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Terms of Use
July, 11,2019
IMPORTANT NOTICE: THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN SECTION 4 PRODUCT LICENSE AND SERVICE AGREEMENT (the "Agreement")
You agree that your use of this Synth Rider’s website (“http://synthridersvr.com”), application ("App"), account, product, service or other property (including Service and/or Service Provided Content as defined below), including any patches, updates, and downloadable content associated with any App or other software (collectively "Product" or "Products"), shall be subject to the terms of this Agreement. All Products including the Synth Riders Beatmap editor are owned by Kluge Strategic, Inc., a California S Corporation located at 4133 Redwood Ave., unit 4011 Los Angeles, CA 90066 – and its affiliates, successors, parents, subsidiaries, assigns and licensee, who provide Synth Riders Products (collectively, “We” or “Us”).
All rights not expressly granted to you are reserved by Kluge Strategic, Inc. and its licensors.
Please read and review both this Agreement before using this Product. If you do not agree with or wish to accept the terms of this Agreement then please do not use the Product. By using this Product or otherwise accepting this Agreement you agree to be bound by this Agreement and represent you satisfy all of the eligibility requirements below.
1. Eligibility
a. Subject to any applicable Product age ratings, restrictions and Account requirements, Products are made available to individuals aged 13 or older. If you are aged 13 but under 18 years of age, you and your parent or guardian must review this Agreement. Parents/ guardians are jointly and severally liable for all acts (including purchases and payments for Service Provided Content) and omissions of their children aged under 18 years when using a Product. Kluge Strategic, Inc. recommends that parents and guardians familiarize themselves with parental controls available on Devices they provide to their child and accompany their child if aged under 13 years of age, or the applicable age in your jurisdiction, when online.
b. The consideration for your acceptance of these Terms is that we are providing you the Grant of Use to use the Product pursuant to Section 2 hereof. You acknowledge and agree that this consideration is adequate and that you have received the consideration.
2. Access And Costs
You acknowledge and agree that you will provide at your own cost and expense the equipment, Internet or other connection charges, required to access and use the Product. We make no warranty that the Product can be accessed on all personal computers, games consoles, smartphones, tablets or other devices (each, a "Device", or in the plural, "Devices"), by means of any specific Internet or other connection provider, or in all countries.
YOU ARE SOLELY RESPONSIBLE FOR ANY THIRD PARTY COSTS YOU INCUR TO USE THE PRODUCT.
3. Grant of Use
We grant you a non-exclusive, non-transferable and limited right to access, non-publicly display, and use the Product, including all content available therein (the “Content”) (subject to the restrictions of the Product) on your computer or mobile device consistent with these Terms. You may only access and use the Product for your personal and noncommercial use.
4. Intellectual Property
a. The Content in the Product, excluding Third Party Content (defined below), but including other text, graphical images, photographs, music, video, software, scripts and trademarks, service marks and logos contained therein (collectively “Proprietary Materials”), are owned by and/or licensed to Us. All Proprietary Materials are subject to copyright, trademark and/or other rights under the laws of applicable jurisdictions, including domestic laws, foreign laws, and international conventions. We reserve all our rights over our Proprietary Materials.
b. Except as otherwise explicitly permitted, you agree not to copy, modify, publish, transmit, distribute, participate in the transfer or sale of, create derivative works of, or in any other way exploit, in whole or in part, any Content.
5. Beatmaps
a. You are entirely responsible for any and all materials you, transmit, create, modify or otherwise change using the Product, including any songs that you, modify or transmit.
b. You shall be solely responsible for any and all of your own Beatmaps and any and all consequences of uploading, modifying, transmitting, creating or otherwise making available the Beatmaps. For any and all of your Beatmaps, you affirm, represent and warrant that:
b1. You own or have the necessary licenses, permissions, rights or consents to use and authorize Us to use all trademarks, copyrights, trade secrets or other proprietary rights in and to Beatmaps for any and all uses contemplated by the Product and these Terms;
c. You further agree that you shall not upload, submit, create, transmit, modify or otherwise make available material that:
c1. Is copyrighted, protected by trade secret or trademark laws, or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have explicit permission from the rightful owner to use the material;
c2. Impersonates any person or entity or otherwise misrepresents you in any way, including creating a false identity;
c3. Would constitute, encourage or provide instructions for a criminal offense, a violation of the rights of any party, or that would otherwise create liability or violate any local, state, national or international law;
c4. Is unsolicited or unauthorized advertising, promotion, “spam” or any other form of solicitation.
d. We claim no ownership or control over the Beatmaps or Third Party Content. You or a third-party licensor, as appropriate, retain all copyrights to Beatmaps and you are responsible for protecting those rights as appropriate.
e. You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted herein to create the Beatmaps. Specifically, you represent and warrant that you have the right to upload, modify, access, transmit, create or otherwise make available the Beatmaps, and that creating the Beatmaps for personal use will not infringe upon any other party’s rights or your contractual obligations to other parties.
f. Without limiting the other indemnification provisions herein, you agree to defend Us against any claim, demand, suit or proceeding made or brought against Us by a third-party alleging that your Beatmaps or your use of the Product in violation of these Terms infringes or misappropriates the intellectual property rights of any third-party or violates applicable law and you shall indemnify Us for any and all damages against Us and for reasonable attorney’s fees and other costs incurred by Us in connection with any such claim, demand, suit or proceeding.
6. Product Content
a. We claim no ownership or control over Third Party Content. Third parties retain all rights to Third Party Content and they are responsible for protecting their rights as appropriate.
b. Without limiting the provisions below on limitations of liability and disclaimers of warranties, all Content (including Beatmaps and Third Party Content) in the Product is provided to you “AS-IS” for your information and personal use only and you shall not use, copy, reproduce, distribute, transmit, broadcast, display, sell, license or otherwise exploit for any other purpose whatsoever the Content without the prior written consent of the respective owners/licensors of the Content.
7. User Conduct
a. You represent and warrant that all the information and content provided by you to Us is accurate and current and that you have all necessary rights, power and authority to (i) agree to these Terms, (ii) create the Beatmaps, and (iii) perform the acts required of you under these Terms.
b. You hereby expressly authorize Us to monitor, record and log any of your activities on the Product.
c. As a condition of your use of the Product:
c1. You agree not to use the Product for any unlawful purpose or in any way that is prohibited by these Terms;
c2. You agree to abide by all applicable local, state, national and international laws and regulations;
c3. You agree not to use the Product in any way that exposes Us to criminal or civil liability;
c4. You agree that you are solely responsible for all acts and omissions that occur as a result of your use of the Product;
c5. You agree that all your Beatmaps belong to you and will not be distributed if you do not have the authorization to do so;
c6. You agree not to use any automated means, including robots, crawlers or data mining tools, to download, monitor or use data or Content from the Product;
c7. You agree not to take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on our technology infrastructure or otherwise make excessive demands on it;
c8. You agree not to “stalk” or otherwise harass anyone on or through the Product;
c9. You agree not to forge headers or otherwise manipulate identifiers in order to disguise the origin of any information you transmit;
c10. You agree not to disable, circumvent, or otherwise interfere with security related features of the Product or features that prevent or restrict use or copying of any content or which enforce limitations on the use of the Product or the content therein;
c11. You agree not to post, link to, or otherwise make available on the Product any material that contains software viruses or any computer code, file or program designed to interrupt, destroy, limit or monitor the functionality of any computer software or hardware or any telecommunications equipment;
c12. You agree not to license, sublicense, sell, resell, transfer, assign, distribute or otherwise in any way commercially exploit or make available the Product or any Content to any third party;
c13. You agree not to build upon or alter any portion of the Product or the services offered thereon;
c14. You agree not to “frame” or “mirror” the Product; and
c15. You agree not to reverse engineer any portion of the Product.
d. We reserve the right to take appropriate action against any user for any unauthorized use of the Product, including civil, criminal and injunctive redress and the termination of any user’s use of the Product. Any use of the Product and our computer systems not authorized by these Terms is a violation of these Terms and certain international, foreign and domestic criminal and civil laws.
e. In addition to termination of the grant of use of the Product, any violation of this Agreement, including the provisions of this Section 6, shall subject you to liquidated damages of ten thousand dollars ($10,000) for each violation. In the event that your violation results in legal action (whether against you or against Us by any party) or physical or emotional harm to any party, you shall be subject to liquidated damages of One Hundred and Fifty Thousand Dollars ($150,000) for each violation. We may, in our discretion, assign any such damage claim or portion thereof to a third party that has been wronged by your conduct. These liquidated damages provisions are not a penalty, but instead an attempt by the Parties to reasonably ascertain the amount of actual damage that could occur from such a violation. You acknowledge and agree that the amount of these liquidated damages is a minimum and that if actual damages are greater you shall be liable for the greater amount. If a court of competent jurisdiction finds that these liquidated damages are unenforceable to any extent, then the liquidated damages shall be lowered only by the extent necessary for them to be enforceable.
8. Services on the Product
a. You acknowledge that the Product is a virtual reality game and Beatmap editor tool. Specifically, but without limitation, the Product allows you to create your own Synth Riders track levels. The Product may only be used in accordance with law. We do not encourage, condone, induce or allow any use of the Product that may be in violation of any law.
b. We do not store any Beatmaps on any of our servers.
9. Fees
You acknowledge that We reserve the right to charge for any or all of our services and to change our fees from time to time in our sole discretion. If at any time We terminate your rights to use the Product because of a breach of these Terms, you shall not be entitled to a refund of any portion of your fees. In all other respects, such fees shall be governed by additional rules, terms, conditions or agreements posted on the Product and/or imposed by any sales agent or payment processing company, as may be amended from time to time.
10. Copyright Claims
We respect the intellectual property rights of others. You may not infringe the copyright, trademark or other proprietary informational rights of any party.
11. Modification of These Terms
We reserve the right to amend these Terms at any time by posting such amended Terms to the Product. No other notification may be made to you about any amendments. YOU ACKNOWLEDGE THAT YOUR CONTINUED USE OF THE PRODUCT FOLLOWING SUCH AMENDMENTS WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH AMENDMENTS, REGARDLESS OF WHETHER YOU HAVE ACTUALLY READ THEM.
12. Indemnification and Release
a. You hereby agree to indemnify Us and hold Us harmless from any and all damages and third-party claims and expenses, including attorney’s fees, arising from your use of the Product and/or from your breach of these Terms.
b. In the event that you have a dispute with one of more other users or any third parties, you hereby release Us, our officers, employees, agents and successors-in-right from claims, demands and damages (actual and consequential) of every kind or nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes and/or the Product.
13. Disclaimer of Warranties and Limitations of Liabilities
a. READ THIS SECTION CAREFULLY AS IT LIMITS OUR LIABILITY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW (BUT NO FURTHER).
b. The Product is provided “AS-IS” and without any warranty or condition, express, implied or statutory. We specifically disclaim to the fullest extent any implied warranties of merchantability, fitness for a particular purpose, non-infringement, information accuracy, integration, interoperability or quiet enjoyment. We disclaim any warranties for viruses or other harmful components in connection with the Products. Some jurisdictions do not allow the disclaimer of implied warranties, therefore in such jurisdictions, some of the foregoing disclaimers may not apply to you or be limited insofar as they relate to such implied warranties.
c. UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE FOR DIRECT, INDIRECT INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM ANY ASPECT OF YOUR USE OF THE PRODUCT, WHETHER, WITHOUT LIMITATION, SUCH DAMAGES ARISE FROM (i) YOUR USE, MISUSE OR INABILITY TO USE THE PRODUCT, (ii) YOUR RELIANCE ON ANY CONTENT ON THE PRODUCT, (iii) THE INTERRUPTION, SUSPENSION, MODIFICATION, ALTERATION OR COMPLETE DISCONTINUANCE OF THE PRODUCT OR (iv) THE TERMINATION OF SERVICE BY US. THESE LIMITATIONS ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR PRODUCTS RECEIVED OR ADVERTISED IN CONNECTION WITH THE PRODUCT. SOME JURISDICTIONS DO NOT ALLOW SOME LIMITATIONS OF LIABILITY, THEREFORE, IN SUCH JURISDICTIONS, SOME OF THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU OR BE LIMITED.
e. WE DO NOT WARRANT THAT (i) THE PRODUCT WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (ii) THE PRODUCT WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM YOUR USE OF THE PRODUCT WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, CONTENT OR OTHER MATERIAL OBTAINED THROUGH THE PRODUCT WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, OR (v) ANY ERRORS IN CONTENT WILL BE CORRECTED.
f. ANY CONTENT OBTAINED THROUGH THE USE OF THE PRODUCT IS OBTAINED AT YOUR OWN DISCRETION AND RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH CONTENT.
14. Binding Arbitration And Class Action Waiver
READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
These BINDING ARBITRATION AND CLASS ACTION WAIVER provisions apply to you if you are domiciled in and/or acquired and use the Product in the United States. These provisions may also apply to you if you are domiciled in and/or acquired and use the Product from outside the United States. See JURISDICTION AND APPLICABLE LAW below for details.
Initial Dispute Resolution: Kluge Strategic's Customer Support department is available by phone (213) 761-7560 or via email at hello@klugeinteractive.com to address any concerns you may have regarding the Product. Most concerns are quickly resolved in this manner to our customers' satisfaction. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.
Binding Arbitration: If the parties do not reach an agreed upon solution within a period of 30 days from the time informal dispute resolution is pursued pursuant to the paragraph above, then either party may initiate binding arbitration as the sole means to formally resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to this Agreement (including its interpretation, formation, performance and breach), the parties' relationship with each other and/or your use of the Product shall be finally settled by binding arbitration administered by JAMS in accordance with the provisions of its Comprehensive Arbitration Rules or Streamlined Arbitrations Rules, as appropriate, excluding any rules or procedures governing or permitting class actions. This arbitration provision is made pursuant to a transaction involving interstate commerce, and the Federal Arbitration Act (the "FAA") shall apply to the interpretation, applicability, enforceability and formation of this Agreement notwithstanding any other choice of law provision contained in this Agreement. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of this Agreement, including without limitation any claim that all or any part of this Agreement is void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator's award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
The JAMS Rules governing the arbitration may be accessed at http://www.jamsadr.com/ or by calling JAMS at (800) 352-5267. Your arbitration fees and your share of arbitrator compensation shall be governed by the JAMS Comprehensive Arbitration Rules, but shall not incorporate the JAMS Class Action Procedures, and, to the extent applicable, the Consumer Minimum Standards, including the then-current limit on arbitration filing fees. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, We will pay the additional cost. The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
Location: If you are a resident of the United States, arbitration will take place in Los Angeles, California. For residents outside the United States, arbitration shall be initiated in Los Angeles County, California, and you and Kluge Strategic agree to submit to the personal jurisdiction of any federal or state court in Los Angeles County, California, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
Class Action Waiver: The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
Exception - Litigation of Intellectual Property and Small Claims Court Claims: Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may bring an action in state or federal court that only asserts claims for patent infringement or invalidity, copyright infringement, moral rights violations, trademark infringement, and/or trade secret misappropriation, but not, for clarity, claims related to the license granted to you for the Product under this Agreement. Either party may also seek relief in a small claims court for disputes or claims within the scope of that court's jurisdiction.
30 Day Right to Opt Out: You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in the "Binding Arbitration", "Location", and "Class Action Waiver" paragraphs above by sending written notice of your decision to opt-out to the following address: Kluge Strategic, Inc. 4133 Redwood Ave unit #4011 Los Angeles, CA 90066, Attn: Legal. The notice must be sent within 30 days of purchasing the Product (or if no purchase was made, then within 30 days of the date on which you first access or use the Product and agree to these terms); otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt-out of these arbitration provisions, We also will not be bound by them.
15. General Terms
a. These Terms, as amended from time to time, constitute the entire agreement between you and Us and supersede all prior agreements between you and Us and may not be modified without our written consent.
b. Our failure to enforce any provision of these Terms will not be construed as a waiver of any provision or right.
c. If any part of these Terms is determined to be invalid or unenforceable pursuant to applicable law, then the invalid and unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the agreement shall continue in effect.
d. Nothing herein is intended, nor will be deemed, to confer rights or remedies upon any third party.
e. These Terms are not assignable, transferable or sub-licensable by you except with our prior written consent, but may be assigned or transferred by Us without restriction.
f. You agree that We may provide you with notices by e-mail, regular mail, or postings to the Product.
g. The section titles in these Terms are for convenience only and have no legal or contractual effect.
h. As Used in these Terms, the term “including” is illustrative and not limitative.
i. If this agreement is translated and executed in any language other than English and there is any conflict as between the translation and the English version, the English version shall control.
July, 11,2019
IMPORTANT NOTICE: THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN SECTION 4 PRODUCT LICENSE AND SERVICE AGREEMENT (the "Agreement")
You agree that your use of this Synth Rider’s website (“http://synthridersvr.com”), application ("App"), account, product, service or other property (including Service and/or Service Provided Content as defined below), including any patches, updates, and downloadable content associated with any App or other software (collectively "Product" or "Products"), shall be subject to the terms of this Agreement. All Products including the Synth Riders Beatmap editor are owned by Kluge Strategic, Inc., a California S Corporation located at 4133 Redwood Ave., unit 4011 Los Angeles, CA 90066 – and its affiliates, successors, parents, subsidiaries, assigns and licensee, who provide Synth Riders Products (collectively, “We” or “Us”).
All rights not expressly granted to you are reserved by Kluge Strategic, Inc. and its licensors.
Please read and review both this Agreement before using this Product. If you do not agree with or wish to accept the terms of this Agreement then please do not use the Product. By using this Product or otherwise accepting this Agreement you agree to be bound by this Agreement and represent you satisfy all of the eligibility requirements below.
1. Eligibility
a. Subject to any applicable Product age ratings, restrictions and Account requirements, Products are made available to individuals aged 13 or older. If you are aged 13 but under 18 years of age, you and your parent or guardian must review this Agreement. Parents/ guardians are jointly and severally liable for all acts (including purchases and payments for Service Provided Content) and omissions of their children aged under 18 years when using a Product. Kluge Strategic, Inc. recommends that parents and guardians familiarize themselves with parental controls available on Devices they provide to their child and accompany their child if aged under 13 years of age, or the applicable age in your jurisdiction, when online.
b. The consideration for your acceptance of these Terms is that we are providing you the Grant of Use to use the Product pursuant to Section 2 hereof. You acknowledge and agree that this consideration is adequate and that you have received the consideration.
2. Access And Costs
You acknowledge and agree that you will provide at your own cost and expense the equipment, Internet or other connection charges, required to access and use the Product. We make no warranty that the Product can be accessed on all personal computers, games consoles, smartphones, tablets or other devices (each, a "Device", or in the plural, "Devices"), by means of any specific Internet or other connection provider, or in all countries.
YOU ARE SOLELY RESPONSIBLE FOR ANY THIRD PARTY COSTS YOU INCUR TO USE THE PRODUCT.
3. Grant of Use
We grant you a non-exclusive, non-transferable and limited right to access, non-publicly display, and use the Product, including all content available therein (the “Content”) (subject to the restrictions of the Product) on your computer or mobile device consistent with these Terms. You may only access and use the Product for your personal and noncommercial use.
4. Intellectual Property
a. The Content in the Product, excluding Third Party Content (defined below), but including other text, graphical images, photographs, music, video, software, scripts and trademarks, service marks and logos contained therein (collectively “Proprietary Materials”), are owned by and/or licensed to Us. All Proprietary Materials are subject to copyright, trademark and/or other rights under the laws of applicable jurisdictions, including domestic laws, foreign laws, and international conventions. We reserve all our rights over our Proprietary Materials.
b. Except as otherwise explicitly permitted, you agree not to copy, modify, publish, transmit, distribute, participate in the transfer or sale of, create derivative works of, or in any other way exploit, in whole or in part, any Content.
5. Beatmaps
a. You are entirely responsible for any and all materials you, transmit, create, modify or otherwise change using the Product, including any songs that you, modify or transmit.
b. You shall be solely responsible for any and all of your own Beatmaps and any and all consequences of uploading, modifying, transmitting, creating or otherwise making available the Beatmaps. For any and all of your Beatmaps, you affirm, represent and warrant that:
b1. You own or have the necessary licenses, permissions, rights or consents to use and authorize Us to use all trademarks, copyrights, trade secrets or other proprietary rights in and to Beatmaps for any and all uses contemplated by the Product and these Terms;
c. You further agree that you shall not upload, submit, create, transmit, modify or otherwise make available material that:
c1. Is copyrighted, protected by trade secret or trademark laws, or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have explicit permission from the rightful owner to use the material;
c2. Impersonates any person or entity or otherwise misrepresents you in any way, including creating a false identity;
c3. Would constitute, encourage or provide instructions for a criminal offense, a violation of the rights of any party, or that would otherwise create liability or violate any local, state, national or international law;
c4. Is unsolicited or unauthorized advertising, promotion, “spam” or any other form of solicitation.
d. We claim no ownership or control over the Beatmaps or Third Party Content. You or a third-party licensor, as appropriate, retain all copyrights to Beatmaps and you are responsible for protecting those rights as appropriate.
e. You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted herein to create the Beatmaps. Specifically, you represent and warrant that you have the right to upload, modify, access, transmit, create or otherwise make available the Beatmaps, and that creating the Beatmaps for personal use will not infringe upon any other party’s rights or your contractual obligations to other parties.
f. Without limiting the other indemnification provisions herein, you agree to defend Us against any claim, demand, suit or proceeding made or brought against Us by a third-party alleging that your Beatmaps or your use of the Product in violation of these Terms infringes or misappropriates the intellectual property rights of any third-party or violates applicable law and you shall indemnify Us for any and all damages against Us and for reasonable attorney’s fees and other costs incurred by Us in connection with any such claim, demand, suit or proceeding.
6. Product Content
a. We claim no ownership or control over Third Party Content. Third parties retain all rights to Third Party Content and they are responsible for protecting their rights as appropriate.
b. Without limiting the provisions below on limitations of liability and disclaimers of warranties, all Content (including Beatmaps and Third Party Content) in the Product is provided to you “AS-IS” for your information and personal use only and you shall not use, copy, reproduce, distribute, transmit, broadcast, display, sell, license or otherwise exploit for any other purpose whatsoever the Content without the prior written consent of the respective owners/licensors of the Content.
7. User Conduct
a. You represent and warrant that all the information and content provided by you to Us is accurate and current and that you have all necessary rights, power and authority to (i) agree to these Terms, (ii) create the Beatmaps, and (iii) perform the acts required of you under these Terms.
b. You hereby expressly authorize Us to monitor, record and log any of your activities on the Product.
c. As a condition of your use of the Product:
c1. You agree not to use the Product for any unlawful purpose or in any way that is prohibited by these Terms;
c2. You agree to abide by all applicable local, state, national and international laws and regulations;
c3. You agree not to use the Product in any way that exposes Us to criminal or civil liability;
c4. You agree that you are solely responsible for all acts and omissions that occur as a result of your use of the Product;
c5. You agree that all your Beatmaps belong to you and will not be distributed if you do not have the authorization to do so;
c6. You agree not to use any automated means, including robots, crawlers or data mining tools, to download, monitor or use data or Content from the Product;
c7. You agree not to take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on our technology infrastructure or otherwise make excessive demands on it;
c8. You agree not to “stalk” or otherwise harass anyone on or through the Product;
c9. You agree not to forge headers or otherwise manipulate identifiers in order to disguise the origin of any information you transmit;
c10. You agree not to disable, circumvent, or otherwise interfere with security related features of the Product or features that prevent or restrict use or copying of any content or which enforce limitations on the use of the Product or the content therein;
c11. You agree not to post, link to, or otherwise make available on the Product any material that contains software viruses or any computer code, file or program designed to interrupt, destroy, limit or monitor the functionality of any computer software or hardware or any telecommunications equipment;
c12. You agree not to license, sublicense, sell, resell, transfer, assign, distribute or otherwise in any way commercially exploit or make available the Product or any Content to any third party;
c13. You agree not to build upon or alter any portion of the Product or the services offered thereon;
c14. You agree not to “frame” or “mirror” the Product; and
c15. You agree not to reverse engineer any portion of the Product.
d. We reserve the right to take appropriate action against any user for any unauthorized use of the Product, including civil, criminal and injunctive redress and the termination of any user’s use of the Product. Any use of the Product and our computer systems not authorized by these Terms is a violation of these Terms and certain international, foreign and domestic criminal and civil laws.
e. In addition to termination of the grant of use of the Product, any violation of this Agreement, including the provisions of this Section 6, shall subject you to liquidated damages of ten thousand dollars ($10,000) for each violation. In the event that your violation results in legal action (whether against you or against Us by any party) or physical or emotional harm to any party, you shall be subject to liquidated damages of One Hundred and Fifty Thousand Dollars ($150,000) for each violation. We may, in our discretion, assign any such damage claim or portion thereof to a third party that has been wronged by your conduct. These liquidated damages provisions are not a penalty, but instead an attempt by the Parties to reasonably ascertain the amount of actual damage that could occur from such a violation. You acknowledge and agree that the amount of these liquidated damages is a minimum and that if actual damages are greater you shall be liable for the greater amount. If a court of competent jurisdiction finds that these liquidated damages are unenforceable to any extent, then the liquidated damages shall be lowered only by the extent necessary for them to be enforceable.
8. Services on the Product
a. You acknowledge that the Product is a virtual reality game and Beatmap editor tool. Specifically, but without limitation, the Product allows you to create your own Synth Riders track levels. The Product may only be used in accordance with law. We do not encourage, condone, induce or allow any use of the Product that may be in violation of any law.
b. We do not store any Beatmaps on any of our servers.
9. Fees
You acknowledge that We reserve the right to charge for any or all of our services and to change our fees from time to time in our sole discretion. If at any time We terminate your rights to use the Product because of a breach of these Terms, you shall not be entitled to a refund of any portion of your fees. In all other respects, such fees shall be governed by additional rules, terms, conditions or agreements posted on the Product and/or imposed by any sales agent or payment processing company, as may be amended from time to time.
10. Copyright Claims
We respect the intellectual property rights of others. You may not infringe the copyright, trademark or other proprietary informational rights of any party.
11. Modification of These Terms
We reserve the right to amend these Terms at any time by posting such amended Terms to the Product. No other notification may be made to you about any amendments. YOU ACKNOWLEDGE THAT YOUR CONTINUED USE OF THE PRODUCT FOLLOWING SUCH AMENDMENTS WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH AMENDMENTS, REGARDLESS OF WHETHER YOU HAVE ACTUALLY READ THEM.
12. Indemnification and Release
a. You hereby agree to indemnify Us and hold Us harmless from any and all damages and third-party claims and expenses, including attorney’s fees, arising from your use of the Product and/or from your breach of these Terms.
b. In the event that you have a dispute with one of more other users or any third parties, you hereby release Us, our officers, employees, agents and successors-in-right from claims, demands and damages (actual and consequential) of every kind or nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes and/or the Product.
13. Disclaimer of Warranties and Limitations of Liabilities
a. READ THIS SECTION CAREFULLY AS IT LIMITS OUR LIABILITY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW (BUT NO FURTHER).
b. The Product is provided “AS-IS” and without any warranty or condition, express, implied or statutory. We specifically disclaim to the fullest extent any implied warranties of merchantability, fitness for a particular purpose, non-infringement, information accuracy, integration, interoperability or quiet enjoyment. We disclaim any warranties for viruses or other harmful components in connection with the Products. Some jurisdictions do not allow the disclaimer of implied warranties, therefore in such jurisdictions, some of the foregoing disclaimers may not apply to you or be limited insofar as they relate to such implied warranties.
c. UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE FOR DIRECT, INDIRECT INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM ANY ASPECT OF YOUR USE OF THE PRODUCT, WHETHER, WITHOUT LIMITATION, SUCH DAMAGES ARISE FROM (i) YOUR USE, MISUSE OR INABILITY TO USE THE PRODUCT, (ii) YOUR RELIANCE ON ANY CONTENT ON THE PRODUCT, (iii) THE INTERRUPTION, SUSPENSION, MODIFICATION, ALTERATION OR COMPLETE DISCONTINUANCE OF THE PRODUCT OR (iv) THE TERMINATION OF SERVICE BY US. THESE LIMITATIONS ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR PRODUCTS RECEIVED OR ADVERTISED IN CONNECTION WITH THE PRODUCT. SOME JURISDICTIONS DO NOT ALLOW SOME LIMITATIONS OF LIABILITY, THEREFORE, IN SUCH JURISDICTIONS, SOME OF THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU OR BE LIMITED.
e. WE DO NOT WARRANT THAT (i) THE PRODUCT WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (ii) THE PRODUCT WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM YOUR USE OF THE PRODUCT WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, CONTENT OR OTHER MATERIAL OBTAINED THROUGH THE PRODUCT WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, OR (v) ANY ERRORS IN CONTENT WILL BE CORRECTED.
f. ANY CONTENT OBTAINED THROUGH THE USE OF THE PRODUCT IS OBTAINED AT YOUR OWN DISCRETION AND RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH CONTENT.
14. Binding Arbitration And Class Action Waiver
READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
These BINDING ARBITRATION AND CLASS ACTION WAIVER provisions apply to you if you are domiciled in and/or acquired and use the Product in the United States. These provisions may also apply to you if you are domiciled in and/or acquired and use the Product from outside the United States. See JURISDICTION AND APPLICABLE LAW below for details.
Initial Dispute Resolution: Kluge Strategic's Customer Support department is available by phone (213) 761-7560 or via email at hello@klugeinteractive.com to address any concerns you may have regarding the Product. Most concerns are quickly resolved in this manner to our customers' satisfaction. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.
Binding Arbitration: If the parties do not reach an agreed upon solution within a period of 30 days from the time informal dispute resolution is pursued pursuant to the paragraph above, then either party may initiate binding arbitration as the sole means to formally resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to this Agreement (including its interpretation, formation, performance and breach), the parties' relationship with each other and/or your use of the Product shall be finally settled by binding arbitration administered by JAMS in accordance with the provisions of its Comprehensive Arbitration Rules or Streamlined Arbitrations Rules, as appropriate, excluding any rules or procedures governing or permitting class actions. This arbitration provision is made pursuant to a transaction involving interstate commerce, and the Federal Arbitration Act (the "FAA") shall apply to the interpretation, applicability, enforceability and formation of this Agreement notwithstanding any other choice of law provision contained in this Agreement. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of this Agreement, including without limitation any claim that all or any part of this Agreement is void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator's award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
The JAMS Rules governing the arbitration may be accessed at http://www.jamsadr.com/ or by calling JAMS at (800) 352-5267. Your arbitration fees and your share of arbitrator compensation shall be governed by the JAMS Comprehensive Arbitration Rules, but shall not incorporate the JAMS Class Action Procedures, and, to the extent applicable, the Consumer Minimum Standards, including the then-current limit on arbitration filing fees. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, We will pay the additional cost. The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
Location: If you are a resident of the United States, arbitration will take place in Los Angeles, California. For residents outside the United States, arbitration shall be initiated in Los Angeles County, California, and you and Kluge Strategic agree to submit to the personal jurisdiction of any federal or state court in Los Angeles County, California, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
Class Action Waiver: The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
Exception - Litigation of Intellectual Property and Small Claims Court Claims: Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may bring an action in state or federal court that only asserts claims for patent infringement or invalidity, copyright infringement, moral rights violations, trademark infringement, and/or trade secret misappropriation, but not, for clarity, claims related to the license granted to you for the Product under this Agreement. Either party may also seek relief in a small claims court for disputes or claims within the scope of that court's jurisdiction.
30 Day Right to Opt Out: You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in the "Binding Arbitration", "Location", and "Class Action Waiver" paragraphs above by sending written notice of your decision to opt-out to the following address: Kluge Strategic, Inc. 4133 Redwood Ave unit #4011 Los Angeles, CA 90066, Attn: Legal. The notice must be sent within 30 days of purchasing the Product (or if no purchase was made, then within 30 days of the date on which you first access or use the Product and agree to these terms); otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt-out of these arbitration provisions, We also will not be bound by them.
15. General Terms
a. These Terms, as amended from time to time, constitute the entire agreement between you and Us and supersede all prior agreements between you and Us and may not be modified without our written consent.
b. Our failure to enforce any provision of these Terms will not be construed as a waiver of any provision or right.
c. If any part of these Terms is determined to be invalid or unenforceable pursuant to applicable law, then the invalid and unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the agreement shall continue in effect.
d. Nothing herein is intended, nor will be deemed, to confer rights or remedies upon any third party.
e. These Terms are not assignable, transferable or sub-licensable by you except with our prior written consent, but may be assigned or transferred by Us without restriction.
f. You agree that We may provide you with notices by e-mail, regular mail, or postings to the Product.
g. The section titles in these Terms are for convenience only and have no legal or contractual effect.
h. As Used in these Terms, the term “including” is illustrative and not limitative.
i. If this agreement is translated and executed in any language other than English and there is any conflict as between the translation and the English version, the English version shall control.