Last Revised January 5, 2021

BY CLICKING THE ACCEPTANCE BUTTON OR SELECTOR OR BY USING THE APP DESCRIBED BELOW, YOU AGREE TO FOLLOW AND BE BOUND BY THIS APP LICENSE AGREEMENT. THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION, A JURY TRIAL WAIVER, AND A CLASS ACTION WAIVER.

App License Agreement

1. INTRODUCTION

This App License Agreement (“Agreement”) governs your use of the Labelscape™ mobile application provided by Frontier Science & Technology Research Foundation, Inc. (“App”) that you choose to download to your Devices (defined below). As used in this Agreement, the terms “Frontier,” “we,” “us,” and “our” will mean Frontier Science & Technology Research Foundation, Inc., a New York not-for-profit corporation.

2. PARTIES; DOCUMENT LIST; AGE REQUIREMENTS; BINDING AGREEMENT

2.1 All users of the App must be at least 13 years old. If any user is between 13 years and the Adult Age (defined below), the user’s parent or legal guardian (“Parent”) must review and agree to this Agreement before using the App. The term “Adult Age,” as used in this Agreement, will mean the age of majority, which is 18 years of age or older according to the Applicable Laws (defined below) in the user’s state or jurisdiction.

2.2 If any person downloads and uses the App only for personal use, Frontier is entering into this Agreement with the person in the person’s individual capacity and, if the person is under the Adult Age, Frontier is also entering into this Agreement with the person’s Parent. If any person downloads and uses the App on behalf of an organization, including a corporation, company, partnership or other entity, Frontier is entering into this Agreement with the organization. If the App is downloaded and used for personal use, the terms “you” and “your,” as used in this Agreement, will mean the person described in this Section together with the person’s Parent if the person is under the Adult Age. However, if the App is downloaded and used on behalf of an organization, terms “you” and “your,” as used in this Agreement, will mean such organization.

2.3 This Agreement will include and incorporate: (a) the cautions, alerts and notices displayed in the App’s screens and pop-ups; and (b) the Terms of Use, Privacy Policy, Privacy Notice, Cookie Policy, frequently asked questions and answers (FAQs), and other terms and conditions posted at www.frontierscience.app/labelscape, as may be updated from time to time (the foregoing items set forth in subsections (a) through (b) being collectively referred to as the “Additional Terms”).

2.4 This Agreement is available at www.frontierscience.app/labelscape and may also be available at the App Marketplace (defined below). In order to use the App, you must download the App and agree to this Agreement, which incorporates the Additional Terms.

2.5 BY DOWNLOADING THE APP, YOU AGREE TO BE BOUND BY THIS AGREEMENT.

3. DEFINITIONS

The terms defined in this Article will have the meanings given in this Article.

“Adult Age” will have the meaning provided for such term in Section 2.1.

“Affiliates” means our third party licensors, vendors, suppliers, service providers, sponsors, advertisement buyers, vendors and affiliates.

“App Fees” will have the meaning provided for such term in Section 10.3.

“App Marketplace” means any website, server, platform, store or ecommerce retailer that enables you to download the App or access any Marketplace Account, such as the App Store™ controlled by Apple Inc., the Google Play™ store controlled by Google LLC, or the Amazon Appstore™ controlled by Amazon.com, Inc.

“Applicable Laws” means all federal, state, local, municipal, foreign and international laws, ordinances, regulations and orders applicable to you, us, or this Agreement, including: (a) all federal and state laws, rules and regulations related to the privacy, security or use of health data, including any HIPAA Rules applicable to you; (b) the EU General Data Protection Regulation 2016/679, as amended from time to time; and (c) all laws, rules and regulations relating to privacy, security, data protection, direct marketing or consumer protection, including the collection, processing, storage, protection or disclosure of personal information, all as amended from time to time.

“Barcode” means a barcode or machine-scannable image that encodes or incorporates any Device File Data, including a one-dimensional barcode or a two-dimensional barcode, such as a data matrix code or a quick response code.

“Deactivation Date” will have the meaning provided for such term in Section 11.2.

“De-identified Information” means information derived fully or partially from Out-App Data that cannot reasonably identify, relate to, describe, be capable of being associated with, or be linked, directly or indirectly, to a particular person, provided that such information is: (a) safeguarded by technical safeguards that prohibit re-identification of the person to whom the information may pertain; (b) managed by business processes that specifically prohibit re-identification of such information; (c) managed by business processes to prevent inadvertent release of such information and (d) not the subject of any attempt to re-identify such information.

“Devices” means App-compatible mobile devices, tablets and computers solely owned or controlled by you.

“Device File Data” means all text and information that you input and store in Devices through use of the App, including any and all Sensitive Information.

“Documentation” means information that: (a) describes technical or functional aspects of the App, including any instructions, rules, guides, user manuals, specifications, videos, demonstrations, use policies, license terms, help interfaces, support databases and readme files; or (b) is provided to you by us directly, through the App, the Website, any App Marketplace, any URL specified by us, or any link accessible through the App or the Website.

“Effective Date” means the earlier of the following dates: (a) the date upon which you clicked the electronic acceptance or agreement button or checkmark box accompanying this Agreement; (b) the date upon which you otherwise accepted this Agreement as evidenced by an electronic signature, an acknowledgment of acceptance in an email or electronic document, or the physical signature of the paper form of this Agreement or a related signature page for this Agreement; or (c) the date upon which you initially used the App or any other part of the Frontier Offerings.

“Frontier Content” means any and all templates, forms, graphical layouts, graphical structures, graphical elements, data fields, materials, images, pictures, sounds, music, videos, works of authorship, data, trademarks, service marks, logos, identifiers of goods or services, names of products or services, business names, product images, trade dress and marks provided by us or our Affiliates, including the Labelscape™ trademark and logo as well as the marks of our Affiliates.

“Frontier Offerings” means the App, Software and Documentation.

“HIPAA Rules” means: (a) all regulations promulgated pursuant to the Health Information Portability and Accountability Act (HIPAA), as amended, and the Health Information Technology for Economic and Clinical Health Act (HITECH)); and (b) any amended versions of such regulations as may be enacted from time to time.

“Improvement Information” means, other than Sensitive Information: (a) all statistical and other information compiled or generated by us related to the performance, operation or use of the Frontier Offerings, including usage data, crash statistics, bug statistics and other statistical data related to your use of the App; and (b) any and all information, concepts, materials and works of authorship provided by you to us for purposes of feedback or suggestions related to troubleshooting, enhancing or improving any Frontier Offerings.

“Label” means any physical printing stock (including a physical sticker, decal, paper or card) compatible with the App that is physically marked or physically printed with any Label Image.

“Label Images” means all label images that: (a) are generated through operation of the App; and (b) display Barcodes and other Device File Data.

“Labeled Items” will have the meaning provided for such term in Section 6.4.

“Marketplace Account” means any account within any App Marketplace that: (a) is issued by our Affiliates for exclusive use by you; (b) requires your input of a unique login credential (e.g., a unique username-password combination or unique biometric profile) for access; and (c) enables you to download the App, to pay App Fees, or to manage or control your App Marketplace preferences and settings.

“Order” will have the meaning provided for such term in Section 10.3.

“Out-App Data” will have the meaning provided for such term in Section 6.9.

“Participant” means any person or organization whose Sensitive Information or other information is: (a) included in any Device File Data; (b) displayed or indicated on any Label Image; or (c) accessible through viewing, scanning or processing of any Label Image.

“PHI” means the term, protected health information, as defined under the HIPAA Rules.

“Release Date” means the date the App or any Updated Version is initially posted to the App Marketplace and made available for downloading.

“Sensitive Information” means all information provided by you that is usable, alone or with other information, to identify an individual or organization, including your or any Participant’s name, email address, residential address, phone number, financial information, demographic information, biographic information, biometric information, biological information and health information.

“Software” means: (a) the machine-readable, object code of the App that is owned by, controlled by or licensed to us; and (b) any Updated Versions of such code provided by us.

“Updated Version” means any version of the machine-readable, object code of the App that includes a patch, bug fix, update, upgrade or enhancement that we decide, in our sole discretion, to make available.

“Website” means our website located at www.frontierscience.app/labelscape, which is operated by us or our Affiliates.

4. AGE REQUIREMENTS

4.1 You must be at least 13 years old to use the App and other parts of the Frontier Offerings.

4.2 If you are over 13 years old but under the Adult Age, your Parent must also be a party to this Agreement, and your Parent will be responsible and liable for all acts and omissions of you.

5. RIGHTS GRANTED BY US; YOUR RESTRICTIONS; YOUR OBLIGATIONS

5.1 Usage Right with Restrictions. Subject to your full compliance with the terms and conditions of this Agreement and the Documentation, you will have a revocable, non-assignable, non-sublicensable, personal, non-exclusive right to: (a) use the Software solely for: (i) displaying graphical interfaces generated by the Software on Devices, (ii) inputting Device File Data into Devices, and (iii) printing Label Images on Labels using printers coupled to Devices; (b) reproduce, distribute copies of, perform, display and publish Label Images as marked on Labels; and (c) use the Documentation for purposes of using the App. Such right will automatically terminate upon the expiration or termination of this Agreement, whichever occurs first. You hereby acknowledge and agree that the granting of such right will be contingent upon and conditioned upon your full compliance with the terms and conditions of this Agreement (including the restrictions and prohibitions in this Article 5, Article 6 and Article 8) and the Documentation. If you breach any such terms or conditions, such right will be automatically revoked and terminated.

5.2 Modifications; Frontier Content. You will not modify, edit or create derivatives of any Label Image outside of the App. If any Label Image includes any of our trademarks or other Frontier Content, you will not remove such trademarks or Frontier Content from such Label Image. You will not copy or distribute any Frontier Content except to the extent it is included in any Label Image.

5.3 Additional Restrictions on Use.

5.3.1 Limited Period of Use. You will not acquire under this Agreement, any right or license to use the Software after the expiration or termination of this Agreement. Upon the expiration or termination of this Agreement, your right to use the App will automatically terminate, and you will have no right to download or use the App.

5.3.2. Individual Use of Marketplace Account. You will not share the Marketplace Account with another person, and you will not allow another person to use the Marketplace Account. Without limiting the foregoing, you will not disclose or provide your login credentials (e.g., username-password or biometric profile) to any third party without the prior written consent of the Affiliate who issued such Marketplace Account to you.

5.3.3 Further Conditions and Restrictions. You will not directly or indirectly (by causing or permitting others to):

1. (a) use any Frontier Offerings to produce, print or distribute any data, image, work or other content that results in the infringement or violation of any third party’s rights, including any Participant’s privacy rights or other rights;
2. (b) use any Frontier Offerings to produce, print or distribute any data, image, work or other content in violation of any Applicable Laws;
3. (c) license, sublicense, sell, rent, lease, sublease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use of, or otherwise commercially exploit any Frontier Offerings;
4. (d) make any Frontier Offerings available to any third party;
5. (e) modify, create derivative works of, disassemble, decompile, reverse engineer or hack any Frontier Offerings by reviewing data structures or similar materials produced by programs or by any other means or methods;
6. (f) remove or modify any program markings or any legal or proprietary notices of us or our Affiliates;
7. (g) make any data, output, programs or materials resulting from any Frontier Offerings available in any manner to any third party for use in the third party’s business; provided, however, that you may distribute Barcodes, Label Images and Labels in accordance with this Agreement and Applicable Laws;
8. (h) access or use any Frontier Offerings for any purpose, reason or motive other than the limited purposes set forth in Section 5.1;
9. (i) cause or enable any robot, bot, spider, scraper, wanderer, gatherer, harvester, site search/retrieval application or other automatic device, data processor (other than a Device), software module or process (each, a “Robot”) to: (1) penetrate, interact with or operate with any Frontier Offerings; (2) conduct any step, aspect or portion of any method implemented by any Frontier Offerings; or (3) extract, data mine, pull or retrieve any information or data from any Frontier Offerings;
10. (j) use, perform or reproduce any Frontier Offerings in conjunction with any Robot;
11. (k) descramble, circumvent, decrypt, bypass or distribute any security safeguard (such as a passcode or license key), control measure, device, software module, process or system implemented by us to prevent or impede the use of any Frontier Offerings in a way that violates the terms and conditions of this Agreement; or
12. (l) remove, disable, modify or alter the functionality of any internal deactivation clock or time-based deactivator within any Frontier Offerings.

5.3.4 Improper Use. You will not use, or permit the use of, any Frontier Offerings by any means (including by uploading, emailing, posting, publishing or otherwise transmitting any content or data) for any purpose that may: (a) constitute an infringement of intellectual property or other proprietary rights; (b) involve the processing, handling or distribution of any Label Images or Labeled Items in violation of any Applicable Laws; or (c) otherwise violate any Applicable Laws. In addition to any other rights afforded to us under this Agreement, we reserve the right, but have no obligation, to take remedial action if any content provided by you violates the foregoing restrictions, including the removal or disablement of access to such content. We will have no liability to you arising from any such action taken by us. You will have sole responsibility for the use, accuracy, quality, integrity, legality, reliability and appropriateness of all Out-App Data submitted to us and all Device File Data that you handle, process or use.

5.4 No Shipment. We will have no shipment obligation for any portion of any Frontier Offerings and will not ship copies of software programs to you.

5.5 Standard of Conduct. You will not, directly or indirectly, perform (or allow any other party to perform) any act or omission relating to us, any Frontier Offerings, any Label Image, any Labeled Item or this Agreement that involves or constitutes gross negligence, fraud, intentional wrongdoing, unethical conduct, a misrepresentation, falsity, deception, an inaccurate statement, a crime or a violation of any Applicable Laws.

6. SENSITIVE INFORMATION AND PRIVACY

6.1 App Not Connected to Our Servers. You understand and acknowledge that, once you download a copy of the App to your Device, (a) the copy of the App will not be connected to any of our servers or computer networks, (b) our servers and computer networks will not receive or collect any Device File Data that you enter into the data fields of the copy of the App, and (c) all Device File Data that you enter into copy of the App will be solely stored on the memory devices in your Devices.

6.2 Do Not Send PHI to Us. Under no circumstances do we solicit or desire to receive any PHI or other health-related Sensitive Information in connection with this Agreement. Accordingly, you will not disclose or provide to us or any of our Associates, any PHI or other health-related Sensitive Information in any of your oral, written, video, telephonic or electronic communications, whether in the form or medium of emails, messages, video sessions, screenshots, photos, videos, telephonic communications, or any other form or communication medium.

6.3 No Business Associate Relationship. You understand and acknowledge that we will not create, receive, maintain or transmit PHI on your behalf, and therefore we are not a “business associate” or “subcontractor,” as such terms are defined under the HIPAA Rules. If you are a covered entity, business associate, representative of a covered entity or business associate, or a subcontractor, as such terms are defined under the HIPAA Rules, or are otherwise an entity providing health care services, you will not use the App or any other Frontier Offerings in any manner that would make us a business associate or otherwise directly subject us to the HIPAA Rules or other applicable health care privacy laws.

6.4 Labeling of Physical Items. You may use the App to print Labels for the physical items you decide to mark or label, and you may attach the Labels to these items (“Labeled Items”). By way of a non-limiting example, if you are a health care provider or otherwise perform services in the health care industry, you may decide to print Labels for the containers of biological specimens. In this example, you may have received the specimens from Participants for purposes of diagnostic analysis, medical treatment, research or clinical trials. By way of another non-limiting example, if you are a water tester, you may decide to print Labels for the containers of water samples. In this example, you may have received water samples from the residential homes of Participants in a designated community. Regardless of what you label with Labels, you will be solely responsible for complying with all Applicable Laws when you generate Label Images and use, print and distribute Labels that include Device File Data, knowing the Device File Data could possibly include Sensitive Information of Participants.

6.5 Empty Data Fields. The App provides you with a variety of empty data fields that are fillable with Device File Data. The App may display a descriptor next to each field. For example, the App may display empty data fields indicated as: (a) “ID” for receiving an identification number of the applicable Participant; (b) “Study” for receiving a study number related to the applicable Participant; (c) “Visit” for receiving a visit identifier; (d) “Collection Date” for receiving the date a sample or specimen was received from the applicable Participant; (e) “Collection Time” for receiving the time a sample or specimen was received from the applicable Participant; and (f) “Specimen Type” for receiving the type of sample or specimen that was received from the applicable Participant. You will be solely responsible for: (i) all Device File Data entered into the data fields and stored on your Devices; (ii) deciding whether to enter any Sensitive Information into these data fields of the App; and (iii) complying with all Applicable Laws when entering Device File Data (and any Sensitive Information therein) into the data fields of the App.

6.6 Barcodes. The App generates a Barcode within each Label Image. You understand and acknowledge that: (a) the Barcode incorporates or codifies the Device File Data, which may include any Sensitive Information you have input into Devices through use of the App; (b) the Barcode can be read by commercially-available scanners; and (c) any person having access to a Label Image or Label could possibly access the Sensitive Information in the Barcode using a commercially-available scanner. You will be solely responsible for: (i) entering any Sensitive Information into the App, knowing the App will generate a Barcode that incorporates such Sensitive Information; and (ii) complying with all Applicable Laws when using and distributing Barcodes as part of Labels.

6.7 Your Responsibility to Comply with Applicable Laws. As described in Sections 6.4 through 6.6, the App enables you to enter Sensitive Information of any Participant into the App, Label Images (including the Barcodes) and Labels, and such Sensitive Information is stored solely in the memory devices of your Devices. You hereby confirm, represent and warrant that, before you enter any Participant’s Sensitive Information into the App, any Label Image or any Label, you have completed all of the steps necessary to perform such acts in compliance with all Applicable Laws.

6.8 Responsibility for Others. If you permit another person to use the App on any Device, you will be fully responsible for the person’s conduct as if the person’s conduct were yours.

6.9 Out-App Data. Although we do not collect any Device File Data through the App or any of our servers or computer networks, we may collect Sensitive Information and other data that you share or provide by: (a) submitting contact forms at our Website; (b) posting app reviews at App Marketplaces; (c) sending emails, messages, screenshots, photos and videos to us or our Affiliates; and (d) communicating with us or our Affiliates through video conferences, telephonic communications and in-person discussions (such Sensitive Information and data being collectively referred to as “Out-App Data”). We will use the Out-App Data in accordance with our Privacy Policy and Applicable Laws.

7. PROPERTY RIGHTS

7.1 Ownership of Device File Data. You control which Device File Data to include in the Label Images and Labels. You, the applicable Participant or your licensor will remain the owner of the Device File Data. We will not acquire ownership of any Device File Data.

7.2 Your License to Us. You hereby grant to us, an irrevocable, perpetual, paid-up, royalty-free, sublicensable, assignable, worldwide, non-exclusive license, under your rights in the Out-App Data, to: (a) perform our obligations under this Agreement and conduct transactions related to this Agreement; (b) develop, improve and evaluate our products and services; (c) extract, modify, process and analyze Out-App Data to generate De-identified Information; and (d) market, sell, license, monetize and commercialize De-identified Information in aggregated form or another form without compensating you.

7.3 Our Property.

7.3.1 We are not selling the Software or Documentation to you. Instead, we are only providing you with a limited right to use the Software and Documentation in accordance with Section 5.1 of this Agreement. Therefore, you will not acquire any ownership rights in the Software, Documentation or any other part of the Frontier Offerings.

7.3.2 As between you and us, we will retain all ownership and property rights (including copyrights, data rights, digital asset rights, trade secret rights, trademark rights, patent rights and other intellectual property rights) in and to: (a) the App and all other Frontier Offerings; (b) all parts and aspects of the Label Images other than the Device File Data; (c) all Frontier Content, including all goodwill associated with the business symbolized by the Frontier Content; (d) all Improvement Information; (e) all De-identified Information, whether conceived, authored, compiled or generated during or after the term of this Agreement by us alone or in conjunction with others; (f) anything developed or delivered by or on behalf of us under this Agreement; and (g) any and all derivative works, modifications and improvements of any of the foregoing items set forth in this Section (the items set forth in the foregoing subsections (a) through (g) being collectively referred to as the “Our Property”). You will not acquire any rights in Our Property, whether implied or otherwise, other than those rights expressly stated in this Agreement. We (and our Affiliates, as applicable) reserve all rights not expressly granted to you in this Agreement.

7.3.3 If and when you ever claim or acquire any right, title or interest in any part of Our Property, you hereby assign, transfer and convey to us, all right, title and interest in and to such part, including all copyrights (including all rights to create derivative works based on such part), moral rights, data rights, digital asset rights, patent rights, intellectual property rights and personal and property rights therein. If and when such assignment is found to be impermissible under any Applicable Law, you hereby grant to us, an irrevocable, perpetual, paid-up, royalty-free, sublicensable, assignable, worldwide, non-exclusive license to use, reproduce, create derivative works of, distribute copies of, perform, display, market and commercialize such part for all of our business and operational purposes.

8. THIRD PARTY RESOURCES

8.1 Third Party Technology. The Frontier Offerings may contain or require the use of third party technology, including software, open source software, databases, libraries and algorithms. In such event, you will be responsible for complying with the third party license terms specified by us that govern your use of such third party technology. We may provide certain notices to you in the Documentation or other Frontier Offerings in connection with such third party technology. You will not acquire any ownership of, or intellectual property rights in, such third party technology.

8.2 Third Party Content. The App, Website or Label Images may contain or be connected to third party content, including images, graphics, illustrations, audio files, video files, photographs, data, databases, information, text, files and other content and material. The type and scope of any such third party content will be specified within the Documentation or other Frontier Offerings. You will not, by virtue of this Agreement, acquire any ownership or intellectual property rights in such third party content. Your rights to use such third party content will be subject to, and governed by, the terms applicable to such content as specified by the third party owner, author or provider of such content.

8.3 Sharing and Linking. The copy of the App on your Device may enable you to link to, transmit Out-App Data to, transmit Device File Data to, send Label Images to, or otherwise access, websites, social media platforms, online portals and communication forums of third parties. We do not control, and will not be responsible for, such third party websites, social media platforms, online portals or communication forums.

8.4 Third Party Vendors. You acknowledge that we may use third party vendors to enable certain features of the Frontier Offerings. Such vendors may provide us with mobile messaging, synchronization communication or other technologies. These third party technologies are beyond our control. These third party vendors do not guarantee 100% availability of their technologies. We will not be responsible for any damages or losses due to the operation or unavailability of these third party technologies.

9. GENERAL UPDATES, MAINTENANCE; AUDITS

9.1 General Updates and Maintenance. We provide the Frontier Offerings on an AS IS basis. We will have the right, but not the obligation to: (a) provide customer support for the Frontier Offerings; (b) maintain, fix, enhance or upgrade the Frontier Offerings; and (c) create or provide Updated Versions. We will not be obligated to provide you with assistance, help, trouble-shooting or other support relating to any Frontier Offerings. Nothing in this Agreement will provide you with the right to any support for, replacement for, repair of or recovery of the App, any Label Image or any other image or content generated through use of the App.

9.2 Remote Support. If we decide, at our sole discretion, to provide you with technical support related to the App, we may use tools, scripts, software or utilities (collectively, “Tools”) to provide the support. In doing so, we may use the Tools to remotely trouble shoot the App and remotely monitor the App.

9.3 Auditing. To the extent permitted by Applicable Laws, we may use Tools to: (a) collect Out-App Data and Improvement Information; and (b) audit your compliance with this Agreement, including remotely monitoring the operation of the App while you are using it.

9.4 No Services to You. If we decide to provide any customer support or Updates or to maintain, fix, repair, enhance or upgrade the App, (a) we will be doing so on a user-wide basis for all of our App users, (b) we will not be doing so specifically for you or for any of your custom requirements, (c) we will not be doing so on behalf of you, and (d) our performance of such acts will not be deemed our performance of services to you. For purposes of clarity, we are licensing certain goods to you under this Agreement, and we are not providing any services to you or on behalf of you.

10. FEES AND PAYMENT

10.1 Free Trial. When you download the App for the first time, we may allow you to use the App free of charge for a period of time. This period may end when a certain amount of time passes or when we decide to end this period. If this period ends, we may require the payment of App Fees, as described in Section 10.3, for the continued use of the App.

10.2 Refund Policy. SUBJECT ONLY TO SECTION 16.2.4, WE DO NOT PROVIDE REFUNDS, AND YOU WILL NOT HAVE THE RIGHT TO ANY REFUND BECAUSE YOU ARE DISSATISFIED, BECAUSE OF ERRORS IN THE APP OR FOR ANY OTHER REASON. Furthermore, we have waived any warranties and limited our liability under Articles 13 and 14. Therefore, please be sure that, based on your free trial under Section 10.1, you are satisfied with the App before you make any purchases under this Agreement. All sales by us to you are final. Subject only to Section 16.2.4, we will not refund any transaction once the purchase is complete. You will not have the right to cancel any active subscription during any subscription period. For the purposes of this Section, a purchase is “complete” at the time the servers of us or our Affiliates validate your purchase and the paid fee is successfully credited to your Marketplace Account on such servers.

10.3 App Fees. Through your Marketplace Account, we may enable you to place orders (each, an “Order”) for: (a) downloading the App, an Updated Version, or a premium or advertisement-free version of the App or any Updated Version; (b) receiving designated features of the App, including premium labeling options; (c) subscriptions for the App, including your agreement to automatically pay fees after designated periods of time expire; and (d) various levels of the App, including a standard level (which may or may not be free) and a premium level subject to premium fees. Your Marketplace Account, the App, App Marketplace or Website will set forth any fees that you must pay for your Order (“App Fees”). You agree to pay the App Fees in accordance with the terms and conditions of your Order and this Agreement. All Orders will be incorporated into, and a part of, this Agreement.

10.4 Price Changes. At any time, we may change the rate or pricing of the App Fees, but if you have an active subscription, such changes will only take effect following the end of the subscription period, at which date your subscription will automatically terminate. To implement a change in any App Fee, we may release an Updated Version of the App at any time. By using the Updated Version, you agree to the change in pricing.

10.5 Additional Charges. Any price charged through the applicable App Marketplace or Website will be as stated at the time you place the Order, except in the case of obvious error. Any price charged includes all sales taxes. Depending on which bank or financial account you use, additional charges may be issued by your bank or financial account provider. We have no control over this. The additional charges are your sole responsibility.

10.6 Payment Method and Terms. We may accept payment through the App Marketplaces or through payment networks controlled by our Affiliates, which may enable you to pay via your credit card, your debit card or your electronic payment accounts. Our Affiliates may have their own terms and conditions. You will review and abide by their terms and conditions. If your payment transaction is not successful, your purchase will not be fulfilled. Upon the completion of a successful payment transaction, we will endeavor to promptly fulfill your Order.

10.7 Third Party Utility Fees. You understand that, to use the App and Website, you must obtain certain services from third parties. At a minimum, to download the App to your Device, you must have reliable cellular phone service or reliable Internet service, including a WiFi spot within range of your Device. Also, you must have such service to use the Website. You will be responsible for all fees charged by these third parties, including utility fees, data fees and text messaging fees.

10.8 United States Dollars. All prices and monetary values in this Agreement will be in United States Dollars and will be paid in United Stated Dollars without deduction for currency exchange variation, tax collection or other charges.

11. TERM AND TERMINATION

11.1 Term. The term of this Agreement will begin on the Effective Date and continue until this Agreement expires or is terminated in accordance with this Article 11.

11.2 Automatic Deactivation. We may design the App (including any Updated Version) to automatically deactivate upon the expiration of a certain time period (“Deactivation Date”). For example, the App may include an internal deactivation clock that automatically stops the App and Updated Versions from working when a certain time period expires. The time period may be a certain number of months after each Release Date, or the time period may be a certain number of months after the date you download the App or any Updated Version.

11.3 Discontinuation of App. At any time, we may discontinue the App. However, if you have paid any App Fees, we may discontinue the App by: (a) releasing an Updated Version as the final version of the App on or before the Deactivation Date; (b) providing you with a period of at least five (5) business days after the Deactivation Date to download the final version; and (c) making the final version unavailable for downloading after such period ends. To use this final version of the App, you will download the final version within such period. Therefore, if you have paid any App Fees, this will allow you to use the App for at least six (6) months even if your earlier copy of the App deactivated in less than six (6) months.

11.4 Termination Without Cause. You may terminate this Agreement at any time with or without cause by uninstalling the App and permanently discontinuing your use of the entire Frontier Offerings. We will have the right to terminate this Agreement at any time with or without cause by providing you with notice at least six (6) months before the termination occurs. We may provide the notice by sending an email to the email address you provided to us, by sending a text message to the phone number you provided to us, or by sending a message displayed in the App.

11.5 Termination With Cause. In the event you breach this Agreement or violate any Applicable Law when performing activities related to this Agreement, this Agreement will be automatically terminated. In such event, we may immediately deactivate and otherwise remove your access to the entire Frontier Offerings.

11.6 Effects of Termination. Upon the termination of this Agreement, you will no longer have any right to access or use any Frontier Offerings, and the Device File Data stored in your Devices may be permanently unusable, unreadable or inaccessible. Also, upon the termination, all of your rights under this Agreement (including Section 5.1) will be automatically terminated. Our termination of this Agreement under Section 11.5 will not be our exclusive remedy for your breach, nor will our termination relieve you of the liabilities caused by your breach. After the termination of this Agreement and in accordance with Applicable Laws, we will have the right to: (a) use, archive, store and otherwise retain all Improvement Information and De-identified Data, which will be Our Property; (b) permanently use the Out-App Data under the license granted to us in Section 7.2; and (c) to the extent permitted by Applicable Laws, retain any Sensitive Information that we receive for purposes of keeping records to demonstrate compliance with Applicable Laws, communicating with you or your legal representatives, completing transactions with you, addressing legal matters with you, or satisfying privacy regulations or legal requirements under Applicable Laws.

11.7 Survival. The restrictions, conditions and prohibitions under Articles 4 through 6 of this Agreement (and our rights under such Articles) will survive the termination or expiration of this Agreement. The rights and obligations under the following provisions will survive the termination or expiration of this Agreement: Article 7, Articles 10 through 17, and all other provisions, which, by their terms, contemplate survival.

12. RISKS ASSUMED BY YOU; WAIVER OF CLAIMS

12.1 Printing Conditions and Events. The App enables you to electronically send print commands from Devices to printers. Depending on how you configure the Devices and printers, you may wirelessly (via WiFi) send the print comments to printers, or you may send the print commands through physical, cable connections. Also, depending on your printer settings in the software of the Devices, you may connect the Devices to printers located in the same physical room as the Devices, or the Devices may be connected to printers that are remotely located in rooms or buildings where the Devices are not located. It will be your sole responsibility to configure the Devices and printers, manage the security of the communication paths between the Devices and printers, and decide which Devices and printers to use for printing Labels. There are a variety of conditions and events, including your error and App error, that can cause these print commands to be: (a) misrouted to unintended recipients, printers or locations; or (b) intercepted by wrongdoers or unauthorized people. You will bear all risks related to such conditions and events.

12.2 Accuracy of Device File Data on Labels. The App enables you to print Labels based on Label Images. It will be your sole responsibility to review all Device File Data on the Labels and confirm that no Label has or displays any erroneous or inaccurate information. There are a variety of conditions and events, including your error and App error, that can cause the Labels to display or indicate false, inaccurate or erroneous information, including the following conditions and events: (a) corruption of any Label Image file; (b) a hardware or software conflict between any Device and any printer; (c) your failure to comply with the instructions in the Documentation or the Additional Terms; (d) the use of any hardware or software not provided by us; or (e) your error, App error or the act of a wrongdoer. You will bear all risks related to such conditions and events.

12.3 Label Stock. The App may include a label sizing screen that displays different types of commercially-available Labels that are compatible with the App. By way of a non-limiting example, the label sizing screen may display a list of different sizes or shapes of Labels offered for sale by third party manufacturers of physical label stock. It will be your sole responsibility to: (a) review all of the applicable instructions and specifications published by such manufacturers; and (b) use such label stock in accordance with such instructions and specifications. There are a variety of conditions and events, including your error and defects with the manufacturers’ label stock, that can cause the Labels to: (i) fail to securely adhere to an item; (ii) prematurely detach from an item; (iii) exhibit fading, blurring or loss of the ink printed on such label stock; or (iv) be vulnerable to tampering. You will bear all risks related to such conditions and events.

12.4 Other Risks Assumed by You. YOU HEREBY ASSUME ALL RISK OF DAMAGE, LOSS AND LIABILITY THAT COULD ARISE FROM: (A) THE INACCESSIBILITY OR CORRUPTION OF ANY DEVICE FILE DATA; OR (B) THE USE, LOSS OF USE, FUNCTION, MALFUNCTION, OPERATION OR ERRONEOUS OPERATION OF ANY FRONTIER OFFERINGS.

12.5 Waiver of Claims. YOU HEREBY WAIVE AND FORFEIT ALL CLAIMS AND LEGAL ACTIONS AGAINST US OR OUR AFFILIATES (INCLUDING ALL DAMAGES AND REMEDIES RELATING TO SUCH CLAIMS AND ACTIONS) ARISING FROM OR RELATING TO: (A) ANY OF THE RISKS ASSUMED BY YOU UNDER THIS ARTICLE 12; OR (B) ANY PRODUCT LIABILITY CLAIMS, TORTIOUS CLAIMS OR STRICT LIABILITY CLAIMS RELATED TO THE APP OR THIS AGREEMENT.

13. WARRANTIES AND WARRANTY EXCLUSIONS

13.1 Warranties and Covenants by You. You hereby represent, warrant and covenant that: (a) you, as a user or as a parent or guardian of a user, are at least of the Adult Age; (b) you have full power and authority to enter into and perform this Agreement; (c) the execution and performance of this Agreement does not conflict with or violate any agreement to which you are a party or any court order to which you are subject; and (d) with respect to your activities related to this Agreement, you have complied with, and will comply with all Applicable Laws.

13.2 Download Availability Less Than 100%. THE APP AND ANY UPDATED VERSIONS WILL NOT BE AVAILABLE FOR DOWNLOADING FROM THE APP MARKETPLACE 100% OF THE TIME. ALSO, THE WEBSITE AND ANY MOBILE NOTIFICATIONS WILL NOT BE AVAILABLE 100% OF THE TIME. There may be instances in which you do not receive notifications, including instances in which the applicable App Marketplace or Website is under maintenance.

13.3 Exclusion of Warranties.

13.3.1 Overall Warranty Exclusion. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, (A) WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, RELATED TO ANY FRONTIER OFFERINGS OR ANY OTHER MATTERS, AND (B) WE DISCLAIM THE FOLLOWING: (I) ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WARRANTIES OF TITLE, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY, AND PERFORMANCE; (II) ALL IMPLIED WARRANTIES, DUTIES AND CONDITIONS OF MERCHANTABILITY, INTEGRATION, OR FITNESS FOR A PARTICULAR PURPOSE; (III) ALL WARRANTIES REGARDING THE RELIABILITY, ACCURACY, COMPLETENESS, CORRECTNESS, OR USEFULNESS OF ANY TECHNOLOGY, SOFTWARE OR CONTENT PROVIDED BY YOU OR ANY THIRD PARTY; AND (IV) ALL WARRANTIES AND LIABILITIES ARISING FROM OR RELATED TO SUCH TECHNOLOGY, SOFTWARE AND CONTENT.

13.3.2 As Is; Errors. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, WE PROVIDE THE FRONTIER OFFERINGS ON AN “AS IS” BASIS, AND WITH ALL ERRORS AND FAULTS. WE DO NOT WARRANT OR GUARANTEE THAT ANY FRONTIER OFFERINGS WILL BE: (A) ERROR-FREE OR WITHOUT DEFECTS OR VIRUSES; (B) SATISFACTORY TO YOU; OR (C) OPERABLE IN COMBINATION WITH ANY HARDWARE OR SOFTWARE THAT IS NOT PROVIDED BY US OR EXPRESSLY SPECIFIED IN THE DOCUMENTATION AS BEING COMPATIBLE WITH THE APP. WE DO NOT WARRANT OR GUARANTEE THAT WE WILL CORRECT ANY ERRORS OR DEFECTS IN ANY FRONTIER OFFERINGS.

14. LIMITATION OF LIABILITY

14.1 Overall Exclusion of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, WE WILL HAVE NO LIABILITY ARISING FROM OR RELATING TO THE USE, UNAVAILABILITY, FUNCTION, MALFUNCTION, OPERATION OR ERRONEOUS OPERATION OF ANY FRONTIER OFFERINGS.

14.2 Exclusion of Special Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, NEITHER WE NOR ANY OF OUR AFFILIATES WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, ANY LOSS OF REVENUE OR PROFITS, ANY LOSS OF DATA, ANY MISIDENTIFIED, INACCURATELY IDENTIFIED OR MISROUTED LABELED ITEMS, ANY USE, PROCESSING, HANDLING OR DISTRIBUTION OF ANY LABELED ITEMS, OR ANY DAMAGE OR LOSS ARISING FROM OR RELATING TO REPUTATION HARM, PERSONAL INJURY OR LOSS OF PRIVACY, OR ARISING FROM OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE ANY FRONTIER OFFERINGS EVEN IF WE OR ANY AFFILIATE OF OURS HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE.

14.3 Maximum Liability. THE MAXIMUM LIABILITY OF US AND OUR AFFILIATES FOR ALL LOSSES, DAMAGES AND LIABILITIES RELATING TO ANY CLAIM ARISING FROM OR RELATING TO THIS AGREEMENT, ANY FRONTIER OFFERINGS OR OUR WEBSITE, WHETHER IN CONTRACT, IN TORT (BASED ON NEGLIGENCE OR ANOTHER BASIS), OR OTHERWISE, WILL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNT OF FEES THAT YOU HAVE ACTUALLY PAID TO US UNDER THIS AGREEMENT PURSUANT TO ANY ORDERS; PROVIDED, HOWEVER, THAT SUCH TOTAL AMOUNT WILL BE LIMITED TO THE FEES PAID WITHIN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.

15. INDEMNIFICATION

15.1 Indemnification Obligation. You will, at all times during and after the term of this Agreement, defend, indemnify, reimburse and hold harmless, us and our parents, subsidiaries, affiliates, stockholders, managers, directors, officers, employees, customers, licensors, service providers, suppliers, vendors, licensees, contractors, beneficiaries, assignees, successors in interest, and third parties that provide products or services to, or receives products or services from, us (collectively, “Our Group”) from and against any and all losses, claims, lawsuits, proceedings, expenses, recoveries and damages, including reasonable legal expenses, costs and attorneys’ fees, arising from or relating to: (a) any Label or Labeled Item; (b) any Device File Data or any Sensitive Information therein; (c) any Out-App Data or any Sensitive Information therein; (d) any violation of any rights of any Participant or other third party; (e) any financial loss, lost opportunities, harm or damage caused by the use, function, malfunction, operation or erroneous operation of any part of the Frontier Offerings; (f) any actual or alleged violation of any Applicable Law by you or any other party involving or related to: (i) the use of any part the Frontier Offerings, (ii) any Device File Data, (iii) any Out-App Data, (iv) any Label Image, (v) any Label, (vi) any Labeled Item, or (vii) any activities performed in connection with this Agreement; (g) any unauthorized access to or unauthorized use of any part of the Frontier Offerings or any Device caused, directly or indirectly, by your breach of this Agreement, your negligence or any other act or omission by you; or (h) your breach of any obligation, term, condition, covenant, representation or warranty provided in this Agreement (the items set forth in the foregoing subsections (a) through (h) being collectively referred to as “Indemnifiable Claims”).

15.2 Indemnification Payments. If we suffer or incur any expenses, costs, damages or other liabilities arising from or relating to any of the Indemnifiable Claims, we may periodically provide you with invoices for the amount of such expenses, costs, damages and other liabilities. We may provide you with any such invoice before or after the initiation or occurrence of any judicial proceeding, lawsuit or court judgment with respect to such Indemnifiable Claims. Within thirty (30) days after you receive each such invoice, you will fully pay to us, the invoiced amount as reimbursement.

16. THIRD PARTY TERMS

16.1 Terms of App Marketplaces. If you use an App Marketplace to download the App or pay any App Fees, the App Marketplace may require you to agree to certain terms and conditions required by the App Marketplace. Such terms and conditions might affect your rights and remedies related to the transactions that you perform using such App Marketplace. You agree to abide by such terms and conditions, including the additional terms provided in this Article 16.

16.2 Apple’s Minimum Terms. In accordance with our agreement with Apple Inc. (“Apple”), Frontier and you agree to the following terms of this Section 16.2:

16.2.1 Acknowledgement. Frontier and you acknowledge that: (a) this Agreement is concluded between Frontier and you only, and not with Apple; and (b) Frontier, not Apple, is solely responsible for the App and the content thereof. This Agreement may not provide for usage rules for the App that are in conflict with, Apple’s App Marketplace terms of service as of the Effective Date, which Frontier acknowledges that Frontier has had the opportunity to review.

16.2.2 Scope of License. The license granted to you for the App must be limited to a non-transferable license to use the App on any Apple-branded products that you own or control and as permitted by the usage rules set forth in Apple’s App Marketplace terms of service, except that the App may be accessed, acquired, and used by other Apple accounts associated with you via family sharing or volume purchasing.

16.2.3 Maintenance and Support. Frontier will be solely responsible for providing any maintenance and support services with respect to the App, as specified in this Agreement or as required under applicable law. Frontier and you acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.

16.2.4 Warranty. Frontier will be solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the App to conform to any applicable warranty expressly set forth in this Agreement, (a) you may notify Apple, (b) Apple will refund the purchase price for the App to you, and (c) to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any such warranty will be Frontier’s sole responsibility.

16.2.5 Product Claims. Frontier and the you acknowledge that Frontier, not Apple, will be responsible for addressing any claims by you or any third party relating to the App or your possession and/or use of that App, including: (a) product liability claims; (b) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. This Agreement will not limit Frontier’s liability to you beyond what is permitted by applicable law.

16.2.6 Intellectual Property Rights. Frontier and the you acknowledge that, in the event of any third party’s claim that the App or your possession and use of the App infringes such third party’s intellectual property rights, Frontier, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.

16.2.7 Legal Compliance. You represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo, or that is on Title 15, Part 740 Supplement 1 Country Group E of the U.S. Code of Federal Regulations; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.

16.2.8 Developer Name and Address. In Section 17.1 of this Agreement, Frontier has stated its name and address, and the contact information (telephone number and email address) to which any of your questions, complaints or claims with respect to the App should be directed.

16.2.9 Third Party Terms of Agreement. You will comply with all applicable third party terms of agreement when using the App.

16.2.10 Third Party Beneficiary. Frontier and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and that, upon the your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.

17. MISCELLANEOUS

17.1 Notices. All notices under this Agreement will be in writing. You may give these notices to us by personal delivery, nationally recognized courier service, mail, email, or any other commercially reasonable method to our address provided below or on the Website or as otherwise specified in writing by us. We may give these notices to you via the email address, street address or mobile phone number you have provided to us, or through any communication method available through the applicable App Marketplace. You will keep your email address up to date in your Marketplace Account. Either Party may change its notice address by sending a notice to the other party using such notice method. Notices will be deemed to have been received upon the earlier of the following: (a) actual receipt; (b) delivery, if delivered personally or by a nationally or internationally recognized courier service; (c) one business day after being deposited with a nationally or internationally recognized courier service for delivery within 24 hours; (d) three business days after being deposited in U.S. mail, by registered or certified mail, return receipt requested and postage prepaid; or (e) one business day after being sent to you via any of the methods specified in this Section. If either party replies via email to a notice sent by other party via email, the replying party will be deemed to have actually received such notice if the replying party’s reply is non-automated.

17.2 For U.S. Government End Users. Portions of the Frontier Offerings include a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), and more specifically include “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), such portions are provided to U.S. Government End Users only as a commercial end item and with only those rights as are granted to all other customers pursuant to the terms and conditions herein.

17.3 Export Restrictions. The export laws and regulations of the United States and any other relevant local export laws and regulations will apply to the Frontier Offerings. Such export laws will govern your use of the Frontier Offerings (including technical data) and any Frontier Offerings provided by us under this Agreement. You will comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). You will not, directly or indirectly, export any portion of the Frontier Offerings or export any data, information, software programs or materials resulting from Frontier Offerings (or direct product thereof) in violation of these laws. You will not use any data, information, software programs or materials resulting from Frontier Offerings (or direct product thereof) for any purpose prohibited by these laws including nuclear, chemical or biological weapons proliferation, or the development of missile technology.

17.4 Assignment. You will not assign any rights or delegate any obligations under this Agreement without our prior written consent. Any attempted assignment in violation of this Agreement will be null and void. We may assign all or any part of our rights or obligations under this Agreement without your consent to any subsidiary, affiliate, successor in interest or other party through contractual assignment, merger, acquisition or otherwise. This Agreement will be binding upon the heirs, successors, legal representatives and permitted successors or permitted assigns of the parties.

17.5 Force Majeure. We will not be liable for any failure or delay in the performance of our obligations pursuant to this Agreement if: (a) such failure or delay could not have been prevented by reasonable precautions; or (b) such failure or delay is caused, directly or indirectly, by a fire, flood, earthquake, storm, element of nature, act of God, act of war, terrorism, cyberattack, riot, civil disorder, rebellion, revolution, labor strike, labor lockout, epidemic, pandemic, failure of public utilities, interruption or failure of the Internet or any cellular networks, industry-wide unavailability of raw materials or parts, change in law, issuance of a judicial or governmental order, the illegality of any activity or transaction related to this Agreement, or any other cause beyond our control.

17.6 Independent Contractors. In the performance of this Agreement, you and us will at all times act as, and be deemed to be, independent contractors. You will not be considered an employee, joint venturer, agent or partner of us. Neither you nor us will be authorized to assume or create any obligations or responsibilities, express or implied, on behalf of, or in the name of, one another.

17.7 Dispute Resolution.

17.7.1 Definitions. The term “Dispute,” as used in this Agreement, will mean any dispute, controversy, claim, difference, lawsuit, legal action, or administrative, legal, or other proceeding arising from, under, out of, relating to, or in connection with: (a) this Agreement, its interpretation, or the breach, termination, applicability or validity of this Agreement, (b) the Frontier Offerings, Improvement Information, De-identified Data, Device File Data, Out-App Data, Label Images, Labels or Labeled Items; or (c) any other dispute arising out of or relating to the relationship between us and you or the property of use or you. The term “Your Group,” as used in this Agreement, will mean you and those in privity with you, such as your beneficiaries, if any.

17.7.2 Binding Election of Arbitration or Court of Law.

(a) Action Initiated by Us. If we elect to initiate legal action against you arising from a Dispute, we will have the right and option to resolve the Dispute through binding arbitration under Section 17.7.3 or through a court of law under Section 17.7.4. We will have the right to elect arbitration or a court of law at our sole discretion.

(b) Action Initiated by You. If you elect to initiate legal action against us arising from a Dispute, you will provide us with your first written notice of the Dispute, specifying and describing the Dispute in detail. If you and Frontier fail to amicably resolve the Dispute within sixty (60) days after your first written notice, you may provide us with your second written notice of your decision to initiate the legal action. After receiving your second written notice, we will have the right to select, at our sole discretion, whether such legal action will occur by arbitration under Section 17.7.3 or by a court of law under Section 17.7.4. We may notify you of our selection within ten (10) business days after receiving your second written notice. If we do not notify you of such selection within such period, you will have the right to resolve the Dispute solely through binding arbitration under Section 17.7.3, not through a court of law.

17.7.3 Arbitration. If any Dispute is to be resolved by arbitration in accordance with Section 17.7.2, the terms of this Section 17.7.3 will apply.

(a) NO LAWSUIT; WAIVER OF RIGHT TO JURY TRIAL. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH MEMBER OF OUR GROUP AND YOUR GROUP HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY AND ALL DISPUTES AND ACTIONS TO BE RESOLVED BY ARBITRATION IN ACCORDANCE WITH SECTION 17.7.2. THIS WAIVER WILL BE IRREVOCABLE AND PERPETUAL. EACH MEMBER OF OUR GROUP AND YOUR GROUP UNDERSTANDS AND ACKNOWLEDGES THAT: (I) IN THE ABSENCE OF THIS SECTION, SUCH MEMBER WOULD HAVE HAD A RIGHT TO LITIGATE DISPUTES AND ACTIONS THROUGH A JURY TRIAL AND POSSIBLY ON A CLASS-WIDE OR CLASS-ACTION BASIS; AND (II) THIS WAIVER IS A SUBSTANTIVE TERM BARGAINED BY YOU AND US AS CONSIDERATION FOR ENTERING INTO THIS AGREEMENT. THIS ARBITRATION PROVISION WILL BE GOVERNED BY THE FEDERAL ARBITRATION ACT, 9 U.S.C. SECTION 1, ET SEQ.

(b) American Arbitration Association. If any Dispute is to be resolved through arbitration in accordance with Section 17.7.2, the disputing party (you or Frontier) may provide the other party with a written warning of its intention to initiate arbitration with respect to such Dispute. If you and Frontier do not amicably resolve or settle such Dispute in writing within thirty (30) days after such written warning, the disputing party will have the right to submit such Dispute to the American Arbitration Association (“AAA”) for binding resolution. Any such Dispute will be resolved exclusively and finally by the AAA. You and Frontier will agree upon another arbitration forum if AAA ceases all of its operations. The arbitration will be conducted before a single arbitrator and will be limited solely to such Dispute between you and Frontier. The arbitration, or any portion of it, will not be consolidated with any other arbitration and will not be conducted on a class-wide or class action basis.

(c) Selection of Arbitrator. You and Frontier will confer after service of written notice of arbitration to select a single, agreed-upon arbitrator to arbitrate such Dispute. If you and Frontier are unable to agree upon an arbitrator within thirty (30) days after the date of such notice, the AAA will assign an arbitrator. Any decision or award rendered in such arbitration proceeding will be final and binding on you and Frontier, and judgment may be entered thereon only in the State or Federal courts in Erie County, New York.

(d) Substantive Law; Limitations on Award; Place; Language. In the arbitration, the arbitrator will apply the laws of the State of Delaware, excluding its conflict of law principles. Neither the Uniform Computer Information Transactions Act nor the United Nations Convention on the International Sale of Goods will apply to this Agreement. The arbitrator will not have the right to award treble damages, punitive damages or attorney’s fees to you or Frontier. The location of the arbitration will be in Erie County, New York, and the arbitration will be conducted in the English language.

(e) AAA Contact Information. Information may be obtained from the AAA online at www.adr.org or by calling the phone number or writing to the address specified at such website.

17.7.4 Court of Law. If any Dispute is to be resolved by a court of law in accordance with Section 17.7.2, the terms of this Section will apply. The governing law will be the laws of the State of Delaware, excluding its conflict of law principles. Neither the Uniform Computer Information Transactions Act nor the United Nations Convention on the International Sale of Goods will apply to this Agreement. The State and Federal courts located in Erie County, New York will have sole and exclusive jurisdiction over such Dispute. Venue for any action arising out of or relating to this Agreement will be in the State Court in Erie County, New York or in the United States District Court for the Western District of New York. Notwithstanding the foregoing, if such Dispute involves or relates to intellectual property infringement or misappropriation by any member of Your Group, we may alternatively select jurisdiction and venue where such member resides or where such infringement or misappropriation occurs.

17.8 Injunctive Relief. Notwithstanding Section 17.7 or anything else in this Agreement to the contrary, in the event of a breach or threatened breach of Article 4, 5, 6 or 7 this Agreement by you, you acknowledge that our remedies at law would be inadequate and that we would suffer continuing and irreparable injury to our businesses and opportunities, and therefore, in the event of any such violation or threatened violation, we will be entitled, in addition to any other remedies available, to seek a temporary restraining order and other injunctive relief in a court of law without any requirement to prove actual damages or to post a bond, and we will be entitled to any other appropriate equitable relief that the court deems proper.

17.9 Reservation of Remedies. You acknowledge and agree that we have, will reserve, will retain, and may exercise, both during and after the termination of this Agreement, all rights and remedies available to us (whether derived from this Agreement, from applicable law or otherwise) as a result of or in connection with your breach of this Agreement or misuse of Our Property.

17.10 Waiver. Our delay or failure in enforcing any right or remedy afforded under this Agreement or by law will not prejudice or operate to waive that right or remedy or any other available right or remedy.

17.11 Severability. If any term of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, or becomes invalid or unenforceable by operation of law, the remainder of this Agreement will continue in full force and effect, and such term will be replaced with another term consistent with the purpose and intent of this Agreement.

17.12 Judicial Modification. If, in accordance with Section 17.7.4, any court of competent jurisdiction deems any provision of this Agreement unenforceable because of its scope in terms of disclaimer, waiver, area, time, business activities, ownership or other matters, such court will have the power to modify such provision, through reductions or limitations thereon or to delete specific words or phrases, and in its reduced form, such provision will then be enforceable and will be enforced under applicable law.

17.13 Amendments; Supplemental Terms. This Agreement may not be modified, and the rights, obligations and restrictions may not be altered or waived except in writing by you and us. This Agreement will not be modified by any course of dealing, course of performance or usage of trade; provided, however that: (a) from time to time, we may present you with an amended version of this Agreement or supplemental terms before or during your use of the Frontier Offerings, including click-through agreements, online terms, notices and disclosures displayed on splash screens, pop-ups or other interfaces; and (b) if you continue to use the Frontier Offerings after receiving any such amended version of this Agreement or supplemental terms, you will be deemed to have fully agreed to such amended version of this Agreement or supplemental terms, as applicable. This Agreement incorporates such amended versions and such supplemental terms, and you will fulfill all of yours obligations under such versions and supplemental terms.

17.14 Entire Agreement. This Agreement (including the Additional Terms, Orders and other documents described above as being incorporated into this Agreement) is the complete agreement related to the Frontier Offerings, and this Agreement supersedes all prior or contemporaneous agreements or representations, written or oral, regarding the subject matter described above.

17.15 Controlling Terms; Conflicts. This Agreement supersedes the terms in any purchase order, procurement internet portal, or other similar document not provided by us, and no terms included in any such purchase order, portal or document will apply to the Frontier Offerings. If any terms of this Agreement conflict with the terms of any Order or any other terms not provided by us, the terms of this Agreement will control and prevail.

17.16 Construction; Interpretation. Each Party acknowledges and agrees that: (a) it has reviewed and fully understands the terms and provisions of this Agreement; (b) no presumption or burden of proof will arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement or the changes made through any revisions; (c) the rule of construction to the effect that any ambiguities are resolved against the drafting party will not be employed in the interpretation of this Agreement; (d) all terms defined in the singular form will have the same meaning in the plural form, and all terms defined in the plural form will have the same meaning in the singular form; (e) the words “will” and “must” have the same legal effect and force as the word “shall;” and (f) the word “including” means “including, without limitation,” the word “includes” means “includes, without limitation,” and the word “or” will not be exclusive.

17.17 English Language. This Agreement will be interpreted and construed exclusively in the English language. All notices and correspondence related to this Agreement will be written exclusively in the English language.

17.18 Electronic Signature. For purposes of this Agreement, (a) your electronic signature will be deemed your written signature, and (b) the following will be deemed your electronic signature: (i) your click-through inputs or click-to-accept inputs submitted to us electronically through a screen or graphical interface that you receive from us or our Affiliates; (ii) your consent or approval expressed in an email, HTML document, web interface, mobile interface or other graphical interface received by us; and (iii) any image that represents your signature, including your printed name displayed in standard or stylized format on an electronic document in PDF or other digital format. You agree that your electronic signature of this Agreement will be deemed, and will have the same force and effect as, your original, hand-written signature of this Agreement.

End of App License Agreement

© 2021 Frontier Science & Technology Research Foundation, Inc.