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BEAST PETS
BETA END USER LICENSE AGREEMENT
Last Updated: June 15, 2017
IMPORTANT – READ CAREFULLY. THIS BETA END USER LICENSE AGREEMENT (THE “AGREEMENT”) SETS FORTH THE LEGAL AGREEMENT BETWEEN YOU AND BEAST, INC. (“BEAST” OR “WE”) RELATING TO YOUR USE OF THE BEAST SOFTWARE (THE “SOFTWARE”). IN PARTICULAR, THIS AGREEMENT REQUIRES THAT ANY DISPUTE BETWEEN YOU AND US MUST BE RESOLVED THROUGH THE DISPUTE RESOLUTION PROCESS DESCRIBED IN SECTION 14 BELOW WHICH INCLUDES BINDING ARBITRATION AND A CLASS ACTION.
BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE YOU AGREE THAT YOU HAVE READ AND AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, THEN DO NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE.
THE SOFTWARE IS DESIGNED FOR USE ON A VIRTUAL REALITY PLATFORM. TO REDUCE THE RISKS OF PERSONAL INJURY, DISCOMFORT AND/OR PROPERTY DAMAGE, PLEASE MAKE SURE THAT YOU READ AND COMPLY WITH ALL WARNINGS, GUIDELINES AND INSTRUCTIONS ASSOCIATED WITH THE USE OF VIRTUAL REALITY PLATFORMS AND RELATED HARDWARE, SOFTWARE AND SERVICES, INCLUDING THOSE SET FORTH IN SECTION 10 OF THIS AGREEMENT. IF THE SOFTWARE WILL BE USED OR PLAYED BY CHILDREN, AN ADULT SHOULD ALWAYS BE PRESENT TO MONITOR CHILDREN WHO ARE USING OR PLAYING THE SOFTWARE AND TO EXPLAIN THIS HEALTH AND SAFETY INFORMATION.
If you have any questions about these End User License Agreement Terms or the Software, please contact us at support@beastpets.com.
1. Software
The term “Software” as used herein means (a) any software provided by Beast that is designed to be downloaded and installed on Your computer and/or any device that you will use to access, operate or play the software; in each case including all associated media, printed or electronic documentation, content, functionality, or services, updates, and support services.
2. Beta
You acknowledge that this is a preliminary “Beta” version of the Software that has not been fully tested and may not yet be fully functional. Therefore, you understand that the Software may be subject to certain limitations, may contain bugs, may not operate properly or perform all intended functions, and may cause errors or other problems.
3. Privacy
Please refer to our Privacy Policy (http://www.beastpets.com/privacy) for information about how we collect, use and disclose information about you in connection with your use of the Software.
4. License
Subject to the terms and conditions of this Agreement, we grant to you a limited, personal, non-exclusive, non-transferable, non-sublicensable license to download, install, and use one copy of the Software on a single Software-compatible device or controlled by you solely for your personal entertainment use in accordance with this Agreement (collectively, the “Permitted Use”). The Software is licensed, and not sold, to you.
5. Additional Conditions and Restrictions.
The license granted in this Agreement does not authorize you to, and you will not (directly or indirectly): (i) use the Software for any purpose, commercial or otherwise, other than the Permitted Use; (ii) copy the Software (except to the extent otherwise expressly permitted under this Agreement, if at all); (iii) modify, adapt, alter, translate or create derivative works of the Software; (iv) reverse engineer, decompile, disassemble, decode or otherwise attempt to discover the source code, architecture, structure or underlying technology of the Software; (v) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Software; (vi) sell, resell, rent, lease, loan, sublicense, distribute, transfer or otherwise provide access to the Software to any other person (including at or through a gaming center or application service or on a network where it is capable of being accessed by more than one device at any time); (vii) use the Software for purposes of engaging in any activities in violation of applicable law or development of a competing product, service or offering; (viii) use the Software for any purpose (including on any device or platform) for which it was not designed or for which is it not compatible; or (ix) attempt to gain unauthorized access to, interfere with, remove, disable, circumvent, damage or disrupt any portions of the Software (including any copy protection, rights management, access control or security features with respect thereto), including any servers, databases or accounts relating to any of the foregoing. We shall have the right (but not the obligation) to monitor your use of the Software to confirm your compliance with the terms of this Agreement. All rights in and to the Software not expressly granted to you in this Agreement are expressly reserved by us and our licensors. (Any use of the Software other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein.
6. Copyright and Trademark
The Software is owned by Beast and is protected under both United States and foreign laws. Except for the limited license granted to you as explicitly stated in this Agreement, Beast and our licensors reserve all rights in and to the Software, including all text, graphics, images, photographs, videos, illustrations, computer code, audiovisual effects, themes, characters, character names, stories, dialog, settings, artwork, sound effects, musical works and other content contained therein.
BEAST, BEAST PETS, the Beast and Beast Pets logos, and any other Beast product or service name or slogan contained in the Software are trademarks of Beast, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Beast or the applicable trademark holder. You may not use any metatags or any other "hidden text" utilizing "Beast," “Beast Pets,” or any other name, trademark or product or service name of Beast without our prior written permission. In addition, the look and feel of the Software, the service mark, trademark and/or trade dress of Beast and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Software are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by us.
7. Feedback and Release
Any questions, comments, suggestions, ideas, original or creative materials or other information you submit about Beast, the Software, our other products, or our Website (collectively, “Feedback”), is non-confidential and will become the sole property of Beast. We will own exclusive rights, including, without limitation, all intellectual property rights, in and to Feedback and will be entitled to the unrestricted use and dissemination of Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
8. Third Party Content
The Software may display, include or make available third party content and may provide links to Web pages and content of third parties (collectively the "Third Party Content") as a service to those interested in this information. Beast does not control, endorse or adopt any Third Party Content and makes no representation or warranties of any kind regarding the Third Party Content, including without limitation regarding its accuracy or completeness. You acknowledge and agree that Beast is not responsible or liable in any manner for any Third Party Content and undertakes no responsibility to update or review any Third Party Content. Users use such Third Party Content contained therein at their own risk.
9. Indemnification
To the fullest extent permitted by applicable law, you will indemnify, defend, and hold harmless Beast and our respective officers, directors, agents, partners and employees (individually and collectively, the “Beast Parties”) from and against any loss, liability, claim, demand, damages, expenses or costs (“Claims”) arising out of or related to (a) your Feedback; (b) your violation of this Agreement; or (c) your conduct in connection with using our Software. You agree to promptly notify Beast Parties of any third party Claims, cooperate with Beast Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys’ fees). You also agree that the Beast Parties will have control of the defense or settlement of any third party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Beast or the other Beast Parties.
10. HEALTH AND SAFETY WARNINGS.
YOU UNDERSTAND AND AGREE THAT THE SOFTWARE IS DESIGNED FOR USE ON A VIRTUAL REALITY PLATFORM AND THAT THERE ARE INHERENT RISKS OF PERSONAL INJURY, DISCOMFORT AND/OR PROPERTY DAMAGE THAT ARE ASSOCIATED WITH VIRTUAL REALITY PLATFORMS AND THE SOFTWARE. TO REDUCE THESE RISKS IT IS IMPORTANT THAT YOU READ, EVALUATE AND FOLLOW ALL HEALTH AND SAFETY WARNINGS, GUIDELINES AND/OR INSTRUCTIONS WITH RESPECT TO THE VIRTUAL REALITY PLATFORM (INCLUDING ALL HEADSETS AND OTHER HARDWARE, SOFTWARE AND SERVICES) THAT YOU ARE USING. YOU ARE RESPONSIBLE FOR READING, EVALUATING, AND FOLLOWING THESE GUIDELINES, WARNINGS AND INSTRUCTIONS. THESE HEALTH AND SAFETY PRECAUTIONS ARE NOT INTENDED TO BE AN EXHAUSTIVE LIST, AND USE OF THE SOFTWARE MAY INVOLVE OTHER HEALTH AND/OR SAFETY RISKS NOT CONTAINED HEREIN.
Playing video games (especially virtual reality games and experiences), including the Software, may cause motion sickness in some users. A comfortable virtual reality experience requires an unimpaired sense of motion and balance. To limit the risk of motion sickness while using the Software, do not use the Software when you are tired, need sleep, under the influence of alcohol or drugs, hung-over, have digestive problems, under emotional stress or anxiety, or suffering from cold, flu, headaches, migraines, or earaches, as this can increase your susceptibility to adverse symptoms. In addition, it is recommended that you see a doctor before using the Software if you are pregnant, elderly, have pre-existing binocular vision abnormalities or psychiatric disorders, suffer from a heart condition or other serious medical condition, or use a pacemaker or other medical device. Limit your time in virtual reality and take breaks regularly. If you experience discomfort or dizziness, please remove the headset.
Some people may have severe dizziness, seizures, eye or muscle twitching or blackouts triggered by light flashes or patterns, and this may occur while they are watching TV, playing video games or experiencing virtual reality – even if they have never had a seizure or blackout before or have no history of seizures or epilepsy. Such seizures are more common in children and young people under the age of 20. Anyone who experiences any of these symptoms should discontinue use of the Software and see a doctor. Anyone who previously has had a seizure, loss of awareness, or other symptom linked to an epileptic condition should see a doctor before using the Software. Parents and guardians should watch their children while using the Software. Stop using the Software and consult a doctor if you or your child have any of the following symptoms:
TO REDUCE THE LIKELIHOOD OF HEALTH ISSUES SUCH AS A SEIZURE OR EPILEPTIC SYMPTOMS DO NOT USE THE SOFTWARE WHEN TIRED OR NEED SLEEP AND TAKE 10 OR 15 MINUTE BREAKS EVERY 30 MINUTES WHILE USING THE SOFTWARE.
PLEASE BE AWARE OF YOUR PHYSICAL SURROUNDINGS AT ALL TIMES AND MAKE SURE THAT THE PLAY AREA AND SURROUNDING SPACE IS SAFE AND FREE OF POTENTIAL HAZARDS. Give yourself plenty of room to play in an area that clear of any objects or people that could be hit while you are immersed in a virtual reality game or experience, and that is far from stairs, balconies, windows, walls, furniture, heat sources, tripping hazards, or other objects that may pose a danger to you when you are immersed in a game or experience while wearing a virtual reality headset. A minimum 6ft by 6ft unobstructed play area is recommended. Do not use the Software while engaging in activities that require attention, such as walking, bicycling, or driving, or while handling sharp or dangerous objects.
If the Software will be used by children, an adult should always be present to monitor children who are using the Software and to read and explain this health and safety information. Adults should monitor children closely for any negative effects during and after their use of the Software. Prolonged use should be avoided, as it could negatively impact hand-eye coordination, balance, and multi-tasking ability.
11. Disclaimers
WE DO NOT CONTROL, ENDORSE OR TAKE RESPONSIBILITY FOR ANY DEVICES, EQUIPMENT, PLATFORMS, OR OTHER SOFTWARE THAT MAY BE USED IN CONNECTION WITH THE SOFTWARE.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR ACCESS TO AND USE OF THE SOFTWARE IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND BEAST EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) AS TO THE SOFTWARE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, BEAST DOES NOT REPRESENT OR WARRANT THAT (A) THE SOFTWARE WILL BE ACCURATE OR MEET YOUR REQUIREMENTS, (B) THE OPERATION OF THE SOFTWARE WILL BE SECURE, UNINTERRUPTED, ERROR-FREE OR VIRUS-FREE, OR (C) ANY DEFECTS IN THE SOFTWARE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION, GUIDELINES OR ADVICE GIVEN BY BEAST WILL CREATE A WARRANTY. THE FOREGOING DISCLAIMER OF WARRANTIES WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE LAWS OF SOME STATES OR JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO SOME OR ALL OF THE DISCLAIMERS IN THIS SECTION MAY NOT APPLY TO YOU. BEAST CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD.
12. Limitation of Liability
BEAST AND THE OTHER BEAST PARTIES WILL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY—WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, WARRANTY, OR OTHERWISE—FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES OR LOST PROFITS, EVEN IF BEAST OR THE OTHER BEAST PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE TOTAL LIABILITY OF BEAST AND THE OTHER BEAST PARTIES, FOR ANY CLAIM ARISING OUT OF OR RELATING TO THE SOFTWARE, REGARDLESS OF THE FORM OF THE ACTION, IS LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO ACCESS OR USE THE SOFTWARE GIVING RISE TO THE CLAIM (AND NOT ANY DEVICE NECESSARY TO USE THE SOFTWARE).
THE LIMITATIONS SET FORTH IN THIS SECTION WILL NOT LIMIT OR EXCLUDE LIABILITY FOR THE GROSS NEGLIGENCE, FRAUD OR INTENTIONAL MISCONDUCT OF BEAST OR THE OTHER BEAST PARTIES OR FOR ANY OTHER MATTERS IN WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. ADDITIONALLY, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
13. Release
To the fullest extent permitted by applicable law, you release Beast and the other Beast Parties from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. You expressly waive any rights you may have under California Civil Code § 1542 as well as any other statute or common law principles that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
14. Dispute Resolution; Binding Arbitration
Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Beast and limits the manner in which you can seek relief from us.
Except for small claims disputes in which you or Beast seek to bring an individual action in small claims court located in the county of your billing address or disputes in which you or Beast seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and Beast waive your rights to a jury trial and to have any dispute arising out of or related to the Software and your use thereof resolved in court. Instead, all disputes arising out of or relating to the Software and your use thereof will be resolved through confidential binding arbitration held in San Francisco County, California in accordance with the Streamlined Arbitration Rules and Procedures (“Rules”) of the Judicial Arbitration and Mediation Site (“JAMS”), which are available on the JAMS website (http://www.jamsadr.com) and hereby incorporated by reference. You either acknowledge and agree that you have read and understand the rules of JAMS or waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.
You and Beast agree that any dispute arising out of or related to the Software and your use thereof is personal to you and Beast and that any dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding.
You and Beast agree that this Agreement affects interstate commerce and that the enforceability of this Section 14 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, this Agreement and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by this Agreement. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. You and Beast agree that for any arbitration you initiate, you will pay the filing fee and Beast will pay the remaining JAMS fees and costs. For any arbitration initiated by Beast, Beast will pay all JAMS fees and costs. You and Beast agree that the state or federal courts of the State of California and the United States sitting in San Francisco County, California have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
ANY CLAIM ARISING OUT OF OR RELATED TO THE SOFTWARE OR YOUR USE THEREOF MUST BE FILED WITHIN ONE YEAR AFTER SUCH CLAIM AROSE; OTHERWISE, THE CLAIM IS PERMANENTLY BARRED, WHICH MEANS THAT YOU AND BEAST WILL NOT HAVE THE RIGHT TO ASSERT THE CLAIM.
You have the right to opt out of binding arbitration within 30 days of the date you first use the Software by emailing us at support@beastpets.com. In order to be effective, the opt out notice must include your full name and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 15.
15. Governing Law and Venue
This Agreement and your access to and use of will be governed by and construed and enforced in accordance with the laws of California, without regard to conflict of law rules or principles (whether of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of California and the United States, respectively, sitting in San Francisco County, California.
16. Changes to these End User License Agreement Terms
We may make changes to these End User License Agreement Terms from time to time. If we make changes, we will post the amended End User License Agreement Terms to our Software and update the “Last Updated” date above. We may also attempt to notify you by sending an email notification to the address associated with your account or providing notice through our Software or Website. Unless we say otherwise in our notice, the amended End User License Agreement Terms will be effective immediately and your continued access to and use of our Software after we provide notice will confirm your acceptance of the changes. If you do not agree to the amended End User License Agreement Terms, you must stop accessing and using our Software.
17. Termination
We reserve the right, without notice and in our sole discretion, to terminate your right to access or use our Software. We are not responsible for any loss or harm related to your inability to access or use our Software.
18. Severability
If any provision or part of a provision of these End User License Agreement Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these End User License Agreement Terms and does not affect the validity and enforceability of any remaining provisions.
19. Miscellaneous
These End User License Agreement Terms constitute the entire agreement between you and Beast relating to your access to and use of our Software. The failure of Beast to exercise or enforce any right or provision of these End User License Agreement Terms will not operate as a waiver of such right or provision. The section titles in these End User License Agreement Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these End User License Agreement Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.
BETA END USER LICENSE AGREEMENT
Last Updated: June 15, 2017
IMPORTANT – READ CAREFULLY. THIS BETA END USER LICENSE AGREEMENT (THE “AGREEMENT”) SETS FORTH THE LEGAL AGREEMENT BETWEEN YOU AND BEAST, INC. (“BEAST” OR “WE”) RELATING TO YOUR USE OF THE BEAST SOFTWARE (THE “SOFTWARE”). IN PARTICULAR, THIS AGREEMENT REQUIRES THAT ANY DISPUTE BETWEEN YOU AND US MUST BE RESOLVED THROUGH THE DISPUTE RESOLUTION PROCESS DESCRIBED IN SECTION 14 BELOW WHICH INCLUDES BINDING ARBITRATION AND A CLASS ACTION.
BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE YOU AGREE THAT YOU HAVE READ AND AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, THEN DO NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE.
THE SOFTWARE IS DESIGNED FOR USE ON A VIRTUAL REALITY PLATFORM. TO REDUCE THE RISKS OF PERSONAL INJURY, DISCOMFORT AND/OR PROPERTY DAMAGE, PLEASE MAKE SURE THAT YOU READ AND COMPLY WITH ALL WARNINGS, GUIDELINES AND INSTRUCTIONS ASSOCIATED WITH THE USE OF VIRTUAL REALITY PLATFORMS AND RELATED HARDWARE, SOFTWARE AND SERVICES, INCLUDING THOSE SET FORTH IN SECTION 10 OF THIS AGREEMENT. IF THE SOFTWARE WILL BE USED OR PLAYED BY CHILDREN, AN ADULT SHOULD ALWAYS BE PRESENT TO MONITOR CHILDREN WHO ARE USING OR PLAYING THE SOFTWARE AND TO EXPLAIN THIS HEALTH AND SAFETY INFORMATION.
If you have any questions about these End User License Agreement Terms or the Software, please contact us at support@beastpets.com.
1. Software
The term “Software” as used herein means (a) any software provided by Beast that is designed to be downloaded and installed on Your computer and/or any device that you will use to access, operate or play the software; in each case including all associated media, printed or electronic documentation, content, functionality, or services, updates, and support services.
2. Beta
You acknowledge that this is a preliminary “Beta” version of the Software that has not been fully tested and may not yet be fully functional. Therefore, you understand that the Software may be subject to certain limitations, may contain bugs, may not operate properly or perform all intended functions, and may cause errors or other problems.
3. Privacy
Please refer to our Privacy Policy (http://www.beastpets.com/privacy) for information about how we collect, use and disclose information about you in connection with your use of the Software.
4. License
Subject to the terms and conditions of this Agreement, we grant to you a limited, personal, non-exclusive, non-transferable, non-sublicensable license to download, install, and use one copy of the Software on a single Software-compatible device or controlled by you solely for your personal entertainment use in accordance with this Agreement (collectively, the “Permitted Use”). The Software is licensed, and not sold, to you.
5. Additional Conditions and Restrictions.
The license granted in this Agreement does not authorize you to, and you will not (directly or indirectly): (i) use the Software for any purpose, commercial or otherwise, other than the Permitted Use; (ii) copy the Software (except to the extent otherwise expressly permitted under this Agreement, if at all); (iii) modify, adapt, alter, translate or create derivative works of the Software; (iv) reverse engineer, decompile, disassemble, decode or otherwise attempt to discover the source code, architecture, structure or underlying technology of the Software; (v) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Software; (vi) sell, resell, rent, lease, loan, sublicense, distribute, transfer or otherwise provide access to the Software to any other person (including at or through a gaming center or application service or on a network where it is capable of being accessed by more than one device at any time); (vii) use the Software for purposes of engaging in any activities in violation of applicable law or development of a competing product, service or offering; (viii) use the Software for any purpose (including on any device or platform) for which it was not designed or for which is it not compatible; or (ix) attempt to gain unauthorized access to, interfere with, remove, disable, circumvent, damage or disrupt any portions of the Software (including any copy protection, rights management, access control or security features with respect thereto), including any servers, databases or accounts relating to any of the foregoing. We shall have the right (but not the obligation) to monitor your use of the Software to confirm your compliance with the terms of this Agreement. All rights in and to the Software not expressly granted to you in this Agreement are expressly reserved by us and our licensors. (Any use of the Software other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein.
6. Copyright and Trademark
The Software is owned by Beast and is protected under both United States and foreign laws. Except for the limited license granted to you as explicitly stated in this Agreement, Beast and our licensors reserve all rights in and to the Software, including all text, graphics, images, photographs, videos, illustrations, computer code, audiovisual effects, themes, characters, character names, stories, dialog, settings, artwork, sound effects, musical works and other content contained therein.
BEAST, BEAST PETS, the Beast and Beast Pets logos, and any other Beast product or service name or slogan contained in the Software are trademarks of Beast, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Beast or the applicable trademark holder. You may not use any metatags or any other "hidden text" utilizing "Beast," “Beast Pets,” or any other name, trademark or product or service name of Beast without our prior written permission. In addition, the look and feel of the Software, the service mark, trademark and/or trade dress of Beast and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Software are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by us.
7. Feedback and Release
Any questions, comments, suggestions, ideas, original or creative materials or other information you submit about Beast, the Software, our other products, or our Website (collectively, “Feedback”), is non-confidential and will become the sole property of Beast. We will own exclusive rights, including, without limitation, all intellectual property rights, in and to Feedback and will be entitled to the unrestricted use and dissemination of Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
8. Third Party Content
The Software may display, include or make available third party content and may provide links to Web pages and content of third parties (collectively the "Third Party Content") as a service to those interested in this information. Beast does not control, endorse or adopt any Third Party Content and makes no representation or warranties of any kind regarding the Third Party Content, including without limitation regarding its accuracy or completeness. You acknowledge and agree that Beast is not responsible or liable in any manner for any Third Party Content and undertakes no responsibility to update or review any Third Party Content. Users use such Third Party Content contained therein at their own risk.
9. Indemnification
To the fullest extent permitted by applicable law, you will indemnify, defend, and hold harmless Beast and our respective officers, directors, agents, partners and employees (individually and collectively, the “Beast Parties”) from and against any loss, liability, claim, demand, damages, expenses or costs (“Claims”) arising out of or related to (a) your Feedback; (b) your violation of this Agreement; or (c) your conduct in connection with using our Software. You agree to promptly notify Beast Parties of any third party Claims, cooperate with Beast Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys’ fees). You also agree that the Beast Parties will have control of the defense or settlement of any third party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Beast or the other Beast Parties.
10. HEALTH AND SAFETY WARNINGS.
YOU UNDERSTAND AND AGREE THAT THE SOFTWARE IS DESIGNED FOR USE ON A VIRTUAL REALITY PLATFORM AND THAT THERE ARE INHERENT RISKS OF PERSONAL INJURY, DISCOMFORT AND/OR PROPERTY DAMAGE THAT ARE ASSOCIATED WITH VIRTUAL REALITY PLATFORMS AND THE SOFTWARE. TO REDUCE THESE RISKS IT IS IMPORTANT THAT YOU READ, EVALUATE AND FOLLOW ALL HEALTH AND SAFETY WARNINGS, GUIDELINES AND/OR INSTRUCTIONS WITH RESPECT TO THE VIRTUAL REALITY PLATFORM (INCLUDING ALL HEADSETS AND OTHER HARDWARE, SOFTWARE AND SERVICES) THAT YOU ARE USING. YOU ARE RESPONSIBLE FOR READING, EVALUATING, AND FOLLOWING THESE GUIDELINES, WARNINGS AND INSTRUCTIONS. THESE HEALTH AND SAFETY PRECAUTIONS ARE NOT INTENDED TO BE AN EXHAUSTIVE LIST, AND USE OF THE SOFTWARE MAY INVOLVE OTHER HEALTH AND/OR SAFETY RISKS NOT CONTAINED HEREIN.
Playing video games (especially virtual reality games and experiences), including the Software, may cause motion sickness in some users. A comfortable virtual reality experience requires an unimpaired sense of motion and balance. To limit the risk of motion sickness while using the Software, do not use the Software when you are tired, need sleep, under the influence of alcohol or drugs, hung-over, have digestive problems, under emotional stress or anxiety, or suffering from cold, flu, headaches, migraines, or earaches, as this can increase your susceptibility to adverse symptoms. In addition, it is recommended that you see a doctor before using the Software if you are pregnant, elderly, have pre-existing binocular vision abnormalities or psychiatric disorders, suffer from a heart condition or other serious medical condition, or use a pacemaker or other medical device. Limit your time in virtual reality and take breaks regularly. If you experience discomfort or dizziness, please remove the headset.
Some people may have severe dizziness, seizures, eye or muscle twitching or blackouts triggered by light flashes or patterns, and this may occur while they are watching TV, playing video games or experiencing virtual reality – even if they have never had a seizure or blackout before or have no history of seizures or epilepsy. Such seizures are more common in children and young people under the age of 20. Anyone who experiences any of these symptoms should discontinue use of the Software and see a doctor. Anyone who previously has had a seizure, loss of awareness, or other symptom linked to an epileptic condition should see a doctor before using the Software. Parents and guardians should watch their children while using the Software. Stop using the Software and consult a doctor if you or your child have any of the following symptoms:
- Convulsions;
- Eye or muscle twitching;
- Loss of consciousness or awareness;
- Altered vision;
- Involuntary movements; or
- Disorientation.
TO REDUCE THE LIKELIHOOD OF HEALTH ISSUES SUCH AS A SEIZURE OR EPILEPTIC SYMPTOMS DO NOT USE THE SOFTWARE WHEN TIRED OR NEED SLEEP AND TAKE 10 OR 15 MINUTE BREAKS EVERY 30 MINUTES WHILE USING THE SOFTWARE.
PLEASE BE AWARE OF YOUR PHYSICAL SURROUNDINGS AT ALL TIMES AND MAKE SURE THAT THE PLAY AREA AND SURROUNDING SPACE IS SAFE AND FREE OF POTENTIAL HAZARDS. Give yourself plenty of room to play in an area that clear of any objects or people that could be hit while you are immersed in a virtual reality game or experience, and that is far from stairs, balconies, windows, walls, furniture, heat sources, tripping hazards, or other objects that may pose a danger to you when you are immersed in a game or experience while wearing a virtual reality headset. A minimum 6ft by 6ft unobstructed play area is recommended. Do not use the Software while engaging in activities that require attention, such as walking, bicycling, or driving, or while handling sharp or dangerous objects.
If the Software will be used by children, an adult should always be present to monitor children who are using the Software and to read and explain this health and safety information. Adults should monitor children closely for any negative effects during and after their use of the Software. Prolonged use should be avoided, as it could negatively impact hand-eye coordination, balance, and multi-tasking ability.
11. Disclaimers
WE DO NOT CONTROL, ENDORSE OR TAKE RESPONSIBILITY FOR ANY DEVICES, EQUIPMENT, PLATFORMS, OR OTHER SOFTWARE THAT MAY BE USED IN CONNECTION WITH THE SOFTWARE.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR ACCESS TO AND USE OF THE SOFTWARE IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND BEAST EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) AS TO THE SOFTWARE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, BEAST DOES NOT REPRESENT OR WARRANT THAT (A) THE SOFTWARE WILL BE ACCURATE OR MEET YOUR REQUIREMENTS, (B) THE OPERATION OF THE SOFTWARE WILL BE SECURE, UNINTERRUPTED, ERROR-FREE OR VIRUS-FREE, OR (C) ANY DEFECTS IN THE SOFTWARE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION, GUIDELINES OR ADVICE GIVEN BY BEAST WILL CREATE A WARRANTY. THE FOREGOING DISCLAIMER OF WARRANTIES WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE LAWS OF SOME STATES OR JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO SOME OR ALL OF THE DISCLAIMERS IN THIS SECTION MAY NOT APPLY TO YOU. BEAST CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD.
12. Limitation of Liability
BEAST AND THE OTHER BEAST PARTIES WILL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY—WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, WARRANTY, OR OTHERWISE—FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES OR LOST PROFITS, EVEN IF BEAST OR THE OTHER BEAST PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE TOTAL LIABILITY OF BEAST AND THE OTHER BEAST PARTIES, FOR ANY CLAIM ARISING OUT OF OR RELATING TO THE SOFTWARE, REGARDLESS OF THE FORM OF THE ACTION, IS LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO ACCESS OR USE THE SOFTWARE GIVING RISE TO THE CLAIM (AND NOT ANY DEVICE NECESSARY TO USE THE SOFTWARE).
THE LIMITATIONS SET FORTH IN THIS SECTION WILL NOT LIMIT OR EXCLUDE LIABILITY FOR THE GROSS NEGLIGENCE, FRAUD OR INTENTIONAL MISCONDUCT OF BEAST OR THE OTHER BEAST PARTIES OR FOR ANY OTHER MATTERS IN WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. ADDITIONALLY, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
13. Release
To the fullest extent permitted by applicable law, you release Beast and the other Beast Parties from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. You expressly waive any rights you may have under California Civil Code § 1542 as well as any other statute or common law principles that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
14. Dispute Resolution; Binding Arbitration
Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Beast and limits the manner in which you can seek relief from us.
Except for small claims disputes in which you or Beast seek to bring an individual action in small claims court located in the county of your billing address or disputes in which you or Beast seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and Beast waive your rights to a jury trial and to have any dispute arising out of or related to the Software and your use thereof resolved in court. Instead, all disputes arising out of or relating to the Software and your use thereof will be resolved through confidential binding arbitration held in San Francisco County, California in accordance with the Streamlined Arbitration Rules and Procedures (“Rules”) of the Judicial Arbitration and Mediation Site (“JAMS”), which are available on the JAMS website (http://www.jamsadr.com) and hereby incorporated by reference. You either acknowledge and agree that you have read and understand the rules of JAMS or waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.
You and Beast agree that any dispute arising out of or related to the Software and your use thereof is personal to you and Beast and that any dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding.
You and Beast agree that this Agreement affects interstate commerce and that the enforceability of this Section 14 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, this Agreement and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by this Agreement. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. You and Beast agree that for any arbitration you initiate, you will pay the filing fee and Beast will pay the remaining JAMS fees and costs. For any arbitration initiated by Beast, Beast will pay all JAMS fees and costs. You and Beast agree that the state or federal courts of the State of California and the United States sitting in San Francisco County, California have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
ANY CLAIM ARISING OUT OF OR RELATED TO THE SOFTWARE OR YOUR USE THEREOF MUST BE FILED WITHIN ONE YEAR AFTER SUCH CLAIM AROSE; OTHERWISE, THE CLAIM IS PERMANENTLY BARRED, WHICH MEANS THAT YOU AND BEAST WILL NOT HAVE THE RIGHT TO ASSERT THE CLAIM.
You have the right to opt out of binding arbitration within 30 days of the date you first use the Software by emailing us at support@beastpets.com. In order to be effective, the opt out notice must include your full name and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 15.
15. Governing Law and Venue
This Agreement and your access to and use of will be governed by and construed and enforced in accordance with the laws of California, without regard to conflict of law rules or principles (whether of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of California and the United States, respectively, sitting in San Francisco County, California.
16. Changes to these End User License Agreement Terms
We may make changes to these End User License Agreement Terms from time to time. If we make changes, we will post the amended End User License Agreement Terms to our Software and update the “Last Updated” date above. We may also attempt to notify you by sending an email notification to the address associated with your account or providing notice through our Software or Website. Unless we say otherwise in our notice, the amended End User License Agreement Terms will be effective immediately and your continued access to and use of our Software after we provide notice will confirm your acceptance of the changes. If you do not agree to the amended End User License Agreement Terms, you must stop accessing and using our Software.
17. Termination
We reserve the right, without notice and in our sole discretion, to terminate your right to access or use our Software. We are not responsible for any loss or harm related to your inability to access or use our Software.
18. Severability
If any provision or part of a provision of these End User License Agreement Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these End User License Agreement Terms and does not affect the validity and enforceability of any remaining provisions.
19. Miscellaneous
These End User License Agreement Terms constitute the entire agreement between you and Beast relating to your access to and use of our Software. The failure of Beast to exercise or enforce any right or provision of these End User License Agreement Terms will not operate as a waiver of such right or provision. The section titles in these End User License Agreement Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these End User License Agreement Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.