SoundSelf EULA

New Entheogen Limited

Soundself Pro Provider License Agreement

New Entheogen Limited, a Delaware corporation (“New Entheogen”) provides Soundself Pro (as defined below), and your (“you” or “Provider”) use of Soundself Pro is subject to and governed by the terms and conditions in this Soundself Pro Provider License Agreement (this “Agreement”). New Entheogen may, at its discretion, update this Agreement at any time. You can access and review the most current version of this Agreement at the URL for this page, or as otherwise made available by Soundself Pro. New Entheogen and Provider are each referred to individually as a "party," and collectively as the "parties."

PLEASE REVIEW THIS AGREEMENT CAREFULLY. BY REGISTERING FOR AN ACCOUNT OR OTHERWISE ACCESS OR USING SOUNDSELF PRO, YOU AGREE TO BE BOUND BY THIS AGREEMENT, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO YOU. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT ACCESS OR USE SOUNDSELF PRO.

THIS AGREEMENT REQUIRES FINAL AND BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT, OR YOUR ACCESS TO OR USE OF SOUNDSELF PRO, INCLUDING THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THIS AGREEMENT, AND YOU AGREE THAT ANY SUCH CLAIM WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS. PLEASE REVIEW SECTION 14 CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION OF ANY CLAIM.

You represent and warrant that you: (a) are of legal age to form a binding contract; (b) have the right, authority, and capacity to agree to and abide by this Agreement; and (c) are not a person barred from using Soundself Pro under the laws of any applicable jurisdiction.

This Agreement governs New Entheogen’s provision of Soundself Pro and Provider’s access to and use of Soundself Pro. This Agreement contains general terms and conditions applicable to all such use of Soundself Pro. The parties agree as follows:

1. DEFINITIONS.

“Soundself Pro” means any and all of the services, software and other offerings provided by New Entheogen pursuant to this Agreement, including the SaaS Platform, the offerings provided through https://entheo.digital/, and all such services and software labeled as alpha, beta, pre-release, trial, preview or otherwise. Soundself Pro may include any enhancements, updates, upgrades, derivatives or bug fixes to such services, software, and offerings, and any documentation, add-ons, templates, sample data sets, and hardware devices as provided by New Entheogen.

“Data” means the raw data Provider uploads or submits to New Entheogen and the resulting data from the processing of such raw data using Soundself Pro.

“Feedback” means all suggestions, comments, opinions, code, input, ideas, reports, information, know-how or other feedback provided by Provider (whether in oral, electronic or written form) to New Entheogen related to Soundself Pro.

“Malicious Code” means without limitation code, files, scripts, agents or programs intended to do harm, including without limitation viruses, worms, time bombs and trojan horses.

“SaaS Platform” means everything at https://entheo.digital/, and related services located in the https://entheo.digital/ domain and subdomains, including software, code, algorithms, hosted services, and web interfaces.

2. LICENSE GRANT.

Provider’s use of Soundself Pro is subject to and governed by the terms and conditions in this Agreement. Subject to and conditioned on Provider’s compliance with the terms and conditions of this Agreement, New Entheogen grants Provider a non-exclusive, non-sublicensable, non-transferable, revocable, limited license during the Term to use Soundself Pro.

3. LICENSE RESTRICTIONS AND REQUIREMENTS.

a. Restrictions. Except as expressly authorized in this Agreement or by New Entheogen, Provider will not, and will not permit any third party to: (i) access or use Soundself Pro for any other purposes (including for any competitive analysis, commercial, professional, or other for-profit purposes); (ii) copy Soundself Pro (except as required to run Soundself Pro and for reasonable backup purposes); (iii) modify, adapt, or create derivative works of Soundself Pro; (iv) resell, transfer, sublicense, or distribute Soundself Pro to any third party; (v) use or offer any functionality of Soundself Pro on a service provider, service bureau, hosted, software as a service, or time sharing basis, provide or permit other individuals or entities to create Internet "links" to Soundself Pro, or "frame" or "mirror" Soundself Pro on any other server, or wireless or Internet-based device; (vi) decompile, disassemble, translate or reverse-engineer Soundself Pro or otherwise attempt to derive Soundself Pro source code, algorithms, methods or techniques used or embodied in Soundself Pro; (vii) disclose to any third party the results of any benchmark tests or other evaluation of Soundself Pro, or (viii) remove, alter, obscure, cover or change any trademark, copyright or other proprietary notices, labels or markings from or on Soundself Pro; (ix) interfere with or disrupt servers or networks connected to any website through which Soundself Pro provided; (x) use Soundself Pro to collect or store personal data about any person or entity; (xi) use Soundself Pro to build a similar or competitive product or service; (xii) use Soundself Pro to transmit Malicious Code or (xiii) use Soundself Pro for any illegal, unauthorized or otherwise improper purposes.

b. Other Parties. Any employee, consultant, contractor or agent hired to perform services for Provider may operate Soundself Pro on Provider’s behalf solely under these terms and conditions, provided that: (i) Provider is responsible for ensuring that any such party agrees in a legally enforceable manner to abide by and fully comply with the terms and conditions of this Agreement on the same basis as applicable to Provider; (ii) such use is only in connection with Provider’s Internal Purposes; (iii) such use does not represent or constitute an increase in the scope of the licenses provided hereunder; and (iv) Provider remain fully responsible and liable for any and all acts or omissions by such third parties related to this Agreement.

c. Soundself Pro Patient Waiver and Release. Provider agrees that prior to using Soundself Pro with any patient or end user, Provider shall ensure and be responsible for such individual executing a Soundself Pro Patient Waiver and Release, in the form provided by New Entheogen at www.entheo.digital/SoundSelfPatientWaiver. New Entheogen reserves the right to immediately suspend Provider’s access to Soundself Pro in the event of any breach of this provision.

d. Requirements.

i. Technical Requirements. In order to use Soundself Pro, Provider must comply with the technical requirements communicated to Provider by New Entheogen either via Soundself Pro or otherwise, including without limitation, the System Requirements, Required Hardware and Setup Guides provided here https://www.entheo.digital/welcome (“Technical Requirements”). New Entheogen shall not be responsible for Provider’s failure to comply with any of the Technical Requirements.

e. Immediate Termination. Any violation of this Section 3 by Provider shall be a material breach of this Agreement and New Entheogen may immediately terminate this Agreement without notice.

4. TERM AND TERMINATION.

a. Term. This Agreement will be effective from the earlier of (i) the date provided above, and (ii) the date on which Provider first installed, downloaded or accessed a copy of Soundself Pro, and shall continue until December 31, 2023 or until earlier terminated pursuant to the terms set forth below (the “Term”). New Entheogen may, in its sole discretion, extend the Term.

b. Termination. This Agreement may be terminated at any time by either party, with or without cause, by providing the other party with written notice.

c. Effect of Termination. Immediately upon termination, (i) all licenses granted under this Agreement will immediately terminate and Provider will immediately cease all use of Soundself Pro; (ii) Provider will destroy Soundself Pro in its possession; and (iii) any and all of Provider’s payment obligations will immediately become due. Sections 1, 3 – 11, and 12 – 15, will survive termination of this Agreement. Neither party shall be under any obligation to enter into an agreement after termination or expiration of this Agreement.

d. Suspension. New Entheogen reserves the right at any time to modify, suspend, or discontinue Soundself Pro (or any portion thereof) with or without notice, and New Entheogen shall not be liable to Provider or any third party for any such modification, suspension or discontinuance.

5. OWNERSHIP.

Soundself Pro is licensed, not sold, and New Entheogen, its suppliers or its licensors, retains and reserves all rights not expressly granted in this Agreement. New Entheogen, its suppliers or its licensors own all worldwide right, title and interest in and to Soundself Pro, including all worldwide patent rights (including patent applications and disclosures); copyright rights (including copyrights, copyright registration and copy rights with respect to computer software, software design, software code, software architecture, firmware, programming tools, graphic user interfaces, reports, dashboard, business rules, use cases, screens, alerts, notifications, drawings, specifications and databases); moral rights; trade secrets and other rights with respect to confidential or proprietary information; know-how; other rights with respect to inventions, discoveries, ideas, improvements, techniques, formulae, algorithms, processes, schematics, testing procedures, technical information and other technology; and any other intellectual and industrial property rights, whether or not subject to registration or protection; and all rights under any license or other arrangement with respect to the foregoing (collectively, “Intellectual Property Rights”). Except as expressly stated in this Agreement, New Entheogen does not grant Provider any Intellectual Property Rights in Soundself Pro. Soundself Pro is copyrighted and protected by the laws of the United States and other countries, and international treaty provisions.

6. CONSIDERATION.

Soundself Pro will be provided hereunder as a “beta” product and there will be no fees charged for Soundself Pro under this Agreement. Rather, as consideration for Provider’s right to use Soundself Pro, Provider agrees that (i) it is the intent of the beta phase that Provider gives due consideration to using Soundself Pro as one of Provider’s primary services after the completion of the beta phase, and (ii) Provider agrees to provide New Entheogen with Feedback.

7. FEEDBACK.

Provider agrees to provide New Entheogen with Feedback. New Entheogen, in its sole discretion, may or may not respond to Provider’s Feedback or promise to address all of Provider’s Feedback in the development of future features or functionalities of Soundself Pro or any related or subsequent versions of such Soundself Pro. Provider assigns, at no charge, all rights, title and interests in Feedback to New Entheogen, and agrees that New Entheogen is free to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights in the Feedback in any form and any medium (whether now known or later developed), without credit or compensation to Provider. Provider warrants that the Feedback does not infringe any copyright or trade secret of any third party, and that Provider has no knowledge of any patent of any third party that may be infringed by the Feedback (including any implementation thereof recommended by Provider). Provider further warrants that its Feedback is not subject to any license terms that would purport to require New Entheogen to comply with any additional obligations with respect to any Soundself Pro that incorporates Provider’s Feedback.

8. DATA.

a. Data Processing. New Entheogen shall process and use any personal data that Provider provides in accordance with the New Entheogen Privacy Policy located at https://www.entheo.digital/privacy. New Entheogen will maintain a security program materially in accordance with industry standards that are designed to protect the security, confidentiality and integrity of the Data. Provider hereby grants New Entheogen a perpetual, irrevocable, non-exclusive, royalty-free, paid-up, worldwide, sublicensable license to use, access, transmit, host, store, and display the Data solely for the purpose of providing and conducting research and improving Soundself Pro, including rights to extract, compile, aggregate, synthesize, use, and otherwise analyze all or any portion of the Data. New Entheogen may use, publish, share, distribute, or disclose such Data on an aggregate basis or in a de-identified manner that does not allow personal data about Provider to be separated from the aggregate data and identified as originating from Provider.

b. Data Warranty and Obligations. Provider represents, warrants and agrees that Provider has all rights to provide the Data and other materials that Provider provides or makes available to New Entheogen. Provider acknowledges and agrees that it is solely responsible for all Data and for its conduct while using Soundself Pro. Provider acknowledges and agrees that: (i) it will evaluate and bear all risks associated with its use and distribution of all Data; (ii) it is responsible for protecting and backing up the Data until the Data is successfully sent to New Entheogen; (iii) it is responsible for protecting the confidentiality of all Data in its possession and control; and (iv) under no circumstances will New Entheogen be liable in any way for the content of any Data, including, but not limited to, any errors or omissions in any Data, or any loss or damages or any kind incurred as a result of Provider’s use, deletion, modification, or correction of any Data. Provider has full discretion and control on how to store, protect, remove or delete any Data on Soundself Pro and New Entheogen shall have no liability for any damages caused by such deletion or removal of or failure to store or protect Data.

9. WARRANTY.

a. Mutual Representations and Warranties. Each party represents and warrants that it has full right, power, and authority to enter into this Agreement and to perform its obligations and duties under this Agreement, and that the performance of such obligations and duties does not conflict with or result in a breach of any other agreement of such party or any judgment, order, or decree by which such party is bound.

B. DISCLAIMER. EXCEPT AS SET FORTH IN SECTION 9.A., NEW ENTHEOGEN DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, TITLE, QUIET ENJOYMENT AND WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE PRACTICE, OR BY STATUTE OR IN LAW. NEW ENTHEOGEN SPECIFICALLY DOES NOT WARRANT THAT SOUNDSELF PRO WILL MEET PROVIDER’S REQUIREMENTS, THE OPERATION OR OUTPUT OF SOUNDSELF PRO WILL BE ERROR-FREE, VIRUS-FREE, SECURE, ACCURATE, RELIABLE, COMPLETE OR UNINTERRUPTED. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, PROVIDER PROVIDES THE DATA ON AN “AS IS” BASIS AND PROVIDES NO GUARANTEE OF THE ACCURACY OF THE DATA PROVIDED TO NEW ENTHEOGEN. NEW ENTHEOGEN IS NOT OBLIGATED TO SUPPORT, UPDATE OR UPGRADE SOUNDSELF PRO.

c. Beta Disclaimer. ALL SOUNDSELF PRO LABELED ALPHA, BETA, PRE-RELEASE, TRIAL, PREVIEW OR SIMILARLY (“Beta Services”) ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS, AND PROVIDER’S USE OF SUCH BETA SERVICES IS AT ITS SOLE RISK. New Entheogen has no obligations in connection with or in the course of providing the Beta Services. Any expectations and estimates regarding Beta Services are based on factors currently known and actual events or results could differ materially. New Entheogen does not assume any obligation to update any Beta Services. In addition, any information about New Entheogen’s roadmap outlines New Entheogen’s general product direction and is subject to change at any time without notice. It is for informational purposes only and shall not be incorporated into this Agreement or any contract or other commitment. New Entheogen undertakes no obligation either to develop the features or functionality provided in the Beta Services, or to include any such feature or functionality in a future release of Soundself Pro. Provider expressly acknowledges that the Beta Services have not been fully tested, and may contain defects or deficiencies which may not be corrected by New Entheogen. The Beta Services may undergo significant changes prior to release of the corresponding generally available final version.

d. Additional Disclaimers.

i. New Entheogen is not responsible for any hardware Provider uses in conjunction or connection with Soundself Pro, including defective units or an injury caused by them, whether or not provided by or purchased through New Entheogen.

ii. Soundself Pro runs on strobing lights, which have been known to cause seizures in certain individuals. PROVIDER IS SOLELY RESPONSIBLE FOR SCREENING ALL INDIVIDUALS WITH OR FOR WHOM PROVIDER USES SOUNDSELF PRO FOR EPILEPSY AND SEIZURE HISTORY AND SHALL NOT ALLOW ANYONE WITH PHOTOSENSITIVITY OR ANY OTHER RISK FACTORS TO USE SOUNDSELF PRO. PROVIDER IS SOLELY RESPONSIBLE FOR AND NEW ENTHEOGEN SHALL NOT BE RESPONSIBLE FOR ANY NEGATIVE EFFECTS EXPERIENCED BY PROVIDER OR ANY INDIVIDUAL WITH OR FOR WHOM PROVIDER USES SOUNDSELF PRO IN CONNECTION WITH THE STROBING LIGHTS.

iii. Provider acknowledges and understands that Soundself Pro has not been FDA cleared or approved and that Provider is deploying Soundself Pro in Provider’s practice at Provider’s own risk. New Entheogen does not guarantee any results with respect to Soundself Pro and cannot guarantee a positive experience with respect to any Patient’s use thereof. Provider is responsible for all care it provides to any patients or Patients and New Entheogen shall not be responsible for any harm inflicted upon an individual while in Provider’s care or any advice or treatment Provider provides to any patient or Patient, including the use of Soundself Pro by Provider.

iv. ANY CONTENT OR INFORMATION PROVIDED VIA SOUNDSELF PRO OR NEW ENTHEOGEN DOES NOT CONTAIN OR CONSTITUTE AND SHOULD NOT BE INTERPRETED AS THERAPY OR AS MEDICAL ADVICE, MEDICAL OPINIONS OR MEDICAL SERVICES. THERE IS NO DOCTOR-PATIENT RELATIONSHIP OR THERAPIST-PATIENT RELATIONSHIP BETWEEN NEW ENTHEOGEN AND ANY PATIENT. SOUNDSELF PRO IS NOT A SUBSTITUTE FOR THE ADVICE OF A MEDICAL PROFESSIONAL OR A THERAPIST AND THE INFORMATION MADE AVAILABLE BY NEW ENTHEOGEN OR ON SOUNDSELF PRO SHOULD NOT BE RELIED UPON WHEN MAKING MEDICAL DECISIONS OR TO DIAGNOSE OR TREAT A MEDICAL, MENTAL OR HEALTH CONDITION. NEW ENTHEOGEN DOES NOT DIAGNOSE OR IDENTIFY ILLNESSES OR CONDITIONS AND NO STATEMENT FROM NEW ENTHEOGEN SHOULD BE CONSTRUED AS A DIAGNOSIS OR AS A CONFIRMATION THAT A PATIENT DOES NOT HAVE ANY PARTICULAR CONDITION.

v. Soundself Pro is not fault-tolerant and is not designed or intended for use in environments in which its failure could lead to death, personal injury or severe physical damage. (“High Risk Activities”). ACCORDINGLY, NEW ENTHEOGEN SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES. PROVIDER AGREES THAT NEW ENTHEOGEN SHALL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING FROM THE USE OF SOUNDSELF PRO IN SUCH HIGH RISK ACTIVITIES.

10. INDEMNIFICATION.

Claims Against Provider. New Entheogen will defend, at its own expense, and hold Provider harmless against any claim, suit or action brought against Provider by a third party to the extent that such claim, suit or action arises from an allegation that Soundself Pro, when used as expressly permitted by this Agreement, infringes the intellectual property rights of such third party (“Provider Claim”), and New Entheogen will indemnify Provider from liability incurred by Provider to the extent arising from such Provider Claim. If New Entheogen receives prompt notice of a Provider Claim that, in New Entheogen's reasonable opinion, is likely to result in an adverse ruling, then New Entheogen may (i) obtain a right for Provider to continue using Soundself Pro at issue; (ii) modify such Soundself Pro to make it non-infringing; (iii) replace such Soundself Pro with a non-infringing version; or (iv) provide a reasonable depreciated or pro rata refund of amounts pre-paid for the allegedly infringing Soundself Pro.

New Entheogen Indemnity Limits. Notwithstanding the foregoing, New Entheogen will have no obligation under Section 10.a. or otherwise with respect to any infringement claim based upon: (i) any use of Soundself Pro not expressly permitted under this Agreement; (ii) any use of Soundself Pro in combination with products, equipment, software, or data not made available by New Entheogen if such infringement would have been avoided without the combination with such other products, equipment, software or data; or (iii) any modification of Soundself Pro by any person other than New Entheogen or its authorized agents or subcontractors (collectively, “Excluded Claims”). New Entheogen will have no obligation under Section 10.a. or otherwise with respect to any claim based upon the use by Provider of any Data uploaded or accessed through Soundself Pro to the extent such claim is not based on Soundself Pro itself. Section 10.a. states New Entheogen’s sole liability and Provider’s exclusive remedy for all third party claims.

Claims Against New Entheogen. Provider will defend, at its own expense, and hold New Entheogen harmless against any claim, suit or action against New Entheogen brought by a third party to the extent that such claim, suit or action arises from (i) Provider’s failure to comply with or violation of any applicable law or regulation, (ii) Provider’s infringement of any third party’s Intellectual Property Right, (iii) Provider’s use of any Data, (iv) Provider’s services and provision of any care to any patient, or (v) Excluded Claims (each, a “New Entheogen Claim”), and Provider will indemnify New Entheogen harmless from liability incurred by New Entheogen that is specifically attributable to such New Entheogen Claim or those costs and damages agreed to in a monetary settlement of such New Entheogen Claim.

Procedure. The foregoing obligations are conditioned on the party seeking indemnification: (i) promptly notifying the other party in writing of such claim; (ii) giving the other party sole control of the defense thereof and any related settlement negotiations; and (iii) cooperating and, at other party’s request and expense, assisting in such defense. Neither party may make any public announcement of any claim, defense or settlement without the other party’s prior written approval. The indemnifying party may not settle, compromise or resolve a claim without the consent of the indemnified party, if such settlement, compromise or resolution causes or requires an admission or finding of guilt against the indemnified party, imposes any monetary damages against the indemnified party, or does not fully release the indemnified party from liability with respect to the claim.

11. LIMITATION OF LIABILITY.

IN NO EVENT WILL NEW ENTHEOGEN BE LIABLE TO PROVIDER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF USE, DATA, GOODWILL OR PROFITS, BUSINESS INTERRUPTION, OR COSTS OF PROCURING SUBSTITUTE SOFTWARE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF SOUNDSELF PRO. WITHOUT LIMITING THE FOREGOING, NEW ENTHEOGEN WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY BUSINESS INTERRUPTION OR LOSS OF DATA ARISING FROM THE AUTOMATIC TERMINATION OF THE LICENSE RIGHTS GRANTED HEREIN AND ANY ASSOCIATED CESSATION OF SOUNDSELF PRO, ITS FUNCTIONS, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME FOR ANY REASON OR ANY DELETION, CORRUPTION OR DAMAGE OF DATA ON OR THROUGH SOUNDSELF PRO. NEW ENTHEOGEN’S TOTAL CUMULATIVE LIABILITY TO PROVIDER, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY IN CONNECTION WITH THIS AGREEMENT, INCLUDING ALL ORDER FORMS, WILL BE LIMITED TO AND WILL NOT EXCEED ONE HUNDRED DOLLARS ($100.00).

THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. INSOFAR AS APPLICABLE LAW PROHIBITS ANY LIMITATION ON LIABILITY HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION WILL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SO AS TO MAKE THE LIMITATION COMPLIANT WITH APPLICABLE LAW. THE PARTIES AGREE THAT THE LIMITATIONS ON LIABILITIES SET FORTH HEREIN ARE AGREED ALLOCATIONS OF RISK AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

12. COMPLIANCE WITH LAWS.

Provider will comply fully with all applicable laws, including all applicable laws relating to bribery or corruption, and export laws and regulations of the United States and any other country (“Export Laws”) where Provider uses any of Soundself Pro. Provider represents and warrants that it is not (a) located in, or a resident or a national of, a restricted country; or (b) on any of the relevant U.S. Government Lists of prohibited persons, including but not limited to the Treasury Department’s List of Specially Designated Nationals and the Commerce Department’s List of Denied Persons or Entity List. Provider further represents and warrants that it shall not export, re-export, ship, or transfer Soundself Pro to any restricted countries or restricted end users or use Soundself Pro in any restricted countries or for any purposes prohibited by the Export Laws, including, but not limited to, nuclear, chemical, missile or biological weapons related end uses. Provider understands that the requirements and restrictions of the Export Laws may vary depending on the specific Soundself Pro and may change over time, and that, to determine the precise controls applicable to Soundself Pro, it is necessary to refer to the U.S. Export Administration Regulations and the U.S. Department of Treasury, Office of Foreign Assets Control Regulations.

13. CHOICE OF LAW.

This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, as if performed wholly within the state and without giving effect to the principles of conflict of law rules of any jurisdiction. The parties agree that neither the Uniform Computer Information Transaction Act (UCITA) nor the United Nations Convention on Contracts for the International Sale of Goods shall apply to this Agreement, regardless of the states in which the parties do business or are incorporated.

14. BINDING ARBITRATION AND CLASS ACTION WAIVER.

a. ALL CLAIMS (AS DEFINED ABOVE) SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION RATHER THAN IN COURT, EXCEPT THAT PROVIDER MAY ASSERT CLAIMS IN SMALL CLAIMS COURT (DEFINED FOR THE PURPOSES OF THIS TOS AS A COURT OF LIMITED JURISDICTION THAT MAY ONLY HEAR CLAIMS NOT EXCEEDING $5,000) IF PROVIDER’S CLAIMS ARE WITHIN THE COURT’S JURISDICTION. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.

b. The arbitration shall be conducted by the American Arbitration Association (AAA) under its then-applicable Commercial Arbitration Rules or, as appropriate, its Consumer Arbitration Rules. The AAA’s rules are available at http://www.adr.org/. Payment of all filing, administration and arbitrator fees shall be governed by the AAA’s rules. The arbitration shall be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, Provider agrees that such hearing shall be conducted in Austin, Texas or, if the Consumer Arbitration Rules apply, another location reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances, as determined by the arbitrator. The decision of the arbitrator shall be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.

c. WE EACH AGREE THAT ALL CLAIMS SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION OR OTHER SIMILAR PROCESS (INCLUDING ARBITRATION). IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL AND AGREE THAT SUCH CLAIM SHALL BE BROUGHT ONLY IN A COURT OF COMPETENT JURISDICTION IN AUSTIN, TEXAS. PROVIDER HEREBY SUBMITS TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM.

d. Notwithstanding anything to the contrary, each party may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect its Confidential Information or Intellectual Property Rights, whether in aid of, pending, or independently of the resolution of any dispute pursuant to the arbitration procedures set forth in this Section 14.

e. If New Entheogen implements any material change to this Section 14, such change shall not apply to any claim for which Provider provided written notice to New Entheogen before the implementation of the change. The prevailing party shall recover its reasonable attorneys’ fees, expert fees, costs including arbitration costs and fees.

15. GENERAL.

All notices required or permitted under this Agreement hereto will be in writing and delivered in person, by email to the address designated by Provider from time to time, by confirmed facsimile transmission, by overnight delivery service, or by registered or certified mail, postage prepaid with return receipt requested, and in each instance will be deemed given upon receipt. Provider may not assign, delegate or transfer this Agreement, in whole or in part, by agreement, operation of law or otherwise. Any attempt to assign this Agreement other than as permitted herein shall be null and void. Provider acknowledges that New Entheogen may assign, subcontract or delegate any of its rights or obligations under this Agreement. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties’ permitted successors and assigns. This Agreement along with any additional terms incorporated herein by reference constitute the complete and exclusive understanding and agreement between the parties relating only to the subject matter of Soundself Pro, including Confidential Information, and shall supersede any and all prior or contemporaneous agreements, communications and understandings, written or oral, relating to such subject matter. This Agreement is limited to the use of Soundself Pro, Data and Confidential Information and as such, this Agreement is separate from and shall have no effect on any other agreement Provider may have with New Entheogen. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of both parties. All rights and remedies, whether conferred hereunder or by any other instrument or law, will be cumulative and may be exercised singularly or concurrently. The failure by either party to enforce any provisions of this Agreement will not constitute a waiver of any other right hereunder or of any subsequent enforcement of that or any other provisions. The terms and conditions stated herein are declared to be severable. If a court of competent jurisdiction holds any provision of this Agreement invalid or unenforceable, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law. For the purposes of this Agreement, the words “such as,” “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation.” Any prevention of or delay in performance by New Entheogen hereunder due to labor disputes, acts of god, failure of the Internet, governmental restrictions, enemy or hostile governmental action, fire or other casualty or other causes beyond its reasonable control shall excuse the performance of its obligations for a period equal to the duration of any such prevention or delay.

The duly authorized representatives of Provider and New Entheogen have read the foregoing and all documents incorporated therein, and agree and accept such terms effective as of the Effective Date.