Pelican Delivers, Inc.
Effective Date: August 30th, 2019
Last Updated Date: November 5, 2019
This Software License Agreement, including the Order Form which is incorporated by this reference (this“Agreement”), is a binding agreement between Pelican Delivers, Inc., a Nevada corporation (“Licensor” or “us”) and the person or entity identified on the Dispensary Signup Page on Pelicandelivers.com and its affiliates as the licensee of the Software (“Licensee” or “you”).
Licensor provides the Software solely on the terms and conditions set forth in this Agreement and on the
condition that Licensee accepts and complies with them. By clicking the “accept” button/checking the
“accept” box or by using the Software you agree that you: (a) have read, understand, and agree to be
bound by this Agreement and agree that Licensee is legally bound by its terms; and (b) represent and
warrant that: (i) you are 21 years of age or older/of legal age to enter into a binding agreement; and (ii) if
Licensee is a corporation, limited liability company, governmental organization, or other legal entity, you
have the right, power, and authority to enter into this Agreement on behalf of Licensee and bind Licensee
to its terms.
Notwithstanding anything to the contrary in this Agreement or your or Licensee’s acceptance of the terms
and conditions of this Agreement, no license is granted (whether expressly, by implication, or otherwise)
under this Agreement to software that Licensee did not acquire lawfully or that is not a legitimate,
authorized copy of Licensor’s Software.
THIS AGREEMENT REQUIRES BINDING ARBITRATION AND LIMITS THE REMEDIES
THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
1.1. “Authorized Users” means solely those employees or duly authorized representatives of
Licensee as set forth on the Pelican Delivers website who have been trained to use the Software consistent
with all Documentation and Licensor’ instructions, and Persons that they might train
consistent with all Documentation and Licensor’ instructions, pursuant to the license granted
under this Agreement, in strict compliance with state law.
1.2. “Documentation” means user manuals, technical manuals, and any other materials provided
by Licensor, in printed, electronic, or other form, that describe the installation, operation, use,
or technical specifications of the Software.
1.3. “Intellectual Property Rights” means any and all registered and unregistered rights granted,
applied for, or otherwise now or hereafter in existence under or related to any patent,
copyright, trademark, trade secret, database protection, or other intellectual property rights
laws, and all similar or equivalent rights or forms of protection, in any part of the world.
1.4. “License Fees” means the license fees, including all taxes thereon, paid or required to be paid
by Licensee for the license granted under this Agreement.
1.5. “Licensee” has the meaning set forth in the preamble.
1.6. “Licensee Content” means any data, information and other material provided or uploaded
directly to the Software by Licensee or Licensee’s affiliates, employees, representatives,
customers, Authorized Users, and end-users in the course of receiving or using the Software.
1.8. “Open Source Components” means any Software that is, or that contains or is derived in
any manner (in whole or in part) from any Software that is, distributed as free software, open
source software, copyleft software, or under similar licensing or distribution models,
including any computer Software licensed under the Apache License, GNU General Public
License, the GNU Library General Public License, the GNU Lesser General Public License,
the Affero General Public License, the Mozilla Public License, the Common Development
and Distribution License, the Eclipse Public License, any Creative Commons “sharealike”
license or any other license that has been approved by the Open Source Initiative.
1.9. “Person” means an individual, corporation, partnership, joint venture, limited liability
company, governmental authority, unincorporated organization, trust, association, or other
1.10. “Personal Information” means any information in any form that can be used to identify an
individual either alone or when combined with other personal or identifying information that
is linked or linkable to a specific individual and any information that is included in the
definition for any similar term (e.g., “personally identifiable information” or “PII”) in any
1.11. “Privacy Laws” means all applicable laws governing the receipt, collection, compilation,
use, storage, processing, sharing, safeguarding, security, disposal, destruction, disclosure or
transfer of Personal Information, including the Fair Credit Reporting Act/ Fair and Accurate
Credit Transactions Act of 2003, the EU-U.S. Privacy Shield, the EU General Data Protection
Regulation, the California Online Privacy Protection Act, the Payment Card Industry Data
Security Standard, the CAN-SPAM Act and all laws governing breach notifications.
1.12. “Software” means the Pelican Delivers software program(s) for which Licensee is purchasing a
License on a monthly basis.
1.13. “Term” has the meaning set forth in Section 10.
1.14. “Third Party” means any Person other than Licensee or Licensor.
1.15. “Update” has the meaning set forth in Section 6.
2.1. Subject to and conditioned upon Licensee’s payment of the License Fees and Licensee’s strict
compliance with all terms and conditions set forth in this Agreement, Licensor hereby grants
to Licensee a non-exclusive, non-transferable, non-assignable, non-sublicensable, revocable
limited license during the Term to use, solely by and through its Authorized Users at one (1)
physical retail location, the Software and Documentation, solely as set forth in this Section 2
and subject to all conditions and limitations set forth in Section 3 and elsewhere in this
Agreement. This license grants Licensee the right, exercisable solely by and through
Licensee’s Authorized Users, to:
2.1.1. Login and use in accordance with the Documentation one (1) copy of the
Software on a computer terminal, owned or leased, and controlled by, Licensee. All copies of the Software are the exclusive property of the Licensor; will be subject to the terms and conditions of this
Agreement; and must include all trademark, copyright, patent, and other Intellectual
Property Rights notices contained in the original.
2.1.2. Use and run the Software as properly installed in accordance with this Agreement and the
Documentation, solely as set forth in the Documentation and solely for Licensee’s retail
business purposes. Such use is permitted only on the computer on which the Software is
installed, at the physical location thereof and not via any remote access or other network.
2.2. Third-Party Materials. The Software may include paid software, content, data, or other
materials, including related documentation, that are owned by Persons other than Licensor
and that are provided to Licensee on license terms that are in addition to and/or different from
those contained in this Agreement (“Third-Party Licenses”). Licensor’s use of any Third-
Party Software is proprietary and confidential.
3. Use Restrictions. Licensee shall not, and shall ensure that its Authorized Users, agents, and other
representatives, directly or indirectly, do not:
3.1. use (including make any copies of) of the Software or Documentation beyond the scope of
the license granted under Section 2 or in any manner or for any purpose or application not
expressly permitted by this Agreement;
3.2. modify, translate, adapt, or otherwise create derivative works or improvements, whether or
not patentable, of the Software or Documentation or any part thereof;
3.3. combine the Software or any part thereof with, or incorporate the Software or any part thereof
in, any other programs, not currently part of the software.
3.4. reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain
access to the source code of the Software or any part thereof;
3.5. bypass or breach any security device or protection used for or contained in the Software or
3.6. remove, alter, combine, supplement, or obscure any warranties, disclaimers, serial numbers,
trademarks or any copyright, trademark, patent, or other intellectual property or proprietary
rights notices provided on or with the Software or Documentation, including any copy
3.7. except as expressly set forth in Section 2, copy the Software or Documentation, in whole or
3.8. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make
available the Software, or any features or functionality of the Software, to any Third Party for
any reason, whether or not over a network or on a hosted basis, including in connection with
the internet or any web hosting, wide area network (WAN), virtual private network (VPN),
virtualization, time-sharing, service bureau, software as a service, cloud, or other technology
3.9. use the Software or Documentation in, or in association with, the design, construction,
maintenance, or operation of any hazardous environments, safety-critical applications, or
3.10. use the Software in any manner or for any purpose that infringes, misappropriates, or
otherwise violates any Intellectual Property Right, Privacy Laws, or other right of any Person;
3.11. use the Software or Documentation in violation of any law (including Privacy Laws),
Regulation, or rule with the exception of United States federal laws related to marihuana;
3.12. use the Software or Documentation for purposes of competitive analysis of the Software, the
development of a competing software product or service, or any other purpose that is to the
Licensor’s commercial disadvantage.
4. Responsibility for Use of Software. Licensee is responsible and liable for all uses of the Software
and Documentation at Licensee’s location and any other uses by Licensee, its Authorized Users,
employees, and other representatives. Specifically, and without limiting the generality of the
foregoing, Licensee is responsible and liable for all actions and failures to take required actions with
respect to the Software and Documentation by its Authorized Users or by any other Person to whom
Licensee or an Authorized User may provide access to or use of the Software and/or Documentation,
whether such access or use is permitted by or in violation of this Agreement. Licensee is solely
responsible for obtaining and maintaining any other equipment and ancillary services needed to
connect to, access or otherwise use the Software, including, without limitation, modems, hardware,
server, software, operating system, networks, web servers and the like (collectively, “Equipment”),
and to ensure that the Equipment complies with the required specifications outlined in
Documentation. Licensee shall also be responsible for maintaining the security of the Equipment,
Licensee’s copies of Software, any Licensee accounts, passwords (including but not limited to
administrative and user passwords) and files, and for all uses of Licensee’s customers’ accounts.
5. License Compliance Measures.
5.1. The Software may contain technological copy protection or other security features designed
to prevent unauthorized use of the Software, including features to protect against any use of
the Software that is prohibited under Section 3. Licensee shall not, and shall not attempt to,
remove, disable, circumvent, or otherwise create or implement any workaround to, any such
copy protection or security features. Licensor may suspend access or prohibit uses of the
Software (or disable content or data) if it reasonably believes Licensee to be in violation of
5.2. During the Term, Licensor may, in Licensor’s sole discretion, audit Licensee’s use of the
Software to ensure Licensee’s compliance with this Agreement, provided that (i) any such
audit shall be conducted on not less than seven (7) days’ prior notice to Licensee, and (ii) no
more than four (4) audits may be conducted in any twelve (12) month period except for good
cause shown. Licensor also may, in its sole discretion, audit Licensee’s systems within twelve
(12) months after the end of the Term to ensure Licensee has ceased use of the Software and
removed the all copies of the Software from such systems as required hereunder. The
Licensee shall reasonably cooperate with Licensor’s personnel conducting such audits and
provide all reasonable access requested by the Licensor to records, systems, equipment,
information, and personnel, including machine IDs, serial numbers, and related information.
Licensor shall only examine information directly related to the Licensee’s use of the
Software. Licensor may conduct audits only during Licensee’s normal business hours and in
a manner that does not unreasonably interfere with the Licensee’s business operations.
5.3. If any of the measures taken under this Section 5 determine that the Licensee’s use of the
Software exceeds or exceeded the use permitted by this Agreement then Licensee shall
promptly pay Licensor all costs incurred in conducting the audit and Licensor shall also have
the right to terminate this Agreement in addition to, and not in lieu of, all other damages or
remedies the Licensor may have at law or in equity.
6. Maintenance and Updates.
6.1. Licensee acknowledges and agrees that Licensor’s Software and related services are evolving
and Licensor may, at its sole discretion, develop updates, upgrades, bug fixes, patches, and
other error corrections (collectively, “Updates”). Licensor acknowledges and agrees that
Licensor may Update the Software with or without notifying Licensee. Licensee may need to
update third-party software from time to time in order to use the Software.
6.2. During the Term, Licensor may provide Licensee with Updates (including updated
Documentation) that Licensor may, in its sole discretion, make available to its licensees at no
additional charge. All Updates provided by Licensor to Licensee are deemed Software, as
defined under this Agreement, subject to all terms and conditions of this Agreement. Licensee
will install all software updates as soon as practicable after receipt of notice about such
updates. Licensee does not have any right hereunder to receive any new products, new
versions of different software, or separate software that Licensor may, in its sole discretion,
release or develop from time to time. Licensor may determine whether any issuance qualifies
as a new version, new release, or Update in its sole discretion.
6.3. Although Licensor takes commercially reasonable steps to maintain the Software, Licensee
agrees that Licensor has no obligation to develop or provide Updates for any particular issue.
Licensor reserves the right to condition the provision of maintenance or other services,
including all or any Updates, on Licensee’s registration of the Software for which
support is requested. Licensor has no obligation to provide maintenance or other services,
6.3.1. for any but the most current version or release of the Software;
6.3.2. for any Software for which all previously issued Updates have not been installed;
6.3.3. for any Software that has been modified other than by Licensor, or that is being used with
any hardware, software, configuration, or operating system not specified in the
7. Collection and Use of Information.
7.1. Although Licensor has no obligation to monitor Licensee’s use of the Software, Licensor
may, directly or indirectly through the services of Third Parties, collect and store information
regarding Licensee, use of the Software, Licensee Content, Licensee’s customers, and about
equipment on which the Software is installed or through which it otherwise is accessed and
used. Licensor will not, however, sell to a third party or marketing agency any of the
following: Licensee’s customer loyalty identification numbers assigned by Licensee to its
customers, Licensee’s customers’ email addresses or Licensee’s customers’ telephone
7.2. Licensee agrees that the Licensor may use such information for any purpose related to any
use of the Software or Licensor’s business, including but not limited to:
7.2.1. the provision of maintenance and other services including, but not limited to, SKU
systems, but not including advertising, marketing, demographic reporting, product
development, and research unless the information is anonymized or aggregated;
7.2.2. improving the performance of the Software or developing Updates;
7.2.3. verifying Licensee’s compliance with the terms of this Agreement and enforcing the
Licensor’s rights, including all Intellectual Property Rights in and to the Software.
8. Intellectual Property Rights.
8.1. Intellectual Property Ownership. Licensee acknowledges and agrees that the Software and
Documentation are provided under license, and not sold, to Licensee. Licensee does not
acquire any ownership interest in the Software or Documentation under this Agreement, or
any other rights thereto, other than to use the same in accordance with the license granted and
subject to all terms, conditions, and restrictions under this Agreement. Licensor and its
licensors and service providers reserve and shall retain their entire right, title, and interest in
and to the Software and all Intellectual Property Rights arising out of or relating to the
Software, except as expressly granted to the Licensee in this Agreement. Licensee shall
safeguard all Software (including all copies thereof) from infringement, misappropriation,
theft, misuse, or unauthorized access. Licensee shall promptly notify Licensor if Licensee
becomes aware of any infringement of the Licensor’s Intellectual Property Rights in the
Software and fully cooperate with Licensor in any legal action taken by Licensor to enforce
its Intellectual Property Rights.
8.2. Licensee Content. As between the parties, Licensee Content will be owned by Licensee.
Licensee will be solely responsible for the accuracy, quality, integrity and legality of
Licensee Content. Licensee hereby grants to Licensor a non-exclusive, irrevocable, royalty-
free, perpetual, transferrable, worldwide license to use Licensee Content to: (i) provide the
Software; (ii) for other development, diagnostic and corrective purposes in connection with
the Software, improving the performance of the Software, developing Updates, and other
Licensor offerings; (iii) use and disclose such data as-is or in aggregated or de-identified form
in connection with Licensor’s business or commercial purposes; (iv) for any purpose related
to any use of the Software or Licensor's business, including but not limited to the provision of
maintenance and other services; (v) verifying Licensee's compliance with the terms of this
Agreement and enforcing the Licensor's rights, including all Intellectual Property Rights in
and to the Software; and (vi) the purposes described in Section 7. Licensee represents and
warrants that it has full legal right to grant the foregoing license to Licensor and that Licensor
Content has been acquired in compliance with all laws including Privacy Laws.
9.1. All License Fees are payable on the date specified and in the manner set forth when setting up a new storefront on Pelicandelivers.com and are non-refundable. If Licensee fails to make any payment within five (5) days
after the due date specified when setting up a new storefront on pelicandelivers.com then, Licensee’s account will go inactive. Any renewal of a Software license or maintenance and support services hereunder shall not be effective until the fees for such renewal have been paid in full. If Licensee’s use of the Software exceeds any applicable limits set forth on pelicandelivers.com or otherwise requires the payment of additional fees (per the terms of this Agreement), Licensee shall be billed for such usage and Licensee agrees to pay the additional fees.
9.2. Licensor reserves the right to change the License Fees or applicable charges and to institute
new charges and License Fees at the end of the Term (defined herein) or then current renewal
term, upon fifteen (15) days prior notice to Licensee (which may be sent by email). If Licensee
believes that it has been billed incorrectly, Licensee must contact Licensor about the error or
problem no later than fifteen (15) days after the closing date on the first billing statement in
which the error or problem appeared, in order to receive an adjustment or credit.
10. Term and Termination.
10.1. This Agreement and the license granted hereunder shall remain in effect for a 30 day term that renews every successful monthly payment or until terminated as set forth herein (the “Term”).
10.2. Licensee may terminate this Agreement by ceasing to use and destroying all copies of the
Software and Documentation and notifying Licensor of the same.
10.3. Licensor may terminate this Agreement, effective upon written notice to Licensee, if
Licensee, breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being
capable of cure, remains uncured seven (7) days after Licensor provides written notice
10.4. Licensor may terminate this Agreement, effective immediately, if Licensee files, or has filed
against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other
insolvency law, makes or seeks to make a general assignment for the benefit of its creditors
or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a
substantial part of its property.
10.5. Upon expiration or earlier termination of this Agreement, the license granted hereunder shall
also terminate, and Licensee shall cease using and destroy all copies of the Software and
Documentation. No expiration or termination shall affect Licensee’s obligation to pay all
Licensee Fees that may have become due before such expiration or termination, or entitle
Licensee to any refund, except as set forth in Section 11.
10.6. Upon termination, Licensee has up to thirty (30) days to request its historical sales data,
inventory data, and/or removal of its data. Licensor will use commercially reasonable efforts
to complete all requests within five (5) business days. After such thirty (30) day period,
Licensor may retain or destroy such data at its discretion.
11. Disclaimer of Warranties. Licensor shall use commercially reasonable efforts consistent with
prevailing industry standards to maintain the Software in a manner which minimizes errors and
interruptions. Notwithstanding anything to the contrary:
11.1. LICENSEE EXPRESSLY UNDERSTANDS AND AGREES THAT TO THE EXTENT
PERMITTED BY APPLICABLE LAW, LICENSEE’S USE OF SOFTWARE IS AT ITS
SOLE RISK, AND LICENSOR’S SOFTWARE IS PROVIDED ON AN "AS IS" AND "AS
AVAILABLE" BASIS, WITH ALL FAULTS. LICENSOR EXPRESSLY DISCLAIMS
ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND,
WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE
IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
11.1.1. Inventory. The Software is not intended to, and does not, replace Licensee’s own
inventory management policies and procedures as may be required by applicable
laws, rules and regulations. Licensee is solely responsible for Software data entry
and maintaining accurate inventory counts. Licensor is not responsible for theft,
miscounts, errors in data entry or any other aspect of data corruption due to human
error on the part of Licensee or any Third Party. Although Licensor will use
commercially reasonable efforts designed to ensure that the compliance procedures
and other information made available via Software are accurate and in accordance
with the applicable laws of Licensee’s state, Licensor does provide legal or
regulatory compliance advice. Licensee hereby releases Licensor and waives any
claims, damages, losses and liabilities against Licensor for any errors or omissions
related to such inventory functionality.
11.1.2. Express Disclaimers. Licensor makes no warranty, representation or condition that: (1)
Software will meet Licensee’s requirements; (2) Licensee’s use of Software will be
uninterrupted, timely, secure or error-free; (3) the results that may be obtained from use
of Software will be accurate or reliable; or (4) any errors in the Software will be
11.2. Any content downloaded from or otherwise accessed through Software is accessed at
Licensee’s own risk, and Licensee shall be solely responsible for any damage to its property
or person, including, but not limited to, computer systems and any device used to access
Software, or any other loss that results from accessing such content.
11.3. From time to time, Licensor may offer new "beta" features or tools with which its licensees
may experiment. Such features or tools are offered solely for experimental purposes and
without any warranty of any kind, and may be modified or discontinued at Licensor’s sole
discretion. The provisions of this section apply with full force to such features or tools.
12. Limitation of Liability. To the fullest extent permitted under applicable law:
12.1. Disclaimer of Certain Damages. Licensor agrees to maintain its systems related to the
functionality of the Software and take commercially reasonable steps to avoid Software
outages but Licensee understands and agrees that in no event shall Licensor or its affiliates, or
any of their respective licensors or service providers be liable for any use, interruption, delay,
or inability to use the Software; lost revenues or profits; delays, interruption, or loss of
services, business, or goodwill; loss or corruption of data; loss resulting from system or
system service failure, malfunction, or shutdown; failure to accurately transfer, read, or
transmit information; failure to update or provide correct information; system incompatibility
or provision of incorrect compatibility information; or breaches in system security; or for any
consequential, incidental, indirect, exemplary, special, or punitive damages, whether or not
Licensor has been advised of the possibility of such damages, or for any damages for
personal or economic injury arising out of or in connection with the Software under any
theory of liability, resulting from: (1) the use or inability to use Software; (2) the cost of
procurement of substitute goods or services resulting from any goods, (3) unauthorized access
to or alteration of Licensee’s transmissions or data; (4) statements or conduct of any third
party within the Software; or (5) any other matter related to Software, whether based on
warranty, copyright, contract, tort (including negligence), strict liability, product liability or
any other legal theory.
12.2. CAP ON MONETARY LIABILITY. UNDER NO CIRCUMSTANCES WILL
LICENSOR BE LIABLE TO LICENSEE FOR MORE THAN THE AMOUNT
RECEIVED BY LICENSOR IN THE LAST THIRTY (30) DAYS A RESULT OF LICENSEE’S USE OF SOFTWARE. IF LICENSEE HAS NOT PAID LICENSOR, LICENSOR'S SOLE AND EXCLUSIVE LIABILITY SHALL BE LIMITED TO ONE HUNDRED DOLLARS ($100.00).
12.3. Exclusion of Damages. Certain jurisdictions do not allow the exclusion or limitation of
certain damages. If these laws apply to you, some or all of the above exclusions or
limitations may not apply to you, and you might have additional rights.
12.4. Basis of the Bargain. The limitations of damages set forth above are fundamental elements of
the basis of the bargain between the parties.
13.1. Amendments. Licensor reserves the right to change or modify portions of this Agreement at
any time by providing written notice, such as email notice, notice through the Software, or
other reasonable notice to Licensee no less than fourteen (14) days before the effective date
of such amendment. Any such changes will become effective no earlier than fourteen (14)
days after notice is delivered, except that changes addressing new functions of the Software
or changes made for legal reasons may become effective immediately. Licensee’s continued
use of the Software after the date any such changes become effective constitutes acceptance
of the newly amended Agreement.
13.2. Survival. All sections of this Agreement which by their nature should survive termination
will survive termination, including, without limitation, all rights to payment of License Fees,
collection and use of information, warranty disclaimers, and limitations of liability.
13.3. Electronic Communications. The communications between Licensee and Licensor may be
electronic. For contractual purposes, Licensee (1) consents to receive communications from
Licensee in an electronic form; and (2) agree that all terms and conditions, agreements,
notices, disclosures, and other communications that Licensor provides to Licensee
electronically satisfy any legal requirement that such communications would satisfy if in
writing. The foregoing does not affect statutory rights.
13.4. Assignment. The Agreement and Licensee’s rights and obligations hereunder, may not be
assigned, subcontracted, delegated or otherwise transferred, without Licensor's prior written
consent, and any such attempted assignment, subcontract, delegation, or transfer in violation
of the foregoing will be null and void except an assignment to a successor entity in the case
of a merger or other corporate reorganization in which Licensee is not the surviving entity.
Licensor may freely assign, subcontract, delegate and transfer this Agreement, in whole or in
13.5. Force Majeure. Licensor shall not be liable for any delay or failure to perform resulting from
causes outside its reasonable control, including, but not limited to, acts of God, war,
terrorism, riots, embargos, acts of civil or military authorities, earthquakes, explosions, fires,
floods, accidents, national or regional emergencies, strikes or shortages of transportation
facilities, fuel, energy, labor or materials.
13.6. Limitations Period. THE PARTIES AGREE THAT ANY CAUSE OF ACTION ARISING
OUT OF OR RELATED TO THIS AGREEMENT, THE SOFTWARE,
DOCUMENTATION MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE
OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY
13.7. Dispute Resolution.
13.7.1. Any controversy or claim arising out of or related to this Agreement will be settled by
arbitration before a single arbitrator in King County, Washington.
13.7.2. If the parties agree on an arbitrator, the arbitration will be held before the arbitrator
selected by the parties. If the parties do not agree on an arbitrator, each party will
designate an arbitrator and the arbitration will be held before a third arbitrator selected by
the designated arbitrators. Each arbitrator will be an attorney knowledgeable in the area
of business law.
13.7.3. The arbitration will be conducted in accordance with the following provisions:
126.96.36.199. discovery proceedings of the type provided by the Federal Rules of Civil
Procedure will be permitted in advance of and during recesses of the arbitration
188.8.131.52. the arbitrator will resolve any disputes relating to discovery issues;
184.108.40.206. the arbitrator will have discretion to order a prehearing exchange of information
by the parties and an exchange of summaries of testimony of proposed witnesses;
220.127.116.11. the arbitrator will have authority to issue interim relief and provisional remedies;
18.104.22.168. the arbitrator will have authority to award any remedy that a court in the State of
Washington could order or grant, including but not limited to injunctive relief and
other equitable relief and the imposition of sanctions for abuse or frustration of the
arbitration process, except that the arbitrator will not have authority to award punitive
damages or any other amount for the purpose of imposing a penalty;
22.214.171.124. the award will be in writing, be signed by the arbitrator, and include a statement
regarding the disposition of each claim; and
126.96.36.199. the parties will keep all information relating to the arbitration and the disposition
of each claim confidential to the fullest extent permitted by applicable law.
13.7.4. The resolution of any controversy or claim as determined by the arbitrator will be binding
on the parties.
13.7.5. A party may seek from a court an order to compel arbitration, or any other interim relief
or provisional remedies pending an arbitrator's resolution of any controversy or claim.
Any such action or proceeding - or any action or proceeding to confirm, vacate, modify,
or correct the award of the arbitrator - will be litigated in courts located in King County,
13.7.6. For the purposes set forth in this Section 13.8, each party consents and submits to the
jurisdiction of any local, state, or federal court located in King County, Washington.
13.7.7. The parties agree to the limitation period set forth in Section 13.7. If that section is held
to be unenforceable for a cause of action then the otherwise applicable limitation period
for that cause of action shall apply.
13.8. Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties
to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts
located within King County, Washington for such purpose.
13.9. Governing Law. This Agreement and any action related thereto will be governed and
interpreted by and under the laws of the State of Washington, consistent with the Federal
Arbitration Act, without giving effect to any choice or conflict of law provision or rule that
would require or permit the application of the laws of any other jurisdiction.
13.10. Notice. After Licensor requires that Licensee provide an e-mail address or other contact
information, Licensee is responsible for keeping Licensor updated
about any changes to such contact information during the Term. In the event that the most
recent contact information provided to Licensor is not valid, or for any reason is not capable
of delivering any notice required or permitted by this Agreement, Licensor’s dispatch of such
notice to the most recent e-mail provided by Licensee will nonetheless constitute effective
notice. Licensee may give notice to Licensor at the following address: 3100 Bucklin Hill rd
Suite 220 Silverdale, WA 98383. Such notice shall be deemed given when received
by Licensor by letter delivered by nationally recognized overnight delivery service or first class
postage prepaid mail at the above address.
13.11. Further Assurances. On a party’s reasonable request, the other party shall, at the requesting
party’s sole cost and expense, execute and deliver all such documents and instruments, and
take all such further actions, as may be necessary to give full effect to this Agreement.
13.12. Relationship of the Parties. The relationship between the parties is that of independent
contractors. Nothing contained in this Agreement will be construed as creating any agency,
partnership, joint venture, or other form of joint enterprise, employment, or fiduciary
relationship between the parties, and neither party shall have authority to contract for or bind
the other party in any manner whatsoever.
13.13. Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion
will not be deemed a waiver of any other provision or of such provision on any other
13.14. Severability. If any provision of this Agreement is, for any reason, held to be invalid or
unenforceable, the other provisions of the Agreement will remain enforceable, and the invalid
or unenforceable provision will be deemed modified to the minimum extent necessary to be
valid and enforceable to the maximum extent permitted by law.
13.15. Export Regulation. The Software may be subject to US export control laws, including the US
Export Administration Act and its associated regulations. Licensee will not directly or
indirectly, export, re-export, or release the Software to, or make the Software accessible from,
any country, jurisdiction or Person to which export, re-export, or release is prohibited by
applicable Law. Licensee will comply with all applicable Laws and complete all required
undertakings (including obtaining any necessary export license or other governmental
approval) prior to exporting, re-exporting, releasing, or otherwise making the Software
available outside the US.
13.16. Consumer Complaints. In accordance with California Civil Code §1789.3, California
licensees and users may report complaints to the Complaint Assistance Unit of the Division
of Consumer Services of the California Department of Consumer Affairs by contacting them
in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
13.17. Entire Agreement. This Agreement together accepted by Licensor is the
final, complete and exclusive agreement of the parties with respect to the subject matter
hereof and supersedes and merges all prior and contemporaneous discussions between the
parties with respect to such subject matter. In the event of any inconsistency between the
statements made in the body of this Agreement, the body of this
Agreement shall control.