END USER LICENSE AGREEMENT
BY WAY OF THE INSTALLATION, COPYING, DOWNLOADING, ACCESSING OR OTHER USE OF THIS PRODUCT, YOU ARE AGREEING TO BE LEGALLY BOUND BY THE HEREIN CONTAINED TERMS OF THIS EULA. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF THIS EULA, YOU THEN HAVE NO RIGHTS TO THE PRODUCT AND SHOULD THEREFORE NOT INSTALL, COPY, DOWNLOAD, ACCESS NOR USE THE PRODUCT.
THIS PRODUCT IS PROTECTED BY COPYRIGHT LAWS, AS WELL AS ANY OTHER INTELLECTUAL PROPERTY LAWS. THIS PRODUCT IS LICENSED AND NOT SOLD.
- “Agreement” or “License” or “EULA” shall mean this End User License Agreement.
- “Licensee” or “You” or “Your” shall mean You, the individual or business entity licensing the Product under the terms of this Agreement.
- “Intellectual Property” means current and future worldwide rights under patent law, copyright law, trade secret law, trademark law, moral rights, and other similar rights or laws.
- “SAAS Agreement” means the agreement signed on behalf of You by your employer or contracted party who is providing access to the Product. In the event of a discrepancy between this EULA and the SAAS Agreement, the terms of the SAAS Agreement will govern.
- “Update” means maintenance of, or a fix to, a version of Product, including, but not limited to: a hot fix, patch, or enhancement, none of which function as a standalone service or other software package and which do not have an additional cost for any existing Licensee.
- “Upgrade” means a major, standalone version of Product, which may include additional applications, features, or functionality.
- A “person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors and permitted assigns.
- Words in the singular shall include the plural and vice versa.
- A reference to a statute, statutory provision or subordinate legislation is a reference to it as it is in force from time to time, taking account of any amendment or reenactment and includes any statute, statutory provision or subordinate legislation which it amends or re-enacts; provided that, as between the Parties, no such amendment or re-enactment shall apply for the purposes of this Agreement to the extent that it would impose any new or extended obligation, liability or restriction on, or otherwise adversely affect the rights of, any Party.
- A reference to writing or written notice includes e-mail.
- Any obligation in this Agreement on a person not to do something includes an obligation not to agree or allow that thing to be done.
- Any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
- References to articles, sections, or clauses are to the articles, sections, and clauses contained within this Agreement.
- LICENSE GRANT. LavenirAI shall grant to You a non-exclusive, limited license for the use of and access to the Product subject to all the terms and conditions set forth herein and in the SAAS Agreement. Furthermore, this EULA and the SAAS Agreement shall also govern any and all software Updates and Upgrades provided by LavenirAI that would replace, overwrite and/or supplement the original installed version of the Product, unless those other Updates and Upgrades are covered under a separate license, in which case the terms of that license will govern.
- Should You breach this EULA, Your right to the use of the Product will immediately terminate without any required notice being given. However, all provisions of this EULA, with the exception of the License grant, shall survive termination and will remain in effect. Upon termination of the License grant, You MUST destroy any and all copies of the Product, related access links or its contents.
- PRODUCT CONTENT. The Product is protected by copyright and other intellectual property laws and treaties, and as such all rights, title, and interest in and to the content offered, including but not limited to, any photographs, images, video animation, code, audio content, text, and music, that may be incorporated as part of the Product. Such offered content is protected by copyright laws and international treaty provisions. Therefore, offered content must be treated as any other copyrighted material, with the exception that it is allowable for You to make copies as provided by the License. However, printed material, which may accompany any offered content, may not be copied.
- NO GRANT OF RIGHTS. Except as expressly stated herein, this Agreement does not grant Licensee any rights to LavenirAI’s content or intellectual property. Specifically, LavenirAI owns all intellectual property rights in Product.
- RIGHT OF PUBLICITY. You agree, with respect to publicity that: (a) LavenirAI may include Licensee’s name or its brand in a list of Licensees, online, or in promotional materials; and (b) LavenirAI may verbally reference Licensee as a licensee of Product.
- RECORDING OF PRODUCT SESSIONS. LavenirAI records all transcripts between You and any avatar You interact with through the use of the Product and interactions with the LavenirAI technology. LavenirAI also stores limited personal information (including name, login name, login email, company name, quiz scores, negotiation scores and negotiation style results) in order to analyze the results. LavenirAI does this in order to properly provide the training service and to provide You and your employer feedback on trainee usage and competency improvement.
- RESTRICTIONS ON USE. As a Licensee, You may not: (a) You may not share, distribute, lend, lease, sublicense or otherwise make available, in any manner whatsoever, to any third party the offered content; (b) Modify, adapt, create derivative works from or translate any part of the offered content other than what may be used within Your work in accordance with this License; (c) Reverse engineer, decompile or disassemble the Product, nor attempt to locate or obtain its source code; (d) Attempt to alter or remove any trademark, copyright or other proprietary notice contained within the Product; or (f) Make use of any offered content in any manner not stipulated within this EULA or the documentation accompanying the Product.
- UPDATES/UPGRADES. LavenirAI may find the need to make available Updates or Upgrades for the Product, in accordance with the terms contained within this EULA. It shall be at the sole discretion of LavenirAI to make conditional releases of said Updates or Upgrades to You upon Your acceptance of another EULA or execution of another separate agreement. Should You elect to access and make use of these updates, You are therefore agreeing to be subject to all applicable licenses, terms and conditions of this EULA and/or any other agreement.
- DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY.
LavenirAI shall use reasonable efforts consistent with prevailing industry standards to maintain Product in a manner which minimizes errors and interruptions.
YOU EXPRESSLY AGREE THAT USE OF THE PRODUCT IS AT YOUR SOLE RISK. THE PRODUCT IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. LAVENIRAI EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT, TITLE, OPERABILITY, CONDITION, QUIET ENJOYMENT, VALUE, ACCURACY OF DATA AND SYSTEM INTEGRATION. WE MAKE NO WARRANTY THAT THE PRODUCT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. WE MAKE NO WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF THE PRODUCT OR ANY CONTENT. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE PRODUCT, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.
YOU UNDERSTAND THAT TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL LAVENIRAI OR ITS OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR RELATED TO OR ARISING OUT OF YOUR USE OF THE PRODUCT, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, STATUTE OR OTHERWISE. TO THE EXTENT THAT WE MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY IMPLIED WARRANTY OR LIMIT ITS LIABILITIES, THE SCOPE AND DURATION OF SUCH WARRANTY AND THE EXTENT OF OUR LIABILITY WILL BE THE MINIMUM PERMITTED UNDER SUCH APPLICABLE LAW.
YOU UNDERSTAND THAT WE CANNOT AND DO NOT GUARANTEE OR WARRANT THAT ANY ASPECT OF THE PRODUCT WILL BE FREE OF VIRUSES OR OTHER DESTRUCTIVE CODE, OR THAT ANY ASPECT OF THE PRODUCT WILL MEET YOUR NEEDS. YOU ARE RESPONSIBLE FOR IMPLEMENTING SUFFICIENT PROCEDURES AND CHECKPOINTS TO SATISFY YOUR PARTICULAR REQUIREMENTS FOR ANTI-VIRUS PROTECTION AND ACCURACY OF DATA INPUT AND OUTPUT, AND FOR MAINTAINING A MEANS EXTERNAL TO OUR PRODUCT FOR ANY RECONSTRUCTION OF ANY LOST DATA. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE PRODUCT OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON THE PRODUCT, OR ON ANY PRODUCTS OR SERVICES LINKED TO IT.
NO EVENT WILL LAVENIRAI’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS EULA OR FROM THE USE OF OR INABILITY TO USE THE PRODUCT EXCEED TEN DOLLARS ($10). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
- EXPORT CONTROLS. By installing or accessing the Product, You hereby agree that You will comply with any and all applicable export laws, restrictions and all regulations of the U.S. Department of Commerce, U.S. Department of Treasury, and any other U.S. or foreign agency or authority with regards to this provision of the EULA. You expressly agree not to export or re-export, nor allow the export or re-export of the offered content in violation of any such law, restriction or regulation, including without limitation, export or re-export to any country subject to any and all applicable U.S. trade embargoes or to any prohibited destination, in any group specified in the current “Supplement No. 1 to Part 740 or the Commerce Control List specified in the then current Supplement No. 1 to Part 738 of the U.S. Export Administration Regulations (or any successor supplement or regulations).”
- ARBITRATION. In the event of any dispute, controversy or claim between the parties hereto arising out of or relating to this EULA, the parties shall first seek to resolve the dispute in good faith through informal discussion. You agree that before initiating any dispute or arbitration proceeding, the parties will attempt to negotiate an informal resolution of any dispute and then proceed with mediation.
- If a resolution is not achieved through informal resolution or mediation, it will be settled by individual (not class or class-wide) binding arbitration administered by the American Arbitration Association (AAA) in accordance with the then current Commercial Financial Disputes Arbitration Rules, including any expedited procedures. A demand that a claim be submitted to arbitration may be made before the initiation of any legal proceeding or within ninety (90) days following the service of a complaint, third party complaint, cross-claim or counterclaim and if a party in a pending legal proceeding demands a claim to be submitted to arbitration, the party initiating the action will immediately dismiss the legal proceeding and file the claim in arbitration. Arbitration hearings will be held in the County of Maricopa, Arizona. A single arbitrator will be appointed by the AAA and shall be a practicing attorney or retired judge having experience with and knowledge of payroll and online commerce law. The arbitrator will follow the law and will give effect to any applicable statutes of limitation. The prevailing party shall be entitled to an award of the costs and expenses of the arbitration, including attorneys’ fees and expert witness fees. A judgment on the award may be entered by any court having jurisdiction. The parties agree and acknowledge that this agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act (Title 9 of the United States Code) shall govern the interpretation, enforcement, and proceedings pursuant to the arbitration clause in this EULA.
- CLASS ACTION AND JURY TRIAL WAIVER. TO THE EXTENT PERMISSIBLE BY LAW, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR COLLECTIVE ACTION (COLLECTIVELY “CLASS ACTION WAIVER”). THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS OR ENGAGE IN ANY CLASS ARBITRATION. USER AGREES THAT, BY ENTERING INTO THIS EULA, USER AND LAVENIRAI ARE EACH VOLUNTARILY AND IRREVOCABLY WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. Further, if the parties’ dispute is resolved through arbitration, neither AAA nor the arbitrator may consolidate another person’s claims with your claims or otherwise preside over any form of a representative or class proceeding for any purpose. If this specific provision is found to be unenforceable, then the entirety of this Section shall be null and void.
- In any lawsuit in which (1) the complaint is filed as a class action or collective action; and (2) the civil court of competent jurisdiction in which the complaint was filed finds the Class Action Waiver is unenforceable (and such finding is confirmed by appellate review if review is sought), the Class Action Waiver shall be severable from this EULA and in such instances, the class action, collective action must be litigated in a civil court of competent jurisdiction and not as a class or collective.
- ELECTRONIC SIGNATURE AGREEMENT. By selecting the “I Accept” button, you are agreeing to sign this EULA electronically. You agree your electronic signature is the legal equivalent of its manual signature on this EULA. By selecting “I Accept” you consent to be legally bound by this EULA’ terms and conditions. You further agree that your use of a key pad, mouse or other device to select an item, button, icon or similar act/action, or to otherwise provide LavenirAI instructions electronically, or making any acceptance of any agreement, acknowledgement, consent terms, disclosures or conditions constitutes your signature (herein after referred to as “E-Signature”), acceptance and agreement as if actually signed by You in writing. You further agree that no certification authority or other third-party verification is necessary to validate your E-Signature and that the lack of such certification or third-party verification will not in any way affect the enforceability of your E-Signature or any resulting EULA between LavenirAI and You.
- SUCCESSORS AND ASSIGNS . This EULA, in its entirety, shall be legally binding upon and inure to the benefit of LavenirAI and You, our respective successors and permitted assigns.
- SEVERABILITY. If any provision of this Agreement is held to be illegal, invalid or unenforceable by a court of competent jurisdiction, the remaining provisions shall not be affected.
- WAIVER. If there is any waiver of any breach or failure to enforce any of the provisions contained herein, it shall not be deemed as a future waiver of said terms or a waiver of any other provision of this EULA.
- AMENDMENTS. Any waiver, supplementation, modification or amendment to any provision of this EULA, shall only be effective when done so in writing and signed off by LavenirAI and You.
- GOVERNING LAW. This EULA shall be governed solely by the laws of the State of Arizona and of the United Should any action arise out of or in relation to this EULA, such action may be brought exclusively in the appropriate federal or state court in Maricopa County, Arizonia, and as such, You and LavenirAI irrevocably consent to the jurisdiction of said court and venue for Maricopa County, Arizona.
- ASSIGNMENTS. You may not assign or transfer any part of this Licensee without the written consent of LavenirAI, except that, if a change of control occurs (including a sale or merger), the Party experiencing the change of control may ensure this License remains in full force and effect by providing written notice to the other Party within thirty (30) days after the change of control.
- VALID AND BINDING. This Agreement constitutes a valid and legally binding obligation of the Parties, enforceable against the Parties in accordance with its terms, subject in all respects to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and general equitable principles.
- EFFECT OF TITLE AND HEADINGS. The title of the Agreement and the headings of Sections, and Clauses are included for convenience and shall not affect the meaning of the Agreement or the Section.
- FORCE MAJEURE. Except for payment obligations, if either Party is prevented from performing or is unable to perform any of its obligations under this License due to causes beyond the reasonable control of the Party invoking this provision, including but not limited to acts of God, acts of civil or military authorities, riots or civil disobedience, wars, strikes or labor disputes (each, a “Force Majeure Event“), such Party’s performance shall be excused and the time for performance shall be extended accordingly provided that the Party immediately takes all reasonably necessary steps to resume full performance.