Singlewire End User Licensing Agreement
Effective Date: July 2023
Singlewire Software, LLC (“Singlewire” or “we,” “us” or “our“) provides various mass notification, visitor management and other services (our “Services“) through certain on premise software offerings, websites, mobile applications and online platforms (collectively, our “Platform,” and, together with our Services, our “Offerings“) to business entities that have a current agreement with Singlewire to access, use and/or receive all or a portion of our Offerings (our “Customers“). By accessing or using our Offerings, you agree to read, comply with and be legally bound by: (1) this End User License Agreement (“EULA“); any additional terms and conditions, agreements and policies published by Singlewire on otherwise made available to you that are applicable to your access to or use of our Offerings (the “Rules“); and (3) any other agreements applicable to your access to or use of our Offerings that we enter into with our Customers that authorize you to access and use the Offerings on their behalf (collectively, the “Additional Agreements“). This EULA, the Rules and any and all Additional Agreements are collectively referred to in this EULA as the “Service Agreements“).
THIS EULA REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES RATHER THAN COURT OR JURY TRIALS OR CLASS ACTIONS AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. CAREFULLY REVIEW THE DISPUTE RESOLUTION SECTION OF THIS EULA BEFORE YOU ACCESS OR USE OUR OFFERINGS.
1. Changes to EULA. We may update or modify this EULA from time to time, without limitation, by posting a revised version of this EULA on our website(s) and by publishing a general notice of such changes on our website(s) or through our Offerings. By accessing or using our Offerings after we have provided such notice, you agree to be bound by such updates or modifications.
2. Accessing and Using Our Offerings.
(a) Accounts.
(1) You may be required to create an account, including a username and password, to access or use our Offerings. Once you do so, you are responsible for maintaining the confidentiality of your password and account and you may not share your password or account with another person.
(2) You are responsible for all activities that occur under your account, so be sure to fully exit from your account at the end of each session. If you lose your password or become aware of access to your account other than by you, you agree to notify us immediately. If we believe that your account has been compromised, we may require you to update your password. In the event we reasonably believe your actions affect other users or third parties, we may warn such other users or third parties, including law enforcement. We may also investigate any perceived misuse of your account, refer matters to law enforcement and/or take other legal action. We reserve the right to cancel, suspend or limit the use of your account in our sole discretion.
(3) We are not liable to you or any third party for any unauthorized use of your account, including, without limitation, any damage that results from any compromise or theft of your account.
(b) Restrictions. In accessing or using our Offerings, you may not:
(1) copy, modify or make derivatives or improvements of our Offerings, any manuals, or any other documentation, programs or materials, if any, that we make available to you or the applicable Customer related to our Offerings (collectively, the “Singlewire Materials“);
(2) access or use our Offerings to store or transmit a program, routine or device designed to delete, disable, deactivate, interfere with, prevent access to or otherwise harm any software, program, data, device, system or service, including, without limitation, any time bomb, virus, drop-dead device, malicious logic, worm, Trojan horse, trap or back door;
(3) access or use our Offerings to store or transmit any infringing, defamatory, libelous, obscene or otherwise unlawful or tortious material, or to store or transmit material in violation of third party privacy rights or other rights;
(4) disassemble, reverse engineer, decompile, translate or attempt to reconstruct or discover any source code or underlying ideas, algorithms, file formats or programming or interoperability interfaces of our Offerings;
(5) sell, assign, transfer, sublicense, lease, pledge, distribute, rent or otherwise share your rights under the Service Agreements or include our Offerings or any Singlewire Materials in a service bureau or outsourcing offering;
(6) modify, obscure or remove any product identification or proprietary notices on our Offerings or any Singlewire Materials;
(7) modify or incorporate our Offerings or any Singlewire Materials into or with other software;
(8) interfere with the operation of our Offerings;
(9) bypass, breach or disable any usage limit, security device, copy control or digital rights management tool or other protection used in our Offerings or any Singlewire Materials;
(10) access or use our Offerings or any Singlewire Materials for the purposes of benchmarking or competitive analysis or developing any competitive product or service; or
(11) access or use our Offerings or any Singlewire Materials in violation of any applicable law, regulation or rule.
(c) Customer Requirements. Without limiting anything in the Service Agreements, the applicable Customer may provide you with additional terms that govern your access to or use of our Offerings on behalf of that Customer (“Customer Requirements“). By accessing or using our Offerings, you acknowledge and agree that, where and as applicable: (1) any Customer Requirements are between you and the applicable Customer and you and the applicable Customer are solely responsible for, and Singlewire shall have no obligations with respect to, any Customer Requirements, including, without limitation, resolving any disputes arising out of the Customer Requirements; and (2) notwithstanding the foregoing, you will comply with any applicable Customer Requirements through or in connection with your access to and use of the Offerings.
(d) Feedback. We appreciate your ideas, suggestions, proposals, and other feedback about our Offerings (“Feedback“). By submitting any Feedback to us in any way, you acknowledge and agree that: (1) you will not include any confidential or proprietary information in any of your Feedback; (2) we are not under any obligation of confidentiality, express or implied, with respect to any Feedback; (3) we are entitled to disclose (or choose not to disclose) and use (or choose not to use) Feedback for any purpose and in any way; and (4) you are not entitled to any compensation or reimbursement of any kind from us under any circumstances in connection with our disclosure, development or use of any Feedback.
(e) User Content. Our Offerings may provide users with the ability to add, create, upload, submit, distribute or share content on or through our Offerings (collectively, “User Content“). If you provide any User Content (“Your Content“), you acknowledge that we: (1) have the right to reproduce, translate, encode, publish, use, and distribute any and all of Your Content to the extent necessary to provide and operate our Offerings; (2) have the right to aggregate any and all of Your Content and to use such aggregated content for any lawful purpose, including, without limitation, improving our Offerings; and (3) are not responsible or in any way liable for any corruption, misdelivery, or other loss of any of Your Content. As between you and us, you own all right, title, and interest in and to Your Content.
(f) Private Messages. Our Offerings may provide you with the ability to send private messages to other individuals or devices (“Private Messages“). Except as otherwise provided in the Service Agreements, we will not intentionally make any such Private Messages available to any party or device other than the intended recipient. However, you should remain mindful that there is an inherent risk in the use of the internet. Private Messages may be intercepted without our knowledge or consent, collected illegally and/or forwarded by recipients to others. We cannot guarantee the security, privacy or confidentiality of any information, including your Private Messages, that you disclose online and you do so at your own risk.
(g) Third Party Content and Links.
(1) Our Offerings may allow you to access certain applications, websites, and other content owned or otherwise controlled by third parties (“Third Party Services“). Your access to and/or use of these Third Party Services may be subject to separate terms imposed by the providers of these Third Party Services (“Third Party Terms“). By accessing or using any Third Party Services, you agree to comply with any applicable Third Party Terms presented or that you otherwise agree to in connection with your access to or use of the applicable Third Party Service. We are not responsible or liable for: (1) the availability, functionality or accuracy of any Third Party Services; or (2) the content, products or services on or available through such Third Party Services. Access to or use of Third Party Services through or in connection with your access to or use of our Offerings does not imply any endorsement by Singlewire of the Third Party Services or any products or services available through the Third Party Services.
(2) If our Offerings contain links to other sites and resources provided by third parties, these links are provided for your convenience only. We have no control over the contents of those sites or resources and accept no responsibility for them or for any loss or damage that may arise from your access or use of them. If you decide to access or use any of the third-party websites linked to our Offerings, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
(h) Support. We have no obligation under this EULA to provide you with any support, maintenance, upgrades, modifications or new releases of our Offerings.
3. Ownership and Limited License.
(a) Our Offerings and Singlewire Materials. We (or third parties who have licensed their content to us) own all rights, title and interest in and to our Offerings as provided by us, including, without limitation, all software and code that comprise and operate our Offerings, the text, photographs, illustrations, images, graphics, audio, video, URLs and other materials we provide through or in connection with our Offerings, and all Singlewire Materials. Our Offerings and the Singlewire Materials are protected under trademark, service mark, trade dress, copyright, patent, trade secret and other intellectual property laws. In addition, our Offerings and the Singlewire Materials are each a collective work under U.S. and international copyright laws and treaties, and we own the copyright in the selection, coordination, arrangement and enhancement of our Offerings and the Singlewire Materials. For clarity, the foregoing does not apply to any User Content.
(b) Limited License. Subject to your acceptance of this EULA, the particular portions of our Offerings available to you under, and your compliance with, the applicable Service Agreements, we hereby grant you a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to access and use our Offerings in a manner that is consistent with the applicable Service Agreements and for the intended purposes of our Offerings. For clarity, with respect to any portion of our Offerings that consist of mobile applications or desktop applications, the foregoing rights include the right to download and install the applicable Offerings on permitted devices as described in the applicable Singlewire Materials. You obtain no rights in the Offerings or any Singlewire Materials except to access, use and, where applicable, download and install them in accordance with the applicable Service Agreements. Furthermore, you acknowledge and agree that any Offerings or Singlewire Materials that are provided or otherwise made available to you are provided, as applicable under an authorization or license and are not sold to you.
4. Privacy. For information regarding how we collect, use, and disclose personal information in connection with our Offerings, please see our Privacy Policy, located at https://www.singlewire.com/privacy. Please note, when we process personal information in order to provide or operate our Offerings on behalf of our Customers: (1) we are acting in the capacity of a “data processor” or “service provider” as defined under applicable privacy laws; and (2) our Customer’s may collect, use or disclose such personal information for their own purposes. SINGLEWIRE MAKES NO REPRESENTATION, WARRANTY OR COMMITMENT OF ANY KIND, EXPRESS OR IMPLIED, AND DISCLAIMS ALL LIABILITY RELATING TO OR ARISING FROM OUR CUSTOMER’S PROCESSING OF ANY PERSONAL INFORMATION OR OUR PROCESSING OF PERSONAL INFORMATION AT THE DIRECTION OR ON BEHALF OF OUR CUSTOMERS.
5. DMCA Policy.
(a) Singlewire Policy. Singlewire respects the intellectual property rights of others. You must ensure that Your Content does not infringe any third party’s copyright. We will remove Your Content and other materials contained within our Offerings in accordance with the Digital Millennium Copyright Act (“DMCA“) upon receipt of proper notices that Your Content or other materials contained within our Offerings infringe a third party’s copyright. Additionally, subject to Section 5(d) below, we will terminate your account if you are a repeat infringer.
(b) Notice of Infringement. If you are a copyright owner or an agent thereof and believe that any user submission or other content contained within on our Offerings infringes upon your copyrights, you may submit a notification pursuant to the DMCA to the address provided below. Such notification must contain the following:
(1) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(2) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
(3) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit us to locate the material;
(4) information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail address;
(5) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(6) a statement that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Singlewire may disclose DMCA notices to affected users and third party databases that collect information about copyright takedown notices.
(c) Counter Notifications. If Your Content is removed pursuant to a notice of copyright infringement and you want to challenge the removal, you must provide us a counter notification to the address provided below. Such counter-notification must contain the following:
(1) information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail address;
(2) a description of the material that was removed and where the material previously appeared within on our Offerings reasonably sufficient to permit us to identify the material;
(3) a statement, under penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification;
(4) a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located, or, if your address is outside the United States, any judicial district in which Singlewire may be found (the United States District Court for the Eastern District of Wisconsin) and that you will accept service of process from the person who provided the original DMCA notice or an agent of that person; and
(5) your physical or electronic signature.
We will forward any complete counter-notification to the person who provided the initial DMCA notice. The copyright owner(s) may elect to file a lawsuit against you for copyright infringement. If we do not receive notice that such a lawsuit has been filed within ten (10) business days after we provide notice of your counter-notification, we may, but are not obligated to, restore Your Content and other materials. Until that time, Your Content and other materials will remain removed.
(d) Repeat Infringers. Without limiting anything else in the Service Agreements, we will terminate your account if you receive three (3) DMCA Takedown Actions. A “DMCA Takedown Action” occurs each time Your Content or other materials are removed due to a DMCA notice. We may group multiple DMCA notices received in a short period of time as a single DMCA Takedown Action. We may remove a DMCA Takedown Action in appropriate circumstances, such as where: (1) the material is restored due to a DMCA counter-notification; or (2) the party who provided the DMCA notice withdraws their complaint.
(e) Address for Notices. DMCA notices and counter-notifications may be sent to our designated agent, Nicholas Dearing at the following addresses:
By email to: [email protected]
By mail to:
Singlewire Software, LLC
Attn: Nicholas Dearing (CFO)
PO Box 46218
Madison, WI 53744
Please Note: if you knowingly and materially misrepresent that any material contained or activity occurring within our Offerings infringes your copyright or was removed by mistake or misidentification, you may be held liable for damages under the DMCA.
6. Special Terms for Apps Distributed Through the Apple App Store.
(a) Acknowledgement. Some of our Offerings are available through the Apple App Store (“Singlewire Apple Apps“). You and Singlewire each acknowledge that the Service Agreements and any other terms and conditions imposed by Singlewire with respect to the Singlewire Apple Apps and any other agreements entered into between you and Singlewire in connection with the Singlewire Apple Apps (collectively, the “Singlewire Apple Apps Agreements”) are between you and Singlewire only, and not with Apple, and that Singlewire, not Apple, is solely responsible for the Singlewire Apple Apps and the content thereof. In the event the Singlewire Apple Apps Agreements provide usage rules for the Singlewire Apple Apps that are in conflict with the Apple Media Services Terms and Conditions, the Apple Media Services Terms and Conditions shall control with respect to the Singlewire Apple Apps.
(b) Scope of License. In addition to the other terms set forth in the Singlewire Apple Apps Agreements, the licenses granted to you for the Singlewire Apple Apps are solely for use by you on any Apple-branded product that you own or control and as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions.
(c) Maintenance and Support. Singlewire is solely responsible for providing any maintenance and support services with respect to the Singlewire Apple Apps, as specified in the Singlewire Apple Apps Agreements or as required under applicable law. You and Singlewire acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Singlewire Apple Apps.
(d) Warranty. Singlewire is solely responsible for any product warranties, whether express or implied by law, to the extent not disclaimed in the Singlewire Apple Apps Agreements. In the event of any failure of the Singlewire Apple Apps to conform to any applicable warranty, you may notify Apple and Apple will refund the purchase price for the applicable Singlewire Apple App (if any) to you. Further, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Singlewire Apple Apps, and, subject to the limitations of liability set forth in the Singlewire Apple Apps Agreements, any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform with any warranty will be Singlewire’s sole responsibility.
(e) Product Claims. You and Singlewire acknowledge that Singlewire, not Apple, is responsible for addressing any claims that you or any third party have relating to the Singlewire Apple Apps or your possession and/or use of the Singlewire Apple Apps, including, but not limited to: (1) product liability claims; (2) any claim that the Singlewire Apple Apps fail to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection, privacy or similar legislation.
(f) Intellectual Property Rights. You and Singlewire acknowledge that, in the event of any third-party claim that the Singlewire Apple Apps or your possession and use of the Singlewire Apple Apps infringe that third party’s intellectual property rights, subject to the limitations of liability and indemnification obligations set forth in the Singlewire Apple Apps Agreements, Singlewire, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
(g) Third Party Terms. You must comply with applicable third-party terms when using the Singlewire Apple Apps.
(h) Third Party Beneficiary. You and Singlewire acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries to this EULA as applicable to the Singlewire Apple Apps, and that, upon your acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA (as applicable) against you as a third-party beneficiary thereof.
7. Termination.
(a) Right to Terminate. We reserve the right, with or without notice and in our sole discretion, to terminate this EULA, your account and/or your ability to access or use our Offerings or any Singlewire Materials for any reason, including, without limitation: (1) for lack of use; (2) if we believe that you have violated or acted inconsistently with the letter or spirit of the applicable Service Agreements; (3) in the case of any activity by you that may harm us or other users, including, but not limited to, fraud, abuse of privileges, or misuse of our Offerings or any Singlewire Materials; or (4) any applicable Service Agreement expires or is terminated. You agree that we will not be liable to you or any third party for any such termination.
(b) Effect of Termination. Upon expiration or earlier termination of this EULA, all rights granted to you under this EULA will also terminate and you shall immediately discontinue accessing and using our Offerings and any Singlewire Materials.
8. Disclaimers and Limitations of Liability.
(a) Disclaimers. IN ADDITION TO, AND NOT IN LIEU OF, ANY DISCLAIMERS SET FORTH IN THE APPLICABLE SERVICE AGREEMENTS, OUR OFFERINGS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITH ALL FAULTS AND WITHOUT ANY CONDITION OR WARRANTY, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING NO IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, QUIET POSSESSION, OR NON-INFRINGEMENT. NOTHING WE OR OUR AFFILIATES SAY OR WRITE SHALL CREATE A WARRANTY OF ANY KIND. WE DO NOT WARRANT THAT OUR OFFERINGS, OR ANY OF THE RESULTS FROM THE USE THEREOF, WILL MEET YOUR, OR ANY THIRD PARTY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE WITH ANY SOFTWARE, SYSTEMS OR OTHER SERVICES OR BE SECURE, ACCURATE, COMPLETE OR FREE OF HARMFUL CODE. WE EXPRESSLY DISCLAIM THAT OUR OFFERINGS WILL BE WITHOUT ERROR OR INVULNERABLE TO VIRUSES, WORMS OR OTHER HARMFUL SOFTWARE. WE DO NOT REPRESENT THAT ANY DATA, COMMUNICATIONS, PERSONALIZED SETTINGS OR OTHER INFORMATION THAT WE COLLECT, STORE OR TRANSMIT IN CONNECTION WITH YOUR ACCESS TO AND USE OF OUR OFFERINGS WILL NEVER BE ERRONEOUSLY DELETED OR MISDELIVERED. YOUR ACCESS TO AND USE OF OUR OFFERINGS, DOWNLOAD AND INSTALLATION OF ANY SOFTWARE RELATING TO OUR OFFERINGS AND USE OF ANY INFORMATION WE MAY PROVIDE, OR RESULTS GENERATED, THROUGH OR IN CONNECTION WITH YOUR ACCESS TO OR USE OF OUR OFFERINGS IS AT YOUR SOLE OPTION, DISCRETION AND RISK.
(b) Your Liability.
(1) YOU AGREE THAT YOU WILL ONLY ACCESS AND USE OUR OFFERINGS IN ACCORDANCE WITH THE APPLICABLE SERVICE AGREEMENTS. YOU WILL COMPENSATE SINGLEWIRE IN FULL FOR ANY LOSSES OR COSTS (INCLUDING REASONABLE ATTORNEYS’ FEES) FOR WHICH SINGLEWIRE (OR ANY OF SINGLEWIRE’S SUBSIDIARIES OR AFFILIATED COMPANIES) INCUR ARISING FROM ANY BREACH BY YOU OF THE APPLICABLE SERVICE AGREEMENTS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU AGREE TO INDEMNIFY, DEFEND AND HOLD SINGLEWIRE, ITS SUBSIDIARIES AND AFFILIATES AND ITS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND OTHER REPRESENTATIVES (THE “RELEASED PARTIES“) HARMLESS FROM AND AGAINST ANY CLAIM OR DEMAND, INCLUDING REASONABLE ATTORNEYS’ FEES, MADE BY ANY THIRD PARTY DUE TO OR ARISING OUT OF YOUR ACCESS TO OR USE OF OUR OFFERINGS, YOUR CONNECTION TO OUR OFFERINGS, YOUR VIOLATION OF THE APPLICABLE SERVICE AGREEMENTS OR YOUR INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY OTHER PERSON OR ENTITY.
(2) The Released Parties reserve the right to seek all remedies available at law and in equity for your violation of the applicable Service Agreements, including, without limitation, the right to block access from a particular Internet address to our Offerings and report misuses to law enforcement.
(c) Limitation of Our Liability.
(1) WITHOUT LIMITING ANYTHING SET FORTH IN THE APPLICABLE SERVICE AGREEMENTS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, OUR ENTIRE AGGREGATE LIABILITY, AND YOUR EXCLUSIVE REMEDY, WITH RESPECT TO YOUR ACCESS TO AND USE OF OUR OFFERINGS OR ANY SINGLEWIRE MATERIALS SHALL BE THE AMOUNT OF $100.
(2) IN NO EVENT WILL WE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR ACCESS TO OR USE OF OUR OFFERINGS OR ANY SINGLEWIRE MATERIALS OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR ACCESS TO OR USE OF OUR OFFERINGS OR ANY SINGLEWIRE MATERIALS.
(3) THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR SINGLEWIRE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(4) SOME STATES OR JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, SO SOME OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. IN SUCH STATES OR JURISDICTIONS, THE RELEASED PARTIES’ LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9. Dispute Resolution.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS.
(a) Waiver of Rights. YOU AGREE THAT BY ACCESSING OR USING OUR OFFERINGS, YOU ARE WAIVING THE RIGHT TO A COURT OR JURY TRIAL. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST THE RELEASED PARTIES ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE OR COLLECTIVE PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS. CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. IF THE FOREGOING CLASS ACTION WAIVER IS DEEMED INVALID OR UNENFORCEABLE, YOU AND SINGLEWIRE EACH AGREE NOT TO SEEK, AND WAIVE ANY RIGHT, TO ARBITRATE, LITIGATE OR OTHERWISE RESOLVE ANY DISPUTE THROUGH CLASS OR COLLECTIVE CLAIMS.
(b) Agreement to Arbitrate.
(1) YOU AND SINGLEWIRE AGREE THAT, EXCEPT AS PROVIDED IN SECTION 9(b)(2) BELOW OR IF YOU OPT OUT OF THIS AGREEMENT TO ARBITRATE IN ACCORDANCE WITH SECTION 9(d) BELOW, ALL CLAIMS AND DISPUTES ARISING FROM OR RELATING IN ANY WAY TO THE SUBJECT MATTER OF THIS EULA OR YOUR ACCESS TO OR USE OF OUR OFFERINGS SHALL BE FINALLY SETTLED AND RESOLVED TROUGH BINDING INDIVIDUAL ARBITRATION AS DESCRIBED IN THIS SECTION.
(2) NOTWITHSTANDING SECTION 9(b)(1), YOU AND SINGLEWIRE AGREE THAT THE FOLLOWING DISPUTES ARE NOT SUBJECT TO BINDING ARBITRATION: (1) ANY DISPUTES SEEKING TO ENFORCE OR PROTECT, OR CONCERNING THE VALIDITY OF, ANY OF YOUR OR SINGLEWIRE’S INTELLECTUAL PROPERTY RIGHTS; (2) ANY DISPUTE RELATED TO, OR ARISING FROM, ALLEGATIONS OF THEFT, PIRACY, INVASION OF PRIVACY OR UNAUTHORIZED USE; AND (3) ANY CLAIM FOR INJUNCTIVE RELIEF. IF THIS SECTION IS FOUND TO BE ILLEGAL OR UNENFORCEABLE THEN NEITHER YOU NOR SINGLEWIRE WILL ELECT TO ARBITRATE ANY DISPUTE FALLING WITHIN THAT PORTION OF THIS SECTION FOUND TO BE ILLEGAL OR UNENFORCEABLE AND SUCH DISPUTE SHALL BE DECIDED BY A COURT OF COMPETENT JURISDICTION WITHIN THE COURTS LISTED FOR JURISDICTION BELOW, AND YOU AND SINGLEWIRE AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF THAT COURT.
(3) THIS AGREEMENT TO ARBITRATE INVOLVES INTERSTATE COMMERCE, AND, THEREFORE, SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT, 9 U.S.C. 1-16 (“FAA“), AND NOT BY STATE LAW.
(4) THIS AGREEMENT TO ARBITRATE IS INTENDED TO BE INTERPRETED BROADLY PURSUANT TO THE FAA.
(5) THE ARBITRATION WILL BE GOVERNED BY THE COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA“), AS MODIFIED BY THIS SECTION.
(6) FOR ANY CLAIM WHERE THE TOTAL AMOUNT OF THE AWARD IS SOUGHT IS $10,000 OR LESS: (1) THE ARBITRATION SHALL BE CONDUCTED SOLELY BASED ON TELEPHONE OR ONLINE APPEARANCES AND/OR WRITTEN SUBMISSIONS; AND (2) THE ARBITRATION SHALL NOT INVOLVE ANY PERSONAL APPEARANCE BY THE PARTIES OR WITNESSES UNLESS OTHERWISE MUTUALLY AGREED BY THE PARTIES. IF THE CLAIM EXCEEDS $10,000, THE RIGHT TO A HEARING WILL BE DETERMINED BY THE AAA RULES AND THE HEARING (IF ANY) WILL TAKE PLACE IN MILWAUKEE, WISCONSIN.
(7) THE ARBITRATOR IS BOUND BY THIS AGREEMENT TO ARBITRATE. YOU AND SINGLEWIRE ACKNOWLEDGE AND AGREE THAT, IN ANY ARBITRATION PROCEEDING, NO DEPOSITIONS WILL BE TAKEN AND ALL OTHER FORMS OF DISCOVERY OF FACTS WILL BE LIMITED TO THOSE THINGS THAT THE ARBITRATOR DETERMINES, IN ITS SOLE DISCRETION, TO BE NECESSARY. FURTHER, IN ANY ARBITRATION PROCEEDING: (1) THERE SHALL BE NO PUNITIVE, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL OR OTHER SPECIAL DAMAGES; (2) ALL DAMAGES, CLAIMS, AND AWARDS WILL BE GOVERNED BY WISCONSIN LAW; (3) THE PARTIES WILL CONDUCT THE ARBITRATION CONFIDENTIALLY AND EXPEDITIOUSLY AND WILL PAY THEIR OWN COSTS AND EXPENSES OF ARBITRATION, INCLUDING THEIR OWN ATTORNEYS’ FEES. IF YOU PROVE THAT YOU ARE UNABLE TO AFFORD THE AAA FEE, YOU AGREE TO NOTIFY ALL PERSONS AGAINST WHOM YOU HAVE AN ARBITRABLE CLAIM AND GIVE SUCH PERSONS THE OPPORTUNITY, INDIVIDUALLY AND AS A GROUP, TO PAY SUCH FEE. THE PROCEEDING AND THE DECISION SHALL BE KEPT CONFIDENTIAL BY THE PARTIES.
(8) THE ARBITRATOR SHALL NOT CONSOLIDATE THE CLAIMS OF MULTIPLE PARTIES.
(9) THE ARBITRATOR MAY AWARD DECLARATORY OR INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM.
(10) THE ARBITRATOR’S RULING IS BINDING AND MAY BE ENTERED AS A JUDGMENT IN ANY COURT OF COMPETENT JURISDICTION OR APPLICATION MAY BE MADE TO SUCH COURT FOR JUDICIAL ACCEPTANCE OF ANY AWARD AND AN ORDER OF ENFORCEMENT, AS THE CASE MAY BE.
(11) EXCEPT IN THE EVENT YOU OPT OUT OF THIS AGREEMENT TO ARBITRATE IN ACCORDANCE WITH SECTION 9(d), THIS AGREEMENT TO ARBITRATE WILL SURVIVE TERMINATION OF YOUR ACCESS TO OUR USE OF OUR OFFERINGS AND YOUR RELATIONSHIP WITH THE RELEASED PARTIES.
(12) EXCEPT FOR THE TYPES OF DISPUTES DESCRIBED IN SECTION 9(b)(2) ABOVE, ALL OTHER CHALLENGES TO THE VALIDITY AND APPLICABILITY OF THIS AGREEMENT TO ARBITRATE (i.e., WHETHER A PARTICULAR CLAIM OR DISPUTE IS SUBJECT TO ARBITRATION) SHALL BE DETERMINED BY THE ARBITRATOR.
(c) Information About Arbitration. Information on AAA and how to start arbitration can be found at https://adr.org. There is no judge or jury in arbitration. Arbitration procedures are simpler and more limited than rules applicable in court and review by a court is limited. You will not be able to have a court or jury trial or participate in a class action nor class arbitration. YOU UNDERSTAND AND AGREE THAT BY AGREEING TO RESOLVE ANY DISPUTE THROUGH INDIVIDUAL ARBITRATION, YOU ARE WAIVING THE RIGHT TO A COURT OR JURY TRIAL AND THAT ANY DISPUTE WILL BE ARBITRATED ON AN INDIVIDUAL BASIS, AND NOT AS A CLASS ACTION, REPRESENTATIVE ACTION, CLASS ARBITRATION, OR SIMILAR PROCEEDING.
(d) Opt-Out of Agreement to Arbitrate. If you wish to opt-out of the agreement to arbitrate, within 45 days of the effective date of this EULA or when you first access or use our Offerings, whichever is later, you must send us a letter stating: “Request to Opt-Out of Agreement to Arbitrate” to:
Singlewire Software, LLC
PO Box 46218
Madison, WI 53744
(e) Venue for Litigation. If the agreement to arbitrate in Section 9(b) above is found unenforceable or to not apply for a given dispute, or if you opt-out of the agreement to arbitrate in accordance with Section 9(d), then, unless prohibited by applicable law, the proceedings must be brought exclusively in the United States District Court for the Eastern District of Wisconsin or the courts of the State of Wisconsin located in Milwaukee, Wisconsin, as appropriate. You also therefore agree to submit to the personal jurisdiction of each of these courts for the purposes of litigating such claims or disputes and you hereby waive your right to a jury trial, waive your right to initiate or participate in a class or collective action, and agree to remain bound by any and all limitations of liability and damages included in this EULA.
(f) Prevailing Party. In any arbitration proceeding or litigation, as applicable, between you and the Released Parties in connection with this EULA, your access to or use of our Offerings, or your dealings with the Released Parties in connection therewith, the prevailing party will be entitled to receive from the other party, in addition to all other damages to which it may be entitled, the costs incurred by such the prevailing party in conducting such arbitration or litigation, as applicable, including, without limitation, reasonable attorneys’ fees, expenses, and court costs.
10. Miscellaneous.
(a) Conflicts. In the event of any conflict or inconsistency between the provisions of any Service Agreement, this EULA, and/or the Rules, the governing order of precedence shall be in the priority listed in this sentence.
(b) Governing Law and Forum. This EULA will be governed by the laws of the State of Wisconsin without giving effect to any principles of conflicts of laws. Unless prohibited by applicable law and subject to the agreement to arbitrate set forth in Section 9(b), any and all claims or disputes arising from or relating in any way to the subject matter of this EULA or your access to or use of our Offerings or any Singlewire Materials must be brought exclusively in the United States District Court for the Eastern District of Wisconsin or the courts of the State of Wisconsin located in Milwaukee, Wisconsin, as appropriate. You also therefore, unless prohibited by applicable law, agree to submit to the personal jurisdiction of each of these courts for the purpose of litigating such claims or disputes.
(c) Waiver of Trial by Jury. YOU AND SINGLEWIRE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH KNOWINGLY, VOLUNTARILY, UNCONDITIONALLY AND INTENTIONALLY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS EULA.
(d) Waiver and Cumulative Remedies. No failure or delay by you or us in exercising any right under this EULA shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies you or we have under the applicable Services Agreements, at law or in equity.
(e) Survival. The provisions of this EULA which by their nature are intended to survive the termination or cancellation of this EULA shall continue as valid and enforceable obligations notwithstanding any such termination or cancellation.
(f) Severability. If any part of this EULA is determined to be invalid or unenforceable pursuant to applicable law, including, but not limited to, any warranty disclaimers and limitations of liability set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this EULA shall continue in effect.
(g) Electronic Communications. The communications between you and Singlewire use electronic means. For contractual purposes, you: (1) consent to receive communications from us in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures and other communications that we provide to you electronically, including, without limitation, the Service Agreements, satisfy any legal requirement that such communications would satisfy if they were provided in a hardcopy writing. The foregoing does not affect your non-waivable rights.
(h) Assignment. We reserve the right to transfer, assign, sublicense or pledge any or all of the Service Agreements, in whole or in part, to any person without notice to you, provided that any such assignment will be on the same terms or terms that are no less advantageous to you. You may not assign, sublicense, pledge or otherwise transfer in any manner whatsoever any of your rights or obligations under the Service Agreements.
11. Contact Us. If you have any questions concerning this EULA, please contact us at [email protected].