TERMS OF SERVICE

LAST UPDATED FEB 1, 2016

Mentor Ventures Inc. (operating mobile application called Banana) is a Delaware corporation that: (i) creates, produces and distributes entertainment Content (as defined below); (ii) offers users the opportunity to participate in community media applications by submitting (e.g., "uploading") User Materials (as defined below) to the Banana mobile application(App)/or websites so that such User Materials can be distributed to the general public via the Banana mobile App Sites and the Banana App Services (as defined below); and (iii) offers users the ability to order, participate in, and download digital copies of still images (as defined below) via the Banana App.

These Terms of Service (this "Agreement") set forth certain terms and conditions of the legal contract between you and Banana (Mentor Ventures Inc) with respect to your use of Banana App, whether you are an unregistered visitor ("Visitor"), a free account holder ("Registered Member"), or a paying subscriber ("Paid Subscriber"). By using any Banana App products or services, you agree to be also bound by the Banana App Privacy Policy (click here). In addition, if you make any purchases on Banana App, you agree to be also bound by the Banana App Terms of Sale (click here).

1. CERTAIN DEFINITIONS:

As used herein, the following capitalized terms shall have the meanings set forth as follows:

"Content" means and includes, without limitation, photos, images, artwork, graphics, videos, audios, animations, text, editorials, comments, writings, personal information, music, liner notes, lyrics, and other elements and materials, in any media or format now known or hereinafter devised, whether physical, electronic, digital, analog or otherwise.

"Collaborative Content" means any customized Content that results from Users incorporating User Materials into Banana App Content (as defined below) as the functionality of Banana App Services may allow and enable from time to time. An example of Collaborative Content would be a video or image resulting from you inserting your own photo or video into a image template.

"Banana Content" means any and all Content (excluding User Materials) made available on Banana App, including Content owned or controlled by Banana and/or its corporate affiliates, as well as Content licensed or otherwise provided to Banana App by Licensors/Suppliers (as defined below).

"Banana Services" means any and all services, tools, Software (as defined in Section 23), applications, and functionalities as may be provided on Banana App from time to time.

"Licensors/Suppliers" means any and all third parties that make available to Banana App (pursuant to a license or otherwise) their proprietary Content, products or services for use, deployment, display, performance, and/or distribution via the Banana App. For the avoidance of doubt, the term "Licensors/Suppliers" includes third parties that place, display, or distribute their advertising, promotional, or sponsorship Content on the Banana App.

"Trademarks" means any and all marks, brands, logos, designs, character names, location names, slogans, catch words and phrases, business names, trade names, trade dress, packaging designs, label designs, webpage layouts, look and feel, and other indicia of source, origin or identification, owned or controlled by Banana, its corporate affiliates, and/or Licensors/Suppliers. Any and all Trademarks owned or controlled by Banana and/or its corporate affiliates, including, without limitation, the Banana App name and logos and characters, and the layout and design of the Banana App, are referred to hereinafter as "Banana App Trademarks"; and any and all Trademarks owned or controlled by Licensors/Suppliers, including, without limitation, those listed in the legal notices referenced in Section 2 below, are referred to hereinafter as "Licensors/Suppliers Trademarks."

"User Materials" means Content which users upload, submit, record, stream, distribute, or otherwise make available via the Banana App and/or through Banana App Services, but excluding any and all Banana App Content.

2. TERM/FEES:

This Agreement shall remain in full force and effect for as long as you use any of the Banana App Services, whether as a Visitor, Registered Member, or Paid Subscriber ("Term"). You may terminate your free account or subscription at any time, for any reason by following the instructions available by joining our Slack community to talk directly with our support team. Banana App may terminate your free account or subscription at any time, for any reason, effective immediately upon sending notice to you at the email address you provided during the account set-up process, or such other email address as you may subsequently provide to Banana App. If Banana App terminates your free account or subscription in the Service due to a breach of this Agreement, you shall not be entitled to the refund of any unused portion of subscription fees (if any). Even after the free account and/or subscription is terminated, this Agreement will remain in full force and effect, provided, however, that the User Materials submitted by you may no longer be accessible on Banana App once your account has been cancelled.

Notwithstanding the foregoing, you acknowledge that once your User Materials are integrated into a Banana App (e.g., photos, audio files, or videos integrated within an animation, promotion, video, or any Banana App production, regardless of media format), all of the licenses for such materials, as granted in Sections 8 and 9 of this Agreement, shall extend in perpetuity, meaning that Banana App will have the perpetual right throughout the world to exploit such Banana App production embodying your User Materials in any and all media now known or hereafter devised.

By using Banana App Services and/or by becoming a Paid Subscriber, you acknowledge that Banana App (Mentor Ventures Inc) reserves the right to charge a payment for Banana App Services and the right to terminate your account or subscription should you breach this Agreement or fail to pay for the Service, as required by this Agreement. Please keep in mind that Banana Apps subscription fees at registration (if any) may change from time to time.

3. ELIGIBILITY; LIMITED USER LICENSE FOR BANANA APP CONTENT:

Use of Banana App is void where prohibited by law. By signing up to become a Registered Member or Paid Subscriber on any of Banana App Services, you represent and warrant that: (i) all registration information submitted directly by you or via third-party sign-on service (e.g., Facebook Connect) is truthful and accurate and you agree to maintain the accuracy of such information; (ii) you are at least 13 years of age; and (iii) your use of Banana App Services does not violate any applicable law or regulation. Your account information and data may be deleted without warning if it is discovered that you have misrepresented your age or any other account and/or membership data. We may, in our sole discretion, refuse to offer Banana App Services to any user or entity that does not meet our eligibility criteria and we retain the right to change such eligibility criteria at any time.

Subject to your strict compliance with this Agreement and except as otherwise expressly permitted by this Agreement or by Banana App, Banana App grants you a limited, personal, non-exclusive, non-commercial, revocable, non-assignable, and non-transferable license to download, view, and/or play one copy of the Banana App Content (excluding source and code) for your personal, non-commercial use only, PROVIDED that: (i) you maintain all copyright and other proprietary notices contained in the Banana App Content or any copy you may make of Banana App Content; (ii) you do not use the Banana App Content in a manner that suggests an association with Banana App or any of its Licensors/Suppliers or any of their products, services or brands; (iii) you do not modify the Banana App Content; (iv) you do not allow or aid or abet any third party (whether or not for your benefit) (a) to copy or adapt the object code of any of Banana App Services or (b) reverse engineer, decompile, reverse assemble, modify, or attempt to discover any source code associated with any of the Banana App Services or other products or processes accessible through Mentor Ventures or Banana App Services; and (v) you do not insert any code or product to manipulate Banana Apps Content in any way that affects any user’s experience. You also agree that you will not: (a) use any robot, spider, rover, scraper, or any other data mining technology or automatic or manual process to monitor, cache, frame, mask, extract data from, copy, or distribute Banana App Content (except as may be a result of standard search engine or internet browser usage), nor will you (b) modify, frame, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate to any third party or on any third-party web site, or otherwise use the Banana App Content in any way for any public or commercial purpose except as expressly permitted by this Agreement or by Banana App.

4. USER CONDUCT:

Banana App is honored to provide services to you, but you need to do your part as well. All of Banana Apps Services are solely for your personal use, and corporate or commercial use is expressly prohibited. You are solely responsible for all User Materials posted or distributed by you or through your account with Banana App, including any email messages, and for all your interactions with other users. Your commitment to this agreement is extremely important.

We want all of our users to feel safe while using our services and enjoy our great content without worrying. In order to experience all of Banana Apps amazing services we ask that you act responsibly in a manner demonstrating the exercise of good judgment. For example and without limitation, you agree not to: (i) violate any applicable law or regulation; (ii) submit any materials that conflict with any of your representations and warranties set forth in Section 11 of this Agreement; (iii) infringe the rights of any third party, including without limitation, intellectual property, privacy, publicity, and/or contractual rights; (iv) use any content or information available on Banana App for any unauthorized purpose; (v) mislead users as to the features, functionality, origin, or capabilities of the Banana App or Services; (vi) interfere with or damge any of Banana App, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial of service attacks, packet or IP spoofing, forged routing of electronic mail address information, or similar methods or technology; (vii) use any of Banana App serivces to transmit, distribute, post, or submit any information concerning any other person or entity, including without limitation, photographs of others, personal contact information, or account numbers, or any defamatory materials of any kind, except where you have obtained express permission from such other person or entity in connection with any of the foregoing; (viii) use any of Banana App Services in connection with the distribution of unsolicited commercial e-mail ("Spam") or advertisements; (ix) "stalk" or harass any other user of Banana Apps Services; (x) harass, threaten, or verbally abuse (xi) collect or store any information about any other user other than in the course of the permitted use of the Banana App or Services; (xii) use any of the Banana App or Services for any commercial purpose whatsoever (including, without limitation, to research, advertise, market, promote, sell, or otherwise exploit any product or service); (xiii) sell or otherwise transfer any User information (e.g., user profiles) or other user’s User Materials); or (xiv) assist any third party in doing any of the foregoing. Banana App reserves the right, in its sole discretion and without prior notice to you, to limit the amount of Banana App Content and Collaborative Content you may send and the number of recipients to whom you may send such Banana Content or Collaborative Content through the Banana App. Banana may terminate your account and/or subscription if you violate the foregoing, and we may prohibit you from creating new accounts with Banana App. If Banana determines, in its sole discretion, that you are a repeat infringer of third-party intellectual property rights, Banana will terminate your account and/or subscription, as the case may be, and prohibit you from creating new accounts with Banana. You are solely responsible for any interactions with other users of the Banana App Services. Banana (Mentor Ventures Inc.) will not be responsible for any damage or harm resulting from your interactions with other users of the Banana App or Services we provide. Banana reserves the right, but shall have no obligation, to monitor interactions between you and other users of Banana App and take any action in good faith to restrict access to or the availability of any material that Banana or another user of the Banana App may consider to be obscene, lewd, defamatory, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.

Your Banana App account may NOT include any photographs that contain nudity, violence, or offensive subject matter, as determined in Banana Apps sole discretion. Information provided by other Banana App users may contain inaccurate, inappropriate and/or offensive material, and Banana App (Mentor Ventures Inc) assumes no responsibility or liability for this material.

5. PRIVACY:

Your privacy is extremely important to us. Banana App allows, among other things, users who are 13 or older to post personal content (e.g., photographs, videos and information about themselves and others for whom they have the authority or permission to post photos and information) for public review and comment, both in public forums and with private messaging. Accordingly, by submitting personal content on Banana App, you hereby waive any and all privacy expectations (including the privacy expectations of any other individual who appears in the submitted content) with respect to Banana App use of such content. If you do not wish to have personal content viewable by others, you should not use any Banana Services.

Please click here to view Banana App Privacy Policy for details concerning our data practices.

6. OWNERSHIP:

You retain all right, title and interest in and to the User Materials provided by you hereunder (including, without limitation, the copyrights therein and thereto), subject to the non-exclusive rights granted to Banana under this Agreement. You are free to grant similar rights to others during and after the Term of this Agreement. For the avoidance of doubt, when you submit User Materials on Banana App or through any of Bananas Services, you acknowledge that third parties may use your User Materials.

You acknowledge and agree that, as between Banana App and you, Banana App and/or its Licensors/Suppliers (as the case may be) are, and shall at all times remain, the sole and exclusive owner(s) of all right, title, and interest (including, without limitation, copyright) in and to the Banana App, all Trademarks, and all Banana Content, and that your right to use Banana App, and Services, Trademarks, and Banana Content, as set forth herein, shall be for personal, non-commercial use only and shall not in any way transfer or convey any ownership rights or other proprietary interests therein to you.

7. LICENSE FOR USER MATERIALS:

Unless expressly otherwise stated in this Agreement or otherwise agreed between you and Banana in a writing signed by both parties, you hereby grant to Banana App a worldwide, royalty-free, sublicensable, transferable, assignable, non-exclusive license to do the following things during the Term (and in perpetuity with respect to any Banana production as set forth in Section 3 of this Agreement): (i) to prepare and encode your User Materials, or any portion thereof for electronic, digital and/or other transmission, manipulation and exhibition in any format and by any means now known or hereafter devised; (ii) to display, copy, reproduce, create derivative works of, exhibit, publicly perform, broadcast, rebroadcast, transmit, retransmit, promote, distribute through any means (including electronic, analog and digital), and publish and/or otherwise exploit, in digital or physical form, any or all of your User Materials, including any portion thereof, and to include any such materials in compilations or other works, by any and all means in all media now known or hereinafter created, anywhere in the world, and for any purpose (for avoidance of doubt, the rights granted to Banana App hereunder include the rights to make your User Materials available on Banana App, third-party websites and electronic devices); (iii) to modify, adapt, change, or otherwise alter and create derivative works of the User Materials and use your User Materials as described in Section 6(2); and (iv) to license and/or sublicense to any third party any of the foregoing rights in your User Materials, or any part or element thereof, subject to the terms and conditions of this Agreement.

You hereby agree not to assert any right, title, or interest in any and all Trademarks and Banana App Content with which your User Materials may be combined or into which all or any portion of your User Materials may be incorporated. You acknowledge and agree that all right, title, and interest (including, without limitation, copyright, trademark and other intellectual property rights) in and to any and all Trademarks and Banana App Content shall remain the sole and exclusive property of Banana and/or Licensors/Suppliers (as the case may be). For the avoidance of doubt, with respect to any and all Collaborative Content, you acknowledge and agree that your rights therein and thereto shall be expressly limited to your User Materials contained in such Collaborative Content and shall in no event extend to any Banana App Content or any Trademarks contained or embodied therein.

8. LICENSE FOR USE OF NAME AND LIKENESS:

Unless expressly otherwise stated in this Agreement or otherwise agreed between you and Banana App in a writing signed by both parties, you hereby grant to Banana App a worldwide, royalty-free, sublicensable, transferable, assignable, non-exclusive license to use (a) your name(s), photograph(s), likeness(es), voice(s), performance(s), and biographical materials (to the extent contained or embodied in your User Materials) and (b) any other individual’s name(s), photograph(s), likeness(es), voice(s), performance(s), and biographical materials, where such other individual appears in your User Materials, in connection with the distribution, exploitation, promotion, marketing and advertising of your User Materials, as described hereunder, during the Term (and in perpetuity with respect to any Banana production as set forth in Section 2 of this Agreement).

You also agree not to assert any privacy, publicity, moral or similar rights held by you (and to the extent any other person(s) whose name(s), photograph(s), likeness(es), voice(s), performance(s), and/or biographical materials are embodied in your User Materials, you represent and warrant that you have obtained all necessary consents from such third parties consistent with the full scope of rights granted to Banana App pursuant to this Agreement, and you agree that such persons shall not assert any intellectual property, privacy, publicity, contractual, moral, or similar rights, or make any claims that your User Materials are objectionable or otherwise defamatory) under the laws of the United States and any other country in connection with the exploitation of such materials as described hereunder.

9. THIRD PARTY CONTENT & SITES:

Banana App and Services may contain Content of third parties, including Content provided by Licensors/Suppliers and users (collectively "Third Party Content"), as well as links to third party web sites ("Third Party Sites"). Banana App does not control Third Party Content and Third Party Sites and makes no representations or warranties about them. You understand that by using Banana App, you may be exposed to Third Party Content or Third Party Sites that are false, offensive, indecent or otherwise objectionable. Under no circumstances will Banana be liable in any way for any Third Party Content or Third Party Sites, including, without limitation, any errors or omissions in any Third Party Content or Third Party Sites or any loss or damage of any kind incurred as a result of the use of any Third Party Content or Third Party Sites. You agree to bear all risks associated with using or relying upon Third Party Content or Third Party Sites, including without limitation, profiles of other users.

YOUR CORRESPONDENCE AND BUSINESS DEALINGS WITH ANY THIRD PARTY ON OR THROUGH BANANA APP INCLUDING, WITHOUT LIMITATION, THE PAYMENT AND DELIVERY OF PRODUCTS AND SERVICES, AND ANY TERMS, CONDITIONS, WARRANTIES AND REPRESENTATIONS ASSOCIATED WITH ANY SUCH DEALINGS, ARE SOLELY BETWEEN YOU AND THE THIRD PARTY. YOU AGREE TO REVIEW AND EVALUATE ALL POLICIES, RULES, TERMS AND REGULATIONS, INCLUDING THE PRIVACY POLICIES AND TERMS OF USE OF EACH AND ANY THIRD PARTY SITE THAT YOU VISIT, AND BEAR ALL RISKS ASSOCIATED WITH, THIRD PARTY CONTENT AND THIRD PARTY SITES.

10. USERNAME AND PASSWORD:

Any eligible user who creates a Banana account will select a username and password when completing the registration process or create an account using third-party single sign-on services (e.g. Facebook Connect). You are solely and fully responsible for maintaining the confidentiality of your username and password, or third-party credentials, for accessing Banana App and will be solely and fully responsible for all activities that occur under that account to access Banana App. You agree to (a) immediately notify Banana of any unauthorized use of your username and password or any other breach of security and (b) log off from your account at the end of each session. Banana cannot and will not be liable for any loss or damage arising from your failure to comply with this Section 10.

11. REPRESENTATIONS AND WARRANTIES:

You represent and warrant that:

1. you have the full right and power to enter into and perform this Agreement and to grant Banana App and Licensors/Suppliers all rights to use your User Materials (including individuals’ names, likenesses, voices, and other elements of identity embodied therein) as contemplated in this Agreement, including, without limitation, the license grants in Sections 8 and 9 of this Agreement;

2. you exclusively own and/or control all right, title and interest (including, without limitation, copyright) in and to your User Materials, and have secured all necessary third-party consents, rights, licenses and permissions, if any, required in order for you to enter into and perform this Agreement and to grant JibJab and Licensors/Suppliers all rights to use your User Materials (including individuals names, likenesses, voices, and other elements of identity embodied therein) as contemplated in this Agreement (including, without limitation, consents and permissions from owners of any elements that are used or otherwise incorporated into your User Materials);

3. your User Materials (and Banana Apps use thereof as contemplated under this Agreement) do not and will not infringe on any rights of any third party, including any trademark, copyright, patent, trade secret, right of privacy or publicity, or moral rights of any third party;

4. all information that you have provided or will provide to Banana is true and complete;

5. your User Materials do not and will not violate any law, statute, ordinance or regulation;

6. your User Materials do not and will not: (i) be defamatory, libelous, slanderous, or threatening; (ii) contain sexually explicit content that is pornographic, obscene, harmful to minors, violations of child pornography or child sexual exploitation laws; (iii) denigrate any ethnic, racial, sexual or religious group by stereotypical depiction or otherwise; (iv) exploit images or the likeness of any individual other than yourself (except where your have obtained express permission from such other individual(s) for such exploitation); (v) encourage or otherwise depict glamorized drug use; (vi) make use of offensive language or images; (vii) promote physical harm of any kind against any individual or group or characterize violence as acceptable, glamorous or desirable; (viii) contain your or any other individual’s personal contact information; (ix) promote an illegal or unauthorized copy of another person’s copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated music or links to pirated music files; (x) provide instructional information about illegal activities such as making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses; (xi) solicit passwords or personal identifying information for commercial or unlawful purposes from other users; and/or (xii) engage in any commercial activities whatsoever and/or sales without Banana’s prior written consent; and

7. your User Materials do not and will not contain any viruses or other programming routines that may detrimentally interfere with computer systems or data, whether those of Banana App or any third party.

12. INDEMNITY:

You agree to defend, indemnify, reimburse, and hold Banana App and its parent, subsidiary and affiliated entities, its Licensors/Suppliers, and its and their respective members, managers, officers, directors, representatives, employees, agents, successors, designees, licensees, sublicensees, and assigns harmless from and against any and all liability, loss, damages, judgments, costs, and expenses (including reasonable attorney’s fees, costs and expenses and court costs) arising out of or related to: (i) your use of Banana App, Banana Services; (ii) Banana’s use of your User Materials; (iii) any breach or alleged breach of your representations and warranties and/or any breach, alleged breach, or violation of the notices, terms, and conditions hereof; and (iv) your violation or alleged or threatened violation of any laws, rules or regulations, or any rights of a third party, including, without limitation, any trademark, copyright, patent, trade secret, defamation, right of privacy or publicity, or moral rights of any third party, arising from the submission and/or use of your User Materials as contemplated hereunder.

13. NO LIABILITY FOR THIRD PARTY USE:

BANANA DISCLAIMS ALL RESPONSIBILITY AND LIABILITY FOR ANY THIRD-PARTY USE OF THE USER MATERIALS MADE AVAILABLE ON BANANA APP BY YOU PURSUANT TO THE TERMS OF THIS AGREEMENT. YOU SHALL BE SOLELY RESPONSIBLE FOR SEEKING RELIEF FOR ANY UNAUTHORIZED USE OF YOUR USER MATERIALS BY A THIRD-PARTY, AND NOT FROM BANANA OR ANY OF ITS LICENSORS/SUPPLIERS. THIS MEANS, AMONG OTHER THINGS, THAT IF ANOTHER PERSON OBTAINS YOUR USER MATERIALS FROM BANANA (WHETHER OR NOT WITH BANANA’S PERMISSION), AND USES THOSE MATERIALS IN A WAY NOT AUTHORIZED PURSUANT TO THE LICENSES GRANTED HEREUNDER, YOU WILL SEEK REDRESS FROM THAT OTHER PERSON AND NOT FROM BANANA OR ANY OF ITS LICENSORS/SUPPLIERS, AND THAT YOU WILL NOT HOLD BANANA OR ANY OF ITS LICENSORS/SUPPLIERS RESPONSIBLE OR LIABLE FOR SUCH UNAUTHORIZED USE.

14. EXCLUSION OF DAMAGES:

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT (INCLUDING NEGLIGENCE) SHALL BANANA, ITS OFFICERS, DIRECTORS, MEMBERS, PARENTS, AFFILIATES, SUBSIDIARIES, LICENSEES, ASSIGNS, SUCCESSORS, AGENTS, REPRESENTATIVES, EMPLOYEES, OR LICENSORS/SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING OUT OF AN ACTION UNDER CONTRACT, NEGLIGENCE, OR ANY OTHER THEORY AND DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS, INCIDENTIAL DAMAGES, CONSEQUENTIAL DAMAGES, PUNITIVE DAMAGES, EXEMPLARY DAMAGES), WHETHER OR NOT BANANA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF BANANA APP, BANANA SERVICES. IN NO EVENT SHALL BANANA’S TOTAL LIABILITY TO YOU UNDER THIS AGREEMENT FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY EXCEED $200. YOU EXPRESSLY WAIVE ANY AND ALL RIGHT TO SEEK OR OBTAIN EQUITABLE OR INJUNCTIVE RELIEF RELATING IN ANY WAY TO THIS AGREEMENT, THE SERVICES AND/OR ANY USER MATERIALS (INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO ANY USE OF YOUR USER MATERIALS BY BANANA). THE PARTIES ACKNOWLEDGE AND AGREE THAT BANANA HAS ENTERED INTO THIS AGREEMENT IN RELIANCE ON THE LIMITATIONS OF LIABILITY SPECIFIED HEREIN, WHICH ALLOCATE THE RISK BETWEEN YOU AND BANANA, AND FORM THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.

15. GOVERNING LAW, VENUE, AND JURISDICTION:

You agree that the laws of the State of Delaware, without regard to principles of conflict of laws, will govern your use and purchase of products and services and these Terms of Service, and any dispute of any sort that might arise between you and Banana or any of our affiliates. With respect to any disputes or claims not subject to arbitration (as set forth below), you agree not to commence or prosecute any action in connection therewith other than in the state and federal courts located in the Bothell-Snohomish County, Washington, and BOTH YOU AND BANANA IRREVOCABLY consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in the state and federal courts located in the Bothell-Snohomish County, Washington.

16. ARBITRATION

YOU AND BANANA AGREE THAT THE SOLE AND EXCLUSIVE FORUM AND REMEDY FOR ANY AND ALL DISPUTES AND CLAIMS RELATING IN ANY WAY TO OR ARISING OUT OF THESE TERMS OF SERVICE OR THE SALE OF ANY PRODUCT OR SERVICE BY BANANA SHALL BE FINAL AND BINDING ARBITRATION, except that, to the extent that either of us has in any manner infringed upon or violated or threatened to infringe upon or violate the other party's patent, copyright, trademark or trade secret rights, such other party may seek injunctive or other appropriate relief.

Arbitration under this Agreement shall be conducted by the American Arbitration Association (the "AAA") under its Commercial Arbitration Rules and, in the case of consumer disputes, the AAA's Supplementary Procedures for Consumer Related Disputes ( the "AAA Consumer Rules") (collectively the "AAA Rules"). The location of the arbitration and the allocation of costs and fees for such arbitration shall be determined in accordance with such AAA Rules and shall be subject to the limitations provided for in the AAA Consumer Rules (for consumer disputes). If such costs are determined to be excessive in a consumer dispute, Banana will be responsible for paying all arbitration fees and arbitrator compensation in excess of what is deemed reasonable. The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction.

To the fullest extent permitted by applicable law, NO ARBITRATION OR CLAIM UNDER THESE TERMS OF SALE SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SITE OR ANY BANANA PRODUCTS OR SERVICES, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. In no event shall any claim, action, or proceeding by you related in any way to any products or services purchased by you on or through Banana App be instituted more than one (1) year after the cause of action arose.