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Primitive Terms of Use and End User License Agreement
Last Updated: January 5, 2018
Welcome, and thank you for your interest in Prime Software Systems, Inc. (“Primitive,” “we,” or “us”) and our website at , along with our virtual reality application PrimitiveTM (the “Primitive Software” or “Desktop Client”) and our related services provided by us (collectively, our “Service”). This Primitive Terms of Use and End User License Agreement (this “EULA”), is a legally binding contract between you and Primitive regarding your use of the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY, BEFORE INSTALLING THE PRIMITIVE SOFTWARE. BY CLICKING “I ACCEPT,” OR BY INSTALLING, COPYING, AND/OR OTHERWISE USING THE PRIMITIVE SOFTWARE OR THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS EULA. If you are not eligible, or do not agree to this EULA, then you do not have our permission to use the Service.
Your use of the Service is also subject to the terms and conditions set forth in the SteamTM Subscriber Agreement and/or any other terms set forth by Valve Corporation in relation to the Steam Service.
You acknowledge and agree that, as provided in greater detail in this EULA:
• the Primitive Software is licensed, not sold to you, and you may use the Service only as set forth in this EULA;
• the Service is provided “as is” without warranties of any kind and Primitive’s liability to you is limited;
• disputes arising under this EULA will be resolved by binding arbitration, and by accepting this EULA, as described in greater detail in Section 24, you and Primitive are each waiving the right to a trial by jury or to participate in a class action;
1. Primitive Service Overview. Primitive is a platform for visualizing source code in virtual reality.
2. Eligibility. You must be at least 13 years of age to use the Service. By agreeing to this EULA, you represent and warrant to us that: (a) you are at least 13 years of age; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service complies with all applicable laws and regulations. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to this EULA and you agree to be bound by this EULA on behalf of that organization.
3. Access. To access the Service, you must obtain access through a registered account with an authorized party, such as the Steam Service by Valve Corporation. You are solely responsible for maintaining any account privileges necessary to access the Service. We reserve the right to revoke your access to the Service at any time.
4. Primitive Software License. Subject to your complete and ongoing compliance with the terms and conditions in this EULA (including without limitation payment of any applicable fees and compliance with all license restrictions), Primitive grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to each copy of the Desktop Client (i.e., the “Primitive Software”) downloaded directly from a legitimate marketplace (such as, e.g., the Oculus, Steam, Samsung, or Microsoft store), solely in object code format, for your personal use for lawful purposes, on a single compatible device you own or control, and to access and use the Service in accordance with this EULA. You may not reproduce, distribute, publicly display, or publicly perform the Primitive Software or any part of the Service. Unless, and solely to the extent that, such a restriction is impermissible under applicable law or applicable third party license, you may not: (a) decompile, reverse engineer, or otherwise access or attempt to access the source code for the Primitive Software, or make or attempt to make any modification to the Primitive Software; or (b) interfere with or circumvent any feature of the Primitive Software, including without limitation any security, or access control mechanism. You may not use the Primitive Software or the Service for any purpose other than a purpose for which the Primitive Software and the Service are expressly designed. The term Primitive Software, as used in this EULA, includes any update or modification to the Primitive Software made available to you by Primitive (unless provided with separate terms). If you are prohibited under applicable law from using the Primitive Software or the Service, you may not use them. You represent and covenant that you have complied and will continue to comply with the rights and obligations set forth in this Section 4 with regards to your use of any Service previously downloaded or accessed.
5. Primitive Analyses. Subject to your complete and ongoing compliance with the terms and conditions in this EULA, Primitive grants you a limited, personal, worldwide, royalty-free, non-exclusive, nonsublicenseable, and nontransferable license to explore Primitive analyses of code bases made available to you through the Service. Primitive makes no representation or warranty as to the availability of any specific code analysis for exploration through the Primitive Software.
6. Payment. Access to the Service, or to certain features of the Service, may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. dollars and are non-refundable. If Primitive changes the fees for the Service, including by adding additional fees or charges, Primitive will provide you advance notice of those changes. If you do not accept the changes, Primitive may discontinue providing the Service to you. Primitive will charge the payment method you specify at the time of purchase. You authorize Primitive to charge all sums as described in this EULA, for the Service you select, to that payment method. If you pay any fees with a credit card, Primitive may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. If you use the Service to update or cancel any existing authorized payment, it may take up to 10 business days for the update or cancellation to take effect.
7. Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
8. Contact Information. The Desktop Client, Primitive Software, and the Service are offered by Prime Software Systems Inc., located at 55 E 3rd Ave San Mateo CA 94401. You may contact us by sending correspondence to that address or by emailing us at [email protected].
9. Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:
• use the Service for any illegal purpose or in violation of any local, state, national, or international law;
• violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
• interfere with security-related features of the Service, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Service, except to the extent that the activity is expressly permitted by applicable law;
• upload to the Service any software code, routine, or instructions that interfere with, or otherwise attempt to impair, the operation of the Service, any user’s enjoyment of the Service, or any user’s underlying code or hardware, including by: (a) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Service; (c) attempting to collect personal information about another user or third party without consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service, or violating any regulation, policy, or procedure of any such network, equipment, or server;
• perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth;
• bypass any security or other features of the Service designed to control how the Service is used, harvest, or mine User Content from the Service, or otherwise access or use the Service in a manner inconsistent with individual human usage;
• use any robot, spambot, spider, crawler, scraper, or other automated means or interface not provided by us to access the Service or to extract data;
• decipher, reverse engineer, derive source code, decompile, or disassemble the Service or the Primitive Software, or the software used to provide the Service or the Primitive Software, in whole or in part, or authorize, direct, or cause a third party to do so;
• use, display, mirror, frame, or utilize framing techniques to enclose the Service or any content available through the Service (“Content”), or any portion or component of the Service, unless and solely to the extent Primitive provides the means for embedding any part of the Service or the Content;
• access, tamper with, or use non-public areas of the Service, Primitive’s (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of Primitive’s providers;
• use the Service in any manner to harass, abuse, stalk, threaten, defame, or otherwise infringe or violate the rights of any other party;
• make copies of the Primitive Software or any part thereof, or create derivate works of the Primitive Software or any part thereof in whole or in part (except as applicable law expressly permits in which case all and any lawful modifications, adaptations, or improvements and all copyrights therein shall be deemed assigned to and shall belong to, vest in, and be the exclusive property of Prime Software Systems, Inc. on creation, in any event);
• create data or executable programs that mimic data or functionality in the Primitive Software;
• sell or otherwise transfer the access granted under this EULA or any Materials (as defined below) or any right or ability to view, access, or use any Material; or
• attempt to do any of the acts described in this Section 9, or assist or permit any person in engaging in any of the acts described in this Section 9.
10. Termination of Use; Discontinuation and Modification of the Service. You may terminate your license at any time by destroying the Desktop Client and any other software related to the Service. If you terminate your license, you remain obligated to pay all outstanding fees, if any, incurred prior to termination relating to your use of the Service. If you violate any provision of this EULA, your permission from us to use the Service will terminate automatically. In addition, Primitive may in its sole discretion suspend or terminate your access to the Service at any time for any reason or no reason, with or without notice. We also reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service.
11. Pre-Release Software License. Primitive may from time to time make one or more pre-release version(s) of the Primitive Software accessible to you prior to the general commercial release of such software. You are not required to use any pre-release (such as, e.g., an “alpha” or “beta” release) of the Primitive Software, but if you elect to use it, your right to such use may be limited in time and may be subject to Additional Terms, and you specifically acknowledge, in addition to the waivers and limitations of liability set forth under Sections 19-21 (Disclaimers; No Warranties; Limitation of Liability; Third Party Disputes), that any such release of the Primitive Software is only released for testing and improvement purposes, in particular to provide Primitive with feedback on the quality and usability of the Primitive Software, and therefore may contain errors, is not final, and may create incompatibilities or damage to your computer, data, and/or software, and you therefore shall only use it in compliance with its purposes, and not on a system or for purposes where the malfunction of the Primitive Software can cause any kind of damage.
12. Consent to Use of Data. You agree that Primitive may collect and use technical data and related information, including but not limited to UDID and other technical information about your device, system and Primitive 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 Service, and to anonymously track and report your activity inside of the Service, including for analytics purposes. If you are located outside of the United States, you expressly consent to the transfer and processing of your data outside your home jurisdiction.
13. IP Ownership, Reservation of Rights. The Service, including the Primitive Software and Desktop Client, is owned and operated by Primitive. The Primitive Software, Desktop Client, content, visual interfaces, interactive features, information, graphics, design, compilation, computer code, products, services, and all other elements of the Service (the “Materials”), are protected by copyright, trade dress, patent, and trademark laws of the United States and other jurisdictions, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. As between you and Primitive, all Materials, including all associated intellectual property rights, are the sole and exclusive property of Primitive, its subsidiaries or affiliated companies, or its third-party licensors. You may not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or use the Materials except as expressly authorized under this EULA. Primitive reserves all rights not expressly granted in this EULA. You do not acquire any right, title, or interest to the Materials, whether by implication, estoppel, or otherwise, except for the limited rights set forth in this EULA.
14. Third Party Software. The software you download comprises a package of components, including certain third party software (“Third Party Software”) provided under separate license terms (the “Third Party Terms”). Your use of the Third Party Software in conjunction with the Primitive Software in a manner consistent with this EULA is permitted; however, you may have broader rights under the applicable Third Party Terms and nothing in this EULA is intended to impose further restrictions on your use of the Third Party Software. The Service may contain or be provided together with open source software. Each item of open source software is subject to its own applicable license terms, which can be found at or in the Service’s documentation or the applicable help, notices, about or source files. Copyrights to the open source software are held by the respective copyright holders indicated therein.
15. Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”), such as additional license agreements for any downloadable Materials, or rules that apply to particular features or content on the Service, subject to the section of this EULA titled “Modification of this EULA”. All Additional Terms are incorporated by this reference into, and made a part of, this EULA.
16. Modification of this EULA. We reserve the right, at our discretion, to change this EULA on a going-forward basis at any time. Please check this EULA periodically for changes. If a change to this EULA materially modifies your rights or obligations, you will be required to accept the modified EULA in order to continue to use the Service. This EULA will be identified by the most recent date of revision and will be effective immediately upon being made available through or otherwise through the Service, except: (a) if any such modification materially alters your rights under this EULA, we will attempt to notify you through a pop-up window or other notification when you access or use the Service; (b) such materially modified EULA will be effective upon the earlier of your use of the Service with actual knowledge of the changes or thirty days after the changes are made available to you; and (c) no modifications to this EULA will apply to any dispute between you and Primitive that arose prior to the date of such modification. Your use of the Service after modifications to this EULA become effective constitutes your binding acceptance of such changes. If you are dissatisfied with the terms of this EULA or any modifications to this EULA, then you agree that your sole and exclusive remedy is to discontinue any use of the Service.
17. Feedback. If you provide Primitive with any comments, bug reports, feedback, or modifications proposed or suggested by you for the Service (“Feedback”), such Feedback is provided on a non-confidential basis (notwithstanding any notice to the contrary you may include in any accompanying communication), and Primitive will have the right to use such Feedback at its discretion, including, but not limited to the incorporation of such suggested changes into the Service. You hereby grant Primitive a perpetual, irrevocable, nonexclusive license under all rights necessary to so incorporate and use your Feedback for any purpose.
18. Indemnity. You are responsible for your use of the Service, and you will defend and indemnify Primitive and its officers, directors, employees, consultants, affiliates, subsidiaries, and agents (together, the “Primitive Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Service; (b) your violation of any portion of this EULA, any representation, warranty, or agreement referenced in this EULA, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
19. Disclaimers; No Warranties
THE DESKTOP CLIENT, PRIMITIVE SOFTWARE, AND SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PRIMITIVE ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE PRIMITIVE ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. PRIMITIVE EXPRESSLY DISCLAIMS ANY WARRANTIES OF ANY KIND WITH RESPECT TO THE ACCURACY OR FUNCTIONALITY OF LOCATION BASED SERVICES, AND WITH RESPECT TO THE ACCURACY, VALIDITY, OR COMPLETENESS OF ANY INFORMATION OR FEATURES AVAILABLE THROUGH THE SERVICE, OR THE QUALITY OR CONSISTENCY OF THE SERVICE. PRIMITIVE FURTHER DISCLAIMS ANY WARRANTY OR LIABILITY RELATED TO YOUR CARRIER’S NETWORK OR SERVICE.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE PRIMITIVE ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THIS EULA. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALING WITH ANY OTHER USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
PRIMITIVE MAKES NO GUARANTEE FOR ANY CONTINUOUS, ERROR-FREE, VIRUS-FREE, HARM-FREE, OR SECURE OPERATION OF AND ACCESS TO THE SERVICE.
20. Limitation of Liability
IN NO EVENT WILL THE PRIMITIVE ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY PRIMITIVE ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTION 24.4(iii), THE AGGREGATE LIABILITY OF THE PRIMITIVE ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THIS EULA, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO PRIMITIVE FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT(S) OR CIRCUMSTANCES GIVING RISE TO CLAIM; OR (B) $100.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THIS EULA THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THIS EULA. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS EULA. THE LIMITATIONS IN THIS SECTION 20 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
21. THIRD PARTY DISPUTES. PRIMITIVE IS NOT AFFILIATED WITH ANY CARRIER, SERVICE PROVIDER, OR ADVERTISER, AND ANY DISPUTE YOU HAVE WITH ANY CARRIER, SERVICE PROVIDER, ADVERTISER, OR OTHER THIRD PARTY, INCLUDING WITHOUT LIMITATION ANY OTHER USER OF ANY SERVICE, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE PRIMITIVE (AND OUR OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, JOINT VENTURES AND EMPLOYEES) FROM CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
22. Governing Law. This EULA is governed by the laws of the State of California without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under this EULA, then you and Primitive agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Los Angeles County, California for the purpose of litigating any dispute. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
23. General. This EULA is the entire and exclusive understanding and agreement between you and Primitive regarding your use of the Service. Except as expressly permitted above, this EULA may be amended only by a written agreement signed by authorized representatives of all parties to this EULA. You may not assign or transfer this EULA or your rights under this EULA, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign this EULA at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of this EULA, or any provision of this EULA, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in this EULA is for convenience only and will have no impact on the interpretation of any provision. If any part of this EULA is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect. Upon termination of this EULA, Sections 2, and 4 through 24, and any other accompanying agreements, will survive.
24. Dispute Resolution and Arbitration
24.1. Generally. In the interest of resolving disputes between you and Primitive in the most expedient and cost effective manner, you and Primitive agree that every dispute arising in connection with this EULA will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of this EULA, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this EULA. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS EULA, YOU AND PRIMITIVE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
24.2. Exceptions. Despite the provisions of Section 24.1, nothing in this EULA will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
24.3. Arbitrator. Any arbitration between you and Primitive will: (a) be settled under the Federal Arbitration Act and the California Arbitration Act (Cal. Civ. Code §§ 1280 et seq.); (b) be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this EULA and by the California Arbitration Act (Cal. Civ. Code §§ 1280 et seq.); (c) be administered by the AAA; and (d) if an arbitration hearing is held, take place at a mutually-agreed location in Los Angeles County, California. The AAA Rules and filing forms are available online at , by calling the AAA at 1-800-778-7879, or by contacting Primitive.
24.4. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). Primitive’s address for Notice is: Prime Software Systems, Inc., 55 E 3rd Ave San Mateo CA 94401. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Primitive may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Primitive must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Primitive will pay you the highest of: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Primitive in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
24.5. Decision. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based, within one (1) year from the initiation of the proceeding at the AAA. Any award rendered or issued more than one (1) year after initiation of the arbitration proceeding shall be null and void. Notwithstanding the foregoing, the arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
24.6. No Class Actions. YOU AND PRIMITIVE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Furthermore, unless both you and Primitive agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
24.7. Modifications to this Arbitration Provision. If Primitive makes any future change to this arbitration provision, other than a change to Primitive’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to Primitive’s address for Notice, in which case your account with Primitive will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
24.8. Enforceability. If Section 24.6 is found to be unenforceable or if the entirety of this Section 24 is found to be unenforceable, then the entirety of this Section 24 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 22 will govern any action arising out of or related to this EULA.
Last Updated: January 5, 2018
Welcome, and thank you for your interest in Prime Software Systems, Inc. (“Primitive,” “we,” or “us”) and our website at , along with our virtual reality application PrimitiveTM (the “Primitive Software” or “Desktop Client”) and our related services provided by us (collectively, our “Service”). This Primitive Terms of Use and End User License Agreement (this “EULA”), is a legally binding contract between you and Primitive regarding your use of the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY, BEFORE INSTALLING THE PRIMITIVE SOFTWARE. BY CLICKING “I ACCEPT,” OR BY INSTALLING, COPYING, AND/OR OTHERWISE USING THE PRIMITIVE SOFTWARE OR THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS EULA. If you are not eligible, or do not agree to this EULA, then you do not have our permission to use the Service.
Your use of the Service is also subject to the terms and conditions set forth in the SteamTM Subscriber Agreement and/or any other terms set forth by Valve Corporation in relation to the Steam Service.
You acknowledge and agree that, as provided in greater detail in this EULA:
• the Primitive Software is licensed, not sold to you, and you may use the Service only as set forth in this EULA;
• the Service is provided “as is” without warranties of any kind and Primitive’s liability to you is limited;
• disputes arising under this EULA will be resolved by binding arbitration, and by accepting this EULA, as described in greater detail in Section 24, you and Primitive are each waiving the right to a trial by jury or to participate in a class action;
1. Primitive Service Overview. Primitive is a platform for visualizing source code in virtual reality.
2. Eligibility. You must be at least 13 years of age to use the Service. By agreeing to this EULA, you represent and warrant to us that: (a) you are at least 13 years of age; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service complies with all applicable laws and regulations. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to this EULA and you agree to be bound by this EULA on behalf of that organization.
3. Access. To access the Service, you must obtain access through a registered account with an authorized party, such as the Steam Service by Valve Corporation. You are solely responsible for maintaining any account privileges necessary to access the Service. We reserve the right to revoke your access to the Service at any time.
4. Primitive Software License. Subject to your complete and ongoing compliance with the terms and conditions in this EULA (including without limitation payment of any applicable fees and compliance with all license restrictions), Primitive grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to each copy of the Desktop Client (i.e., the “Primitive Software”) downloaded directly from a legitimate marketplace (such as, e.g., the Oculus, Steam, Samsung, or Microsoft store), solely in object code format, for your personal use for lawful purposes, on a single compatible device you own or control, and to access and use the Service in accordance with this EULA. You may not reproduce, distribute, publicly display, or publicly perform the Primitive Software or any part of the Service. Unless, and solely to the extent that, such a restriction is impermissible under applicable law or applicable third party license, you may not: (a) decompile, reverse engineer, or otherwise access or attempt to access the source code for the Primitive Software, or make or attempt to make any modification to the Primitive Software; or (b) interfere with or circumvent any feature of the Primitive Software, including without limitation any security, or access control mechanism. You may not use the Primitive Software or the Service for any purpose other than a purpose for which the Primitive Software and the Service are expressly designed. The term Primitive Software, as used in this EULA, includes any update or modification to the Primitive Software made available to you by Primitive (unless provided with separate terms). If you are prohibited under applicable law from using the Primitive Software or the Service, you may not use them. You represent and covenant that you have complied and will continue to comply with the rights and obligations set forth in this Section 4 with regards to your use of any Service previously downloaded or accessed.
5. Primitive Analyses. Subject to your complete and ongoing compliance with the terms and conditions in this EULA, Primitive grants you a limited, personal, worldwide, royalty-free, non-exclusive, nonsublicenseable, and nontransferable license to explore Primitive analyses of code bases made available to you through the Service. Primitive makes no representation or warranty as to the availability of any specific code analysis for exploration through the Primitive Software.
6. Payment. Access to the Service, or to certain features of the Service, may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. dollars and are non-refundable. If Primitive changes the fees for the Service, including by adding additional fees or charges, Primitive will provide you advance notice of those changes. If you do not accept the changes, Primitive may discontinue providing the Service to you. Primitive will charge the payment method you specify at the time of purchase. You authorize Primitive to charge all sums as described in this EULA, for the Service you select, to that payment method. If you pay any fees with a credit card, Primitive may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. If you use the Service to update or cancel any existing authorized payment, it may take up to 10 business days for the update or cancellation to take effect.
7. Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
8. Contact Information. The Desktop Client, Primitive Software, and the Service are offered by Prime Software Systems Inc., located at 55 E 3rd Ave San Mateo CA 94401. You may contact us by sending correspondence to that address or by emailing us at [email protected].
9. Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:
• use the Service for any illegal purpose or in violation of any local, state, national, or international law;
• violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
• interfere with security-related features of the Service, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Service, except to the extent that the activity is expressly permitted by applicable law;
• upload to the Service any software code, routine, or instructions that interfere with, or otherwise attempt to impair, the operation of the Service, any user’s enjoyment of the Service, or any user’s underlying code or hardware, including by: (a) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Service; (c) attempting to collect personal information about another user or third party without consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service, or violating any regulation, policy, or procedure of any such network, equipment, or server;
• perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth;
• bypass any security or other features of the Service designed to control how the Service is used, harvest, or mine User Content from the Service, or otherwise access or use the Service in a manner inconsistent with individual human usage;
• use any robot, spambot, spider, crawler, scraper, or other automated means or interface not provided by us to access the Service or to extract data;
• decipher, reverse engineer, derive source code, decompile, or disassemble the Service or the Primitive Software, or the software used to provide the Service or the Primitive Software, in whole or in part, or authorize, direct, or cause a third party to do so;
• use, display, mirror, frame, or utilize framing techniques to enclose the Service or any content available through the Service (“Content”), or any portion or component of the Service, unless and solely to the extent Primitive provides the means for embedding any part of the Service or the Content;
• access, tamper with, or use non-public areas of the Service, Primitive’s (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of Primitive’s providers;
• use the Service in any manner to harass, abuse, stalk, threaten, defame, or otherwise infringe or violate the rights of any other party;
• make copies of the Primitive Software or any part thereof, or create derivate works of the Primitive Software or any part thereof in whole or in part (except as applicable law expressly permits in which case all and any lawful modifications, adaptations, or improvements and all copyrights therein shall be deemed assigned to and shall belong to, vest in, and be the exclusive property of Prime Software Systems, Inc. on creation, in any event);
• create data or executable programs that mimic data or functionality in the Primitive Software;
• sell or otherwise transfer the access granted under this EULA or any Materials (as defined below) or any right or ability to view, access, or use any Material; or
• attempt to do any of the acts described in this Section 9, or assist or permit any person in engaging in any of the acts described in this Section 9.
10. Termination of Use; Discontinuation and Modification of the Service. You may terminate your license at any time by destroying the Desktop Client and any other software related to the Service. If you terminate your license, you remain obligated to pay all outstanding fees, if any, incurred prior to termination relating to your use of the Service. If you violate any provision of this EULA, your permission from us to use the Service will terminate automatically. In addition, Primitive may in its sole discretion suspend or terminate your access to the Service at any time for any reason or no reason, with or without notice. We also reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service.
11. Pre-Release Software License. Primitive may from time to time make one or more pre-release version(s) of the Primitive Software accessible to you prior to the general commercial release of such software. You are not required to use any pre-release (such as, e.g., an “alpha” or “beta” release) of the Primitive Software, but if you elect to use it, your right to such use may be limited in time and may be subject to Additional Terms, and you specifically acknowledge, in addition to the waivers and limitations of liability set forth under Sections 19-21 (Disclaimers; No Warranties; Limitation of Liability; Third Party Disputes), that any such release of the Primitive Software is only released for testing and improvement purposes, in particular to provide Primitive with feedback on the quality and usability of the Primitive Software, and therefore may contain errors, is not final, and may create incompatibilities or damage to your computer, data, and/or software, and you therefore shall only use it in compliance with its purposes, and not on a system or for purposes where the malfunction of the Primitive Software can cause any kind of damage.
12. Consent to Use of Data. You agree that Primitive may collect and use technical data and related information, including but not limited to UDID and other technical information about your device, system and Primitive 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 Service, and to anonymously track and report your activity inside of the Service, including for analytics purposes. If you are located outside of the United States, you expressly consent to the transfer and processing of your data outside your home jurisdiction.
13. IP Ownership, Reservation of Rights. The Service, including the Primitive Software and Desktop Client, is owned and operated by Primitive. The Primitive Software, Desktop Client, content, visual interfaces, interactive features, information, graphics, design, compilation, computer code, products, services, and all other elements of the Service (the “Materials”), are protected by copyright, trade dress, patent, and trademark laws of the United States and other jurisdictions, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. As between you and Primitive, all Materials, including all associated intellectual property rights, are the sole and exclusive property of Primitive, its subsidiaries or affiliated companies, or its third-party licensors. You may not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or use the Materials except as expressly authorized under this EULA. Primitive reserves all rights not expressly granted in this EULA. You do not acquire any right, title, or interest to the Materials, whether by implication, estoppel, or otherwise, except for the limited rights set forth in this EULA.
14. Third Party Software. The software you download comprises a package of components, including certain third party software (“Third Party Software”) provided under separate license terms (the “Third Party Terms”). Your use of the Third Party Software in conjunction with the Primitive Software in a manner consistent with this EULA is permitted; however, you may have broader rights under the applicable Third Party Terms and nothing in this EULA is intended to impose further restrictions on your use of the Third Party Software. The Service may contain or be provided together with open source software. Each item of open source software is subject to its own applicable license terms, which can be found at or in the Service’s documentation or the applicable help, notices, about or source files. Copyrights to the open source software are held by the respective copyright holders indicated therein.
15. Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”), such as additional license agreements for any downloadable Materials, or rules that apply to particular features or content on the Service, subject to the section of this EULA titled “Modification of this EULA”. All Additional Terms are incorporated by this reference into, and made a part of, this EULA.
16. Modification of this EULA. We reserve the right, at our discretion, to change this EULA on a going-forward basis at any time. Please check this EULA periodically for changes. If a change to this EULA materially modifies your rights or obligations, you will be required to accept the modified EULA in order to continue to use the Service. This EULA will be identified by the most recent date of revision and will be effective immediately upon being made available through or otherwise through the Service, except: (a) if any such modification materially alters your rights under this EULA, we will attempt to notify you through a pop-up window or other notification when you access or use the Service; (b) such materially modified EULA will be effective upon the earlier of your use of the Service with actual knowledge of the changes or thirty days after the changes are made available to you; and (c) no modifications to this EULA will apply to any dispute between you and Primitive that arose prior to the date of such modification. Your use of the Service after modifications to this EULA become effective constitutes your binding acceptance of such changes. If you are dissatisfied with the terms of this EULA or any modifications to this EULA, then you agree that your sole and exclusive remedy is to discontinue any use of the Service.
17. Feedback. If you provide Primitive with any comments, bug reports, feedback, or modifications proposed or suggested by you for the Service (“Feedback”), such Feedback is provided on a non-confidential basis (notwithstanding any notice to the contrary you may include in any accompanying communication), and Primitive will have the right to use such Feedback at its discretion, including, but not limited to the incorporation of such suggested changes into the Service. You hereby grant Primitive a perpetual, irrevocable, nonexclusive license under all rights necessary to so incorporate and use your Feedback for any purpose.
18. Indemnity. You are responsible for your use of the Service, and you will defend and indemnify Primitive and its officers, directors, employees, consultants, affiliates, subsidiaries, and agents (together, the “Primitive Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Service; (b) your violation of any portion of this EULA, any representation, warranty, or agreement referenced in this EULA, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
19. Disclaimers; No Warranties
THE DESKTOP CLIENT, PRIMITIVE SOFTWARE, AND SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PRIMITIVE ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE PRIMITIVE ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. PRIMITIVE EXPRESSLY DISCLAIMS ANY WARRANTIES OF ANY KIND WITH RESPECT TO THE ACCURACY OR FUNCTIONALITY OF LOCATION BASED SERVICES, AND WITH RESPECT TO THE ACCURACY, VALIDITY, OR COMPLETENESS OF ANY INFORMATION OR FEATURES AVAILABLE THROUGH THE SERVICE, OR THE QUALITY OR CONSISTENCY OF THE SERVICE. PRIMITIVE FURTHER DISCLAIMS ANY WARRANTY OR LIABILITY RELATED TO YOUR CARRIER’S NETWORK OR SERVICE.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE PRIMITIVE ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THIS EULA. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALING WITH ANY OTHER USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
PRIMITIVE MAKES NO GUARANTEE FOR ANY CONTINUOUS, ERROR-FREE, VIRUS-FREE, HARM-FREE, OR SECURE OPERATION OF AND ACCESS TO THE SERVICE.
20. Limitation of Liability
IN NO EVENT WILL THE PRIMITIVE ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY PRIMITIVE ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTION 24.4(iii), THE AGGREGATE LIABILITY OF THE PRIMITIVE ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THIS EULA, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO PRIMITIVE FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT(S) OR CIRCUMSTANCES GIVING RISE TO CLAIM; OR (B) $100.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THIS EULA THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THIS EULA. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS EULA. THE LIMITATIONS IN THIS SECTION 20 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
21. THIRD PARTY DISPUTES. PRIMITIVE IS NOT AFFILIATED WITH ANY CARRIER, SERVICE PROVIDER, OR ADVERTISER, AND ANY DISPUTE YOU HAVE WITH ANY CARRIER, SERVICE PROVIDER, ADVERTISER, OR OTHER THIRD PARTY, INCLUDING WITHOUT LIMITATION ANY OTHER USER OF ANY SERVICE, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE PRIMITIVE (AND OUR OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, JOINT VENTURES AND EMPLOYEES) FROM CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
22. Governing Law. This EULA is governed by the laws of the State of California without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under this EULA, then you and Primitive agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Los Angeles County, California for the purpose of litigating any dispute. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
23. General. This EULA is the entire and exclusive understanding and agreement between you and Primitive regarding your use of the Service. Except as expressly permitted above, this EULA may be amended only by a written agreement signed by authorized representatives of all parties to this EULA. You may not assign or transfer this EULA or your rights under this EULA, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign this EULA at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of this EULA, or any provision of this EULA, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in this EULA is for convenience only and will have no impact on the interpretation of any provision. If any part of this EULA is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect. Upon termination of this EULA, Sections 2, and 4 through 24, and any other accompanying agreements, will survive.
24. Dispute Resolution and Arbitration
24.1. Generally. In the interest of resolving disputes between you and Primitive in the most expedient and cost effective manner, you and Primitive agree that every dispute arising in connection with this EULA will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of this EULA, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this EULA. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS EULA, YOU AND PRIMITIVE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
24.2. Exceptions. Despite the provisions of Section 24.1, nothing in this EULA will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
24.3. Arbitrator. Any arbitration between you and Primitive will: (a) be settled under the Federal Arbitration Act and the California Arbitration Act (Cal. Civ. Code §§ 1280 et seq.); (b) be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this EULA and by the California Arbitration Act (Cal. Civ. Code §§ 1280 et seq.); (c) be administered by the AAA; and (d) if an arbitration hearing is held, take place at a mutually-agreed location in Los Angeles County, California. The AAA Rules and filing forms are available online at , by calling the AAA at 1-800-778-7879, or by contacting Primitive.
24.4. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). Primitive’s address for Notice is: Prime Software Systems, Inc., 55 E 3rd Ave San Mateo CA 94401. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Primitive may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Primitive must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Primitive will pay you the highest of: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Primitive in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
24.5. Decision. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based, within one (1) year from the initiation of the proceeding at the AAA. Any award rendered or issued more than one (1) year after initiation of the arbitration proceeding shall be null and void. Notwithstanding the foregoing, the arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
24.6. No Class Actions. YOU AND PRIMITIVE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Furthermore, unless both you and Primitive agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
24.7. Modifications to this Arbitration Provision. If Primitive makes any future change to this arbitration provision, other than a change to Primitive’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to Primitive’s address for Notice, in which case your account with Primitive will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
24.8. Enforceability. If Section 24.6 is found to be unenforceable or if the entirety of this Section 24 is found to be unenforceable, then the entirety of this Section 24 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 22 will govern any action arising out of or related to this EULA.