Agora Lab, Inc., a California corporation (hereinafter, (“Agora”, “we,” “our” or “us”) owns and operates the Agora Extensions Marketplace located at https://www.agora.io/en/agora-extensions-marketplace/ (the “Agora Extensions Marketplace”) where end users may license certain software, content and/or digital materials created for use in connection with the Agora Services (as defined below) and distributed through the Agora Extensions Marketplace (hereinafter, the “Extensions”).
For the avoidance of doubt, these Terms of Use (hereinafter, the “Terms”) do not apply to the use of the Agora Software Defined Real-Time Network (SD-RTN®) and associated services which enable end users to integrate and deploy live voice and video engagement capabilities and other communications features and functionalities into their web and mobile applications (collectively, the “Agora Services”), which shall be subject to Agora’s then-current Terms of Service for use of the Agora Services, or other agreement entered into by Agora for the use of the Agora Services.
IMPORTANT — PLEASE READ THESE TERMS CAREFULLY. THESE TERMS SET FORTH THE LEGALLY BINDING TERMS AND CONDITIONS GOVERNING THE USE OF THE AGORA EXTENSIONS MARKETPLACE. THESE TERMS ALSO CONTAIN AN AGREEMENT TO ARBITRATE IN SECTION 15 BELOW WHICH WILL REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION. BY CLICKING “I AGREE”, OR PROCEEDING WITH THE DOWNLOAD, ACCESS, AND/OR USE OF ANY EXTENSIONS AND/OR ACCESSING OR USING THE AGORA EXTENSIONS MARKETPLACE YOU: (1) ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THESE TERMS, (2) REPRESENT THAT YOU MEET THE ELIGIBILITY REQUIREMENTS SET FORTH IN SECTION 1 BELOW; AND (3) AGREE THAT YOU ARE ENTERING INTO THESE TERMS WITH AGORA LAB, INC., A CALIFORNIA CORPORATION, WITH ITS PRINCIPAL PLACE OF ADDRESS LOCATED AT 2804 MISSION COLLEGE BLVD., SANTA CLARA, CA 95054.
IF YOU DO NOT AGREE WITH ALL OF THE TERMS OF THESE TERMS, OR DO NOT MEET THE ELIGIBILITY REQUIREMENTS SET FORTH BELOW, DO NOT CLICK “I AGREE”, OR DOWNLOAD OR USE ANY EXTENSIONS OR ACCESS OR OTHERWISE USE THE AGORA EXTENSIONS MARKETPLACE OR ANY PART THEREOF.
1. ELIGIBILITY. You must be at least 18 years old or the age of majority in your jurisdiction in order to use the Agora Extensions Marketplace and to purchase and/or download any Extensions through the Agora Extensions Marketplace. You affirm and represent and warrant that you (a) are 18 years old or the age of majority in your jurisdiction, (b) are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms, and (c) are not a person or entity under U.S. export controls or sanctions.
2. ADDITIONAL TERMS; CHANGES TO THESE TERMS
2.1. Additional Terms. The use of certain aspects, features or functionality available through the Agora Extensions Marketplace, shall be subject to any posted rules applicable to such services or materials that may contain terms and conditions or other operating rules, policies and procedures in addition to those in these Terms (“Additional Terms”). All such Additional Terms are hereby incorporated by reference into these Terms. In the event of any conflict with these Terms and the Additional Terms, the Additional Terms shall control solely with respect to the subject matter covered by such Additional Terms.
2.2. Modifications to these Terms. Agora reserves the right to update or modify these Terms at any time. All updates and modifications to these documents will be effective from the day they are posted at https://www.agora.io/en/extensions-marketplace/terms-of-use/ (the “Site”), except as stated below. If we make any material changes to these Terms, we will notify you of these changes by sending a notification to the email address we have on file for you, or, if we do not have an email address on file, by posting a notice of the changes on the Site. It is your responsibility to regularly visit and review these Terms. If you do not agree to any updates or modifications to these Terms, simply cease all use of the Agora Extensions Marketplace and do not download or access any Extension through the Agora Extensions Marketplace. Your continued use of the Agora Extensions Marketplace and/or download and/or access of any Extensions through the Agora Extensions Marketplace after we have posted the updated Terms, or, in the event of material changes, ten (10) days following the date Agora first notifies you of such material changes either through email or the date we posted the notice of such changes on the Site (as applicable), shall be deemed your acknowledgment and agreement to be bound by the revised Terms.
3. PRIVACY. Any personally identifiable information provided or collected through or in connection with your access and/or use of the Agora Extensions Marketplace shall only be used in accordance with these Terms, and Agora’s Privacy Policy.
4. ACCESS AND USE OF THE AGORA EXTENSIONS MARKETPLACE
4.1. Accounts. To access and use certain features of the Agora Extensions Marketplace and/or to purchase and/or download Extensions, you may need to create and register an account (an “Account”). In registering an Account, you agree to provide and maintain up to date information that is true, accurate, current, up to date, and complete. You agree that you will not (a) create an Account using a false identity or information, and (b) create an Account or use the Agora Extensions Marketplace if you have been previously removed or banned by us from use of the Agora Extensions Marketplace, or any part thereof. You understand and agree that you are solely responsible for maintaining the confidentiality of and protecting your password to your Account. You are solely responsible for any activity originating from your Account, regardless of whether such activity is authorized by you. You agree to notify us immediately of any unauthorized use of your Account. Agora reserves the right to limit the number of Accounts that can be created from any one computer or mobile device and the number of computer or mobile devices that can access an individual Account.
4.2. Permitted Use. You may use Agora Extensions Marketplace, over the Internet, to browse, locate, and download Extensions for use in connection with the Agora Services solely for your own personal non-commercial use. By accessing and/or using the Agora Extensions Marketplace, including, without limitation, downloading any Extensions through the Agora Extensions Marketplace: (a) you agree to (i) use the Extension Store only for purposes that are permitted by these Terms, and any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions, (b) comply with all local laws and regulations regarding the download, installation and/or use of the Extensions and any applicable export controls, including, but not limited to, the United States Department of Commerce’s Export Administration Regulations and sanctions programs administered by the United States Treasury Department’s Office of Foreign Assets Control; and (c) you represent and warrant that you are not prohibited from receiving exports or services under US or other applicable export laws.
4.3. Restrictions. You shall not, nor permit any third party to:
(a) resell or otherwise make commercial use of the Agora Extensions Marketplace (or any part thereof) and/or any Extension;
(b) collect (or attempt to collect) or use any content, and/or any other images, descriptions, or other content included and/or made available through the Agora Extensions Marketplace or any portion thereof;
(c) imitate, distribute, publicly perform, or publicly display the Agora Extensions Marketplace (or any part thereof) and/or any Extensions;
(d) copy, transfer, modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Agora Extensions Marketplace and/or any Extensions, unless otherwise permitted;
(e) use data mining, robots or similar data gathering or extraction methods on the Agora Extensions Marketplace and/or any Extensions;
(f) engage in any activity which could damage, disable, overburden, or impair the Agora Extensions Marketplace and/or any Extensions, or interfere with any other user’s use and enjoyment of the Agora Extensions Marketplace and/or any Extensions;
(g) take any action to circumvent or defeat the security or content usage rules provided, deployed or enforced by any functionality in the Agora Extensions Marketplace and/or Extensions;
(h) introduce into, or transmit through, the Agora Extensions Marketplace any viruses, trojan horses, malware, spyware, adware or other disruptive software, or any software code, which is designed to disrupt, damage, or perform unauthorized actions on a computer system;
(i) remove, obscure or alter any copyright, trademark, service mark or other proprietary rights notices or labels incorporated in or accompanying the Agora Extensions Marketplace (or any part thereof) and/or any Extensions;
(j) download (other than page caching) any portion of the Agora Extensions Marketplace, including, without limitation, any content or information contained therein, except as expressly permitted through the functionality of the Agora Extensions Marketplace or as expressly permitted in these Terms;
(k) access or use the Agora Extensions Marketplace other than as expressly permitted in these Terms;
(l) use the Agora Extensions Marketplace or any Extensions to access, copy, transfer, transcode or retransmit content in violation of any law or third-party rights; or
(m) access or use the Agora Extensions Marketplace (or any part thereof) in any manner that would violate any applicable laws, rules or regulations.
4.4. Agora Extensions. Your use of any Extension developed by Agora (“Agora Extensions”) shall be subject to Agora’s then-current Terms of Service for the Agora Services or other agreement with Agora for the use of the Agora Services (the “Agora Services Agreement”), and by purchasing, downloading, and/or accessing any Agora Extensions, you acknowledge and agree to be bound by the Agora Services Agreement with respect to your use of Agora Extensions. In the event of any conflict between these Terms and the Agora Services Agreement, the Agora Services Agreement shall control, solely with respect to the access and use of the applicable Agora Extension.
4.5. Developer Extensions. Your use of any Extension developed by third-parties not affiliated with Agora (“Developers,” and such Extensions, “Developer Extensions”) shall be subject to applicable end user agreement specified on the product page for such Extension by the applicable Developer (hereinafter, the “Developer Agreement”). YOU ACKNOWLEDGE AND AGREE THAT DEVELOPER EXTENSIONS ARE OPERATED BY THE APPLICABLE DEVELOPER, AND THAT THE DEVELOPER AGREEMENT IS SOLELY BETWEEN YOU AND THE APPLICABLE DEVELOPER, AND NOT AGORA. DEVELOPERS MAY COLLECT, ACCESS, AND USE YOUR PERSONAL INFORMATION AND/OR DATA IN CONNECTION WITH THE USE OF THE EXTENSIONS IN A MANNER DIFFERENTLY THAN WE DO AND WE DO NOT CONTROL THEIR USE OF SUCH INFORMATION. AGORA IS NOT RESPONSIBLE FOR, AND MAKES NO REPRESENTATIONS AS TO ANY EXTENSIONS, OR THE MANNER IN WHICH DEVELOPERS HANDLE DATA AND INFORMATION THAT MAY BE COLLECTED IN CONNECTION WITH THE USE OF ANY EXTENSIONS. AGORA IS NOT LIABLE FOR ANY DAMAGE OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR RELIANCE ON THE PRIVACY PRACTICES OR OTHER POLICIES OF SUCH EXTENSIONS. YOU ARE RESPONSIBLE FOR REVIEWING THE PRIVACY NOTICES, TERMS OF USE, END USER AGREEMENTS, AND ANY OTHER POLICIES APPLICABLE TO ANY SUCH EXTENSIONS.
4.6. Disputes. You acknowledge and agree that any problems or disputes between you and any Developers with respect to any interactions, dealings, and/or communications with such Developer reading Developer Extensions must be resolved solely between you and the applicable Developer. If there is a dispute between you AND ANY Developer, you agree that Agora is under no obligation to become involved. IF you have a dispute with one or more Developers, you release Agora and its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or any developer extensions. IF YOU ARE A CALIFORNIA RESIDENT: YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 (AND ANY LAW OR LEGAL PRINCIPLE OF SIMILAR EFFECT IN ANY JURISDICTION WORLDWIDE) IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
4.7. Removal of Extensions. Agora reserves the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all Extensions from the Agora Extensions Marketplace. However, you acknowledge and agree that by using the Agora Extensions Marketplace you may be exposed to Extensions that you may find offensive, indecent or objectionable and that you use the Agora Extensions Marketplace at your own risk. In addition, from time to time, Agora may discover an Extension on the Agora Extensions Marketplace that violates the Agora Extension Developer Agreement between a Developer and Agora or other legal agreements, laws, regulations or policies. You agree that in such an instance Agora retains the right at its sole discretion to demand that such Extension is removed from any computer or other equipment under your control and you agree to promptly comply with such demand.
4.8. Infringement Policy. If you believe that the Extensions and/or any content or information made available through the Agora Extensions Marketplace violates your copyright and/or trademark rights, please see Agora’s Infringement Policy for instructions on sending us a notice of copyright and/or trademark infringement. It is the policy of Agora to terminate access to the Agora Extensions Marketplace for repeat infringers.
5. LICENSE FEES AND PAYMENT TERMS FOR THE EXTENSIONS
5.1. License Fees. If you purchase a license to an Extension, you shall pay the license fees, if any, set forth in the applicable written or electronic order submitted by you through the Agora Extensions Marketplace for the purchase of a license to such Extension (each, and “Order”) in accordance with the payment terms set forth therein (the “License Fees”). The License Fees are exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”), and you are and shall be responsible for payment of all such taxes (other than taxes based on Agora’s income), and any related penalties and interest, arising from the payment of the fees, the delivery of the Extensions, or performance of any services by Agora hereunder.
5.2. Payment Terms. You expressly agree that Agora and/or its third party payment processors are permitted to bill you for the applicable License Fees, Taxes, any and any other charges you may incur in connection with your access and use of the Extensions, and you hereby authorize Agora and its third party payment processors to charge such fees to the credit card, or other payment method, you provide at the time you register your Account or as specified in the Order, in accordance with the billing terms in effect at the time a fee or charge is due and payable. If payment is not received or cannot be charged to you for any reason in advance, Agora reserves the right to suspend or terminate your access to the Extensions and/or terminate these Terms. EXCEPT AS EXPRESSLY SET FORTH IN THE AGORA SERVICES AGREEMENT OR DEVELOPER AGREEMENT, AS APPLICABLE, ALL FEES ARE NON-REFUNDABLE AND NON-CANCELLABLE.
6. PROPRIETARY RIGHTS. As between you and Agora, Agora owns all right, title and interest in and to the Agora Extensions Marketplace, Extensions, and any other content, information and/or materials made available through the Agora Extensions Marketplace, including without limitation all applicable Intellectual Property Rights thereto. “Intellectual Property Rights” means any and all intellectual property rights wherever in the world and whenever arising (and including any application), including patent laws, copyright, trade secrets, know-how, confidential information, business names and domain names, computer programs, trademark laws, service marks, trade names, utility models, design rights, semi-conductor topography rights, database rights, goodwill or rights to sue for passing off, and any and all other proprietary rights worldwide. If you provide any suggestions and feedback to Agora regarding the functioning, features, and other characteristics of the Agora Extensions Marketplace (or any part thereof) (“Feedback”), your hereby grant Agora a perpetual, irrevocable, non-exclusive, royalty-free, fully-paid-up, fully-transferable, worldwide license (with rights to sublicense through multiple tiers of sublicensees) under all your Intellectual Property Rights to use and exploit such Feedback in any manner and for any purpose.
7. TERM; TERMINATION. These Terms will remain in full force and effect as long as you continue to access or use the Agora Extensions Marketplace (or any part thereof), or until terminated in accordance with the provisions of these Terms. At any time, Agora may (a) suspend or terminate your rights to access or use the Agora Extensions Marketplace (or any part thereof) and/or any Extensions, or (b) terminate these Terms with respect to you if Agora, in good faith, believes that you have used the Agora Extensions Marketplace (or any part thereof) and/or any Extensions in violation of these Terms, including any incorporated guidelines, terms or rules. Upon termination of these Terms, your Account and your right to use the Agora Extensions Marketplace will automatically terminate.
8. INDEMNIFICATION. To the maximum extent permitted by law, you agree to defend, indemnify and hold harmless Agora, its affiliates, subsidiaries, and their respective directors, officers, employees and agents from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorney’s fees) arising out of or accruing from your use of the Agora Extensions Marketplace, including your download, installation, and/or use of any Extensions, or your violation of these Terms.
9. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE AGORA EXTENSIONS MARKETPLACE AND ANY EXTENSIONS IS AT YOUR SOLE RISK AND THAT THE AGORA EXTENSIONS MARKETPLACE AND EXTENSIONS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AGORA AND ITS AFFILIATES, SUBSIDIARIES, AND LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE AGORA EXTENSIONS MARKETPLACE AND/OR ANY EXTENSIONS WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE AGORA EXTENSIONS MARKETPLACE AND/OR ANY EXTENSIONS WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, (C) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE AGORA EXTENSIONS MARKETPLACE AND/OR ANY EXTENSIONS WILL BE ACCURATE OR RELIABLE, AND (D) THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE AGORA EXTENSIONS MARKETPLACE AND/OR ANY EXTENSIONS (INCLUDING, WITHOUT LIMITATION, ANY SOFTWARE PROVIDED TO YOU AS PART OF ANY EXTENSIONS) WILL BE CORRECTED.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AGORA EXPRESSLY DISCLAIMS ALL REPRESENTATION, GUARANTIES AND WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
10. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL AGORA BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER, OR FOR ANY DAMAGES FOR LOSS OF USE, DATA, OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THESE TERMS AND/OR THE USE OR INABILITY TO USE OR PERFORMANCE OF THE AGORA EXTENSIONS MARKETPLACE AND/OR ANY AGORA EXTENSION, OR FOR ANY CONTENT AND/OR INFORMATION OBTAINED THROUGH THE AGORA EXTENSIONS MARKETPLACE AND/OR ANY AGORA EXTENSIONS, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF AGORA HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
IN NO EVENT SHALL AGORA’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THESE TERMS OR THE ACCESS, USE OF, OR INABILITY TO ACCESS OR USE THE AGORA EXTENSIONS MARKETPLACE AND/OR ANY AGORA EXTENSIONS, AND/OR ANY OTHER MATERIALS OR INFORMATION MADE AVAILABLE THROUGH THE AGORA EXTENSIONS MARKETPLACE AND/OR ANY AGORA EXTENSIONS, EXCEED THE GREATER OF THE FEES PAID BY YOU FOR THE APPLICABLE EXTENSION GIVING RISE TO THE LIABILITY OR ONE HUNDRED DOLLARS ($100.00). AGORA DISCLAIMS ALL LIABILITY OF ANY KIND OF AGORA’S AFFILIATES, SUBSIDIARIES, LICENSORS AND SUPPLIERS.
11. APPLICATION OF DISCLAIMERS AND LIMITATIONS. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages with respect to consumers (i.e., a person acquiring goods otherwise than in the course of a business), so the exclusions set forth these Terms may not apply to you if you are a consumer. The limitations or exclusions of warranties and liability contained in these Terms do not affect or prejudice the statutory rights of a consumer. The limitations or exclusions of warranties and remedies contained in these Terms shall apply to you as a consumer only to the extent such limitations or exclusions and remedies are permitted under the laws of the jurisdiction where you are located.
12. BASIS OF THE BARGAIN. The warranty disclaimers and limitations of liability set forth in these Terms are fundamental elements of the basis of the agreement between you and Agora. Agora would not be able to provide the Agora Extensions Marketplace and Extensions on an economic basis without such limitations. The warranty disclaimer and limitation of liability inure to the benefit of Agora’s suppliers.
13. ELECTRONIC COMMUNICATIONS. By accessing or using the Agora Extensions Marketplace and/or purchasing and/or downloading any Extensions through the Agora Extensions Marketplace, you consent to receiving electronic communications from Agora, including, without limitation, notices posted on or through the Agora Extensions Marketplace and/or via email. These electronic communications may include notices about transactional information and other information concerning or related to your access to and/or use of the Agora Extensions Marketplace and/or Extensions. These electronic communications are part of your relationship with Agora and you receive them as part of your access and use of the Agora Extensions Marketplace and Extensions. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
14. AVAILABILITY OF THE SERVICES. Agora makes no claims regarding the availability or right to access or use of the Agora Extensions Marketplace and/or any Extensions outside of the United States. Agora may restrict access to the Agora Extensions Marketplace and/or any Extensions, or portions thereof, in certain countries in its sole discretion, and the Agora Extensions Marketplace and/or Extensions may not be available or accessible in all languages. If you use or access the Agora Extensions Marketplace and/or any Extensions outside of the United States, you are responsible for compliance with the laws and regulations of your jurisdiction with respect to your use of the Agora Extensions Marketplace and/or any Extensions in your country of residence.
15. AGREEMENT TO ARBITRATE
15.1. Arbitration. In the interest of resolving disputes between you and Agora in the most expedient and cost-effective manner, and except as described in Section 15.2, you and Agora agree that every dispute arising in connection with these Terms 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 these Terms, 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 these Terms.
15.2. Exceptions. Despite the provisions of Section 15.1, nothing in these Terms 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 in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
15.3. Opting-Out of Arbitration. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 15 within 30 days after the date that you agree to these Terms by sending a letter to Agora Lab, Inc., Attention: Arbitration Opt-Out, 2804 Mission College Blvd, Suite 110, Santa Clara, CA 95054 that specifies: your full legal name, the email address used to register for an Account, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Agora receives your Opt-Out Notice, this Section 15 will be void and the parties agree that the exclusive jurisdiction and venue described in Section 16.1 will govern any action arising out of or related to these Terms. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
15.4. Arbitrator. Any arbitration between you and Agora will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Agora. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
15.5. Notice of Arbitration; 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 that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Agora’s address for Notice is: Agora Lab, Inc., 2804 Mission College Blvd, Suite 110, Santa Clara, CA 95054. The Notice of Arbitration 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 of Arbitration is received, you or Agora may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Agora must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Agora in settlement of the dispute prior to the award, Agora will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $1,000.
15.6. Fees. If you commence arbitration in accordance with these Terms, Agora will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Santa Clara County, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Agora for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. 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. 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.
15.7. No Class Actions. YOU AND AGORA 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. Further, unless both you and Agora 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.
15.8. Time Limitation to Bring Claims. Notwithstanding any statute or law to the contrary, any claim or cause of action arising out of or related to these Terms and/or your use of the Agora Extensions Marketplace and/or any Extensions must be filed within one (1) year after such claim or cause of action arose, otherwise that claim or cause of action will be barred forever.
15.9. Modifications to this Arbitration Provision. If Agora makes any future change to this arbitration provision, other than a change to Agora’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Agora’s address for Notice of Arbitration, in which case your account with Agora will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
15.10. Enforceability. If Section 15.7 is found to be unenforceable or if the entirety of this Section 15 is found to be unenforceable, then the entirety of this Section 15 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 16.1 will govern any action arising out of or related to these Terms.
16. GENERAL
16.1. Governing Law; Venue. These Terms shall be governed by the internal laws of the State of California, without giving effect to principles of conflict of laws. You hereby consent to the exclusive jurisdiction and venue of the state courts sitting in Santa Clara County, California or the federal courts in the Northern District of California to resolve any disputes arising under these Terms. In each case these Terms shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods.
16.2. Relationship. You and Agora acknowledge and agree that each party is dealing with the other as independent contractors and nothing in these Terms and its performance shall be construed as creating a joint venture or agency between Agora and you.
16.3. Entire Agreement. These Terms, along with the Agora Services Agreement, with respect to Agora Extensions, Agora’s Privacy Policy, the Infringement Policy, and any applicable Additional Terms, constitute the entire agreement between you and Agora, and supersedes all prior oral or written agreements or communications with regard to the subject matter described herein. Neither the rights nor the obligations arising under these Terms are assignable by you, and any such attempted assignment or transfer shall be void and without effect. The official text of these Terms (and any notice submitted hereunder) will be in English. The parties acknowledge that they require that these Terms be drawn up in the English language only. In the event of any dispute concerning the construction or meaning of these Terms, reference will be made only to these Terms as written in English and not to any translation into another language.
16.4. Waiver. You agree that if Agora does not exercise or enforce any legal right or remedy which is contained in the Terms (or which Agora has the benefit of under any applicable law), this will not be taken to be a formal waiver of Agora’s rights and that those rights or remedies will still be available to Agora. No waiver by either party of any breach of any provision hereof shall be deemed a waiver of any subsequent or prior breach of the same or any other provision.
16.5. Severability. If any court of law, having the jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms, which will remain in full force and effect.
17. QUESTIONS. If you have any questions regarding these Terms, please send an email to extensionsops@agora.io.
