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WEVR END USER AGREEMENT
Last Updated: 4 April 2016
This WEVR End User Agreement ("Agreement") is a legal document that explains your rights and obligations as a user of the WEVR Properties (as defined below). Please read it carefully.
BY CLICKING ON ‘I ACCEPT’ OR A SIMILAR BUTTON, DOWNLOADING, INSTALLING, ACCESS AND/OR VIEWING, PLAYING, OR OTHERWISE USING ANY OF WEVR’S GAMES, VIDEOS, INTERACTIVE VIRTUAL REALITY EXPERIENCES, OR OTHER MEDIA (“WEVR MEDIA”), YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS, AND YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH WEVR, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE AGREEMENT PERSONALLY OR ON BEHALF OF THE LEGAL ENTITY YOU REPRESENT, AND TO BIND THAT LEGAL ENTITY TO THE AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THE AGREEMENT, YOU MAY NOT DOWNLOAD, INSTALL, ACCESS, VIEW, PLAY, OR OTHERWISE USE THE WEVR MEDIA, INCLUDING WITHOUT LIMITATION, THE INFORMATION AND CONTENT (AS DEFINED BELOW) AVAILABLE IN THE WEVR MEDIA (COLLECTIVELY, THE “WEVR PROPERTIES”).
THE AGREEMENT INCLUDES A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIALS, AND REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES.
THE AGREEMENT LIMITS THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
PLEASE NOTE THAT The AGREEMENT IS subject to change by WEVR in its sole discretion at any time. When changes are made, WEVR will make a new copy of the Agreement available on the third party platform on which the WEVR Media is hosted (“Host Platform”). We will also update the “Last Updated” date at the top of the Agreement. WEVR may require you to provide consent to the updated Agreement in a specified manner before further use of the WEVR Properties is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using all of the WEVR Properties. Otherwise, your continued use of the WEVR Properties constitutes your acceptance of such change(s). YOU MAY DOWNLOAD, SAVE, AND PRINT A COPY OF THE CURRENT AGREEMENT AT ANY TIME BY VISITING THE HOST PLATFORM. PLEASE REGULARLY CHECK THE HOST PLATFORM TO VIEW THE THEN-CURRENT AGREEMENT.
1. Use of the Services and WEVR Properties. The WEVR Properties are protected by copyright laws throughout the world. Subject to the Agreement and the timely payment of any required fees to the Host Platform and/or WEVR, as applicable, WEVR grants you a limited license to reproduce portions of the WEVR Properties for the sole purpose of using the WEVR Properties for your personal purposes. Unless otherwise specified by WEVR in a separate license, your right to use any WEVR Properties is subject to the Agreement.
a) Updates. You understand that the WEVR Properties are evolving. As a result, WEVR may require you to accept updates to the WEVR Properties installed on your computer, mobile device, headset, or other equipment. To the extent permissible by applicable law, you acknowledge and agree that WEVR may update the WEVR Properties with or without notifying you. You may need to update third-party software from time to time in order to continue using the WEVR Properties. You understand that this Agreement does not entitle you to future updates, new versions or other enhancements of the WEVR Properties, although WEVR may choose to provide such updates, etc. in its sole discretion.
b) Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the WEVR Properties or any portion of the WEVR Properties; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other WEVR Properties (including images, text, page layout or form) of WEVR; (c) you shall not use any metatags or other “hidden text” using WEVR’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the WEVR Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from the WEVR Properties (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the WEVR’s website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access the WEVR Properties in order to build a similar or competitive product or service; and (g) except as expressly stated herein, no part of the WEVR Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update or other addition to the WEVR Properties shall be subject to the Agreement. WEVR, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of the WEVR Properties terminates the licenses granted by WEVR pursuant to the Agreement.
c) Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the WEVR Properties, including but not limited to, a virtual reality headset that is suitable to connect with and use the WEVR Properties. You are solely responsible for any fees, including without limitation, Host Platform fees, Internet connection or mobile fees, that you incur in connection with your download, installation, or other use of the WEVR Properties.
2. Ownership.
a) WEVR Properties. You agree that WEVR and its licensors own all rights, title and interest in the WEVR Properties, including without limitation, all information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through the WEVR Properties (“Content”). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the WEVR Properties.
b) Trademarks. WEVR’s stylized name and other related graphics, logos, service marks and trade names used on or in connection with the WEVR Properties are the trademarks of WEVR and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the WEVR Properties are the property of their respective owners.
c) Feedback. As between you and WEVR, you agree that submission of any ideas, suggestions, documents, and/or proposals by you to WEVR or Host Platform regarding WEVR Properties (“Feedback”) is at your own risk and that WEVR and Host Platform have no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to WEVR a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the WEVR Properties.
3. Investigations. WEVR may, but is not obligated to, monitor or review the use of WEVR Properties by users at any time. WEVR is not responsible for and does not control the actions of any third parties, including without limitation, users or the Host Platform. Although WEVR does not generally monitor user activity occurring in connection with WEVR Properties, if WEVR becomes aware of any possible violations by you of any provision of the Agreement, WEVR reserves the right to investigate such violations, and WEVR may, at its sole discretion, immediately terminate your license to use WEVR Properties, or change, alter or remove any Content, in whole or in part, without prior notice to you.
4. Third-Party Services.
a) Third-Party Websites and Applications. WEVR Properties may contain links to third-party websites and applications (“Third-Party Websites & Applications”). When you click on a link to a third-party website or application, we will not warn you that you have left the WEVR Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites & Applications are not under the control of WEVR. WEVR is not responsible for any Third-Party Websites & Applications. WEVR provides these Third-Party Websites & Applications only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites & Applications, or their products or services. You use all links in Third-Party Websites & Applications at your own risk. When you leave the WEVR Properties, our Agreement and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites & Applications, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third-party.
5. Indemnification. You agree to indemnify and hold WEVR, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively the “WEVR Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) your use of, or inability to use, the WEVR Properties; (b) your violation of the Agreement; (c) your violation of any rights of another party, including any user or the Host Platform; or (d) your violation of any applicable laws, rules or regulations. WEVR reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with WEVR in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Agreement, or your access to the WEVR Properties.
6. Disclaimer of Warranties.
a) As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE WEVR PROPERTIES IS AT YOUR SOLE RISK, AND THE WEVR PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. THE WEVR PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
i. THE WEVR PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE WEVR PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE WEVR PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE VIRUS-FREE, OR ERROR-FREE; (3) THE WEVR PROPERTIES WILL BE ACCURATELY DISPLAYED OR BE COMPATIBLE WITH ANY HARDWARE OTHER THAN THE HARDWARE SPECIFIED BY WEVR IN THE DOCUMENTATION ON THE HOST PLATFORM; OR (4) ANY ERRORS IN THE WEVR PROPERTIES WILL BE CORRECTED.
ii. ANY WEVR PROPERTIES DOWNLOADED FROM, INSTALLED, PLAYED, USED, VIEWED, OR OTHERWISE ACCESSED THROUGH THE HOST PLATFORM IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM, MOBILE DEVICE, HEADSET, AND ANY OTHER DEVICE YOU USE TO ACCESS THE WEVR PROPERTIES, OR ANY OTHER LOSS, INCLUDING WITHOUT LIMITATION, DATA LOSS, THAT RESULTS FROM ACCESSING THE WEVR PROPERTIES.
iii. From time to time, WEVR may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at WEVR’s sole discretion. The provisions of this section apply with full force to such features or tools.
b) No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT THE WEVR PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE WEVR PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING THE HOST PLATFORM AND OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
7. Limitation of Liability.
a) Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL WEVR PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH WEVR PROPERTIES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT WEVR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR THE WEVR PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE WEVR PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION, THE HOST PLATFORM; OR (5) ANY OTHER MATTER RELATED TO WEVR PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
b) Cap on Liability. UNDER NO CIRCUMSTANCES WILL WEVR PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT RECEIVED BY WEVR AS A RESULT OF YOUR USE OF THE WEVR PROPERTIES. WEVR’S SOLE AND EXCLUSIVE LIABILITY SHALL BE LIMITED TO THE LESSER OF ONE HUNDRED DOLLARS ($100) OR THE AMOUNT YOU HAVE PAID FOR THE WEVR MEDIA GIVING RISE TO THE CLAIM OF LIABILITY WITHIN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM OF LIABILITY.
c) User Content. THE WEVR PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT.
d) Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN WEVR AND YOU.
THE LAWS OF SOME STATES DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU AND YOU MIGHT HAVE OTHER RIGHTS.
8. Term and Termination.
a) Term. The Agreement commences on the date when you accept it (as described in the preamble above) and remains in full force and effect while you use the WEVR Properties, unless terminated earlier in accordance with the Agreement.
b) Termination. If you have materially breached any provision of the Agreement, if we are required to do so by law (e.g., where the provision of any of the WEVR Properties is, or becomes, unlawful, for instance, if we receive an notice of a claim that an Experience is infringing the rights of a third party), or if we choose to discontinue the WEVR Properties (in part or in whole), we have the right to, immediately and without notice, suspend or terminate any WEVR Properties provided to you. If we become aware of any possible violations by you of the Agreement, we reserve the right to investigate such violations. In the event that we determine, in our sole discretion, that you have breached any portion of the Agreement, or have otherwise demonstrated inappropriate conduct, we reserve the right to (i) warn you via e-mail (to any e-mail address you have provided to us) that you have violated the Agreement; (ii) notify and/or fully cooperate with the proper law enforcement authorities for further action; and/or (iii) pursue any other action which we deem to be appropriate. If, as a result of the investigation, we believe that illegal activity has occurred, we reserve the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. We are entitled, except to the extent prohibited by applicable law, to disclose any information or materials related to the WEVR Properties in our possession in connection with your use of the WEVR Properties, to (i) comply with applicable laws, legal process or governmental request; (ii) enforce the Agreement; (iii) respond to your requests for customer service; or (iv) protect the rights, property or personal safety of WEVR, its users or the public, and to comply with the requests of all law enforcement or other government officials, as we in our sole discretion believe to be necessary or appropriate. We reserve the right, in our sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you. You agree that all terminations shall be made in our sole discretion and that we shall not be liable to you or any third-party for enforcing this provision.
c) Effect of Termination. Upon termination of this Agreement, your right to use the WEVR Properties will automatically terminate immediately. WEVR will not have any liability whatsoever to you for any suspension or termination, including for deletion of any Content. All provisions of the Agreement which by their nature should survive, shall survive termination of the Agreement, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
9. Arbitration
a) Applicability of Arbitration Agreement. Except as expressly provided herein, all claims and disputes (excluding claims for emergency injunctive relief as set forth below) in connection with the Agreement or the use of any product or service provided by WEVR that cannot be resolved informally or in small claims court shall be resolved exclusively by binding arbitration on an individual basis under the terms of this arbitration provision (“Arbitration Agreement”). Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and WEVR, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Agreement.
b) 30-Day Right to Opt Out. Notwithstanding the foregoing, you have the right to opt out of the arbitration provisions of this Arbitration Agreement by mailing written notice of your decision to opt out to the following address: WEVR Inc., 550 Rose Ave, Venice, CA 90291, Attn: Legal Department. To be effective, your opt-out notice must be postmarked within 30 days of your first use of the WEVR Properties. If you timely send this notice, then the obligation to arbitrate disputes will not apply to either party and you must litigate pursuant to subparagraph (o) below. If you do not timely send this notice, then you agree to be bound by this Arbitration Agreement in its entirety.
c) Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to WEVR should be sent to: WEVR Inc., 550 Rose Ave, Venice, CA 90291, Attn: Legal Department. After the Notice is received, you and WEVR may attempt to resolve the claim or dispute informally. If you and WEVR do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
d) Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Agreement. The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Notwithstanding anything to the contrary in the Agreement, if the arbitrator grants you an award that is greater than the last settlement offer that WEVR made to you prior to the initiation of arbitration, WEVR will pay you the greater of the award or US $2,500.
e) Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
f) Time Limits. If you or WEVR pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
g) Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and WEVR, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Agreement. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and WEVR.
h) Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT (OTHER THAN A SMALL CLAIMS COURT) AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court.
i) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in a court located in Los Angeles County, California.
j) Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
k) Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
l) Survival of Agreement. This Arbitration Agreement will survive the termination of your user relationship with WEVR.
m) Small Claims Court. Notwithstanding the foregoing, either you or WEVR may bring an individual action in small claims court.
n) Emergency Injunctive Relief. Notwithstanding the foregoing, either party may seek emergency injunctive relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
o) Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, and for claims involving users who have delivered an effective opt-out notice pursuant to subparagraph (b) above, the parties hereby agree to submit to the personal jurisdiction of the courts located within Los Angeles County, California, for such purpose.
p) Modification. Notwithstanding any provision in these Agreement to the contrary, we agree that if WEVR makes any future material change to this Arbitration Agreement, such change will not apply to any individual claim(s) that you had already provided notice of to WEVR prior to the effective date of the change.
10. International Users. The WEVR Properties can be accessed from countries around the world and may contain references to WEVR Properties that are not available in your country. These references do not imply that WEVR intends to introduce such WEVR Properties in your country. The WEVR Properties are controlled and offered by WEVR from its facilities in the United States of America. WEVR makes no representations that the WEVR Properties are appropriate or available for use in other locations. Those who access or use the WEVR Properties from other jurisdictions do so at their own volition and are responsible for compliance with local law.
11. General Provisions.
a) Electronic Communications. The communications between you and WEVR use electronic means, whether you visit WEVR Properties or send WEVR e-mails, or whether WEVR posts notices on WEVR Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from WEVR in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that WEVR provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
b) Release. You hereby release WEVR Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from third parties of any kind, including without limitation, the Host Platform, arising in connection with or as a result of the Agreement or your use of WEVR Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her must have materially affected his or her settlement with the debtor.
c) Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without WEVR’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
d) Force Majeure. WEVR shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
e) Compliance. If you believe that WEVR has not adhered to the Agreement, please contact WEVR by emailing us at support@wevr.com. We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation.
f) Limitations Period. YOU AND WEVR AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE AGREEMENT OR WEVR PROPERTIES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
g) Choice of Language. It is the express wish of the parties that the Agreement and all related documents have been drawn up in English. C’est law volone expresse des parties que la presente convention ainsi que les documents qui s’y rattacent soient rediges en anglais.
h) Notice. Where WEVR requires that you provide an e-mail address, you are responsible for providing WEVR with your most current e-mail address. In the event that the last e-mail address you provided to WEVR is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, WEVR’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to WEVR at the following address: WEVR Inc., 550 Rose Ave, Venice, CA 90291, Attn: Legal Department. Such notice shall be deemed given when received by WEVR by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
i) Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
j) Severability. If any provision of the Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of the Agreement will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
k) Export Control. You may not use, export, import, or transfer WEVR Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained WEVR Properties, and any other applicable laws. In particular, but without limitation, WEVR Properties may not be exported or re-exported (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using WEVR Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use WEVR Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by WEVR are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer WEVR products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
l) Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
m) Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
Last Updated: 4 April 2016
This WEVR End User Agreement ("Agreement") is a legal document that explains your rights and obligations as a user of the WEVR Properties (as defined below). Please read it carefully.
BY CLICKING ON ‘I ACCEPT’ OR A SIMILAR BUTTON, DOWNLOADING, INSTALLING, ACCESS AND/OR VIEWING, PLAYING, OR OTHERWISE USING ANY OF WEVR’S GAMES, VIDEOS, INTERACTIVE VIRTUAL REALITY EXPERIENCES, OR OTHER MEDIA (“WEVR MEDIA”), YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS, AND YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH WEVR, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE AGREEMENT PERSONALLY OR ON BEHALF OF THE LEGAL ENTITY YOU REPRESENT, AND TO BIND THAT LEGAL ENTITY TO THE AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THE AGREEMENT, YOU MAY NOT DOWNLOAD, INSTALL, ACCESS, VIEW, PLAY, OR OTHERWISE USE THE WEVR MEDIA, INCLUDING WITHOUT LIMITATION, THE INFORMATION AND CONTENT (AS DEFINED BELOW) AVAILABLE IN THE WEVR MEDIA (COLLECTIVELY, THE “WEVR PROPERTIES”).
THE AGREEMENT INCLUDES A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIALS, AND REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES.
THE AGREEMENT LIMITS THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
PLEASE NOTE THAT The AGREEMENT IS subject to change by WEVR in its sole discretion at any time. When changes are made, WEVR will make a new copy of the Agreement available on the third party platform on which the WEVR Media is hosted (“Host Platform”). We will also update the “Last Updated” date at the top of the Agreement. WEVR may require you to provide consent to the updated Agreement in a specified manner before further use of the WEVR Properties is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using all of the WEVR Properties. Otherwise, your continued use of the WEVR Properties constitutes your acceptance of such change(s). YOU MAY DOWNLOAD, SAVE, AND PRINT A COPY OF THE CURRENT AGREEMENT AT ANY TIME BY VISITING THE HOST PLATFORM. PLEASE REGULARLY CHECK THE HOST PLATFORM TO VIEW THE THEN-CURRENT AGREEMENT.
1. Use of the Services and WEVR Properties. The WEVR Properties are protected by copyright laws throughout the world. Subject to the Agreement and the timely payment of any required fees to the Host Platform and/or WEVR, as applicable, WEVR grants you a limited license to reproduce portions of the WEVR Properties for the sole purpose of using the WEVR Properties for your personal purposes. Unless otherwise specified by WEVR in a separate license, your right to use any WEVR Properties is subject to the Agreement.
a) Updates. You understand that the WEVR Properties are evolving. As a result, WEVR may require you to accept updates to the WEVR Properties installed on your computer, mobile device, headset, or other equipment. To the extent permissible by applicable law, you acknowledge and agree that WEVR may update the WEVR Properties with or without notifying you. You may need to update third-party software from time to time in order to continue using the WEVR Properties. You understand that this Agreement does not entitle you to future updates, new versions or other enhancements of the WEVR Properties, although WEVR may choose to provide such updates, etc. in its sole discretion.
b) Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the WEVR Properties or any portion of the WEVR Properties; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other WEVR Properties (including images, text, page layout or form) of WEVR; (c) you shall not use any metatags or other “hidden text” using WEVR’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the WEVR Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from the WEVR Properties (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the WEVR’s website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access the WEVR Properties in order to build a similar or competitive product or service; and (g) except as expressly stated herein, no part of the WEVR Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update or other addition to the WEVR Properties shall be subject to the Agreement. WEVR, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of the WEVR Properties terminates the licenses granted by WEVR pursuant to the Agreement.
c) Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the WEVR Properties, including but not limited to, a virtual reality headset that is suitable to connect with and use the WEVR Properties. You are solely responsible for any fees, including without limitation, Host Platform fees, Internet connection or mobile fees, that you incur in connection with your download, installation, or other use of the WEVR Properties.
2. Ownership.
a) WEVR Properties. You agree that WEVR and its licensors own all rights, title and interest in the WEVR Properties, including without limitation, all information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through the WEVR Properties (“Content”). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the WEVR Properties.
b) Trademarks. WEVR’s stylized name and other related graphics, logos, service marks and trade names used on or in connection with the WEVR Properties are the trademarks of WEVR and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the WEVR Properties are the property of their respective owners.
c) Feedback. As between you and WEVR, you agree that submission of any ideas, suggestions, documents, and/or proposals by you to WEVR or Host Platform regarding WEVR Properties (“Feedback”) is at your own risk and that WEVR and Host Platform have no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to WEVR a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the WEVR Properties.
3. Investigations. WEVR may, but is not obligated to, monitor or review the use of WEVR Properties by users at any time. WEVR is not responsible for and does not control the actions of any third parties, including without limitation, users or the Host Platform. Although WEVR does not generally monitor user activity occurring in connection with WEVR Properties, if WEVR becomes aware of any possible violations by you of any provision of the Agreement, WEVR reserves the right to investigate such violations, and WEVR may, at its sole discretion, immediately terminate your license to use WEVR Properties, or change, alter or remove any Content, in whole or in part, without prior notice to you.
4. Third-Party Services.
a) Third-Party Websites and Applications. WEVR Properties may contain links to third-party websites and applications (“Third-Party Websites & Applications”). When you click on a link to a third-party website or application, we will not warn you that you have left the WEVR Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites & Applications are not under the control of WEVR. WEVR is not responsible for any Third-Party Websites & Applications. WEVR provides these Third-Party Websites & Applications only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites & Applications, or their products or services. You use all links in Third-Party Websites & Applications at your own risk. When you leave the WEVR Properties, our Agreement and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites & Applications, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third-party.
5. Indemnification. You agree to indemnify and hold WEVR, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively the “WEVR Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) your use of, or inability to use, the WEVR Properties; (b) your violation of the Agreement; (c) your violation of any rights of another party, including any user or the Host Platform; or (d) your violation of any applicable laws, rules or regulations. WEVR reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with WEVR in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Agreement, or your access to the WEVR Properties.
6. Disclaimer of Warranties.
a) As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE WEVR PROPERTIES IS AT YOUR SOLE RISK, AND THE WEVR PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. THE WEVR PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
i. THE WEVR PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE WEVR PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE WEVR PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE VIRUS-FREE, OR ERROR-FREE; (3) THE WEVR PROPERTIES WILL BE ACCURATELY DISPLAYED OR BE COMPATIBLE WITH ANY HARDWARE OTHER THAN THE HARDWARE SPECIFIED BY WEVR IN THE DOCUMENTATION ON THE HOST PLATFORM; OR (4) ANY ERRORS IN THE WEVR PROPERTIES WILL BE CORRECTED.
ii. ANY WEVR PROPERTIES DOWNLOADED FROM, INSTALLED, PLAYED, USED, VIEWED, OR OTHERWISE ACCESSED THROUGH THE HOST PLATFORM IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM, MOBILE DEVICE, HEADSET, AND ANY OTHER DEVICE YOU USE TO ACCESS THE WEVR PROPERTIES, OR ANY OTHER LOSS, INCLUDING WITHOUT LIMITATION, DATA LOSS, THAT RESULTS FROM ACCESSING THE WEVR PROPERTIES.
iii. From time to time, WEVR may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at WEVR’s sole discretion. The provisions of this section apply with full force to such features or tools.
b) No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT THE WEVR PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE WEVR PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING THE HOST PLATFORM AND OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
7. Limitation of Liability.
a) Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL WEVR PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH WEVR PROPERTIES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT WEVR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR THE WEVR PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE WEVR PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION, THE HOST PLATFORM; OR (5) ANY OTHER MATTER RELATED TO WEVR PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
b) Cap on Liability. UNDER NO CIRCUMSTANCES WILL WEVR PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT RECEIVED BY WEVR AS A RESULT OF YOUR USE OF THE WEVR PROPERTIES. WEVR’S SOLE AND EXCLUSIVE LIABILITY SHALL BE LIMITED TO THE LESSER OF ONE HUNDRED DOLLARS ($100) OR THE AMOUNT YOU HAVE PAID FOR THE WEVR MEDIA GIVING RISE TO THE CLAIM OF LIABILITY WITHIN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM OF LIABILITY.
c) User Content. THE WEVR PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT.
d) Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN WEVR AND YOU.
THE LAWS OF SOME STATES DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU AND YOU MIGHT HAVE OTHER RIGHTS.
8. Term and Termination.
a) Term. The Agreement commences on the date when you accept it (as described in the preamble above) and remains in full force and effect while you use the WEVR Properties, unless terminated earlier in accordance with the Agreement.
b) Termination. If you have materially breached any provision of the Agreement, if we are required to do so by law (e.g., where the provision of any of the WEVR Properties is, or becomes, unlawful, for instance, if we receive an notice of a claim that an Experience is infringing the rights of a third party), or if we choose to discontinue the WEVR Properties (in part or in whole), we have the right to, immediately and without notice, suspend or terminate any WEVR Properties provided to you. If we become aware of any possible violations by you of the Agreement, we reserve the right to investigate such violations. In the event that we determine, in our sole discretion, that you have breached any portion of the Agreement, or have otherwise demonstrated inappropriate conduct, we reserve the right to (i) warn you via e-mail (to any e-mail address you have provided to us) that you have violated the Agreement; (ii) notify and/or fully cooperate with the proper law enforcement authorities for further action; and/or (iii) pursue any other action which we deem to be appropriate. If, as a result of the investigation, we believe that illegal activity has occurred, we reserve the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. We are entitled, except to the extent prohibited by applicable law, to disclose any information or materials related to the WEVR Properties in our possession in connection with your use of the WEVR Properties, to (i) comply with applicable laws, legal process or governmental request; (ii) enforce the Agreement; (iii) respond to your requests for customer service; or (iv) protect the rights, property or personal safety of WEVR, its users or the public, and to comply with the requests of all law enforcement or other government officials, as we in our sole discretion believe to be necessary or appropriate. We reserve the right, in our sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you. You agree that all terminations shall be made in our sole discretion and that we shall not be liable to you or any third-party for enforcing this provision.
c) Effect of Termination. Upon termination of this Agreement, your right to use the WEVR Properties will automatically terminate immediately. WEVR will not have any liability whatsoever to you for any suspension or termination, including for deletion of any Content. All provisions of the Agreement which by their nature should survive, shall survive termination of the Agreement, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
9. Arbitration
a) Applicability of Arbitration Agreement. Except as expressly provided herein, all claims and disputes (excluding claims for emergency injunctive relief as set forth below) in connection with the Agreement or the use of any product or service provided by WEVR that cannot be resolved informally or in small claims court shall be resolved exclusively by binding arbitration on an individual basis under the terms of this arbitration provision (“Arbitration Agreement”). Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and WEVR, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Agreement.
b) 30-Day Right to Opt Out. Notwithstanding the foregoing, you have the right to opt out of the arbitration provisions of this Arbitration Agreement by mailing written notice of your decision to opt out to the following address: WEVR Inc., 550 Rose Ave, Venice, CA 90291, Attn: Legal Department. To be effective, your opt-out notice must be postmarked within 30 days of your first use of the WEVR Properties. If you timely send this notice, then the obligation to arbitrate disputes will not apply to either party and you must litigate pursuant to subparagraph (o) below. If you do not timely send this notice, then you agree to be bound by this Arbitration Agreement in its entirety.
c) Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to WEVR should be sent to: WEVR Inc., 550 Rose Ave, Venice, CA 90291, Attn: Legal Department. After the Notice is received, you and WEVR may attempt to resolve the claim or dispute informally. If you and WEVR do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
d) Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Agreement. The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Notwithstanding anything to the contrary in the Agreement, if the arbitrator grants you an award that is greater than the last settlement offer that WEVR made to you prior to the initiation of arbitration, WEVR will pay you the greater of the award or US $2,500.
e) Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
f) Time Limits. If you or WEVR pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
g) Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and WEVR, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Agreement. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and WEVR.
h) Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT (OTHER THAN A SMALL CLAIMS COURT) AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court.
i) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in a court located in Los Angeles County, California.
j) Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
k) Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
l) Survival of Agreement. This Arbitration Agreement will survive the termination of your user relationship with WEVR.
m) Small Claims Court. Notwithstanding the foregoing, either you or WEVR may bring an individual action in small claims court.
n) Emergency Injunctive Relief. Notwithstanding the foregoing, either party may seek emergency injunctive relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
o) Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, and for claims involving users who have delivered an effective opt-out notice pursuant to subparagraph (b) above, the parties hereby agree to submit to the personal jurisdiction of the courts located within Los Angeles County, California, for such purpose.
p) Modification. Notwithstanding any provision in these Agreement to the contrary, we agree that if WEVR makes any future material change to this Arbitration Agreement, such change will not apply to any individual claim(s) that you had already provided notice of to WEVR prior to the effective date of the change.
10. International Users. The WEVR Properties can be accessed from countries around the world and may contain references to WEVR Properties that are not available in your country. These references do not imply that WEVR intends to introduce such WEVR Properties in your country. The WEVR Properties are controlled and offered by WEVR from its facilities in the United States of America. WEVR makes no representations that the WEVR Properties are appropriate or available for use in other locations. Those who access or use the WEVR Properties from other jurisdictions do so at their own volition and are responsible for compliance with local law.
11. General Provisions.
a) Electronic Communications. The communications between you and WEVR use electronic means, whether you visit WEVR Properties or send WEVR e-mails, or whether WEVR posts notices on WEVR Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from WEVR in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that WEVR provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
b) Release. You hereby release WEVR Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from third parties of any kind, including without limitation, the Host Platform, arising in connection with or as a result of the Agreement or your use of WEVR Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her must have materially affected his or her settlement with the debtor.
c) Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without WEVR’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
d) Force Majeure. WEVR shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
e) Compliance. If you believe that WEVR has not adhered to the Agreement, please contact WEVR by emailing us at support@wevr.com. We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation.
f) Limitations Period. YOU AND WEVR AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE AGREEMENT OR WEVR PROPERTIES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
g) Choice of Language. It is the express wish of the parties that the Agreement and all related documents have been drawn up in English. C’est law volone expresse des parties que la presente convention ainsi que les documents qui s’y rattacent soient rediges en anglais.
h) Notice. Where WEVR requires that you provide an e-mail address, you are responsible for providing WEVR with your most current e-mail address. In the event that the last e-mail address you provided to WEVR is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, WEVR’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to WEVR at the following address: WEVR Inc., 550 Rose Ave, Venice, CA 90291, Attn: Legal Department. Such notice shall be deemed given when received by WEVR by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
i) Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
j) Severability. If any provision of the Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of the Agreement will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
k) Export Control. You may not use, export, import, or transfer WEVR Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained WEVR Properties, and any other applicable laws. In particular, but without limitation, WEVR Properties may not be exported or re-exported (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using WEVR Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use WEVR Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by WEVR are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer WEVR products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
l) Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
m) Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.