Agora Terms of Service
Updated: January 7th, 2019
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
Arbitration NOTICE. Except for certain kinds of disputes described in Section 23, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND AGORA ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 23.)
- ACCEPTANCE OF AGORA PLATFORM TERMS AND CONDITIONS
These Terms govern your access to the information contained on the Agora website (the “Website”), use of the Agora application program interface(s) (API(s)), sample software code, and other related websites, networks, applications, SDKs, and other materials provided or made available by Agora (the “Platform”) that enable you to implement the Agora live video platform services offered by Agora (the “Service”) on one or more website(s), web application(s), or mobile application(s) owned and controlled by you (“Your Product”).
“Agora”, “we”, “us”, “our”, and similar means Agora, Inc.
“You” or “your” means you, the person who has downloaded and is using or uses the Platform and Service and is the licensee under these Terms. If you are signing up for the Platform and the Service on behalf of a company (an “Enterprise Customer”), you represent that you are duly authorized to represent such company and accept the Terms on behalf of such company. To the extent that your use of the Platform or Services is subject to an Enterprise Customer agreement, such Enterprise Customer agreement will prevail over any conflicting provision in these Terms.
In order to use the Website, Platform, and Services, you are required to accept and to agree to be bound by these Terms. You agree to incorporate these Terms into Your Products and ensure that your customers adhere to these Terms.
You must be at least 18 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Platform or Service
3. Accounts and Registration
To access some features of the Platform or Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password.
You are solely responsible for maintaining the confidentiality of your account and password, including
4.2. You will not sell, transfer, assign, rent, lease, or sublicense Agora’s code, the Platform, or the Service to anyone
4.3. To the
4.5. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Platform or Service (“Feedback”), then you hereby grant Agora an unrestricted, perpetual, irrevocable, non-exclusive,fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Platform or Service and create other products and services.
5. INTEGRATION OF THE SERVICE ON YOUR PRODUCT
5.1. The Service includes branding for Agora. You agree not to remove, obscure, or alter any branding contained in the Service or any notice of any Agora Marks. You may not display Agora Marks on Your Product (or otherwise) other than (a) through the display of the Service in accordance with the Platform and Agora’s branding guidelines and (b) solely for the purpose of disclosing that Your Product has implemented the Service in a manner that does not suggest any further relationship or endorsement of Your Product by Agora.
5.2. Other than through the API configuration options provided by Agora, you may not, nor allow any third party to, alter, change or modify any user interface, feature or functionality of the Service without the express written consent of Agora.
5.3. You may not nor allow any third party to, copy, reverse engineer, decompile or disassemble Agora’s code, the Platform, or the Service, or build alternative methods to access the Service other than as provided through the Platform (except to the limited extent such restrictions are expressly prohibited by applicable statutory law).
5.4. Notwithstanding the foregoing paragraphs of this Section 5, Agora licenses certain components of the Platform (e.g. the Agora HTML Embed) under a permissive software license. In these cases, you agree not to use any Agora Marks, including those originally built into the code we provide, in any modified version of that code unless (a) it follows the branding guidelines or (b) you have entered into a separate written trademark license agreement with Agora.
5.5. You agree to update code provided by Agora in connection with modifications to the Service or Platform in a reasonable and timely fashion after Agora makes them available.
5.6. Agora may update files on our servers that will automatically change the functionality of the Platform or Service, and you consent to those updates.
5.7. You will not obscure or cover any graphical element of the Service or otherwise interfere with the operation of the Platform or Service.
5.8. Agora reserves the right to place volume limitations on access to the Platform or Service. Agora reserves the right to cap concurrent video chat sessions conducted via Your Product in its discretion.
6. FREE TRIALS
6.1. In its sole discretion, Agora will determine whether you are eligible for a free trial subscription to the Service. You must agree to these Terms in order to be eligible for a free trial.
6.2. During the free trial, you may use the Service for internal demonstration purposes only. Agora expressly prohibits you from deploying the Service on any public or privately-facing website or mobile application for any commercial purpose (a “Live Deployment”) during the free trial including without limitation (a) for the purpose of generating advertising revenue directly or indirectly from the Service, (b) as an inducement for downloading toolbars, plugins, or downloads of any type, (c) as part of a paid service of any kind, (d) to provide any form of paid or unpaid support to your customers or users, or (e) as part of any brand, product, or service promotion or communication activity of any kind.
6.3. We reserve the right to limit the number of free trials per account and take actions to prevent abuse, and Agora may change the conditions of the free trial or discontinue it entirely at any time without notice. Agora reserves the right at any time to terminate your free trial and suspend your API key should it determine in its sole discretion that your free trial is a Live Deployment.
6.4. Agora is not obligated in any way to provide customer support or technical assistance to you during your free trial.
7. Ownership; Proprietary Rights.
The Website, Platform, and Service is owned and operated by Agora. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements (“Materials”) provided by Agora are protected by intellectual property and other laws. All Materials are the property of Agora or its third party licensors. Except as expressly authorized by Agora, you may not make use of the Materials. Agora reserves all rights to the Materials not granted expressly in these Terms.
You acknowledge that the Platform and the Service are protected by copyrights, trademarks, service marks, international treaties, and/or other proprietary rights and laws of the U.S. and other countries and that all ownership and intellectual property rights in the Platform and the Service, including without limitation the trademarks AGORA and all related trade names, service marks, logos, domain names and the like (“Agora Marks”) do and shall, as between you and Agora, belong exclusively to Agora. Except as expressly provided herein, these Terms grant you no right, title, license, or interest in any intellectual property owned or licensed by Agora, including (but not limited to) the Platform, the Service, or the Agora Marks.
8.1. Certain features of the Services may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged.
8.2. Agora reserves the right to determine pricing for the Services. Agora will make reasonable efforts to keep pricing information published on the Website up to date. We may increase or add new fees for any existing Service or Service feature by giving you advance notice of changes before they apply. Agora, at its sole discretion, may make promotional offers with different features and different pricing to any of Agora’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
8.3. To the extent the Services or any portion thereof are made available for any fee, you agree to pay all applicable fees (including any minimum subscription fees) as set forth in the pricing section of our Website. You authorize Agora to charge all sums for the orders that you make and any level of Service you select as described in these Terms or published by Agora, including all applicable taxes, to the payment method specified in your account. We may specify the manner in which you will pay any fees, and any such payment shall be subject to our general accounts receivable policies from time to time in effect. If you pay any fees with a credit card, Agora may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
8.4. All fees payable by you are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes) (“Additional Charges”), and you agree to bear and be responsible for the payment of all such Additional Charges, excluding taxes based upon Agora’s net income.
8.5. All amounts payable by you under this Agreement will be made without setoff or counterclaim and without deduction or withholding. If any deduction or withholding is required by applicable law, you shall notify us and shall pay such additional amounts to us as necessary to ensure that the net amount that we receive, after such deduction and withholding, equals the amount we would have received if no such deduction or withholding had been required.
8.6. Should you have any dispute as to fees associated with your account, please contact us at email@example.com within 30 days of the date of the activity that generated such dispute, and we will attempt to resolve the matter. Any and all refunds issued to resolve such a dispute shall be issued as credits to your account, but in no event shall there be any cash refunds. Disputes older than 90 days shall not be entitled to any refunds or credits.
9. Subscription and Auto-Renewals.
Agora may allow you to subscribe to a plan (“Subscription Plan”) for which you will be periodically billed the amounts indicated to you at the time of your subscription, as may be updated from time to time by Agora, on a forward-going basis, upon notice to you (the “Subscription Fee”). When you subscribe to a Subscription Plan, the Subscription Plan will be billed on a periodic basis. You hereby authorize Agora to charge you on a going-forward basis and until cancellation of either the Subscription Plan or your account. The “Subscription Billing Date” is the day of the month when you sign up to your Subscription Plan. Your account will be charged automatically on the Subscription Billing Date all applicable fees and taxes for the next subscription period.
BY PURCHASING A SUBSCRIPTION, YOU AGREE THAT YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW FOR SUCCESSIVE PERIODS UNLESS YOU CANCEL YOUR SUBSCRIPTION OR ACCOUNT AS FURTHER DESCRIBED BELOW.
YOU MAY CANCEL YOUR SUBSCRIPTION PLAN AT ANY TIME, IN WHICH CASE YOUR SUBSCRIPTION WILL EXPIRE AT THE END OF THAT SUBSCRIPTION PERIOD (AND UPON WHICH EXPIRATION YOUR SUBCRIPTION WILL NO LONGER BE RENEWED OR CHARGED). YOU MAY CANCEL YOUR SUBSCRIPTION PLAN [ by emailing firstname.lastname@example.org . You must cancel your Subscription Plan at least 24 hours before it renews in order to avoid billing of the next periodic Subscription Fee to your account.
10. Rewards and Promotions.
Agora may include an opportunity for you to earn (including by completing actions or activities), reward points through various programs. Any rewards points will be governed by the terms that program. In addition, Agora, at its sole discretion, may make promotional offers with different features to any of Agora’s users. These promotional offers, unless made to you, will not apply to your offer or these Terms.
11. ARCHIVING AND STORAGE OF RECORDED COMMUNICATIONS
You acknowledge and understand that there are federal, state, local, and international laws governing the electronic recording of communications and that Agora will not be liable for any illegal use of the Service. You should carefully review your own circumstances when deciding whether to use the recording features of the Service and it is your responsibility to determine if the electronic recordings are legal under applicable federal and state laws. You agree to comply, and require that your users comply, with all applicable laws, whether federal, state, local or international, relating to the privacy of communication for all parties to a conversation, including, when required, advising all participants in a recorded video chat that the video chat is being recorded. In addition, you acknowledge that the storage of recorded communications is not guaranteed by Agora and agree that Agora will not have any liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur with respect to the loss or deletion of recorded communications.
12. ACCEPTABLE USE POLICY; Compliance obligations
Your use of the Website, Platform, and Services are subject to Agora’s Acceptable Use Policy located in our (“Acceptable Use Policy”) page, including all compliance obligations listed therein. You are solely responsible for all content, services and advertising available through Your Product, and Your Products compliance with the Acceptable Use Policy.
Agora reserves the right to investigate and take appropriate legal action against anyone who, in Agora’s sole discretion, violates these Terms, including without limitation, removing the offending content from the Service, suspending or terminating the access of such violators and reporting you to the law enforcement authorities. If you are unsure whether Your Product or use of the Website, Platform, or Services complies with the Acceptable Use Policy, please email us at email@example.com so we can discuss whether your proposed use is acceptable.
13.2. Data Transfers for Users Located in the European Economic Area. If you or your users are located in the European Economic Area, you agree that all international data transfers will be made pursuant to the Standard Contractual Clauses, as updated, amended replaced or superseded from time to time by the European Commission, the approved version of which in force at present is that set out in the European Commission’s Decision 2004/915/EC of 27 December 2004, available at: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32004D0915.
By agreeing to these Terms, you and Agora conclude the Standard Contractual Clauses, which are hereby incorporated into this DPA and completed as follows: the “data exporter” is you; the “data importer” is Agora; the governing law in Clause 9 and Clause 11.3 of the Standard Contractual Clauses is the law of the country in which you are located; Appendix 1 and Appendix 2 to the Standard Contractual Clauses, are Appendix 1 and 2 to these Terms respectively; and the optional indemnification clause is struck.
14.1. You must be reachable during reasonable business hours for security questions or concerns through the contact information that you provided upon requesting your Platform key. You will ensure that all networks, computer and operating systems, software and other systems used to operate Your Product employ security measures to prevent unauthorized access to or use of any user data and the Service. You must promptly report any security deficiencies in or intrusions to your systems to Agora at firstname.lastname@example.org.
14.2. You understand that the operation of the Service, including your (or your users’) content, may be unencrypted and involve (i) transmissions over various networks; (ii) changes to conform and adapt to technical requirements of connecting networks or devices and (iii) transmission to Agora’s third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Service. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of your content. Agora will have no liability for any unauthorized access or use of any content, or any corruption, deletion, destruction or loss of any content. You further acknowledge and agree that Agora may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (i) comply with legal process, applicable laws or government requests; (ii) enforce these Terms; (iii) respond to claims that any content violates the rights of third parties; or (iv) protect the rights, property, or personal safety of Agora, its users and the public.
14.3. In addition to our rights to terminate or suspend Services to you as described in Section 16 below, you acknowledge that: (i) your access to and use of the Services may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the Services for any reason, including as a result of power outages, system failures or other interruptions; and (ii) we shall also be entitled, without any liability to you, to suspend access to any portion or all of the Services at any time, on a Service-wide basis: (a) for scheduled downtime to permit us to conduct maintenance or make modifications to any Service; (b) in the event of a denial of service attack or other attack on the Service or other event that we determine, in our sole discretion, may create a risk to the applicable Service, to you or to any of our other customers if the Service were not suspended; or (c) in the event that we determine that any Service is prohibited by applicable law or we otherwise determine that it is necessary or prudent to do so for legal or regulatory reasons (collectively, “Service Suspensions”).
15. REPRESENTATIONS AND WARRANTIES
You represent and warrant that: (a) you have the right to use, reproduce, transmit, copy, publicly display, publicly perform, and distribute any content or data on Your Product or that is used or incorporated with the Service, and that neither Your Product nor any related content violate the rights of any third party (e.g. copyright, patent, trademark, or other proprietary right of any person or entity), or any applicable regulation or law, including but not limited to any export, re-export, or import laws and the laws of any country in which your content or service is made available; (b) you have all necessary rights and authorizations to agree to these Terms and to use the Platform and the Service as contemplated by these Terms; and (c) your agreement and compliance with these Terms and use of the Platform and the Service will not violate any law, regulation or contractual obligation.
16. TERM and termination
16.1. You may terminate the Service at any time, for any or no reason, by deleting your account, unsubscribing from the Service, and disabling Your Product’s access of the Platform and use of the Service.
16.2. We reserve the right to suspend or terminate your right and license to access or use any or all of the Platform and Service or terminate these Terms in their entirety (and, accordingly, your right to use the Service) at any time, for any or no reason, by providing you thirty (30) days’ advance notice. If Agora determines that providing advance notice would negatively impact Agora’s ability to provide Services, Agora may suspend your right and license to access or use any or all if the Platform and Service or terminate these Terms in their entirety (and, accordingly, cease providing all Services to you), with no notice.
16.3. In addition, we may suspend your right and license to access and use the Platform and the Service or terminate these Terms in their entirety (and, accordingly, your right to use the Service), for cause effective as set forth below:
(a) Immediately upon notice if: (i) Agora determines that Your Product is harmful to or inconsistent with Agora’s reputation and goodwill; (ii) if you violate, or we have reason to believe that you have violated, any provision of the Acceptable Use Policy; (iii) there is an unusual spike or increase in your use of the Services for which there is reason to believe such traffic or use is fraudulent or negatively impacting the operating capability of the Service; (iv) we determine, in our sole discretion, that our provision of any of the Services to you is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason; or (v) subject to applicable law, upon your liquidation, commencement of dissolution proceedings, disposal of your assets, failure to continue your business, assignment for the benefit of creditors, or if you become the subject of a voluntary or involuntary bankruptcy or similar proceeding.
(b) Immediately and without notice if you are in default of any payment obligation with respect to any of the Services or if any payment mechanism you have provided to us is invalid or charges are refused for such payment mechanism.
(c) Five (5) days following our notice to you of a breach of any other provision of these Terms and fail, as determined by us, in our sole discretion, to cure such breach within such 5-day period.
16.4. Upon our suspension of your use of any Services, in whole or in part, for any reason: (i) fees will continue to accrue for any Services that are still in use by you, notwithstanding the suspension; (ii) you remain liable for all fees, charges and any other obligations you have incurred through the date of suspension with respect to the Services; and (iii) all of your rights with respect to the Services shall be terminated during the period of the suspension.
16.5. Upon any termination of these Terms or your access to the Service, for any reason: (i) you remain liable for all fees, charges and any other obligations you have incurred through the date of termination with respect to the Services; (ii) all rights and licenses granted by Agora to you herein shall terminate, (iii) you shall immediately remove the Service from Your Product and remove all copies of the Platform from all computers, hard drives, networks, and other storage media, (iv) all of your content on the Service (if any) may be permanently deleted by Agora.
16.6. Notwithstanding anything to the contrary in these Terms, the following provisions shall survive and remain in full force and effect following any termination of the parties’ obligations under these Terms: Sections 12, 14, 15, 16, 17, 20 and 21.
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. Agora will promptly process and investigate notices of alleged infringement and will take appropriate actions under the DMCA and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to Agora at email@example.com (subject line: “DMCA Takedown Request”). You may also contact us by mail at:
DMCA c/o Office Manager at Agora Lab
2804 Mission College Blvd. Ste 201,
Santa Clara, CA 95054
Notice: To be effective, the notification must be in writing and contain the following information:
· an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
· a description of the copyrighted work or other intellectual property that you claim has been infringed;
· a description of where the material that you claim is infringing is located on the Service, with enough detail that we may find it;
· your address, telephone number, and email address;
· a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
· a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
· your physical or electronic signature;
· identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
· a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
· your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court located within the Northern District of California and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, Agora will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Agora’s sole discretion.
Repeat Infringer Policy: In accordance with the DMCA and other applicable law, Agora has adopted a policy of terminating, in appropriate circumstances and at Agora’s sole discretion, the access to the Service of Platform users who are deemed to be repeat infringers. Agora may also at its sole discretion limit access to the Service and/or terminate the access of any Platform users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
18. EXPORT COMPLIANCE
Agora’s products may be subject to U.S. export and re-export control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control (“OFAC”), and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State. You warrant that you are (1) not located in Cuba, Iran, North Korea, Sudan, or Syria, and (2) not a denied party as specified in the regulations listed above.
You agree to comply with all applicable export and re-export control laws and regulations, including the EAR, trade and economic sanctions maintained by OFAC, and the ITAR. Specifically, you covenant that you shall not — directly or indirectly — sell, export, re-export, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such technology) received from Agora under these Terms to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations.
Furthermore, you agree to indemnify, to the fullest extent permitted by law, Agora from and against any fines or penalties that may arise as a result of your breach of this provision. This export control clause shall survive termination or cancellation of these Terms.
We reserve the right to change, modify, or update the Platform at any time, to impose additional restrictions or limitations on the Service (including, without limitation, the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on Agora’s servers on your behalf), or to change, modify or update the fees charged for all or a portion of the Service. You agree that Agora has no responsibility or liability for the deletion or failure to store any data or other content maintained or transmitted by the Service. Agora may decide what features to include in the Service and whether to make them optional or mandatory. You further acknowledge that Agora reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
We also reserve the right to change, modify or update the Terms at any time. If we revise the Terms, we will post the revised Terms on our Website, and you consent to receiving notice of any changes through such posting. If required by law, Agora will also provide you notice of changes as provided in Section 18. If you do not agree to the revisions, you must cease to use the Platform and remove the Service from Your Product. Your continued use of the Platform or use of the Service on Your Product after the posting of the revised Terms means that you have accepted the new Terms.
20. NO AGORA WARRANTIES
AGORA DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM OR THE SERVICE COMPLIES WITH ANY LEGAL REQUIREMENTS, IS FREE OF INACCURACIES, ERRORS, BUGS, OR INTERRUPTIONS (INCLUDING WITHOUT LIMITATION SERVICE SUSPENSIONS), OR IS RELIABLE, ACCURATE, COMPLETE, OR OTHERWISE VALID. THE PLATFORM AND THE SERVICE ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH NO WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND AND AGORA EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, LEGALITY, AVAILABILITY, SECURITY, TITLE AND/OR NON-INFRINGEMENT. YOUR USE OF THE PLATFORM AND THE SERVICE ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THEIR USE, INCLUDING, BUT NOT LIMITED TO, ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OR CORRUPTION OF DATA.
21. LIMITATION OF LIABILITY
AGORA WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE) (i) FOR ANY LOST PROFITS, LOST OR CORRUPTED DATA, COMPUTER FAILURE OR MALFUNCTION, INTERRUPTION OF BUSINESS, OR OTHER INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH USE OF THE PLATFORM OR THE SERVICE, ANY SERVICE SUSPENSION, OR ANY OTHER PECUNIARY LOSS, WHETHER OR NOT AGORA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (ii) FOR ANY AMOUNT IN EXCESS OF $100.00 OR, IF GREATER, THE FEES PAID BY YOU TO AGORA IN THE SIX (6) MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTION 17 AND THIS SECTION 21 MAY NOT APPLY TO YOU.
22. INDEMNITY AND WAIVER
You agree to indemnify, defend, and hold Agora and its affiliates, officers, directors, agents, service providers, partners, and employees harmless from any claim, demand or allegation made by any third party, and all related losses, damages, liabilities, costs and expenses (including attorneys’ fees), that it is any way related to:
· your use of the Platform or the Service;
· use of the Service by the users of Your Product;
· Your Product, including any content, services or advertisements on Your Product or that you incorporate with the Service;
· any claims for copyright infringement, defamation, invasion of privacy or right of publicity arising out of or in connection with any unauthorized use of the Service; and
· your breach of any representation, warranty or covenant included in these Terms.
The foregoing indemnity provision shall be in addition to and not in lieu of any other indemnification obligations set forth in these Terms.
23. Dispute Resolution and Arbitration
23.1. Generally. In the interest of resolving disputes between you and Agora in the most expedient and cost effective manner, and except as described in Section 23.2, you and Agora agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court.
Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND AGORA ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
23.2. Exceptions. Despite the provisions of Section 23.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
23.3. Arbitrator. Any arbitration between you and Agora will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Agora. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
23.4. Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Agora’s address for Notice is: Agora, Inc., 2804 Mission College Blvd, Suite 201, Santa Clara, CA 95054. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Agora may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Agora must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Agora in settlement of the dispute prior to the award, Agora will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $1,000.
23.5. Fees. If you commence arbitration in accordance with these Terms, Agora will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Santa Clara County, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Agora for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
23.6. No Class Actions. YOU AND AGORA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Agora agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
23.7. Modifications to this Arbitration Provision. If Agora makes any future change to this arbitration provision, other than a change to Agora’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Agora’s address for Notice of Arbitration, in which case your account with Agora will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
23.8. Enforceability. If Section 23.6 is found to be unenforceable or if the entirety of this Section 23 is found to be unenforceable, then the entirety of this Section 23 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 24.3 will govern any action arising out of or related to these Terms.
24.1. General. These Terms govern your use of the Platform and the Service and constitute the entire agreement between you and Agora regarding the subject matter hereof. These Terms supersede any prior agreements between you and Agora relating to your use of the Platform and the Service (including, but not limited to, any prior versions of these Terms). The failure of Agora to exercise or enforce any right or provision of these Terms does not constitute a waiver of that right or provision, and a waiver of any default is not a waiver of any other default. If a court of competent jurisdiction finds any provision of these Terms to be invalid, the provision shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the parties’ original intentions as reflected in the provision, and so that the other provisions of the Terms remain in full force and effect. All headings in the Terms are for convenience only and have no legal or contractual effect. The Terms are personal to you and may not be assigned or transferred for any reason whatsoever (including, without limitation, by operation of law, merger, reorganization, or as a result of an acquisition or change of control involving you) without Agora’s prior written consent and any action or conduct in violation of the foregoing shall be void and without effect. Agora expressly reserves and shall have the right to assign the Terms and to delegate any of its obligations hereunder.
24.2. Notices. We may send you any notices, including those regarding changes to these Terms, to the email address you provided when you requested your API key or through any other reasonable means. Any notices to Agora must be sent to Agora Lab, 2804 Mission College Blvd. Ste. 201, Santa Clara, CA 95054 via first class or air mail or overnight courier and are deemed given upon receipt.
24.3. Governing Law. These Terms shall be governed by the internal laws of the State of California, without giving effect to principles of conflict of laws. You hereby consent to the exclusive jurisdiction and venue of the state courts sitting in Santa Clara County, California or the federal courts in the Northern District of California to resolve any disputes arising under these Terms. In each case these Terms shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods.
24.4. Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
24.6. Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
24.7. No Support. These Terms do not entitle you to any support for the Platform or the Service, unless you make separate arrangements with Agora and pay all fees associated with such support (if any). Any such support provided by Agora shall be subject to the Terms as modified by the associated support agreement.
25. Notice Regarding Apple. This Section 25 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and Agora only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.