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Terms of Use
Effective date: 5/28/2024
Welcome to Banana Analytics. Please read on to learn the rules and restrictions that govern your use of
our website(s), games, products, services and applications (the “Services”), including, without limitation,
any request to receive information about, or to purchase a license to any of the games made available
through our website(s) or application(s) (each, a “Product”). Your purchase of any Products will also be
governed by any other terms made available by us to you during the sales process. If you have any
questions, comments, or concerns regarding these terms or the Services, please contact us at:
Email:
Address:
These Terms of Use (the “Terms”) are a binding contract between you and Banana Analytics, LLC.
(“Banana Analytics”, “Capuchin,” “we” and “us”). Your use of the Services in any way means that you
agree to all of these Terms, and these Terms will remain in effect while you use the Services. These Terms
include the provisions in this document as well as those in the Privacy
Policy<http://capuchinvr.com/PrivacyPolicy.pdf?> and any other accompanying terms and conditions of
sale entered into between you and us for the sale of any Products. Your use of or participation in certain
Services may also be subject to additional policies, rules and/or conditions (“Additional Terms”), which
are incorporated herein by reference, and you understand and agree that by using or participating in
any such Services, you agree to also comply with these Additional Terms.
Please read these Terms carefully. They cover important information about Services provided to you and
any charges, taxes, and fees we bill you. These Terms include information about future changes to these
Terms, limitations of liability, a class action waiver and resolution of disputes by arbitration instead of
in court. PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES ARE SUBJECT TO THE
FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR
ACCESS THE SERVICES IN ANY MANNER. ALL BANANA ANALYTICS PRODUCTS REQUIRE ACCEPTANCE OF
THESE TERMS AND ACCESS TO THE SERVICES TO FUNCTION.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES
DESCRIBED IN THE ARBITRATION AGREEMENT SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN
YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT
TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
Will these Terms ever change?
We are constantly trying to improve our Products and Services, so these Terms may need to change
along with our Products and Services. We reserve the right to change the Terms at any time, but if we do,
we will place a notice on our site located at [INSERT], send you an email, and/or notify you by some
other means.
If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no
longer be able to use the Services and Products that require the Services may not function. If you use the
Services in any way after a change to the Terms is effective, that means you agree to all of the changes.
Except for changes by us as described here, no other amendment or modification of these Terms will be
effective unless in writing and signed by both you and us.
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What about my privacy?
Banana Analytics takes the privacy of its users very seriously. For the current Banana Analytics Privacy
Policy, please click here<http://capuchinvr.com/PrivacyPolicy.pdf?>.
What are the basics of using Capuchin?
You may be required to sign up for an account, select a password and user name (“Capuchin User ID”),
and provide us with certain information or data, such as your contact information. You promise to
provide us with accurate, complete, and updated registration information about yourself. You may not
select as your Capuchin User ID a name that you do not have the right to use, or another person’s name
with the intent to impersonate that person. You may not transfer your account to anyone else without
our prior written permission.
You represent and warrant that you are an individual of legal age to form a binding contract (or if not,
you’ve received your parent’s or guardian’s permission to use the Services and have gotten your parent
or guardian to agree to these Terms on your behalf).
You will only use the Services and Products you obtain for your own internal, personal use, and not on
behalf of or for the benefit of any third party. You will comply with all laws that apply to you, your use of
the Services, and your actions and omissions that relate to the Services. If your use of the Services or
Products is prohibited by applicable laws, then you aren’t authorized to use the Services. We can’t and
won’t be responsible for your using the Services or Products in a way that breaks the law.
You will not share your Capuchin User ID, account or password with anyone, and you must protect the
security of your Capuchin User ID, account, password and any other access tools or credentials. You’re
responsible for any activity associated with your Capuchin User ID and account.
What is a Product License? Users may purchase a license to Products via online store fronts such as
Steam and the Oculus Store. Products will require full access to Banana Analytics Services to function
fully. Banana Analytics, makes no assurances as to uptime of Services.
What about messaging?
As part of the Services, you may receive communications through the Services, including messages that
Banana Analytics sends you (for example, via email or SMS). When signing up for the Services, you will
receive a welcome message and instructions on how to stop receiving messages. By signing up for the
Services and providing us with your wireless number, you confirm that you want Banana Analytics to
send you information that we think may be of interest to you, which may include Banana Analytics
using automated dialing technology to text you at the wireless number you provided, and you agree to
receive communications from Banana Analytics, and you represent and warrant that each person you
register for the Services or for whom you provide a wireless phone number has consented to receive
communications from Banana Analytics. You agree to indemnify and hold Banana Analytics harmless
from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses
(including attorneys’ fees) arising from or in any way related to your breach of the foregoing.
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Are there restrictions in how I can use the Services?
You represent, warrant, and agree that you will not provide or contribute anything, including any
Content or User Submission (as those terms are defined below), to the Services, or otherwise use or
interact with the Services, in a manner that:
(a) infringes or violates the intellectual property rights or any other rights of anyone else
(including Banana Analytics);
(b) violates any law or regulation, including, without limitation, any applicable export control
laws, privacy laws or any other purpose not reasonably intended by Banana Analytics;
(c) is dangerous, harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene,
or otherwise objectionable;
(d) jeopardizes the security of your Capuchin User ID, account or anyone else’s (such as allowing
someone else to log in to the Services as you);
(e) attempts, in any manner, to obtain the password, account, or other security information
from any other user;
(f) violates the security of any computer network, or cracks any passwords or security
encryption codes;
(g) runs Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any
processes that run or are activated while you are not logged into the Services, or that
otherwise interfere with the proper working of the Services (including by placing an
unreasonable load on the Services’ infrastructure);
(h) “crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services or
Content (through use of manual or automated means);
(i) copies or stores any significant portion of the Content; or
(j) decompiles, reverse engineers, or otherwise attempts to obtain the source code or
underlying ideas or information of or relating to the Products or Services.
(k) Attempts to manipulate any promotional credits, chargeback policies or, any other economic
manipulation.
(l) Harasses any user, Banana Analytics employee, Game Developer or other individual.
A violation of any of the foregoing is grounds for termination of your right to use or access the Services.
What are my rights in the Services?
The materials displayed or performed or available on or through the Services, including, but not limited
to, text, graphics, data, articles, photos, images, illustrations, User Submissions (as defined below) and so
forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property
laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions
contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify,
translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, commercialize
or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the
owner of that Content or (ii) in a way that violates someone else’s (including Banana Analytics's) rights.
Subject to these Terms, we grant each user of the Services a worldwide, non-exclusive,
non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content
solely for purposes of using the Services. Use, reproduction, modification, distribution or storage of any
Content for any purpose other than using the Services is expressly prohibited without prior written
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permission from us. You understand that Banana Analytics owns the Services. You won’t modify, publish,
transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section),
create derivative works based on, or otherwise exploit any of the Services. The Services may allow you to
copy or download certain Content, but please remember that even where these functionalities exist, all
the restrictions in this section still apply.
What about anything I contribute to the Services – do I have to grant any licenses to Banana Analytics
or to other users?
User Submissions
Anything you post, upload, share, store, or otherwise provide through the Services is your “User
Submission”. Some User Submissions may be viewable by other users. You are solely responsible for all
User Submissions you contribute to the Services. You represent that all User Submissions submitted by
you are accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations.
You agree that you will not post, upload, share, store, or otherwise provide through the Services any
User Submissions that: (i) infringe any third party's copyrights or other rights (e.g., trademark, privacy
rights, etc.); (ii) contain sexually explicit content or pornography; (iii) contain hateful, defamatory, or
discriminatory content or incite hatred against any individual or group; (iv) exploit minors; (v) depict
unlawful acts or extreme violence; (vi) depict animal cruelty or extreme violence towards animals; (vii)
promote fraudulent schemes, multi-level marketing (MLM) schemes, get rich quick schemes, online
gaming and gambling, cash gifting, work from home businesses, or any other dubious money-making
ventures; or (viii) that violate any law.
Licenses
In order to display your User Submissions on the Services, and to allow other users to enjoy them (where
applicable), you grant us certain rights in those User Submissions (see below for more information).
Please note that all of the following licenses are subject to our Privacy
Policy<http://capuchinvr.com/PrivacyPolicy.pdf/?> to the extent they relate to User Submissions that are
also your personally-identifiable information.
By submitting User Submissions through the Services, you hereby do and shall grant Banana Analytics a
worldwide, non-exclusive, perpetual, royalty-free, fully paid, sublicensable and transferable license to
use, edit, modify, truncate, aggregate, reproduce, distribute, prepare derivative works of, display,
perform, and otherwise fully exploit the User Submissions in connection with this site, the Services and
our (and our successors’ and assigns’) businesses, including without limitation for promoting and
redistributing part or all of this site or the Services (and derivative works thereof) in any media formats
and through any media channels (including, without limitation, third party websites and feeds), and
including after your termination of your account or the Services. You also hereby do and shall grant each
user of this site and/or the Services a non-exclusive, perpetual license to access your User Submissions
through this site and/or the Services, and to use, edit, modify, reproduce, distribute, prepare derivative
works of, display and perform such User Submissions, including after your termination of your account or
the Services. For clarity, the foregoing license grants to us and our users do not affect your other
ownership or license rights in your User Submissions, including the right to grant additional licenses to
your User Submissions, unless otherwise agreed in writing. You represent and warrant that you have all
rights to grant such licenses to us without infringement or violation of any third party rights, including
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without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any
other intellectual property or proprietary rights.
Finally, you understand and agree that Banana Analytics, in performing the required technical steps to
provide the Services to our users (including you), may need to make changes to your User Submissions to
conform and adapt those User Submissions to the technical requirements of connection networks,
devices, services, or media, and the foregoing licenses include the rights to do so.
Our Unsolicited Ideas Policy.
We value an active and engaged community, however, please do not submit any creative ideas,
suggestions or materials to us (collectively, “Unsolicited Ideas”). However, if you feel you must send
them, please understand that we may freely use any Unsolicited Ideas you provide us. This policy is
intended to help curb any misunderstandings when a potential Service or Product adopts a similar
concept to something submitted as an Unsolicited Idea. What this means is that to the extent that you
have any ownership rights in an Unsolicited Idea, you grant us a worldwide, perpetual, irrevocable,
sublicensable, transferable, assignable, non-exclusive, and royalty-free right and license to use,
reproduce, modify, distribute, adapt, translate, create derivative works, perform, display, or otherwise
exploit any Unsolicited Ideas including any underlying IP rights associated with them.
What if I see something on the Services that infringes my copyright?
In accordance with the DMCA, we’ve adopted the following policy toward copyright infringement. We
reserve the right to (1) block access to or remove material that we believe in good faith to be
copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates,
content providers, members or users and (2) remove and discontinue service to repeat offenders.
(1) Procedure for Reporting Copyright Infringements. If you believe that material or content
residing on or accessible through the Services infringes your copyright (or the copyright of
someone whom you are authorized to act on behalf of), please send a notice of copyright
infringement containing the following information to Banana Analytics's Designated Agent to
Receive Notification of Claimed Infringement (our “Designated Agent,” whose contact details
are listed below):
(a) A physical or electronic signature of a person authorized to act on behalf of the
owner of the copyright that has been allegedly infringed;
(b) Identification of works or materials being infringed;
(c) Identification of the material that is claimed to be infringing including information
regarding the location of the infringing materials that the copyright owner seeks to
have removed, with sufficient detail so that Company is capable of finding and
verifying its existence;
(d) Contact information about the notifier including address, telephone number and, if
available, email address;
(e) A statement that the notifier has a good faith belief that the material identified in
(1)(c) is not authorized by the copyright owner, its agent, or the law; and
(f) A statement made under penalty of perjury that the information provided is
accurate and the notifying party is authorized to make the complaint on behalf of
the copyright owner.
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(2) Once Proper Bona Fide Infringement Notification is Received by the Designated Agent. Upon
receipt of a proper notice of copyright infringement, we reserve the right to:
(a) remove or disable access to the infringing material;
(b) notify the content provider who is accused of infringement that we have removed or
disabled access to the applicable material; and
(c) terminate such content provider's access to the Services if he or she is a repeat
offender.
(3) Procedure to Supply a Counter-Notice to the Designated Agent. If the content provider
believes that the material that was removed (or to which access was disabled) is not
infringing, or the content provider believes that it has the right to post and use such material
from the copyright owner, the copyright owner's agent, or, pursuant to the law, the content
provider may send us a counter-notice containing the following information to the
Designated Agent:
(a) A physical or electronic signature of the content provider;
(b) Identification of the material that has been removed or to which access has
been disabled and the location at which the material appeared before it was
removed or disabled;
(c) A statement that the content provider has a good faith belief that the
material was removed or disabled as a result of mistake or misidentification
of the material; and
(d) Content provider's name, address, telephone number, and, if available, email
address, and a statement that such person or entity consents to the
jurisdiction of the Federal Court for the judicial district in which the content
provider’s address is located, or, if the content provider's address is located
outside the United States, for any judicial district in which Company is
located, and that such person or entity will accept service of process from
the person who provided notification of the alleged infringement.
If a counter-notice is received by the Designated Agent, Company may, in its discretion, send a copy of
the counter-notice to the original complaining party informing that person that Company may replace
the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action
seeking a court order against the content provider accused of committing infringement, the removed
material may be replaced or access to it restored in 10 to 14 business days or more after receipt of the
counter-notice, at Company's discretion.
Please contact Banana Analytics's Designated Agent at the following address:
Banana Analytics, LLC.
Attn: DMCA Designated Agent
[1155 W SR 434 STE 115 #176 LONGWOOD, FL 32750]
Who is responsible for what I see and do on the Services?
Any information or Content publicly posted or privately transmitted through the Services is the sole
responsibility of the person from whom such Content originated, and you access all such information
and Content at your own risk, and we aren’t liable for any errors or omissions in that information or
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Content or for any damages or loss you might suffer in connection with it. We cannot control and have
no duty to take any action regarding how you may interpret and use the Content or what actions you
may take as a result of having been exposed to the Content, and you hereby release us from all liability
for you having acquired or not acquired Content through the Services. We can’t guarantee the identity of
any users with whom you interact in using the Services and are not responsible for which users gain
access to the Services.
You are responsible for all Content you contribute, in any manner, to the Services, and you represent and
warrant you have all rights necessary to do so, in the manner in which you contribute it.
The Services may contain links or connections to third-party websites or services that are not owned or
controlled by Banana Analytics. When you access third-party websites or use third-party services, you
accept that there are risks in doing so, and that Banana Analytics is not responsible for such risks.
Banana Analytics has no control over, and assumes no responsibility for, the content, accuracy, privacy
policies, or practices of or opinions expressed in any third-party websites or by any third party that you
interact with through the Services. In addition, Banana Analytics will not and cannot monitor, verify,
censor or edit the content of any third-party site or service. We encourage you to be aware when you
leave the Services and to read the terms and conditions and privacy policy of each third-party website or
service that you visit or utilize. By using the Services, you release and hold us harmless from any and all
liability arising from your use of any third-party website or service.
If there is a dispute between participants on this site or Services, or between users and any third party,
you agree that Banana Analytics is under no obligation to become involved. In the event that you have a
dispute with one or more other users, you release Banana Analytics, its directors, officers, employees,
agents, and successors from claims, demands, and damages of every kind or nature, known or unknown,
suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes
and/or our Services. You shall and hereby do waive California Civil Code Section 1542 or any similar law
of any jurisdiction, which says in substance: “A general release does not extend to claims that the
creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing
the release and that, if known by him or her, would have materially affected his or her settlement with
the debtor or released party.”
Will Banana Analytics ever change the Services?
We’re always trying to improve our Products and Services, so they may change over time. We may
suspend or discontinue any part of the Services, or we may introduce new features or impose limits on
certain features or restrict access to parts or all of the Services. We’ll try to give you notice when we
make a material change to the Services that would adversely affect you, but this isn’t always practical.
We reserve the right to remove any Content from the Services at any time, for any reason (including, but
not limited to, if someone alleges you contributed that Content in violation of these Terms), in our sole
discretion, and without notice.
Do the Services cost anything?
Banana Analytics Licenses to access the game services are offered at the prices set forth on the Steam
and Humble Widget storefront, and you may choose to purchase. The prices displayed are quoted in
local currency. Prices are subject to change at any time. Tax will be determined by the billing address of
the order and will automatically be added to the order. Banana Analytics is required by law to apply
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various taxes to orders to certain states and countries. Any payment terms presented to you in the
process of purchasing Banana Analytics Licenses are deemed part of these Terms.
What if I want to stop using the Services?
You’re free to do that at any time by contacting us at [duttbust@gmail.com]; please refer to our Privacy
Policy<http://capuchinvr.com/PrivacyPolicy.pdf?>, as well as the licenses above, to understand how we
treat information you provide to us after you have stopped using our Services.
Banana Analytics is also free to terminate (or suspend access to) your use of the Services or your account
for any reason in our discretion, including your breach of these Terms. Banana Analytics has the sole
right to decide whether you are in violation of any of the restrictions set forth in these Terms.
If you have deleted your account by mistake, contact us immediately at [duttbust@gmail.com] – we will
try to help, but unfortunately, we can’t promise that we can recover or restore anything.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By
way of example, all of the following will survive termination: any obligation you have to pay us or
indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property
rights, and terms regarding disputes between us, including without limitation the arbitration agreement.
What else do I need to know?
Warranty Disclaimer. Banana Analytics and its licensors, suppliers, partners, parent, subsidiaries or
affiliated entities, and each of their respective officers, directors, members, employees, consultants,
contract employees, representatives and agents, and each of their respective successors and assigns
(Banana Analytics and all such parties together, the “Banana Analytics Parties”) make no representations
or warranties concerning the Services, including without limitation regarding any Content contained in or
accessed through the Services or any Products, and the Banana Analytics Parties will not be responsible
or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed
through the Services or any claims, actions, suits procedures, costs, expenses, damages or liabilities
arising out of use of, or in any way related to your participation in, the Services. The Banana Analytics
Parties make no representations or warranties regarding suggestions or recommendations of services or
products offered or purchased through or in connection with the Services including, without limitation,
any Products, including any Goods. Products and services purchased or offered (whether or not following
such recommendations and suggestions) through the Services are provided “AS-IS” and without any
warranty of any kind from the Banana Analytics Parties or others (unless, with respect to such others
only, provided expressly and unambiguously in writing by a designated third party for a specific product).
THE SERVICES AND CONTENT ARE PROVIDED BY BANANA ANALYTICS (AND ITS LICENSORS AND
SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED
OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY
LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO
CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT,
STRICT LIABILITY, OR OTHERWISE) SHALL ANY OF THE BANANA ANALYTICS PARTIES BE LIABLE TO YOU OR
TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL
DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF
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DATA, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR
MALFUNCTION, (B) ANY SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (C) ANY AMOUNT, IN THE
AGGREGATE, IN EXCESS OF THE GREATER OF (I) ONE-HUNDRED ($100) DOLLARS OR (II) THE AMOUNTS
PAID AND/OR PAYABLE BY YOU TO BANANA ANALYTICS IN CONNECTION WITH THE SERVICES IN THE
TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM OR (D) ANY MATTER BEYOND OUR
REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL
OR CONSEQUENTIAL OR CERTAIN OTHER DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY
NOT APPLY TO YOU.
Indemnity. To the fullest extent allowed by applicable law, you agree to indemnify and hold the Banana
Analytics Parties harmless from and against any and all claims, liabilities, damages (actual and
consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any
claims relating to (a) your use of the Services (including any actions taken by a third party using your
account)and any Products, and (b) your violation of these Terms. In the event of such a claim, suit, or
action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for
your account (provided that failure to deliver such notice shall not eliminate or reduce your
indemnification obligations hereunder).
Assignment. You may not assign, delegate or transfer these Terms or your rights or obligations
hereunder, or your Services account, in any way (by operation of law or otherwise) without Banana
Analytics's prior written consent. We may transfer, assign, or delegate these Terms and our rights and
obligations without consent.
Choice of Law. These Terms are governed by and will be construed under the Federal Arbitration Act,
applicable federal law, and the laws of the State of Florida, without regard to the conflicts of laws
provisions thereof.
Arbitration Agreement. Please read the following ARBITRATION AGREEMENT carefully because it
requires you to arbitrate certain disputes and claims with Banana Analytics and limits the manner in
which you can seek relief from Banana Analytics. Both you and Banana Analytics acknowledge and agree
that for the purposes of any dispute arising out of or relating to the subject matter of these Terms,
Banana Analytics's officers, directors, employees and independent contractors (“Personnel”) are
third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will
have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the
third-party beneficiary hereof.
(a) Arbitration Rules; Applicability of Arbitration Agreement. The parties shall use their best efforts to
settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of
these Terms directly through good-faith negotiations, which shall be a precondition to either party
initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding
arbitration in Atlanta, Georgia. The arbitration will proceed in the English language, in accordance with
the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial
arbitrator with substantial experience in resolving intellectual property and commercial contract
disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with
such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of
competent jurisdiction.
(b) Costs of Arbitration. The Rules will govern payment of all arbitration fees. Banana Analytics will pay
all arbitration fees for claims less than seventy-five thousand ($75,000) dollars. Banana Analytics will not
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seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is
frivolous.
(c) Small Claims Court; Infringement. Either you or Banana Analytics may assert claims, if they qualify, in
small claims court in Orlando, Florida or any United States county where you live or work. Furthermore,
notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue
injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the
actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks,
trade secrets, patents or other intellectual property rights.
(d) Waiver of Jury Trial. YOU AND BANANA ANALYTICS WAIVE ANY CONSTITUTIONAL AND STATUTORY
RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and Banana Analytics
are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are
typically more limited, more efficient, and less costly than rules applicable in court and are subject to
very limited review by a court. In any litigation between you and Banana Analytics over whether to
vacate or enforce an arbitration award, YOU AND BANANA ANALYTICS WAIVE ALL RIGHTS TO A JURY
TRIAL, and elect instead to have the dispute be resolved by a judge.
(e) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS
ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON
A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR
LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this
waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Banana
Analytics is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth
in (g) below.
(f) Opt-out. You have the right to opt out of the provisions of this Section by sending written notice of
your decision to opt out to the following address: [duttbust@gmail.com] postmarked within thirty (30)
days of first accepting these Terms. You must include (i) your name and residence address, (ii) the email
address and/or telephone number associated with your account, and (iii) a clear statement that you
want to opt out of these Terms’ arbitration agreement.
(g) Exclusive Venue. If you send the opt-out notice in (f), and/or in any circumstances where the
foregoing arbitration agreement permits either you or Banana Analytics to litigate any dispute arising out
of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will
not apply to either party, and both you and Banana Analytics agree that any judicial proceeding (other
than small claims actions) will be brought in the state or federal courts located in, respectively, Orlando,
Florida, or the federal district in which that county falls.
(h) Severability. If the prohibition against class actions and other claims brought on behalf of third parties
contained above is found to be unenforceable, then all of the preceding language in this Arbitration
Agreement section will be null and void. This arbitration agreement will survive the termination of your
relationship with Banana Analytics.
Miscellaneous. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and
other governmental assessments associated with your activity in connection with the Services, provided
that the Banana Analytics may, in its sole discretion, do any of the foregoing on your behalf or for itself
as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a
waiver of any further rights hereunder. If any provision of these Terms are found to be unenforceable or
invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these
10
Terms shall otherwise remain in full force and effect and enforceable. You and Banana Analytics agree
that these Terms are the complete and exclusive statement of the mutual understanding between you
and Banana Analytics, and that these Terms supersede and cancel all previous written and oral
agreements, communications and other understandings relating to the subject matter of these Terms.
You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of
Banana Analytics, and you do not have any authority of any kind to bind Banana Analytics in any respect
whatsoever.
Except as expressly set forth in the sections above regarding the arbitration agreement, you and
Capuchin agree there are no third-party beneficiaries intended under these Terms.
11
Effective date: 5/28/2024
Welcome to Banana Analytics. Please read on to learn the rules and restrictions that govern your use of
our website(s), games, products, services and applications (the “Services”), including, without limitation,
any request to receive information about, or to purchase a license to any of the games made available
through our website(s) or application(s) (each, a “Product”). Your purchase of any Products will also be
governed by any other terms made available by us to you during the sales process. If you have any
questions, comments, or concerns regarding these terms or the Services, please contact us at:
Email:
Address:
These Terms of Use (the “Terms”) are a binding contract between you and Banana Analytics, LLC.
(“Banana Analytics”, “Capuchin,” “we” and “us”). Your use of the Services in any way means that you
agree to all of these Terms, and these Terms will remain in effect while you use the Services. These Terms
include the provisions in this document as well as those in the Privacy
Policy<http://capuchinvr.com/PrivacyPolicy.pdf?> and any other accompanying terms and conditions of
sale entered into between you and us for the sale of any Products. Your use of or participation in certain
Services may also be subject to additional policies, rules and/or conditions (“Additional Terms”), which
are incorporated herein by reference, and you understand and agree that by using or participating in
any such Services, you agree to also comply with these Additional Terms.
Please read these Terms carefully. They cover important information about Services provided to you and
any charges, taxes, and fees we bill you. These Terms include information about future changes to these
Terms, limitations of liability, a class action waiver and resolution of disputes by arbitration instead of
in court. PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES ARE SUBJECT TO THE
FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR
ACCESS THE SERVICES IN ANY MANNER. ALL BANANA ANALYTICS PRODUCTS REQUIRE ACCEPTANCE OF
THESE TERMS AND ACCESS TO THE SERVICES TO FUNCTION.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES
DESCRIBED IN THE ARBITRATION AGREEMENT SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN
YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT
TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
Will these Terms ever change?
We are constantly trying to improve our Products and Services, so these Terms may need to change
along with our Products and Services. We reserve the right to change the Terms at any time, but if we do,
we will place a notice on our site located at [INSERT], send you an email, and/or notify you by some
other means.
If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no
longer be able to use the Services and Products that require the Services may not function. If you use the
Services in any way after a change to the Terms is effective, that means you agree to all of the changes.
Except for changes by us as described here, no other amendment or modification of these Terms will be
effective unless in writing and signed by both you and us.
1
What about my privacy?
Banana Analytics takes the privacy of its users very seriously. For the current Banana Analytics Privacy
Policy, please click here<http://capuchinvr.com/PrivacyPolicy.pdf?>.
What are the basics of using Capuchin?
You may be required to sign up for an account, select a password and user name (“Capuchin User ID”),
and provide us with certain information or data, such as your contact information. You promise to
provide us with accurate, complete, and updated registration information about yourself. You may not
select as your Capuchin User ID a name that you do not have the right to use, or another person’s name
with the intent to impersonate that person. You may not transfer your account to anyone else without
our prior written permission.
You represent and warrant that you are an individual of legal age to form a binding contract (or if not,
you’ve received your parent’s or guardian’s permission to use the Services and have gotten your parent
or guardian to agree to these Terms on your behalf).
You will only use the Services and Products you obtain for your own internal, personal use, and not on
behalf of or for the benefit of any third party. You will comply with all laws that apply to you, your use of
the Services, and your actions and omissions that relate to the Services. If your use of the Services or
Products is prohibited by applicable laws, then you aren’t authorized to use the Services. We can’t and
won’t be responsible for your using the Services or Products in a way that breaks the law.
You will not share your Capuchin User ID, account or password with anyone, and you must protect the
security of your Capuchin User ID, account, password and any other access tools or credentials. You’re
responsible for any activity associated with your Capuchin User ID and account.
What is a Product License? Users may purchase a license to Products via online store fronts such as
Steam and the Oculus Store. Products will require full access to Banana Analytics Services to function
fully. Banana Analytics, makes no assurances as to uptime of Services.
What about messaging?
As part of the Services, you may receive communications through the Services, including messages that
Banana Analytics sends you (for example, via email or SMS). When signing up for the Services, you will
receive a welcome message and instructions on how to stop receiving messages. By signing up for the
Services and providing us with your wireless number, you confirm that you want Banana Analytics to
send you information that we think may be of interest to you, which may include Banana Analytics
using automated dialing technology to text you at the wireless number you provided, and you agree to
receive communications from Banana Analytics, and you represent and warrant that each person you
register for the Services or for whom you provide a wireless phone number has consented to receive
communications from Banana Analytics. You agree to indemnify and hold Banana Analytics harmless
from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses
(including attorneys’ fees) arising from or in any way related to your breach of the foregoing.
2
Are there restrictions in how I can use the Services?
You represent, warrant, and agree that you will not provide or contribute anything, including any
Content or User Submission (as those terms are defined below), to the Services, or otherwise use or
interact with the Services, in a manner that:
(a) infringes or violates the intellectual property rights or any other rights of anyone else
(including Banana Analytics);
(b) violates any law or regulation, including, without limitation, any applicable export control
laws, privacy laws or any other purpose not reasonably intended by Banana Analytics;
(c) is dangerous, harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene,
or otherwise objectionable;
(d) jeopardizes the security of your Capuchin User ID, account or anyone else’s (such as allowing
someone else to log in to the Services as you);
(e) attempts, in any manner, to obtain the password, account, or other security information
from any other user;
(f) violates the security of any computer network, or cracks any passwords or security
encryption codes;
(g) runs Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any
processes that run or are activated while you are not logged into the Services, or that
otherwise interfere with the proper working of the Services (including by placing an
unreasonable load on the Services’ infrastructure);
(h) “crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services or
Content (through use of manual or automated means);
(i) copies or stores any significant portion of the Content; or
(j) decompiles, reverse engineers, or otherwise attempts to obtain the source code or
underlying ideas or information of or relating to the Products or Services.
(k) Attempts to manipulate any promotional credits, chargeback policies or, any other economic
manipulation.
(l) Harasses any user, Banana Analytics employee, Game Developer or other individual.
A violation of any of the foregoing is grounds for termination of your right to use or access the Services.
What are my rights in the Services?
The materials displayed or performed or available on or through the Services, including, but not limited
to, text, graphics, data, articles, photos, images, illustrations, User Submissions (as defined below) and so
forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property
laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions
contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify,
translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, commercialize
or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the
owner of that Content or (ii) in a way that violates someone else’s (including Banana Analytics's) rights.
Subject to these Terms, we grant each user of the Services a worldwide, non-exclusive,
non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content
solely for purposes of using the Services. Use, reproduction, modification, distribution or storage of any
Content for any purpose other than using the Services is expressly prohibited without prior written
3
permission from us. You understand that Banana Analytics owns the Services. You won’t modify, publish,
transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section),
create derivative works based on, or otherwise exploit any of the Services. The Services may allow you to
copy or download certain Content, but please remember that even where these functionalities exist, all
the restrictions in this section still apply.
What about anything I contribute to the Services – do I have to grant any licenses to Banana Analytics
or to other users?
User Submissions
Anything you post, upload, share, store, or otherwise provide through the Services is your “User
Submission”. Some User Submissions may be viewable by other users. You are solely responsible for all
User Submissions you contribute to the Services. You represent that all User Submissions submitted by
you are accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations.
You agree that you will not post, upload, share, store, or otherwise provide through the Services any
User Submissions that: (i) infringe any third party's copyrights or other rights (e.g., trademark, privacy
rights, etc.); (ii) contain sexually explicit content or pornography; (iii) contain hateful, defamatory, or
discriminatory content or incite hatred against any individual or group; (iv) exploit minors; (v) depict
unlawful acts or extreme violence; (vi) depict animal cruelty or extreme violence towards animals; (vii)
promote fraudulent schemes, multi-level marketing (MLM) schemes, get rich quick schemes, online
gaming and gambling, cash gifting, work from home businesses, or any other dubious money-making
ventures; or (viii) that violate any law.
Licenses
In order to display your User Submissions on the Services, and to allow other users to enjoy them (where
applicable), you grant us certain rights in those User Submissions (see below for more information).
Please note that all of the following licenses are subject to our Privacy
Policy<http://capuchinvr.com/PrivacyPolicy.pdf/?> to the extent they relate to User Submissions that are
also your personally-identifiable information.
By submitting User Submissions through the Services, you hereby do and shall grant Banana Analytics a
worldwide, non-exclusive, perpetual, royalty-free, fully paid, sublicensable and transferable license to
use, edit, modify, truncate, aggregate, reproduce, distribute, prepare derivative works of, display,
perform, and otherwise fully exploit the User Submissions in connection with this site, the Services and
our (and our successors’ and assigns’) businesses, including without limitation for promoting and
redistributing part or all of this site or the Services (and derivative works thereof) in any media formats
and through any media channels (including, without limitation, third party websites and feeds), and
including after your termination of your account or the Services. You also hereby do and shall grant each
user of this site and/or the Services a non-exclusive, perpetual license to access your User Submissions
through this site and/or the Services, and to use, edit, modify, reproduce, distribute, prepare derivative
works of, display and perform such User Submissions, including after your termination of your account or
the Services. For clarity, the foregoing license grants to us and our users do not affect your other
ownership or license rights in your User Submissions, including the right to grant additional licenses to
your User Submissions, unless otherwise agreed in writing. You represent and warrant that you have all
rights to grant such licenses to us without infringement or violation of any third party rights, including
4
without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any
other intellectual property or proprietary rights.
Finally, you understand and agree that Banana Analytics, in performing the required technical steps to
provide the Services to our users (including you), may need to make changes to your User Submissions to
conform and adapt those User Submissions to the technical requirements of connection networks,
devices, services, or media, and the foregoing licenses include the rights to do so.
Our Unsolicited Ideas Policy.
We value an active and engaged community, however, please do not submit any creative ideas,
suggestions or materials to us (collectively, “Unsolicited Ideas”). However, if you feel you must send
them, please understand that we may freely use any Unsolicited Ideas you provide us. This policy is
intended to help curb any misunderstandings when a potential Service or Product adopts a similar
concept to something submitted as an Unsolicited Idea. What this means is that to the extent that you
have any ownership rights in an Unsolicited Idea, you grant us a worldwide, perpetual, irrevocable,
sublicensable, transferable, assignable, non-exclusive, and royalty-free right and license to use,
reproduce, modify, distribute, adapt, translate, create derivative works, perform, display, or otherwise
exploit any Unsolicited Ideas including any underlying IP rights associated with them.
What if I see something on the Services that infringes my copyright?
In accordance with the DMCA, we’ve adopted the following policy toward copyright infringement. We
reserve the right to (1) block access to or remove material that we believe in good faith to be
copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates,
content providers, members or users and (2) remove and discontinue service to repeat offenders.
(1) Procedure for Reporting Copyright Infringements. If you believe that material or content
residing on or accessible through the Services infringes your copyright (or the copyright of
someone whom you are authorized to act on behalf of), please send a notice of copyright
infringement containing the following information to Banana Analytics's Designated Agent to
Receive Notification of Claimed Infringement (our “Designated Agent,” whose contact details
are listed below):
(a) A physical or electronic signature of a person authorized to act on behalf of the
owner of the copyright that has been allegedly infringed;
(b) Identification of works or materials being infringed;
(c) Identification of the material that is claimed to be infringing including information
regarding the location of the infringing materials that the copyright owner seeks to
have removed, with sufficient detail so that Company is capable of finding and
verifying its existence;
(d) Contact information about the notifier including address, telephone number and, if
available, email address;
(e) A statement that the notifier has a good faith belief that the material identified in
(1)(c) is not authorized by the copyright owner, its agent, or the law; and
(f) A statement made under penalty of perjury that the information provided is
accurate and the notifying party is authorized to make the complaint on behalf of
the copyright owner.
5
(2) Once Proper Bona Fide Infringement Notification is Received by the Designated Agent. Upon
receipt of a proper notice of copyright infringement, we reserve the right to:
(a) remove or disable access to the infringing material;
(b) notify the content provider who is accused of infringement that we have removed or
disabled access to the applicable material; and
(c) terminate such content provider's access to the Services if he or she is a repeat
offender.
(3) Procedure to Supply a Counter-Notice to the Designated Agent. If the content provider
believes that the material that was removed (or to which access was disabled) is not
infringing, or the content provider believes that it has the right to post and use such material
from the copyright owner, the copyright owner's agent, or, pursuant to the law, the content
provider may send us a counter-notice containing the following information to the
Designated Agent:
(a) A physical or electronic signature of the content provider;
(b) Identification of the material that has been removed or to which access has
been disabled and the location at which the material appeared before it was
removed or disabled;
(c) A statement that the content provider has a good faith belief that the
material was removed or disabled as a result of mistake or misidentification
of the material; and
(d) Content provider's name, address, telephone number, and, if available, email
address, and a statement that such person or entity consents to the
jurisdiction of the Federal Court for the judicial district in which the content
provider’s address is located, or, if the content provider's address is located
outside the United States, for any judicial district in which Company is
located, and that such person or entity will accept service of process from
the person who provided notification of the alleged infringement.
If a counter-notice is received by the Designated Agent, Company may, in its discretion, send a copy of
the counter-notice to the original complaining party informing that person that Company may replace
the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action
seeking a court order against the content provider accused of committing infringement, the removed
material may be replaced or access to it restored in 10 to 14 business days or more after receipt of the
counter-notice, at Company's discretion.
Please contact Banana Analytics's Designated Agent at the following address:
Banana Analytics, LLC.
Attn: DMCA Designated Agent
[1155 W SR 434 STE 115 #176 LONGWOOD, FL 32750]
Who is responsible for what I see and do on the Services?
Any information or Content publicly posted or privately transmitted through the Services is the sole
responsibility of the person from whom such Content originated, and you access all such information
and Content at your own risk, and we aren’t liable for any errors or omissions in that information or
6
Content or for any damages or loss you might suffer in connection with it. We cannot control and have
no duty to take any action regarding how you may interpret and use the Content or what actions you
may take as a result of having been exposed to the Content, and you hereby release us from all liability
for you having acquired or not acquired Content through the Services. We can’t guarantee the identity of
any users with whom you interact in using the Services and are not responsible for which users gain
access to the Services.
You are responsible for all Content you contribute, in any manner, to the Services, and you represent and
warrant you have all rights necessary to do so, in the manner in which you contribute it.
The Services may contain links or connections to third-party websites or services that are not owned or
controlled by Banana Analytics. When you access third-party websites or use third-party services, you
accept that there are risks in doing so, and that Banana Analytics is not responsible for such risks.
Banana Analytics has no control over, and assumes no responsibility for, the content, accuracy, privacy
policies, or practices of or opinions expressed in any third-party websites or by any third party that you
interact with through the Services. In addition, Banana Analytics will not and cannot monitor, verify,
censor or edit the content of any third-party site or service. We encourage you to be aware when you
leave the Services and to read the terms and conditions and privacy policy of each third-party website or
service that you visit or utilize. By using the Services, you release and hold us harmless from any and all
liability arising from your use of any third-party website or service.
If there is a dispute between participants on this site or Services, or between users and any third party,
you agree that Banana Analytics is under no obligation to become involved. In the event that you have a
dispute with one or more other users, you release Banana Analytics, its directors, officers, employees,
agents, and successors from claims, demands, and damages of every kind or nature, known or unknown,
suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes
and/or our Services. You shall and hereby do waive California Civil Code Section 1542 or any similar law
of any jurisdiction, which says in substance: “A general release does not extend to claims that the
creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing
the release and that, if known by him or her, would have materially affected his or her settlement with
the debtor or released party.”
Will Banana Analytics ever change the Services?
We’re always trying to improve our Products and Services, so they may change over time. We may
suspend or discontinue any part of the Services, or we may introduce new features or impose limits on
certain features or restrict access to parts or all of the Services. We’ll try to give you notice when we
make a material change to the Services that would adversely affect you, but this isn’t always practical.
We reserve the right to remove any Content from the Services at any time, for any reason (including, but
not limited to, if someone alleges you contributed that Content in violation of these Terms), in our sole
discretion, and without notice.
Do the Services cost anything?
Banana Analytics Licenses to access the game services are offered at the prices set forth on the Steam
and Humble Widget storefront, and you may choose to purchase. The prices displayed are quoted in
local currency. Prices are subject to change at any time. Tax will be determined by the billing address of
the order and will automatically be added to the order. Banana Analytics is required by law to apply
7
various taxes to orders to certain states and countries. Any payment terms presented to you in the
process of purchasing Banana Analytics Licenses are deemed part of these Terms.
What if I want to stop using the Services?
You’re free to do that at any time by contacting us at [duttbust@gmail.com]; please refer to our Privacy
Policy<http://capuchinvr.com/PrivacyPolicy.pdf?>, as well as the licenses above, to understand how we
treat information you provide to us after you have stopped using our Services.
Banana Analytics is also free to terminate (or suspend access to) your use of the Services or your account
for any reason in our discretion, including your breach of these Terms. Banana Analytics has the sole
right to decide whether you are in violation of any of the restrictions set forth in these Terms.
If you have deleted your account by mistake, contact us immediately at [duttbust@gmail.com] – we will
try to help, but unfortunately, we can’t promise that we can recover or restore anything.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By
way of example, all of the following will survive termination: any obligation you have to pay us or
indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property
rights, and terms regarding disputes between us, including without limitation the arbitration agreement.
What else do I need to know?
Warranty Disclaimer. Banana Analytics and its licensors, suppliers, partners, parent, subsidiaries or
affiliated entities, and each of their respective officers, directors, members, employees, consultants,
contract employees, representatives and agents, and each of their respective successors and assigns
(Banana Analytics and all such parties together, the “Banana Analytics Parties”) make no representations
or warranties concerning the Services, including without limitation regarding any Content contained in or
accessed through the Services or any Products, and the Banana Analytics Parties will not be responsible
or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed
through the Services or any claims, actions, suits procedures, costs, expenses, damages or liabilities
arising out of use of, or in any way related to your participation in, the Services. The Banana Analytics
Parties make no representations or warranties regarding suggestions or recommendations of services or
products offered or purchased through or in connection with the Services including, without limitation,
any Products, including any Goods. Products and services purchased or offered (whether or not following
such recommendations and suggestions) through the Services are provided “AS-IS” and without any
warranty of any kind from the Banana Analytics Parties or others (unless, with respect to such others
only, provided expressly and unambiguously in writing by a designated third party for a specific product).
THE SERVICES AND CONTENT ARE PROVIDED BY BANANA ANALYTICS (AND ITS LICENSORS AND
SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED
OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY
LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO
CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT,
STRICT LIABILITY, OR OTHERWISE) SHALL ANY OF THE BANANA ANALYTICS PARTIES BE LIABLE TO YOU OR
TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL
DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF
8
DATA, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR
MALFUNCTION, (B) ANY SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (C) ANY AMOUNT, IN THE
AGGREGATE, IN EXCESS OF THE GREATER OF (I) ONE-HUNDRED ($100) DOLLARS OR (II) THE AMOUNTS
PAID AND/OR PAYABLE BY YOU TO BANANA ANALYTICS IN CONNECTION WITH THE SERVICES IN THE
TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM OR (D) ANY MATTER BEYOND OUR
REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL
OR CONSEQUENTIAL OR CERTAIN OTHER DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY
NOT APPLY TO YOU.
Indemnity. To the fullest extent allowed by applicable law, you agree to indemnify and hold the Banana
Analytics Parties harmless from and against any and all claims, liabilities, damages (actual and
consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any
claims relating to (a) your use of the Services (including any actions taken by a third party using your
account)and any Products, and (b) your violation of these Terms. In the event of such a claim, suit, or
action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for
your account (provided that failure to deliver such notice shall not eliminate or reduce your
indemnification obligations hereunder).
Assignment. You may not assign, delegate or transfer these Terms or your rights or obligations
hereunder, or your Services account, in any way (by operation of law or otherwise) without Banana
Analytics's prior written consent. We may transfer, assign, or delegate these Terms and our rights and
obligations without consent.
Choice of Law. These Terms are governed by and will be construed under the Federal Arbitration Act,
applicable federal law, and the laws of the State of Florida, without regard to the conflicts of laws
provisions thereof.
Arbitration Agreement. Please read the following ARBITRATION AGREEMENT carefully because it
requires you to arbitrate certain disputes and claims with Banana Analytics and limits the manner in
which you can seek relief from Banana Analytics. Both you and Banana Analytics acknowledge and agree
that for the purposes of any dispute arising out of or relating to the subject matter of these Terms,
Banana Analytics's officers, directors, employees and independent contractors (“Personnel”) are
third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will
have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the
third-party beneficiary hereof.
(a) Arbitration Rules; Applicability of Arbitration Agreement. The parties shall use their best efforts to
settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of
these Terms directly through good-faith negotiations, which shall be a precondition to either party
initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding
arbitration in Atlanta, Georgia. The arbitration will proceed in the English language, in accordance with
the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial
arbitrator with substantial experience in resolving intellectual property and commercial contract
disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with
such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of
competent jurisdiction.
(b) Costs of Arbitration. The Rules will govern payment of all arbitration fees. Banana Analytics will pay
all arbitration fees for claims less than seventy-five thousand ($75,000) dollars. Banana Analytics will not
9
seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is
frivolous.
(c) Small Claims Court; Infringement. Either you or Banana Analytics may assert claims, if they qualify, in
small claims court in Orlando, Florida or any United States county where you live or work. Furthermore,
notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue
injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the
actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks,
trade secrets, patents or other intellectual property rights.
(d) Waiver of Jury Trial. YOU AND BANANA ANALYTICS WAIVE ANY CONSTITUTIONAL AND STATUTORY
RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and Banana Analytics
are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are
typically more limited, more efficient, and less costly than rules applicable in court and are subject to
very limited review by a court. In any litigation between you and Banana Analytics over whether to
vacate or enforce an arbitration award, YOU AND BANANA ANALYTICS WAIVE ALL RIGHTS TO A JURY
TRIAL, and elect instead to have the dispute be resolved by a judge.
(e) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS
ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON
A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR
LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this
waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Banana
Analytics is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth
in (g) below.
(f) Opt-out. You have the right to opt out of the provisions of this Section by sending written notice of
your decision to opt out to the following address: [duttbust@gmail.com] postmarked within thirty (30)
days of first accepting these Terms. You must include (i) your name and residence address, (ii) the email
address and/or telephone number associated with your account, and (iii) a clear statement that you
want to opt out of these Terms’ arbitration agreement.
(g) Exclusive Venue. If you send the opt-out notice in (f), and/or in any circumstances where the
foregoing arbitration agreement permits either you or Banana Analytics to litigate any dispute arising out
of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will
not apply to either party, and both you and Banana Analytics agree that any judicial proceeding (other
than small claims actions) will be brought in the state or federal courts located in, respectively, Orlando,
Florida, or the federal district in which that county falls.
(h) Severability. If the prohibition against class actions and other claims brought on behalf of third parties
contained above is found to be unenforceable, then all of the preceding language in this Arbitration
Agreement section will be null and void. This arbitration agreement will survive the termination of your
relationship with Banana Analytics.
Miscellaneous. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and
other governmental assessments associated with your activity in connection with the Services, provided
that the Banana Analytics may, in its sole discretion, do any of the foregoing on your behalf or for itself
as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a
waiver of any further rights hereunder. If any provision of these Terms are found to be unenforceable or
invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these
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Terms shall otherwise remain in full force and effect and enforceable. You and Banana Analytics agree
that these Terms are the complete and exclusive statement of the mutual understanding between you
and Banana Analytics, and that these Terms supersede and cancel all previous written and oral
agreements, communications and other understandings relating to the subject matter of these Terms.
You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of
Banana Analytics, and you do not have any authority of any kind to bind Banana Analytics in any respect
whatsoever.
Except as expressly set forth in the sections above regarding the arbitration agreement, you and
Capuchin agree there are no third-party beneficiaries intended under these Terms.
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