HUMAN, INC.

LICENSE AGREEMENT

Last revision as of August 5th, 2019.

READ THE TERMS OF THIS LICENSE AGREEMENT ("AGREEMENT"), WHICH GOVERNS YOUR USE OF THE SOFTWARE AND RELATED FIRMWARE, INCLUDING THE HUMAN OPERATING SYSTEM, AND CORRESPONDING DOCUMENTATION (COLLECTIVELY, THE “SOFTWARE”) PROVIDED TO YOU BY HUMAN, INCORPORATED (“HUMAN”) CAREFULLY BEFORE USING THE APPLICABLE HUMAN PRODUCT (THE HARDWARE AND THE SOFTWARE COLLECTIVELY REFERRED TO AS THE “PRODUCT”).  YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE PRODUCT IS FURTHER SUBJECT TO HUMAN’S TERMS OF SALE, TERMS OF USE, LIMITED WARRANTY, AND PRIVACY POLICY (COLLECTIVELY WITH THIS AGREEMENT, THE “HUMAN TERMS”) WHICH MAY BE FOUND AT www.humanheadphones.com/support.

THE HUMAN TERMS INCLUDE A BINDING AGREEMENT TO ARBITRATE AND A CLASS ACTION WAIVER, WHICH MAY BE FOUND IN THE TERMS OF USE IN THE SECTION BELOW TITLED “MANDATORY ARBITRATION”. IT AFFECTS YOUR RIGHTS ABOUT HOW TO RESOLVE A DISPUTE WITH HUMAN. PLEASE READ THE ARBITRATION SECTION.

BY INDICATING YOUR ACCEPTANCE OF THESE TERMS BY SELECTING THE "ACCEPT" BUTTON AT THE END OF THIS AGREEMENT, YOU ARE (1) REPRESENTING THAT YOU ARE OVER THE AGE OF 18, (2) REPRESENTING THAT YOU HAVE THE RIGHT AND AUTHORITY TO LEGALLY BIND YOURSELF TO THE TERMS OF THIS AGREEMENT, AND (3) CONSENTING TO BE LEGALLY BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL THESE TERMS OR CANNOT MAKE SUCH REPRESENTATIONS, SELECT THE "EXIT" BUTTON AT THE END OF THIS AGREEMENT AND DO NOT USE THE PRODUCT. IF YOU ELECT NOT TO ACCEPT THE TERMS OF THIS AGREEMENT, YOU MAY RETURN THE PRODUCT WITHIN THIRTY (30) DAYS OF PURCHASE TO THE RETAIL LOCATION WHERE YOU PURCHASED IT, WITH ALL ORIGINAL PACKAGING AND PROOF OF PURCHASE FOR A FULL REFUND.

1. GRANT OF LICENSE

(a) License. Subject to the terms and conditions of this Agreement, Human grants to You a worldwide (subject to the Section 9 below), un-sublicensable, non-exclusive, non-transferable, personal license to the object code form of the Software to (i) use the Software as embedded in the Product for the purpose of operating the Product, and (ii) use the mobile application portion(s) of the Software on any personal computing device (e.g., without limitation, Your smart phone) owned or controlled by You during the Term. Except as provided above, You may not transfer the Software to any other computing device or otherwise remove the Software from the Product. Notwithstanding any license granted herein by Human, You acknowledge and agree that it is Your sole responsibility to comply with U.S. and international copyright laws with respect to Your use of the Software.

(b) Use Restrictions. You agree not to copy, modify, reverse engineer, decompile or disassemble the Product to the extent that such restriction is not prohibited by law in the jurisdiction where you reside. Except for the limited license granted herein, Human and its suppliers and licensors hereby retain all right, title and interest in and to all worldwide intellectual property rights embodied in the Software. All other rights are reserved by Human. You acknowledge and agree that the technology embedded in and used to create the Product constitute the valuable trade secrets and know-how of Human, and to the extent you discover any such trade secrets, You will not disclose them to any third party. Any usage of the Software or the Product in violation of the license in Section 1(a) above or the usage restrictions in this Section 1(b) shall be a material breach of this Agreement which shall immediately terminate the license under Section 1(a).  You acknowledge and agree that use of the Software without license infringes Human’s copyright rights in the Software.

(c) Human shall have no obligation to provide any updates or upgrades to the Software, but in the event that it does, such updates, upgrades and any documentation shall be deemed the “Software”, and shall be subject to the terms and conditions of this Agreement.

2. TERM OF AGREEMENT

(a) You may terminate this Agreement at any time by notifying Human, discontinuing use of the Product and purging the Software from Your computing device.

(b) This Agreement will automatically terminate if You violate any of its terms.

(c) Sections 1(b), 3, 4, 6(c), 7 and 9 shall survive termination or expiration for any reason.

3. COMPLIANCE WITH COPYRIGHT LAWS

You agree to comply with U.S. and international copyright laws in using the Software and Product. You acknowledge that unauthorized copying or distribution of music or other content accessed using the Product (“Content”) is prohibited by such copyright laws, and You agree that You will not, directly or indirectly, copy or distribute any Content without the express written authorization of the copyright holder. You agree to indemnify and hold harmless Human and its suppliers and licensors from and against any and all claims, suits, losses, damages, liabilities, costs and expenses incurred by Human or its licensors arising out of or related to Your failure to comply with the terms of this Section 3.

4. HUMAN PRIVACY POLICY

Use of Human Products is subject to the Human Privacy Policy, which can be found at www.humanheadphones.com/privacy-policy and by reference is made a part of this Agreement. The Human Privacy Policy outlines the types of information that Human may collect from you and how Human may use such information. It is important that you read and understand the terms of the Privacy Policy. By using the Product, you agree to the terms of the Privacy Policy.  You acknowledge and agree that the Human may update its Privacy Policy at its sole discretion so please check back on the link above from time to time.  Human will attempt to notify you at your registered email address of any updates to the Privacy Policy.

5. THIRD-PARTY CONTENT AND TECHNOLOGIES SUPPORT

From time to time, Human may provide access to the services of third-party content providers via the Product (e.g., translation services). In addition, Human may support certain third-party technologies, such as specific file formats or codecs. You acknowledge and agree that use of these third party services is subject to the terms and conditions of such third party providers.  Human reserves the right to discontinue access to and/or support for such third-party content or technologies at any time, and for any reason. If any third party content, service, or technology becomes unavailable, for example, if the Human’s third party content provider stops offering the content, service, or technology, Human may, at its sole discretion, attempt to find an alternative content provider to provide substitute content, services, or technologies.  However, Human is under no obligation to replace any third party content, service, or technology that becomes unavailable.  Human makes no representations or warranties whatsoever regarding the selection of, or continuing support for, any such third-party content, service, or technology, or for the quality, accuracy, reliability, fitness for purpose, or non-infringement through use of any third party content, service, or technology.

6. DISCLAIMER OF WARRANTIES.  EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SOFTWARE TO BE LICENSED AND THE PRODUCT TO BE PURCHASED UNDER THIS AGREEMENT ARE FURNISHED AS IS, WHERE IS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR NON-INFRINGEMENT.

7. LIMITATION OF LIABILITY

(a) TO THE MAXIMUM EXTENT ALLOWED UNDER LAW, IN NO EVENT WILL HUMAN OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR INDIRECT DAMAGES, AND INCLUDING BUT NOT LIMITED TO, COST OF COVER, LOSS OF DATA, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS ARISING FROM THE USE OF (OR INABILITY TO USE) THE PRODUCT, NO MATTER HOW CAUSED AND ON ANY THEORY OF LIABILITY. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU, BUT THEY SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.

(b) IN NO EVENT SHALL HUMAN’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES IN ANY ONE OR MORE CAUSES OF ACTION EXCEED THE AMOUNT PAID BY YOU FOR THE PRODUCT.

(c) The limitations in Section 7 will apply even if Human, its suppliers or dealers have been advised of the possibility of such damage or of any type of use intended by You. These limitations shall apply notwithstanding the failure of essential purpose of any limited remedy. You acknowledge that these limitations reflect a reasonable allocation of risk.

8. INFRINGEMENT INDEMNITY

(a) Indemnity. Human shall defend or settle any claim, demand, suit, proceeding or action (“Claim”) against You to the extent that such Claim is based on an allegation that any portion of the Product (not including Your Content), as furnished to You under this Agreement and used as authorized in this Agreement, infringes any third party's U.S. copyright or misappropriates such third party’s trade secrets, provided that You: (i) give prompt written notice of the Claim to Human; (ii) give Human the exclusive authority to control and direct the defense or settlement of such Claim; and (iii) give Human, at Human’ expense (except for the value of Your time), all necessary information and assistance with respect to the Claim. Human shall pay all settlement amounts, damages and costs finally awarded to the extent attributable to such Claim. You may participate in the defense of Claim at Your expense. Human will not be liable for any costs or expenses incurred without its prior written authorization.

(b) Limit on Indemnity. The foregoing notwithstanding, Human shall have no liability for a Claim to the extent based on: (i) the use by You of any Product more than thirty (30) days after Human notifies You in writing that continued use of the Product may give rise to such Claim; (ii) the combination of the Product, or any part thereof, with other hardware or products not provided by Human, which Claim would have been avoided if the Products had not been so combined; or (iii) use of the Products other than as authorized under this Agreement.

(c) Entire Liability. THE FOREGOING PROVISIONS OF THIS SECTION 8 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF HUMAN, AND YOUR EXCLUSIVE REMEDY, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHT BY THE PRODUCT.

9. Export Regulation. The Software, the Product and any related technology or other technical data, may constitute or contain matter, the export, re-export, or release of which to certain jurisdictions or countries is prohibited or requires an export license or other governmental approval under US federal or state law, including the US Export Control Reform Act and its associated regulations (collectively, "Controlled Technology"). Without limiting any of the other license conditions, limitations, or restrictions set forth in this Agreement. You shall not, and shall not permit any third parties to, export, re-export, or release, directly or indirectly, any Controlled Technology to a jurisdiction or country to which the export, re-export, or release of such Controlled Technology is prohibited by applicable law.  You shall not, and shall not permit any third parties to use the Product or the Software from any country on the US Treasury Department’s Office of Foreign Asset Control’s list of sanctioned countries.

10. Mandatory Arbitration

PLEASE READ THIS PROVISION CAREFULLY. IT MEANS THAT YOU AND HUMAN WILL ARBITRATE OUR DISPUTES. ANY CLAIM OR DISPUTE BETWEEN YOU AND HUMAN IN ANY WAY RELATED TO OR CONCERNING THESE TERMS, OR YOUR OTHER AGREEMENTS WITH HUMAN, INCLUDING, WITHOUT LIMITATION, THE HUMAN TERMS, OR ANY PRODUCTS OR ACCESSORIES, SHALL BE SUBMITTED TO FINAL, BINDING ARBITRATION BEFORE THE AMERICAN ARBITRATION ASSOCIATION ("AAA"). You and Human agree that the Human Terms affect interstate commerce and that the Federal Arbitration Act and federal arbitration law apply to arbitrations under this provision.

  1. A. BINDING ARBITRATION. YOU HEREBY AGREE THAT ANY DISPUTE, CLAIM OR CONTROVERSY ARISING NOW OR IN THE FUTURE UNDER OR RELATING IN ANY WAY TO THIS AGREEMENT, OR TO THE SERVICES, REGARDLESS OF THE NATURE OF THE CAUSE(S) OF ACTION ASSERTED (INCLUDING CLAIMS FOR INJUNCTIVE, DECLARATORY, OR EQUITABLE RELIEF), SHALL BE RESOLVED BY BINDING ARBITRATION (EXCEPT THAT BLOCK.IO MAY BRING AN ACTION IN ANY COURT OF COMPETENT JURISDICTION TO OBTAIN EQUITABLE RELIEF RELATING TO THE INFRINGEMENT, MISUSE, OR MISAPPROPRIATION OF OUR INTELLECTUAL PROPERTY CONTENT OR  TO COLLECT OUR FEES). CLAIMS SUBJECT TO ARBITRATION INCLUDE CLAIMS THAT ARE MADE AS COUNTERCLAIMS, CROSS CLAIMS, THIRD PARTY CLAIMS, INTERPLEADERS, OR OTHERWISE.
  1. B. CLASS ACTION WAIVER. YOU HEREBY AGREE THAT ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE IN ANY FORUM WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS. NEITHER YOU NOR HUMAN WILL SEEK OR BE ABLE TO HAVE ANY DISPUTE HEARD AS CLASS ACTION OR OTHER REPRESENTATIVE ACTION (e.g., A PRIVATE ATTORNEY GENERAL ACTION), OR IN ANY OTHER PROCEEDINGS IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATION CAPACITY. NO ARBITRATION OR PROCEEDING WILL BE COMBINED WITH ANOTHER WITHOUT THE PRIOR WRITTEN CONSENT OF ALL PARTIES TO ALL AFFECTED ARBITRATIONS OR PROCEEDINGS.
  1. C. JUDGE/JURY TRIAL WAIVER: ARBITRATION REPLACES THE RIGHT TO GO TO COURT, AND YOU THEREFORE AGREE TO WAIVE ANY RIGHT THAT YOU OR WE MIGHT OTHERWISE HAVE HAD TO A JURY TRIAL OR THE OPPORTUNITY TO LITIGATE ANY CLAIMS IN COURT BEFORE EITHER A JUDGE OR JURY.
  1. D. Application. This binding arbitration provision applies to any and all claims that you have against us, our affiliates, successors, assigns, and against all of their respective employees, agents, or assigns; it also includes any and all claims regarding the applicability of this arbitration clause or the validity of the Agreement, in whole or in part. It is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, 9 U.S.C. sections 1-16, as it may be amended.
  1. E. Arbitration Procedure. The party filing any claim in arbitration shall file its claim before the AAA under the AAA’s then current commercial arbitration rules, which are available by calling the AAA at 1-800-778-7879 or visiting its website at www.adr.org. If you are an individual and use the product or accessory for personal or household use, or if the value of the dispute is $75,000 or less whether or not you are an individual or how you use the product or accessory, the AAA’s supplementary procedures for consumer-related disputes will also apply. Arbitration hearings shall be held in King County, Washington before one arbitrator, unless the amount in dispute is under ten thousand dollars ($10,000.00) in which case arbitration may be conducted by telephone, online and/or be solely based on written submissions. Judgment upon any arbitration award may be entered in any court having jurisdiction.
  1. F. Conflict with AAA rules. The Human Terms govern to the extent they conflict with the AAA’s commercial arbitration rules and supplementary procedures for consumer-related disputes.
  1. G. Claims or disputes must be filed within one year. To the extent permitted by law, any or dispute under the terms of sale or warranty must be filed within one year. The one-year period begins when the claim or notice of dispute first could be filed. If a claim or dispute is not filed within one year, it is permanently barred.
  1. H. Severability. If the class action waiver in section (e) is found to be illegal or unenforceable as to all or some parts of a dispute, then it will not apply to those parts. Instead, those parts will be severed and proceed in a court of law, with the remaining parts proceeding in arbitration. If any other provision of this section is found to be illegal or unenforceable that provision will be severed with the remainder of this section remaining in full force and effect.
  1. I. The arbitration agreement in this Section 16 shall survive: (i) termination or changes in these Terms or any of the Human Terms, and the relationship between you and us concerning these Terms or any of the Human Terms; and (ii) the bankruptcy of any party or any similar proceeding initiated by you or on your behalf.

11.    GENERAL

This Agreement shall be governed by the laws of the State of Washington, without reference to its conflict of law principles. Any dispute arising from this Agreement shall be settled in accordance with the mandatory arbitration terms set forth herein, except for any actions brought against You by Human relating to Your actual or threatened misappropriation, misuse, or infringement of Human’s intellectual property rights in the Software. You acknowledge and agree that any such misappropriation, misuse, or infringement would give rise to irreparable harm to Human for which monetary damages would not be an adequate remedy and that Human, in addition to any other rights and remedies that may be available to Human, shall be entitled to equitable relieve, including a temporary restraining order or injunction without the posting of a bond or other security or proving actual or monetary damages. Human may bring any actions for equitable relief in conjunction to such misappropriation, misuse, or infringement in any court of competent jurisdiction and you consent to the personal jurisdiction and waive any defense of inconvenient forum with regard to such courts.

This Agreement constitutes the entire agreement between You and Human with respect to the subject matter hereof, and supersedes all prior oral or written understandings, communications or agreements not specifically incorporated herein. If any provision of this Agreement is found to be invalid or unenforceable pursuant to judicial decree or decision, the remainder of this Agreement shall remain valid and enforceable according to its terms. You may not assign this Agreement, or any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Human. Any attempted assignment by You without prior written consent shall be void.

For inquiries or questions regarding this Agreement, please send an e-mail to support@humaninc.com.