
- to monitor use to ensure compliance with our terms and conditions of use, policies and processes, and legal obligations
- to protect, investigate, and deter against fraudulent, unauthorized, or illegal activity;
- to provide feedback to all users and appropriate third parties
- as otherwise consented to or required or permitted by applicable law.
Categories of data
The personal data transferred concern the following categories of data about our Springboard Arcade Customers, potential Springboard Arcade Customers, and their authorized users and Arcade Users, and about their use of our Services, including information by which they may or may not be personally identified, such as:
- e-mail address;
- mailing address;
- telephone number;
- arcade name;
- time zone;
- contact information of people that Arcade Users add to, or request notification to, of their arcade reservations through our Site;
- dates and times specific content is accessed or reviewed;
- the arcade websites or web pages visited;
- games on computers and stations;
- information about game use, including individual game usage and aggregate game usage;
- current and past arcade reservation details made with our Booking feature or through a Springboard Arcade Customer arcade including the contact information of people that customers add to, or request notification to, their arcade reservations through our Site;
- Springboard Arcade Customer arcade sessions information, including:
- games played
- play data
- name of arcades,
- account settings
- customer support and other requests made through our Site;
- other information users may provide to our Site or provide us with access via third-party platforms;
- information about computer hardware and software such as:.
- IP address
- browser information (e.g., type, language and history)
- domain name
- access time
- working directories
- certain software installed or stored within the Services or on game stations and computers
- operating system
- referring website addresses
- credit card information shared through our payment processor, namely non-PCI information such as the last 4 digits of the payment card, card type, and expiration date;
- statistical data which may include personal information may be collected automatically or we may maintain it or associate it with personal information we collect in other ways or receive from third parties;
- generic or precise geographic location data from users' mobile devices when the app is running and when it is not running.
The personal data transferred may be disclosed only to the following recipients or categories of recipients:
- Springboard, the data importer;
- Springboard's sub-processors;
- Springboard's subsidiaries and affiliates;
- other third parties Springboard uses to support our business or to provide the Services including but not limited to third-party vendors, third-party payment processors, consultants, and other service providers who perform functions on our behalf;
- Springboard Arcade Customer arcades and their affiliated arcades or other entities associated with such arcades (such as the parent entity of the arcade group or affiliated arcades), and/or their service providers;
- government authorities, courts, or agencies and other third parties where Springboard believes that doing so would be in accordance with, permitted or required by any applicable law, regulation or legal process, to defend the interests, rights, and/or property of Springboard or others, or to respond to emergencies;
- third parties if Springboard sells, transfers, divests, or discloses all or a portion of our business or assets to another company in connection with or during negotiation of any merger, financing, acquisition, bankruptcy, dissolution, transaction, or proceeding.
Sensitive data (if appropriate)
The personal data transferred concern no sensitive data.
Data protection registration information of data exporter (where applicable)
Data protection registration information will by provided by Springboard Arcade Customer to Springboard separately.
Additional useful information (storage limits and other relevant information)
Springboard Arcade Customer shall have sole responsibility for responding to inquiries from data subjects concerning the data subject's (1) right to know what information is being maintained on them, (2) right to reasonably access that information, (3) the right to challenge mistaken information, and (4) the right to object to the processing and disclosure of their data. Springboard shall, to the extent legally permitted, notify Springboard Arcade Customer if Springboard receives an inquiry from a data subject in regard to the same.
Contact points for data protection inquiries
Data protection inquiries to Springboard should be directed to [email protected]. Springboard Arcade Customer shall provide contact information upon request.