END USER LICENSE AGREEMENT
This End User License Agreement (“Agreement”) is a legal agreement between you and cottonTracks, Inc. (“cottonTracks,” “we,” or “us”) for the cottonTracks web browser software extension (“Extension”).
PLEASE READ THIS AGREEMENT CAREFULLY. BY DOWNLOADING, INSTALLING, OR USING THE EXTENSION, YOU REPRESENT AND WARRANT THAT YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH COTTONTRACKS AND YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT WISH TO BE BOUND BY THIS AGREEMENT OR ARE NOT OF AGE TO FORM A BINDING CONTRACT WITH COTTONTRACKS, YOU MAY NOT DOWNLOAD, INSTALL, OR USE THE EXTENSION.
THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
- License. The software, information, documentation, text, images, or other materials available on the Extension are protected by copyright laws throughout the world. Subject to the terms and conditions of this Agreement, cottonTracks grants you a limited, non-exclusive, non-transferable, revocable license during the term of this Agreement to: install and execute one copy of the Extension, in executable object code format only, solely (i) on a computer or device that you own or control (“Device”) and (ii) for your personal, non-commercial purposes. cottonTracks and its suppliers reserve all rights not granted in this Agreement. Any unauthorized use of the Extension terminates the licenses granted by cottonTracks to you pursuant to this Agreement
- Restrictions. You agree that you will not: (a) rent, lease, loan, sell, license, or make available the Extension to any third party or exploit the Extension for commercial purposes; (b) work around any technical limitations in the Extension, use any tool to enable features or functionalities that are otherwise disabled in the Extension, or alter, translate, modify, reverse engineer, decompile, disassemble, or reverse compile the Extension; (c) access the Extension in order to build a similar or competitive service; (d) reproduce, publicly display, publicly perform, distribute, transfer, or otherwise use the Extension, except as expressly permitted in Section 1; (e) strip, scrape, or mine data from the Extension; (f) use, or encourage or permit others to use, the Extension to: stalk or harass others, harm minors in any way, impersonate any person or entity, or mislead a third party into believing that he or she is interacting directly with cottonTracks or the Extension; or (g) permit any third party to take any action prohibited in (a) through (f).
- Updates. You understand that the Extension is evolving. As a result, we may require you to accept updates to the Extension that you have installed on your Device. You acknowledge and agree that we may update the Extension with or without notifying you. You may need to update third-party software from time to time in order to use the Extension.
- Ownership. cottonTracks and its licensors own the Extension, and other content contained in the foregoing, and all intellectual property rights relating to the foregoing. cottonTracks and its licensors reserve all rights not expressly granted under this Agreement. There are no implied licenses in this Agreement. The Extension and any copy thereof is licensed, not sold, to you under this Agreement.
- Necessary Equipment and Software. You must provide all equipment and software necessary to use the Extension, including but not limited to, a Device that is suitable to connect with and use the Extension. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Extension. You acknowledge and agree that the availability of the Extension is dependent on the third party from whom you received the Extension, e.g., the Opera or Chrome marketplaces.
- Feedback. cottonTracks will treat any suggestions, comments, or feedback relating to cottonTracks’s business, services, and products (“Feedback”) that you provide as non-confidential and non-proprietary. You hereby grant cottonTracks the irrevocable, worldwide, fully transferable and sublicensable right to use and exploit any Feedback that you provide in any manner and for any purpose without any obligation to compensate you.
- Availability and Modification of the Extension. cottonTracks reserves the right, from time to time, with or without notice, to suspend, modify, or discontinue the Extension, in whole or in part. You agree that cottonTracks will not be liable to you or to any third party for modification, discontinuance, or suspension of the Extension, in whole or in part.
- Termination. This Agreement and all licenses granted hereunder are effective on the date you download the Extension and shall continue unless this Agreement is terminated by either party for any reason or no reason. Your rights under this Agreement will terminate automatically without notice from cottonTracks if you fail to comply with any term(s) of this Agreement. Upon termination, all licenses granted by cottonTracks hereunder shall terminate and you shall immediately destroy or permanently erase any copies of the Extension in your possession. You agree that we will have no liability to you for any costs, expenses, losses, damages, or liabilities arising out of or related to our termination of your access to and use of the Extension or this Agreement. Even after this Agreement is terminated for any reason, the following provisions of this Agreement will remain in effect: Sections 2, 4, 5, 6, 7 through 18.
- Warranty Disclaimers.
- NO WARRANTY. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, COTTONTRACKS (AND ITS LICENSORS) PROVIDES THE EXTENSION "AS-IS" AND “AS AVAILABLE” AND EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, AND NON-INFRINGEMENT. COTTONTRACKS (AND ITS LICENSORS) MAKES NO WARRANTY THAT THE EXTENSION WILL BE UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL CODE, TIMELY, SECURE, OR ERROR-FREE. COTTONTRACKS (AND ITS LICENSORS) DOES NOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM THE USE OF THE EXTENSION. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE EXTENSION IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE EXTENSION, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COTTONTRACKS OR THROUGH THE EXTENSION WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. FROM TIME TO TIME, COTTONTRACKS MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT COTTONTRACK’S SOLE DISCRETION.
- Limitation of Liability. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, (A) COTTONTRACKS WILL NOT BE LIABLE FOR ANY LOSS OF USE, LOST PROFITS, OR INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO YOUR USE OF THE EXTENSION, OR THIS AGREEMENT, EVEN IF COTTONTRACKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (B) COTTONTRACKS’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THE EXTENSION AND THIS AGREEMENT WILL AT ALL TIMES BE LIMITED TO FIFTY U.S. DOLLARS (U.S. $50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. IN NO EVENT WILL COTTONTRACKS’ SUPPLIERS OR LICENSORS HAVE ANY LIABILITY UNDER OR RESULTING FROM THIS AGREEMENT.
- Indemnification. You agree to indemnify and hold cottonTracks, its subsidiaries, affiliates, directors, officers, agents, and employees harmless from any loss, liability, claim, demand, costs, or expenses, including reasonable attorney's fees, arising out of or relating to your: (a) use or misuse of the Extension; (b) breach or violation of this Agreement; or (c) violation of applicable laws or any of the rights of third parties. cottonTracks reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of cottonTracks. cottonTracks will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
- For U.S. Government End Users. The Extension is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), and more specifically is “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), the Extension is provided to U.S. Government End Users (a) only as a commercial end item and (b) with only those rights as are granted to all other customers pursuant to the terms and conditions herein.
- Legal Compliance. The Extension and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree to strictly comply with all such laws and regulations and acknowledge that you have the responsibility to obtain authorization to export, re-export, or import the Extension and related technology, as may be required. You represent and warrant that you (a) are not located in a country subject to an U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country and (b) are not listed on any U.S. Government list of prohibited or restricted parties. You will indemnify and hold cottonTracks harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including attorney’s fees) arising from or relating to any breach by you of your representations, warranties, covenants, or obligations under this section.
- Disclosures. cottonTracks is located at 920 Cerro La Parva, Las Condes, Metropolitana, Chile. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
- Dispute Resolution. PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.
- 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 cottonTracks and our employees, agents, successors, or assigns, regarding or relating to the Extension or this Agreement, shall exclusively be settled through binding and confidential arbitration.
- Arbitration shall be subject to the Federal Arbitration Act and not any state 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”) or JAMS. As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s or JAMS’s rules for commercial arbitration and, if the arbitrator deems them applicable, the procedures for consumer-related disputes.
- You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that may be taken to small claims court. 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.
- You and we must abide by the following rules: (1) ANY CLAIMS BROUGHT BY YOU OR US MUST BE BROUGHT IN THE PARTIES’ 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, we 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) we also reserve the right in our 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 arbitrator’s award shall be final and may be enforced in any court of competent jurisdiction; (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 then in such instance, the fees and costs awarded shall be determined by the applicable law.
- Notwithstanding the foregoing, either you or we may bring an individual action in small claims court. Further, claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in San Francisco, California. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in San Francisco, California in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within San Francisco, California for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
- With the exception of subparts (1) and (2) in the paragraph 16(d) above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Agreement, 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 provision were not contained herein. If, however, either subparts (1) and (2) in the paragraph 16(d) (prohibiting arbitration on a class or collective basis) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor we shall be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court in San Francisco, California.
- Notwithstanding any provision in this Agreement to the contrary, if we seek to terminate the Dispute Resolution section as included in the Agreement, any such termination shall not be effective until 30 days after the version of the Agreement not containing the agreement to arbitrate is posted along with the Extension, and shall not be effective as to any claim of which you provided cottonTracks with written notice prior to the date of termination.
- For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org. For more information on JAMS, it’s Rules and Procedures, and how to file an arbitration claim, you may call JAMS at 800-352-5267 or visit the JAMS website at http://www.jamsadr.com.
- Any and all controversies, disputes, demands, counts, claims, or causes of action between you and cottonTracks and our employees, agents, successors, or assigns, regarding or relating to the Extension or this Agreement, shall exclusively be governed by the internal laws of the State of California, without regard to its choice of law rules and without regard to conflicts of laws principles except that the arbitration provision shall be governed by the Federal Arbitration Act.
- General. Neither the rights nor the obligations arising under this Agreement are assignable by you, and any such attempted assignment or transfer shall be void and without effect. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. The Extension is deemed irrevocably accepted upon your download thereof. cottonTracks will have no responsibility to provide maintenance or support services with respect to the Extension. You will comply with all applicable third-party agreements in connection with your use of the Extension. The parties are independent contractors. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. All waivers by cottonTracks will be effective only if in writing. Any waiver or failure by cottonTracks to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. You acknowledge that the Extension contains valuable trade secrets and/or proprietary information of cottonTracks and its licensors, that any actual or threatened breach of Sections 2 (Restrictions) and 4 (Ownership) of this Agreement will constitute immediate, irreparable harm to cottonTracks for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. “Includes” and “including” are not limiting. This Agreement constitutes the final, complete, and exclusive agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral.
- Trademark and Copyright Notice. cottonTracks names, slogans, graphics, logos, and trade names used on the Extension are the trademarks of cottonTracks and may not be used without cottonTracks’ permission. Third-party trademarks, service marks, and trade names that may appear on the Extension are the property of their respective owners. Copyright © 2013, cottonTracks, Inc.
- Questions or Additional information. If you have questions regarding this Agreement, or wish to obtain additional information, please send an e-mail to contact@cottonTracks.com. cottonTracks is located at: 920 Cerro La Parva, Las Condes, Metropolitana, Chile.