App Store Terms of Service
September 25, 2016
Version date: April 28, 2017
These Leap Motion App Store Terms of Service (“Terms”) are between Leap Motion Online Services LLC (“Leap Motion” “we” or “us”), a Delaware limited liability corporation with a principal place of business at 321 11th St., San Francisco, California 94103, and the individual or entity that accepts them (“you”) or otherwise uses digital content on the the Leap Motion app store. You accept these Terms by clicking the box displayed at the end of these Terms, if they are presented to you by Leap Motion, or by using content on the App Store.
These Terms apply to the provision, purchase and use of digital content from the Leap Motion App Store. Separate terms apply to sales of hardware devices from the Leap Motion™ website. Your use of Leap Motion software and related documentation (“Leap Motion Software”) is subject to Leap Motion’s End User Software License Agreement.
These Terms contain a binding individual arbitration clause and class action waiver. If you live in the United States, these affect your rights with respect to disputes you may have with Leap Motion. You may opt out of the binding individual arbitration clause and class action waiver as provided in that Section.
1. Use of the Leap Motion App Store; Your Leap Motion Account
Access to Applications. You may use the Leap Motion App Store to browse, locate, and/or download Leap Motion-enabled applications, websites or other products (“Applications”) for use with the Leap Motion™ Controller (or a Leap Motion-authorized embedded optical module) and your computer. A Leap Motion Controller, or a Leap Motion-authorized embedded optical module, is a “Leap Motion Device”. Leap Motion provides the App Store as a service for users to conveniently discover Leap Motion -enabled applications and other content. Some of these Applications may be offered by Leap Motion while others may be made available by third-parties not affiliated with Leap Motion. The party that provides an Application to us for distribution or listing in the App Store is the “Publisher” of the Application.
Your Leap Motion Account Information. You may be required to create or have a Leap Motion Account in order to use the App Store. You must keep your Leap Motion Account details secure and must not share them with anyone else. You are responsible for all activities that occur on or through your Leap Motion Account, and you agree to immediately notify Leap Motion of any security breach of your account. Leap Motion will not be responsible for any losses arising out of the unauthorized use of your Leap Motion Account.
Age Restrictions. In order to use the App Store, you must be 13 years of age or older. If you are between 13 and 18 years of age, you must have your parent or legal guardian’s permission to use the App Store. You must not access the App Store or accept these Terms if you are a person who is either barred or otherwise legally prohibited from receiving or using the App Store or any Applications under the laws of the country in which you are resident or from which you access or use the App Store.
2. Purchases and Pricing
Payment Processing. You agree to pay for any Applications that you order and that Leap Motion or its payment processor may charge your credit card or other form of payment that you indicate for any Applications ordered, along with any additional amounts (including any taxes). You agree that you are solely responsible for the purchase price (when applicable) and all fees associated with purchases you make on the App Store.
Pricing. Leap Motion displays the pricing for Applications on the App Store. Pricing and availability of all Applications are subject to change at any time.
Taxes. You are responsible for any Taxes, and must pay Leap Motion for Applications without any reduction for Taxes. If Leap Motion is obligated to collect or pay Taxes, the Taxes will be invoiced to you, unless you provide Leap Motion with a valid tax exemption certificate authorized by the appropriate taxing authority. If you are required by law to withhold any Taxes from your payments to Leap Motion, you must provide Leap Motion with an official tax receipt or other appropriate documentation to support such payments. “Taxes” means any duties, customs fees, or taxes (other than on Leap Motion’s income tax) associated with the sale of Applications, including any related penalties or interest.
Leap Motion App Store Credit. Leap Motion may make available an account balance associated with your Leap Motion Account. You may place credits in your account up to a maximum amount determined by Leap Motion, by credit card, prepaid card, promotional code, or any other payment method accepted by Leap Motion. You may use credits in your Leap Motion Account to purchase Applications where credit transactions are enabled. Credits in your Leap Motion Account are non- refundable and non-transferable. They have no value outside of the Leap Motion App Store and can only be used to purchase Applications and related content via Leap Motion. Upon termination of your Leap Motion Account for any reason, you will not receive a refund for any unused credit in your Leap Motion Account except as required by law or as expressly provided in this Agreement. Subject to applicable law, credits in your Leap Motion Account that are deemed abandoned or unused by law will not be returned or restored.
3. Your Use of the Leap Motion App Store
Basic Use Requirements. To use Applications, you will need a Leap Motion Device, Leap Motion Software and a computer that meets the system requirements for the Leap Motion Device, Leap Motion Software and the Application. Some Applications may also require an internet connection and/or additional third party software or hardware. These system requirements are your responsibility.
Updates. You may need to install updates to the App Store or related Leap Motion Software that we introduce from time to time to use the App Store and to access or download Applications. Applications may communicate with Leap Motion servers from time to time to check for available updates to the Applications and to the functionality of the App Store, such as bug fixes, patches, enhanced functions, missing plug-ins and new versions (collectively, “Updates”). By using the Leap Motion App Store and installing these Applications, you agree to these automatically requested and received Updates.
Disabled Accounts. If Leap Motion disables access to your Leap Motion Account, which it may do in its sole discretion and without prior notice to you, you may be prevented from accessing the App Store, your account details or any files or other Applications that are stored with your account. If you believe your account has been wrongly disabled, contact Leap Motion customer service.
Objectionable Material. You understand that by using the Leap Motion App Store, you may encounter material that you may deem to be offensive, indecent, or objectionable, and that such content may or may not be identified as having explicit material. Nevertheless, you agree to use the App Store at your sole risk and Leap Motion will have no liability to you for material that may be found to be offensive, indecent, or objectionable. Application types and descriptions are provided for convenience, and you agree that Leap Motion does not guarantee their accuracy. Void Where Prohibited. Leap Motion administers and operates the App Store from its location in San Francisco, California USA. Although the App Store is accessible worldwide, not all features, products or services discussed, referenced, provided or offered through or on the App Store may be available to all persons or in all geographic locations, in any languages other than English, or be appropriate or available for use outside the United States. Any offer for any feature, product or service made on the App Store is void where prohibited.
4. Use of and Restrictions on ApplicationsM/5>
Separate Licenses to Use Applications. Your use of an Application will be governed by the terms and conditions of an end user license agreement between you and the Publisher of the Application (a “EULA”). The EULA for an Application includes the terms set forth below (the “Standard EULA”) and any additional end user license terms included in the Application (the “Publisher EULA”). If there is a conflict between the Standard EULA and the publisher EULA, the Standard EULA will control. The publisher has the right to enforce the EULA against you, as do we. If you do not want to comply with the EULA for an Application, you must not use that Application. Leap Motion is not a party to the EULA for any Application (unless Leap Motion is the publisher of that Application), but is a third-party beneficiary to that EULA and may therefore enforce any of its rights as necessary. As used in this Section, the term “Application” does not include any Leap Motion Software included within an Application (your use of Leap Motion Software is instead governed by the Leap Motion End User Software License Agreement). The Standard EULA includes the following end user license terms, and if the Application does not include a Publisher EULA, these terms will constitute the entire EULA between you and the Publisher:
The Publisher is the licensor of the Application.
If the Application does not include a Publisher EULA that specifies Application license rights, then following payment of the applicable fees for an Application, Publisher grants you the non-exclusive right, for the period selected by you in the case of a purchase for a rental period, and in other cases for as long as Leap Motion and the Publisher have rights to provide you that Application, to download or stream, in each case, solely as expressly permitted by Leap Motion via the App Store and subject to the restrictions set forth in these Terms , copies of the applicable Application to your computer, and to view, use, and display the Application on your computer or as otherwise authorized by Leap Motion for your personal, non-commercial use only. All rights, title and interest in the App Store and Applications not expressly granted to you in these Terms are reserved by Leap Motion and the Publisher.
You may download additional copies of the Application that have been linked to the Leap Motion Account that you used to buy the Application in accordance with these Terms.
You may not modify, reverse engineer, decompile or disassemble the Application in whole or in part, or create any derivative works from or sublicense any rights in the Application, unless otherwise expressly authorized in writing by Publisher.
The Application is protected by copyright and other intellectual property laws and treaties. Unless otherwise expressly stated in the Publisher EULA, Publisher or its licensors own all title, copyright and other intellectual property rights in the Application, and the Application is licensed, not sold.You acknowledge and agree that Leap Motion has no responsibility or liability with respect to your use of the Application or any content or functionality in the Application. Without limiting the generality of the preceding sentence, you agree that the use of any Application to control, directly or indirectly, any motorized or other equipment, even if the Application is designed for such control, is solely at your own discretion and risk. Leap Motion disclaims any and all loss, liability or damages resulting from such use. In addition, THE LEAP MOTION DEVICE AND LEAP MOTION SOFTWARE ARE NOT INTENDED FOR CONTROL, WHETHER DIRECT OR INDIRECT, OF OR USE WITH INDUSTRIAL, COMMERCIAL, MILITARY OR MEDICAL EQUIPMENT OF ANY TYPE, AND ARE NOT INTENDED FOR ANY USE WHERE FAILURE OR FAULT OF THE LEAP MOTION DEVICE OR LEAP MOTION SOFTWARE COULD DIRECTLY OR INDIRECTLY CAUSE RISK OR DAMAGE TO LIFE OR PROPERTY. ANY SUCH USE IS ENTIRELY AT THE USER’S DISCRETION AND RISK. ANY SUCH USER WILL BE SOLELY RESPONSIBLE FOR (AND LEAP MOTION DISCLAIMS) ANY AND ALL LOSS, LIABILITY, OR DAMAGES RESULTING FROM SUCH USE.
5. Purchases and PaymentsM/h5>
Free Applications. Leap Motion may allow you to download or use Applications free of charge. Any terms and conditions that apply to purchased Applications will apply to free Applications, except with respect to payment-related matters (for example, the refund-related provisions of these Terms do not apply to free Applications). Leap Motion may impose limitations on your access and use of certain free Applications.
Purchase of Applications. When you buy an Application, your contract for the purchase and use of that item is completed once you click the button indicating that your purchase is complete and you are not able to withdraw from the contract after that point.
Application Purchases are Services. When you purchase an Application, you are buying a service. Performance of this service begins as soon as the purchase is complete, as the Application will then be available to you through your account. Each time that you purchase an Application, you enter into a contract based on these Terms with Leap Motion in relation to the use of the App Store and the Publisher of the Application you have purchased.
All Sales Final. Except as expressly set forth in these Terms, all sales are final, and no returns, replacements or refunds are permitted. If a replacement, return or refund is granted for any transaction, the transaction may be reversed, and you may no longer be able to access the Application that you acquired through that transaction. Your rights to cancel or return purchases and get a refund are set out in the additional terms for the relevant Application type below.
6. Rights and Restrictions</5>
Violation of License Terms. If you violate any of the terms and conditions of the Terms, or of the Standard EULA or Publisher EULA, your rights under these and/or the Applications will immediately terminate and Leap Motion may terminate your access to the App Store, the Applications and/or your Leap Motion Account without notice and without refund to you.
No Public Performance. You agree not to display content contained in Applications in whole or in part as part of any public performance or display even if no fee is charged (except where such use would not constitute a copyright infringement). Use of a tool or feature provided as an authorized part of the App Store is permitted, provided that as you use the tool or feature as specifically permitted and only in the exact manner specified and enabled by Leap Motion.
Sale, Distribution or Assignment to Third Parties. You may not sell, rent, lease, redistribute, broadcast, transmit, communicate, modify, sublicense or transfer or assign your rights to Applications to any third party without authorization, including with regard to any downloads of Applications that you may obtain through the App Store. Use of any tool or feature provided as an authorized part of the App Store will not violate this provision so long as you use the tool as specifically permitted and only in the exact manner specified and enabled by Leap Motion.
Capturing of Streams. You may not use the App Store or any Application in conjunction with any stream-ripping, stream capture or similar software to record or create a copy of any Application that is presented to you in streaming format.
Sharing. You may not use Applications as part of any service for sharing, lending or multi-person use, or for the purpose of any other institution, except as specifically permitted and only in the exact manner specified and enabled by Leap Motion.
Security Features. You may not attempt to, nor assist, authorize or encourage others to circumvent, disable or defeat any of the security features or components, such as digital rights management software or encryption, that protect any Application or the App Store. If you violate any security feature, you may incur civil or criminal liability.
Proprietary Notices. You may not remove any watermarks, labels or other legal or proprietary notices included in any Application, and you may not attempt to modify any Applications obtained through the App Store, including any modification for the purpose of disguising or changing any indications of the ownership or source of an Application. Leap Motion, the Leap Motion logo, and Leap Motion’s trademarks, service marks, graphics, and logos used in connection with the App Store are trademarks of Leap Motion, Inc. in the U.S. and/or other countries. Other trademarks, service marks, graphics, and logos used in connection with the App Store may be the trademarks of their respective owners. You are granted no right or license with respect to any of these trademarks and any use of such trademarks.
Defective Applications. Once an Application is available to you through your account, you should check the Application as soon as reasonably possible to ensure that it downloads or streams correctly (as applicable) and performs as stated, and notify us as soon as reasonably possible if you find any errors or defect. You should contact the Publisher concerning any defects or performance issues in the Applications, as described in the App Store help center. If Leap Motion elects to issue you a refund, the refund of your purchase price will be your sole remedy. Leap Motion reserves the right to issue refunds or credits at its sole discretion. If Leap Motion issues a refund or credit, it is under no obligation to issue the same or similar refund in the future.
Removal or Unavailability of Applications. Subject to these Terms, Applications that you purchase will be available to you through the App Store for as long as Leap Motion has the right to make such content available to you. In certain cases (for example, if Leap Motion loses the relevant rights, discontinues a service or an Application is discontinued, breaches applicable terms or the law), Leap Motion may remove from your computer or stop providing you with access to certain Applications that you have purchased. If reasonably practicable, Leap Motion will provide you with reasonable prior notice of any such removal or cessation. If you are not able to download a copy of the Application before such removal or cessation, then Leap Motion will, at its option and solely as an accommodation to you, offer you either (a) a replacement of the Application if possible or (b) a refund of the price of the Application. If Leap Motion chooses to issue you a refund, the refund of your purchase price will be your sole remedy.
Effect of Refunds. If Leap Motion chooses to issue you a refund of the purchase price of an Application for any reason, you will no longer have the right to access the relevant Application.
Multiple Accounts. If you have multiple Leap Motion Accounts with different user names, in some cases you may transfer Applications out of an account and into another account, provided you are the owner of each account and provided Leap Motion has enabled a feature of the relevant service allowing the transfers.
Limits on access on Computers or Leap Motion Devices. Leap Motion may at any time place limits on the number of computers, Leap Motion Devices, and/or software applications you may use to access or use Applications, at Leap Motion’s discretion. Leap Motion may record and store a unique identifier associated with your computer or Leap Motion Device in order to enforce these limits.
7. Third Party Content
If you are a copyright owner or an agent of a copyright owner and believe that any Application or other content available on or through App Store infringes upon your copyrights, you may submit a notification through the procedure outlined in Leap Motion’s Third Party Copyright Procedure.
8. Warranty Disclaimer
LEAP MOTION, AND ITS LICENSEES, AFFILIATES, AND LICENSORS MAKE NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE LEAP MOTION APP STORE, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN THE EVENT THAT AN APP IS NONFUNCTIONAL, YOUR SOLE REMEDY, AND OUR SOLE LIABILITY, WILL BE THE REPLACEMENT OF THE APP OR A REFUND OF YOUR FEE, IN LEAP MOTION’S SOLE DISCRETION. THESE LIMITATIONS MAY NOT APPLY TO YOU. CERTAIN STATE OR OTHER JURISDICTION LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY ALSO HAVE ADDITIONAL RIGHTS.
LEAP MOTION WILL USE REASONABLE EFFORTS TO PROTECT INFORMATION SUBMITTED BY YOU IN CONNECTION WITH THE APP STORE, BUT YOU AGREE THAT YOUR SUBMISSION OF INFORMATION IS AT YOUR SOLE RISK, AND LEAP MOTION HEREBY DISCLAIMS ANY AND ALL LIABILITY TO YOU FOR ANY LOSS OR LIABILITY RELATING TO THE INFORMATION IN ANY WAY.
LEAP MOTION DOES NOT REPRESENT OR GUARANTEE THAT THE APP STORE WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND LEAP MOTION DISCLAIMS ANY LIABILITY RELATING THERETO. YOU WILL BE RESPONSIBLE FOR BACKING UP YOUR OWN SYSTEM, INCLUDING ANY APPLICATIONS PURCHASED OR DOWNLOADED FROM THE APP STORE.
9. Limitation of Liability
IN NO CASE WILL LEAP MOTION, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF ANY OF THE LEAP MOTION APP STORE OR ANY APPLICATION OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE APP STORE, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT (OR APPLICATION) POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE APP STORE, EVEN IF ADVISED OF THEIR POSSIBILITY. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, LEAP MOTION ‘S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
In no event will Leap Motion’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of one hundred dollars ($100.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
10. Changes to these Terms
If these Terms change, you will be asked to accept new terms before you next purchase Applications. Once you have accepted the new terms, they will apply to your use of all Applications (including Applications you have purchased in the past) and all subsequent purchases, until we notify you of further changes.
If you refuse to accept the updated terms then you will not be able to buy any further Applications through the App Store, and the latest version of these Terms that you accepted will continue to apply to your use of Applications. In this case we will, if we are able to do so, give you a reasonable period of time in which to download a copy of any Application you have previously bought from the App Store to your computer, and you may continue to view that copy of the Application on your computer in accordance with the last version of these Terms that you accepted.
After that time has expired, you will not be given a further opportunity to download the Applications you have previously bought and it is possible that you will no longer be able to use the App Store to access or use the Applications you have already bought or related support services. To do so you may also need to create a new account.
No Leap Motion employee or agent has the authority to vary these Terms.
11. Governing Law, Severability, Risk of Loss
The App Store is operated by Leap Motion from its offices in the United States. You agree to comply with all local, state, federal, and national laws, statutes, ordinances, and regulations that apply to your use of the App Store. This agreement will be governed by and construed in accordance with the laws of the United States and the State of California, without regard to or application of its choice of law rules or principles. This agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If for any reason a court of competent jurisdiction finds any provision of this agreement, or portion thereof, to be unenforceable, that provision of the agreement will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this agreement will continue in full force and effect. Risk of loss and title for all electronically delivered transactions pass to the purchaser in California upon electronic transmission to the recipient.
12. Arbitration and Waiver of Class Action
If you are a resident of the United States, this Section applies to you.
Arbitration is a form of private dispute resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision. You have the right to opt-out of this Section (as explained below), which means you would retain your right to litigate your disputes in a court, either before a judge or jury.
Please read this Section carefully. It provides that all Disputes between you and Leap Motion, Inc. (as defined below, for this Section) shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in court, before a judge or jury, and/or participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided, entering into this agreement constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this Agreement and can award the same damages and relief as a court (including attorneys’ fees).
For the purpose of this Section, “Leap Motion” means Leap Motion, Inc. and its parents, subsidiary, and affiliate companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and Leap Motion regarding any aspect of your relationship with Leap Motion, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Section (with the exception of the enforceability of the Class Action Waiver clause below). If you are not a natural person, also excepted from the definition of “Dispute” is any dispute RELATING TO THE ENFORCEMENT OR VALIDITY OF YOUR, LEAP MOTION’S, OR EITHER OF OUR LICENSORS’ INTELLECTUAL PROPERTY RIGHTS. “Dispute” is to be given the broadest possible meaning that will be enforced.
WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS SECTION.
Pre-Arbitration Claim Resolution. For all Disputes, whether pursued in court or arbitration, you must first give Leap Motion an opportunity to resolve the Dispute. You must commence this process by mailing written notification to Leap Motion, Inc., Legal Department, 321 11th St., San Francisco, CA 94103. That written notification must include (1) your name, (2) your address, (3) a written description of your Dispute, and (4) a description of the specific relief you seek. If Leap Motion does not resolve the Dispute within 45 days after it receives your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt Out. Notwithstanding the above, you or Leap Motion may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt out of this Section by mailing written notification to Leap Motion, Inc., Legal Department, 321 11th St., San Francisco, CA 94103. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with Leap Motion through arbitration. Your decision to opt-out of this Section will have no adverse effect on your relationship with Leap Motion. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.
Arbitration Procedures. If this Section applies and the Dispute is not resolved as provided above (“Pre-Arbitration Claim Resolution”) either you or Leap Motion may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Section and any alleged ambiguities in this Section.
Arbitration Rules. For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Section governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration.
FAA Applies. Because this Agreement concerns interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Arbitration Award. The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration. You or Leap Motion may initiate arbitration in either San Francisco, California or the federal judicial district that includes the address you provide in your written notification of Pre-Arbitration Claim Resolution. In the event that you select the federal judicial district that includes the address you provide in your written notification of Pre-Arbitration Claim Resolution, Leap Motion may transfer the arbitration to San Francisco, California in the event that it agrees to pay any additional fees or costs you incur as a result of the transfer, as determined by the arbitrator.
Payment of Arbitration Fees and Costs. Leap Motion will pay all arbitration filing fees and arbitrator’s costs and expenses upon your written request given prior to the commencement of the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with Leap Motion as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
Class Action Waiver. Except as otherwise provided in this Section, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and Leap Motion specifically agree to do so following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of this Section, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of the Site can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
Jury Waiver. You understand and agree that by entering into this Agreement you and Leap Motion are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Section, you and Leap Motion might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.
Severability. If any clause within this Section (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Section, and the remainder of this Section will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Section will be unenforceable and the Dispute will be decided by a court. This Section shall survive the termination of these Terms and your use of the Leap Motion Software, Leap Motion Device and/or Application.