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TheWaveVR Terms of Service
These TheWaveVR Terms of Service (“Terms of Service”) apply when you download, access or use TheWaveVR virtual reality software application, and the related technology and services provided through the application (the application and the related technology and services constituting the “Service”). The Service is provided to you by WaveVR, Inc. (“Company,” “we,” “us” and “our”). We prepared these Terms of Service to help explain the terms that apply to your use of the Service. In order to use the Service, you will be required to affirmatively accept these Terms of Service.
Notice Regarding Dispute Resolution: These Terms of Service contain provisions that govern how claims you and we may have against each other are resolved (see Section 11 below), including an agreement and obligation to arbitrate disputes, which will, subject to limited exceptions, require you to submit claims you have against us to binding arbitration, unless you opt-out in accordance with Section 11(E). Unless you opt-out of arbitration: (a) you will only be permitted to pursue claims against us on an individual basis, not as part of any class or representative action or proceeding and (b) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
1. Accessing the Service.
A. Virtual Reality Devices. You must have an Internet-enabled third party virtual reality headset device (a “VR Device”) that is compatible with the Service in order to access and use the Service. You are solely responsible for ensuring that your VR Device is compatible with the Service. The applicable third party provider of the VR Device, and not the Company, is solely responsible for any warranties, liabilities and all other matter relating to the VR Device.
B. Registration with Third Party Platforms. You will only be able to access and use the Service if you are a registered user of a third party platform that allows you to access the Service (each, a “Third Party Platform”). Please review the terms of service that are applicable to the Third Party Platform to understand your rights and obligations in connection with your use of the applicable Third Party Platform. You agree to comply with, and your license to use the Service is conditioned upon, your compliance with the terms of service that are applicable to the Third Party Platform. To the extent that other terms and conditions from the applicable Third Party Platform are less restrictive than, or otherwise conflict with, the terms and conditions of these Terms of Service, the more restrictive or conflicting terms and conditions in these Terms of Service will apply to your use of the Service.
2. Affirmative Representations Regarding Your Use of the Service. When you use the Service, you represent that: (A) the information you submit is truthful and accurate; (B) your use of the Service and your use of services available on the Service do not violate any applicable law or regulation; (C) you are 18 years of age or older; and (D) you are otherwise of sufficient legal age or otherwise have legal capacity to legally enter into these Terms of Service.
3. Privacy. We will not collect information directly from you when you use the Service, however, when you create an account with a Third Party Platform you may be required to provide information to the applicable Third Party Platform. You should review the privacy policies that are applicable to the applicable Third Party Platform before registering or creating an account with the Third Party Platform. In addition, by logging in to the Service through a Third Party Platform, you grant us permission to access and use the information that you provide to the applicable Third Party Platform, in accordance with the privacy policy of that Third Party Platform and the privacy settings that are applicable to your account.
4. Updates to these Terms of Service. We may modify these Terms of Service from time to time. We will notify you of material changes to these Terms of Service by posting the amended terms on the Service. If you do not agree with the proposed changes, you should discontinue your use of the Service prior to the time the new Terms of Service take effect. If you continue using the Service after the new terms take effect, you will be bound by the modified Terms of Service.
5. Rules Governing User Contributions; Prohibited Activities.
A. User Contributions. If you are a registered user of the Service and you are logged in to your user account, you may be able to submit audio or visual content and comments to the Service (collectively, “Contributions”). You are entirely responsible for the content of, and any harm resulting from, any Contributions that you post on or through the Service. When you create or make available a Contribution on or through the Service, you represent and warrant that you:
(1) own or have sufficient rights to post your Contributions on or through the Service;
(2) will not post Contributions that violate our or any other person’s privacy rights, publicity rights, intellectual property rights (including without limitation copyrights) or contract rights;
(3) have fully complied with any third-party licenses relating to Contributions and shall pay all royalties, fees and any other monies required to be paid in connection with Contributions that you post on or through the Service;
(4) will not post Contributions that: (i) are defamatory, damaging, disruptive, unlawful, inappropriate, offensive, inaccurate, pornographic, vulgar, indecent, profane, hateful, racially or ethnically offensive, obscene, lewd, lascivious, filthy, threatening, excessively violent, harassing, or otherwise objectionable; (ii) incite, encourage or threaten immediate physical harm against another, including but not limited to, Contributions that promote racism, bigotry, sexism, religious intolerance or harm against any group or individual; or (iii) contain material that solicits personal information from anyone under the age of 13 or exploits anyone in a sexual or violent manner;
(5) will not post Contributions that contain advertisements or solicit any person to buy or sell products or services; and
(6) will not post Contributions that constitute, contain, install or attempt to install or promote spyware, malware or other computer code, whether on our or others’ computers or equipment, designated to enable you or others to gather information about or monitor the on-line or other activities of another party.
B. Prohibited Activities. In addition to the obligations described in Section 5(A), you agree that in connection with your use of the Service, you will not:
(1) Use the Service, intentionally or unintentionally, in connection with any violation of any applicable law or regulation, or do anything that promotes the violation of any applicable law or regulation or that is in conflict with the spirit or intent of the Service;
(2) Engage in any activity that is abusive, violent, threatening, obscene, defamatory, libelous, or racially, sexually, religiously, or otherwise objectionable or offensive, or that would otherwise be deemed criminal if done in the real world;
(3) Attempt to, or harass, abuse, or harm, or advocate or incite harassment, abuse or harm of another person or group;
(4) Make available through the Service any material or information that infringes any copyright, trademark, patent, trade secret, right of privacy, right of publicity, or other right of any person or entity or impersonates any other person;
(5) Use the Service or any part thereof for any commercial purpose, including but not limited to (i) communicating or facilitating any commercial advertisement or solicitation, or (ii) gathering or transferring Virtual Goods for sale;
(6) Institute, assist or become involved in any type of attack, including without limitation distribution of a virus, denial of service attacks upon the Service, or other attempts to disrupt the Service or any other person’s use or enjoyment of the Service;
(7) Attempt to gain unauthorized access to the Service, accounts registered to others or to the computers, servers, or networks connected to the Service by any means other than the user interface provided by the Company, including but not limited to, by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device, or software that is part of the Service;
(8) Use the Service or any part thereof for performing services within the virtual reality experience, such as power-leveling or Virtual Good (as this term is defined below) collection services, in exchange for payment outside the Service;
(9) Transmit unauthorized communications through the Service, including junk mail, chain letters, or spam;
(10) Interfere or attempt to interfere with the proper functioning of the Service or connect to or use the Service in any way not expressly permitted by these Terms of Service;
(11) Use any unauthorized third party software that accesses, intercepts, “mines”, or otherwise collects information from or through the Service or that is in transit from or to the Service, including, without limitation, any software that reads areas of RAM or streams of network traffic used by the Service to store information about game characters, elements, or environment;
(12) Make any automated use of the system, or take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure;
(13) Bypass any robot exclusion headers or other measures we employ to restrict access to the Service or use any software, technology, or device to send content or messages, scrape, spider, or crawl the Service, or harvest or manipulate data;
(14) Except where permitted by law or relevant open source licenses, reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying software or other intellectual property used to provide the Service;
(15) Copy, modify or distribute rights or content from any the Service, or the Company’s copyrights or trademarks or use any method to copy or distribute the content of the Service except as specifically allowed in these Terms of Service; or
(16) Solicit, collect, harvest or post anyone’s private information, including personally identifiable information (whether in text, image or video form), identification documents, or financial information through the Service.
6. Rights in Contributions
A. Ownership of Contributions. We do not claim any ownership rights in the Contributions that you post on or through the Service. After posting your Contributions on or through the Service, you continue to retain any rights you may have in your Contributions, including any intellectual property rights or other proprietary rights associated with your Contributions, subject to the license you grant to us below.
B. Grant of License to Us for Contributions. By making a Contribution to the Service, you grant us a perpetual, non-exclusive (meaning you are free to license your Contribution to anyone else in addition to us), fully-paid, royalty-free (meaning that we are not required to pay you to use your Contribution), sublicensable (so that we can use affiliates, subcontractors and other partners such as wireless carriers and hosted service providers to make the Service available to you) and worldwide (because the Internet is global in reach) license to use, modify, create derivative works of, publicly perform, publicly display, reproduce, disseminate, market and distribute the Contribution in connection with the Service, our business, or the promotion of the Service or our business in any media formats and through any media channels now known or subsequently created. This license does not grant us the right to sell your Contributions. If you terminate your user account or we terminate your access to the Service, your Contributions and other information and data related to your user account will no longer be accessible through the Service, however we may retain your Contributions in our archived files and your Contributions may continue to be used by and accessible to other users of the Service, for example, because your Contributions were saved or re-shared by other users of the Service.
7. Our Intellectual Property Rights. Except for your Contributions and the Contributions of other users of the Service, all of the content on the Service, including all music and audio and visual graphics (“Materials”) and the trademarks, service marks, and logos contained on the Service, are owned by or licensed to us and are subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. The Service and the Materials are for your information and personal use only and not for commercial exploitation. We reserve all rights in and to the Service and the Materials. If you download or print a copy of the Materials for your own personal use, you must retain all trademark, copyright and other proprietary notices contained in and on the Materials.
8. Our Management of the Service; User Misconduct
A. Our Right to Manage the Service. We reserve the right, but do not undertake the obligation to: (i) monitor or review the Service for violations of these Terms of Service and for compliance with our policies; (ii) report to law enforcement authorities and/or take legal action against anyone who violates these Terms of Service; (iii) refuse, restrict access to or the availability of, or remove, delete, edit or disable (to the extent technologically feasible) any Materials or any Contribution on the Service; (iv) manage the Service in a manner designed to protect our and third parties’ rights and property or to facilitate the proper functioning of the Service; (v) screen our users or members, or attempt to verify the statements of our users or members and/or (vi) monitor disputes between you and other users or to terminate or block you and other users for violating these Terms of Service.
B. Interactions with other Users. You are solely responsible for your interactions with other users of the Service. Please note that there are risks that may arise when dealing with strangers, including persons who may be acting under false pretenses. Please choose carefully the information you provided through the Service and that you give to other users of the Service. Information provided through the Service by other users of the Service may be offensive, harmful or inaccurate, and in some cases may be mislabeled or deceptively labeled. You assume all risks associated with dealing with other users with whom you come in contact through the Service. Opinions, comments and other statements made by users of the Service do not represent the opinions or statements of the Company and the Company does not support or endorse opinions or statements made by users of the Service.
C. Reporting Abuse. We want use of the Service to be a positive experience for our users, and we expect that our users will treat each other with dignity and respect. However, we cannot control the actions of users of the Service. If you are the subject of abuse by other users, or you witness abuse by a user, please contact us at info@thewavevr.com.
D. Our Right to Terminate Users. WITHOUT LIMITING ANY OTHER PROVISION OF THESE TERMS OF SERVICE, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION, AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE SERVICE TO ANY PERSON FOR ANY REASON OR FOR NO REASON AT ALL, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT CONTAINED IN THESE TERMS OF SERVICE, OR OF ANY APPLICABLE LAW OR REGULATION.
9. Virtual Goods. You understand that at times you may “earn” “buy” or “purchase” (A) virtual currency, including but not limited to virtual coins, cash, tokens, or points, all for use in the Service; or (B) virtual in-game items (together with virtual currency, “Virtual Goods”), you do not in fact “own” the Virtual Goods and the amounts of any Virtual Good do not refer to any credit balance of real currency or its equivalent. By purchasing or receiving any Virtual Goods, all that you receive is a limited license to use them as part of the Service. You may not sell or transfer, or attempt to sell or transfer, Virtual Goods, except as specifically permitted as part of the Service. We do not provide refunds for Virtual Goods and Virtual Goods may never be redeemed or sold by you for “real world” money, goods, services or anything of monetary value.
10. Health and Safety Precautions. The Service may contain flashing lights, realistic images and simulations. Some people may experience side effects such as motion sickness, epileptic seizures, momentary loss of consciousness, dizziness, or nausea when viewing certain types of flashing lights or graphics that are included in the Service. This may happen where a person has not previously suffered in this way and has no known symptoms or history of these side effects. If you have a condition which makes this possible or you have experienced similar symptoms, please consult a doctor before using the Service. If you feel dizzy, tired, fatigued or uncomfortable when using the Service, please stop using the Service. If these symptoms continue after you have stopped using the Service, please consult a doctor.
PLEASE FOLLOW THESE PRECAUTIONS WHENEVER USING THE SERVICE:
Only use the Service in a safe environment.
Be aware of your surroundings before using the Service.
Do not use the Service if you are sick, under the influence of alcohol or drugs, or hung-over.
Do not use the Service while in a moving vehicle such as a car, bus, or train.
Do not use the Service for too long at any one time, we suggest you take a 10 to 15 minute break every 30 minutes.
11. Legal Disputes and Arbitration Agreement
Please Read This Following Clause Carefully – It May Significantly Affect Your Legal Rights, Including Your Right to File a Lawsuit in Court
A. Initial Dispute Resolution. We are available by email at info@thewavevr.com to address any concerns you may have regarding your use of the Service. Most concerns may be quickly resolved in this manner. Each of you and the Company agree to use best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.
B. Agreement to Binding Arbitration. If we do not reach an agreed upon solution within a period of thirty (30) days from the time informal dispute resolution is pursued pursuant to Section 11(A) above, then either party may initiate binding arbitration. All claims arising out of or relating to these Terms of Service (including their formation, performance and breach), the parties’ relationship with each other and/or your use of the Service shall be finally settled by binding arbitration administered on a confidential basis by JAMS, in accordance with the JAMS Streamlined Arbitration Rules and Procedures, excluding any rules or procedures governing or permitting class actions. Each party will have the right to use legal counsel in connection with arbitration at its own expense. The parties shall select a single neutral arbitrator in accordance with the JAMS Streamlined Arbitration Rules and Procedures. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms of Service, including, but not limited to, any claim that all or any part of these Terms of Service is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be in writing and provide a statement of the essential findings and conclusions, shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The interpretation and enforcement of these Terms of Service shall be subject to the Federal Arbitration Act.
The JAMS rules governing the arbitration may be accessed at https://www.jamsadr.com/adr-rules-procedures. If you initiate arbitration, to the extent the filing fee for the arbitration exceeds Two Hundred and Fifty U.S. Dollars ($250.00), we will pay the additional cost. If we are required to pay the additional cost of the filing fees, you should submit a request for payment of fees to JAMS along with your form for initiating the arbitration, and we will make arrangements to pay all necessary fees directly to JAMS. We will also be responsible for paying all other arbitration costs arising in connection with the arbitration other than costs incurred by you for legal counsel, travel and other out-of-pocket expenses. You will not be required to pay fees and costs incurred by the Company if you do not prevail in arbitration.
THE PARTIES UNDERSTAND THAT, ABSENT THIS MANDATORY PROVISION, THEY WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. THEY FURTHER UNDERSTAND THAT, IN SOME INSTANCES, THE COSTS OF ARBITRATION COULD EXCEED THE COSTS OF LITIGATION AND THE RIGHT TO DISCOVERY MAY BE MORE LIMITED IN ARBITRATION THAN IN COURT.
C. Class Action and Class Arbitration Waiver. You and the Company each further agree that any arbitration shall be conducted in your respective individual capacities only and not as a class action or other representative action, and you and the Company each expressly waive your respective right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above in Section 11(B) shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
D. Exception - Small Claims Court Claims. Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
E. 30 Day Right to Opt Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in Sections 11(B), 11(C), and 11(D) by sending written notice of your decision to opt-out to the following email: info@thewavevr.com. The notice must be sent within thirty (30) days of registering to use the Service, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those sections. If you opt-out of these arbitration provisions, we also will not be bound by them.
F. Exclusive Venue for Litigation. To the extent that the arbitration provisions set forth in Section 11(B) do not apply, the parties agree that any litigation between them shall be filed exclusively in state or federal courts located in Austin, Texas (except for small claims court actions which may be brought in the county where you reside). The parties expressly consent to exclusive jurisdiction Austin, Texas for any litigation other than small claims court actions.
G. Applicable Law. You agree that federal laws and the laws of the State of Texas, without regard to principles of conflict of laws, will govern these Terms of Service and any claim or dispute that has arisen or may arise between you and the Company.
12. Warranty Disclaimer; Limitation on Liability; Indemnity
A. Disclaimer of Warranties
(i) TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL ITEMS PROVIDED THROUGH THE SERVICE ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OR CONDITIONS OF ANY KIND. BY OPERATING THE SERVICE, WE DO NOT REPRESENT OR IMPLY THAT WE ENDORSE ANY MATERIALS, CONTRIBUTIONS OR ITEMS AVAILABLE ON OR LINKED TO BY THE SERVICE, OR THAT WE BELIEVE ANY MATERIALS, CONTRIBUTIONS OR OTHER ITEMS TO BE ACCURATE, USEFUL OR NON-HARMFUL. WE CANNOT GUARANTEE AND DO NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE. YOU AGREE THAT YOUR USE OF THE SERVICE WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE AND EACH OF OUR ADVERTISERS, LICENSORS, SUPPLIERS, OFFICERS, DIRECTORS, INVESTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS AND OTHER CONTRACTORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICE AND YOUR USE THEREOF.
(ii) TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, TIMELINESS OR COMPLETENESS OF THE SERVICE’S CONTENT, THE CONTENT OF ANY SITE LINKED TO THE SERVICE, CONTRIBUTIONS, INFORMATION OR ANY OTHER ITEMS OR MATERIALS ON THE SERVICE OR LINKED TO BY THE SERVICE. WE ASSUME NO LIABILITY OR RESPONSIBILITY FOR (A) ANY ERRORS, MISTAKES OR INACCURACIES OF CONTENT AND MATERIALS, (B) ANY PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICE, (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN, (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE, (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY, AND/OR (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE.
B. Limited Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES ARISING FROM YOUR USE OF THE SERVICE, CONTRIBUTIONS, MATERIALS OR ANY OTHER CONTENT THEREIN. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS OF SERVICE, OUR LIABILITY TO YOU IN RESPECT OF ANY LOSS OR DAMAGE SUFFERED BY YOU AND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE, WHETHER IN CONTRACT, TORT OR FOR BREACH OF STATUTORY DUTY OR IN ANY OTHER WAY SHALL NOT EXCEED $50.
C. Exceptions to Disclaimers and Liability Limitations. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN ONE OF THESE STATES OR JURISDICTIONS, THE LIMITATIONS OR EXCLUSIONS IN SECTIONS 12(A) AND 12(B) MAY NOT APPLY TO YOU.
D. Indemnity. YOU HEREBY AGREE, AT YOUR EXPENSE, TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE COMPANY, ITS OFFICERS, DIRECTORS, MEMBERS, MANAGERS, PARTNERS, AFFILIATES AND EMPLOYEES FROM AND AGAINST ANY LOSS, COST, DAMAGES, LIABILITY, AND/OR EXPENSE, INCLUDING REASONABLE ATTORNEY FEES, ARISING OUT OF OR RELATING TO THIRD PARTY CLAIMS, ACTIONS OR ALLEGATIONS BROUGHT AGAINST THE COMPANY ARISING OUT OF YOUR USE OF THE SERVICE. YOU WILL NOT BE REQUIRED TO INDEMNIFY AND HOLD THE COMPANY HARMLESS FROM AND AGAINST ANY CLAIMS, LIABILITIES, DAMAGES, LOSSES, OR EXPENSES RESULTING FROM THE COMPANY’S OWN NEGLIGENT CONDUCT.
13. Notice to New Jersey Users. Notwithstanding any terms set forth in these Terms of Service, if any of the provisions set forth in Section 12 are held unenforceable, void or inapplicable under New Jersey law, then any such provision shall not apply to you but the rest of these Terms of Service shall remain binding on you and the Company. In addition, for New Jersey residents, the limitation on liability is inapplicable where attorneys’ fees, court costs, or other damages are mandated by statue. Notwithstanding any provision in these Terms of Service, nothing in these Terms of Service is intended to, nor shall it be deemed or construed to, limit any rights available to you under the Truth-in-Consumer Contract, Warranty and Notice Act.
14. Notice to California Users. Under California Civil Code Section 1789.3, users located in California are entitled to the following consumer rights notice: If a user has a question or complaint regarding the Service, please send an email to info@thewavevr.com. Users may also contact us by writing to TheWaveVR, 108 W 38th St, Austin, TX 78705. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
15. Independent Contractors. Nothing in these Terms of Service shall be deemed to create an agency, partnership, joint venture, employer-employee or franchisor-franchisee relationship of any kind between us and any user.
16. Non-Waiver. Our failure to exercise or enforce any right or provision of these Terms of Service shall not operate as a waiver of the applicable right or provision.
17. Severability. These Terms of Service operate to the fullest extent permissible by law. If any provision or part of a provision of these Terms of Service is unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Terms of Service and shall not affect the validity and enforceability of any remaining provisions.
18. Assignment. We may assign our rights under these Terms of Service without your approval.
19. No Modifications by Our Employees. If any of our employees offers to modify the terms of these Terms of Service, he or she is not acting as an agent for us or speaking on our behalf. You may not rely, and should not act in reliance on, any statement or communication from our employees or anyone else purporting to act on our behalf.
20. Contact Information. If you have any questions about these Terms of Service or your account, please contact us at info@thewavevr.com.
These TheWaveVR Terms of Service (“Terms of Service”) apply when you download, access or use TheWaveVR virtual reality software application, and the related technology and services provided through the application (the application and the related technology and services constituting the “Service”). The Service is provided to you by WaveVR, Inc. (“Company,” “we,” “us” and “our”). We prepared these Terms of Service to help explain the terms that apply to your use of the Service. In order to use the Service, you will be required to affirmatively accept these Terms of Service.
Notice Regarding Dispute Resolution: These Terms of Service contain provisions that govern how claims you and we may have against each other are resolved (see Section 11 below), including an agreement and obligation to arbitrate disputes, which will, subject to limited exceptions, require you to submit claims you have against us to binding arbitration, unless you opt-out in accordance with Section 11(E). Unless you opt-out of arbitration: (a) you will only be permitted to pursue claims against us on an individual basis, not as part of any class or representative action or proceeding and (b) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
1. Accessing the Service.
A. Virtual Reality Devices. You must have an Internet-enabled third party virtual reality headset device (a “VR Device”) that is compatible with the Service in order to access and use the Service. You are solely responsible for ensuring that your VR Device is compatible with the Service. The applicable third party provider of the VR Device, and not the Company, is solely responsible for any warranties, liabilities and all other matter relating to the VR Device.
B. Registration with Third Party Platforms. You will only be able to access and use the Service if you are a registered user of a third party platform that allows you to access the Service (each, a “Third Party Platform”). Please review the terms of service that are applicable to the Third Party Platform to understand your rights and obligations in connection with your use of the applicable Third Party Platform. You agree to comply with, and your license to use the Service is conditioned upon, your compliance with the terms of service that are applicable to the Third Party Platform. To the extent that other terms and conditions from the applicable Third Party Platform are less restrictive than, or otherwise conflict with, the terms and conditions of these Terms of Service, the more restrictive or conflicting terms and conditions in these Terms of Service will apply to your use of the Service.
2. Affirmative Representations Regarding Your Use of the Service. When you use the Service, you represent that: (A) the information you submit is truthful and accurate; (B) your use of the Service and your use of services available on the Service do not violate any applicable law or regulation; (C) you are 18 years of age or older; and (D) you are otherwise of sufficient legal age or otherwise have legal capacity to legally enter into these Terms of Service.
3. Privacy. We will not collect information directly from you when you use the Service, however, when you create an account with a Third Party Platform you may be required to provide information to the applicable Third Party Platform. You should review the privacy policies that are applicable to the applicable Third Party Platform before registering or creating an account with the Third Party Platform. In addition, by logging in to the Service through a Third Party Platform, you grant us permission to access and use the information that you provide to the applicable Third Party Platform, in accordance with the privacy policy of that Third Party Platform and the privacy settings that are applicable to your account.
4. Updates to these Terms of Service. We may modify these Terms of Service from time to time. We will notify you of material changes to these Terms of Service by posting the amended terms on the Service. If you do not agree with the proposed changes, you should discontinue your use of the Service prior to the time the new Terms of Service take effect. If you continue using the Service after the new terms take effect, you will be bound by the modified Terms of Service.
5. Rules Governing User Contributions; Prohibited Activities.
A. User Contributions. If you are a registered user of the Service and you are logged in to your user account, you may be able to submit audio or visual content and comments to the Service (collectively, “Contributions”). You are entirely responsible for the content of, and any harm resulting from, any Contributions that you post on or through the Service. When you create or make available a Contribution on or through the Service, you represent and warrant that you:
(1) own or have sufficient rights to post your Contributions on or through the Service;
(2) will not post Contributions that violate our or any other person’s privacy rights, publicity rights, intellectual property rights (including without limitation copyrights) or contract rights;
(3) have fully complied with any third-party licenses relating to Contributions and shall pay all royalties, fees and any other monies required to be paid in connection with Contributions that you post on or through the Service;
(4) will not post Contributions that: (i) are defamatory, damaging, disruptive, unlawful, inappropriate, offensive, inaccurate, pornographic, vulgar, indecent, profane, hateful, racially or ethnically offensive, obscene, lewd, lascivious, filthy, threatening, excessively violent, harassing, or otherwise objectionable; (ii) incite, encourage or threaten immediate physical harm against another, including but not limited to, Contributions that promote racism, bigotry, sexism, religious intolerance or harm against any group or individual; or (iii) contain material that solicits personal information from anyone under the age of 13 or exploits anyone in a sexual or violent manner;
(5) will not post Contributions that contain advertisements or solicit any person to buy or sell products or services; and
(6) will not post Contributions that constitute, contain, install or attempt to install or promote spyware, malware or other computer code, whether on our or others’ computers or equipment, designated to enable you or others to gather information about or monitor the on-line or other activities of another party.
B. Prohibited Activities. In addition to the obligations described in Section 5(A), you agree that in connection with your use of the Service, you will not:
(1) Use the Service, intentionally or unintentionally, in connection with any violation of any applicable law or regulation, or do anything that promotes the violation of any applicable law or regulation or that is in conflict with the spirit or intent of the Service;
(2) Engage in any activity that is abusive, violent, threatening, obscene, defamatory, libelous, or racially, sexually, religiously, or otherwise objectionable or offensive, or that would otherwise be deemed criminal if done in the real world;
(3) Attempt to, or harass, abuse, or harm, or advocate or incite harassment, abuse or harm of another person or group;
(4) Make available through the Service any material or information that infringes any copyright, trademark, patent, trade secret, right of privacy, right of publicity, or other right of any person or entity or impersonates any other person;
(5) Use the Service or any part thereof for any commercial purpose, including but not limited to (i) communicating or facilitating any commercial advertisement or solicitation, or (ii) gathering or transferring Virtual Goods for sale;
(6) Institute, assist or become involved in any type of attack, including without limitation distribution of a virus, denial of service attacks upon the Service, or other attempts to disrupt the Service or any other person’s use or enjoyment of the Service;
(7) Attempt to gain unauthorized access to the Service, accounts registered to others or to the computers, servers, or networks connected to the Service by any means other than the user interface provided by the Company, including but not limited to, by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device, or software that is part of the Service;
(8) Use the Service or any part thereof for performing services within the virtual reality experience, such as power-leveling or Virtual Good (as this term is defined below) collection services, in exchange for payment outside the Service;
(9) Transmit unauthorized communications through the Service, including junk mail, chain letters, or spam;
(10) Interfere or attempt to interfere with the proper functioning of the Service or connect to or use the Service in any way not expressly permitted by these Terms of Service;
(11) Use any unauthorized third party software that accesses, intercepts, “mines”, or otherwise collects information from or through the Service or that is in transit from or to the Service, including, without limitation, any software that reads areas of RAM or streams of network traffic used by the Service to store information about game characters, elements, or environment;
(12) Make any automated use of the system, or take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure;
(13) Bypass any robot exclusion headers or other measures we employ to restrict access to the Service or use any software, technology, or device to send content or messages, scrape, spider, or crawl the Service, or harvest or manipulate data;
(14) Except where permitted by law or relevant open source licenses, reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying software or other intellectual property used to provide the Service;
(15) Copy, modify or distribute rights or content from any the Service, or the Company’s copyrights or trademarks or use any method to copy or distribute the content of the Service except as specifically allowed in these Terms of Service; or
(16) Solicit, collect, harvest or post anyone’s private information, including personally identifiable information (whether in text, image or video form), identification documents, or financial information through the Service.
6. Rights in Contributions
A. Ownership of Contributions. We do not claim any ownership rights in the Contributions that you post on or through the Service. After posting your Contributions on or through the Service, you continue to retain any rights you may have in your Contributions, including any intellectual property rights or other proprietary rights associated with your Contributions, subject to the license you grant to us below.
B. Grant of License to Us for Contributions. By making a Contribution to the Service, you grant us a perpetual, non-exclusive (meaning you are free to license your Contribution to anyone else in addition to us), fully-paid, royalty-free (meaning that we are not required to pay you to use your Contribution), sublicensable (so that we can use affiliates, subcontractors and other partners such as wireless carriers and hosted service providers to make the Service available to you) and worldwide (because the Internet is global in reach) license to use, modify, create derivative works of, publicly perform, publicly display, reproduce, disseminate, market and distribute the Contribution in connection with the Service, our business, or the promotion of the Service or our business in any media formats and through any media channels now known or subsequently created. This license does not grant us the right to sell your Contributions. If you terminate your user account or we terminate your access to the Service, your Contributions and other information and data related to your user account will no longer be accessible through the Service, however we may retain your Contributions in our archived files and your Contributions may continue to be used by and accessible to other users of the Service, for example, because your Contributions were saved or re-shared by other users of the Service.
7. Our Intellectual Property Rights. Except for your Contributions and the Contributions of other users of the Service, all of the content on the Service, including all music and audio and visual graphics (“Materials”) and the trademarks, service marks, and logos contained on the Service, are owned by or licensed to us and are subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. The Service and the Materials are for your information and personal use only and not for commercial exploitation. We reserve all rights in and to the Service and the Materials. If you download or print a copy of the Materials for your own personal use, you must retain all trademark, copyright and other proprietary notices contained in and on the Materials.
8. Our Management of the Service; User Misconduct
A. Our Right to Manage the Service. We reserve the right, but do not undertake the obligation to: (i) monitor or review the Service for violations of these Terms of Service and for compliance with our policies; (ii) report to law enforcement authorities and/or take legal action against anyone who violates these Terms of Service; (iii) refuse, restrict access to or the availability of, or remove, delete, edit or disable (to the extent technologically feasible) any Materials or any Contribution on the Service; (iv) manage the Service in a manner designed to protect our and third parties’ rights and property or to facilitate the proper functioning of the Service; (v) screen our users or members, or attempt to verify the statements of our users or members and/or (vi) monitor disputes between you and other users or to terminate or block you and other users for violating these Terms of Service.
B. Interactions with other Users. You are solely responsible for your interactions with other users of the Service. Please note that there are risks that may arise when dealing with strangers, including persons who may be acting under false pretenses. Please choose carefully the information you provided through the Service and that you give to other users of the Service. Information provided through the Service by other users of the Service may be offensive, harmful or inaccurate, and in some cases may be mislabeled or deceptively labeled. You assume all risks associated with dealing with other users with whom you come in contact through the Service. Opinions, comments and other statements made by users of the Service do not represent the opinions or statements of the Company and the Company does not support or endorse opinions or statements made by users of the Service.
C. Reporting Abuse. We want use of the Service to be a positive experience for our users, and we expect that our users will treat each other with dignity and respect. However, we cannot control the actions of users of the Service. If you are the subject of abuse by other users, or you witness abuse by a user, please contact us at info@thewavevr.com.
D. Our Right to Terminate Users. WITHOUT LIMITING ANY OTHER PROVISION OF THESE TERMS OF SERVICE, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION, AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE SERVICE TO ANY PERSON FOR ANY REASON OR FOR NO REASON AT ALL, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT CONTAINED IN THESE TERMS OF SERVICE, OR OF ANY APPLICABLE LAW OR REGULATION.
9. Virtual Goods. You understand that at times you may “earn” “buy” or “purchase” (A) virtual currency, including but not limited to virtual coins, cash, tokens, or points, all for use in the Service; or (B) virtual in-game items (together with virtual currency, “Virtual Goods”), you do not in fact “own” the Virtual Goods and the amounts of any Virtual Good do not refer to any credit balance of real currency or its equivalent. By purchasing or receiving any Virtual Goods, all that you receive is a limited license to use them as part of the Service. You may not sell or transfer, or attempt to sell or transfer, Virtual Goods, except as specifically permitted as part of the Service. We do not provide refunds for Virtual Goods and Virtual Goods may never be redeemed or sold by you for “real world” money, goods, services or anything of monetary value.
10. Health and Safety Precautions. The Service may contain flashing lights, realistic images and simulations. Some people may experience side effects such as motion sickness, epileptic seizures, momentary loss of consciousness, dizziness, or nausea when viewing certain types of flashing lights or graphics that are included in the Service. This may happen where a person has not previously suffered in this way and has no known symptoms or history of these side effects. If you have a condition which makes this possible or you have experienced similar symptoms, please consult a doctor before using the Service. If you feel dizzy, tired, fatigued or uncomfortable when using the Service, please stop using the Service. If these symptoms continue after you have stopped using the Service, please consult a doctor.
PLEASE FOLLOW THESE PRECAUTIONS WHENEVER USING THE SERVICE:
Only use the Service in a safe environment.
Be aware of your surroundings before using the Service.
Do not use the Service if you are sick, under the influence of alcohol or drugs, or hung-over.
Do not use the Service while in a moving vehicle such as a car, bus, or train.
Do not use the Service for too long at any one time, we suggest you take a 10 to 15 minute break every 30 minutes.
11. Legal Disputes and Arbitration Agreement
Please Read This Following Clause Carefully – It May Significantly Affect Your Legal Rights, Including Your Right to File a Lawsuit in Court
A. Initial Dispute Resolution. We are available by email at info@thewavevr.com to address any concerns you may have regarding your use of the Service. Most concerns may be quickly resolved in this manner. Each of you and the Company agree to use best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.
B. Agreement to Binding Arbitration. If we do not reach an agreed upon solution within a period of thirty (30) days from the time informal dispute resolution is pursued pursuant to Section 11(A) above, then either party may initiate binding arbitration. All claims arising out of or relating to these Terms of Service (including their formation, performance and breach), the parties’ relationship with each other and/or your use of the Service shall be finally settled by binding arbitration administered on a confidential basis by JAMS, in accordance with the JAMS Streamlined Arbitration Rules and Procedures, excluding any rules or procedures governing or permitting class actions. Each party will have the right to use legal counsel in connection with arbitration at its own expense. The parties shall select a single neutral arbitrator in accordance with the JAMS Streamlined Arbitration Rules and Procedures. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms of Service, including, but not limited to, any claim that all or any part of these Terms of Service is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be in writing and provide a statement of the essential findings and conclusions, shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The interpretation and enforcement of these Terms of Service shall be subject to the Federal Arbitration Act.
The JAMS rules governing the arbitration may be accessed at https://www.jamsadr.com/adr-rules-procedures. If you initiate arbitration, to the extent the filing fee for the arbitration exceeds Two Hundred and Fifty U.S. Dollars ($250.00), we will pay the additional cost. If we are required to pay the additional cost of the filing fees, you should submit a request for payment of fees to JAMS along with your form for initiating the arbitration, and we will make arrangements to pay all necessary fees directly to JAMS. We will also be responsible for paying all other arbitration costs arising in connection with the arbitration other than costs incurred by you for legal counsel, travel and other out-of-pocket expenses. You will not be required to pay fees and costs incurred by the Company if you do not prevail in arbitration.
THE PARTIES UNDERSTAND THAT, ABSENT THIS MANDATORY PROVISION, THEY WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. THEY FURTHER UNDERSTAND THAT, IN SOME INSTANCES, THE COSTS OF ARBITRATION COULD EXCEED THE COSTS OF LITIGATION AND THE RIGHT TO DISCOVERY MAY BE MORE LIMITED IN ARBITRATION THAN IN COURT.
C. Class Action and Class Arbitration Waiver. You and the Company each further agree that any arbitration shall be conducted in your respective individual capacities only and not as a class action or other representative action, and you and the Company each expressly waive your respective right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above in Section 11(B) shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
D. Exception - Small Claims Court Claims. Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
E. 30 Day Right to Opt Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in Sections 11(B), 11(C), and 11(D) by sending written notice of your decision to opt-out to the following email: info@thewavevr.com. The notice must be sent within thirty (30) days of registering to use the Service, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those sections. If you opt-out of these arbitration provisions, we also will not be bound by them.
F. Exclusive Venue for Litigation. To the extent that the arbitration provisions set forth in Section 11(B) do not apply, the parties agree that any litigation between them shall be filed exclusively in state or federal courts located in Austin, Texas (except for small claims court actions which may be brought in the county where you reside). The parties expressly consent to exclusive jurisdiction Austin, Texas for any litigation other than small claims court actions.
G. Applicable Law. You agree that federal laws and the laws of the State of Texas, without regard to principles of conflict of laws, will govern these Terms of Service and any claim or dispute that has arisen or may arise between you and the Company.
12. Warranty Disclaimer; Limitation on Liability; Indemnity
A. Disclaimer of Warranties
(i) TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL ITEMS PROVIDED THROUGH THE SERVICE ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OR CONDITIONS OF ANY KIND. BY OPERATING THE SERVICE, WE DO NOT REPRESENT OR IMPLY THAT WE ENDORSE ANY MATERIALS, CONTRIBUTIONS OR ITEMS AVAILABLE ON OR LINKED TO BY THE SERVICE, OR THAT WE BELIEVE ANY MATERIALS, CONTRIBUTIONS OR OTHER ITEMS TO BE ACCURATE, USEFUL OR NON-HARMFUL. WE CANNOT GUARANTEE AND DO NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE. YOU AGREE THAT YOUR USE OF THE SERVICE WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE AND EACH OF OUR ADVERTISERS, LICENSORS, SUPPLIERS, OFFICERS, DIRECTORS, INVESTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS AND OTHER CONTRACTORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICE AND YOUR USE THEREOF.
(ii) TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, TIMELINESS OR COMPLETENESS OF THE SERVICE’S CONTENT, THE CONTENT OF ANY SITE LINKED TO THE SERVICE, CONTRIBUTIONS, INFORMATION OR ANY OTHER ITEMS OR MATERIALS ON THE SERVICE OR LINKED TO BY THE SERVICE. WE ASSUME NO LIABILITY OR RESPONSIBILITY FOR (A) ANY ERRORS, MISTAKES OR INACCURACIES OF CONTENT AND MATERIALS, (B) ANY PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICE, (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN, (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE, (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY, AND/OR (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE.
B. Limited Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES ARISING FROM YOUR USE OF THE SERVICE, CONTRIBUTIONS, MATERIALS OR ANY OTHER CONTENT THEREIN. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS OF SERVICE, OUR LIABILITY TO YOU IN RESPECT OF ANY LOSS OR DAMAGE SUFFERED BY YOU AND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE, WHETHER IN CONTRACT, TORT OR FOR BREACH OF STATUTORY DUTY OR IN ANY OTHER WAY SHALL NOT EXCEED $50.
C. Exceptions to Disclaimers and Liability Limitations. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN ONE OF THESE STATES OR JURISDICTIONS, THE LIMITATIONS OR EXCLUSIONS IN SECTIONS 12(A) AND 12(B) MAY NOT APPLY TO YOU.
D. Indemnity. YOU HEREBY AGREE, AT YOUR EXPENSE, TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE COMPANY, ITS OFFICERS, DIRECTORS, MEMBERS, MANAGERS, PARTNERS, AFFILIATES AND EMPLOYEES FROM AND AGAINST ANY LOSS, COST, DAMAGES, LIABILITY, AND/OR EXPENSE, INCLUDING REASONABLE ATTORNEY FEES, ARISING OUT OF OR RELATING TO THIRD PARTY CLAIMS, ACTIONS OR ALLEGATIONS BROUGHT AGAINST THE COMPANY ARISING OUT OF YOUR USE OF THE SERVICE. YOU WILL NOT BE REQUIRED TO INDEMNIFY AND HOLD THE COMPANY HARMLESS FROM AND AGAINST ANY CLAIMS, LIABILITIES, DAMAGES, LOSSES, OR EXPENSES RESULTING FROM THE COMPANY’S OWN NEGLIGENT CONDUCT.
13. Notice to New Jersey Users. Notwithstanding any terms set forth in these Terms of Service, if any of the provisions set forth in Section 12 are held unenforceable, void or inapplicable under New Jersey law, then any such provision shall not apply to you but the rest of these Terms of Service shall remain binding on you and the Company. In addition, for New Jersey residents, the limitation on liability is inapplicable where attorneys’ fees, court costs, or other damages are mandated by statue. Notwithstanding any provision in these Terms of Service, nothing in these Terms of Service is intended to, nor shall it be deemed or construed to, limit any rights available to you under the Truth-in-Consumer Contract, Warranty and Notice Act.
14. Notice to California Users. Under California Civil Code Section 1789.3, users located in California are entitled to the following consumer rights notice: If a user has a question or complaint regarding the Service, please send an email to info@thewavevr.com. Users may also contact us by writing to TheWaveVR, 108 W 38th St, Austin, TX 78705. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
15. Independent Contractors. Nothing in these Terms of Service shall be deemed to create an agency, partnership, joint venture, employer-employee or franchisor-franchisee relationship of any kind between us and any user.
16. Non-Waiver. Our failure to exercise or enforce any right or provision of these Terms of Service shall not operate as a waiver of the applicable right or provision.
17. Severability. These Terms of Service operate to the fullest extent permissible by law. If any provision or part of a provision of these Terms of Service is unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Terms of Service and shall not affect the validity and enforceability of any remaining provisions.
18. Assignment. We may assign our rights under these Terms of Service without your approval.
19. No Modifications by Our Employees. If any of our employees offers to modify the terms of these Terms of Service, he or she is not acting as an agent for us or speaking on our behalf. You may not rely, and should not act in reliance on, any statement or communication from our employees or anyone else purporting to act on our behalf.
20. Contact Information. If you have any questions about these Terms of Service or your account, please contact us at info@thewavevr.com.