End User License Agreement

Important Notice: at this time the Licensed Application may not be accessed or used by persons located outside of the United States. Please see Section “i” below titled “Geographic and Residency Restrictions” for more information.

In the unlikely event that any dispute between you and the Licensor is not resolved by Licensor’s customer service team or consultations between you and the Licensor, this EULA requires arbitration on an individual basis, rather than jury trials or class actions. Please see the Section “t” below titled “Dispute Resolution; Binding Arbitration; Governing Law” to learn more.

The TempoTalk™ Mobile App (the “Licensed Application”) is licensed, not sold, to you by [TempoTalk, LLC], a [Delaware limited liability company] (the “Licensor”). Your license to the Licensed Application is subject to your prior acceptance of and your full compliance with this End User License Agreement (this “EULA”). Licensor reserves all rights in and to the Licensed Application not expressly granted to you under this EULA.

BY CHECKING OR CLICKING THE “AGREE,” “I CONSENT” OR SIMILAR BUTTON OR BOX WHEN THIS OPTION IS PRESENTED TO YOU, YOU:

(A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS EULA;

(B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER OR OTHERWISE OF LEGAL AGE TO ENTER INTO A BINDING LEGAL AGREEMENT;

(C) REPRESENT THAT YOU ARE THE PARENT OR LEGAL GUARDIAN OF EACH MINOR CHILD THAT YOU WILL ALLOW TO USE THE LICENSED APPLICATION;

(D) ACKNOWLEDGE AND AGREE THAT YOU ARE AGREEING TO THE TERMS AND CONDITIONS OF THIS EULA ON BEHALF OF EACH SUCH CHILD;

(E) ACKNOWLEDGE AND AGREE THAT YOU WILL BE SOLELY RESPONSIBLE FOR SUPERVISING EACH SUCH CHILD’S USE OF THE LICENSED APPLICATION AND THAT YOU WILL BE RESPONSIBLE FOR AND LIABLE TO LICENSOR OR ANY OTHER PERSON OR ENTITY FOR ANY ACTIONS OR OMISSIONS OF EACH SUCH CHILD IN CONNECTION WITH SUCH CHILD’S USE OF THE LICENSED APPLICATION AS IF SUCH ACTIONS OR OMISSIONS WERE YOUR OWN;

(F) REPRESENT THAT YOU PRESENTLY COMPLY AND WILL COMPLY WITH ALL GEOGRAPHIC AND RESIDENCY RESTRICTIONS SET FORTH IN SECTION “i” BELOW TITLED “GEOGRAPHIC AND RESIDENCY RESTRICTIONS”; AND

(G) ACCEPT THIS EULA AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.

IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL OR USE THE LICENSED APPLICATION AND DELETE IT FROM YOUR MOBILEDEVICE.

Scope of License: Licensor grants to you a limited, nonexclusive, nontransferable license to download, install and use the Licensed Application for your personal, non-commercial and household uses only, only on an Android- or iOS-based product that you own or control (your “Mobile Device”) and strictly in accordance with this EULA. The terms of this EULA will govern any content, materials, or services accessible from or purchased within the Licensed Application as well as upgrades provided by Licensor that replace or supplement the original Licensed Application, unless such upgrade is accompanied by separate or additional terms and conditions.
: Except as and only to the extent that any of the following limitations and restrictions are prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the Licensed Application, you may not: (i) copy the Licensed Application, except as expressly permitted by this EULA; (ii) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Licensed Application; (iii) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Licensed Application or any part thereof (including any updates) or the underlying structure, ideas, know-how or algorithms relevant to the Licensed Application; (iv) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Licensed Application, including any copy thereof; (v) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Licensed Application, or any features or functionality of the Licensed Application, to any third party (other than any minor child users whose use of the Licensed Application you will supervise and for whom you have agreed to be responsible and liable as described above (“Minor Child Users”)) for any reason, including by making the Licensed Application available on a network where it is capable of being accessed by more than one device at any time; (vi) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Licensed Application; (vii) input, upload, transmit or otherwise provide to or through the Licensed Application any information or materials that are unlawful or injurious, or contain, transmit or activate any virus, malware or other harmful code; (viii) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Licensor’s or its service providers’ servers or systems associated with the Licensed Application or its ability to provide services to any third party; (ix) access or use the Licensed Application (or any data or materials available via the Licensed Application) in any way that infringes, misappropriates or otherwise violates any intellectual property right, privacy right or other right of any person or entity, or that violates any applicable law or regulation; (x) threaten, harass, abuse, slander or defame others; (xi) publish, distribute or disseminate any inappropriate, profane, vulgar, defamatory, infringing, obscene, tortious, indecent, unlawful, offensive, immoral or otherwise objectionable material or information; (xii) upload, post or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation (commercial or otherwise); (xiii) use any manual or automatic process (such as robots, spiders or other automatic devices) to monitor or copy any of the material on the Licensed Application or for any other unauthorized purpose without the prior written consent of Licensor; (xiv) use the Licensed Application to impersonate or attempt to impersonate any person, or misrepresent your identity or affiliation with any person or organization or impersonate another person for the purpose of misleading others as to the identity of the sender or the origin of a message, including, but not limited to, providing misleading information to any feedback system employed through the Licensed Application; or (xv) knowingly aid or assist any other person in taking any of the actions prohibited by this Section “b”. If you sell or gift your Mobile Device to a third party, you must remove the Licensed Application from the Mobile Device before doing so.
Reservation of Rights: You acknowledge and agree that the Licensed Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Licensed Application under this EULA, or any other rights thereto other than to use the Licensed Application in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this EULA. Licensor and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Licensed Application, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this EULA.
Account Security: If you choose, or are provided with, a user name, password or any other piece of information as part of Licensor’s security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to the Licensed Application or portions of it using your user name, password or other security information (other than any Minor Child Users). If you permit any other person to use your account, you will be responsible for their activities while using the Licensed Application. You agree to notify Licensor immediately of any unauthorized access to or use of your user name or password or any other breach of security. Licensor has the right to disable any user name, password or other identifier, whether chosen by you or provided by Licensor, at any time in its sole discretion if, in Licensor’s opinion, the continued use of that user name, password or other identifier would be inappropriate. Accessing and using the Licensed Application without proper user name and password is strictly prohibited, constitutes a breach of this EULA resulting in the immediate termination of your right to use the Licensed Application, and may violate copyright and other laws.
Consent to Use of Technical Data: You agree that Licensor, using automatic means such as cookies and otherwise, may collect and use technical data and related information—including but not limited to technical information about your Mobile Device, system and application software, and peripherals—that is gathered periodically to facilitate the provision of software updates, product support, and other services to you (if any) related to the Licensed Application. Licensor may use this information, as long as it is in a form that does not personally identify you, to improve its products or to provide services or technologies to you.
Consent to Use of Your Information; Privacy Policy: You also may be required to provide certain information about yourself or about Minor Child Users as a condition to or in connection with downloading, installing, or using the Licensed Application or certain of its features or functionality. All information Licensor collects through or in connection with this Licensed Application is subject to the TempoTalk Mobile App Privacy Policy (available online at [TempoTalk.com/privacy]) (the “Privacy Policy”). By downloading, installing, using, and providing information about yourself or about Minor Child Users to or through this Licensed Application, you consent to all actions taken by Licensor with respect to your information in compliance with the Privacy Policy. You are solely responsible for the user data you provide, input or upload to or in the Licensed Application and the consequences of providing it. Licensor does not control the user data you provide and does not have any obligation to monitor such information for any purpose.
HIPAA Does Not Apply. PLEASE BE ADVISED THAT NO PERSONAL INFORMATION COLLECTED BY AND THROUGH YOUR USE OF THE LICENSED APPLICATION IS (NOR SHOULD IT BE DEEMED TO BE) “PROTECTED HEALTH INFORMATION” UNDER THE HEALTH INFORMATION PORTABILITY AND ACCOUNTABILITY ACT (HIPAA). YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT LICENSOR IS NOT A “COVERED ENTITY” OR “BUSINESS ASSOCIATE” UNDER HIPAA AND IS NOT BOUND TO COMPLY (AND DOES NOT INTEND TO COMPLY) WITH THE SPECIFIC REQUIREMENTS OF THE PRIVACY RULE OR SECURITY RULE OR ANY OTHER RULE OR REGULATION UNDER HIPAA WITH RESPECT TO PERSONAL INFORMATION COLLECTED BY AND THROUGH YOUR USE OF THE LICENSED APPLICATION.
COOPERATION WITH AUTHORITIES: LICENSOR RESERVES THE RIGHT TO FULLY COOPERATE WITH ANY LAW ENFORCEMENT AUTHORITIES OR COURT ORDER REQUESTING OR DIRECTING IT TO DISCLOSE THE IDENTITY OR OTHER INFORMATION OF ANYONE POSTING ANY MATERIALS ON OR THROUGH THE LICENSED APPLICATION. YOU WAIVE ANY RIGHT TO ASSERT ANY CLAIMS RESULTING FROM ANY SUCH ACTION TAKEN BY LICENSOR.
: The Licensed Application and its associated content and services are provided from the United States and provided for access and use only by persons located in the United States. The Licensed Application and its associated content and services may not be accessed or used by persons located outside of the United States. While Licensor intends in the future to release a version of the Licensed Application for access and use by persons located outside of the United States, you agree Licensor has no obligation to do so.
Subscription Fees, Payment and Cancellation:

(i) Subscription Fees. In exchange for and as a condition of your access to and use of the Licensed Application, and unless otherwise agreed by us in writing, you will pay to us the fees and charges described for you at the time you register for a subscription to the Service (the “Fees”). A description of our current pricing for Licensed Application subscription fees can be found here: [TempoTalk.com/Subscribe]^[1]. ALL PURCHASES ARE FINAL; NO REFUNDS WILL BE PROVIDED FOR FEES YOU HAVE ALREADY PAID, UNLESS OTHERWISE AGREED BY US IN WRITING.

(ii) Payment Method. All Fees are due immediately when incurred. To make payment of any Fees you incur while using the Licensed Application, you will be asked to provide at least one valid credit card, debit card, or other method of payment (your “Payment Account”). Payment will be made for any Fees by charging the Payment Account provided. It is your responsibility and obligation to provide accurate information pertaining to your Payment Account and to keep all such information current. By providing any payment information to us, you represent and warrant to us that you are authorized to use the payment instrument provided for payment of all Fees under this Agreement. It is your responsibility to ensure the applicable Payment Account has sufficient funds. We are not responsible for bank or credit card fees associated with an overdraft on the applicable Payment Account. If at any time your Payment Account is out of date or is unable to be used by us to charge the Fees to you, we will in good faith attempt to notify you by e-mail to the e-mail address we have on file for your account. Failure to provide up-to-date and accurate Payment Account information may result in, but is not limited to, suspension or termination of your access to the Licensed Application (in addition to, and not in lieu of, our other rights under this EULA, at law or in equity).

(iii) Promotional Pricing. Your subscription to the Licensed Application may start with a free trial offer or other discount (an “Initial Promotion”). Initial Promotions apply only for the period and as specified during sign-up. We reserve the right, in our sole and absolute discretion, to determine your Initial Promotion eligibility and will notify offenders of any perceived fraudulent activity, which may result in, but is not limited to, suspension or termination of your access to the Licensed Application (in addition to, and not in lieu of, our other rights under this EULA, at law or in equity).

(iv) Changes to Fees. Our pricing is subject to change at any time, provided that for any increases to recurring subscription Fee payments we will provide you with at least thirty (30) days’ prior notice before any subscription Fee price increases will be charged to you. In connection with our prior notice to you of any Fee increase, you will be given an opportunity to cancel your subscription before incurring any charges for the increased Fees. If you do not cancel before the next recurring payment is scheduled to be charged (when we have indicated the Fee increase will take effect), the recurring payment at the increased rate will automatically be charged to your Payment Account for the applicable period and in each period thereafter until the subscription period has ended.

(v) Subscription Period and Cancellation. Your subscription to the Licensed Application will automatically recur on a monthly basis (or for an alternate period described for you at the time you submit your subscription order to us). You may cancel your subscription at any time. Instructions for cancelling can be found here if you purchased via Apple or here if you purchased via Google. Cancelling your subscription will stop any future recurring charges, but this will not result in a refund of any previously-paid Fees or charges. No refunds are provided for Fees or charges already paid. If you cancel, your subscription to the Licensed Application (e.g., access to program content) will continue until the end of the last period for which you have paid. If your subscription is due to renew and your payment method fails, your subscription will be automatically cancelled at the end of the current subscription period

(vi) Deletion of Account Data. Please note that cancelling your subscription, terminating this Agreement, and/or deleting the Licensed Application off of your Mobile Device will not automatically result in the deletion of any of your (or your child’s) personal information associated with your account. To request deletion of your and/or your child’s personal information associated with your account please contact us with your request at [info@tempotalk.com].

Updates: Licensor may from time to time in its sole discretion develop and provide Licensed Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Licensor has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the internet either: (i) the Licensed Application will automatically download and install all available Updates; or (ii) you may receive notice of or be prompted to download and install available Updates. You shall promptly download and install all Updates and acknowledge and agree that the Licensed Application or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Licensed Application and be subject to all terms and conditions of this EULA.
Third-Party Materials: The Licensed Application may display, include, or make available certain third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third-Party Materials”). You acknowledge and agree that Licensor is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Licensor does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and any links or other access thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions. Licensor reserves the right to change, suspend, remove, disable or impose access restrictions or limits on any Third-Party Materials at any time without notice or liability to you.
Termination: This EULA is effective until terminated by you or Licensor. Your rights under this EULA will terminate immediately and automatically without any notice to you if you fail to comply with any of its terms. You may terminate this EULA by cancelling your subscription as described above and by deleting the Licensed Application and all copies thereof from your Mobile Device. Licensor may terminate this EULA at any time without notice, for any reason or for no reason, including, but not limited to, if Licensor ceases to support the Licensed Application, which Licensor may do in its sole discretion. Upon termination, all rights granted to you under this EULA will also terminate and you must cease all use of the Licensed Application and delete all copies of the Licensed Application from your Mobile Device and account. Termination will not limit any of Licensor’s rights or remedies at law or in equity.
No Use for Diagnosis, Treatment or Prevention: The Licensed Application is not a medical or therapeutic device and is not intended to diagnose, treat, cure or prevent any disease or condition. Licensor does not offer, and the Licensed Application does not constitute, medical, therapeutic or healthcare services or advice. The information presented on the Licensed Application is made available solely for general information purposes and does not constitute, and is not intended to be, a comprehensive review of any disease, condition or body system. The information presented on the Licensed Application is not a substitute for, and should not be used as a substitute for or a replacement of, clinical or therapeutic decision making, advice, diagnosis and/or treatment by a licensed provider. Accordingly, Licensor does not provide any warranty or representation with respect to the merchantability, fitness or suitability of the Licensed Application for diagnosing, treating, preventing or curing any disease or condition. Because the Licensed Application is not a medical or therapeutic device, it has not been developed or manufactured in accordance with quality standards that may be necessary for materials intended for use in medical or therapeutic device applications and Licensor has not sought or received any rulings from the U.S. Food and Drug Administration or any other relevant regulator or standards body as to the safety or effectiveness of the Licensed Application for medical or therapeutic purposes. Use of the Licensed Application is at your own risk. Any reliance you place on information available via the Licensed Application is strictly at your own risk. Licensor disclaims all liability and responsibility arising from any reliance placed on such materials by you or any other user of the Licensed Application, or by anyone who may be informed of any of its contents. Use of the Licensed Application does not create a physician-patient, therapist-patient or other provider-patient relationship. Licensor may update the content on the Licensed Application from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Licensed Application may be out of date at any given time, and Licensor is under no obligation to update such material. If you experience any medical emergency, immediately consult a licensed professional or call 911.
NO WARRANTY: Licensor strives to provide a reliable and useful experience when using the Licensed Application, but does not guarantee that the Licensed Application will be available at any specific time and will not be liable for any reason if you cannot access the Licensed Application. Licensor reserves the right to alter, enhance, withdraw, restrict the use of or amend the Licensed Application (including, without limitation, the design, look and feel, functionality, content, material, information and/or services provided via the Licensed Application) in Licensor’s sole discretion at any time without notice. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED APPLICATION IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED APPLICATION AND ANY SERVICES PERFORMED OR PROVIDED BY OR RELATED TO THE LICENSED APPLICATION ARE PROVIDED “AS IS” AND “AS AVAILABLE,” “WITH ALL FAULTS” AND WITHOUT WARRANTY OF ANY KIND, AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED APPLICATION AND ANY SERVICES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, OF TITLE, AND OF NONINFRINGEMENT OF THIRD-PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE LICENSED APPLICATION OR ANY RELATED SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
LIMITATION OF LIABILITY: TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL LICENSOR BE LIABLE FOR PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, MOBILE DEVICE FAILURE OR MALFUNCTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OF OR INABILITY TO USE THE LICENSED APPLICATION, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL LICENSOR’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF SUBSCRIPTION FEES YOU HAVE ACTUALLY PAID TO LICENSOR IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING YOUR FIRST CLAIM AGAINST LICENSOR HEREUNDER. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Indemnification: You agree to indemnify, defend, and hold harmless Licensor and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including actual attorneys’ fees, arising from or relating to your misuse of the Licensed Application or your breach of this EULA.
Export Regulation: You may not use or otherwise export or re-export the Licensed Application except as authorized by United States law and the laws of the jurisdiction in which the Licensed Application was obtained. In particular, but without limitation, the Licensed Application may not be exported or re-exported (a) into any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department’s Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. By using the Licensed Application, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons.
U.S. Government Rights: The Licensed Application and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
t. Dispute Resolution; Binding Arbitration; Governing Law:

(i) PLEASE READ THIS SECTION CAREFULLY, BECAUSE THE LICENSOR WANTS YOU TO KNOW AND UNDERSTAND HOW IT AFFECTS YOUR RIGHTS.

(ii) If you have an issue with the Licensed Application, we encourage you to review the Licensed Application’s frequently asked questions page or contact a member of our customer support team.

(iii) If the guidance available on the frequently asked questions page or via consultation with our customer support team is unable to resolve any issues, then you and the Licensor agree to first attempt to settle any claim, controversy or dispute arising out of or relating to this EULA through consultation and negotiation, in good faith and a spirit of mutual cooperation.

(iv) If the parties cannot resolve the claim, controversy or dispute within forty-five (45) days through direct consultation and negotiation, then the claim, controversy or dispute shall be determined by final and binding arbitration to be administered by JAMS under its Comprehensive Arbitration Rules and Procedures. The dispute shall be arbitrated by one arbitrator that is reasonably acceptable to both parties. If the parties are unable to agree upon a single arbitrator, then the parties shall choose an arbitrator by striking from a list of arbitrators supplied by JAMS. The arbitration proceeding must be completed through the rendering of the award within six months of the selection of the arbitrator. The arbitration hearing shall be no longer than five consecutive business days to be equally divided between the parties. The arbitrator shall not have the power to award any punitive or exemplary damages nor attorneys’ fees to either party. The award of the arbitrator shall be accompanied by a written explanation of the basis of the award. The decision of the arbitrators shall be final and binding and may be enforced in any court of competent jurisdiction.

(v) The procedures set forth in this subsection “t” are the exclusive means for resolving any claims, controversies or disputes of any nature whatsoever between the parties (whether in contract, tort or otherwise, including statutory, common law, fraud (whether by misrepresentation or by omission) or other intentional tort, property or equitable claims) arising out of or relating to the Licensed Application, this EULA or the validity, scope, interpretation or enforceability of this subsection “t,” and, except as otherwise expressly provided in this subsection “t,” neither party may initiate or maintain any proceeding in any court or similar tribunal relating to any dispute within the scope of this subsection “t;” provided that either party may seek temporary equitable relief to the extent reasonably necessary to protect its rights under this EULA, in each case from a court of competent jurisdiction.

(vi) This EULA and the rights the parties hereunder shall be governed by and construed in accordance with the laws of the United States and the State of Florida, as applicable, exclusive of conflict or choice of law rules. The parties expressly waive and disclaim the applicability of the United Nations Convention on the International Sale of Goods to the fullest extent permitted by law. The parties acknowledge that this EULA evidences a transaction involving interstate commerce. Notwithstanding the provision immediately above with respect to applicable substantive law, any arbitration conducted pursuant to the terms of this EULA shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16).

(vii) YOU AND THE LICENSOR AGREE TO ARBITRATE IN EACH PARTY’S INDIVIDUAL CAPACITY ONLY, AND NOT AS A REPRESENTATIVE OR MEMBER OF A CLASS, AND EACH PARTY EXPRESSLY WAIVES ANY RIGHT TO FILE A CLASS ACTION OR SEEK RELIEF ON A CLASS BASIS. YOU AGREE THAT ANY ARBITRATION PROCEEDING WILL ONLY CONSIDER YOUR CLAIMS. CLAIMS BY, OR ON BEHALF OF, OTHER INDIVIDUALS, WILL NOT BE ARBITRATED IN ANY PROCEEDING CONSIDERING YOUR CLAIMS. YOU AND THE LICENSOR UNDERSTAND AND AGREE THAT, BECAUSE OF THIS SUBSECTION “t,” NEITHER YOU NOR THE LICENSOR WILL HAVE THE RIGHT TO GO TO COURT (EXCEPT AS PROVIDED HEREIN) OR TO HAVE A JURY TRIAL OR PARTICIPATE AS ANY MEMBER OF A CLASS OF CLAIMANTS PERTAINING TO ANY CLAIM.

(viii) All disputes between the parties and all arbitration proceedings will be private and confidential and, except as may be required by law, neither you nor the Licensor nor any arbitrator may disclose the existence, content or results of any claim, controversy or dispute under arising out of or relating to this EULA or arbitration hereunder without the prior written consent of both parties, unless to protect or pursue a legal right.

(ix) Notwithstanding anything to the contrary in the foregoing, no party shall be precluded from bringing an individual claim in small claims court only, to the extent the applicable claim is within the jurisdictional limits of such court. The parties hereby agree to bring any such claim exclusively in the courts of the State of Florida located in Orlando, Florida, and you and the Licensor hereby irrevocably submit to the exclusive jurisdiction of such courts in any such claim.

(x) This agreement to arbitrate may be enforced by the parties to this EULA and their permitted successors and assigns or their heirs, executors, administrators, affiliates and legal representatives (as applicable), and shall survive the termination or breach of this EULA.

Severability and Waiver: If any provision of this EULA is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this EULA will continue in full force and effect. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder.
Amendment: Except as set forth in Section “z” below titled “Changes to this Agreement,” no change, consent or waiver under this EULA will be effective unless in writing and signed by the party against which enforcement is sought.
No Third Party Beneficiaries: Except as provided in the immediately following sentence, this EULA is for the sole benefit of the parties hereto and their respective successors and permitted assigns and/or heirs, executors, administrators, affiliates and legal representatives and nothing herein, express or implied, is intended to or will confer on any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this EULA. If (and only if) you are accessing and using the Licensed Application in connection with an iOS-based product, you acknowledge and agree that Apple (as defined below), and Apple’s subsidiaries, are third party beneficiaries of this EULA and, upon your acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against you as a third party beneficiary hereof.
Injunctive Relief: You acknowledge and agree that the breach or threatened breach of this EULA would cause irreparable harm to Licensor, the extent of which would be difficult to ascertain. Accordingly, you agree that, in addition to any other remedies to which Licensor may be legally entitled, Licensor may seek immediate injunctive relief without the necessity to post a bond therefor in the event of such breach or threatened breach by you.
Entire Agreement: This EULA and our Privacy Policy and any other documents referenced herein constitute the entire agreement between you and Licensor with respect to the Licensed Application and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Licensed Application.
: Licensor may revise and update this EULA from time to time in its sole discretion. Changes are effective immediately when Licensor posts them, but are not retroactive. Your continued use of the Licensed Application following the posting of a revised EULA means that you accept and agree to the changes. You must check this page frequently so that you are aware of any changes, and immediately discontinue access or use of the Licensed Application if you do not want to agree to the revised EULA.
: If (and only if) you are accessing and using the Licensed Application in connection with an iOS-based product, then the additional terms and conditions of this Section “aa” apply to you. This EULA is concluded between you and Licensor only, and not with Apple Inc. (“Apple”). You and Licensor each acknowledge that Licensor, and not Apple, is responsible for the Licensed Application and the content thereof, subject to the terms and conditions of this EULA. You and Licensor each acknowledge that Apple does not have any obligation whatsoever to furnish any maintenance or support services with respect to the Licensed Application. You and Licensor each acknowledge that, as between Licensor on the one hand, and Apple on the other, Licensor (and not Apple) is responsible for addressing any claims by you or any third party relating to the Licensed Application or your possession and/or use of the Licensed Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Licensed Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation, in each case subject to the terms and conditions of this EULA. To the maximum extent permitted by applicable law, Apple will not have any warranty obligation whatsoever with respect to the Licensed Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Licensor’s sole responsibility, subject to the terms and conditions of this EULA. In the event of any third party claim that the Licensed Application or your possession and use of the Licensed Application in accordance with this EULA infringes that third party’s intellectual property rights (an “Infringement Claim”), Licensor (and not Apple), will be solely responsible for the investigation, defense, settlement and discharge of any such Infringement Claim. Notwithstanding the foregoing, Licensor will have no liability or obligation with respect to any Infringement Claim to the extent based upon or arising out of: (a) access to or use of the Licensed Application in combination with any hardware, system, software, network or other materials or service not provided by Licensor (or authorized in the Licensed Application’s documentation or otherwise in writing by Licensor); (b) modifications or configurations made to the Licensed Application, as applicable, by anyone other than Licensor (or a party acting under Licensor’s direction) without Licensor’s prior written consent; or (c) any action taken by you relating to use of the Licensed Application that violates this EULA or is otherwise outside the scope of the rights and authorizations granted in this EULA.
Comments and Concerns: All feedback, comments and other communications relating to the Licensed Application should be directed to the Licensor:

[TempoTalk, LLC]
Mailing Address: [1414 Kuhl Ave., MP 189, Orlando, FL 32806]
Telephone: [__________]
E-mail: [info@tempotalk.com]

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