Live Aware Labs Terms of Service

These Terms of Service (the “Terms” or this “Agreement”) is a binding legal agreement between Live Aware Labs, Inc., a Delaware corporation (“Live Aware Labs”), and the individual or entity that accepts these Terms (such as by clicking “Accept,” checking a box, creating an account or obtaining access credentials, using the Live Aware Labs Platform (as defined below), or otherwise manifesting acceptance) (such individual or entity, "Customer"). These Terms are effective on the date of such acceptance. By accepting these Terms, the individual accepting these Terms represents and warrants that: 1) such individual is authorized to contract on behalf of Customer and legally bind Customer; 2) such individual is over the age of 18 and is competent to enter binding agreements and contracts in such individual's jurisdiction of residence; 3) such individual has read and understand these Terms; and 4) such individual understands that such individual is entering a binding legal agreement with Live Aware Labs on behalf of Customer and will be required to comply with these Terms.

1. Definitions

The following terms, when used under these Terms will have the following meanings:

“Affiliates” means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity, so long as such Control exists. For the purposes of this definition, “Control” means beneficial ownership of 50% or more of the voting power or equity in an entity.

“Authorized User" means an individual who obtains credentials to access to the Live Aware Labs Platform and is an employee, agent, or independent contractor of Customer authorized to access and use the Live Aware Labs Platform pursuant to Customer’s rights under these Terms.

“Confidential Information” means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure. However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.

“Documentation” means the printed and digital instructions, on-line help files, technical documentation and user manuals made available by Live Aware Labs for the Live Aware Labs Platform.

“Non-Live Aware Labs Platform” means a third party or Customer web-based, mobile, offline or other software application that integrates with the Live Aware Labs Platform to provide Live Aware Labs’s Services.

“Order Form” or “Subscription Agreement” is any document or agreement that describes the Live Aware Labs Services purchased by or subscribed to by Customer and associated pricing and which references these Terms (such terms may be used interchangeably throughout these Terms). Such Order Form or Subscription Agreement may be entered into on the Live Aware Labs Platform, web portal or other applicable interface.

“Tester” means a person engaged by Customer who participates in Customer’s efforts to capture, analyze and share insights from Customer’s game development and who may provide feedback or test responses to Customer through the Live Aware Labs Platform.

2. Live Aware Labs Platform

2.1 Provision of Live Aware Labs Platform. The Live Aware Labs Platform will allow Customer to capture, analyze, and share qualitative insights from all stages of Customer’s game development (the “Live Aware Labs Platform”). The Live Aware Labs Platform consists of SaaS-based functionality (the “SaaS Component”) and client-based software provided to Customer for use on Customer’s premises and/Customer’s private cloud (the “Client Software”) (such offering, collectively, the “Services”).

2.2 Access. Subject to Customer’s compliance with these Terms and entering into a free trial (a “Trial”) or paid subscription (a “Subscription”) with Live Aware Labs, Live Aware Labs grants Customer and its Authorized Users and Playtesters a limited, non-exclusive, non-transferable (except as provided herein), non-sublicensable right during the Term to: (1) use and access the Live Aware Labs Platform in accordance with the Documentation, these Terms and any other applicable terms of service; and (2) install and use the Client Software only for use of the Live Aware Labs Platform. Customer must uninstall the Client Software upon termination or expiration of these Terms. Customer acknowledges and agrees that Customer is only being granted a right to use the Services and nothing is being sold to Customer. Customer is not acquiring any ownership interest in the Services under these Terms, or any other rights thereto other than to use the Services in accordance with the use rights specified and other terms, conditions, and restrictions of these Terms. Live Aware Labs reserves all other rights that are not granted in these Terms

2.3 Service Updates. Customer acknowledges and understands that the Services will evolve from time to time. Customer acknowledges and agrees that Live Aware Labs may update the Services with or without notifying Customer, including adding or removing features, products, or functionalities. Live Aware Labs may also require Customer to accept updates to the software that Customer has installed on Customer’s system as applicable.

2.4 FOSS Software. Certain “free” or “open source” based software (“FOSS Software”) may be included with the Client Software. Any FOSS Software is not considered part of the Client Software hereunder and Customer’s right to use the FOSS Software is governed by the open source license applicable to said FOSS Software, and not these Terms.

2.5 Customer Acceptable Use, Responsibilities, Limitations and Restrictions.

(a) Live Aware Labs providing the Live Aware Labs Platform depends on Customer providing all reasonable cooperation (including access to Customer’s systems, personnel, cooperation and materials as reasonably required and any other access as may be specified in any applicable Order Form). Customer will provide all such cooperation in a diligent and timely manner.

(b) Customer will (i) be responsible for all use of the Live Aware Labs Platform by Authorized Users and Playtesters, (ii) make commercially reasonable efforts to prevent unauthorized access to or use of the Live Aware Labs Platform and will notify Live Aware Labs promptly of any unauthorized access or use of the Platform, including any suspected breach of security or misuse of the Live Aware Labs Platform and (iii) provide at its own expense any equipment, software and ancillary services needed to access and use the Live Aware Labs Platform. Customer is responsible for maintaining the confidentiality of any credentials it issues to Authorized Users together with associated passwords. Customer shall not use the Live Aware Labs Platform to record any activities without first obtaining the consent of the individual(s) being recorded.

(c) Neither Customer nor its Authorized Users may (i) resell or distribute the Services or the Client Software, (ii) use or access the Live Aware Labs Platform in any manner not authorized by these Terms or in any way that violates applicable law, (iii) reverse engineer, decompile, disassemble or otherwise derive or determine or attempt to derive or determine the source code of the Live Aware Labs Platform, (iv) interfere with the operation of the Live Aware Labs Platform in any way, or (v) access the Live Aware Labs Platform in order to develop or build any competitive product or service. Live Aware Labs may suspend access to the Live Aware Labs Platform for any failure, or suspected failure, to comply with this Section 2.4(c).

(d) Customer shall engage and recruit its own Playtesters to evaluate and provide feedback regarding Customer Content and may provide access to the Live Aware Labs Platform to Playtesters for such purpose. Customer may provide incentives or other compensation to its Playtesters and shall remain solely responsible for payment or provision of same. Playtesters are not employees of Customer or Live Aware Labs and Customer is solely responsible for the content or other information it provides to Playtesters and the protection of same. Live Aware Labs shall have no liability to Customer for the conduct, act or omissions of Playtesters nor shall Live Aware Labs have any liability or responsibility for the quality of feedback Customer receives from Playtesters. All feedback, content and responses from Playtesters shall be considered Customer Data and shall be owned entirely by Customer.

(e) Customer and its Authorized Users and Playtesters shall not transmit or provide to Live Aware Labs any financial or medical information of any nature including any data subject to the Health Insurance Portability and Accountability Act, the Gramm-Leach-Bliley Act, the Payment Card Industry Data Security Standard, or the Fair Credit Reporting Act. Further, Customer shall not transmit or provide any data or information that falls within any special categories of data described in Article 9 of the GDPR. Live Aware Labs will not process any such data and shall have no liability directly or indirectly arising from such data. Unless Customer has fully complied with the requirements of the Children’s Online Privacy Protection Act (“COPPA”), Customer shall not provide any data about or regarding children under 13 years of age.

(f) Customer shall be responsible for the content of all communications sent by its Authorized Users and Playtesters via the Live Aware Labs Platform. Customer agrees that it will not use the Live Aware Labs Platform to communicate any message or material that (i) is libelous, harmful to minors, obscene or constitutes pornography; (ii) infringes the intellectual property rights of any third party or is otherwise unlawful; or (iii) constitutes or encourages conduct that could violate law. Live Aware Labs may remove any such content in its sole discretion or may suspend access to the Live Aware Labs Platform for any violation or suspected violation of this Section 2.4(e). If required by applicable data protection laws, Customer shall obtain consent from Playtesters prior to allowing the Live Aware Labs Platform to capture Playtesters’ images or personally identifiable information.

2.6 Affiliates. Customer Affiliates may enter into Order Forms and these Terms will apply to each such Order Form. With respect to such Order Forms, such Affiliate shall be bound by these Terms and references to Customer in these Terms are deemed to be references to such Affiliate.

2.7 Support Services. Subject to the terms and conditions of these Terms, Live Aware Labs will exercise commercially reasonable efforts to (a) provide support for use of the Services to Customer and (b) keep the Services operational and available to Customer according to its standard policies and procedures. Live Aware Labs live technical support business hours are from 9:00 am - 5:00 pm Monday - Friday Pacific Time. Technical support can be contacted via email at support@liveawarelabs.com. Services may not be available during public or company holidays.

3. Free Trials

If Customer registers for a Trial, the Live Aware Labs Platform will be available to Customer on a trial basis free of charge until the earlier of (a) the end of the Trial period for which Customer registered to use Live Aware Labs Platform (with such period to be 30 days as of the start of the Trial or as otherwise stated by Live Aware Labs in writing at the time of registration for the Trial) (the “Trial Period”); (b) the start date of any Subscription to Live Aware Labs Platform purchased by Customer; or (c) termination of the Trial by Live Aware Labs in Live Aware Labs' sole discretion. The Trial Period cannot be renewed or otherwise extended without the express written agreement of Live Aware Labs. ANY CUSTOMER DATA CUSTOMER ENTERS INTO THE LIVE AWARE LABS PLATFORM DURING CUSTOMER'S FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE LIVE AWARE PLATFORMS OR EXPORTS SUCH CUSTOMER DATA BEFORE THE END OF THE TRIAL PERIOD. Customer acknowledges and agrees that (i) by registering for a Trial, Customer is bound by these Terms and (ii) the Live Aware Labs Platform made available during such Trial Period constitutes a "Beta Product" as defined herein.

4. Fees, Subscriptions, Tax

4.1 Fees and Subscriptions.

(a) When Customer purchases a Subscription, Customer agrees to pay Live Aware Labs the fees as set forth in the applicable Order Form or Subscription Agreement (subject to these Terms), which may be provided via a subscription portal or directly on the Live Aware Labs Platform, for the applicable Subscription Period (as defined herein) and access tier for such Subscription (an “Access Tier”). Unless otherwise indicated in the applicable Order Form or Subscription Agreement, the time period for each Subscription shall be twelve months, with such period ending on the twelve-month anniversary of the first day of Customer’s Subscription period (the “Subscription Period”). All fees are payable as set forth in the applicable Order Form or Subscription Agreement.

(b) Customer shall pay the base platform Fee (the “Platform Fee”), encompassing the basic use of the Live Aware Labs Platform, on or prior to the date of the beginning of the applicable Subscription Period. The Platform Fee may vary based on the Access Tier of Customer’s Subscription.

(c) Depending on the Access Tier of Customer’s Subscription, Customer may have limitations on the amount of monthly data available to use during Customer’s Subscription Period (collectively, the “Data Use Limits”), with such Data Use Limits pro-rated for any partial months. The Data Use Limits for each Access Tier shall be as described in the applicable Order Form or Subscription Agreement. Each calendar month during the Subscription Period that Customer exceeds the applicable Data Use Limits, an additional fee shall be assessed as set forth in the applicable Order Form or Subscription Agreement (the “Additional Data Fee”). Any Additional Data Fees accrued must be paid within 15 calendar days of receipt of an invoice setting forth such Additional Data Fee (such invoice may be automatically delivered to Customer’s account portal on the Live Aware Labs Platform and Customer acknowledges and confirms it is Customer’s sole responsibility to review any correspondence delivered via the Lab Aware Labs Platform and/or Customer’s account portal, as applicable).

(d) All fees are non-refundable payable in United States Dollars. Any payments that are past due will bear interest at a rate of 1% per month (or, if less, the maximum allowed by applicable law) on the overdue balance. If Customer fails to pay any amount when due within 15 calendar days of the due date, Live Aware Labs may suspend access to the Live Aware Labs Platform until undisputed fees are paid in full (including any Additional Data Fees). Customer will be responsible for any costs Live Aware Labs incurs in seeking collection of amounts due, including reasonable attorneys fees and costs.

(e) Live Aware Labs reserves the right to adjust any and all fees at any time, in its sole discretion. In the event of a change in fees, such change will become effective on the next renewal date of Customer’s Subscription. Live Aware Labs further reserves the right to modify the terms of each Access Tier at any time in its sole discretion, including the applicable Data Use Limits, with any such changes becoming effective upon the next renewal date of Customer’s Subscription. An active Subscription shall renew automatically, unless Customer elects to terminate automatic renewals, pursuant to Section 11 herein. In the event automatic renewals are terminated, Customer’s Subscription will terminate at the end of the Subscription Period.

4.2 Taxes. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”). Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of Live Aware Labs. Customer will not withhold any Taxes from any amounts due to Live Aware Labs.

5. Proprietary Rights

5.1 Proprietary Rights.

(a) Live Aware Labs or its licensors exclusively owns all right, title and interest in and to the Live Aware Labs Platform, System Data, Documentation and Live Aware Labs’s Confidential Information. Customer has no right, license or authorization to any of Live Aware Labs’s intellectual property except as expressly provided herein and Live Aware Labs expressly reserves such rights “System Data” means data collected by Live Aware Labs regarding the Live Aware Labs Platform that may be used to generate logs, statistics or reports regarding the performance, availability, usage, integrity or security of the Live Aware Labs Platform.

(b) Customer exclusively owns all right, title and interest in and to the Customer Data, insights produced specifically for Customer via the use of the Live Aware Labs Platform by Customer (which will constitute Customer Data for purposes hereof) and Customer’s Confidential Information. Customer grants Live Aware Labs a limited, non-exclusive, perpetual license to Customer Data for the purpose of providing and improving the Services and for the purpose of training the analysis models used to provide the Services.

5.2 Feedback. Customer may provide Live Aware Labs suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Live Aware Labs Platform or Live Aware Labs Services. Live Aware Labs shall own all such Feedback with Customer having no right to compensation for same.

5.3 Product Improvement and Aggregated Statistics. Live Aware Labs may aggregate, collect and analyze Customer Data and other information relating to the performance of the Live Aware Labs Platform and shall be free (during and after the term hereof) to (i) use such data and other information to improve Live Aware Labs’s products and services, and (ii) disclose such data and other information solely in an aggregated and anonymized format that does not identify Customer or any individual.

6. Confidentiality and Security

6.1 Confidentiality. Each party agrees that it will use the Confidential Information of the other party according to these Terms and will not disclose the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. Either party may disclose Confidential Information (a) to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of these Terms; and (b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law. Neither party will disclose the terms of these Terms to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers. Each party agrees to exercise due care in protecting Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section 6, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief in addition to any other rights or remedies. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in these Terms.

6.2 Subcontractors. Live Aware Labs reserves the right to use one or more independent contractors who have entered into an agreement involving confidentiality provisions with Live Aware Labs to perform all or part of the Services. Live Aware Labs will remain solely responsible for the performance of all of the Services that are subcontracted.

6.3 Data Security. During the Term, Live Aware Labs will maintain commercially reasonable technical and organizational measures designed to (i) ensure the security and integrity of Customer data uploaded by or on behalf of Customer to the SaaS Component (“Customer Data”); (ii) protect against threats or hazards to the security or integrity of uploaded Customer Data; and (iii) prevent unauthorized access to uploaded Customer Data. Such security safeguards and measures are further described in the attached Data Processing Addendum, and Customer is solely responsible for determining whether such safeguards and measures meet Customer’s requirement. Live Aware Labs shall have no obligation to secure or protect any data stored locally on Customer’s or other’s devices.

7. Warranties and Disclaimers

7.1 Live Aware Labs. Live Aware Labs warrants, (i) it will provide the Live Aware Labs Platform and the Services in a manner compliant with applicable law; (ii) it will provide the Live Aware Labs Platform and Services in a professional and workmanlike manner and the Live Aware Labs Platform will conform in all material respects with the Documentation; (iii) it is duly organized and validly existing and has full right and authority to enter and perform these Terms.

7.2 Customer. Customer warrants (i) that it has all rights necessary to provide any information, data or other materials that it provides hereunder and to permit Live Aware Labs to process same, (ii) that it will at all times use the Live Aware Labs Platform in a manner compliant with law; (iii) Live Aware Labs’s processing of Customer Data will not cause Live Aware Labs to suffer any liability for violation of any third-party’s rights or the violation of any applicable law. Customer further warrants that it has obtained all necessary rights and consents from any third-parties (e.g., play Playtesters) that have been provided access to the Live Aware Labs Platform, including consents required to use such third-parties’ recordings and data and any consents required for Playtesters under the age of 13 or under the Children’s Online Privacy Protection Act.

7.3 DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. LIVE AWARE LABS MAKES NO WARRANTY THAT THE SERVICES OR LIVE AWARE LABS PLATFORM WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE. LIVE AWARE LABS IS NOT RESPONSIBLE OR LIABLE FOR ANY NON-LIVE AWARE PRODUCTS, DOES NOT GUARANTEE THE CONTINUED AVAILABILITY THEREOF OR ANY INTEGRATION THEREWITH, AND MAY CEASE MAKING ANY SUCH INTEGRATION AVAILABLE IN ITS DISCRETION.

7.4 BETA PRODUCTS. FROM TIME TO TIME, CUSTOMER MAY PARTICIPATE IN PROGRAMS THROUGH WHICH CUSTOMER HAS ACCESS TO ALPHA OR BETA PRODUCTS, FEATURES OR DOCUMENTATION (COLLECTIVELY, “BETA PRODUCTS”) OFFERED BY LIVE AWARE LABS. ALL BETA PRODUCTS ARE PROVIDED “AS IS”. LIVE AWARE LABS DOES NOT PROVIDE ANY INDEMNITIES, SERVICE LEVEL OR SUPPORT COMMITMENTS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, IN RELATION THERETO. CUSTOMER OR LIVE AWARE LABS MAY TERMINATE CUSTOMER’S ACCESS TO THE BETA PRODUCTS AT ANY TIME.

8. Indemnification

8.1 Indemnity by Live Aware Labs. Live Aware Labs will defend Customer against any claim, demand, suit, or proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Live Aware Labs Platform as permitted hereunder infringes or misappropriates a United States patent, copyright or trade secret and will indemnify Customer for any damages finally awarded against Customer (or any settlement approved by Live Aware Labs) in connection with any such Claim. Should such a Claim arise, Live Aware Labs may at its option and expense (i) procure for Customer the right to continue using and receiving the Live Aware Labs Platform as set forth hereunder; (ii) replace or modify the Live Aware Labs Platform to make it non-infringing (with comparable functionality); or (iii) if (i) or (ii) are not reasonably practicable, terminate the applicable Order Form and provide a pro rata refund of any prepaid subscription fees corresponding to the terminated portion of the applicable subscription term. Live Aware Labs will have no liability or obligation with respect to any infringement Claim if such Claim is caused in whole or in part by (A) use of the Live Aware Labs Platform by Customer not in accordance with these Terms; (B) modification of the Live Aware Labs Platform by or on behalf of Customer; (C) Customer Confidential Information, (D) the combination, operation or use of the Live Aware Labs Platform with other products or services where the Live Aware Labs Platform would not by itself be infringing, or (E) with respect to Client Software, any failure by Customer to use a non-infringing workaround or modification that does not materially adversely affect the functionality or availability of the Live Aware Labs Platform (clauses (A) through (E), “Excluded Claims”). This Section states Live Aware Labs’s sole and exclusive liability and obligation, and Customer’s exclusive remedy, for any claim of any nature related to infringement or misappropriation of intellectual property.

8.2 Indemnification by Customer. Customer will defend Live Aware Labs against any Claim made or brought against Live Aware Labs by a third party arising out of (i) the Excluded Claims, (ii) any violation of applicable data or privacy laws related to Customer Data, and (iii) Customer’s violation of any provision of Section 2.3 or 2.4 or Section 7.2 and Customer will indemnify Live Aware Labs for any damages finally awarded against Live Aware Labs (or any settlement approved by Customer) in connection with any such Claim

8.3 Procedure. Each Party shall promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified pursuant to Section 8.1 or Section 8.2. The Party seeking indemnification (the “Indemnitee”) shall cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 8.3 will not relieve the Indemnitor of its obligations under this Section 8 except to the extent that the Indemnitor can demonstrate that it has been prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.

9. Limitations of Liability

9.1 EXCLUSION OF DAMAGES. EXCEPT AS PROVIDED IN SECTION 9.3 BELOW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE DAMAGES INCLUDING FOR LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF DATA, LOSS OF CONTENT OR SIMILAR DAMAGES UNDER ANY THEORY OF LIABILITY INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STATUTORY OR OTHERWISE EVEN IF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

9.2 LIMITATION OF LIABILITY. EXCEPT AS PROVIDED IN SECTION 9.3 BELOW AND WITH RESPECT TO AMOUNTS OWED BY CUSTOMER, IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY UNDER THESE TERMS (UNDER ANY THEORY) EXCEED AN AMOUNT EQUAL TO THE TOTAL AMOUNT PAID OR PAYABLE TO LIVE AWARE LABS DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE ACT OR OMISSION GIVING RISE TO THE CLAIM.

9.3 EXCEPTIONS. The exclusions and limitations set forth in Sections 9.1 and 9.2 do not apply to (a) fraud or fraudulent misrepresentation of either Party; (b) the liability of either party related to its indemnity obligations, which shall be limited to three (3) times the amount paid or payable by the Customer in the twelve (12) months immediately preceding the acts or omissions giving rise to the Claim; (c) liability for violation of law or willful misconduct.

10. Governing Law and Dispute Resolution

10.1 Governing Law. These Terms will be governed by the laws of the State of Washington, exclusive of its rules governing choice of law and conflict of laws. These Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.

10.2 Arbitration. Customer and Live Aware Labs agree that any dispute, claim, disagreements arising out of or relating in any way to Customer’s access to or use of the Services will be resolved by binding arbitration, rather than in court, except that: (1) Customer and Live Aware Labs may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) Customer or Live Aware Labs may seek equitable relief in court for infringement or other misuse of Intellectual Property Rights.

10.3 WAIVER OF JURY TRIAL. CUSTOMER AND LIVE AWARE LABS HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY.

10.4 Waiver of Class and Other Non-Individualized Relief. CUSTOMER AND LIVE AWARE LABS AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS.

10.5 Rules and Forum. These Terms evidence a transaction involving interstate commerce; and notwithstanding any other provision in these Terms with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq, will govern the interpretation and enforcement of this Section 13 and any arbitration proceedings. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the AAA Commercial Arbitration Rules then in effect and one arbitrator alone and such arbitrator will have exclusive authority to resolve any dispute, including, without limitation, disputes arising out of or related to the interpretation or application of this Section 10, including the enforceability, revocability, scope, or validity of the arbitration requirement or any portion of this Section 10.

11. Termination

11.1 Term. These Terms commence on the earlier of the date Customer first opened an account to use the Services or the date when Customer accepted these Terms, and these Terms will remain in full force and effect while Customer uses the Services, unless terminated in accordance with this Section. The initial term of each Order Form will begin on the Order Form Effective Date (as defined therein) of such Order Form and will continue for the Subscription Period set forth therein. Except as set forth in such Order Form, Customer’s Subscription will automatically renew for successive renewal terms equal to the length of the initial term of such Order Form, unless Customer elects to terminate automatic renewals by contacting Live Aware Labs at support@liveawarelabs.com. In the event automatic renewals are terminated, Customer’s access to the Services will continue, and Customer shall remain bound by all applicable provisions of these Terms, until the end of Customer’s then active Subscription Period.

11.2 Termination by Live Aware Labs. If Customer has breached any provision of these Terms, if Live Aware Labs is required to do so by law (e.g., where the provision of the Services is, or becomes, unlawful), or if it is commercially impracticable for Live Aware Labs to provide the Services, Live Aware Labs has the right to, immediately and without notice, suspend or terminate any of the Services provided to Customer. Customer agrees that all terminations will be made in Live Aware Labs’ sole discretion and that Live Aware Labs will not be liable to Customer or any third party for any termination of Customer’s account, provided that if applicable, Live Aware Labs shall refund Customer any prepaid amount, on a pro-rata basis, for any duration of the term of subscription to Live Aware Labs’ Services which remains after the termination of Customer’s account.

11.3 Termination by Customer. Customer may request deletion of Customer’s account at any time by contacting Live Aware Labs at support@liveawarelabs.com. On the account deletion date, Customer shall immediately lose access to the Services and any files or information associated with Customer or Customer’s account, and other than the clauses which survive any expiry or termination of these Terms, or with respect to any outstanding fees, these Terms shall no longer apply to Customer. Any fees outstanding as of the account deletion date will remain due and payable by Customer. For avoidance of doubt, Customer shall not be entitled to any refunds in the event Customer’s account is deleted prior to the end of Customer’s then active Subscription Period.

11.4 Effect of Termination. If Services are terminated for any reason, Customer’s use rights shall cease and Customer may not be able to access Customer’s account and all related information or files associated with or inside Customer’s account (or any part thereof) may be deleted. Live Aware Labs will not have any liability whatsoever to Customer for any suspension or termination.

11.5 Survival. Upon expiration or termination of this Agreement all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such expiration or termination will survive. Upon expiration or termination of this Agreement, each party will return or destroy, at the other party’s option, any Confidential Information of such party in the other party’s possession or control.

12. Communications

By entering into these Terms or using the Services, Customer agrees to receive communications from Live Aware Labs, including via email, and/or browser push notifications. Communications from Live Aware Labs may include, but are not limited to, operational communications concerning Customer’s account or the use of the Services, updates concerning new and existing features on the Services, and news concerning Live Aware Labs and industry developments.

13. Changes to Terms

These Terms are subject to occasional revision by Live Aware Labs. When changes are made, Live Aware Labs will make a new copy of these Terms available on the website. Live Aware Labs will also update the date at the top of these Terms denoting the effective date of the revised Terms (the “Effective Date”). If Live Aware Labs makes any material changes to the Terms affecting Customer’s use of the Services, and Customer has registered with Live Aware Labs to create an account, Live Aware Labs will endeavor to send an email to Customer at the last e-mail address Customer provided to Live Aware Labs to notify Customer prior to the Effective Date. Any changes to these Terms will be effective on the Effective Date. Live Aware Labs may require Customer to provide consent to the updated Terms in a specified manner before further use of the Services is permitted. IF CUSTOMER DOES NOT AGREE TO ANY CHANGES AFTER RECEIVING A NOTICE OF SUCH CHANGE(S), CUSTOMER WILL STOP USING THE SERVICES. OTHERWISE, CUSTOMER’S CONTINUED USE OF THE SERVICES CONSTITUTES CUSTOMER’S ACCEPTANCE OF SUCH CHANGES.

14. General

14.1 Publicity.

(a) Customer agrees that Live Aware Labs may refer to Customer’s name and trademarks in Live Aware Labs’s marketing materials and website (the “Marketing Materials”); however, Live Aware Labs will not use Customer’s name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without Customer’s prior written consent (which may be by email) (the “Additional Marketing Materials”).

(b) For avoidance of doubt, Customer grants Live Aware Labs a limited, non-exclusive, non-transferable, revocable license to use Customer's logo (the “Logo”) for use in the Marketing Materials and, with Customer’s prior written consent, the Additional Marketing Materials. Live Aware Labs acknowledges that Customer is the owner of all right, title, and interest in and to the Logo, and Live Aware Labs shall not contest the ownership of the Logo or the validity of any registration relating thereto.

14.2 Assignment; Delegation. These Terms, and Customer’s rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by Customer without Live Aware Lab’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Live Aware Labs may assign these Terms and any other right or obligation to a party without any consent or notification requirement to Customer.

14.3 Amendment; Waiver. No waiver of any rights hereunder will be effective unless assented to in writing by Live Aware Labs. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of these Terms will not be deemed a waiver of future enforcement of that or any other provision.

14.4 Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.

14.5 Unenforceability. If a court of competent jurisdiction determines that any provision of these Terms is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of these Terms will remain in full force and effect and bind the parties according to its terms.

14.6 International Use. The Services can be accessed from countries around the world and may contain references to features and services that are not available in Customer’s country. Live Aware Labs makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law. If Customer is using the Services and is not in the United States, Customer agrees that the location for dispute resolution is acceptable to Customer and that Customer will not challenge the forum as being inconvenient for Customer.

14.7 Notices. All notices required or permitted under these Terms will be in writing, will reference these Terms, and will be deemed given: (i) when delivered personally; (ii) one business day after deposit with a nationally recognized express courier, with written confirmation of receipt; (iii) three business days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (iv) when sent by email, on the date the email was sent if sent during normal business hours of the receiving party, and on the next business day if sent after normal business hours of the receiving party. In the event that the last e-mail address Customer provided to Live Aware Labs is not valid, or for any reason is not capable of delivering to Customer any notices required/permitted by these Terms, Live Aware Lab’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. Customer may give notice to Live Aware Labs at the following email address: legal@liveawarelabs.com.

14.8 Entire Agreement. These Terms and any applicable Order Forms/Subscription Agreements comprise the entire agreement between Customer and Live Aware Labs with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by Live Aware Labs, its agents or employees will create a warranty or in any way increase the scope of the warranties in these Terms. Notwithstanding the foregoing, Live Aware Labs, in its sole discretion, may enter into one or more separate agreements, in writing, to amend or supersede these Terms with respect to Customer.

14.9 Force Majeure. Live Aware Labs will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event”), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.

14.10 Government Terms. Live Aware Labs provides the Live Aware Labs Platform, including related software and technology, for ultimate federal government end use solely in accordance with the terms of these Terms. If Customer is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Live Aware Labs Platform, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of these Terms. All other use is prohibited and no rights than those provided in these Terms are conferred. The Live Aware Labs Platform was developed fully at private expense.