Effective Date: 4/21/2021
Last Updated Date: 4/21/2021
IF YOU PURCHASE A SUBSCRIPTION (AS DEFINED BELOW) TO THE SERVICES FOR A TERM (THE “INITIAL TERM”), THEN YOUR SUBSCRIPTION WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT IMMERSION’S THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU OPT OUT OF THE AUTO-RENEWAL / DECLINE TO RENEW YOUR SUBSCRIPTION IN ACCORDANCE WITH SECTION 7.3 BELOW.
PLEASE BE AWARE THAT SECTION 15, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE SERVICES WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
1. OVERVIEW OF THE SERVICES. The Services permit users to upload audio files and mix, master, edit, and manipulate (any such mixing, mastering, editing, or manipulating,“Mixing”) such audio files.
1.1 Access and Use. Subject to your compliance with the Agreement, Immersion grants you permission to access and use the Services solely for your personal use for Mixing audio files that you upload to the Services.
1.2 Certain Restrictions. By accessing and using the Services, you agree that you will not, and will not permit any third party to: (a) license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion thereof; (b) frame or utilize framing techniques to enclose any trademark, logo or other portions of the Services (including images, text, page layout or form); (c) use any metatags or other “hidden text” using Immersion’s name or trademarks; (d) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law or permitted by the function of the Services; (e) use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Services for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) access the Services in order to build a similar or competitive website, application or service; (g) copy, reproduce, distribute, republish, download, display, post or transmit the Services in any form, or by any means (except as expressly stated herein or permitted by the features and functionality of the Services); (h) remove or destroy any copyright notices or other proprietary markings contained on or in the Services; or (i) take any action or upload any audio file or other material or content on or through the Services that: (I) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (II) interferes with or attempts to interfere with the proper functioning of the Services or uses the Services in any way not expressly permitted by the Agreement; or (III) attempts to engage in or engages in, any potentially harmful acts that are directed against the Services, including but not limited to violating or attempting to violate any security features of the Services; introducing viruses, worms or similar harmful code into the Services; or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing” or “crashing” the Services. Any future release, update or other addition to the Services shall be subject to the Agreement, unless otherwise stated by Immersion at the time such release, update or addition is made available to you.
2.1 Registering Your Account. In order to access certain features of the Services you may be required to register for an account on the Services (“Account”).
2.2 Registration Data. You agree to: (a) provide true, accurate, current and complete information about yourself as prompted in registering your Account or linking your SNS (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete at all times. You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to notify Immersion immediately of any unauthorized use of your password or any other breach of security. If you provide any information that is untrue, inaccurate, not current or incomplete, or Immersion has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Immersion has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof).
2.3 Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the Services, including but not limited to, a mobile device that is suitable to connect with and use the Services, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Services.
3.1 Your Content. Immersion does not claim ownership of: (i) any audio files, materials, data, text, or other content you upload or submit to the Services (“Your Uploads”); or (ii) any audio files that result from Mixing of Your Content on the Services (such resulting audio files “Your Mixes”, and together with Your Uploads, “Your Content”). This means that you, and not Immersion, are entirely responsible for Your Content that you upload to the Services. You represent and warrant that you have all necessary right, title, interest and authorization to upload Your Uploads, to perform Mixing of Your Uploads and create Your Mixes using the Services and to grant the rights and licenses granted hereunder in Your Content.
3.2 License Grant to Immersion. You grant Immersion a fully paid, royalty-free, irrevocable, transferable, worldwide, non-exclusive and fully sub-licensable right (including under any of Your moral rights) and license to use, reproduce, modify, and adapt Your Content (in whole or in part) for the purposes of operating and providing the Services to you, and improving the Service, including without limitation by training models and deriving metadata from Your Content (any resulting improvements or metadata, “Insights”). Insights are solely owned by Immersion.
3.3 Access to Your Content. Unless expressly agreed to by Immersion in writing, Immersion has no obligation to store any of Your Content and Immersion has no responsibility or liability for the deletion or accuracy of Your Content; the failure to store, transmit or receive transmission of Your Content; or the security, privacy, storage or transmission of other communications originating with or involving use of the Services. You agree that Immersion retains the right to create reasonable limits on Immersion’s use and storage of Your Content, and on your Mixing, such as limits on file size or number, file type, storage space, processing capacity and other similar limits described on the Services or as otherwise determined by Immersion in its sole discretion.
4. RIGHTS AND OWNERSHIP.4.1 Generally. Immersion and its licensors expressly reserve all of their rights, title and interest, including all intellectual property rights, in and to the Services (including, but not limited to, any computer code, methods of operation and documentation) and Insights. Immersion and all related graphics, logos, service marks and trade names used on or in connection with the Services are the trademarks of Immersion and may not be used without permission in connection with your or any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners.
4.2 Feedback. You agree that submission or provision of any ideas, suggestions, documents and/or proposals to Immersion related to Immersion or its products or services (“Feedback”) is at your own risk and that Immersion has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Immersion a fully paid, royalty-free, perpetual, irrevocable, transferable, worldwide, non-exclusive and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services and/or Immersion’s business.
5. INVESTIGATIONS. Immersion may, but is not obligated to, monitor or review your use of the Services and Your Content at any time. By entering into the Agreement, you hereby provide your irrevocable consent to such monitoring. Although Immersion does not generally monitor user activity occurring in connection with the Services or Your Content, if Immersion becomes aware of any possible violations by you of any provision of the Agreement, Immersion reserves the right to investigate such violations, and Immersion may, at its sole discretion, immediately terminate your license to use the Services, or change, alter or remove Your Content, in whole or in part, without prior notice to you. Without limiting the foregoing, Immersion shall have the right to remove, at any time in its sole discretion, any of Your Content that violates the Agreement or is otherwise objectionable. Immersion reserves the right in its sole discretion to pre-screen, refuse or remove any of Your Content.
6. THIRD-PARTY SERVICES. The Services may contain links and integrations to third-party websites, applications, advertisements, services (collectively “Third-Party Services”), and are subject to the terms and conditions (including privacy policies) of each such Third-Party Service. Such Third-Party Services are not under the control of Immersion, and Immersion is not responsible for any Third-Party Service. Immersion provides these Third-Party Services only as a convenience and does not review, approve, monitor, endorse, warrant or make any representations with respect to Third-Party Services, or their products or services or the functions thereof. Your use of the Third-Party Services is at your own risk. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Service, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
7. FEES AND PURCHASE TERMS.
7.1 Fees. Certain features or functionality offered on or through the Services may be provided for a fee or other charge, including features or functionality for which access and use is purchased on a time limited basis (each a “Subscription”). You agree to pay all fees or charges to your Account, including fees for Subscriptions, in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. Immersion may add new products and services for additional fees and charges, or amend fees and charges for existing products and services, at any time in its sole discretion. Any increased fees for existing Subscriptions will apply solely on a forward-looking basis beginning at the start of the next Subscription Period (as defined below).
7.3 Subscription. The fee for a Subscription will be billed by Immersion or our PSP at the start of your Subscription or, if applicable, at the end of any Free Trial (as defined below) period, and at regular intervals in accordance with your elections at the time of purchase. The timing of billing may change at any time. Your Subscription will continue to automatically renew indefinitely until your Subscription is canceled in accordance with the Agreement. Your Subscription will survive for the Initial Term (defined below), and will automatically renew for consecutive periods of the same duration as the Initial Term (each a “Renewal Term” and any Initial Term or Renewal Term, a “Subscription Period”) on the first day following the end of the then current Subscription Period at Immersion’s then-current price for such Subscription. You agree that your Account will be subject to this automatic renewal feature unless you cancel your Subscription prior to the next Subscription Period by the start of the next billing period. If you cancel your Subscription, such cancellation will be effective as of the end of your then-current Subscription Period, and your Subscription will not be renewed thereafter. By purchasing a Subscription, you authorize Immersion or our PSP to charge your Payment Provider in accordance with your selected Subscription. Upon renewal of your Subscription, if the Immersion or our PSP does not receive payment via your Payment Provider, (i) you agree to pay all amounts due on your Account upon demand and/or (ii) you agree that Immersion may either cancel or suspend your Subscription and Immersion or our PSP may continue to attempt to charge your Payment Provider until payment is received.
7.4 Free Trials and Other Promotions. Certain Subscription offerings may be available on a free trial basis (a “Free Trial”), the period of which will be communicated to you via the Services. Your Free Trial will automatically convert to a paid Subscription and your Payment Provider will be charged for the applicable Subscription at the end of your Free Trial unless you cancel the Subscription in accordance with Section 7.3 before the Free Trial ends. If you fail to cancel the Subscription before the Free Trial ends, the Initial Term for your Subscription will commence upon the expiration of the Free Trial and you will be responsible for payment for your Subscription for the Initial Term and any Renewal Term. Unless otherwise expressly stated, any Free Trial or other promotion that provides a registered user with level access to the Services must be used within the specified time of the trial.
7.5 No Refunds. THERE ARE NO REFUNDS FOR ANY PRODUCTS OR SERVICES PURCHASED ON OR THROUGH THE SERVICES AND WE ARE NOT OBLIGATED TO PROVIDE ANY CREDITS FOR PARTIALLY USED PERIODS.
7.6 Taxes. The payments required under Section 7.1 do not include any Sales Tax that may be due in connection with the Services provided under this Agreement. If Immersion determines it has a legal obligation to collect a Sales Tax from you in connection with this Agreement, Immersion shall collect such Sales Tax in addition to the payments required under Section 7.1. If any Services, or payments for any Services, under the Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Immersion, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Immersion for any liability or expense Immersion may incur in connection with such Sales Taxes. Upon Immersion’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
7.7 Third Party Service Providers. Immersion uses third party service providers for payment services (e.g., card acceptance, merchant settlement and related services) (each a “PSP”). By using the Services, you consent and authorize Immersion and PSPs to share any information and payment instructions you provide with PSPs to the minimum extent required to complete your transactions.
8. Indemnification. You agree to indemnify and hold Immersion, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers and licensors (each, a “Immersion Party” and collectively, the “Immersion Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) violation of the Agreement; (c) your violation of any rights of another party, including any other users; or (d) your violation of any applicable laws, rules or regulations. Immersion reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Immersion in asserting any available defenses. This provision does not require you to indemnify any of the Immersion Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to the Services.
9. DISCLAIMER OF WARRANTIES AND CONDITIONS.
9.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW:
(a) YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS;
(b) IMMERSION PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES;
(c) IMMERSION PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES OR ANY OF YOUR MIXES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICES, INCLUDING ANY OF YOUR CONTENT, WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, INCLUDING ANY OF YOUR CONTENT, WILL BE ACCURATE OR RELIABLE;
(d) ANY OF YOUR CONTENT UPLOADED TO, DOWNLOADED FROM, OR OTHERWISE ACCESSED THROUGH THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT; AND
(e) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM IMMERSION OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
9.2 Limitations. NOTWITHSTANDING THE FOREGOING, THE IMMERSION PARTIES DO NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT UNDER THIS SECTION 9 THAT THE IMMERSION PARTIES ARE PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW.
10. LIMITATION OF LIABILITY.
10.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE IMMERSION PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT IMMERSION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICES, ON ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF AN IMMERSION PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY AN IMMERSION PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY AN IMMERSION PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
10.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL IMMERSION PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF: (A) THE TOTAL AMOUNT PAID TO IMMERSION BY YOU FOR THE USE OF THE SERVICES DURING THE TWELVE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; AND (B) ONE HUNDRED DOLLARS ($100). THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF AN IMMERSION PARTY FOR: (A) DEATH OR PERSONAL INJURY CAUSED BY AN IMMERSION PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY AN IMMERSION PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
10.4 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN IMMERSION AND YOU.
11. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT. It is Immersion’s policy to terminate membership privileges of any user who repeatedly infringes copyright upon prompt notification to Immersion by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on the Services of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written 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; and (f) a statement by you, made 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. Contact information for Immersion’s Copyright Agent for notice of claims of copyright infringement is as follows:
Immersion Networks, Inc.
Attention copyright agent
14727 NE 87th St
Redmond, WA 98052
12.1 Breach. In the event that Immersion determines, in its sole discretion, that you have breached any portion of the Agreement, or have otherwise demonstrated conduct inappropriate for the Services, Immersion reserves the right to, in addition to any rights available to Immersion hereunder or under applicable law:
(a) Delete any of Your Content;
(b) Discontinue your registration(s) with any of the Services;
(c) Discontinue your Subscription; and/or
(d) Notify and/or send Your Content to and/or fully cooperate with the proper law enforcement authorities for further action.
13. TERM AND TERMINATION.
13.1 Term. The Agreement will remain in full force and effect until terminated in accordance with the Agreement.
13.2 Termination of Services by Immersion. Immersion may suspend or terminate your rights to use the Services (including your Account) at any time for any reason at Immersion’s sole discretion, including for any use of the Services in violation of the Agreement. You agree Immersion shall not be liable to you or any third party for any termination of your Account.
13.3 Termination of Services by You. If you want to terminate your Account or the Agreement, you may do so by: (a) notifying Immersion at any time; and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Immersion’s address set forth below. If you have a current Subscription, such termination will be effective as of the end of the then current Subscription Period. SUBSCRIPTIONS WILL AUTOMATICALLY RENEW AT THE END OF EACH SUBSCRIPTION PERIOD UNLESS YOU CANCEL YOUR ACCOUNT OR THIS AGREEMENT IN ACCORDANCE WITH THE FOREGOING OR THE SUBSCRIPTION IN ACCORDANCE WITH THE PROCEDURE SET FORTH IN SECTION 7.3.
13.4 Effect of Termination. Upon the effective date of termination of the Services, your Account, or this Agreement, your Account and right to access and use the Services will automatically terminate. You understand that any such termination may involve deletion of Your Content from our live databases. Immersion will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers and limitation of liability.
14. INTERNATIONAL USERS. The Services may be able to be accessed from countries around the world and may contain references to Services, features, and functionality that are not available in your country. These references do not imply that Immersion intends to announce such Services, features or functionality in your country. The Services are controlled and offered by Immersion from its facilities in the United States of America. Immersion makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
15. DISPUTE RESOLUTION. Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires users to arbitrate disputes with Immersion and limits the manner in which you can seek relief from us.
15.1 Applicability of Arbitration Agreement. You agree that any dispute, claim, or request for relief relating in any way to your access or use of the Services, to any products sold or distributed through the Services, or to any aspect of your relationship with Immersion, will be resolved by binding arbitration, rather than in court, except that (a) you may assert claims or seek relief in small claims court if your claims qualify, and (b) you or Immersion may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
15.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to our registered agent at the address: Immersion Networks, Inc. Attention copyright agent, 14727 NE 87th St, Redmond, WA 98052, USA. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at www.jamsadr.com/rules-streamlined-arbitration; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at www.jamsadr.com/rules-comprehensive-arbitration; JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Immersion will pay them for you. In addition, Immersion will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for disputes, claims, or requests for relief totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
15.3 Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Immersion. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
15.4 Waiver of Jury Trial. YOU AND IMMERSION HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Immersion are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 15.1 (Application of Arbitration Agreement) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
15.5 Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this section’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of California. All other disputes, claims, or requests for relief shall be arbitrated.
15.6 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: firstname.lastname@example.org, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Immersion username (if any), the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
15.7 Severability. Except as provided in Section 15.5 (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
15.8 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Immersion.
15.9 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Immersion makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Immersion at the following address:
Immersion Networks, Inc.
Attention legal department
14727 NE 87th St
Redmond, WA 98052
16. GENERAL PROVISIONS.
16.1 Electronic Communications. The communications between you and Immersion may take place via electronic means, whether you visit the Services or send Immersion e-mails, or whether Immersion posts notices on the Services or communicates with you via e-mail. For contractual purposes, you: (a) consent to receive communications from Immersion in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures and other communications that Immersion provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
16.2 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Immersion’s prior written consent, and any attempted assignment, subcontract, delegation or transfer in violation of the foregoing will be null and void.
16.3 Force Majeure. Immersion shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
16.4 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us at email@example.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
16.5 Exclusive Venue. To the extent the parties are permitted under this Arbitration Agreement to initiate litigation in a court, both you and Immersion agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in the state of California.
16.6 Governing Law. THE AGREEMENT AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT.
16.7 Choice of Language. It is the express wish of the parties that the Agreement and all related documents have been drawn up in English.
16.8 Notice. Where Immersion requires that you provide an e-mail address, you are responsible for providing Immersion with your most current e-mail address. In the event that the last e-mail address you provided to Immersion is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Immersion’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Immersion at the following address: Immersion Networks, Inc., Attention legal department, 14727 NE 87th St, Redmond, WA 98052, USA. Such notice shall be deemed given when received by Immersion by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
16.9 Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
16.10 Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
16.11 Export Control. The Services may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport or transfer, directly or indirectly, any U.S. technical data acquired from Immersion, or any products utilizing such data, in violation of the United States export laws or regulations.
16.12 Consumer Complaints. In accordance with California Civil Code §1789.3, 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.
16.13 Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.