END USER LICENSE AGREEMENT AND TERMS OF SERVICE
Effective Date: November 10, 2016
Last Updated Date: November 10, 2016
This End User License Agreement and Terms of Service (this “EULA”) is a binding contract between you, an individual user (“you”) and AltspaceVR, Inc. (“AVR,” “we,” “us” or “our”) governing your use of any websites, mobile applications or other software (including without limitation, any software development kits) and/or other online services or properties owned or controlled by AVR (collectively, the “Service”). BY INSTALLING OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, THEN YOU MAY NOT USE THE SERVICE.
Material Terms and Notices: As provided in greater detail in this EULA (and without limiting the express language of this EULA), you acknowledge the following:
- the Service is licensed to you, not sold to you, and you may use the Service only as set forth in this EULA;
- the use of the Service may be subject to separate third party terms of service and fees, including, without limitation, such terms of service and fees imposed by your mobile network operator (the “Carrier”), including fees charged for data usage and overage, which are your sole responsibility;
- the Service is provided “as is” without warranties of any kind and AVR’s liability to you is limited; and
- we will resolve disputes arising under this EULA through binding arbitration. By accepting this EULA, as provided in greater detail in Section 10 of this EULA, you and AVR are each waiving the right to a trial by jury or to participate in a class action.
- General Terms and Conditions.
- Consideration. AVR currently provides free access to the Service to each User (defined in Section 2.a below), for each User’s personal enjoyment and/or self-expression. In return for this free access, you acknowledge and agree that AVR may generate revenues, increase goodwill, or otherwise increase the value of AVR from your use of the Service or AVR’s Use (defined in Section 5.c) of your User Content (defined in Section 5.a), and you will have no right to share in any such revenue, goodwill, or value. Notwithstanding the foregoing, AVR in its sole discretion may choose to implement a fee-based model for access to and/or use of certain aspects of the Service. If AVR conditions access on the payment of a fee, then we will notify you in advance of any such fees and obtain your express consent prior to charging you for access.
- Changes to this EULA. You understand and agree that AVR may change this EULA at any time without prior notice. AVR will endeavor to provide you with prior notice of any material changes. You may read a current, effective copy of this EULA at any time by selecting the appropriate link on the Service. The revised EULA will become effective at the time of posting and your use of the Service after such time will constitute your acceptance of such revised EULA. If any change to this EULA is not acceptable to you, then your sole remedy is to stop accessing, browsing and otherwise using the Service. The terms of this EULA will govern any updates AVR provides to you that replace and/or supplement any portion of the Service, unless the upgrade is accompanied by a separate license or revised EULA, in which case the terms of that license or revised EULA will govern. Notwithstanding the preceding sentences of this Section 1.b, no revisions to this EULA will apply to any dispute between you and AVR that arose prior to the effective date of such revision.
- Jurisdictional Issues. The Service is controlled and operated by AVR from its offices in the State of California. AVR makes no representation that materials on the Service are appropriate, lawful or available for use in any locations other than the United States of America. Those who choose to access or use the Service from locations outside the United States of America do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. Access to the Service from jurisdictions where the contents or practices of the Service are illegal, unauthorized or penalized is strictly prohibited.
- Eligibility. THE SERVICE IS NOT FOR PERSONS UNDER THE AGE OF 13 OR FOR ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE SERVICE BY AVR. IF YOU ARE UNDER 13 YEARS OF AGE, THEN YOU MUST NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER. Furthermore, by using the Service, you affirm that either you are at least 18 years of age or have been authorized to use the Service by your parent or guardian who is at least 18 years of age. If any person accepts this EULA on your behalf, then you hereby represent and warrant that such person is your duly authorized agent (each, an “Agent”) and you are bound by the terms and conditions set forth in this EULA. Further, you hereby represent and warrant that if you or your Agent accept this EULA on behalf of a “loan out” or other company through or for which you conduct any business, then (i) such entity will be bound by the terms and conditions in this EULA and all references to “you” in the EULA will refer to such entity (except for those in these subsections (i) and (ii) of this Section 1.e); and (ii) such entity will cause you to, and you will, perform all obligations under and comply with this EULA.
- Additional Terms. AVR may include additional terms on the Service that apply to your participation in any special initiatives, events or other offerings. In the event of any conflict or inconsistency between the EULA and any such additional terms, this EULA will control solely to the extent of the conflict or inconsistency.
- The Service.
- Description. The Service provides you with access to a variety of virtual environments where you can attend events, socialize with other Users, play fun games and view interesting photographs, audiovisual works and/or other content. The Service also allows you to upload, transmit or post (collectively, “Post”) User Content to the Service. Further, the Service provides you with the opportunity to collaborate with other Users on various projects to develop virtual reality content (each, a “Development Project”). Lastly, we may create live streams depicting your use of the Service (“Live Streams”) and make them available on External Sites (defined in Section 7 below), and we may also record events that take place in meeting or event spaces on the Service that are accessible to all Users (defined below) (“Recordings”), which may include User Content. As used in this EULA, the term “User” means any person who accesses and/or uses the Service.
- Messages. You may send messages to others via email, SMS or other messaging service on the Service (collectively, “Messages”). You agree that (i) you will only send Messages through the Service to others who have given you their prior express consent to receive such Messages; (ii) you, and only you, take all actions necessary to initiate and send all Messages that you transmit to others through the Service, and AVR is merely a technology provider that plays no active role whatsoever in initiating and/or sending such Messages; and (iii) you will indemnify and hold AVR harmless from any and all claims and losses arising out of your sending Messages to others through the Service to the fullest extent permitted by law. Without limiting the foregoing, you are solely responsible for all fees and charges associated with any Messages you send through the Service, including, without limitation, any fees or charges imposed by your Carrier.
- Mobile Services. The Service will be accessible via a mobile phone, tablet, or other wireless device (collectively, “Mobile Services”). Your Carrier’s normal data and other rates and fees will apply to your use of the Mobile Services. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your Carrier. Therefore, you are solely responsible for checking with your Carrier to determine if the Mobile Services are available for your mobile device(s), what restrictions, if any, may be applicable to your use of the Mobile Services, and how much they will cost you. Nevertheless, all use of Mobile Services must be in accordance with this EULA.
- Log-In Credentials. In order to enjoy the full benefits of the Service you must register an account with us (an “Account”).
- Account Security. You are responsible for the security of your Account, and are fully responsible for all activities that occur through the use of your credentials. You agree to notify AVR immediately at firstname.lastname@example.org if you suspect or know of any unauthorized use of your log-in credentials or any other breach of security with respect to your Account. AVR will not be liable for any loss or damage arising from unauthorized use of your credentials prior to you notifying AVR of such unauthorized use or loss of your credentials. Separate log-in credentials may be required to access External Sites.
- Accuracy of Information. When creating an Account, you will provide true, accurate, current, and complete information. You will update the information about yourself promptly, and as necessary, to keep it current and accurate. We reserve the right to disallow, cancel, remove, or reassign certain usernames and permalinks in appropriate circumstances, as determined by us in our sole discretion, and may, with or without prior notice, suspend or terminate your Account if activities occur on your Account which, in our sole discretion, would or might constitute a violation of this EULA, cause damage to or impair the Service, infringe or violate any third party rights, or violate any laws or regulations. If messages sent to the e-mail address you provide are returned as undeliverable, then AVR may terminate your Account immediately without notice to you and without any liability to you or any third party.
- Intellectual Property Rights
- License. Subject to your complete and ongoing compliance with this EULA, AVR hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, royalty-free and worldwide right and license to access and use the Service solely for your personal, non-commercial use and solely in strict compliance with the provisions of this EULA. For clarity, the preceding license applies to your use of any AVR software development kit.
- Content. Except for User Content, the content that AVR provides to Users on or through the Service, including, without limitation, any text, audiovisual works (including Live Streams and Recordings), sound recordings, graphics, photos, software, and interactive features, is protected by copyright or other intellectual property rights and owned by AVR or its third party licensors (collectively, the “AVR Content”). Moreover, as between AVR and you, AVR solely owns all design rights, database and compilation rights and other intellectual property rights in and to the Service, in each case whether registered or unregistered, and any related goodwill.
- Marks. The AVR trademarks, service marks, and logos (collectively, the “AVR Trademarks”) used and displayed on the Service are AVR’s registered and/or unregistered trademarks or service marks. Other product and service names located on the Service may be trademarks or service marks owned by third parties (collectively with the AVR Trademarks, the “Trademarks”). Except as otherwise permitted by law, you may not use the Trademarks to disparage AVR or the applicable third party, AVR’s or a third party’s products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks. You may not use any Trademarks as part of a link to or from any Service without AVR’s prior express written consent. All goodwill generated from the use of any AVR Trademark will inure solely to AVR’s benefit.
- Restrictions. AVR hereby reserves all rights not expressly granted to you in this Section 4. Accordingly, nothing in this EULA or on the Service will be construed as granting to you, by implication, estoppel, or otherwise, any additional license rights in and to the Service or any AVR Content or Trademarks located or displayed therein.
- User Content.
- Definition. “User Content” means any content that Users Post on or to the Service including, without limitation, any text, photographs, sound recordings (and the musical works embodied therein), other audiovisual content, Personal Characteristics (defined below) and any other works subject to protection under the laws of the United States or any other jurisdiction, including, but not limited to, patent, trademark, trade secret, and/or copyright laws. “Personal Characteristics” means your likeness, name, voice, image, persona and any other personal attributes that you provide or make available to AVR in videos, audiovisual works, sound recordings and/or photographs. For the avoidance of doubt, User Content excludes any and all AVR Content and Feedback (defined in Section 8 below).
- Intellectual Property Rights. SUBJECT TO ANY THIRD PARTY RIGHTS IN ANY PREEXISTING CONTENT INCLUDED WITHIN YOUR USER CONTENT, YOU RETAIN OWNERSHIP OF ANY RIGHTS YOU MAY HAVE IN YOUR USER CONTENT AND POSTING YOUR USER CONTENT TO THE SERVICE DOES NOT TRANSFER OWNERSHIP OF SUCH RIGHTS.
- Licenses to User Content.
- License to AVR. You hereby grant AVR an unrestricted, assignable, sublicensable, revocable, royalty-free license throughout the universe to reproduce (including in timed relation to visual images), distribute, publicly display, communicate to the public, publicly perform (including by means of digital audio transmissions and on a through-to-the-audience basis), make available, create derivative works from, retransmit from External Sites, and otherwise exploit and use (collectively, “Use”) all User Content you Post on or to the Service by any means and through any media and formats now known or hereafter developed (and, for clarity and without limiting the preceding terms in this Section 5.c.i, with respect to Personal Recordings, as embodied in Live Streams and/or Recordings), for the purposes of (i) advertising, marketing, and promoting AVR and the Service; (ii) displaying and sharing your User Content to other Users of the Service; and (iii) providing the Service as authorized by this EULA and conducting AVR’s business. You must not Post any User Content on or through the Service or transmit to AVR any User Content that you consider to be confidential or proprietary. Any User Content Posted by you on or to the Service or transmitted to AVR will be considered non-confidential and non-proprietary, and treated as such by AVR, and may be used by AVR in accordance with this EULA without notice to you and without any liability to AVR. For the avoidance of doubt, and by way of example and not limitation, the rights granted in the preceding sentences of this Section include, but are not limited to, the right to reproduce sound recordings (and make mechanical reproductions of the musical works embodied in such sound recordings), and publicly perform and communicate to the public sound recordings (and the musical works embodied therein), all on a royalty-free basis. This means that you are granting AVR the right to Use your User Content without the obligation to pay royalties to any third party, including, but not limited to, a sound recording copyright owner (e.g., a record label), a musical work copyright owner (e.g., a music publisher), a performing rights organization (e.g., ASCAP, BMI, SESAC, etc.) (a “PRO”), a sound recording PRO (e.g., SoundExchange), any unions or guilds, and engineers, producers, or other royalty participants involved in the creation of any User Content.
- License to Other Users. If you Post any User Content on the Service in connection with a Development Project (“Development Project User Content”), then you hereby grant all other Users a non-exclusive, perpetual (for the duration of any copyrights), irrevocable, transferable, sublicenseable, worldwide and royalty-free license to use, reproduce, create derivative works of, publicly display and perform, distribute, adapt, modify, combine with other materials or content and otherwise exploit your Development Project User Content to contribute to Development Projects on the Service or other projects outside of the Service. For the avoidance of doubt, (A) you retain ownership rights to your Development Project User Content; and (B) if you remove or delete any Development Project User Content from the Service, then the license granted in this Section will survive in perpetuity with respect to any work that incorporates any Development Project User Content.
- You Must Have Rights to the Content You Post. You must not Post any User Content to the Service if you are not the copyright owner of or are not fully authorized to grant rights in all of the elements of that User Content. In addition, if you only own the rights in and to a sound recording, but not to the underlying musical works embodied in such sound recording, then you must not Post such sound recording to the Service until you have all necessary rights, authorizations, and permissions with respect to such embedded musical works that grant you sufficient rights to grant the licenses to AVR under this EULA. You represent and warrant that: (i) you own the User Content Posted by you on or through the Service or otherwise have the right to grant the license set forth in this EULA; (ii) the Posting and Use of your User Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any person, including, but not limited to, the rights of any person visible in any of your User Content; (iii) the Posting of your User Content on the Service will not require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties; and (iv) the Posting of your User Content on the Service does not result in a breach of contract between you and a third party. You agree to pay all monies owing to any person as a result of Posting your User Content on the Service. AVR may require you to provide sufficient evidence of having all necessary rights, licenses, authorizations, permissions, and clearances for any of your User Content that you Post on or to the Service, and if you fail to provide such evidence within a reasonable period of time (as determined by AVR in its sole discretion), then AVR may remove some or all of your User Content from the Service and/or terminate your Account, without any liability to you. You are solely responsible for keeping copies of such evidence.
- Specific Rules for Musical Works. If you are a composer or author of a musical work and are affiliated with a PRO, then you must notify your PRO of the royalty-free license you grant through this EULA to us. You are solely responsible for ensuring your compliance with the relevant PRO’s reporting obligations. If you have assigned your rights to a music publisher, then you must obtain the consent of such music publisher to grant the royalty-free license(s) set forth in this EULA or have such music publisher enter into this EULA with us. Just because you authored a musical work (e.g., wrote a song) does not mean you have the right to grant us the licenses in this EULA.
- Through-To-The-Audience Rights. All of the rights you grant in this EULA are provided on a through-to-the-audience basis, meaning the owners or operators of External Sites will not have any separate liability to you or any other third party for User Content Posted or Used on such External Sites via the Service.
- Waiver of Rights to User Content. To the fullest extent permitted by law, by Posting User Content to the Service, you hereby (i) waive all rights to prior inspection or approval of any marketing or promotional materials related to such User Content; (ii) waive all rights of privacy, publicity, or any other rights of a similar nature in connection with your User Content, or any portion thereof (including, without limitation, with respect to any avatar you may use on the Service and any Live Streams and/or Recordings which may include your Personal Characteristics); and (iii) release AVR and its affiliates (collectively, the “AVR Parties”) from all claims in connection with any use of your Personal Characteristics by the AVR Parties. To the extent any moral rights are not transferable or assignable, you further hereby waive and agree never to assert any and all moral rights, or to support, maintain, or permit any action based on any moral rights that you may have in or with respect to any User Content you Post on or through the Service.
- No Liability. For the avoidance of doubt, AVR will not be liable for any unauthorized use of User Content by any User.
- Objectionable Content. You are not permitted to and agree not to Post any User Content to the Service that is or could be interpreted to be (i) abusive, bullying, defamatory, harassing, harmful, hateful, inaccurate, infringing, libelous, objectionable, obscene, offensive, pornographic, shocking, threatening, unlawful, violent, or vulgar; or (ii) promoting any product, good or service, or bigotry, discrimination, hatred, racism, or inciting violence, in each of clauses (i) and (ii) of this Section, as AVR may determine in its sole discretion (collectively, “Objectionable Content”). The Posting of any Objectionable Content may subject you to third party claims and none of the rights granted to you in this EULA may be raised as a defense against any third party claims arising from your Posting of Objectionable Content. If you encounter any Objectionable Content on the Service, then please inform us through the functionality offered on the Service. You acknowledge and agree that AVR provides you the right to report Objectionable Content as a courtesy, and AVR has no obligation to remove or take any other action with respect to any Objectionable Content on the Service that you report to us. AVR may terminate, suspend, warn or take other appropriate actions against Users for Posting Objectionable Content to the Service, including, but not limited to, the removal of all User Content Posted to the Service by a User.
- Restrictions on Use of the Service.
- Without limiting any other terms of this EULA, when using the Service, you agree not to (and not to attempt to):
- use any device, software or routine to interfere or attempt to interfere with the proper working of the Service, or any activity conducted on the Service;
- decipher, decompile, disassemble, or reverse engineer any of the software or source code comprising or making up the Service;
- delete or alter any material AVR or any other person or entity Posts on the Service;
- frame or link to any of the materials or information available on the Service, or live stream any such content;
- use or exploit any Trademarks, AVR Content, or User Content in any manner that is not expressly authorized by this EULA;
- access, tamper with, or use non-public areas of the Service, AVR’s (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of AVR’s providers;
- provide any false personal information to AVR;
- create a false identity or impersonate another person or entity in any way;
- create a new Account with AVR, without AVR’s express written consent, if AVR has previously disabled an Account of yours;
- solicit personal information (including, but not limited to, photographs) from other Users of the Service;
- restrict, discourage, or inhibit any person from using the Service, disclose personal information about any third party without the consent of that person;
- use the Service to (A) send Messages to others who have requested that you not send them Messages; or (B) send Messages to others who have not given you their express consent to receive such Messages;
- use the Service, without AVR’s prior express written consent, for any commercial or unauthorized purpose, including communicating or facilitating any commercial advertisement or solicitation or spamming;
- gain unauthorized access to the Service, to other Users’ Accounts, names, or personally identifiable information, or to other computers or websites connected or linked to the Service;
- Post any virus, worm, spyware, or any other computer code, file, or program that may or is intended to disable, overburden, impair, damage, or hijack the operation of any hardware, software, or telecommunications equipment, or any other aspect of the Service or communications equipment and computers connected to the Service;
- access the Service from a device other than your own;
- violate any federal, state, or local laws or regulations or the terms of this EULA; or
- assist or permit any person in engaging in any of the activities described above.
- Without limiting any other terms of this EULA, when using the Service, you agree not to (and not to attempt to):
- External Sites. The Service may contain links to or the ability to share information with other websites or other online properties that are not owned or controlled by AVR (collectively, “External Sites”). AVR does not endorse any content on such External Sites. The content of such External Sites is not developed or provided by AVR. You should contact the site administrator or Webmaster for those External Sites if you have any concerns regarding such content located on such External Sites. AVR is not responsible for the content of any External Sites and does not make any representations regarding the content or accuracy of any materials on such External Sites. You should take precautions when downloading files from all websites to protect your devices from viruses and other destructive programs. If you decide to access any External Sites, then you do so at your own risk. Further, you will be solely responsible for compliance with any terms of service or similar terms imposed by any External Site in connection with your use of External Sites.
- Feedback. While our own staff works to develop and evaluate our own product ideas and features, we pride ourselves on paying close attention to the interests, feedback, comments, and suggestions we receive from the User community. If you choose to contribute by sending AVR or our employees any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings (such as audio, visual, games, or other types of content), promotions, strategies, product/feature names, or any related documentation, artwork, computer code, diagrams, or other materials (collectively “Feedback”), then regardless of what your accompanying communication may say, the following terms will apply, so that future misunderstandings can be avoided. Accordingly, by sending Feedback to AVR, you agree that:
- AVR has no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason;
- Feedback is provided on a non-confidential basis, and AVR is not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way; and
- You irrevocably grant AVR perpetual and unlimited permission to reproduce, distribute, create derivative works of, modify, publicly perform (including on a through-to-the-audience basis), communicate to the public, make available, publicly display, and otherwise use and exploit the Feedback and derivatives thereof for any purpose and without restriction, free of charge, and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.
- Notice and Procedure for Making Claims of Copyright or Other Intellectual Property Infringements.
- Respect of Third Party Rights. AVR respects the intellectual property of others and takes the protection of intellectual property very seriously, and we ask our Users to do the same. Infringing activity will not be tolerated on or through the Service.
- Repeat Infringer Policy. AVR’s intellectual property policy is to (i) remove or disable access to material that AVR believes in good faith, upon notice from an intellectual property owner or his or her agent, is infringing the intellectual property of a third party by being made available through the Service; and (ii) remove any User Content Posted to the Service by “repeat infringers.” AVR currently considers a “repeat infringer” to be any User that has Posted User Content or Feedback on or to the Service and for whom AVR has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such User Content or Feedback. AVR has discretion, however, to terminate the Account of any User after receipt of a single Notification of Claimed Infringement (defined in Section 9.c below) or upon AVR’s own determination.
- Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” containing the following information to the Designated Agent identified in Section 9.d below. Your Notification of Claimed Infringement may be shared by AVR with the User alleged to have infringed a right you own or control, and you hereby consent to AVR making such disclosure. Your communication must include substantially the following:
- a physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
- identification of works or materials being infringed, or, if multiple works are covered by a single Notification of Claimed Infringement, then a representative list of such works;
- identification of the specific material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit AVR to locate the material;
- information reasonably sufficient to permit AVR to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;
- a statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- a statement that the information in the Notification of Claimed Infringement is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You should consult with your own lawyer and/or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
- Designated Agent Contact Information. AVR’s designated agent for receipt of Notifications of Claimed Infringement (the “Designated Agent”) can be contacted at:
Via E-mail: email@example.com
Via U.S. Mail: 805 Veterans Blvd., Suite 305, Redwood City, CA 94063
- Counter Notification. If you receive a notification from AVR that material made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide AVR with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to AVR’s Designated Agent through one of the methods identified in Section 9.d and include substantially the following information:
- a physical or electronic signature of the subscriber;
- 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 access to it was disabled;
- a statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
- The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, then for any judicial district in which AVR may be found, and that the subscriber will accept service of process from the person who provided notification under Section 9.d above or an agent of such person.
A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid Counter Notification under the Copyright Act.
- Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to AVR in response to a Notification of Claimed Infringement, then AVR will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that AVR will replace the removed User Content or Feedback or cease disabling access to it in 10 business days, and AVR will replace the removed User Content or Feedback and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless AVR’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the User from engaging in infringing activity relating to the material on AVR’s system or network.
- False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides that:
[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [AVR] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
17 U.S.C. § 512(f).
AVR reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
- Dispute Resolution.
- General. In the interest of resolving disputes between you and AVR in the most expedient and cost effective manner, you and AVR agree that any dispute arising out of or in any way related to this EULA or your use of the Service will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or in any way related to this EULA or your use of the Service, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this EULA. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS EULA, YOU AND AVR ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT THIS AGREEMENT SHALL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT.
- Exceptions. Notwithstanding Section 10.a above, nothing in this EULA will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in aid of arbitration from a court of competent jurisdiction; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
- Arbitrator. Any arbitration between you and AVR will be governed by the Federal Arbitration Act and the Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this EULA, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting AVR. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
- Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by U.S. Mail or email (“Notice”). AVR’s address for Notice is: 805 Veterans Blvd., Suite 305, Redwood City, CA 94063, Attn: Chief Executive Officer. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or AVR may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or AVR must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor with a monetary award that exceeds the last written settlement amount offered by AVR prior to selection of an arbitrator, AVR will pay you the highest of the following: (A) the amount awarded by the arbitrator, if any; (B) the last written settlement amount offered by AVR in settlement of the dispute prior to the arbitrator’s award; or (C) $15,000.
- Fees. If you commence arbitration in accordance with this EULA, AVR will reimburse you for your payment of the filing fee, unless your claim is for more than $15,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in San Mateo County, California, but if the claim is for $15,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse AVR for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. Each party agrees that such written decision, and information exchanged during arbitration, will be kept confidential except to the extent necessary to enforce or permit limited judicial review of the award. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
- No Class Actions. YOU AND AVR AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and AVR agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
- Modifications to this Arbitration Provision. Except as otherwise provided in this EULA, if AVR makes any future change to this arbitration provision, other than a change to AVR’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to AVR’s address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and AVR.
- Enforceability. If Section 10.f above is found to be unenforceable or if the entirety of this Section 10 is found to be unenforceable, then the entirety of this Section 10will be null and void.
- Limitation of Liability and Disclaimer of Warranties. THE TERMS OF THIS SECTION 11 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW:
- AVR PARTIES DO NOT MAKE ANY WARRANTIES OR REPRESENTATIONS ABOUT THE SERVICE AND ANY CONTENT AVAILABLE ON THE SERVICE (INCLUDING, WITHOUT LIMITATION, THE ACCURACY, RELIABILITY, COMPLETENESS, APPROPRIATENESS OR TIMELINESS THEREOF). AS A RESULT, THE AVR PARTIES WILL NOT BE SUBJECT TO ANY LIABILITY FOR (i) THE APPROPRIATENESS, ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF ANY CONTENT ON THE SERVICE OR ANY OTHER INFORMATION CONVEYED TO ANY USER ON OR THROUGH THE SERVICE; (ii) ANY ERRORS, MISTAKES, OR OMISSIONS IN SUCH CONTENT OR INFORMATION; OR (iii) ANY DELAYS OR INTERRUPTIONS TO THE SERVICE. ACCORDINGLY, THE SERVICE AND ALL CONTENT THEREON ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND THE AVR PARTIES HEREBY DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND FITNESS FOR A PARTICULAR PURPOSE. CONSEQUENTLY, YOU AGREE THAT YOU SOLELY ASSUME ALL RISKS ARISING FROM YOUR USE OF THE SERVICE.
- WITHOUT LIMITING SECTION 11.a, THE AVR PARTIES DO NOT WARRANT THAT THE SERVICE AND ANY CONTENT THEREON ARE FREE OF ERRORS, COMPUTER VIRUSES, OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SERVICE OR ANY CONTENT THEREON RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, THEN NO AVR PARTY WILL BE RESPONSIBLE FOR THOSE COSTS.
- IN NO EVENT WILL ANY AVR PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM, OR IN CONNECTION WITH, THE USE OR INABILITY TO USE THE SERVICE AND ANY CONTENT THEREON, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH AVR PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. AVR’S LIABILITY, AND THE LIABILITY OF ANY OF THE OTHER AVR PARTIES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO U.S. $100.
- Third Party Disputes. ANY DISPUTE YOU HAVE WITH ANY THIRD PARTY ARISING OUT OF OR RELATED TO YOUR USE OF THE SERVICE (INCLUDING, WITHOUT LIMITATION, ANY CARRIER OR OTHER USER), IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY. ACCORDINGLY, TO THE FULLEST EXTENT PERMITTED BY LAW, YOU IRREVOCABLY RELEASE THE AVR PARTIES FROM ANY AND ALL CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
- Indemnification. To the fullest extent permitted by law, you agree to defend, indemnify, and hold harmless the AVR Parties from and against any claims, actions, or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from (a) your breach of this EULA; (b) your access to, use, or misuse of the AVR Content or the Service; or (c) your User Content. AVR will provide notice to you of any such claim, suit, or proceeding. AVR reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this Section if AVR believes that you are unwilling or incapable of defending AVR’s interests. In such case, you agree to cooperate with any reasonable requests assisting AVR’s defense of such matter at your expense.
- Term and Termination of the EULA.
- Term. As between you and AVR, the term of this EULA commences as of your first use of the Service and continues until the termination of this EULA by either you or AVR.
- Termination. You may terminate this EULA by sending written notification to AVR at firstname.lastname@example.org and terminating all other uses of the Service. If you wish to delete any of your User Content from the Service, then you may do so using the permitted functionalities of the Service, but the removal or deletion of such User Content will not terminate this EULA. AVR reserves the right, in its sole discretion, to restrict, suspend, or terminate this EULA and your access to all or any part of the Service at any time without prior notice or liability if you breach any provision of this EULA or violate the rights of any third party on or through the Service. AVR may further terminate this EULA for any other reason upon 10 days’ notice to you using the email address associated with your Account credentials or immediately in the event that your email address is no longer current. AVR reserves the right to change, suspend, or discontinue all or any part of the Service at any time without prior notice or liability.
- Sections 1(a), 1(b), 1(d), 1(e), 1(f), 2, 3.b–3.c, 4–16 and any defined terms used in those Sections will survive the termination of this EULA indefinitely.
- Miscellaneous. This EULA is governed by the internal substantive laws of the State of California without respect to its conflict of laws provisions. You agree that no joint venture, partnership, employment, or agency relationship exists between you and AVR as a result of this EULA or use of the Service. You further acknowledge that by submitting User Content, no confidential, fiduciary, contractually implied, or other relationship is created between you and AVR other than pursuant to this EULA. If any provision of this EULA is found to be invalid by any court having competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of this EULA, which will remain in full force and effect. Failure of AVR to act on or enforce any provision of this EULA will not be construed as a waiver of that provision or any other provision in this EULA. No waiver will be effective against AVR unless made in writing, and no such waiver will be construed as a waiver in any other or subsequent instance. Except as expressly agreed by AVR and you, this EULA constitutes the entire agreement between you and AVR with respect to the subject matter hereof, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter herein. The Section headings are provided merely for convenience and will not be given any legal import. This EULA will inure to the benefit of our successors and assigns. You may not assign this EULA or any of the rights or licenses granted hereunder, directly or indirectly, without the prior express written consent of AVR. AVR may assign this EULA, including all its rights hereunder, without restriction.
- Contact Us. If you would like to contact us in connection with your use of the Service, then please contact us at 805 Veterans Blvd., Suite 305, Redwood City, CA 94063, and by email at email@example.com.