PRIVACY 

 

 

General. When reasonably practicable, Company shall attempt to respect and maintain User’s privacy. Company shall not monitor, edit, or disclose any personal information about User or User’s account, including its contents or User’s use of the Software, without User’s prior written consent unless Company has a good faith belief that such action is necessary to: (i) comply with any legal process or other legal requirements of any governmental or regulatory authority, (ii) protect and defend the rights, interests, or property of Company, (iii) enforce this Agreement, (iv) protect the interests of users of the Software other than User or any other person, entity, partnership, organization, association or otherwise, or (v) operate or conduct maintenance and repair of Company’s services or equipment, including the Software as authorized by law. User has no expectation of privacy with respect to the Internet in general. User’s IP address is transmitted and recorded with each User session.   

 

⦁    Cookies. The Software may use cookies. A cookie is a small data file that a website stores on the User’s computer when the Software is accessed via the Internet. A cookie allows Company to monitor activity on its website and remember user preferences. Company uses information contained in cookies to improve the User’s experience, as well as track usage and tailor service options and content to usage patterns. Company does not use cookies to retrieve information from the User’s computer not related to the Software.

 

⦁    Billing/Credit or Charge Card Information. Company shall not share billing/credit or charge card information provided by the User with third parties outside of Company charge card processor vendor used to process transactions unless written or electronic permission is expressly received from User.

 

⦁    Use of Aggregate Information. Company may, at its sole discretion, share aggregate information (e.g. number of website visits, demographic breakdown, etc.) to third parties by combining aspects of personal information into an anonymous pool.

 

⦁    Security of Personal Information. Information security is of the utmost importance to Company, however, no transmission of data over the Internet is guaranteed to be completely secure. Company shall not guarantee or warrant the security of any personal information transmitted to or from it. Any such transmission is made solely at User’s risk.

 

⦁    Links. Company’s Software website may contain links to other Internet websites. If websites are not owned by Company these websites would not be under the control of Company and Company would not control some linked websites’ privacy and/or user agreements. Company does not grant any warranties (express or implied) nor does Company have any liability for information transferred and conferred to or from linked websites.

 

⦁    Audits. Company may gain access to customers trading activity for auditing purposes. Such records may be disclosed to an independent audit source. Reasonable and industry appropriate non-disclosure agreement(s) shall pertain to third party auditing sources. Software may transmit trade execution data over the Internet to a secure database for the purpose of audit tracking.

User shall be solely responsible for the security, confidentiality and integrity of all messages and the content that User receives, transmits through or stores via the Software or on any computer or related equipment that is used to access the Software. User shall be solely responsible for any authorized or unauthorized access to User’s brokerage account by any person, entity, partnership, organization, association or otherwise.

⦁    Sharing User Information. User authorizes Company to use User’s information in accordance with the Company’s Privacy Policy that can be viewed     at: www.billionoperatingsystem.com/privacy.

PRIVACY

End User License Agreement (EULA)

 

BILLION OPERATING SYSTEM TERMS OF SERVICE AGREEMENT

 

 

This TERMS OF SERVICE AGREEMENT (“Agreement”) is made between Billion Operating System, (“Company”) and any person or single entity (“User”) who installs the Billion Operating System (B.O.S) Software (“Software”).

 

BY ACCESSING, USING, OR INSTALLING ANY PART OF THE SOFTWARE, USER EXPRESSLY AGREES TO AND CONSENTS TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT.

 

1. Software Terms

 

a. Description. The Software is proprietary to Company and is protected by intellectual property laws and international intellectual property treaties. User’s access to the Software is licensed and not sold. Software is a trading platform with features including but not limited to the analysis of financial data, trade simulation, and live trade execution. This agreement is applicable to all versions of Software including but not limited to alpha and beta versions.

 

b. Use of Third Party Vendors. User is aware that the Software implements various third party software, information, platforms, and equipment (collectively “Vendors”) including but not limited to Application Programming Interfaces provided by clearing firms and/or independent vendors. Company warrants that use of third party providers and/or services is fully licensed for use by Vendors to Company and in-turn to licensed Users of Software. User shall abide by all Vendors’ individual terms of service agreements, if applicable.

 

c. Accessibility and Function. User agrees that from time to time, the Software may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment (hardware) malfunctions, (ii) software malfunctions, (iii) periodic maintenance procedures or repairs which Company may undertake from time to time, or (iv) causes beyond the reasonable control of Company or which causes are not reasonably foreseeable by Company. Company is not responsible, directly or indirectly, for the performance and/or reliability of Vendors’ systems, equipment or otherwise, or User’s Internet Service Provider (“ISP”). The inability to access the Software may result in trading losses. User acknowledges that they are aware of this risk and accepts the risk and responsibility for mitigating risk independently of Company by calling the clearing firm trade desk to enter or exit a trade should the need arise.

 

d. Equipment. User shall be solely responsible for maintaining user’s own equipment and hardware. User shall ensure their equipment is compatible with the Software, electrical, and other physical requirements for User’s use of the Software including, without limitation, telecommunications and Internet connection(s), ISP, non-conflicting software, web browsers and/or other equipment, programs and services required to access and use the Software.

 

e. Alpha and Beta. User is aware that Alpha or Beta versions of the Software are versions that are currently in a state undergoing extensive testing and that there is a likely hood of malfunction. Malfunction may result in trading losses. User acknowledges that they are aware of this risk and accepts the risk.

 

f. Grant of License. Company grants User, pursuant to the terms and conditions of this Agreement, a nonexclusive and nontransferable license to use the Software.

 

2. Security of User’s System

User shall be solely responsible for the security, confidentiality and integrity of all messages and the content that User receives, transmits through or stores via the Software or on any computer or related equipment that is used to access the Software. User shall be solely responsible for any authorized or unauthorized access to User’s brokerage account by any person, entity, partnership, organization, association or otherwise.

 

3. Fees and Payments

 

a. Collection and Taxes. All fees, applicable taxes, if any, and other charges related to the use of the Software shall be billed to User’s credit/charge card, or paid by check, paid by PayPal, wire transfer or another method of electronic payment accepted by Company (collectively, “Payment Method”) in its sole and absolute discretion. User shall be solely responsible for and shall pay Company, if applicable, all sales, use, value-added, personal property or other tax, duty or levy of any kind, including interest and penalties thereon (collectively, “Taxes”), whether imposed now or hereinafter by any governmental authority. User shall promptly pay Company in the event of any refusal by User’s credit card issuer to pay any amount to Company for any reason. User agrees to pay interest at the rate of two percent (2%) per month on any outstanding balance, together with costs of collection, including attorney's fees and costs, and any applicable bank fees. In the event User fails to pay any amount due as set forth herein, Company may, at its sole discretion, immediately suspend or terminate this Agreement and User’s access to the Software. Company reserves the right to report delinquent accounts to appropriate credit agencies.

 

b. Purchased Licenses. There is no commitment or obligation to purchase and therefore, Company offers no refunds for Software purchases. User shall not be entitled to a refund of the Software license fees under any circumstances after purchase. User agrees that without limitation certain features of the Software may not be available or supported in perpetuity. User also agrees that Company shall have the right to change features associated with the Software in Company’s sole discretion, and that Company may choose to discontinue support of Software at any time. Software licenses are for non-concurrent use, they are non-transferable, and can only be used by the User that purchased the license. Software licenses cannot be sold or bartered in the future and if such actions are taken the license can be terminated at Company’s sole discretion.

 

If for any reason Company is unable to charge User’s Payment Method for the full amount owed for the Software License provided, or if Company receives notification of a chargeback, reversal, payment dispute, or is charged a penalty for any fee it previously charged to User’s Payment Method, User agrees that Company may pursue all available lawful remedies in order to obtain payment, including but not limited to, immediate cancellation, without notice to User, of any Software Services registered or renewed on User’s behalf. Company also reserves the right to charge User reasonable "administrative fees" or "processing fees" for (i) tasks Company may perform outside the normal scope of its Services, (ii) additional time and/or costs Company may incur in providing its Services, and/or (iii) User’s non-compliance with this Agreement (as determined by Company in its sole and absolute discretion). Typical administrative or processing fee scenarios include, but are not limited to (i) customer service issues that require additional personnel time or attention; (ii) disputes that require accounting or legal services, whether performed by Company staff or by outside firms retained by Company; (iii) recouping any and all costs and fees, including the cost of Services, incurred by Company as the results of chargebacks or other payment disputes brought by User, User’s bank or Payment Method processor. These administrative fees or processing fees will be billed to the Payment Method User has on file with Company.

 

c. Software Service Fees. Software and/or data services will automatically renew on the expiration date to ensure no interruption or loss of services and will renew for a period equal in time to the most recent service period chosen and paid for by User.[1] Should the software service be terminated prior to any pre-paid period expiration date and pursuant to Section 6 of this Agreement, NO refund shall be issued to User by Company. Company expressly reserves the right to change or modify its prices and fees at any time, and such changes or modifications shall be posted online at http://www.billionoperatingsystem.com [2] and effective immediately without need for further notice to User. If User has purchased or obtained Services for a period of months or years, changes or modifications in prices and fees shall be effective when the Services in question come up for renewal. The Software service fees do not include the cost of any third party trading/transaction fees for real trading.

 

In addition, Company may participate in “recurring billing programs” or “Account updater services” supported by user’s credit card provider (and ultimately dependent on User’s bank participation). If User is enrolled in an automatic renewal option and Company is unable to successfully charge User’s existing Payment Method, User’s credit card provider (or User’s bank) may notify Company of updates to User’s credit card number and/or expiration date, or they may automatically charge User’s new credit card on Company’s behalf with or without notification to Company. In accordance with recurring billing program requirements, in the event that Company is notified of an update to User’s credit card number and/or expiration date, Company will automatically update User’s payment profile on User’s behalf. Company makes no guarantees that it will request or receive updated credit card information. User acknowledges and agrees that it is User’s sole responsibility to modify and maintain User’s payment information, including, but not limited to (i) Managing User’s renewal options and (ii) ensuring User’s associated payment method(s) are current and valid. Further, User acknowledges and agrees that User’s failure to do so, may result in the interruption or loss of services, and Company shall not be liable to User or any third party regarding the same.

d. Upgrades. When User has an active Software service User shall be entitled to Software upgrades as provided in the sole discretion of Company. User’s entitlement to upgrades shall be limited to the specific edition of the Software for which the User is licensed. For instance, if User subscribes to Edition X of the Software, User shall be entitled only to Edition X upgrades and so forth. Software editions relate to the different editions (i.e. Futures, Forex, or Stocks) of Software and shall not be confused with release version number(s).

e. Proof of Delivery. User agrees that Proof of Delivery of a purchased Software license is acknowledged when any one of the following events has occurred; (a) User accepts Agreement which is required prior to logging into purchased Software license and activates Software with the provided unique login credentials or (b) Company sends to User a confirmation of purchase receipt by email along with Software download links.

 

4. User Representations

User represents and warrants to Company that: (a) User is over the age of eighteen (18) and has the power and authority to enter into and perform User’s obligations under this Agreement, (b) all information provided by User to Company is truthful, accurate and complete, (c) User is the authorized signatory of the credit or charge card provided to Company to pay the Fees (or authorized by the authorized signatory), (d) User shall comply with all terms and conditions of this Agreement including, without limitation, the provisions set forth in section 5, (e) User, and not the Company, is solely responsible for the security and use of User’s password, (f) User has provided and shall provide accurate and complete registration information including, without limitation, User’s legal name, address and telephone number, (g) User acknowledges that all right, title, and interest to the Software belongs to Company. Company reserves all rights not expressly granted to User in this Agreement and that the User may not sublicense, transfer, or assign the Software, directly or indirectly, to any person, entity, partnership, organization, association or otherwise, for any reason, (h) User expressly acknowledges and agrees that User has decided and chosen to trade live financial products based entirely on User’s own experience, research, and information and not due to encouragement, influence, duress or any other information from Company, (i) User agrees and accepts that it is User’s sole responsibility to contact the Company if assistance is needed to ensure a totally satisfactory User experience with Software, (j) User agrees not to publish, or influence anyone to publish, libelous or derogatory content that could harm the Company, its reputation, products, services, or employees and further agrees to cover all costs, or expenses, including attorney’s fees and costs related in whole or in part to User’s violation of this provision.


 

5. Prohibited Uses

 

a. Errors, Acts, Omissions and Unacceptable Use. User is solely responsible for any and all errors, acts and omissions that occur under User’s account or password, and User, directly or indirectly, agrees not to engage in, facilitate, or encourage any unacceptable use of the Software which unacceptable use includes, without limitation, use of the Software to: (i) disseminate, store or transmit unsolicited messages, chain letters or unsolicited commercial e-mail, (ii) disseminate or transmit material that, to a reasonable person may be considered abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious, (iii) disseminate, store or transmit files, graphics, software or other material that actually, impliedly, or potentially infringes the copyright, trademark, trade secrets, trade name or other intellectual property right of any person, entity, partnership, organization, association or otherwise, (iv) create a false identity or to otherwise attempt to mislead any person, entity, partnership, organization, association or otherwise, as to the identity or origin of any communication, (v) distribute, re-distribute or permit transfer of content in violation of any export or import law and/or regulation or restriction of the United States of America and its agencies or authorities, or without all required approvals, licenses or exemptions, (vi) interfere, disrupt or attempt to gain unauthorized access to other accounts on the Software or any other computer network, (vii) disseminate, store or transmit viruses or any other malicious code or program,; or (viii) engage in any other activity deemed by the Company, in its sole discretion, to be in conflict with the spirit or intent of this Agreement.

b. Dissemination. User may not disseminate software, license key code(s), username(s) and/or password(s) to any other person, entity, partnership, organization, association or otherwise. Internet Protocol ("IP”) addresses and other identifying computer information may be recorded by Company to prevent account misuse. Any violation of this Agreement, including account misuse shall constitute grounds for immediate termination by Company of this Agreement and any license, in its absolute and sole discretion, without prior notice to User.

c. Prohibited Development Activities. User shall not develop or create any applications designed to interact with and/or work within the Software that (a) infringe on the right of any person or entity in any patent, copyright, or other intellectual property; (b) include or contain spyware, viruses, or any other malicious process; (c) violate, circumvent or attempt to circumvent any features limited by Company pursuant to any contract or licensing agreement; (d) violate any applicable law, ordinance, regulation, statute, common law, policy, treaty or order adopted or enacted by any country, state, locality or international body. User shall defend, indemnify and hold harmless the Company for any fees, fines suits, claims, penalties or other costs, or expenses, including attorney’s fees and costs (“Claims”) related in whole or in part to User’s violation of this provision, regardless of whether Claims are caused in part by any third-party, including Company.



 

6. Termination

This Agreement is effective upon User’s acceptance as set forth herein and shall continue in full force until terminated. User may terminate this Agreement for any reason upon thirty (30) days prior written notice to Company. Company reserves the right, in its sole discretion and without prior notice to User, at any time and for any reason, to: (a) remove or disable access to all or any portion of the Software, (b) suspend User’s access to or use of all or any portion of the Software, and (c) terminate this Agreement.

 

7. Disclaimer of Warranties

THE SOFTWARE IS PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. USE OF THE SOFTWARE IS AT USER’S SOLE RISK. COMPANY DOES NOT WARRANT THAT THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES COMPANY MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE SOFTWARE. USER REALIZES THAT THERE IS RISK IN TRADING AND THAT ASSETS MAY BE LOST AND ARE NOT INSURED. COMPANY IS ABSOLUTELY NOT RESPONSIBLE, DIRECTLY OR INDIRECTLY, FOR USER’S TRADE, ORDER, PURCHASE AND SALE ACTIONS. COMPANY MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IN RELATION TO THE SOFTWARE. COMPANY MAKES ABSOLUTELY NO WARRANTIES WITH REFERENCE TO THIRD PARTY VENDOR/CLEARING FIRM (FCM/FDM/RFED) SOFTWARE AND/OR SERVICES.

 

8. Limitation of Liability

UNDER NO CIRCUMSTANCES SHALL COMPANY, DIRECTLY OR INDIRECTLY, BE LIABLE TO USER OR ANY OTHER PERSON, ENTITY, PARTNERSHIP, ORGANIZATION, ASSOCIATION OR OTHERWISE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, THE SOFTWARE OR THE INTERNET IN GENERAL, INCLUDING, WITHOUT LIMITATION, USER’S USE OR INABILITY TO USE THE SOFTWARE, ANY CHANGES TO OR INACCESSIBILITY OF THE SOFTWARE, DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY TRANSMISSION OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, ANY TRANSACTION OR AGREEMENT ENTERED INTO THROUGH THE SOFTWARE, OR ANY DATA OR MATERIAL FROM A THIRD PARTY ACCESSED ON OR THROUGH THE SOFTWARE, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE. IN NO EVENT SHALL COMPANY’S TOTAL LIABILITY FOR ANY DAMAGES EXCEED THE TOTAL FEES PAID BY USER TO COMPANY HEREUNDER. SOME STATES PROHIBIT THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THUS THIS LIMITATION OF LIABILITY MAY NOT APPLY TO USER. IF USER IS DISSATISFIED WITH THE SOFTWARE, USER’S SOLE AND EXCLUSIVE REMEDY SHALL BE FOR USER TO DISCONTINUE USE OF THE SOFTWARE AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 6. COMPANY IS NOT LIABLE FOR ANY ITEMS VIEWED OR TRANSMITTED VIA THE SOFTWARE. COMPANY IS NOT LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY ACTS TAKING PLACE WHICH ARE NOT VIEWED OR TRANSMITTED VIA THE SOFTWARE. COMPANY IS NOT OBLIGATED, DIRECTLY OR INDIRECTLY, TO TAKE ANY STEPS TO PREVENT OR CORRECT ANY ILLEGAL, ABUSIVE OR OTHERWISE INAPPROPRIATE ACTIVITY PERFORMED BY USER, NOR IS COMPANY OBLIGATED, DIRECTLY OR INDIRECTLY, TO ARCHIVE OR OTHERWISE MAINTAIN OTHER REPRODUCTION OF THE CONTENT THAT APPEARS OR IS TRANSMITTED ON THE SOFTWARE FOR FUTURE REFERENCE. COMPANY IS NOT LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY ACTION OR INACTION WITH RESPECT TO ANY CONTENT ON THE SOFTWARE. COMPANY IS NOT RESPONSIBLE, DIRECTLY OR INDIRECTLY, FOR COMPLIANCE OR LACK THEREOF BY ANY CLEARING FIRMS OR BROKER(S) WITH RESPECT TO ANY APPLICABLE LAWS AND REGULATIONS INCLUDING, BUT NOT LIMITED TO, THOSE LAWS REGARDING OR PERTAINING TO THE TRADING OF SECURITIES. COMPANY MAKES SIGNIFICANT EFFORTS MEETING OR EXCEEDING INDUSTRY STANDARDS TO INSURE THE SECURITY AND/OR FUNCTIONALITY OF SOFTWARE RELATED INTERNET TRANSMISSIONS BUT, DUE TO THE INHERENT NATURE OF THE INTERNET, CANNOT GUARANTEE OR WARRANT FUNCTIONALITY AND/OR SECURITY OF INTERNET TRANSMISSIONS.

 

9. Indemnification

 

a. General. User agrees to indemnify, hold harmless and defend Company, its members, managers, shareholders, directors, officers, employees and agents from and against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorney’s fees, asserted by any person, entity, partnership, organization, association, third party, broker or otherwise, arising out of or relating to: (i) this Agreement, (ii) User’s use of the Software, including any data or work transmitted or received by User, and (iii) any unacceptable use of the Software, including, without limitation, any statement, data or content made, transmitted or republished by User which is prohibited as unacceptable in section 5.

b. Market Data Provider. User agrees to indemnify, hold harmless, release, and defend Company, its members, managers, shareholders, directors, officers, employees and agents from and against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorney’s fees, asserted by any person, entity, partnership, organization, association, third party, broker, or otherwise, arising out of or relating to any third party real-time market data provider, independent software vendor (“ISV”), or other exchange or market data distributors (collectively “Market Data Providers”). Specifically, User acknowledges that using the Software to connect to Market Data Provider may carry specific obligations that User agrees to adhere to, including but not limited to market data licensing agreements.


 

10. Privacy

 

a. General. When reasonably practicable, Company shall attempt to respect and maintain User’s privacy. Company shall not monitor, edit, or disclose any personal information about User or User’s account, including its contents or User’s use of the Software, without User’s prior written consent unless Company has a good faith belief that such action is necessary to: (i) comply with any legal process or other legal requirements of any governmental or regulatory authority, (ii) protect and defend the rights, interests, or property of Company, (iii) enforce this Agreement, (iv) protect the interests of users of the Software other than User or any other person, entity, partnership, organization, association or otherwise, or (v) operate or conduct maintenance and repair of Company’s services or equipment, including the Software as authorized by law. User has no expectation of privacy with respect to the Internet in general. User’s IP address is transmitted and recorded with each User session.

b. Cookies. The Software may use cookies. A cookie is a small data file that a website stores on the User’s computer when the Software is accessed via the Internet. A cookie allows Company to monitor activity on its website and remember user preferences. Company uses information contained in cookies to improve the User’s experience, as well as track usage and tailor service options and content to usage patterns. Company does not use cookies to retrieve information from the User’s computer not related to the Software.

c. Billing/Credit or Charge Card Information. Company shall not share billing/credit or charge card information provided by the User with third parties outside of Company charge card processor vendor used to process transactions unless written or electronic permission is expressly received from User.

d. Use of Aggregate Information. Company may, at its sole discretion, share aggregate information (e.g. number of website visits, demographic breakdown, etc.) to third parties by combining aspects of personal information into an anonymous pool.

e. Security of Personal Information. Information security is of the utmost importance to Company, however, no transmission of data over the Internet is guaranteed to be completely secure. Company shall not guarantee or warrant the security of any personal information transmitted to or from it. Any such transmission is made solely at User’s risk.

f. Links. Company’s Software website may contain links to other Internet websites. If websites are not owned by Company these websites would not be under the control of Company and Company would not control some linked websites’ privacy and/or user agreements. Company does not grant any warranties (express or implied) nor does Company have any liability for information transferred and conferred to or from linked websites.

g. Audits. Company may gain access to customer’s trading activity for auditing purposes. Such records may be disclosed to an independent audit source. Reasonable and industry appropriate non-disclosure agreement(s) shall pertain to third party auditing sources. Software may transmit trade execution data over the Internet to a secure database for the purpose of audit tracking.

h. Sharing User Information. User authorizes Company to use User’s information in accordance with the Company’s Privacy Policy that can be viewed at: www.billionoperatingsystem.com/privacy[3]

11. Risk Disclosure

Trading contains substantial risk and is not appropriate for all investors. An investor could potentially lose all or more than their initial investment. Risk capital is money that can be lost without jeopardizing ones’ financial security or life style. Only risk capital should be used for trading and only those with sufficient risk capital should consider trading. Past performance is not necessarily indicative of future results. The full Risk Disclosure is incorporated by reference into this Agreement and can be viewed at:  www.billionoperatingsystem/full-risk-disclosure[4]

 

12. Miscellaneous

 

a. Amendment. Company shall have the right, at any time and without prior written notice to or consent from User, to add to or modify the terms of this Agreement, simply by delivering such amended terms to User by e-mail at the address provided to Company by User or by requiring the User to accept an updated Agreement upon accessing the Software. User’s access to or use of the Software after the date such amended terms are delivered to User shall be deemed to constitute acceptance of such amended terms.

b. Waiver. No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing and granted by Company in writing.

c. Severability. If any provision of this Agreement is determined to be illegal or unenforceable, then such provision shall be enforced to the maximum extent possible and the other provisions shall remain fully effective and enforceable.

d. Notice. All notices shall be in writing and shall be deemed to be delivered when sent by first-class mail or when sent by facsimile or e-mail to either parties’ last known post office, facsimile or e-mail address, respectively. User hereby consents to notice by e-mail. All notices shall be directed to the parties at the respective addresses given above or to such other address as either party may, from time to time, provide to the other party.

e. Governing Law. This Agreement is made in and shall be governed by the laws of the State of Nevada without reference to any conflicts of laws.

f. Dispute Resolution. Any and all disputes relating to or arising out of this Agreement including, but not limited to, the arbitrability and the validity of this Agreement shall be resolved by binding arbitration in Las Vegas, Nevada. Such arbitration shall be before a single arbitrator mutually agreed by the parties.

g. Force Majeure. If the performance of any part of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by causes beyond the reasonable control of either party, that party shall be excused from such performance to the extent that it is prevented, hindered or delayed by such causes and only for the duration of such causes.

h. Survival. The terms and provisions of sections 2, 3, 4, 5, 7, 8, 9, 10, 11, and 12 shall survive any termination or expiration of this Agreement.

i. Entire Agreement. This Agreement constitutes the complete and exclusive statement of the agreement between the parties with respect to the Software and supersedes any and all prior or contemporaneous communications, representations, statements and understandings, whether oral or written, between the parties concerning the Software.

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