End User License Agreement
END USER LICENSE AGREEMENT
Last Updated: February 4, 2022
This End User License Agreement (the “Agreement”) governs your access to, and use of, any Content (defined below) made available by Kyodai Technologies, Inc., a New York corporation (“Kyodai,” “us,” “we,” or “our”) through the Rensa Games website, platform, and digital asset marketplace (collectively, the “Site”). Subject to the terms of this Agreement and the terms of our Terms of Service (available at https://rensa.games/terms and incorporated herein by reference), you, as a user of the Site (“you”) may access certain materials, content, works, online games, digital art, and other digital assets (e.g., three-dimensional objects, motion capture, music, sound effects, etc.) which are either owned or licensed by Kyodai (collectively, “Content”). Please read this Agreement carefully before you access or utilize any Content through our Site.
USE OF CONTENT IS SUBJECT TO THIS AGREEMENT. IF YOU ARE UNDER THE AGE OF MAJORITY IN YOUR JURISDICTION OR EIGHTEEN (18) YEARS OF AGE, WHICHEVER IS OLDER, PLEASE ASK YOUR PARENT OR GUARDIAN TO READ AND ACCEPT THIS AGREEMENT ON YOUR BEHALF BEFORE YOU USE THE CONTENT. BY OPENING THIS PACKAGE, PURCHASING, DOWNLOADING, INSTALLING, OR USING THE CONTENT OR “CLICKING TO ACCEPT,” YOU ACCEPT THE TERMS OF THIS AGREEMENT.
FOR RESIDENTS IN NORTH AMERICA ONLY: IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU ARE NOT PERMITTED TO DOWNLOAD, INSTALL, COPY, USE, OR OTHERWISE INTERACT WITH THE CONTENT. TO REJECT THIS AGREEMENT, YOU MUST NOT “CLICK TO ACCEPT” THESE TERMS OR DOWNLOAD, INSTALL, COPY, USE, OR OTHERWISE INTERACT WITH THE CONTENT.
FOR RESIDENTS OUTSIDE NORTH AMERICA: IF YOU (OR, IF APPLICABLE, YOUR PARENT OR GUARDIAN) DO NOT AGREE TO THIS AGREEMENT, THEN YOU MUST NOT USE OR ACCESS THE CONTENT OR ANY PART THEREOF. BY “CLICKING TO ACCEPT,” YOU REPRESENT AND WARRANT THAT YOU ARE A “NATURAL PERSON” WHO IS OVER THE AGE OF EIGHTEEN (18) OR WHOSE LEGAL GUARDIAN HAS ACCEPTED AND AGREED TO THIS AGREEMENT. IF YOU REJECT THIS AGREEMENT, YOUR RETURN RIGHTS IN RELATION TO THE CONTENT ARE GOVERNED BY YOUR STATUTORY RIGHTS IN THE COUNTRY WHERE YOU BOUGHT THE CONTENT.
EXCEPT FOR SECTION 14 (BINDING ARBITRATION AND CLASS ACTION WAIVER), KYODAI RESERVES THE RIGHT TO MODIFY THIS AGREEMENT AT ANY TIME BY ANY MEANS, INCLUDING WITHOUT LIMITATION BY (1) POSTING THE MODIFICATIONS TO https://rensa.games/eula AND/OR (2) REQUIRING YOU TO “CLICK TO ACCEPT” THE AGREEMENT, AND YOUR CONTINUED USE OF THE CONTENT CONSTITUTES YOUR ACCEPTANCE OF THE MODIFICATIONS. IF ANY FUTURE MODIFICATIONS TO THE AGREEMENT ARE UNACCEPTABLE TO YOU OR CAUSE YOU TO NO LONGER BE IN COMPLIANCE WITH THIS AGREEMENT, YOU MUST TERMINATE, AND IMMEDIATELY STOP USING, THE CONTENT. IF ANY FUTURE MODIFICATIONS ARE IMPLEMENTED AS A “CLICK TO ACCEPT” AGREEMENT, YOU MAY NOT BE ABLE TO CONTINUE USING THE CONTENT UNLESS YOU AFFIRMATIVELY ACCEPT THE MODIFIED AGREEMENT.
SERVICES AND ADDITIONAL TERMS OF SERVICE.
Use of certain features of the Content, including online or multiplayer components, or updated features, may require assent to additional terms of service. You will be provided with these additional terms of service at the time the applicable features are made available to you. If you do not assent to the additional terms of service, you may not be able to access or use the additional features that are subject to the additional terms of service.
LIMITED USE LICENSE.
- Subject to any system requirements, Kyodai grants you the non-exclusive, non-transferable (except as otherwise provided in this Agreement), limited right and license to access and use one copy of the Content solely for your personal use (which may include, depending on the Content, a right to relicense the Content as part of an independent work). Your access to the Content is made available via license token through Ethereum blockchain (or other blockchain or distributed ledger) (“License Token”). Upon receipt of the License Token, you may be able to: (1) view, download, play, stream, or otherwise access Content in object code or other accessible format for the purposes set forth in the License Token and this Agreement; and (2) transfer License Tokens between users of the Rensa Games platform (subject to the terms of the License Token).
- All rights not specifically granted are reserved by Kyodai. The Content is licensed, not sold, for your use. Your license confers no title or ownership in the Content, and should not be construed as a sale of any rights in the Content. This Agreement shall also apply to any patches, modifications, updates, or upgrades you may obtain for any of the Content, unless that patch, modification, update, or upgrade is accompanied by additional terms.
- Unless otherwise stated in the Content, on the Site, or in the License Token, duplication, copying, or any form of reproduction of the Content or related materials to any other server or location for the purposes of any other form of reproduction is prohibited.
- Certain License Tokens purchased through the Site may be relicensed, traded, or transferred as designated in, or made available by, the particular smart contract for the applicable License Token, or the embedded metadata within the applicable License Token. If a License Token is deemed to be relicensable, tradable, or transferrable per the particular smart contract or embedded metadata, subject to your compliance with the terms and conditions of this Agreement and the applicable smart contract or embedded metadata, Kyodai and its licensors hereby grant you a non-exclusive, limited, transferrable, sublicensable, fully revocable right and license to access and use one (1) copy of the Content for which you purchased the License Token.
- YOU ACKNOWLEDGE AND AGREE THAT, OTHER THAN LICENSE GRANTED TO YOU BY THIS AGREEMENT, YOU SHALL HAVE NO OWNERSHIP OR PROPERTY INTEREST IN ANY CONTENT, INCLUDING, WITHOUT LIMITATION, ONLINE ACCOUNTS AND ANY DIGITAL OR VIRTUAL COINS, CURRENCIES, POINTS, OR OTHER GOODS, AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ALL RIGHTS IN AND TO SUCH CONTENT ARE AND SHALL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF KYODAI OR ITS LICENSORS.
The license rights set forth under this Agreement to the Content are subject to the following limitations ("License Limitations"). Any use of the Content in violation of the License Limitations will result in an immediate termination of your license and revocation or destruction (or “burn”) of your License Token, and continued use of the Content will be an infringement of Kyodai's or its licensor’s copyrights and other rights in and to the Content.
- You agree that you will not do, or allow, any of the following, unless explicitly stated otherwise in the particular smart contract for, or embedded metadata within. the applicable License Token: (1) exploit the Content commercially; (2) subject to any system requirements, use the Content on more than one system at the same time; (3) make copies of the Content, in whole or in part; (4) copy the Content onto a hard drive or other storage device, unless the Content itself is downloaded or installed; (5) use the Content in a network, multi-user arrangement, or remote access arrangement, including any online use except as included in the Content functionality; (6) sell, rent, lease, license, distribute, or otherwise transfer the Content; (7) subject to applicable laws, reverse engineer, derive source code, modify, decompile, disassemble, or create derivative works of the software and other proprietary technology in the Content, in whole or in part; (8) create, develop, modify, distribute, or use any unauthorized software to gain advantage in any offline, online, or multiplayer game modes in connection with the Content, such behavior will be subject to sanction at Kyodai’s discretion; (9) remove, disable, or circumvent any proprietary notices or labels contained on or within the Content; or (10) export or re-export the Content in violation of any applicable laws or regulations of the United States government or any foreign law, ordinance, code, regulation, statute, or treaty that is the same or similar to such United States law or regulations.
- You agree that you will not do, or allow, any of the following actions while using the Content: (1) use any Content in any way that could reasonably be deemed to be abusive, threatening, obscene, defamatory, libelous, or racially, sexually, religiously, ethnically, or otherwise objectionable or offensive, or to harass, upset, embarrass, alarm or annoy any other person; (2) encourage or facilitate any illegal activity including, but not limited to, terrorism; (3) advertise, solicit, or transmit any commercial advertisements, including, but not limited to, promoting your own services, blockchain projects, cryptocurrency sales, or securities offerings, or sending spam, repetitive, or misleading messages; (4) upload or transmit any malicious data, code, Content, routine, device, or other internal component (e.g. computer worm, computer time bomb, software lock, malicious logic, Trojan horse, bug, error, defect or trap door, or similar component), which could damage, destroy, delete, disable, deactivate, alter, or disrupt any computer Content, firmware or hardware or which could, in any manner, reveal, damage, delete, disable, deactivate, destroy, alter, or disrupt any data or other information in any manner that is capable of deleting, disabling, deactivating, interfering with, or otherwise harming data, hardware, or computer programs or codes; (5) invade the privacy or violate or infringe any right of any person or entity, including, without limitation, any intellectual property right; (6) impersonate any person or entity, including but not limited to Kyodai; (7) disrupt normal Content functionality, or otherwise act in a manner that negatively affects other participants and/or the overall Content experience; (8) intentionally or unintentionally violate any applicable law, regulation or treaty while using or accessing the Content; or (9) post multiple posts of the same content (i.e., “spam”).
- Kyodai reserves the right to blacklist your MetaMask Wallet public address, or any other digital wallet address, or to terminate your account and access to and use of any Content pursuant to the Rensa Games Terms of Service, if we deem, in our sole discretion, that you have violated applicable law or this Section. Kyodai reserves the right to take appropriate legal action, including but not limited to, referral to law enforcement, for any use that we deem in our sole discretion to be an illegal or unauthorized use of the Content. Kyodai will cooperate fully with any law enforcement agency or officials in the investigation of any user who violates this Agreement.
- Parents and guardians of children under the age of majority in their jurisdiction or 18 years of age, whichever is older, agree that you will be responsible for all uses of the Content by your child whether or not such uses were authorized by you.
- Except as expressly licensed to you by this Agreement and the particular smart contract, all right, title, and interest in and to the Content, and any and all associated copyrights, trademarks, and any other intellectual property rights therein and/or related thereto and all copies thereof (including, but not limited to, any patches, modifications, updates, upgrades, copies, derivative works, titles, computer code, themes, objects, characters, images, stories, dialogs, concepts, artwork, images, animation, sounds, musical compositions, audio-visual effects, text, and moral rights) are owned by Kyodai or its licensors. All rights not expressly granted to you by this Agreement are reserved by Kyodai or its licensors. Kyodai and its licensors may protect their rights in the event of any violation of this Agreement. The Content is protected by the copyright laws of the United States of America, international copyright treaties, conventions, and other laws. The Content may contain certain licensed materials, and Kyodai’s licensors may protect their rights in the event of any violation of this Agreement. The limited license granted to you under this Agreement, or the License Tokens procured through the Site, do not grant, transfer, or confer you any title or ownership rights over any intellectual property of Kyodai or its licensors and shall not be construed as a sale or transfer of any intellectual property rights in or relating to the Content.
- NOTWITHSTANDING ANYTHING TO THE CONTRARY, YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN ANY ACCOUNT STORED OR HOSTED ON A KYODAI SYSTEM OR THE SITE, AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT ALL RIGHTS IN AND TO THESE ACCOUNTS ARE AND SHALL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF KYODAI. KYODAI MAY SUSPEND, TERMINATE, MODIFY, OR DELETE ANY OF THESE ACCOUNTS AT ANY TIME FOR ANY REASON OR NO REASON, WITH OR WITHOUT NOTICE TO YOU.
Kyodai may deploy or provide mandatory patches, modifications, updates, and upgrades to the Content that must be installed for you to continue to use the Content. Kyodai may update the Content remotely without notifying you, and you hereby grant to Kyodai consent to deploy and apply such patches, modifications, updates, and upgrades. Broadband internet is required for such patches, modifications, updates, and upgrades. You are responsible for any and all broadband access and usage fees.
LIMITATION OF DAMAGES.
- KYODAI SHALL NOT BE LIABLE FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES RESULTING FROM POSSESSION, USE, OR MALFUNCTION OF THE CONTENT, INCLUDING DAMAGES TO PROPERTY, COMPUTER FAILURE, OR MALFUNCTION AND, TO THE EXTENT PERMITTED BY LAW, DAMAGES FOR PERSONAL INJURIES, EVEN IF KYODAI HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES. SOME STATES/COUNTRIES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS AND/OR THE EXCLUSION OR LIMITATION OF DAMAGES, SO THE ABOVE LIMITATIONS AND/OR EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.
- KYODAI SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE ARISING OUT OF YOUR FAILURE TO KEEP YOUR LOGIN CREDENTIALS (ANY OF YOUR “PASSWORD”, PRIVATE KEY”, “SEED PHRASE”, “SECRET RECOVERY PHRASE”, OR OTHER CREDENTIALS) TO YOUR DIGITAL WALLET SECURE OR ANY OTHER UNAUTHORIZED ACCESS TO OR TRANSACTIONS INVOLVING YOUR DIGITAL WALLET.
- TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT AND THE SITE, CONTENT, ONLINE SERVICES, AND ALL FEATURES THEREIN (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF ONE HUNDRED ($100) US DOLLARS OR EQUIVALENT AMOUNT UNDER EXCHANGE RATES. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. FOR THE AVOIDANCE OF DOUBT, KYODAI SHALL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND WHATSOEVER ARISING FROM OR RELATED TO THE PURCHASE OF A LICENSE TOKEN ON THE SECONDARY MARKET.
- SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
ASSUMPTION OF RISK.
In addition to the Assumptions of Risk in Section 12 of the Rensa Games Terms of Service, you accept and acknowledge the following:
- Certain Content may be created by a third-party licensor (a “Content Owner”) and hosted by Kyodai. Content Owners may choose to make Content provided by them inaccessible or may remove the link to their underlying Content from the Site. We will not be liable to you for our, or a Content Owner’s, removal or deletion of Content.
- If the particular smart contract associated with a License Token or embedded metadata within a License Token states that the relevant Content is sublicensable or transferrable, and you transfer or sublicense the License Token to another user, Kyodai will not be liable for any License Tokens that are sent to the incorrect MetaMask Wallet (or any other digital wallet address), account, or user, whether or not the error was attributable to Kyodai.
- Unless transferred or sublicensed to another user pursuant to the particular smart contract for the applicable License Token or to the embedded metadata within a License Token, you are solely responsible for all acts regarding the use of or access to the Content.
- TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SITE, CONTENT, ONLINE SERVICES, AND ALL FEATURES THEREIN ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, KYODAI EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OR MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT.
- WITHOUT LIMITATION, KYODAI MAKES NO WARRANTY THAT THE SITE, CONTENT, ONLINE SERVICES, AND ALL FEATURES THEREIN WILL MEET YOUR EXPECTATIONS, THAT USE OF THE FOREGOING WILL BE UNINTERRUPTED, TIMELY, SECURE, AVAILABLE 24/7 OR ERROR FREE, THAT THE CONTENT WILL BE INTEROPERABLE OR COMPATIBLE WITH OTHER SOFTWARE, THAT THE RESULTS OBTAINED FROM THE USE OF THE FOREGOING WILL BE ACCURATE OR RELIABLE, THAT DEFECTS IN THE FOREGOING WILL BE CORRECTED, OR THAT THE FOREGOING WILL BE VIRUS-FREE AND WILL NOT DAMAGE YOUR COMPUTER SYSTEM OR OTHER DEVICE.
- ANY CONTENT OR OTHER MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE SITE IS DONE AT YOUR SOLE RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE DOWNLOAD OF SUCH CONTENT OR MATERIAL. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, AND ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
- KYODAI SHALL NOT BE RESPONSIBLE IN ANY WAY FOR ANY TRANSACTIONS YOU ENTER INTO WITH OTHER USERS OR THIRD PARTIES. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGES OF ANY SORT INCURRED AS THE RESULT OF ANY INTERACTIONS BETWEEN YOU AND ANOTHER USER.
You shall indemnify, defend, and hold harmless Kyodai and its licensors, including their officers, employees, and agents, against any and all loss, damage, or expense (including legal fees reasonably incurred in the defense of any claim) incurred by Kyodai as a result of any claim, action, or proceeding arising out of or related to: (1) your use or misuse of the Content or License Tokens; (2) your actual or alleged violation of this Agreement; (3) your actual or alleged infringement or violation of any intellectual property, proprietary, or privacy rights of any third party; (4) injury to person or property arising from acts of negligence, bad faith, willful misconduct, or reckless disregard by you relating to this Agreement or the Content or License Tokens; or (5) your actual or alleged violation of applicable law in connection with your use of the Content and the licenses granted to you.
Without prejudice to any other rights of Kyodai, this Agreement will terminate automatically if you fail to comply with its terms and conditions. In the event of termination for this reason, you must delete or otherwise cease use of the Content and all of its component parts. You may also terminate the Agreement at any time by permanently deleting or destroying (or “burning”) any License Tokens for the applicable Content, and destroying all copies of the Content in your possession or control. The following provisions shall survive termination of this agreement: LICENSE CONDITIONS (<SECTION 3), OWNERSHIP (SECTION 4), LIMITATION OF DAMAGES (SECTION 6), ASSUMPTION OF RISK (SECTION 7), WARRANTY DISCLAIMERS (SECTION 8), INDEMNIFICATION (SECTION 9), TERMINATION (SECTION 10), AVAILABILITY (SECTION 11), ACCESS (SECTION 12), BINDING ARBITRATION AND CLASS ACTION WAIVER (SECTION 14), JURISDICTION AND APPLICABLE LAW (SECTION 15), AND MISCELLANEOUS (SECTION 17).
- For residents in North America: Kyodai does not guarantee that the Site or any online services, play, or features associated with the Content (collectively, “Online Services”) will be available at all times or at any given time, or that Kyodai will continue to offer Online Services for any particular length of time. Kyodai may change and update Online Services without notice to you. Kyodai makes no warranty or representation regarding the availability of Online Services and reserves the right to modify or discontinue Online Services in its sole discretion without notice, including for example, ceasing an Online Service for economic reasons due to a limited number of users continuing to make use of the Online Service over time. NOTWITHSTANDING ANYTHING TO THE CONTRARY, YOU ACKNOWLEDGE AND AGREE THAT ONLINE SERVICES MAY BE TERMINATED IN WHOLE OR IN PART AT KYODAI’S SOLE DISCRETION WITHOUT NOTICE TO YOU. YOU ASSUME ANY AND ALL RISK OF LOSS ASSOCIATED WITH THE TERMINATION OF ONLINE SERVICES.
- For residents outside North America: Kyodai does not guarantee that any Online Services will be available or error-free at all times or at any given time. Kyodai may change and update Online Services without notice to you (provided always that any such changes do not result in material degradation in the functionality of the Content which has been paid-for with real money). Kyodai makes no warranty or representation regarding the availability of Online Services which are free (i.e. not paid-for with real money) and reserves the right to modify or discontinue them in its sole discretion without notice to you, including for example, for economic reasons due to a limited number of users continuing to make use of them over time. Kyodai is not liable or responsible for any failure to perform, or delay in performance of, any of its obligations that is caused by events outside its reasonable control. Kyodai is entitled to modify or discontinue Online Services which are paid-for with real money in its sole discretion upon reasonable notice to you. The warranty for such Online Services is provided in accordance with your statutory rights as a consumer.
If you believe that any Content has been copied in a way that constitutes copyright infringement, please forward the following information to the copyright agent named below. We will promptly respond to any such notice. Your copyright infringement notification must comply with the Digital Millennium Copyright Act ("DMCA"). You are encouraged to review 17 U.S.C. § 512(c)(3) or consult with an attorney prior to sending a notice hereunder. To file a copyright infringement notice, you will need to send a written communication that includes the following to the address listed below: (1) your name, address, telephone number, and email address; (2) a description of the copyrighted work that you claim has been infringed; (3) the exact URL or a description of where the alleged infringing material is located; (4) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (5) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and (6) a statement by you, under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
Kyodai Technologies, Inc.
C/O Copyright Manager
1740H Dell Range Blvd, #217
Cheyenne, WY 82009
Please note that the DMCA provides that you may be liable for damages (including costs and attorney fees) if you knowingly misrepresent that material or activity is infringing. Please also note that the information provided in your copyright infringement notice may be provided to the person responsible for the allegedly infringing material.
BINDING ARBITRATION AND CLASS ACTION WAIVER.
READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
- These Binding Arbitration and Class Action Waiver provisions apply to you if you are domiciled in and/or acquired and use the Content in the United States. These provisions may also apply to you if you are domiciled in and/or acquired and use the Content from outside the United States. See Jurisdiction and Applicable Law (Section 15) below for details.
- Initial Dispute Resolution: Kyodai's Customer Support department is available at email@example.com to address any concerns you may have regarding the Content. Most concerns are quickly resolved in this manner to our customers' satisfaction. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.
- Binding Arbitration: If the parties do not reach an agreed upon solution within a period of 30 days from the time informal dispute resolution is pursued pursuant to the paragraph above, then either party may initiate binding arbitration as the sole means to formally resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to this Agreement (including its interpretation, formation, performance, and breach), the parties' relationship with each other and/or your use of the Content shall be finally settled by binding arbitration administered by JAMS in accordance with the provisions of its Comprehensive Arbitration Rules or Streamlined Arbitrations Rules, as appropriate, excluding any rules or procedures governing or permitting class actions. This arbitration provision is made pursuant to a transaction involving interstate commerce, and the Federal Arbitration Act (the "FAA") shall apply to the interpretation, applicability, enforceability, and formation of this Agreement notwithstanding any other choice of law provision contained in this Agreement. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of this Agreement, including without limitation any claim that all or any part of this Agreement is void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator's award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
- JAMS: The JAMS Rules governing the arbitration may be accessed at http://www.jamsadr.com or by calling JAMS at (800) 352-5267. Your arbitration fees and your share of arbitrator compensation shall be governed by the JAMS Comprehensive Arbitration Rules, but shall not incorporate the JAMS Class Action Procedures, and, to the extent applicable, the Consumer Minimum Standards, including the then-current limit on arbitration filing fees. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, Kyodai will pay the additional cost. The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
- Location: If you are a resident of the United States, arbitration will take place at any reasonable location within the United States convenient for you. For residents outside the United States, arbitration shall be initiated in New York, New York, and you and Kyodai agree to submit to the personal jurisdiction of any federal or state court in New York City, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
- Class Action Waiver: The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND KYODAI AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
- Exception - Litigation of Intellectual Property and Small Claims Court Claims: Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may bring an action in state or federal court that only asserts claims for patent infringement or invalidity, copyright infringement, moral rights violations, trademark infringement, and/or trade secret misappropriation, but not, for clarity, claims related to the license granted to you for the Content under this Agreement. Either party may also seek relief in a small claims court for disputes or claims within the scope of that court's jurisdiction.
- 30 Day Right to Opt Out: You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in the "Binding Arbitration," "Location," and "Class Action Waiver" paragraphs above by sending written notice of your decision to opt-out to the following address: 2005 Palmer Avenue, #311, Larchmont, NY 10538. The notice must be sent within 30 days of purchasing the License Token for the Content (or if no purchase was made, then within 30 days of the date on which you first access or use the Content and agree to these terms); otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt-out of these arbitration provisions, Kyodai also will not be bound by them.
- Changes to this Section: Kyodai will provide 60-days’ notice of any changes to this Section. Changes will become effective on the 60th day and will apply prospectively only to any claims arising after the 60th day.
JURISDICTION AND APPLICABLE LAW.
The Content is made available subject to the terms of this Agreement. If you acquired and use the Content,
- For residents in the United States, Mexico, or Canada, Any claims arising out of this Agreement (including interpretation, claims for breach, and all other claims (including consumer protection, unfair competition, and tort claims)) will be subject to the laws of the State of New York, without reference to conflict of laws principles. If any court or arbitrator determines that the “Class Action Waiver” paragraph set forth above is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then any and all claims arising out of this Agreement (including interpretation, claims for breach, and all other claims (including consumer protection, unfair competition, and tort claims)) shall be decided under the laws of the state where you were a citizen at the time you obtained or bought the Content that was subject to this Agreement. In addition, you and we irrevocably consent to the exclusive jurisdiction and venue of state or federal courts in New York, New York to resolve any claims that are subject to exceptions to the arbitration agreement described in Binding Arbitration and Class Action Waiver (Section 14) above, or otherwise determined not to be arbitrable.
- For residents in the European Union, The laws of England and Wales govern the interpretation of this Agreement and apply to claims for its breach, without reference to conflict of laws principles. All other claims, including claims regarding consumer protection laws, unfair competition laws, and in tort, will be subject to the laws of the European Union country (e.g., the French Republic, or the Federal Republic of Germany) in which you acquired and use the Content. In addition, with respect to jurisdiction, you may choose either the courts of the country (e.g., the United Kingdom, the French Republic, or the Federal Republic of Germany) in which you acquired and use the Content, or in the alternative the courts of England and Wales or other court as applicable under the Brussels Regulation EC 44/2001.
- For residents in Australia or Japan, The laws of Australia govern the interpretation of this Agreement and apply to claims for breach of it, without reference to conflict of laws principles. All other claims, including claims regarding consumer protection laws, unfair competition laws, and in tort, will be subject to the laws of the country in which you acquired and use the Content (being either Australia or Japan). To the extent permitted by applicable law, you agree to the jurisdiction of the courts of New South Wales, Australia.
- For residents in the Rest of the World, If you acquired and use this Content from countries other than those listed in Sections 15 (a), (b), and (c) above, then you do so on your own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable, and you expressly indemnify and hold harmless Kyodai from any and all claims, loss, injury, damage, or costs arising from your use of the Content to the extent permitted by applicable law. No warranty or representation is made by Kyodai that the Content or any use of the Content outside of the countries listed in Sections 15 (a), (b), and (c) above complies with any applicable local law. Further, your use of the Content and all claims arising out of or related to the Content or this Agreement will, to the extent permitted under applicable law, be subject to the laws of England and Wales, without reference to conflict of laws principles and you consent to the jurisdiction of the courts of England and Wales.
- TO THE EXTENT PERMITTED BY APPLICABLE LAW, IF ANY USER OUTSIDE OF THE UNITED STATES IS ENTITLED TO COMMENCE AND/OR PARTICIPATE IN LEGAL PROCEEDINGS WITHIN THE UNITED STATES, THEN THAT USER AGREES TO BE BOUND BY THE BINDING ARBITRATION AND CLASS ACTION WAIVER PROVISIONS SET FORTH IN BINDING ARBITRATION AND CLASS ACTION WAIVER (SECTION 14), ABOVE.
U.S. GOVERNMENT RESTRICTED RIGHTS.
The Content has been developed entirely at private expense and are provided as "Commercial Computer Software" or "restricted computer software." Use, duplication, or disclosure by the U.S. Government or a U.S. Government subcontractor is subject to the restrictions set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clauses in DFARS 252.227-7013 or as set forth in subparagraph (c)(1) and (2) of the Commercial Computer Software Restricted Rights clauses at FAR 52.227-19, as applicable.
- Third-Party Beneficiaries. If applicable, you agree that the Content Owner, if not Kyodai, is a third-party beneficiary to this Agreement and is entitled to the rights and benefits hereunder and may enforce the provisions hereof as if it were a party hereto. Further, Kyodai may enforce the rights and benefits of a Content Owner on behalf of that Content Owner.
- Assignment. You shall not assign this Agreement, or any of the rights or obligations hereunder, without the prior written consent of Kyodai. Assignments made in violation of this section will be null and void and of no force or effect. This Agreement binds and inures to the benefit of the parties and their respective permitted successors and permitted assigns.
- Waiver. No waiver by Kyodai of any right or provision under this Agreement shall constitute a subsequent or continuing waiver of such right, provision, or any other rights or provisions under this Agreement. Failure to act or delay in acting by Kyodai shall not constitute a waiver of any right or remedy.
- Relationship of Parties. You and Kyodai are independent contractors and this Agreement does not and will not establish any relationship of partnership, joint venture, employment, franchise, or agency between them. Neither party has the power to bind the other or incur obligations on the other’s behalf.
- Notices. You agree that we may communicate with you electronically. If you provide your email address to us, all notices under this Agreement will be through electronic mail (e-mail) to the address you provided. If you do not provide us with an email address upon request, such notices may be sent to your Account page or available on the Site. All agreements, notices, disclosures, and other communications sent to you electronically will satisfy any requirement that such communication be in writing.
You may contact us at any time regarding this Agreement or the Site at firstname.lastname@example.org.